Volume 66 — Ohio State Reports, New Series

<p>Contract settled by correspondence — Order given in pursuance thereto — Cannot change the contract, when.</p> <p>All the terms of a contract being definitely settled by correspondence, an order given by one of' the parties pursuant thereto should not be regarded as changing the contract, unless such change clearly appears to be intended.</p>

<p>Error to the Circuit Court of Belmont county.</p> <p>The action below in the common pleas of Belmont was by plaintiff in error, Isaac Johnson, against the defendant in error, the North British & Mercantile Insurance Company, upon a fire policy covering dwelling-house, barn, household goods and farming utensils. A jury being waived, the cause was submitted to the court on the pleadings and an agreed statement of facts. The pertinent facts are as follows: .</p> <p>1. July 1, 1897, one W. O. Chappell was the general agent at Barnesville, Ohio, for several insurance companies, including the Hartford of Hartford, Connecticut, and the defendant, the North British.</p> <p>2. On the day named, Johnson, who was then the owner of and lived upon a farm near Atlas, Belmont county, on the street in Barnesville, applied to Chappell for insurance on his farm buildings and contents. He was told the rate of premium, and promised to call at Chappell’s office, but did not do so.</p> <p>3. On the next day Chappell went to Johnson’s farm to secure the insurance. They had a general consultation in which Chappell told Johnson what companies he represented, asked Johnson in what company he wished to be insured. Johnson answered that it made no difference to him, but to place him in some good company. Johnson paid Chappell ten dollars on account of premium, which was to be $13.50. The insurance was then finally agreed upon.</p> <p>4. July 5th, Chappell issued and mailed to Johnson policy number 20065 in the Hartford, and notified the company. The written description and printed parts were similar to that of the policy in suit. Johnson duly accepted and held the policy until after the fire.</p> <p>5. The Hartford Company, by letter received by Chappell on the 20th, directed him to cancel its policy, and accordingly, on July 28th, Chappell went to Johnson’s to take it up and cancel it. Not finding Johnson at home he requested a son, a lad of about sixteen, residing on the farm with his father, to tell his father to come to his (Chappell’s) office that week and bring the policy; that he desired to change the insurance to another company. The son never informed his father of the request. Johnson never had, until after the fire, any notice or knowledge that the company desired, or that Chappell was directed, to cancel the policy.</p> <p>6. On July 29th Chappell wrote the company that he had been to Johnson’s home to get their policy, and cancel it, but that Johnson was not at home, and that he left instructions with his son for its return.</p> <p>7. On July 28th Chappell wrote on his policy ledger a cancellation of the Hartford policy, and wrote the policy in suit in the North British in all respects similar to the Hartford policy, save that it was not to take effect until the third day of August following. At the same time he entered the North British policy upon his policy register, and made his daily report of the same to the Company.</p> <p>8. August 4th, a fire occurred and the barn building and contents described in both policies were totally destroyed.</p> <p>9. August 5th, Chappell, having heard of the fire, went to Johnson’s house. Having been absent from home for four days he did not'know whether Johnson had surrendered the Hartford policy, and wanted to ascertain as to it. Johnson was ill and could not be seen. Learning this, Chappell asked a son, a man about twenty-four years of age, for the policy, stating that he must have it, but did not state that he had placed the insurance in another company, nor that the policy had been ordered canceled. The young man then delivered the policy to Chappell. Johnson had no knowledge that the policy had been so delivered nor had the son authority to deliver it.</p> <p>10. Some time after the fire, Johnson called at Chappell’s office to get the Hartford policy, but Chappell not being in, returned home without receiving it. At that time he had no knowledge that any other policy had been written. The policy in suit was delivered to Johnson August 10th. No part of the ten dollars paid by Johnson was returned to him, nor was there any offer on the part of the Hartford Company, or any of its agents, to return the same. He did not ask as to its return, nor did he pay or offer to pay any of the premium for the North British policy.</p> <p>11. Johnson never had, at any time before the fire, notice in any way that his policy in.the Hartford had been ordered canceled.</p> <p>12. In dealing with each company Chappell charged himself with the full amount of the premium.</p> <p>13. August 7th, Chappell notified the defendant company of the loss, and the company responded that its state agent Bell had been instructed to attend to adjustment. Bell thereupon went to Atlas to adjust the loss and then learned from Johnson of the issuing of the Hartford policy, which was the first notice he or the company had of that fact. Johnson at the time supposed Bell was the adjuster of the Hartford Company. Thereupon the defendant company being informed by Bell of the previous issuing of the policy to Johnson in the Hartford, denied liability for the loss.</p> <p>14. September 27th, Chappell sent $11.47 to the defendant company in payment of the premium on the policy, which sum was returned by the company.</p> <p>15. The policy issued by the Hartford Company contained the following stipulation, regarding cancellation, viz. :</p> <p>“This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice, it shall retain only the .pro rata, premium.”</p> <p>16. The policy of the North British Company (the one in suit) contained the following provision regarding other insurance, viz.:</p> <p>“This entire policy unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, -whether valid or not, on property covered in whole or in part by this policy.”</p> <p>17. No other provision was endorsed on said policy or added thereto regarding other insurance, nor was any other agreement of any kind made upon the subject.</p> <p>The court found the issues for the plaintiff and assessed the damages at $903.86, for which judgment was rendered against the defendant. This judgment was reversed by the circuit court on the ground that the finding and judgment of the common pleas is not Sustained hy the evidence as shown by the agreed statement of facts and that the same is contrary to law. The plaintiff brings error.</p>

<p>Error to the Circuit Court of Stark county.</p> <p>The city of Canton is a municipal corporation and is situated between the east and west forks of Nimishiller creek, the forks meeting at or near the south line of the city and thus forming that creek. The entire natural drainage of the city is toward, and into these two forks of the creek, which is a natural watercourse.</p> <p>The city has established its system of water-works on the west branch of the creek, on a lot of land adjoining said branch, and it takes its water supply from said creek, and from certain wells near the same, and from Myers’ lake nearby. The city uses so much of the water supply thus passing through its waterworks, as it needs for its use as a city, and supplies its inhabitants with water for domestic, commercial and manufacturing- purposes, at a price fixed by the city, so as to produce an income about sufficient to pay the expenses of said water-works.</p> <p>The defendants in error own a water-power grist mill located on the creek a short distance down stream south of the city, and have used the water of the creek for many years — over fifty — as power to run their mill, and until about the year 1887 there was sufficient water to supply both the city and the mill, but as the city grew and extended its water-works, it used larger quantities of water, and thereby the supply to the mill became reduced to such an extent that in dry seasons of the year, there was not sufficient water to run the mill all the time, and it became necessary to shut down at nights.</p> <p>Thereupon in the year 1898, the defendants in error, plaintiffs below, commenced an action against the city in the court of common pleas, seeking to recover damages from the city for thus using the water, and thereby diminishing the supply to the mill. The city claimed to be a riparian owner and entitled to make such use of the water of the stream as it had made, and that the plaintiffs below had no greater right to the use of the water to run their mill, than the city and its inhabitants had to use the waters of the creek above the mill, for domestic, commercial and manufacturing purposes.</p> <p>Upon the trial of the case these questions were put in issue by the pleadings and evidence. Thereupon the court charged the jury as follows:</p> <p>“On the question of the right of the city to take this water for the purposes named, the defendant claims that substantially all the water diverted by it from the creek in question, and which was not returned to said creek, was used for the purpose of supplying the inhabitants of the city and a small portion of territory adjoining thereto, with water for domestic, sanitary, agricultural and manufacturing purposes. That said stream does now and for many years has passed in and through the corporate limits of said city. That it owns the premises upon which its pumping station is situated, and has lines of pipe proceeding from said creek and pumping station, and passing through the city to supply said persons, and that it is in a sense, a riparian owner, located on said stream, and it claims that the inhabitants of said city so supplied by it, have the rights of riparian owners in said stream; that is to say — the right to use the same for domestic, agricultural, sanitary and manufacturing purposes; and I am requested by defendant counsel to say to you as matter of law that if these facts are true, and if the water so drawn from said stream and not returned to it so as to be effective for plaintiffs’ water power, was substantially all consumed by the citizens of said city and territory adjoining thereto, for the purposes and uses aforesaid, and if their uses were reasonable in manner and extent; then the city would not be liable to the plaintiffs, although such use might so diminish the volume of said stream, that at certain times of the year it would cause a substantial diminution of plaintiffs’ water power.</p> <p>“I say, I am asked by defendant’s counsel to so instruct you, but I cannot so instruct you as matter of law. On the contrary, I say to you as a matter of law, that the undiminished flow of a natural private stream, such as the one in question, is conceded to be, is the right of every riparian owner, yet this right is limited to this extent; that each riparian owner may without subjecting himself to liability to another lower riparian owner, use of the stream whatever is needed for his own domestic purposes and the watering of stock. The defendant, the city, cannot be considered a riparian owner within the scope of this exception.”</p> <p>The city saved exceptions to this part of the charge and to the charge as a whole.</p> <p>A verdict was. returned in favor of plaintiffs below, motion for new trial overruled, judgment entered on the verdict against the city, and a bill of exceptions allowed, signed and made part of the record.</p> <p>The circuit court affirmed the judgment, and thereupon the city filed its petition in error here, seeking to reverse the judgments below.</p>

<p>Error to the Circuit Court of Jackson county.</p> <p>At the February term of the court of common pleas of Jackson county, for the year 1900, the defendant in error was indicted by the grand jury for cohabiting in a state of adultery with one Amanda Butcher. He was placed on trial at a subsequent term, and in making out his defense, he became a witness in his own behalf, and in his testimony under oath, denied all the acts of illicit intercourse charged in the indictment; but he was found guilty and sentenced accordingly.</p> <p>By another grand jury he was indicted for the crime of perjury, in that he gave false testimony on the former trial wherein he denied the acts of adultery. On the trial for perjury, no witness was produced by the state who testified to the falsity of the matter assigned as perjury, but the state rested its case for conviction, on circumstantial evidence, at the close of which the defendant asked the court to direct a verdict of acquittal. This request was denied, and the defendant introduced his testimony. He was found guilty and sentenced to a term of imprisonment, from which error was prosecuted in the circuit court.</p> <p>The grounds of error relied on, and which were sustained by the court, are in substance:</p> <p>1. That the. trial court erred in refusing to direct a verdict for the accused, at the close of the testimony of the state.</p> <p>2. The court erred in the charge to the jury.</p> <p>. The circuit court reversed the judgment of the trial court, and remanded the case for new trial and further proceedings. The state now prosecutes error in this court to reverse the circuit court, in order that the sentence may be carried into execution.</p>

<p>Error to the Circuit Court of Cuyahoga county,</p> <p>The defendant in error was a passenger on one of the cars of the plaintiff in error going westward toward the center of the city of Cleveland. The train was composed of two cars, a grip car and a trail car, which were propelled by a cable at a speed not to exceed ten or twelve miles per hour. Defendant in error sat in a single seat on the right hand (north) of the gripman who was operating the car, and to her right was an arm connecting the back of the seat with an upright post supporting the roof of the car. A bakery wagon was proceeding along Superior street, north of the car track and going in the same direction as the train on which was the defendant in error. Dunham avenue is a street running south from Superior street, but it does not cross Superior street. Just before' reaching Dunham avenue, an east-bound train passed on the south track and bells were rung; but the attention of the driver of the bakery wagon was directed to the east-bound train so that he did not observe the west-bound train, on which was the defendant in error, and he drove upon and across the north track, directly in front of the west-bound train, intending to go into and along Dunham avenue. The gripman in charge of the west-botínd train, in his efforts to avoid a collision with the bakery wagon, caused the train to be suddenly stopped, but it did nevertheless collide with the wagon, whereby the defendant in error, as she alleges in her petition, Avas violently thrown from the car to the curb of the street and severely injured. There, was testimony tending to show that the defendant in error rose from her seat and jumped from the car. The jury returned a verdict for the plaintiff in the sum of $1,200, and judgment was rendered therefor, which was affirmed by the circuit court. This proceeding is to reverse the judgments of the circuit and common pleas courts.</p>

<p>Lands owned ~by municipality — Not exempt from taxation — Unless used, in municipal function — Same ivhen lands leased — Municipal law.</p> <p>The ownership of lands by a municipal corporation does not bring them within any statutory exemption from taxation unless they are used in the exercise of a municipal function, and-this is true although they are leased, by the municipality and the money realized is applied to a public purpose.</p> <p>[This case was decided previous to the retirement from the bench of Judge Minshall. — Reporter.]</p>

<p>Notice of intention to appeal — By one in fiduciary capacity — Requirements of statute — Section GJfiS, Rev. Stat.</p> <p>To perfect an appeal under Revised Statutes, Sec. 6408, by a party in a fiduciary capacity who appeals in the interest of the trust, a separate written notice to the court of an intention to appeal is necessary. A recital in a journal entry of an intention to appeal, or that the party gives,' or has given, notice of an intention to appeal, is not a compliance with the statute.</p>

<p>Prosecution for manslaughter — Deceased unintentionally hilled— Aci of slayer must be prohibited by law or of culpable negligence — Criminal law.</p> <p>In a prosecution for manslaughter, wherein the state relies for conviction on the ground that the deceased was killed unintentionally, while the slayer was in the commission of an unlawful act, it must be shown that the alleged unlawful act is prohibited by law; and it is not sufficient to establish, that such act so engaged in, was a crime at common law, or one of gross and culpable negligence.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>Plaintiff in error was treasurer of the city of Cincinnati and ex officio of the school district of Cincinnati. Between July 5, 1897 and July 1, 1898, he received as interest on the average balance of the school funds which he had deposited in the Atlas National Bank the sum of $2,051.62. Whether the interest belonged to him or to the school district of Cincinnati was the subject of contention in the court of common pleas. The performance of the official duties of the treasurer was secured by a bond conditioned as follows:</p> <p>“The condition of the obligation is such that, whereas the said Edwin O. Eshelby was, on the fifth day of April, 1897, duly elected to the office of treasurer of the city of Cincinnati, and, whereas, under section 4042 of the Revised Statutes of Ohio, the treasurer of the city funds is ex officio treasurer of the school funds.</p> <p>“Now, therefore, if the said Edwin O. Eshelby shall faithfully perform all and singular his duties as said treasurer of the school funds of the school district of Cincinnati, and shall faithfully keep, disburse and account for, according to law, all moneys that shall come, from time to time, into his hands, as such treasurer, and at the expiration of his term of office shall pay over to the proper person or authority all such moneys remaining in his hands, then this obligation shall be void and of no effect.”</p> <p>The court of common pleas adjudged the interest to the school district of Cincinnati, and its judgment was’ affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The action in the court of common pleas was hy the defendant in error against the plaintiff in error, in replevin, .to recover possession of a stock of goods in a store room in the city of Cincinnati, on a claim that the plaintiff had purchased the goods of the defendant, as administrator, at an administrator’s sale. The goods were taken under the writ and possession delivered to the plaintiff. Among other defenses the defendant, in his answer, set up the following:</p> <p>“5. The defendant says that he is, and was at the commencement of this action, the administrator of the estate of Robert Wood Mercer, deceased, duly appointed by the probate court of Hamilton county, Ohio, July 8, 1896, and that in pursuance with his duties as such administrator, and by direction of such court, on the twenty-fifth day of May, 1897, he offered at public auction,as such administrator,the goods and chattels belonging to said estate remaining unsold at said date; and that at such sale the plaintiff, Jonathan Hamilton, bid the sum of $3,550 for said stock of goods, and stated to said administrator at said time that the bid was made in pursuance of the terms of sale upon nine months’ time with approved security; the defendant, as such administrator, then announced that said sale would be postponed until May 26, 1897, at 10 o’clock, for the purpose of permitting the said plaintiff, Jonathan Hamilton, to present such note to the defendant as such administrator, with security to be approved by the administrator, as required by law. Said plaintiff, Jonathan Hamilton, on the same day presented two notes to this defendant, as such administrator, with certain security or sureties, to-wit: R. W. Mercer, C. W. Mercer, William Disney and J. S. Crawford, in the total sum of $3,550, the said note being executed by tbe plaintiff, Jonathan Hamilton, to Scott Bonham, administrator of tbe estate of Robert W. Mercer.</p> <p>“This defendant at once investigated tbe sureties, in accordance with an agreement with tbe plaintiff, and notified tbe plaintiff within a short time thereafter that such sureties were insufficient and were not approved by tbe defendant; that tbe notes would not be accepted by tbe defendant, and this defendant refused to accept said notes and also refused to deliver tbe property which be bad offered for sale as such administrator aforesaid or any part thereof to tbe said plaintiff, all of which proceedings on the part of this defendant in refusing to accept such notes and to turn over such property to tbe plaintiff, were also duly brought to tbe notice of tbe probate court of Hamilton county, Ohio, in tbe presence of tbe plaintiff and tbe sureties named herein and tbe defendant’s proceeding and refusal to accept were approved by said court. And tbe defendant, as such administrator and officer of said court, was directed to proceed with tbe sale of tbe said property as if no such bid bad been made by tbe said plaintiff, which orders of tbe probate court this defendant, as such administrator, proceeded to comply with.” And prayed judgment for tbe value of tbe goods which be averred was $6,823.24, and damages for detention.</p> <p>The new matter was denied by reply.</p> <p>At tbe trial tbe defendant gave testimony, by himself and others, in support of bis answer. And tbe plaintiff offered testimony in contradiction, but it was not denied that tbe goods were offered at administrator’s sale, nor that tbe terms of sale were as stated in tbe answer. It was admitted that tbe value of tbe goods was correctly stated in tbe answer. Tbe plaintiff also offered testimony respecting the financial worth of the sureties upon the notes tendered to the defendant in payment for said goods. Objection to this testimony was made by defendant which was sustained, and the testimony was not permitted to be given. The testimony of the plaintiff (Hamilton), respecting the alleged sale, and the only testimony offered by him on that subject, was as follows:</p> <p>“On the twenty-fifth of May, 1897, I had some notices these goods were going to sell; were advertised to sell that day, and I got down here in the morning about eight or nine o’clock, and went down to the store; I went to the store and Mr. Bonham was there, and somewhere between nine and ten o’clock he commenced selling some goods; and after he offered them for sale he sold some small article. Near ten o’clock, or at ten o’clock, he offered the whole store for sale, and Mr. Disney bid so much, I do not recollect just what the bid was in the first place; somebody bid before Mr. Disney, and they commenced bidding up, until it was knocked off by Mr. Disney’s bid at $3,550, or fifty-two dollars, and if I understood Mr. Bonham rightly, he asked Mr. Disney who was the buyer, and Mr. Disney said Jonathan Hamilton of Maysville; and Mr. Bonham cried off the sale, saying: ‘I offer all the personal property of Robert Wood Mercer, appraised at $6,500,’ and something, holding, I thought, an inventory of the goods in his hand, and said: There is the appraised value, what can I get?’ — when he started off. Uan I get two-thirds?’ maybe he said first; and finally he got a bid and said: ff offer all the property of Robert Wood Mercer, what can I have a bid for it?’ Those bids were put in, first one and then another, and it was finally knocked off to Mr. Disney’s bid. Well, then, after the sale, why Mr. Bonham stated that this was a sale if there was security given, if there was not security given by ten o’clock the next day he would go and sell, he would offer it again for kale; and soon after that we retired and went to Mr. Disney’s office, and there those notes were gotten up that same afternoon, if my recollection serves me right, in two notes, and signed by me and the two Mercer boys, Mr. Disney and, I believe, Mr. Crawford.</p> <p>“Q. Was there anything done after you left Mr. Disney’s office?</p> <p>“A. Why, there was nothing done that afternoon that I recollect of, only, if my memory serves me right, Mr. Bonham came back there thát evening or the next morning and remarked that he would not accept of the security, and said he was going to sell the store again; he was going to go to sell the goods, and I believe did go on down.”</p> <p>At the conclusion of the testimony, ° counsel for Hamilton requested the court to give the following-charge to the jury, viz.:</p> <p>“If the jury find that the sureties on the two promissory notes given by the plaintiff, Jonathan Hamilton, for $2,000 and $1,550, payable respectively in nine months after date, to Scott Bonham, as administrator of the estate of Robert Wood Mercer, were in the aggregate sufficient as security, and should, in the exercise of prudence and reasonable care on the part cf said Bonham, have been accepted and approved by him, then I charge you that the delivery of said notes by plaintiff to the defendant was a compliance with the terms of the sale, and thereby the title to the goods so sold passed to the plaintiff, Hamilton.”</p> <p>Which the court refused to give.</p> <p>Thereupon the court directed a verdict for the defendant for the sum named and nominal damages of one dollar, which was then rendered, and judgment was entered in favor of defendant and against the plaintiff below upon the verdict. Error was prosecuted by Hamilton to the circuit court, by which court the judgment below was reversed for “error in this, to-wit: that the court erred in instructing the jury to bring in a verdict for the defendant, in overruling the motion for a new trial on this ground, in rendering judgment on verdict in favor of defendant in error, in refusing to give the special charge set forth in the petition in error, in rejecting evidence as to value of property and in holding that the administrator had the arbitrary power to reject the sureties, and in refusing to permit the plaintiff to introduce evidence to show the financial worth of the persons who were endorsers on the notes and given as security therefor in accordance with the advertisement and the sections of the statutes of the state of Ohio relating thereto.”</p> <p>Mr. Bonham, defendant below, brings error.</p>

<p>A corporation cannot be a member of a partnership — Credit due two corporations united for joint business not partnership assets — Of money in hands of third person for two such corporations — Half belongs to each corporation — Law of garnishee — Illegality of combination to regulate prices — Money belonging to such combination not tainted with illegality, when.</p> <p>2. Where two corporations by agreement contribute capital to carry on a joint business in an assumed name, the net profits to be equally divided, such combination is not a partnership, and credits due thereto are not partnership assets, but belong to the two corporations.</p> <p>3. Where money is held by a third person for such two corporations, and the same is garnisheed to pay the individual debt of one of them, and, the disclosures being unsatisfactory, an action is brought against such third person and the other corporation as garnishees, both answer, and both fail to claim that such other corporation has any interest in the money, and the cause is tried upon the pleadings and testimony, it is not error of law for the court to find that one-half of such money belongs to the debtor corporation, and render judgment accordingly.</p> <p>4. While a combination to regulate prices and control output, may be against public policy and illegal, ihe money arising as the fruits of such combination, when placed in the hands of a third person for one of the members thereof, ceases to' be tainted by such illegality, and becomes honest money, subject to seizure and sequestration by garnishee process, in favor of a creditor of such member.</p>

<p>Compensation of county commissioners — For expenses in official duty — Section 897, Rev. Stat. — Allowance of invalid claims of expense by board and probate judge — Not a bar to action for recovery.</p> <p>1. The expenses which are authorized to be paid a county commissioner, by the last clause of section 897, of the Revised Statutes, include only his official expenses “actually paid in the discharge of some official duty,” as distinguished from those incurred for his personal comforts and necessities. He has no valid claim against the county, or its funds, beyond the per diem compensation and mileage allowed, for any of his personal expenses.</p> <p>2. Expenses incurred for railroad fare, livery hire, charges for the use of his own conveyance, for the feed and shoeing of horses used by him, and for his board and others of a like nature, are of a personal character, for which no valid claim can be made against the county, although they are incurred while about the business of the county.</p> <p>3. The allowance of such invalid claim by the board of commissioners, upon the certificate of the prosecuting attorney, and approval of the probate judge, and its payment by the treasurer, is not a bar to an action to recover the money back.</p>

[This case was heard and decided by the Northern Division of the court.] The plaintiff in error, in the year 1895, by the probate court of Fayette county was appointed administrator de bonis non with the will annexed, of-James M. Willis, deceased and qualified as such. The predecessor in the trust was William R. Willis, who was appointed as executor of the wall without bond, in September, 1888.

<p>Employe held to appreciate dangers from defects — Of wfyich he might have knovMdge — Law of master and servant.</p> <p>An employe experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care might have, knowledge.</p>

<p>Action on promissory note — Denial of execution — Not inconsistent with claim of nonconsideration — Pleadings.</p> <p>1. In an action on a promissory note, a denial of its execution and delivery is consistent with a separate ground of defense, that the note is without consideration.</p> <p>■ 2. When both defenses are made, and the plea of want of consideration is in general terms, it is error for the court to require the defendant to make the same definite and certain “by setting forth the facts and circumstances connected with the note which render it without consideration,” and the error is continued in striking the defense from the answer for noncompliance with such order. The ease of Chamberlain v. Railway Co., 15 Ohio St., 225, distinguished.</p>

. Garrett brought suit in the court of common pleas to recover from Beckman & Company damages alleged to have been sustained by him as the result of their breach of a written contract of employment whereby they had employed him for five years from March 1, 1894, to March 1, 1899, at a stipulated salary, and he had agreed to serve them for that period, his obligation being expressed in the following terms: “In consideration of the foregoing the said Albert P. Garrett agrees…

This action was begun by tbe defendant in error in tbe court of common pleas by a petition in wbicb sbe says that one Margaret H. Fleming died in April, 1891, leaving a last will and testament wbicb was filed and admitted to probate by tbe probate court of Franklin county on tbe first of May, 1891; that one Ripley C. Hoffman was named in tbe will as executor thereof, and on tbe first day of May, 1891, be was appointed by said probate court as executor of tbe said will, and…

The plaintiff’s case was tried in the court of common pleas of Franklin and a judgment rendered in her favor. An appeal was taken by the defendant to the circuit court, where, on trial, judgment was given for defendant, and plaintiff’s petition dismissed. She brings error to that judgment.

This was an action in tbe court of common pleas by tbe state to recover possession of wbat is known as “Lockport Basin” in Cincinnati, tbe claim by tbe state being that tbe basin was formerly part of tbe canal system of tbe state.

The plaintiffs in error brought their action in the Cuyahoga common pleas against the Cleveland, Medina & Southern Railway Company and John Davis to enjoin the construction and operation of a railroad along and over a public highway, known as the Wooster pike. The plaintiffs are the owners of improved farms which abut on this public road and their titles in fee extend to the center of the road.

In September, 1898, the plaintiff in error filed its petition in the court of common pleas of Hamilton county, to foreclose a mortgage given by George Lushey, September 30,1892, to secure a note to plaintiff in error, for the sum of ten thousand dollars, payable one year after date, with interest payable semiannually. This mortgage covered real estate in the city of Cincinnati. Interest was paid on the mortgage to September 30, 1897, after which no further payments were made.

<p>, Party granted new trial — On- condition of giving bond to secure possible judgment — Bondsmen estopped to deny validity of bond.</p> <p>When the trial court is of the opinion that a party is not in strict right entitled to a new trial, but grants to such party a new trial on condition that he give bond to pay any judgment which might be recovered on such new trial, and he complies with the condition and has the benefit of the new trial, the parties to such bond are estopped from claiming that such bend is invalid.</p>

The action was brought by the plaintiff in error, also plaintiff below, against the insurance company to recover one-third part of a $5,000 accident policy, the injury caused by the accident having resulted in the amputation of the left foot of the plaintiff.

E. H. Harmon, plaintiff in error, having been appointed and qualified district examiner, under the act of March 1, 1900, 94 O. L., 33, known as the “Roberts.

The controversy between these parties was first litigated in the court of insolvency of Hamilton county, and from its judgment and orders an appeal was taken to the court of common pleas, where the case was tried by that court on an agreed statement of facts, from which statement it appears, that H. F. Stothfang, prior to April 16, 1898, had for several years been indebted to one Dibowski, for borrowed money, in the sum of one thousand dollars for which he held the…

Mrs. Cox, as administratrix, brought suit in the court of common pleas to recover from the railway company damages for the death of her intestate which was alleged, to have been caused by the negligence of the company.

The defendant in error, Robert B. Jamison, commenced this action by a petition in the court of common pleas of Pickaway county against the plaintiff in error, John Southward, seeking to subject certain real estate to the payment of a judgment lien. There was a partition suit pending at the time of the levy of the judgment, wherein Annie Dawson was plaintiff and John Southward et al. were defendants.

The defendant in error commenced an action in the common pleas of Cuyahoga, against the plaintiff in error, to recover upon eight causes of action, the first of which is in words and figures following, to-wit: “Now comes the plaintiff herein, Frank H. Ginn, trustee, and for his cause of action against the defendant Marcus M. Brown, says: That there is due him as such trustee, from said defendant, the sum of |100.75 for work and labor performed by Peter J. DeWitt, for and at…

On the morning of June 2, 1892, Annie Kistler, defendant in error, and her father were driving west on the county line road between Seneca and Sandusky counties, in a buggy drawn by two quiet farm horses, the side and rear curtains being down, the latter being loose at the bottom. Her father was very deaf, and it was his custom to take one of his children along to hear for him, and he had taken Annie along that morning for that purpose.

Douglas F. Hoyer, defendant in error, by virtue of a written contract for that purpose, dated January 13, 1891, became the agent of the plaintiff in error to render services exclusively for it, in Holmes and Knox counties, the service to consist of canvassing for applications for insurance in said company and the collection and paying over premiums on such insurance when effected.

Between March, 1884, and April, 1894, the defendants in error filed in the probate court several accounts as administrators of the estate of M. Louise Deshler, deceased. To these accounts the plaintiffs in error filed exceptions, which were overruled by the probate court February 6, 1S97, and on that day the exceptors gave notice of their intention to appeal the cause to the court of common pleas, and the amount of the appeal bond was fixed by the probate court.

This case was heard by one division of the Supreme Court. The defendant in error, The Standard Brick Company, filed a petition against the plaintiff in error in the court of common pleas of Cuyahoga county to recover upon a bond which the plaintiff in error had signed as surety for one Joseph Soss, who had contracted to construct a building and pay all claims for labor and material, the bond containing a clause that the same should be for the use and benefit of any laborer…

The present action is to reverse the judgment of the circuit court of Stark, where the cause was tried on appeal from the common pleas of that county.

The city of Dayton appropriated by proper legal proceedings certain lands for the extension of two streets, Monroe and Long, and haying paid the compensation, damages and costs, made an assessment upon the abutting, adjacent and contiguous lots for the purpose of raising money to reimburse its treasury for the money so paid out, or else to raise money to pay the bonds issued by the city by means of which it pledged the public faith and credit of the city and thereby raised…

This case was heard and submitted with No. 7196, The Baltimore & Ohio Railroad Company v. Melissa Glenn.

<p>Trial by jury — General or special verdict — Section 5801, Rev. Stat., mandatory only, when — Trial court to exercise power of refusal to ■permit questions propounded with great caution — Court procedure.</p> <p>1. A request that the court will direct the jury to render a special verdict in writing, upon any or all of the issues in the case, is not a request to instruct the jury that if they find a general verdict, they shall find specially upon particular questions of fact, as provided in Revised Statutes, Section 5201.</p> <p>2. Revised' Statutes, Section 5201, so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.</p> <p>3. The trial court should exercise with great deliberation and caution the power of withdrawing or refusing to submit questions propounded; and although the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet questions the answers to which establish probative facts from which an ultimate material fact may be inferred as a matter of law, should be allowed. Schweinfurth, Admr., etc., v. Railway Co., 60 Ohio St., 215, explained and qualified. The Cleveland <& Elyria Electric R. R. Co. v. Hawkins, 64 Ohio St., 391, approved and followed.</p>

Exception by the Prosecuting Attorney to decision of the court of common pleas of Hamilton county. The defendant in error, Thomas Wing, in April, A. H. 1900, was arrested on a warrant issued by a justice of the peace of Hamilton county, on an affidavit filed with him which charged Wing with having committed the crime of robbery in said county on or about the 19th day of April, 1900.

<p>Error to the Circuit Court of Franklin county.</p> <p>The action in the lower court was brought by the defendant in error, The Dayton Manufacturing Company, to enforce the statutory liability of the stockholders of the Columbus, Sandusky & Hocking Railway Company, of which company the plaintiff below claimed to be a creditor in the sum of $405.58. The petition was filed on the 4th day of January, 1899.</p> <p>On the 15th day of March, 1899, the plaintiff amended its petition, making B. A. Hough, now plaintiff in error, a party defendant, alleging therein that, at the time the indebtedness of plaintiff was incurred, he was the owner and holder of ninety-nine shares of the stock of said railway company, and that he, with the other stockholders were liable to the plaintiff and other creditors of that company for the payment of the indebtedness. The insolvency of the railway company was averred in the petition. On the same day, the plaintiff in error was made defendant, March 15, 1899, an affidavit was also filed in the case which is as follows:</p> <p>“Court of common pleas, Franklin county, Ohio. The Dayton Manufacturing Company, a corporation, plaintiff, v. The Columbus, Sandusky & Hocking Railway Company, a corporation, William H. Albery et al. Affidavit for attachment. Filed March 15.</p> <p>“Edmond B. Dillon, being first duly sworn, deposes and says: That he is one of the attorneys for the plaintiff herein; that the defendant, The Columbus, San-dusky & Hocking Railway Company, is a corporation organized and existing under the laws of the state of Ohio; that the defendant, Henry W. Putnam, was at the time the indebtedness to the plaintiff was incurred, as stated in the petition herein, to-wit, on or about the 14th day of May, 1895, has ever since been, and is now a stockholder of said defendant corporation, The Columbus, Sandusky & Hocking Railway Company, and was then, has ever since been and is now the owner and holder of four thousand shares (4,000) of the capital stock of said corporation, of the par value of $400,000; that the defendant, B. A. Hough, was at the time the indebtedness to the plaintiff was incurred as stated in the petition, to-wit, on or about the 14th day of May, 1895, has ever since been and is now a stockholder of said corporation, and was then, has ever since been and is now the owner and holder of ninety-nine (99) shares of the capital stock of said corporation, of the par value of $9,900; that this action is brought to enforce the liability of the stockholders of said corporation under the constitution and laws of the state of Ohio for the payment of the debts of said defendant corporation; that the claim sued on against said defendant, Henry W. Putnam, is his liability as such stockholder for the debts of said defendant corporation; that the claim sued on against said defendant, B. A. Hough, is his liability as such stockholder for the debts of .said defendant corporation; and that said claim against said Henry W. Putnam is just and said claim against said B. A. Hough is also just. Affiant believes that the said plaintiff ought to recover from the said defendant, Henry W. Putnam, in plaintiff’s own behalf, and in behalf of the other* creditors of said corporation, the sum of three hundred thousand dollars ($300,-000), with interest; and that said plaintiff ought to recover from the said defendant, B. A. Hough, in plaintiff’s own behalf and in behalf of the other creditors of said corporation the sum of seventy-five hundred dollars ($7,500) with interest. The defendants, Henry W. Putnam and B. A. Hough are each nonresidents of the state of Ohio.</p> <p>“The said indebtedness and liabilities of said.’ defendants, Henry W. Putnam and B. A. Hough were respectively existing debts and contracts on the 26th day of April, 1898, and for more than two years prior thereto.</p> <p>“Affiant further says he has good reason to believe, and does believe, that the Cincinnati Brewing Company, a corporation, has property of the defendant, Henry W. Putnam, in his possession, to-wit, money, credits and indebtedness due and owing by said The Cincinnati Brewing Company to the said Henry W. Putnam.</p> <p>“Affiant further says that he has good reason to believe, and does believe, that the Security Title & Trust Company, a corporation, as receiver of the Turney & Jones Company, has property of the defendant, Henry W. Putnam, in its possession, to-wit: money, credits and indebtedness due and owing to the said Henry W. Putnam.</p> <p>“Edmund B. Dillon.</p> <p>“Sworn to before me and subscribed in my presence by said Edmond B. Dillon, this 14th day of March, A. D. 1899. “William G. Brossman,</p> <p>“Notary Public, Franklin County, Ohio.”</p> <p>On this affidavit, a writ of attachment was issued by the clerk of the court, and the same was levied on lands of plaintiff in error in Perry eounty, Ohio.</p> <p>In June following the levy, B. A. Hough, plaintiff in error, refusing to enter an appearance in the action, but appearing for the purposes of the motion only, asked the court to discharge the attachment for the following reasons:</p> <p>1. The affidavit upon which said attachment was issued is insufficient in law.</p> <p>2. The affidavit is untrue.</p> <p>3. The liability sought to be enforced in this action is not a debt or demand arising upon contract, judgment or decree, or for causing death,by a negligent or wrongful act.</p> <p>4. The action of plaintiff is not one in which an attachment can be lawfully issued under the laws of this state against a nonresident, upon the ground of such nonresidence.</p> <p>In October, 1899, this motion came on for hearing and the same was overruled, to which ruling Hough excepted. The circuit court affirmed the order of the court of common pleas, and the case is here to reverse the judgments of both courts, as to the attachment proceedings.</p>

<p>Power to issue bonds for city hospital is corporate power — Section 1 of article 13 of constitution — No exception on account of emergency — Act of April 29, 1902, regulating Cincinnati Hospital, is void — Constitutional law.</p> <p>1. The power to issue bonds to raise funds for the repair and extension of a hospital belonging to a city, and, to levy a tax upon all tbe taxable property within such city, for their payment, is corporate power.</p> <p>2. The conferring of such power by special act is inhibited by section 1 of article 13 of the constitution, which ordains that “The general assembly shall pass no special act conferring corporate powers,” and to the effectiveness of the inhibition it is immaterial whether the act designates as the donee of such power the muuicipality itself, or an agency through which it ordinarily acts, or such extraordinary agency as a board of trustees.</p> <p>3. The comprehensive terms of this section do not admit of any exception on account of any supposed or real emergency.</p> <p>4. The act of April 29, 1902, entitled “An act to supplement an act entitled ‘An act regulating the Commercial Hospital of Cincinnati’ (now the Cincinnati Hospital), passed March 11, 1861,” is void because repugnant to this section of the constitution.</p>

<p>In Mandamus.</p> <p>In the petition it is alleged that on the 2nd day of May, 1902, the relators were, by the Honorable George K. Nash, governor, duly appointed and commissioned as city police commissioners of the city of Toledo, and that upon the day following they qualified and organized as required by law, their appointment and qualifications being pursuant to the provisions of an act passed by the general assembly on the 27th day of April, 1902, and to take effect upon its passage.</p> <p>The petition further shows that the defendants were the duly constituted board of police commissioners of the city of Toledo prior to and upon the day of the passage of said act, holding office under sections 1984 and 1985 of the Revised Statutes, which were repealed by the terms of the third section of the act of April 27, 1902.</p> <p>The defendants are in the possession of the office, and of all the books, papers, and other property of the police department of Toledo. After their qualification as aforesaid, the relators demanded of the defendants the delivery of said books, papers and property, which the defendants refused, then claiming to be entitled to the custody thereof, and to the exercise of all the functions of said office, notwithstanding the passage of said act. The prayer of the petition is that a writ of mandamus may issue, commanding the defendants to deliver all of said property to the relators. The cause is submitted on demurrer to the petition.</p> <p>The act of April 27th is entitled, “An act to amend, supplement, and repeal certain sections of subdivisions three, of chapter five, division five, title twelve, of the Revised Statutes of Ohio.” In terms it amends section 1984 so as to provide as follows:</p> <p>“All police powers and duties connected with and .neident to the appointment, regulation and government of a police force in cities of the third grade of the first class, shall be vested in and exercised by a board of police commissioners, to be appointed by the governor. The governor shall appoint, as such commissioners, four citizens, electors of such cities, respectively, well known for their intelligence and integrity, not more than two of whom shall be of the same political party; two of whom of different political party faith and allegiance, shall be designated in their appointment to serve for two years, and the other two, also of different political party faith, shall be designated to serve for four years. And, thereafter, at the expiration of such term, and at each period of two years, the governor shall appoint two members of said board, to serve for a period of four years.</p> <p>“For official misconduct, the governor may remove any of said commissioners; and all vacancies in said board by death, resignation or removal, shall be filled by the governor for the unexpired term; and all vacancies from whatever cause, sjiall be so filled that not more than two of the members of said board shall be of the same political party, or so reputed. The commissioners, before entering upon their duties, shall take and subscribe an oath, Avhicli shall be filed and kept in the office of the city clerk, to support the constitution of the- United States and of the state of Ohio; to obey the laws, and in all their acts and official actions and judgments, to aim only to secure and maintain an honest and efficient system of police, free from partisan dictation and control.”</p> <p>It also provides in detail for the qualification and appointment of officers of the police force, fixing their salaries, as Avell as the qualification and compensation of patrolmen. For the government of said police it embodies, by reference, numerous other sections of the statutes. By the second section, it provides for the delivery, by the commissioners then holding office, of all books, papers, property and appurtenances of the police department in their hands and under their control, to the police commissioners so appointed by the governor, this delivery to be made within five days after the appointment. The third section, in terms, repeals the former law upon the subject.</p>

<p>In Quo Warranto.</p> <p>The defendants are acting as, and cíáim to be, respectively, director of law, director of public works, director of police, director of fire service, director of accounts, and director of charities and corrections of the city of Cleveland. Together they claim to be the board of control of that city, with authority to control all the property of the city, including the money raised by taxation. The petition alleges that said claimed authority is not vested in them by any valid law. A judgment of ouster is prayed for.</p> <p>The defendants answering admit that they claim and are exercising authority as charged in the petition, and they allege that such authority is lawfully conferred upon them by an act of March 16, 1891, entitled “An act to provide a more efficient government for cities of the second grade of the first class” (88 Ohio Laws, 105), and the several acts amendatory thereof. The case is submitted on demurrer to the answer. The questions presented arise out of the operation of the act which, by its terms, is limited to “cities of the second grade of the first class,” it being admitted that the act confers corporate poAvers, and that Cleveland, being the only city of the second grade of the first class in the state, is the only city in Avhich the act presently operates.</p>

<p>Error to the Circuit Court of Knox county.</p> <p>The defendant in error as the administrator of, Arleigh L. Mead, deceased, sued in the court of common pleas of Knox county to recover damages from the plaintiff in error for the death of his intestate caused, as alleged, by the negligence of the plaintiff in error. The negligence charged was that the conductor and engineer of the train were negligent in running the train without a headlight and in violation of the village ordinance at a high and dangerous rate of speed, that the bell was not rung or any notice or warning given of its approach in any way whatever; that the train was not run on schedule time, but was an extra. It is alleged that the said afternoon was very foggy, making it very dark, so that it was “very difficult if not impossible to see objects on the said railroad more than a few rods in front of the engine.” The answer denied the allegations of negligence and denied specifically the passage or existence of the alleged ordinance, and charged the deceased with contributory negligence. A verdict and judgment were rendered for the administrator, which was affirmed in the circuit court, and the cause comes into this court for review.</p> <p>The facts are substantially as follows: The railway of the plaintiff in error passes through the northern part of the corporate limits of Buckeye City in an almost east and west direction, crossing the highway at right angles, the general direction of the road, however, being north and south. At the southeast corner of the crossing is Danville station. The railroad is perfectly straight east and west of the crossing for more than a mile each way. There is a descending grade from a point something over a mile east of the station. A switch extends along the south side of the main track, starting at the station and running east a distance of 1020 to 1040 feet, and a passing track, starting at the west side of the highway 100 to 150 feet north of the station, and running west about 2050 feet. This passing track was entirely clear on the day of the accident. The whistling post for the crossing is about a quarter of a mile east of the station. The west corporation line of Buckeye City was 582 feet from the west end of the platform and 603 feet from the station. The accident happened about 683 feet from the station. It happened on the 13th day of January, 1899. For many years the father of the decedent, J. H. Mead, had been station agent for the defendant company at this place. It was a part of his duty to light the switch lamps in the evening and bring them in in the morning. He was partially crippled and to assist him in the performance of his duties he purchased for his own convenience and used a “speeder” or three-wheeled vehicle which could be run on the track, propelled by hand and feet. He did this without objection on the part of the company. The “speeder” at the time of the accident had a brake, but the brake had been lost or broken off so that there was no way of stopping it except by the hands. The deceased at the time of the accident, was about sixteen years old and was in the employ of the company at five dollars per month as his father’s assistant and night- man. His duties were to light the switch lamps in the evening and bring them in in the morning, attend to the two night trains at the station and when not in school carry the mail. Mr. Mead, the father, permitted his son, the deceased, to use the “speeder” in doing his work, but cautioned him to be careful and to look out for trains when on the track. He had forbidden him to allow anyone else on it with him, but had seen him once or twice take another boy with him. It appeared in evidence that every two or three days, and sometimes oftener, extra trains ran through Danville without stopping and that one of the rules of the road provided: “Extra trains may pass over the road at any time without previous notice, and foremen must always be prepared for it. Anything that interferes with the safe passage of trains at full speed' is an obstruction.” At the time of the accident one J. P. McCaskey, a telegrapher out of employment, was temporarily helping Mr. Mead in the office. While Mr. Mead and Mr. McCaskey were in the office together during the afternoon, McCaskey, who Avas sitting at the instrument table, heard orders going over the wires, and turned to Mead and told him that an “extra” would meet No. 23 at a station east of Danville, either Brinkhaven or Baddaw Pass. Number 23 passed Danville going north at 2:52, the “extra” coming south (west) actually passed at Brinkhaven. Mead, who was busy at the time, paid little attention to the matter and it passed out of his mind. Neither he nor McCaskey communicated the fact of the “extra” being on the road to Arleigh, the deceased. Mr. Mead, the station agent, left the station about three o’clock and went home, but before he left the deceased came in. Shortly after his father had left, the deceased took the “speeder” and a boy companion, one Herbert Parrish and started out to light the switch lamps. It does not appear that Mr. Mead, the father, knew that the deceased was going“on the “speeder” that day, nor did he, nor Mc-Caskey, nor anyone so far as the evidence discloses, inform the deceased that an “extra” was on the road. The boys backed up the main track to the north switch light, and having lighted it, they turned toward the station where they stopped for a moment to “hello” to Mr. Burrows’ horse to get off the track and then went on their way down the main track toward the south switch light. They sat side by side with their faces toward the south talking together and did not at any time, until just before the accident occurred, so far as known, look behind them. They both worked the handle-bars and made the “speeder” go as fast as they could. The “extra” had no orders to stop at Danville, nor any reason to expect any. The rule of the company required each train when running after sunset or obscured by fog to display a headlight. But there was no headlight burning. The engineer testifies that a headlight would not have thrown a glare through the fog to enable parties to see that there was something coming, but there is other testimony on the subject. The train was going at full speed. There is some conflict in the testimony as to the rate of speed. The trainmen put it at twenty-five to thirty miles an hour, and plaintiff’s witnesses about double that. The engine whistled, but whether it whistled for the crossing or not, or whether it gave an alarm whistle before the accident occurred is a matter of some dispute. It does not appear that the boy heard the whistle. McCaskey, being in the station, heard the whistle and running out, called to the boys as loud as he could. They were then some fifty feet beyond the west side of the crossing. Failing to attract their attention he stood upon the corner of the platform and tried to give the engineer a signal to make him stop the train or whistle. The engine was then right up to him. The target was white which indicated there were no orders there for the train and no occasion to stop and the road was clear. As the engineer passed he saw McCaskey give a signal. He did not understand it, and turned for an instant to look again at the target and then at once turned his face down the track, and at the same instant the fireman saw the boys at the distance of one and one-half telegraph poles ahead of the train. Thé boys were facing south then with their backs to the train. The engineer claims to have given the alarm whistle at this time, applied the air brakes to the engine, gave a signal for the brakes, reversed his engine and did everything in his power to stop the train. The conductor and the two brakemen were in the caboose and at the whistle for brakes they ran out and set them as fast as they could. Parrish, the boy who accompanied the deceased, says that the first he knew of the danger was the rumbling of the train. They both looked back, but the train was close upon them. The train1 men say that immediately upon blowing the alarm whistle the boys turned and looked back. Parrish, sitting on the left side, succeeded in getting off, but the deceased fell back upon the track and was instantly killed. A witness who was at the station had seen the boys come down the track on the “speeder.” He heard the whistle for the station as he was getting on his wagon and drove across the track, and called to the boys as loud as he could and failed to get their attention. They were then a telegraph pole and a half from the crossing.</p> <p>The existence of the alleged ordinance of Buckeye City, prohibiting the running of cars through its corporate limits at a speed exceeding eight miles an hour, was distinctly put in issue by the pleadings. On the trial the plaintiff called as a witness the mayor of Buckeye City to prove that he had given some notice to the company as to the speed of trains through the corporation. The defendant objected and the court ruled that the plaintiff should first prove the ordinance if there was one. Thereupon the witness produced the ordinance book containing the record of the supposed ordinance. Objection was made for the reason that the book was not the minutes of the proceedings of the council, nor did the record show that the supposed ordinance had ever been signed by the mayor. Thereupon the former mayor was called and a piece of paper handed to him, signed by himself and, and he says, by the city clerk, both in the presence of the council. He says it was passed one evening and posted the next day. The paper was not at that time offered in evidence, but thereupon the plaintiff again offered the book of ordinances and was permitted to read therefrom the ordinance as it appeared therein, to which ruling the defendant éxcepted. The record did not show that the ordinance had ever been signed by the mayor, nor that it had been published. Thereupon counsel for the defendant moved that it be stricken from the record for those reasons and because the ordinance was not evidence of the passage of an ordinance which could only be proved by the minutes of the proceedings of council. The motion was overruled and the defendant excepted. Later in the trial the plaintiff offered the original piece of paper on which the ordinance was written, signed by the mayor and the clerk, which had been identified by the witness. Thereupon the paper was admitted in evidence, to which the defendant excepted. The minutes of the council were not produced or offered. The defendant asked the court to charge the jury as follows: “That there having been testimony adduced tending to show that the defendant’s station agent at Dan-ville station, James Mead, was guilty of negligence that contributed to the death of his son, Arleigh J. Mead, the court charges you that the plaintiff cannot recover in this case on account or by reason of any negligence on the part of the said James Mead,” which the court refused to give, and the defendant excepted. But the court upon that subject, charged the jury as follows, at the request of the plaintiff: “If the jury find negligence of the defendant, its agents and servants, and also that there was negligence of the said, J. H. Mead as agent and servant of the defendant, the fact of such negligence of said J. H. Mead, which, combined with the negligence of other agents and servants of the company, caused the injury, would not prevent recovery if such negligence of the defendant, its agents and servants, was the proximate cause of said injury, and said Arleigh J. Mead was not guilty of negligence contributing directly to his injury.”</p> <p>And the court also said to the jury upon that subject :. “In actions of this kind, gentlemen of the jury, the administrator is a mere nominal party, having no interest in the case for himself or his estate he represents, as such actions are for the exclusive benefit of the beneficiaries named in the section of the statute that I referred to at the beginning of this charge. In arriving at the total amount of damages in the case the jury should consider the pecuniary injury to each separate beneficiary, but the verdict should be for a gross sum not exceeding ten thousand dollars. * * * What has each separate beneficiary lost in money in the death of Arleigh J. Mead, will be your inquiry. First, determine the value of his life to the father; next, the value of his life to his mother, and then to each of the seven sisters, and after you have found the value of his life to them all you will return your verdict for the aggregate sum. In considering what each beneficiary is entitled to recover you are to consider the age, the health and the ability of the deceased to perform labor and earn money. * * * The health and circumstances of the parents and the disposition and good will of the deceased to the beneficiaries as likely to result in gifts or inheritances. * * The defendant also asked the court to charge the jury in that connection, as follows: “The plaintiff is not entitled to recover in this action for any pecuniary loss suffered by James H. Mead, the father of Arleigh J. Mead, on account of the death of the said son, if the jury shall find that the said James H. Mead was guilty of negligence directly contributing to the death of his son.” This was refused and the defendant excepted. The defendant also asked the court to charge the jury as follows:' “1. That the character of Arleigh J. Mead’s employment considered, and the means which he used at the time of the accident to reach the point at which he intended placing the switch light, and the other facts and circumstances surrounding the transaction considered; that the employes of the defendant upon and in charge of and in the management of the train, which caused his death, were not obliged to regulate the speed of said train with reference” to the possibility of injury to said Arleigh J. Mead, provided said employes in the exercise of proper care and caution in the management and running of said train to accomplish the purpose of their employment used all proper care and diligence to avoid said accident after they became aware of the presence of said Arleigh J. Mead upon said railroad track.”</p> <p>“4. It is alleged in the amended petition that the afternoon or evening upon which the accident occurred was very foggy, making it very dark so that it was very difficult if not impossible to see objects on the railroad more than a few rods in front of the engine. If you find such to be the fact and that the deceased, Arleigh J. Mead, took the ‘speeder’ out upon the main track and chose that means of travel for no reason connected with his employment other than his own convenience, and after lighting the north switch light returned to the station and passed with the ‘speeder’ down the main track to light the south switch light, taking with him a companion, in violation of the order of his superior, the station agent, said James Mead; and if you shall find that from the street crossing adjoining the station there was a side track connected at that point with said main track which led directly to the south switch where the second light was to be placed, and that the said Arleigh J. Mead could have easily used the said side track with the ‘speeder’ for reaching the point where the light was to be placed; and if you shall find that by so doing he would have been in a position of safety from passing trains, and that instead of so doing he chose to so go down the main track without keeping any lookout behind him or using other precautions to insure his own safety from passing trains, then I charge you that such conduct was negligence upon the part of said Arleigh J. Mead, and such negligence the court charges you as will prevent the plaintiff from recovering in this case unless they, the jury, shall further find that the defendant’s agents and employes upon and in the management of the said train that caused the accident, could have avoided said accident after they became aware of the presence of the said Arleigh J. Mead upon said track.”</p> <p>These requests were refused and the defendant excepted. The court charged the jury as follows: “Evidence has been offered in this case on the jmrt of the plaintiff tending to show that the defendant neglected and failed to sound the whistle of the locomotive for the public crossing, and failed to ring the bell as provided by law on approaching and passing the public crossing a short distance from the point where the deceased met his death. Whether the bell was rung or the whistle sounded or both, is a question for you to determine from a consideration of all the evidence offered, and your conclusions on this subject would be one of the elements that you are to consider in determining whether the defendant was guilty of negligence that, produced, in whole or in part, the death of the deceased. In this connection I will only add that it was the duty of the company to make and enforce reasonable rules and regulations to guard against danger at public road or street crossings and in dangerous places, and that the deceased, while in the employment of the company, and when at 'or near a public street crossing, had a right to expect the performance of that duty.”</p> <p>And also as follows: “A railroad track is commonly a place of danger. Whoever undertakes to walk along a railroad track or to travel thereon with a ‘speeder’ or other means of locomotion must take such precautions as to ascertain the presence of danger as the ordinarily prudent person would take under like circumstances.</p> <p>“ The deceased, Arleigh J. Mead, on going on the defendant’s track, was bound to use all reasonable precautions to detect the presence or approach of danger from passing trains. He was bound to know that the defendant might run a train over its road at that point at any time; and ordinary care would require him to look and listen for the approach of trains; and to continuously keep alive to the approach and presence of danger from passing trains while on the defendant’s track, unless lulled into a feeling of security by the failure of the defendant’s employes in charge of its train to observe the statutory regulations and rules of the company in the matter of the running and management of the train at the time and place of the accident, and under the circumtances shown by the evidence.”</p> <p>The court also charged the jury as follows with respect to the ordinance:</p> <p>“Evidence has been offered tending to show that some time prior to the accident the village of Buckeye City had passed an ordinance limiting the speed of trains through the corporate limits, which it had a right to do under the statutes. The issue is made in the pleadings that this ordinance is not a valid ordinance; but the court is of the opinion that the issue is not material in the case. It does not depend on the fact whether the ordinance is valid or not. If the village council have passed an ordinance, or attempted to pass an ordinance which they supposed was valid, and notice of its passage had been communicated to the railroad authorities, and they had acted upon the assumption that the ordinance was valid, and had regulated the speed of their trains-accordingly, and also if knowledge of the passage of the ordinance had come to the deceased, it would be, for the purposes of this case, equivalent to a valid ordinance; and the deceased would have a right to presume that the company would conform to such regulation; and if he acted in accordance with such presumption, in the absence of knowledge of the fact that the railroad company had exceeded such limit in running its trains, it would not, of itself be an act of negligence on the part of the deceased. But if, on the other hand, the village had passed a valid ordinance, or had attempted to pass an ordinance without conforming to the requirements of the statute, and the provisions of the ordinance had been ignored by the company, and they had exceeded the limits prescribed by the ordinance in running trains through the village, and this fact had come to the knowledge of the deceased, the mere fact that the ordinance had been passed would not give the deceased a right to assume that the company, at the time of the accident, would regulate the speed of its train in conformity to the ordinance. Running a train in violation of an ordinance limiting the speed of trains is not, of itself, negligence on the part of the railroad company. After all, gentlemen of the jury, it is a mere circumstance for the jury to take into consideration, in connection with all the other facts and circumstances, in determining whether the defendant was negligent in the running of its train in the manner in which you find the evidence shows it was run at the time and place of the accident; and also in determining whether the deceased was guilty of negligence that contributed to cause his death.”</p> <p>Upon the trial several of the rules of the company were given in evidence. After the parties had rested, after the jury had risen to their feet and some of them had left the jury box, but before any of them had retired to their room, counsel for the plaintiff requested that the book of rules of the defendant, which had been referred to, and offered during the progress of the trial, be sent to the jury to be used by them during their deliberations. This was objected to for the reason that only a small portion of the book had been offered in evidence, the plaintiff claiming that the whole book had been offered. The court said that only certain rules or parts of the book had been offered in evidence, and instructed the jury as follows: “Of course, the jury will understand that only such rules as have been offered in evidence and read to the jury during the trial will be considered by them.” Thereupon the jury retired to their room. The book of rules was subsequently sent to them and was in their possession during the time of their deliberations.</p>

<p>Error to the Circuit Court of Pickaway county.</p> <p>A petition in mandamus was filed in the circuit court of Pickaway county, praying that a writ of mandamus may issue, commanding the defendant as auditor of Pickaway county that he proceed according to law and collect for his fees, compensation and salary those provided for under the following sections of the Revised Statutes, to-wit: 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1365, 2775, 2774, 2785, 2888, 2908, 4903, 6909, 7382, 7387, and that he cease to draw from the treasury any salary, fees or compensation or perquisites provided for in the act passed April 22, 1896 (92 O. L., ,597), and the act passed March 29, 1898 (93 O. L., 507), and to treat such acts as nullities and to observe the forms prescribed by the auditor of state and to observe the instructions and constructions of the general statutes of the state named, and to report to the auditor of state by certified statement of the amount of fees and moneys received or due the county treasurer, recorder, sheriff, prosecuting attorney, probate judge, commissioners and clerk of the court of common pleas, etc.</p> <p>The judgment of the circuit court was in favor of the defendant in error.</p>

<p>Error to the Circuit Court of Holmes county.</p> <p>The first named case is a petition for a writ of mandamus against the defendants commanding them to perform the duties imposed upon them by law, namely, that the defendant Garver, as prosecuting attorney, shall examine and certify, and the defendant Tanneyhill, as probate judge, shall examine and approve the itemized statement of account of the relator for per diem, mileage and expenses as the relator avers he is entitled to, and for all proper relief.</p> <p>Petition set out the act 93 O. L., 660, and alleged that it is in violation of this constitution, Art. 2, Sec. 26.</p> <p>The second case named is an action in the name of the state by Theodore Allison as a citizen and taxpayer of Holmes county, to enjoin the defendants from receiving and paying money under an act entitled “An act to limit compensation for county officers in Holmes county,” passed April 26, 1898 (93 O. L., 660). Both the court of common pleas and the circuit court rendered judgment in favor of the defendants in error.</p>

<p>Proceedings in contempt — Against party refusing to comply with , . decree for alimony — Complaint need not allege party able to pay — Burden on defendant to prove inability — Money decree for alimony not a debt within constitutional inhibition against imprisonment — But is a punishable order under Sec. 56Jfi, Rev. Stat., for contempt — Enforcement ■ of alimony decree where case is remanded from circuit to common pleas court.</p> <p>1. In a proceeding in contempt against a party who has refused to comply with a money decree for alimony, it is not essential that the complaint allege that the party is able to pay the money. The decree imports a finding of the court that he is able to pay, and the burden is on him, by allegation and proof, to establish his inability.</p> <p>.2. A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that, under favor of section 5640, Revised Statutes, punishment as for a contempt may fallow a willful failure to comply with it. '</p> <p>■3. Where such decree for alimony is rendered by the circuit court, and the cause remanded by that court to the court of common pleas for execution, a proceeding to enforce the judgment by attachment for contempt is properly brought in the court of common pleas.</p>

<p>Error to the Court of Common Pleas of Franklin county.</p> <p>The plaintiff in error, also plaintiff below, began an action in the court of common pleas in its own behalf, and in behalf of forty-four other corporations similarly situated, to recover from Lewis C. Laylin, secretary of state, money paid to him under duress and under protest accompanied with notice that an action would be brought for the recovery of the same, averring that payment was made to escape a heavy penalty imposed by the act known as the Willis law, passed April 11,1902, entitled “An act to require corporations to file annual reports with the secretary of state and to pay annual fees therefor.”</p> <p>The petition avers that when the plaintiff was incorporated in 1901, it paid to the secretary of state as required by section 148a, Revised Statutes, twenty-five dollars, its charter fee, and two dollars, its certificate of subscription fee, and has listed all its property for taxation and paid said taxes, and it is now assessed for further taxation on all its property, and that it will pay such taxes when the same shall become due.</p> <p>The said Willis law requires corporations to file an annual report in May of each year with the secretary of state, and to pay to him a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of said corporation, and to be not less than ten dollars in any case.</p> <p>The petition contains the following averments:</p> <p>“Plaintiff is advised and believes, and therefore charges and avers that said defendant claims that such charge and exaction of one-tenth of one per cent, of the capital stock of said corporation and the additional charge and exaction of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of all of said corporations in behalf of which this action is brought, was and is a legal fee fixed, by law and required to be made to the secretary of state under said act of the general assembly as above set out.</p> <p>“Whereas, the plaintiff claims and will to the court insist, that this enactment is a statute merely attempting to levy a tax and raise a revenue for the general purposes of the state, and that the same was and is applied to plaintiff corporation and all other corporations organized under the laws of Ohio for profit wholly inoperative and void and is contrary to the constitution of the United States and the constitution of the state of Ohio.”</p> <p>The plaintiff prays that the secretary of state may be enjoined from paying said money into the state treasury, as the act requires him to do, and for a judgment in behalf of itself, and the other corporations for the recovery of said money so paid.</p> <p>The secretary of state demurred to the petition, claiming that it does not state facts sufficient to warrant the relief prayed for.</p> <p>The court of common pleas sustained the demurrer and dismissed the petition. On motion of plaintiff leave was granted to file a petition in error in this court, which was accordingly done.</p>

<p>Apportionment of valuation of railway property — Sec. 2774, Rev. Btat. — Sow property belonging to railroad division should be apportioned among counties — Taxation of rolling stock— Sow determined by county auditors — Minutes of a taxing board not conclusive — Real facts may be shown by parol— Taxation of property — Law of evidence.</p> <p>1. The words, “belongs to * * * any one of such divisions or branches,” in section 2774, Revised Statutes, has reference to cases in which a division or branch of a railroad is separately equipped; and in such cases its rolling stock, while owned by the company, is regarded as belonging to such division or branch for operating purposes, and the value thereof is required by said section to be apportioned for taxation, among the counties through, or into, which the track of said division or branch extends.</p> <p>2. If the rolling stock does not so belong to a division or branch, but is' used solely thereon, the value thereof is required by said section to be apportioned for taxation, the same as if such rolling stock so .belonged to said division or branch.</p> <p>3. The value of so much of the rolling stock as does not so belong to the main line or to a division or branch, and is not solely used thereon, is required by said section to be apportioned for taxation among all the counties, through, or into, which the road extends, in the same proportion that the length that such road in each county, bears to the entire length thereof in all said counties, including main line, divisions and branches.</p> <p>4. In apportioning the value of rolling stock, the board composed of the county auditors, should first ascertain the value of the rolling stock which belongs to, or is used solely on the main line, division or branches, and then ascertain the value of all the other rolling stock, and then apportion their valuations upon a mileage basis as required by said section 2774.</p> <p>5. The minutes of a taxing board are not conclusive, and the real facts may be shown by parol, unless otherwise provided by statute.</p>

<p>Error to the Circuit Court of Wood county.</p> <p>The action in the court of common pleas was for the recovery of rental claimed to be due under the terms of an oil lease made by Luceba A. Kelly to one Scott Blair. The following is a copy of the lease except signatures;</p> <p>“In consideration of the sum of one hundred dollars, the receipt of which is hereby acknowledged, Luceba A. Kelly, first party, hereby grants unto S. Blair, second party, his successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water; to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas or water taken from said premises. Excepting and reserving, however, to first party the one-sixth part of all oil produced from said premises, to be delivered in the pipe line with which second party may connect its wells, namely:</p> <p>All that certain lot of lands situated in the township of Freedom, county of Wood, in the state of Ohio, bounded and described as follows: to-wit:</p> <p>The south half (%) of the northwest quarter of section No. twenty (20), town five (5), range twelve (12) east, containing eighty acres, more or less.</p> <p>To have and to hold the above premises on the following conditions:</p> <p>If gas only is found second .party agrees to pay three hundred dollars each year for the product of each well, while the same is being used off the premises, and the first party to have gas free of cost to heat three stoves in dwelling house during the same time.</p> <p>Whenever first party shall request it, second party shall bury all oil and gas lines, and pay all damages done to growing crops by reason of removing and burying said pipe lines, or in drilling said wells.</p> <p>No well shall be drilled nearer than 300 feet to the house or barn on said premises, and no well shall occupy more than one acre.</p> <p>In case no well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed. Payable at first party’s residence.</p> <p>The second party shall have the right to use sufficient gas and water to run all necessary machinery for operating said lease, and also the right to remove all its property at any time.</p> <p>The east forty acres of said land shall be drilled first. Second party agrees to complete a well every sixty days from date hereof on said east forty acres until six wells are completed including the first well and all lines must be protected. Second party further agrees to complete a well every ninety days on the west forty after the completion of the sixth or last well on the east forty acres. It is understood that the monthly rental shall apply to any well or wells not completed as herein specified.</p> <p>It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns. This lease to be void after fifteen years from date hereof.</p> <p>In witness whereof, the parties have hereunto set their hands and seals this 15th day of September, A. D. 1896.”</p> <p>Neither the lease nor any transfer of any interest therein was ever recorded.</p> <p>After stating in proper form the making of said lease and its terms and conditions, the petition of the said plaintiff below, Luceba A. Kelly, proceeds as follows:</p> <p>“That said Blair on said 15th day of September, 1896, took said lease in his own name, but in fact for and on behalf of defendants, excepting and reserving one-eighth interest in and to said lease which was owned by said Blair and afterwards the defendant, Henry Bowlus, purchased the said interest therein belonging to said Blair.</p> <p>“That said lease is held and owned by said defendants under and subject to all the terms and conditions in said lease therein mentioned and read, and that said defendants and each and every one of them in accepting said lease, and operating same, as hereinafter alleged, have become liable to the payment of any moneys there may be due as rental of said lands. That according to the terms of said lease, the said defendants did drill the first well upon the east forty acres of said premises and completed the same within the time provided for in said lease. And sixty days thereafter they, the said defendants, did drill and complete another well on said east forty (40) on said premises. That according to the terms of said lease in the month of March and on the 15th day of said month, 1897, there should have been another and third well completed on the said east forty acres on the said lands.</p> <p>“To complete said third well the defendants each and every one of them have wholly failed, refused and neglected to do, and thereupon and thereby they became and are liable to the payment of said sum of thirty ($30) dollars per month as long as the completion of said third well is delayed.</p> <p>“And the said plaintiff further says that for the last five months past said defendants have Avholly failed and refused to operate the wells they have so drilled and have failed to operate the same so that this plaintiff has received no benefit therefrom.</p> <p>“Yet the said defendants have failed, refused and neglected to either cancel said lease or operate said, wells or pay said rental.</p> <p>“Wherefore said plaintiff prays that she may have judgment against said defendants for the sum of three hundred and ninety ($390) dollars together with interest thereon, as follows</p> <p>Then follow installments of rental, amounting to $390 with interest.</p> <p>The defendants below in their answer denied substantially all the averments of the petition, and plead that oil in paying quantities could not be produced on said premises, and that after ascertaining that t£> be so, they had offered to surrender and cancel the lease, and. also averred that by a proper and fair construction of said lease the defendants below, plaintiffs in error here, were not required to pay any rental whatever to the plaintiff, by reason of the failure to drill said wells, or for any other cause. The reply denied the averments of the answer.</p> <p>Upon the trial the evidence tended to show that Scott Blair took said lease in behalf of himself and the other defendants, except Henry Bowlus, who came in later; that they so understood the matter, accepted the lease, and drilled the two wells thereunder. That Henry Bowlus purchased the interest of Scott Blair after default had been made in completing the third well.</p> <p>The plaintiff below recovered a verdict against all •the defendants for $390. A motion for a new trial was made and overruled, and judgment entered on the verdict.</p> <p>The circuit court affirmed the judgment, and thereupon the plaintiffs in error came here, seeking to reverse the judgments below.</p>

<p>In Mandamus.</p> <p>This action is on a petition in mandamus filed by leave of the court. The petition is as follows:</p> <p>The relator says that he is an elector, citizen and taxpayer of, and the owner, in fee simple, of real estate in, the city of Columbus, state of Ohio.</p> <p>That the defendant, George K. Nash, is the duly elected, qualified and acting governor of the state of Ohio.</p> <p>The relator further says that Carl L. Nippert was, on November 5, 1901, duly elected to the office of lieutenant governor of the said state of Ohio; that on January 13,1902, he duly qualified as such lieutenant governor and entered upon the discharge of the duties of said office and continued in the said office and in the discharge of said duties until May 2, 1902, Avhen he duly resigned from said office; that by reason of said resignation a vacancy arose in said office of lieutenant governor, which vacancy still continues; to exist.</p> <p>That it is the duty of the said defendant, George K. Nash, as such governor, enjoined upon him by .force of Secs. 11 and 81 of the Revised Statutes of 'Ohio, to appoint an elector of the state of Ohio to fill said vacancy in the office of lieutenant governor, to hold the same until his successor is elected and qualified.</p> <p>The said defendant, George K. Nash, governor as aforesaid, entertaining doubts with respect to his duty in the premises, neglects, declines and refuses to, and declares that he will not, fill said vacancy by appointing an elector to said office.</p> <p>The relator says that by the ordinary course of the law he has no adequate remedy against the said defendant for so refusing.</p> <p>Wherefore the relator prays that the defendant, George K. Nash, governor of the state of Ohio, may be compelled to appoint an elector of the state of Ohio to the office of lieutenant governor to hold the same until his successor is elected and qualified, by mandamus from this court;,that an alternative writ of mandamus may first issue requiring the defendant to show cause, by a day to be named therein, why he does not appoint the same, and that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to appoint an elector to said office of lieutenant governor ; and for such other and further relief as the nature of the case may require.</p> <p>The issuing and service of an alternative writ of mandamus was waived and appearance entered by the defendant who filed a demurrer to the petition for the reason that the same does not state facts sufficient to warrant the relief prayed for.</p>

<p>Error to the Circuit Court of Tuscarawas county.</p> <p>Motion to Dismiss.</p> <p>The action below was brought June 3, 1902, by plaintiffs in error, residents and taxpayers o,f the village of Dover, Tuscarawas' county, to enjoin the mayor and council of said village from granting a franchise to certain persons for the use -of an electric railway company, to build its track and operate' an electric railway upon and over a certain bridge across the Tuscarawas river and the Ohio canal in said village. A demurrer to the petition was sustained by the common pleas and the petition dismissed. The cause being appealed to the circuit court, that court, June 6, 1902, made a like holding and entered a like judgment. The proceeding in this court is to obtain a reversal. The motion now submitted by the defendants in error is to dismiss the cause and strike it from the docket upon the ground that the court has no jurisdiction to review the judgment of the circuit court.</p>

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

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

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