Volume 67 — Ohio State Reports, New Series

In Mandamus. This is an application by relator for a writ of mandamus, commanding that respondent, Charles C. Chapman, as clerk of the court of common pleas of Ashland county, Ohio, enter upon the journal of said court an order made by said court in a certain cause therein pending, of Wade Armentr'out against William W. Gurley et al., directing that the place of' trial of said cause be changed from said county of Ashland to the adjoining county of Wayne.

Exceptions to the decisions of the Court of Common Pleas of Hamilton county, Ohio. The case in court of common pleas where the exceptions were taken, was a proceeding in error to reverse the judgment of a justice of the peace of Hamilton county. The judgment of the justice was rendered against Langenstroer on the verdict of a jury finding him guilty of violating a section of the so-called “pure food” laws, in that he had sold oleomargarine containing coloring matter.

In the circuit court, the relator filed a petition for a peremptory writ of mandamus to compel the plaintiff in error, as superintendent of insurance of the state of Ohio, to issue to the relator a license and certificate of authority to act as agent for the Mutual Life Insurance Company of New York, in the transaction of its business of life insurance in the state of Ohio.

Exceptions to the Court of Common Pleas of Marion county. Richard Towmley w-as indicted at the September term of the court of common pleas of Marion county, for perjury.

Joseph W. Janies was appointed administrator of the estate of George Stuts, by the probate court of Logan county, on the sixth day of May, 1885, and removed July 7, 1891. When George Stuts died on April 28, 1885, he ivas a member of the firm of Stuts & James, and of the firm of Stuts, James & Neer. Said George Stuts and Joseph W. James were both members of each of said firms, and each firm was largely indebted to said George Stuts at the time of his death.

Exceptions to the decision of the Common Pleas Court of Hamilton county.

The defendant in error, by the averments of her petition filed in the court of common pleas, charged the plaintiff in error with negligence in operating one of its cars, on which she was a passenger, which negligence inflicted upon her serious and permanent injuries.

The defendant in error brought suit in the court. of common pleas to recover from the city damages to compensate him for injuries sustained by reason of the defective bridge maintained by the city upon one of its streets crossing the Miami canal.

It was alleged in the petition of the plaintiff that on or about March 11, 1897, the defendant, by and through one of its foremen and agents, employed the plaintiff and put him to work upon and about a certain dangerous machine then in use in the factory of the defendant; that this machine was known as a jointer or hand planer, and was operated by steam power; that the defendant was in duty bound to know, and did know, the dangerous and hazardous character of the machine and…

Petition in Quo Warranto. On April 2, 1902, the general assembly passed an act establishing a special school district in Springfield and Sycamore townships in Hamilton county, and Union township in Butler county, to be composed of territory taken from parts of four different sub-districts in said townships, and to be known as Creseentville Special School District The first section of the act provides for establishing the special school district, and fixes its boundaries.

This was an action commenced originally in the ■court of common pleas of Allen county, Ohio, by Margaret Little against The Lima Railway Co., to recover damages for injuries sustained by her in attempting to board one of the company’s street cars at the pub-lie square in the city of Lima.

In the court of common pleas, the plaintiff, now defendant in error, stated her cause of action in the following petition: “Plaintiff, for cause of action against the'' defendant, says that at the times hereinafter mentioned, and for a long time prior thereto, defendant resided in the county and state aforesaid, and held-himself out to he a physician and surgeon, skilled in the practice of his said professions; that plaintiff, at the times hereinafter mentioned, and for a…

<p>Error to tlie Circuit Court of Marion county.</p> <p>■On motion to dismiss.</p> <p>Error to the Circuit Court of Clark county.</p> <p>On motion to dismiss.</p>

On July 11, 1898, the plaintiff in error owned and operated á street railway in the city of Ashtabula. On that day the defendant in error took passage on one of two attached cars. The car she was on was a trailer.

Exceptions to the Court of Common Pleas of Lake county. The defendants in error were indicted in Lake county for the crime of grand larceny.

This is an appropriation case. The proceeding was commenced in the court of common pleas by the Tillage of Hyde Park against the plaintiff in error, Nathan Grant, and John Kilgore and Mary Kilgore, .as owners -of the land sought to be appropriated. The application to appropriate and assess compensation was filed under favor of Section 2235, Revised Statutes, and following.

Said defendant in error, as plaintiff below, filed his= petition in the court of common pleas, against said. plaintiff in error, and after the proper preliminary averments as to the incorporation of said company, his ownership of a lot on Third street, along which said company was about to build its street railroad, under an ordinance passed by the board of control of the city of Hamilton, averred as follows: “Plaintiff says that said ordinance is void and never went into…

This action was originally begun in the common pleas court of Cuyahoga county by the Clements Bros. Construction Co., as plaintiff, v. The City of Cleveland, defendant.

The Pittsburgh & Western Railway, Thomas M. King, receiver, and the Pittsburgh, Cleveland & Toledo Railroad Co., under favor of Section 5779, Revised Statutes, on April 4,1899, commenced an action in the court of common pleas, against the plaintiff in error, Henry M. Garlick, to quiet their title to certain real estate used as a right of way for railroad purposes, which is described in the petition, being a strip of land in the city of Youngstown about twenty-five and…

The plaintiffs in error, William King, Isaac K. Kirkland, Samuel F. Trimble and George Workman are trustees of the Presbyterian church of Bethel, in Belmont county, and as such hold the legal title, in trust, for said church, in the real estate which is the subject of this controversy, being over an acre of land whereon the church building is situate.

On October 26, 1895, Mrs. Gerding brought suit in the court of common pleas against Enck and others,, to recover possession of a stock of merchandise and fixtures in a store at Leipsic, the same being the property of a copartnership recently existing between said Enck and one John G. Gerding, doing business as. Gerding & Enck. Tlie firm had been dissolved by the death of Gerding shortly before the bringing of the suit.

The defendant in error commenced an action in the court of common pleas of Stark county against the plaintiff in error, alleging that on April 1, 1890, the defendant, here plaintiff in error, entered into possession of certain premises under a written lease at the rate of $450.00 per year; that said defendant continued to occupy the premises from April 1, 1890, to April 1, 1892, and without any further lease continued to occupy the same until April 1, 1895, paying therefor…

The plaintiff in her petition avers that from November 19, 1892, to November 19, 1898, inclusive, she performed services for the decedent, George R. Sage, at his request, as housekeeper, and also services in nursing, care and attention to the decedent-, at his request, during said period of time; that decedent promised to pay the plaintiff for the aforesaid work, labor, care and diligence of the plaintiff in performing the service for him as housekeeper and as nurse during…

<p>Error to the Circuit Court of Franklin county.</p> <p>The action below was brought in the common pleas of Franklin by Eliza L. Joyce against O. E. D. Barron, as treasurer of Franklin county, to enjoin a number of assessments made upon her lands for the grading and paving of East Town street at the extreme eastern limits of the corporation of Columbus. The court found for the defendant and the plaintiff appealed. The circuit court also found for the defendant and dismissed the plaintiff’s petition. She brings this error proceeding to reverse that judgment.</p> <p>It is shown by the record that the resolution to improve declared that: “It is necessary to improve Town street from Miller avenue to Fairwood avenue by grading and constructing thereon asphalt, stone block, Hayden block, Hailwood block, East Clayton or Parto block, fire clay or hard burned brick pavement, and fitting a five inch curb of Berea or Fulton stone,” * * * “and that said improvement be made under and according to an act of the general assembly of the state of Ohio passed March 14, 1893, and entitled ‘An act to provide for the improvement of certain avenues and alleys in cities of the first .grade of the second class.’ ” It is further shown that the plaintiff was, at the commencement of the improvement proceeding, October 30, 1893, the owner of two lots on East Town street, numbers 9 and 19. She was the owner of lot 9 long prior to the date above mentioned, and acquired title to lot 19 after the presentation to council of the petition of certain of the landowners for the improvement, but before the passage by council of the resolution to improve. Her lots were assessed for the improvement as follows: $3,071.61 against lot 9, and $1,807.68 against lot 19, being a total of $4,879.28, and being $8.07 per foot front. The lots stood at the time on the tax duplicate for taxation at $3,490.00. From the finding of facts by the circuit court it appears, among other things, that the petition for the improvement was signed by the owner of lot 19, one Margaret J. McCarty, from whom plaintiff obtained title at judicial sale. It is further found that “the plaintiff was not served with notice of the passage of the resolution by council declaring the necessity for the improvement of said street, and that she had no knowledge of the passage of said resolution or the constructing of said improvement until after said improvement was completed.” Also that “the assessment placed upon the lots of plaintiff for said improvement exceeded twenty-five per cent, of the value of -said lots as returned for taxation,” but “that the improvement was a benefit to the property of the plaintiff, and the assessment upon the lots of the plaintiff was not in excess of the special benefits excluding the benefit common to the public accruing to said premises by reason of the construction of said improvement.” From the uncontradicted evidence it appears that at the time of the passage of the resolution to improve, the plaintiff was, and prior thereto had been, a resident of the city of Columbus. It appears, also, that the property, at the time of the passage of the resolution, was a vacant field, used mostly for pasturage. The street had been platted long before and lots laid out, but there had been no improvement, and the end of the street ran into commons. A considerable portion of plaintiff’s frontage, extending to the rear of her property, is left by the improvement from nine to ten feet above the level of the street, and along there the ground has washed down and entirely covered the curb.</p> <p>The ordinance, which was passed December 18, 1S93, ordains that the cost of the improvement shall be assessed equally by the foot front of property abutting on it, and no question is made but that the act of March 14, 1893, hereinbefore referred to, contemplates that mode of assessment and payment, and none other.</p>

<p>Requirement that railroad companies — Construct ditches along side of roadbed — Validity of Sec. 334%, Rev. Stat. — Invalidity of Sees. 3343, 3344, 3345 and 3343, Rev. Stat. — Because in conflict with sections 13 and 19, of article one of constitution — Statutory law prevails over common law — Rights of property owners as to taxation — Inviolability of property rights — Constitutional law.</p> <p>1. Section 3342, Revised Statutes, requiring railroad companies to construct and keep open ditches of sufficient depth, width, and grade, to conduct to some proper outlet, the water which accumulates along the sides of such roadbed from the construction or operation of such road, is a valid statute in so far as the accumulation of water is injurious to the contiguous lands, or detrimental to the public, but invalid where such water is not injurious to such lands or the public.</p> <p>2. In so far as sections 16 and 19 of article one of the constitution conflict with the common law, these sections must prevail over that law. And this is so whether the conflict is as to the right or remedy.</p> <p>3. It is necessary to tbe validity of an assessment on real estate, other than general taxes, that somewhere along the line of the proceedings, notice be given to the owner, and an opportunity afforded him to be heard in opposition or defense.</p> <p>4. Sections ,3343, 3344, 3345 and 3346, Revised Statutes, are in conflict with sections 16 and 19 of article 1 of the constitution and are void, for the reason that they attempt' to authorize the taking of private property for private purposes, and without due course of law.</p>

<p>Collection of street assessments — Bight of action for — After assessment certified to county auditor — Section 2295, Bev. Stat. - — Law of taxation.</p> <p>After an assessment for a street improvement Ras been certified to the county auditor and placed on the* tax list as «provided in Section 2295, Revised Statutes, the right of action for the collection of such assessment rests alone in the county treasurer,</p>

<p>In Quo Warranto.</p> <p>The petition shows that at the November election, 1898, the defendant Hall was duly elected to the office of clerk of the courts of Guernsey county; that lie afterward duly qualified, and on tlie first Monday of August, 1899, entered upon the discharge of his duties ; that his election was for three years, his official term expiring on the first Monday of August, 1902; that at the November election, 1901, one Andrew J. Linn was duly elected to the office of clerk of the courts of said county of Guernsey for the term of three years, to commence on the first Monday of August, 1902; that said Linn having been duly qualified as such clerk, did, upon said first Monday of August, and at a later date, demand of the defendant the possession of the books and records appertaining to said office, which the defendant refused to deliver to him; and that the defendant usurps said office and excludes said Linn therefrom. The prayer of the petition is for the ouster of Hall and the induction of Linn.</p> <p>The defendant answered, impliedly admitting all the allegations of the petition, but alleging that on August 14, 1902, a vacancy occurred in the office of clerk of the court of Guernsey county, and that on that day he was, by the board of county commissioners of said county, duly appointed clerk pro tempore of said courts to fill such vacancy, and that pursuant to said appointment, he duly qualified and now holds the office by virtue of said appointment. The cause is submitted on a demurrer to the answer.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The facts of this case, so far as the same are necessary to a proper understanding of the questions here involved, are as follows: On April 18, 1898, the defendant in error, The Towle Manufacturing Co., began a proceeding in aid of execution against the plaintiff in error, Webb C. Ball, and in that proceeding made The American Exchange National Bank a party defendant, alleging that said Webb C. Ball, was the owner of ten shares, of the par value of $1,000.00, of the capital stock of said bank. Subsequent to the service of process on said bank in said proceeding in aid of execution, to-wit: On April 21, 1898, said Webb C. Ball transferred and delivered to one W. J. Crowell, by way of pledge, the certificate for said ten shares of stock, to secure an indebtedness of two hundred dollars owing from said Ball to Crowell, and one thousand dollars in money then advanced by said Crowell to him. Said W. J. Crowell received said certificate in good faith and without any actual knowledge on his part of the claim or equities of The Towle Manufacturing Co. in or to said ten shares of stock.</p> <p>The Towle Manufacturing Co. in the present action seek to enforce and foreclose the lien which it claims to have acquired upon said ten shares of stock by reason of its proceeding in aid of execution, and asks that said stock may be ordered sold and the proceeds of sale applied to the payment of its judgment claim against said Webb C. Ball.</p>

<p>Beal estate mortgage — Conditions broken — Legal title vests in-mortgagee — Mortgagee may elect remedy action — Ejectment or foreclosure suit — Statute of limitations — Sections 4977 and J¡980, Bev. Stat. — Bar of fifteen or twenty-one years .applies, when.</p> <p>1. As between the mortgagor and mortgagee in a mortgage upon real estate, after condition broken, the legal title to the mortgaged premises is in the mortgagee, and he may elect, either to sue for foreclosure and sale, or bring ejectment to recover possession of the premises.</p> <p>2. If his action is in ejectment, the statutory bar of fifteen years, as provided in Section 4980, Revised Statutes, does not apply. The bar in such case is twenty-one years as provided in Section 4977, Revised Statutes.</p>

Plaintiff in error filed its petition in the court of common pleas for a decree enjoining the defendant from erecting a schoolhouse in a joint subschool district composed of territory belonging in part to each of said townships, and from taking control of the funds and school matters in said subdistrict, upon the ground that said snbdistrict had not been lawfully established.

<p>Error to the Circuit Court of Miami county.</p> <p>Plaintiff in error brought an action in the court of common pleas asserting her right to take the share of her deceased mother in an estate in remainder, devised by the will of Josiah Pearson. The facts are admitted of record. Those which are material are as follows: The will of Josiah Pearson contained the following items:</p> <p>“Second — I give and bequeath to my nephew, James Y. Pearson, and Mahala Pearson, his wife, all of my real estate for and during their natural lives.</p> <p>“Third — After the death of James Y. Pearson and Mahala Pearson, I will all of my real estate to the children of said James Y. Pearson and Mahala Pearson, share and share alike.”</p> <p>The will was executed on April 14, 1892. The plaintiff is the only child of Eliza Ann Wintrow. At the date of the execution of the will said James Y. Pearson and Mahala Pearson, and three of their children, Albert D., Samuel Pearson and Emma J. Davis, were living. Their daughter, Eliza Ann Wintrow, mother of the plaintiff, had died some years before the execution of the will, the plaintiff being her only child who survived the testator. On these facts the court of common pleas rendered judgment for the plaintiff. Its judgment was reversed by the circuit court.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>The facts appear in the opinion.</p>

<p>Error to the Circuit Court of Seneca county.</p> <p>The action in the common pleas was by plaintiff in error, Ella S. DeWitt, against C. Douglass DeWitt for divorce and alimony, and the custody of their minor child. In her petition plaintiff alleged divers grounds for divorce. She further alleged that she and the defendant were the owners, as tenants in common, of the farm of eighty acres upon which they lived, subject to a mortgage of $1,500.00; that the farm was well stocked with cattle, sheep, hogs, etc., and Avith farming implements, tools, and other personal property, all accumulated by the joint labor of plaintiff and defendant, and that defendant had recently disposed of a large amount of personal property, and had the cash on hand therefor.</p> <p>Defendant, by his ansAver, admitted the marriage, the birth of the child; that there is a mortgage of $1,500.00 on the farm, and that he is the owner of the personal property described, and denied all other allegations.</p> <p>On trial, the plaintiff Avas granted a divorce on the ground that the defendant had been guilty of gross neglect of duty; also custody of the child. A decree for alimony Avas thereupon entered, from which both parties gave notice of appeal, but appeal was perfected only by the plaintiff.</p> <p>An amended petition was .filed in the circuit court in AAdiich, among other things, it was averred that, in addition to the personal property and real estate described in the original petition, the defendant was the owner, at the commencement of the suit, of the undivided half of a tract of 90.55 acres, describing the same; also of a 60-acre tract, both in said county, and both subject to a life estate in favor of one Samuel H. De'VV'itt. No answer was filed to this pleading, nor was the original answer refiled, nor is it in any way referred to in the record of the proceedings after this date.</p> <p>On trial in the circuit court, it was adjudged “that the defendant pay to the said plaintiff as her reasonable alimony the sum of $2,600.00, payable in sixty days from the date of this decree, and that the same be and hereby is made a charge and lien upon the lands of said defendant, but subject to the condition that the said plaintiff quitclaim to the said defendant all her interest in and title to the eighty acres of land, and the defendant’s other land described in the pleadings ; that she surrender to the defendant the $1,250.00 note that she holds against the defendant, and that she pay and surrender the $400.00 note upon which there is yet due the sum of-$275.00, given by defendant and plaintiff to plaintiff’s mother.”</p> <p>The plaintiff refused to abide by this adjudication, and brings this proceeding to reverse the judgment of the circuit court so rendered.</p>

<p>Arbitration — Chosen by parties to action in common pleas court —Agreement to submit law and facts for final determination — Prevailing party to have judgment — Award conforms to all agreement requirements — In absence of fraud is binding — An “opinion” submitted by arbitrators not competent evidence to impeach the award, when — Rules of evidence.</p> <p>1. Where the parties to an action .pending in the court of common pleas enter into an agreement of arbitration, the same not being made a rule of court, which agreement provides-for the submission to arbitrators in such agreement named, of all the issues of law and fact joined between the parties in the action, to hear and finally determine the same, and provides further that the award of the arbitrators shall be final and conclusive upon the parties, and that the prevailing party shall have judgment, and the arbitrators take upon, themselves the burden of the submission, and trial is had before them pursuant to its terms, and award is rendered which conforms in all respects to the requirements of the submission, such award, in the absence of fraud and of such manifest mistake as naturally works a fraud, is binding upon the parties and entitles the successful party to judgment thereon.</p> <p>2. A paper called an “opinion” signed by the arbitrators and delivered in such case by them to the counsel of the parties, accompanying the award, which paper purports to cite reasons for the decision of the arbitrators, but is not made part of the award nor in any way referred to in the award, and is not required by the agreement of submission, or the’ oaths of the arbitrators, is not competent evidence to impeach the award.</p> <p>3. Nor is the testimony of the arbitrators in such case competent evidence to impeach the award.</p>

<p>Legacy of husband to wife — Certain payments annually in lieu of dower — Bonds to be bought ancl interest paid to legatee — ■ Such legacy not annuity — Law of loills.</p> <p>A husband gave a legacy to his wife in his will as follows: “And I further give and bequeath to her, my said wife, in lieu of all dower the sum of eight thousand ($8,000.00) dollars annually, for and during the term of her natural life, and I hereby direct my executors to pay this legacy to my said wife in equal quarterly installments from the day of my death. * * * I desire _ to have my last will and testament carried out in the following manner, to-wit: For the payment of my wife’s legacy, I desire that a sufficient amount of my personal estate, either of stocks, bonds, or money, shall be used to purchase government bonds, or equally good bonds of such an amount that the interest thereon shall be sufficient to pay the quarterly installments of two thousand ($2,000.00) dollars, and that the same shall be paid to her promptly upon the very day they shall fall due.”</p> <p>Held: That such legacy does not constitute an annuity under our tax statutes, and that no part of said legacy is taxable against the widow until after the same shall be received by her.</p>

<p>Organization of cities — Municipal code — Aei of October 22, 1902— .Legality of passage — Number of wards for Cincinnati — Cowstitutional law.</p> <p>1. The act of October 22, 1902, entitled “An act to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith,” was legally passed by the general assembly and the same is not a special, but a general act, having a uniform operation throughout the state.</p> <p>2. Under said act the city of Cincinnati is entitled to only twenty-nine members of council, and of that number twenty-four are to be elected from wards, and five by the electors of the city at large.</p> <p>3. Under said act the city of Cincinnati must be subdivided into twenty-four wards, no more and no less.</p>

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

Daniel H. Notter, the defendant in error, brought an action in the court of common pleas of Gallia county, Ohio, against the plaintiff in error, The-Brotherhood Accident Co., on a certificate or policy ©f accident insurance issued by said company to ©ne,. Llewellyn C. Notter.

<p>Exceptions to the decisions of the Court of Common Pleas of Hamilton county.</p> <p>Bennett Career, on the twenty-ninth day of March, A. D., 1902, was indicted by the grand jury of Hamilton county, for the crime of embezzlement, which as the indictment alleges, was committed on the twenty-ninth day of May, A. D., 1900. This indictment contains two counts, the first of which is framed under the provisions of section 6841; and the other alleges the offense under Section 6842, Revised Statutes. It is claimed by counsel for the exceptions, that at the trial in the lower court, the state, on motion of the accused, was compelled to elect on which of the two counts it would rely for conviction, but no such order appears in the record, and, therefore, an exception to it is not considered. But it seems to be agreed by counsel that the trial was, in fact, conducted on the first count of the indictment, under which evidence was introduced to show, that at the date of the alleged crime, Bennett Carter was the duly elected and qualified clerk of the village of Madisonville, a municipal corporation in Hamilton county, and that he had been such clerk during several preceding years.</p> <p>The following ordinance of said village was plead in haec verba as part of the first count, and it was also introduced in evidence to the jury, to-wit:</p> <p>“An Ordinance — No. 1310.</p> <p>“To assess a special tax on real estate bounding and abutting on streets and public ways in which sewers and drains are planned in Sewerage Division No. 1 of District No. 2, except such real estate as has been heretofore assessed the full amount estimated to complete said plans.</p> <p>“Section 1. Be it ordained by the council of the village of Madisonville, Ohio, that there be levied and assessed on each front foot of the several lots of land bounding and abutting upon all the streets and public ways in which the plans and specifications of Sewerage Division No. 1 of District No. 2, and Sewerage Division No. 2 of District No. 2, show that sewers and drains are to be constructed when the sewerage of such divisions is fully completed under such plans, except such real estate as has been heretofore assessed the full amount estimated to complete such plans, the sums hereinafter named for each and every year as specified in accordance with Section 2396, Revised Statutes of Ohio, to-wit: (Here follows a list of the several lots assessed and the amounts so assessed.)</p> <p>“Section 2. That the owners of the several lots and lands upon each front foot of which the sums aforesaid are assessed, shall pay the amount of money by them severally due in that behalf, to the clerk of the village on or before the thirtieth day following thé final passage of this ordinance, and in default of such payment, the clerk shall forthwith certify all unpaid assessments to the county auditor, to be by him placed on the tax duplicate and collected by law.</p> <p>“Section 3. That the said assessment and all portions thereof, shall be paid into the debt fund when collected, and shall be applied to the payment of the cost and expense of constructing said sewer, together with the bonds to be issued for same, and the interest thereon, and to no other purpose whatsoever.</p> <p>“Section 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law.</p> <p>“Done at council chamber in Madisonville, Ohio, this fourth day of April, A. D., 1900.” (Seal and signatures attached.)</p> <p>The indictment charges that the accused clerk collectéd and received the sum of $335.87 of the moneys assessed under said ordinance and which belonged to said village and that he unlawfully and fraudulently embezzled and converted it to his own use.</p> <p>The evidence tended to prove, that under the provisions of the said ordinance, Carter collected and received from various lot owners, at least $154.34, for which he gave receipts, which he signed as clerk, and that he never accounted for this money in any manner.</p> <p>He offered no evidence in defense.</p> <p>The state excepted to the court giving two special charges, and also excepted generally to the charge given.</p> <p>The jury found the accused guilty and assessed the value of the property embezzled at $154.34. '</p> <p>He filed a motion for'new trial, and also a motion in arrest of judgment.</p> <p>The ground of the latter motion is, “that the facts stated in the indictment do not constitute an offense.” The court sustained this motion and arrested judgment, to which the state excepted.</p> <p>The case is in this court by its leave, on the exceptions to the several decisions of the trial court.</p>

<p>Carnal knowledge of female under sixteen — Error to charge ñeras accomplice — Error for court to warn jury as to testimony of abandoned women — Error to classify witnesses — Rules of evidence — Rape.</p> <p>1. On the trial of a male person of the age of eighteen years' or upwards, on an indictment for carnally knowing and abusing a female person under the age of sixteen years, with heiconsent, it is error for the court to charge the jury, that, “A female person under sixteen years of age, who knowing it is wrong, consents to an act of sexual intercourse with herself by a man above the age of eighteen years, is an accomplice, and her testimony should be received with caution and very closely scrutinized before the jury acts upon it.” It is also error for the court to say in that connection, and as-a part of the above charge, that “the jury is warned that it is exceedingly unsafe to convict in any case upon the evice of an accomplice unless the same is corroborated by other evidence which is reliable.”</p> <p>2. It is likewise error in such case for the court to charge the jury that, “The experience of courts warns them to scan. with caution, and view with suspicion, the testimony of abandoned women; and if any such have testified in this cause, it is your duty to apply the above warning.”</p> <p>3. It was further error in such case, for the court to charge that, “The conduct of abandoned women is often incomprehensible when tested by the standard applied to the generality of ' mankind; and if any such have testified in this case, you should be cautious in relying upon her evidence.”</p> <p>4. It is not the province of the court, to classify witnesses, and give to the jury what the experience of the courts may be in respect to such a class, but their credibility should be left to the jury, under all the competent facts and circumstances, of the case before it.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The bank brought suit against the obligors to recover the principal and interest upon a promissory note of which the following is a copy:</p> <p>“4,500.00 Guelph, Ont., February 23, 1897.</p> <p>“Four months after date I promise to pay to the order of The Merchants’ National Bank, Cincinnati, forty-five hundred dollars, at the Merchants’ National Bank, Cincinnati, with interest at six per cent, per annum. Value received.</p> <p>“No.- Due- “Wm. Bell."</p> <p>Said note is endorsed as follows: “J. Fred Woltz, Frank P. Higdon, John G. Brotherton, Michael Ryan.’’</p> <p>The plaintiff alleged that the defendants Woltz, Higdon, Brotherton and Ryan indorsed the note at the time of its execution and prior to its delivery to the plaintiff, and that at its maturity the notevwas duly protested for non-payment, legal notice thereof being given to the defendants whose names were indorsed upon the note. Ryan answered separately, the other defendants making default. The cause was tried upon the issues tendered by the third defense interposed by him, a demurrer to that defense having been overruled, and the plaintiff having thereupon replied thereto by denying certain of its allegations. The third defense is as follows:</p> <p>“Defendant, Michael Ryan, says that on or about the-day of June, 1896, plaintiff and the co-defendants, Woltz and Bell, entered into a written contract whereby it agreed to sell and transfer to said Woltz and Bell certain promissory notes made by the Elsmere Syndicate, aggregating $6,350, and said Woltz and Bell did agree to purchase and accept the same from the plaintiff, the sole consideration for said sale and transfer of said $6,350 notes to said Woltz and Bell being the execution and delivery by said Woltz and Bell to said bank of a promissory note of the said Woltz and his associate, the said Bell, in the sum of $4,500, payable four months after date with six per cent, interest, with right of renewal to not exceeding fifteen months, which promissory note the plaintiff, by said contract, agreed to accept as payment for said promissory notes; that said Woltz and Bell did, in compliance with said contract, cause to be delivered to said plaintiff, said $4,500 note made by them, and the said Woltz did authorize the defendant, Brotherton, to obtain from plaintiff in return therefor the syndicate notes aforesaid; that said Brotherton demanded the same from plaintiff, but plaintiff erroneously stated to said Brotherton that a written contract (meaning the written contract aforesaid) required other names on the said $4,500 note besides those of said Bell and Woltz, and said Brotherton, relying on said statement, and knowing, nothing to the contrary, or of said contract, took said $4,500 note from the bank, the names of said Woltz and Bell being then thereon, and applied to this defendant, Michael Ryan, to place his name upon the same, stating to him it was necessary in order to get some notes from the plaintiff, meaning the syndicate-notes aforesaid. Accordingly said Ryan, pursuant to-the request of said Brotherton, put his name on said note solely for the purpose aforesaid. The said note-was then returned by said Brotherton to the plaintiff and it delivered to him the syndicate notes aforesaid. Michael Ryan says he was then, and until after the execution and delivery of said note sued on, ignorant of the existence of said contract and of the above statement of the plaintiff; that he placed his name upon said note without any consideration therefor, and had no interest in said purchase of said syndicate notes, from plaintiff; that when said $4,500 note became due it was renewed for a period of four months by a like note only because the plaintiff was by said Bell and Woltz required under said contract to accept a renewal note; that when said last mentioned note, became due it was for the same reason again renewed for a like period by a note for the same amount, said last named note being the one now sued on; that said Michael Ryan placed his name on said renewal notes only because it was upon the said original note. He says that under the terms of said written contract between said Woltz and the plaintiff it was bound to transfer and deliver to said Wfftz the-said promissory notes of said Elsmere Syndicate upon receiving the promissory note for $4,500 of said Woltz and of said Bell, payable in four months with six per cent, interest, without any other names thereon, and without any other security for the payment of said promissory note than that of such personal liability of the said Woltz and said Beil, as plaintiff well knew, and that the note sued on in this case so far as concerns this defendant, Michael Ryan, is for the above reasons, void.”</p> <p>In the court of common pleas the verdict and judgment were for the defendant Ryan, and the judgment was affirmed by the circuit court. Among the numerous assignments of error it is alleged that the court of common pleas erred in overruling the demurrer to the third defense, and that the circuit court erred in affirming its judgment. Other assignments of error are omitted from the statement of the case for reasons given in the opinion.</p>

<p>Breach of covenant and seizin — Measure of damages — Consideration with interest from date of conveyance — Recital of consideration not conclusive — 'Written agreement of vendor and vendee — Evidence as to consideration — Land of irregular value — Damages in proportion of entire value as part to whole land — Unless uniform price per acre or foot agreed upon — Sales—Damages—Action to recover — Consideration.</p> <p>1. In an action to recover damages for a breach of a covenant of seizin and of good right to convey, the measure of damages is the consideration, with interest from the time of the conveyance. Backus v. McCoy, 3 Ohio 222, approved and followed.</p> <p>2. The recital in the deed of the consideration paid is not conclusive. The deed is prima facie evidence of the consideration, and, although the actual consideration, if valuable, may be different in kind or amount from that recited in the deed or although the deed recites no consideration at all, it may be shown by evidence dehors the deed.</p> <p>3. A written agreement between the vendor and vendee for the sale, purchase and conveyance of land is not executed by, and merged in the deed, as to the stipulations of the vendee therein concerning the consideration to be paid for the property; and such written agreement is competent evidence to show the actual consideration. Brumbaugh v. Chapman, 45 Ohio St., 368, distinguished.</p> <p>4. Where the land conveyed is not all of the same quality or value, the general rule is that the measure of damages is such proportion of the entire consideration as the value of the land of which the grantor was not seized bears to the value of the whole premises, with interest; but where the land conveyed is all of the same quality or value, the measure of damages is such proportion of the entire consideration as the quantity of the land lost bears to the whole quantity conveyed, with interest.</p> <p>5. Whether the land described in the deed is or is not of the same quality or value, if the parties have agreed upon a fixed and uniform price per acre, or per front foot, or any other standard of quantity, the measure of damages is such price multiplied by the quantity of land as to which the covenant fails, with interest.</p>

<p>Error to the Circuit Court of Belmont county.</p> <p>One Elma Sidwell, executrix of Plummer Sidwell, died without making final settlement of the Plummer Sidwell estate, and final account of her administration of said estate was filed in the probate court of Belmont by her executor, C. H. Judkins, the plaintiff in error here. To this account exceptions were filed in that court by A. H. Mitchell, administrator de bonis non with the will annexed of Plummer Sidwell, deceased, who is the defendant in error. The exceptions were sustained in part, and from the judgment of the probate court the plaintiff in error attempted to appea l to the court of common pleas. In that court the defendant in error interposed a motion to dismiss the appeal on the sole ground that no appeal bond had been given. The motion was sustained and the appeal dismissed by the common pleas, and that judgment was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Richland county.</p> <p>The controversy out of which this case grows was heretofore in this court, and is reported in Brinkerhoff v. Smith, 57 Ohio St., 611, where the facts are fully stated.</p> <p>The present case was begun by Louis C. Mengert, trustee of the estate of P. L. Harrison, an insolvent debtor, plaintiff, against Roeliff Brinkerhoff, Sr., defendant, September 1, 1897, by the filing of the following petition' in the court of common pleas, omitting caption and signatures:</p> <p>“Plaintiff says that on the fifth day of January, 1891, said P. L. Harrison, then in full life, and residing in the city of Mansfield, Ohio, was the owner of. a general stock of dry goods, notions and fixtures in the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Said stock of goods, notions and fixtures were of the value of twenty-four-.thousand dollars ($24,000.00). Said P. L. Harrison was then insolvent, and on said fifth day of January, 1891, entered into a written contract with said defendant, by the terms of which said defendant agreed to dispose of said property, goods and chattels in accordance with the terms of said written contract, and on said fifth day of January, 1891, she executed to said defendant as trustee for the Mansfield Savings Bank, Jenner & Tracy, Mollie Y. Harrison and Hiram R. Smith her chattel mortgage of that date for the sum of six thousand, nine hundred and seventy-nine dollars and sixty-two cents ($6,979.62) on said stock of dry goods, notions and fixtures. That on said day said P. L. Harrison delivered into the possession of said defendant said stock of dry goods, notions and property in accordance with the terms of said written contract and chattel mortgage, and said defendant took possession thereof in accordance with the terms of said written contract and chattel mortgage as trustee. -</p> <p>“Thereafter, to-wit, on the twenty-ninth day of July, 1891, a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrison, the Mansfield Savings •Bank, Hiram R. Smith, Eoeliff Brinkerlioff, Sr., and other defendants, the object and prayer of Avhich petition Avas to cause said transfer of said stock of goods, notions and property decreed a general assignment for the benefit of all of the creditors of the said P. L. Harrison, according to their respective rights and claims.</p> <p>“Thereafter various different creditors of the said P. L. Harrison filed ansAvers and cross-petitions to said petition. Said case Avas appealed to the circuit court in and for said county of Richland, and at the January term, 1895, Avas tried in said circuit court on its merits, and a decree Avas rendered in said circuit court, in Avhich decree, among other things, said court found that said chattel mortgage and contract were made in contemplation of insolvency, and that the conveyance of said stock of dry goods, notions and property made to said defendant as trustee, was made with the intention to prefer certain creditors of the said P. L. Harrison, named in said mortgage and contract, and said court adjudged and decreed that the conveyance of said property to said defendant inure to, the benefit of all of the creditors of said P. L. Harrison as and for an assignment of all of said property to an assignee for the benefit of said creditors in proportion to the claim of each against said insolvent estate, and that the finding, judgment and decree of said circuit court be certified to the probate court of Richland county, Ohio, for the appointment of a trustee of said insolvent estate, and such other proceedings as are authorized by law, and the costs of said action, both in the court of common pleas and in the circuit court, was adjudged against said defendant.</p> <p>“Thereafter said defendant and the Mansfield Savings Bank filed their motion in said circuit court for a new trial on the grounds' stated in said motion, which motion the court overruled, and a bill of exceptions was duly prepared, signed and filed and made a part of the record. And thereafter said defendant and the Mansfield Savings Bank filed a petition in error in the Supreme Court of the state of Ohio, the object and purpose of which was to reverse the judgment and decree of said circuit court, and said cause was heard in the Supreme Court of Ohio, and at the January term thereof, 1897, the judgment and decree of the said circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio, for execution in accordance with the judgment and decree of the said circuit court.</p> <p>“The probate judge in and for said county of Rich-land having been interested in said case as counsel, and being also the son of said defendant, was disqualified from hearing said case or passing upon any of the questions rising therein; and said case was duly certified to the court of common pleas in and for said county of Richland to carry into execution the judgment and decree of said circuit court.</p> <p>“Thereafter, to-wit, on the thirty-first day of July, 1897, the said court of common pleas appointed said Louis C. Mengert trustee of said insolvent estate, as provided by law, to receive and collect all moneys and property in the possession of said defendant or any other person or persons belonging to said estate; to receive and collect any accounts, choses in action or notes; to take possession of any personal property belonging to said estate, convert the same into money, and to do any and all acts proper for an assignee or trustee of an insolvent estate to do. Said plaintiff, L. C. Mengert, accepted said trust, gave bond and qualified as such trustee, and is now acting as the trustee of said estate.</p> <p>“Said plaintiff, on the twelfth day of August, 1897, duly demanded of said defendant possession of all the personal property, moneys and books belonging to said estate, which were turned over to or came into the possession of said defendant; but said defendant refused to turn over to plaintiff either the books or any of the money or property that so came into his possession. Plaintiff avers that said defendant converted said stock of goods, merchandise and property to his own use and to the use of the Mansfield Savings Bank, of which he is the president, and has retained the same ever since the fifth day of January, 1891, when he took possession thereof as trustee in accordance with the terms of said written contract and chattel mortgage. From the time said defendant took possession of said stock of goods, merchandise and property, on the fifth day of January, 1891, he held it in trust for all the creditors of said P. L. Harrison, as was adjudged and decreed by the circuit court of Eichland county, Ohio, and by the Supreme Court of Ohio; and although said defendant has been duly notified of the said judgment and decree of said courts, and demand made upon him for said property and moneys, he has refused to obey the same.</p> <p>“Plaintiff avers that the value of said goods, merchandise, property and money so received by said defendant is not less than $24,000.00, and that said defendant is indebted to plaintiff for the said sum of $24,000.00, with interest thereon at six per cent, from January 5, 1891.</p> <p>“Wherefore plaintiff prays judgment against said defendant for said sum of $24,000.00 and interest thereon at six per cent, from January 5, 1891.”</p> <p>The defendant filed an amended answer containing seven defenses, and an amendment to the second defense. The third, fifth and sixth defenses were held bad on demurrer by both of the lower courts, and will not be further noticed. The first, second, fourth, seventh, and the amendment to the second, are as follows:</p> <p>“First Defense. — Now comes the defendant herein and files this his amended answer to the petition of' plaintiff, leave of court being first had and obtained. The defendant for answer admits that on the fifth day of January, 1891, P. L. Harrison, then in full life and residing in the city of Mansfield, Ohio, was the owner of a general stock of dry goods, notions and fixtures iu the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Admits that P. L. Harrison was then insolvent.</p> <p>“Admits that on the fifth day of January, 1891, this defendant signed a written contract made with P. L. Harrison. Admits that afterwards a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrisdn, the Mansfield Savings Bank, Hiram R. Smith and other defendants, but that he was not a party defendant in his individual capacity in said case, that he was never made a party defendant nor entered his appearance in said case. Admits that said cause was tried in the circuit court and Supreme Court of Ohio. Admits that the decree of the circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio. Admits that the probate court in and for said county of Richland having been interested in said case as counsel and being also the son of said defendant, was also disqualified from hearing said case or passing upon any of the questions rising therein and said case was duly certified to the court of common pleas, in and for said county of Rich-land, to carry into execution the judgment and decree of said circuit court. Admits the appointment of L. C. Mengert, trustee, and that said L. C. Mengert gave bond and qualified as such trustee and is now acting as such.</p> <p>“Defendant denies that said goods were of the value of $24,000, or any other sum whatever.</p> <p>“Defendant denies each and every other allegation contained in said petition herein, not herein expressly admitted or denied.</p> <p>“Second Defense. — The defendant admits the taking of a chattel mortgage and the signing of the contract set forth in the petiticn of plaintiff herein, but avers the fact to be that at the time said chattel mortgage was taken and contract signed, Jenner & Tracy were then acting for and in behalf of and as the agents and attorneys of P. L. Harrison, M. Y. Harrison and H. R. Smith; that said chattel mortgage was taken and said contract signed with the full knowledge, consent and acquiescence of said parties acting through their attorneys and for themselves, that said chattel mortgage should be taken and held as collateral security until the Mansfield Savings Bank would be able to go to an adjoining county and procure a judgment on the two notes, securing their claim and have an execution issued to the sheriff of Richland county, Ohio, and cause a levy to be made on the stock of goods owned by P. L„ Harrison and being the same stock of goods in the chattel mortgage; that said judgments were so taken in accordance with the above mentioned agreement, in the court of common pleas of Ashland county, Ohio, and execution served thereon to the sheriff of Rich-land county, Ohio, and a levy made on said stock of goods; that this defendant gave possession of these goods to the sheriff under said execution, with the full knowledge, consent and acquiescence of Jenner & Tracy acting for themselves and for P. L. Harrison, M. V. Harrison and Hiram R. Smith; that at the time said contract was signed, it was understood by and between Jenner & Tracy, acting for themselves and M. V. Harrison, P. L. Harrison and Hiram R. Smith and the defendant, that as soon as the execution was placed in the hands of the sheriff of Richland county, Ohio, and demand was made upon defendant for the possession of said stock of goods, that said defendant was to surrender said stock of goods; that afterwards, by consent, acquiescence and agreement of all the creditors of said P. L. Harrison, the stock of goods was Turned over to the sheriff of Richland county, Ohio, upon levies he had. made upon the same; that after said stock of goods had been taken possession of by the sheriff of Richland county, all of the creditors of P. L. Harrison acquiesced and agreed that the sheriff should sell the same and hold the proceeds for the benefit of all the creditors.</p> <p>“That after the sheriff had so taken possession, he sold a part of said goods at retail, which sale lasted several months and during all of said time all of said creditors and interested parties acquiesced in said sale, and that afterwards an order was taken by the sheriff to sell the balance of said stock at public sale in bulk, and said order was so issued with the full knowledge, acquiescence and consent of all the creditors of P. L. Harrison; that from the time said good» were so sold by the sheriff, which said sale occurred in the year 1891, until the beginning of this suit by the trustee, which was commenced in the year 1897, all of the creditors and interested parties acquiesced in said sale.</p> <p>“That the object of the suit referred to in plaintiff’s petition was for the purpose of getting at the fund realized by the sheriff from the sale of said goods; that said sale was had upon executions upon judgments in favor of the Mansfield Savings Bank, Hood, Foulkrod & Co., Farley, Harvey & Co., and Brown, Durell & Co., and the amount realized was $9,151.09, and that said sheriff of Richland county, under said above arrangement, got all of said proceeds of said sale.</p> <p>“This plaintiff, as said trustee, is therefore estopped from claiming any amount for the value of said goods or in damages from this defendant for not having kept the possession of said goods; all of said creditors having. thus consented to said execution being levied and the sale of said stock of goods being made by the sheriff of Richland county, Ohio.</p> <p>“Fourth Defense. — For a fourth defense defendant says: That in the transaction set forth in the petition he acted as the agent of the Mansfield Savings Bank, and in taking said security and contract he was acting as the agent of said savings bank, and that he had no interest individually in the claim of the said bank, nor was said P. L. Harrison indebted to him; but that said mortgage and contract were taken as security to secure the claims due said bank, and it was taken upon the advice of Jenner & Tracy under the circumstances herein alleged; that none of the goods, chattels and property of said P. L. Harrison remained in his hands after the levy of the execution in favor of the Mansfield Savings Bank, Hood, Foulkrod L ■ Co., Farley, Harvey & Co., and Brown, Durell & Co., but that all of said property was taken from him by the sheriff of Richland county, by virtue of said execution, and the same sold as heretofore alleged, and defendant avers that he never received a dollar of the proceeds of said sale and in no way profited by reason thereof. He avers that he acted in good faith in the transaction, and without any purpose to hinder, delay and defraud the creditors of said P. L. Harrison.</p> <p>“Seventh Defense.; — For a further defense defendant says: That the claims of all of the creditors of «aid P. L. Harrison have been satisfied out of the fund arising from the sale of said goods mentioned in the first and second defenses, except the claims of Jennei & Tracy, H.' R. Smith, Mollie V. Harrison, Markel Pocket Book Co., and Berfield & Co., amounting in ail to about $2,000, and that this plaintiff can in no case collect more than enough to satisfy the claims of thes< said creditors.</p> <p>“Amendment to amended answer. — Now comes the defendant, Roeliff Brinkerhoff,. and by leave of court files this amendment to his second amended answer, and for second defense to the petition of plaintiffj says:</p> <p>“That on the fifth day of January, 1891, the said P. L. Harrison executed and delivered to him the chattel mortgage and contract set forth in the petition as trustee for the persons named therein, and to secure the payment of the claims therein set forth ; but he alleges that he accepted the. delivery of said mortgage and contract upon the condition that he was to hold the same as such trustee until judgment could be taken. upon the claims, of the Mansfield Savings Bank and. levy of execution made upon the property described in said mortgage and contract to satisfy said judgments; and that' upon the same day, to-wit: the fifth day of January, 1891, the Mansfield Savings Bank took judgments upon its claims for the sums of $5,015.55 and costs, and for $200.00 and .costs respectively, in the court of common pleas of Ashland county, Ohio; and', upon said day executions were duly issued upon said' judgments to the sheriff: of Richland county, and by virtue of said writs the sheriff of said county of Rich-land duly levied said executions upon said property and took possession of the same on said fifth day of January. 1891.</p> <p>“That on the sixth day of January, 1891, Brown, Durell &' Co., Hood, Eoulkrod & Co., and Parley, Harvey & Co., creditors of said P. L. Harrison, took judgments in the court of common pleas of Richland county, Ohio, upon claims aggregating $1,783.00; and the same day upon said judgments executions issued and were duly levied upon the property in question.</p> <p>“And thereafter,"by an order of said court of common pleas, made in the case of Brown, Durell & Company v. P. L. Harrison, the sheriff of said Richland county Sold said property and returned the money into court with his proceedings under said order.</p> <p>“Defendant says that the whole of said property was taken from his possession by the sheriff as aforesaid • on the fifth day of January, 1891, and that thereafter he had nothing to do with the said property or the sale thereof, but that he surrendered the same as soon as the executions were levied thereon, and that no portion of the proceeds came into his hands or were applied for Ms benefit.”</p> <p>■ ■ The court of common pleas sustained demurrers to all these defenses except the first, and defendant excepted. The plaintiff filed the following reply:</p> <p>“For reply to the first defense of the amended answer of the defendant, and leave of court having been first obtained to reply thereto, plaintiff says:</p> <p>“That he denies that the defendant was not a party in his individual capacity in the case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith and other defendants; and denies that he, the said Roeliff Brinkerhoff, was never made a party defendant, and never entered his appearance in said case.</p> <p>“Plaintiff avers that the said Roeliff Brinkerhoff, Sr., defendant herein, was made a party defendant in his individual capacity, in the said case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith, and others.”</p> <p>The cause was tried to a jury upon the issues joined by the petition, first defense and reply, and upon the evidence, the court holding that the value of the stock of goods so transferred to Mr. Brinkerhoff was the only question to be tried and determined.</p> <p>The testimony of the plaintiff tended to prove the value at the time of the transfer to be $24,000.00. The defendant introduced the execution docket of the sheriff, which showed that he sold the goods for $10,586.80 above taxes, and that the costs were $1,291.-59, net $9,295.21, which sum the sheriff paid over to creditors.</p> <p>The appearance docket in the other case was introduced in evidence and showed that Mr. Brinkerhoff in that case was sued as Roeliff Brinkerhoff, trustee, and that the sheriff served the summons on him personally.</p> <p>The counsel for plaintiff requested the court to charge the jury to bring in a verdict for $24,000.00, and interest, as all the evidence showed that to he the value of the stock of goods. The court refused to give this charge, and plaintiff excepted.</p> <p>The defendant requested certain special charges which the court refused, but as this refusal was not held to be error by the circuit court, no further notice will be taken of the requests.</p> <p>The court excluded certain evidence offered by defendant, which exclusion the circuit court held to be error, but from the view taken of the case by this court that question becomes immaterial, except as to the amount for which real estate was sold by the sheriff.</p> <p>The court instructed the jury to retire and bring in a verdict for the plaintiff for $10,586.80, with interest to the first day of the term, making a total of principal and interest, $16,227.00, being, as the court said, the amount realized by the sheriff. To this instruction the defendant excepted, but the plaintiff failed to except thereto. The jury brought in a verdict as directed.</p> <p>The defendant offered to prove that $1,400.00 of the $10,5S6.80 shown by the sheriff’s execution docket, was the proceeds of the sale of real estate not included in the contract and chattel mortgage. The court excluded this evidence and defendant excepted.</p> <p>Motions for a new trial were filed by both plaintiff and defendant, and overruled, and judgment entered on the verdict, to all of which exceptions were duly «aved.</p> <p>A petition in error was filed in the circuit court by the defendant below and a cross-petition in error by the plaintiff below.</p> <p>The cause was heard in the circuit court on the petition in error, the judgment reversed for error in sustaining the demurrer to the second, fourth and seventh defenses, and to the amendment to the second defense, for excluding certain evidence, for directing a verdict in favor of the plaintiff below, and because the verdict and judgment were against the weight of the evidence. The record fails to show that the cause was heard or considered on the cross-petition in error, and therefore that petition will not be further noticed.</p> <p>The plaintiff below filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and also alleging that the court of common pleas erred in its refusal to charge as requested as to the value of the stock'of goods.</p>

Exceptions to the Court of Common Pleas of Wood county. The defendant, B. H. Peters, a grocer doing bush ness^at the village of North Baltimore, Wood county, , was arrested on complaint of an inspector of’ the Dairy and Food Commissioner, made before Hon. ,3.' E. Shatzel, mayor of the village of Bowling Green, Wood county, charging said Peters with a violation - of the Act of May 16, 1894 (91 O. L., 274), “to prevent fraud and deception in the manufacture and sale-: of…

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

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

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

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

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