Volume 7 — Ohio Circuit Decisions

<p>CONSTITUTIONAL LAW — PRACTICE.</p> <p>Smith, Swing and Cox, JJ.</p> <p>1. Petitions to Test the Constitutionality oe an Act Will be Dismissed, When.</p> <p>Where a tax levied for a certain improvement was all paid without a single protest from anyone, a taxpayer will not he allowed to come into court at this late date, claiming that the act under which the tax was levied was unconstitutional, and therefore his petition will he dismissed as without equity.</p> <p>2. Action to Test the Constitutionality oe an Act, When to be Brought.</p> <p>Where a party wishes to test the constitutionality of a certain act, he should commence his action before the tax provided for by the act was levied and collected, and before those who were compelled or authorized to act under it had acted.</p>

<p>WATERWORKS — APPROPRIATING LANDS — EVIDENCE.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Evidence oe the Adaptability oe Lands Sought to be Appropriated.</p> <p>In determining the market value of lands sought to be appropriated by a city for water-works, the jury are precluded from considering its enhanced value, from the fact that it was adapted for a reservoir, which was the very'purpose for which it was being appropriated, and the jury is not permitted to make any use of the fact that such lands may have increased in value by the proposal or construction of the work for which it is taken.</p>

<p>GUARDIAN AND WARD.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Examination and Approval of Guardian’s Account.</p> <p>Where the probate court examines and approves the account filed by a guardian. Hela!, that this adjudication is conclusive between the guardian and his ward, and that the judgment of the probate court in approving the account of the guardian was the end of any controversy between the-guardian and his ward.</p>

<p>CONTRACTS — STATUTE OF FRAUDjS.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Agreement Between Mother and Son.</p> <p>Aíi agreement entered into by a mother and son, whereby the '"soil" placed into the hands of his mother, a certain sum of money, with the agreement that she shouldi make use of it, as oho might need, during the period of her life, and that upon her death, it, or such part of it as should remain unexpended, should be paid back to the son: Held, that this contract is not within the statute of frauds, and need not be in writing in order to maintain an action upon it.</p> <p>2. Conations Necessary to Bring a Case within the Statute oe Frauds.</p> <p>To bring a case within the statute of frauds, it must have been expressly stipulated by the partios, or appear to have been clearly understood by them upon a reasonable coEStruction of the contract, that the contract was not to be performed within 'a year.</p>

<p>MANDAMUS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Appi.ica.tion of, When Judicial Officer is Vested With Discretionary Powers.</p> <p>Whenever a judicial officer is vested with .discretionary powers as to the performance of any duty required at their hands or where in reaching a given result of official action he is necessarily obliged to use some degree of judgment and discretion. Held, that while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with the exercise of such discretion nor control or dictate the judgment or decision which shall be reached.</p>

<p>CRIMINAL LAW — EVIDENCE—PROSECUTING ATTORNEY.</p> <p>Caldwell, Hale and Burrows, JJ.</p> <p>(Judge Burrows of the seventh circuit taking the place of Judge Marvin.)</p> <p>L Threats Made by Defendant.</p> <p>If, after the commission of an offense, threats are made by the defendant against the prosecuting attorney of the countv, evidence of such alleged threats are not admissible, unless it appears that they were made under such circumstances and are of such character as to manifest a consciousness of guilt.</p> <p>2. Burden of Proof as to Aeibi.</p> <p>а. Where proof of the presence of the defendant, at the time and place of the commission of an offense, is requisite to sustain a conviction, a charge to the jury, which in terms or by implication, puts upon the defendant the burden of showing that he was not present at such time and place, is misleading and erroneous.</p> <p>б. It is also error, in such case, to charge the jury that an alibi is a defense set up by the defendant, which can only be atisfactorily maintained by proof which renders it impossible that he could have committed the act.</p> <p>S. Misconduct of Prosecuting Attorney.</p> <p>a. When the natural and probable effect of ..n improper address to the jury by the prosecuting attorney, is to create an unjust prejudice against the defendant, and secure a decision influenced by the prejudice so created, a new trial should be granted.</p> <p>b. The neglect of counsel for defendant to make objection to such misconduct at the time, will not preclude its consideration upon a motion for a new trial, where its prejudicial effect could not have been prevented thereby.</p>

<p>STREET RAILROADS — NEGLIGENCE.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Proximate Cause of Injury to Passenger Riding upon The Peateorm.</p> <p>Where a passenger, riding utsom the platform of a street car, suffers an injury caused by the derailment of the car: Held, that the fact of his riding upon ■ the platform was not the proximate cause of his injury, where the evidence clearly showed that the railroad company was negligent in the management of its car, a: and before the time of suca derailment; but that the proximate cause of the injury was caused by the negligence of those in charge of the car</p>

<p>EVIDENCE — CHARGE TO JURY — DAMAGES.</p> <p>Haynes, Scribner, and King, JJ.</p> <p>1. EVIDENCE TO SEOW KNOWLEDGE OE "HE CITY OF DEFECTS IN ITS SlDEWAEKS.</p> <p>In an action for damages for injuries received by reason of a defective sidewall’;, it is noc error to allow witnesses to testify that they were in the habi; of passing along the street, and that the sidewalk, in the immediate vicinity of the place where the injury occurred, had been taken up and relaid, and tha the planks were unequal and that there were some holes in the sidewalk; such evidence being- received for the purpose sf showing knowledge on the part of the city of the defects in the sidewalk.</p> <p>2. Charge as to tee Dut.: of a City Towards Negligent Persons.</p> <p>In an action for injuries caused by the negligence of a city, it is not error for the court to refuse to charge the jury to the effect that the city owes no duty to persons who, thoughtlessly, c.r wV-hout the use of proper precaution for their own safety, expose, themselves to manifest perils, or who by the use of ordinary and reasonable care, might avoid injury to themselves.</p> <p>S. Excessive Damages.</p> <p>Where plaintiff has received pi injury, and as the result of such injury, plaintiff’s arm is permanently weakened so that it will not be able to do foil work, again, a verdict foi $1200, rendered by the jury, will not be considered excessive so as to warrant a .reversal of such judgment.</p>

<p>BILL OF EXCEPTIONS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Faii/ure of Justice to Transmit Bum of Exceptions.</p> <p>The failure of a justice of the peace to transmit a bill of exceptions to the clerk of the common pleas court within ten days from its allowance, is not ground-for striking such bill of exceptions from the files.</p>

<p>TRANSIENT DEALERS.</p> <p>Pomerene, Adams and Douglass, JJ.</p> <p>1. Judgment oe a Mayor is Reviewabue upon the Weight oe Evidence.</p> <p>The circuit court has power to review the judgment of a mayor, in a conviction for the violation of an ordinance, on . the weight of the evidence.</p> <p>2. Conflicting Evidence where Statute fails to Define Temporary Deader.</p> <p>In an action for the violation of a city ordinance, relative to transient dealers, where the character of the fixtures and the admission of the defendant as to his oosition as a transient dealer, were met by proof of a lease for eight months, a printing contract for eight months, and the defendant’s own testimony that he expected to continue in business, the reviewing court declines to disturb the mayor’s finding on the weight of the evidence, where the statute fails to define a temporary dealer.</p> <p>3. Act 87, O. D., 100. Authorizing Council to License Transient Dealers, Void.</p> <p>The act of March 25, 1890, 87 O. L., 100, which authorizes the council of a city or village to license transient dealers, is unconstitutional, being in conflict with secs. 1 and 2 of the Bill of Rights, and an ordinance under its favor is therefore illegal and void.</p>

<p>WILLS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Testator has Power to Prevent Legacies, in the Hands oe Administrator, Erom being Seized by Creditors.</p> <p>A provision by a testator, in his will, that no part of his estate, given to any of his children, should, by any process of law, be seized or appropriated by creditors before payment to such children, but that same should be paid to such children personally, is legal, and creditors cannot, therefore, obtain i uy part of such legacies, while the same are in the hands of an administrator.</p>

<p>MARRIAGE — BIGAMY.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. What is Necessary to Constitute Marriage.</p> <p>To constitute marriage, though it is not essential, that the statutory forms be complied with, it is essential when such forms are omitted, that each of the parties contract with the other that they will from the making of such contract, sustain to each other the relation of husband and wife so long as they both shall live and this must be followed by cohabitation.</p> <p>2. Eeeect oe Continuous Acts oe Aduetery.</p> <p>Adultery, however long continued, does not constitute marriage.</p> <p>3. Making oe a Vaeid Marriage Contract.</p> <p>Though the relations between persons of opposite sexes, may be illicit in their inception, yet this does not preclude the subsequent making of a valid marriage contract between them, without the statutory forms.</p> <p>4. Prooe oe Former Marriage.</p> <p>To establish the former marriage of one on trial for bigamy where it is not claimed that such former marriage was in conformity with the statute, the same circumstances are admissible in evidence as are admissible to establish the same kind of a marriage in a civil case, and such circumstances may be sufficient to exclude all reasonable doubt.</p>

<p>MARRIAGE — INSANITY.</p> <p>Ratification of a Marriage Solemnized while one of the Parties was Insane.</p> <p>Where a person has been adjudged insane and a guardian appointed, and such person subsequently marrie* and then by a proceeding in the probate court is again restored to sanity after which he ratifies his marriage: Held, that where the evidence clearly shows that at no time since such person was adjudged insane has he been sane or possessed of sufficient mental capacity to be able to ratify the marriage contract, and, therefore, such marriage will be annulled at the suit of the guardian.</p>

<p>ROADS.</p> <p>Width oe Road Laid Out Previous to The Act oe 1824.</p> <p>Where a road has been laid out .nd used previous to the act Of February 26, 1824, which act authorized all ©ads to oe sixty 'eet in width, a proceeding by the county commissioners under section 3 of .he act of March 14, 1831, authorizing a resurvey of the road and a return of the plat thereof, would not have the effect to widen the road to sixty feet.</p>

<p>GAS AND OIL LEASE — INJUNCTION.</p> <p>Haynes, Scribner and King, JJ.</p> <p>Construction of—</p> <p>Where plaintiff executes a gas and oil lease for 100 acres of land, whiqb provides that i" no well is completed within three months from the date of the lease, then such lease to become null and void; and further, that all wells are to be completed on said land 18 months from date, and no well is to occupy more than one aero of ground. .Held, that the clause in the ..ease providing that no well is to occupy more than one acre of land is not an agreement that there should, be a well apon each acre of ground of the 100 acres, and that the failure of the lessee to sink one well upon each of the 100 acres of ground, did not give plaintiff the right to consider the lease as to the balance of such land forfeited and null and void.</p> <p>2. Question as to Extension of Time.</p> <p>The further and main question in the caso was whether the lessor had given the lessee permission to sink wells after the expiration of the original limit of eighteen months, and upon this question the court held with defendant and dismissed the petition.</p>

<p>SURETIES — LIMITATIONS.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Subrogation or Surety to Rights or Creditor.</p> <p>A surety by payment does not become ipso facto subrogated to the rights of the creditor, but only acquires a right to such subrogation, and that before the substitution or equitable assignments can actually take place, he must actively assert his equitable right thereto. The equitable action to enforce such subrogation is barred in ten years from the time the cause of action occurred.</p>

<p>GUARDIAN AND WARD — SURETIES.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Liability or Surety on Guardian’s Bond.</p> <p>In a proceeding by a ward against his former guardian for an accounting after a lapse of twenty years, during which time the guardian: has removed out of the court’s jurisdiction but was served with a citation oí notice to appear, and failing to appear, judgment was rendered against him, to «ehieh proceedings the surety on the guardian’s bond had no notice or knowledge. Held, that the settling of the guardian’s account was not conclusive as if the surety and such judgment is without any binding effect or force as against the surety on the bond.</p>

<p>PLATS — BOUNDARIES.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Change or Plat by Surveyor.</p> <p>Where a surveyor makes a plat of certain land and the dimensions or lengths of the lines that are laid down upon the plat conflict with proved or admitted facts they must give way to them.</p> <p>2. Intent oe Owner to Prevail.</p> <p>Where certain lands have been platted in lots which the owner conveys by lot numbers, it matters not whether their boundary lines are correct or whether he gave entirely wrong lengths to all of them, as the intent .s manifest to convey all the land, which intent cannot be overcome by any theory that may be subsequently discovered.</p> <p>3. Shortage on Plat to be Divided Pro Rata Between the Parties.</p> <p>If there is a shortage on a plat in which the owner intended to plat all his property, it is the well settled rule in this state that such shortage will be divided as near as possible pro rata between the owners of the whole.</p>

<p>APPEALS.</p> <p>Swing and Smith, JJ.</p> <p>Right to Appeal from Cincinnati Superior Court to Hamilton Circuit Court.</p> <p>An action pending in the superior court of Cincinnati, on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the law of May 16, 1894, took effect, cannot properly be appealed to tne circuit court on July 29, 1894, or at any time and a motion to dismiss such appeal will be sustained and the case stricken from the docket.</p>

<p>ERROR, to the Court of Common Pleas of Allen county.</p>

<p>RAILROADS — CONTRACTS—FELLOW SERVANTS. j</p> <p>Laubie, Frazier and Burrows, JJ.</p> <p>1, Rights of a Rahway Postal Clerk, how Governed.</p> <p>Ihe legal effect of contracts, and the rights of parties and privies thereto, are . generally governed by the law of the place of the contract, and the supreme court of the United States, having decided that postal clerks, in charge of mails on railway trains, are not entitled to be -considered as, and are not vested with the rights of passengers thereon, oy virtue of the contract between the railway company and the United States, and the provisions of the statutes of the United States in regard thereto, too the carrying of such mails and postal clerks, and are not. therefore, deprived oí such rights by force of the statute of a state, under which such clerks are considered as, and entitled only to the rights of au employee of a railway company, in case of being injured while on duty on its train, a postal clerk, resident if Ohio, in charge of the mail on a train of the plaintiff in error while on a trip from Youngstown, O,, t<? PittsDurg, Pa., under a contract between the Untited States and the company, made at Washington, D. C., who was injured iu a collision of trains in the latter named state, caused by the negligence of the conductor of the colliding train, cannot recover therefor, when by the statute and law of such state an employee of a railway company cannot recover of such company for an injury caused by the negligence ot a fellow servant, and postal clerks are regarded as employees of the company on its cars, and as fellow-servants of conductors of trains, and entitled only to the same rights against the company as an employee, in case of injury while on duty.</p> <p>2. Refusal of the Court to Send its Charge to she Turk.</p> <p>It is not error for a court to refuse to sena *ts cmrge to the iury, w.htfe ¿hei’e was no request made of the court to ”601100 it to writing, though »v had voluntarily reduced it to writing, therefore the parties were not entitled to demand as of right, that the charge should be sent to the jury, along with the papers in the case.</p>

<p>SURETIES — CONTRIBUTION.</p> <p>Day, Price and Finley, JJ,</p> <p>1. Principa!, or Contribution Rests in General Principles or Equity.</p> <p>The right of one surety to contribution from his co-sureties, does not res upon contract, but arises from the application of general principles of equity and it exists, whether such sureties are on the same or different bonds for the same purpose, and whether such bonds are of the same, or different dates and amounts, and also whether such sureties are jointly or jointly and severally liable.</p> <p>2. Right or Pledgor to Contribution erom Sureties on Bond or Trustee.</p> <p>A trustee of non-resident minor gave bond with sureties according to the laws of Ohio, for the faithful administration of his trust; and at a later period of time, such ward and trustee, by parol contract, without the knowledge of the sureties on the bond, procured and induced a third party to assign to and place in possession of the ward valuable personal property in pledge, as additional security for the trustee to said ward. The trustee afterwards died insolvent and largely indebted to his ward, to the satisfaction of which liability, the ward applied the property so pledged: Held, That the pledgor has a right to contribution from the sureties on the bond of the trustee.</p>

<p>Hejard on Krror.</p>

<p>ERROR to the Court of Common Pleas of Logan county.</p>

<p>Error to the Court of Common Pleas.</p>

<p>RECOGNIZANCE — PLEADING—INTEREST.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Sufficiency of Petition.</p> <p>In an action for the recovery upon a forfeited recognizance, it will be sufficient if the petition sets forth exactly what was done to constitute the forfeiture, and it is not necessary for the petition to allege that the bond was duly forfeited.</p> <p>2. Recovery of Interest.</p> <p>A recognizance being a promise to pay the money on condition broken, draws interest from the time when it becomes due, which is from the date of its forfeiture.</p>

<p>Error to the Court of Common Pleas of Hancock county.</p>

<p>CONVEYANCE — EVIDENCE.</p> <p>Seney, Day and Price, JJ.</p> <p>1. Conveyance by Father to Son.</p> <p>Where a father in his old age conveys and leases certain real estate to his sons in consideration lor which the son was to care for, and support his lather during his natural life; such transactions will be allowed to stand where the evideuce shows that the transactions by which the lauds were conveyed were not invalid by reason of want of capacity on the part of the grantor to make them, and where the evidence also shows that no coercion was exercised on the grantor.</p> <p>2. admissions oe Notions and Bediees oe Witnesses.</p> <p>Notions and beliefs of a witness, however, as evidence of a fact or condition, are only valuable when formed and based upon intelligent and careful observation under favorable opportunities, and utterly without value or weight unless it appears that the notice taken was careful and judicious and under favorable conditions.</p> <p>3. Disposition oe an Estate by a Person in Odd Age.</p> <p>Where a person in old age is making a final disposition of his estate, as if Dy will, and he has what is known in law as '‘testamentary capacity,” that would be sufficient, and such conveyances would be allowed to stand.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>Price, Day and Rolm, JJ.</p> <p>Failure op Railroad to Maintain Cattle Guards.</p> <p>In an action against a railroad company for damages for stock killed, because of alleged negligence in failing to construct necessary and proper cattle guards: Held, that such an ommission, was not of itself sufficient negligence as to warrant a verdict against the company, whe1' the evidence showed that it was necessary for the proper use of the station yards, as maintained on each side of the station proper, to omit such cattle guards.</p>

<p>ASSESSMENTS — LESSOR AND LESSEE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Property Owner Entitled to Return of Assessments, When—</p> <p>Where an owner of certain premises abutting upon a certain street, leases the same with the provision that the lessee, in addition to an annual rental, is to pay all taxes and improvement assessments, and the street is afterwards paved when a street railway secures a franchise in the said street, and m return it agrees to repay the assessments that were made for paving the same; Held, that such money belongs, and should be paid to the property owner and not to the lessee of the property.</p>

<p>Heard on Error.</p>

<p>CHARGE TO JURY,</p> <p>Haynes and King, JJ.</p> <p>X. Srroneous Charge as to Right op Injured Party to Recover Physician’s Fees.</p> <p>In an action for damages, including physician’s fees, for injuries sustained by plaintiff, a married woman, it is error for the court to charge the jury that plaintiff’s right to recover such fees depended upon the fact “whether she herself is or is not liable to pay these expenses.”</p> <p>2. Right oe Injured Party to Recover Physician's Fees.</p> <p>Such fees cannot be recovered, where the evidence clearly shows that there wan no employment by plaintiff of the physician, but that instead the husband was clearly liable; and it was therefore the duty of the court to have directed the jury that the fees for the physician’s services could not be recovered by plaintiff in this case as against the city.</p>

<p>FEES OF PROBATE JUDGES.</p> <p>Haynes and King JJ.</p> <p>Fees of Probate Judge for entering and indesing cases on the court calender; recording and indexing cost bills, and for making and indexing entries, in the cash book.</p>

<p>JUDGMENTS — ACCORD AND SATISFACTION.</p> <p>Haynes and King, JJ.</p> <p>J. Necessary Requisites to Constitute an Accord and Satisfaction op a Judgment.</p> <p>An accord and satisfaction of a judgment must be to the full amount of the judgment, and if anything less is taken it must be upon a consideration that . is paid.</p> <p>2. Effect of Giving Certificates of Indebtedness by a City in Satisfac tion oe a Judgment.</p> <p>Where a judgment is recovered against a city for appropriating certain lands for street purposes, and afterwards the city delivers to the parties in satisfaction of their judgments certificates of indebtedness, such certificates of indebtedness will not be held to constitute an accord and satisfaction of the judgments recovered, when they are taken for a less amount and no consideration appearing to have been given by the city to the parties in any manner ’ or form, whereby, for that consideration they agreed to take such certificates in satisfaction of their debt.</p>

<p>ERROR to the Court of Common Pleas of Crawford county.</p>

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

<p>MORTGAGES — LIMITATIONS—TAXES.</p> <p>Haynes, and King, JJ.</p> <p>1. Removal of the Bar of the Statute of Limitations.</p> <p>Where suit is brought to foreclose a mortgage against a piece oí land, upon which mortgage payment was made by one of the persons who ware jointly owners of the land, and especially where the payment was made by one who, by agreement of the parties was obliged to pay the notes secured by the mortgage, removes the bar of the statutes of limitation:; end entitles the holder of the mortgage to foreclose upon the whole farm.</p> <p>2. Right of Mortgage® who Pays the Taxes.</p> <p>A mortgagee who pays the taxes upon the mortgaged lands, is entitled to be subrogated to the rights of the state as to those taxes, and have the tax re- • funded to him in the same manner that the state might claim a lien upon the taxed lands.</p>

<p>STATUTES — COUNTY COMMISSIONERS.</p> <p>Haynes and King, TJ.</p> <p>Scope of Word “Persons” as used in Section 863 Revised Statutes.</p> <p>The word “persons” in section 863 Revised Statutes, is sufficiently broad to include the bringing of a suit under section 5880, K.. S., by the board of county commissicnerc- against a boat fr- name that has committed an injury to a bridge located within, thejar adi'-fion of the county.</p>

<p>CORPORATIONS.</p> <p>Cox, Swing and Smith JJ.</p> <p>COMPENSATION OE A DIRECTO:! OF A CORPORATION WHO ACTS AS ITS TREASURER.</p> <p>Where a person, acting a:; a (director in a corporation, is afterward elected as its treasurer, and while thus serving ho has no express contract with the company si the time of his election, that lie was to be paid for bio services; such facts would not preclude'Mm from recovering for the fair and reasonable value of Ms services, ’£ they were valuable and were rendered under such circumstances as showed that sag was to te compensated therefor.</p>

October 14, 1892, the plaintiff brought suit in the court of common pleas of Clark county to recover from the defendant taxes and penalty, amounting to :JGo,984.72 for the years 1887 to '.'.o9I, both inclusive ; and on March 4, 1893, brought suit to recover from the defendant taxes taid penalty amounting to §20,483.1.9 for the year 1892._ Answers and replies were filed.. The cases were consolidated and tried to the court, a -jury being waived.

<p>LEASE — INTOXICATING LIQUORS.</p> <p>Kaynes and King, JJ.</p> <p>Action to Recover rent.</p> <p>In an action by a lessor against the lessee for rent due, it is no defense for the lessee to set up the fact that the premises were leased for the purpose of carrying on the business oí selling intoxicating liquors, where such business was not carried on illegaly or in contravention of law.</p>

<p>VENDOR AND PURCHASER — FRAUDULENT REPRESENTATIONS.</p> <p>Haynes and Ring, JJ.</p> <p>Misrepresentation- as ru Size and Extent oe Land sold by Vendor, Eeeect</p> <p>Where one purchr.iec property represented to be of a certain sise c.nd extent, which representations prove to be untrue,- such purchaser may have such abatement in the price, or such, a recovery on his own part, if he shall have paid the purchase price, as will make him good for that which he has lost, because the property is not Ac same in size and extent as it was represented to be, although, the representations may have been innocently made.</p>

<p>NEGLIGENCE — RAILROAD LAW.</p> <p>Haynes and Ring, JJ.</p> <p>Puain-x'iiC Cannot Recover son iNjurans when Hi; Himsepe was Careless.</p> <p>In an. action by a switchman against arailroad company for injuries received by failing into au ash pit while in the course of his employment, such plaintiff will not be entitled to recover where the testimony clearly shows that he was careless and does not show any excuse for being careless at that point of time.</p>

<p>DAMAGES — PLEADING—EVIDENCE,</p> <p>Haynes and King, JJ.</p> <p>2. Recovery of Expenses Incurred for Employing Physicians üy Person Injured,</p> <p>In an action to recover' damages for injuries sustained by plaintiff, resulting from a collision of ears on a street railway ■_ tho plaintiff may recover, as part of her damages, the amount that sbe expended, and what she may reaso.nafoly expect to expend in order to cure herself of such injuries received through tho fault or negligence of She defendant.</p> <p>2. Admission of Evidence Showing What the Expenses Incurred Were.</p> <p>In such action, the petition neod not allege with definiteness the amount so expended, and in the absence of amotion to make it more definite and certain, plaintiff may introduce evidence showing what the expenses thus incurred were, and it is not error for the court'to charge the jury that plaintiff “ is entitled to recover for any expense that she may have been to, as shown dv the evidence in the case, for medical services or attendance, in endeavoring tó cure herself of the injuries which she has sustained.”</p>

<p>FALSE IMPRISONMENT — DAMAGES.</p> <p>Haynes and King, JJ.</p> <p>Action for Damages eor False Imprisonment.</p> <p>In an action for damages for false imprisonment, the defendant is liable, if, as a matter of fact, he did procure the arrest of the plaintiff, and the plaintiff was arrested.at the instigation and direction of defendant, and was imprisoned or deprived of his liberty by his directions and under his procurement; as, in law, the act of the constable making the arrest becomes the act of the defendant.</p>

<p>BOUNDARIES.</p> <p>Haynes and King, JJ.</p> <p>Conveyance of Land Adjoining a Navigable River. .</p> <p>Where one conveys land adjoining a navigable river of this state and the land in fact bounds and abuts upon the water which flows in front of the premises and conveys by a conveyance which ¡loes not except or reserve the land in front of the premises, although they may be marked with boundary lines, the grantee takes to the centre of the navigable stream, that is to the centre of the current.</p>

<p>STREETS AND ROADS.</p> <p>Smith and Swing, JJ.</p> <p>1. Facts which do not Bar Plaintiff from Maintaining his present Action.</p> <p>Upon the facts as stated by the court in its opinion in this case, it was held that the pendency of the proceeding in error in the supreme court to reverse the judgment in a former case, did not bar the plaintiff from bringing and main-ing this action, if the evidence otherwise shows that he is entitled to the relief sought.</p> <p>2. Matters Settled and Adjudicated in Former Case between same Parties — Effect.</p> <p>That the matters set up in the second defense, even if there was evidence to maintain them, (which was not offered), had already been settled and adjudicated in the former case between the same parties.</p> <p>3. Obstructing Plaintiff’s Right of Way.</p> <p>That the structure erected by the defendant over the roadway of plaintiff is in violation of the right of said plaintiff, and ought not to be maintained as it now is.</p>

<p>EVIDENCE- ARREST.</p> <p>Caldwell, Hale and Mar. in, JJ.</p> <p>1. Evidence op Probabee Cause.</p> <p>Where a police officer arrests a person without a warrant, the arrest being upon view, and the ac'cused is afterwards acquitted and then brings an action against such officer for an undue assault made upon him and for false imprisonment and malicious prosecution such officer should bo allowed to testify to the fact that to his knowledge, and prior to the arrest there had been some per* son or persons prowling about the houses in his neighborhood and peering into windows and that such persons acted as the accused was acting at the time of his arrest, as such evidence goes to show the exercise of probable cause by the officer in making the arrest.</p> <p>2. Evidence op Bad Character.</p> <p>A person who causes the arrest of another may sh the bad character of the person arrested. Such evidence goes to show7 ill... Liorihood that the accused committed the crime, as " person of bad character is more likely to commit n crime than a person of good character.</p> <p>3. What Constitutes Probable Cause.</p> <p>To constitute p-obable cause so as to warrant the arrest of a person for the commission of a crime there must be such circumstances and surrounding facts as will load a person of ordinary prudence to believe in the guilt of the person arrested, and if the facts show that to be the case, then there is probable cause for the arrest.</p> <p>4. Oppicer Making Arrest Procuring the Advice op an Attorney Before Filing Affidavit — Effect.</p> <p>Where an officer finds one violating a law or ordinance, and then and there arrests him and thereafter files an affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit, and does not begin with the arrest, and if such officer before making the affidavit takes the advice of an attorney-at-law, upon full and fair disclosure of th" facts, and follows Mo advice in making an affidavit, and prosecuting the person so charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.</p>

<p>LIMITATION of actions.</p> <p>Pomerene, Adams and Kibler, JJ.</p> <p>Statute oe Limitations, Computation oe Time.</p> <p>Where plaintiff’s cause of action accrued on the 16th of March, 1887, this day-should not be included in the computation of the statute of limitations of six years, and therefore such cause of action is not barred on the 16th of March, 1893.</p>

<p>Error to the Court of Common Pleas of Harrison county.</p>

<p>TAXES AND TAXATION — INTEREST.</p> <p>Haynes and King, JJ.</p> <p>1. Action to Recover Delinquent Taxes.</p> <p>In an action for the recovery of delinquent taxes, in which is included a penalty of ten per cent, for their non-payment, the county treasurer is not entitled • to recover anything by way of penalties upon the taxes. Where part of the taxes assessed are legal and part illegal, as the county has no right to make a demand for that which is illegal and put the taxpayer in default for the payment of that which is legal, therefore a judgment recovered by a county treasurer for the amount of such taxes, including penalties, is erroneous.</p> <p>2. Taxes Do Not Draw Interest.</p> <p>Taxes levied do not draw interest from the time they are payable, or from the commencement of the action for their recovery, but a judgment for the amount of the taxes will be held to draw interest from the date when it was originally rendered.</p>

Heard on Appear from the Court of Common Pleas. This suit was to enjoin Schmidt from operating a bakery at 1900 Vine street. Schmidt sold the bakery at No. 113 Elder street to Peterson for $1,000, agreeing not to go into the business again within four squares of the old stand. The new business started by Schmidt at 1900 Vine street is carried on in the name of his wife by whom he claims to be employed.

<p>JuDSMS — INTERPLEADER.</p> <p>Haynes and liing, JJ.</p> <p>Priority or Claims.</p> <p>Where the plaintiff in erecting a building has a contract with the builder which provides that tfc~- latter must pay all the claims for labor and materials named in the construction of the building, and it appears that the contractor executed two orders to the L. Bros, on the building fund still unpaid, and also an order to R„ who received his order in connection with a verbal order before the L. Bros, received their orders, and both claims being presented for payment, the plaintiff filed a bill of interpleader to ascertain how the balance of the building fund remaining unpaid was to be distributed : Held — First, that the costs in this court, together with the costs incurred by plaintiff in the common pleas in bringing the parties into court, are to be paid; second, the claim of R. should be paid; third, so much of the money as is left, should be applied upon the orders of L. Bros., so far as it will go.</p>

<p>RAILROAD LAW — NEGLIGENCE.</p> <p>Haynes and King, JJ.</p> <p>Negligence oe Conductor — Effect.</p> <p>The conductor on a train is the only representative of the company who is in charge of the whole train, and by the law of Ohio is made the representative of the company in the management and control of the train, and therefore if he fails to give his engineer certain information which he received regarding the safe running of his train and a collision results from this failure and he receives injuries from which he afterwards dies, the representatives of his estate will not be entitled to recover any damages from the company because the injury received by the conductor from which he afterwards died resulted from his own negligence.</p>

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

<p>DEDICATION — ADVERSE POSSESSION.</p> <p>King, Haynes and Parker, JJ.</p> <p>Title by Adverse Possession.</p> <p>H. and M., owners of a tract of land in Toledo, prepared and duly acknowledged a plat of the same, laying out upon it certain streets and dividing the re-maider into lots, presented the plat to the city council, and the same having been by that body duly accepted, had the plat recorded in the office of the county recorder, and soon thereafter .sold and conveyed a portion of the land included in the plat, describing it by boundary lines, which boundaries included a section of one of the streets. The grantee entered into possession and enclosed with a fence on the boundary lines, erected a dwelling house and a barn thereon, and thereafter, for a period of more than twenty-one years, continued in the occupation of his premises, using that part of the street, so included as an incident to his house and barn for pasturage and garden purposes and entirely excluded the public therefrom, the city in the meantime making no attempt to open the street: Held, That his possession of that part of his purchase which was included within the street, as shown upon the plat, was such as to give him title to that part of the street by adverse possession against the city.</p>

<p>STATUTE OF LIMITATIONS — TAXES.</p> <p>Cox, Swing and Smith, JJ.</p> <p>1. Operation oe Statute oe Limitations upon the Coeeection oe Taxes.</p> <p>The statute of limitations does not run against the state in the matter of the collection of taxes.</p> <p>2. Suit eos. the Coeeection oe Taxes.</p> <p>All taxes regularly assessed, whether upon realty or personalty, are a claim on behalf of the state, and a suit for their collection may be maintained after, as well as before the expiration of six years.</p>

<p>ADMINISTRATORS AND EXECUTORS.</p> <p>Haynes and King, JJ.</p> <p>Action for a Year’s Allowance.</p> <p>In an action for a year’s allowance by a child under fifteen years of age and residing in Germany, against the estate of her father who resided in this state, it appearing that the child’s father came to this country leaving a wife and this child in Germany, from whom he procured a divorce and then married again, and at the time of his death he left surviving him, a wife and two children, who received their yearly allowance, which was made without any knowledge that there was another child under fifteen years of age: Held, that such child was entitled to her yearly allowance, although she was never a resident of Ohio, and the fact that such child upon proving her paternity, received a distributive share of her father’s estate, does not constitutes bar.m <fiaim for a year’s allowance.</p>

<p>LANDLORD AND TENANT — EVIDENCE.</p> <p>Haynes and King, JJ.</p> <p>3. Oral agreement between Lessee and lessor.</p> <p>Where the lessee in leasing certain premises and before the execution of a written lease has an oral understanding with his lessor that he io to receive a rebate on his rent at the end of the year: Held, that the whole contract was merged into the written one, and it was error for the court to admit testimony to show that there should be a rebate by virtue of some oral arrangement made prior to the execution of the written lease._</p> <p>2. Tenant by the Year Holding Over.</p> <p>Where one leases premises for one year, renewable at the end of the year and such lessee at the expiration of the second year held over under, and according to the terms of the lease; such holding over will be regarded as that of a tenant from year to year and not as a tenant by will, and therefore such lessee will be liable for the whole of the year.</p>

<p>WILLS.</p> <p>Haynes and King, JJ.</p> <p>1. Construing A Wnm.</p> <p>In arriving at tbe construction of a will, the first thing to be considered is tho will of the testator, and if that, when examined in the light of the whole will, shows clearly and conclusively what his wish and desire is, it will be carried out and respected by the courts unless there is some provision of the law absolutely prohibiting his doing what he attempts to do.</p> <p>2. Limitations in A Winn.</p> <p>Where the testator in his wiL provides that the use, rent and income of certain property is to go to his brother during life, with power of naming by will whom the property shall vest in and then again the will provides for a life estate in certain others of the real estate, and upon death of the life tenant, the remainder shall go to his legal representatives, but adds an additional .lause that in no contingency is any part of his estate to go to any child or children of one of his brothers: Held, that this latter provision is a limitation that bound, the life tenant and prevented him from directing that this property should be given in any way contrary to this latter provisio: , and in effect it amounted to a limitation upon his power to do so,</p>

<p>FALSE IMPRISONMENT — CHARGE TO JURY.</p> <p>Haynes and King, J.J.</p> <p>Liability or the Chief oe Police for. False Imprisonment.</p> <p>In au action for false imprisonment against the chief of police by a person who had been arrested and imprisoned by the order of the chief without any affidavit being filed or any warrant issued, the arrest and imprisonment being made on Saturday, and on Monday the hearing was to take place in the police court, but owing to a riot in the city which called the chief away, together with the officers who made the arrest, whereupon the prisoner instituted habeas corbus proceedings and was discharged, and afterwards commenced this action xield, that the officer did not himself cause an affidavit to be filed; that it was reversible error for the trial court to charge the jury in substance that the chief was guilty of unreasonable delaj in making these affidavits, and that inasmuch as he did not even under the circumstances, file the affidavits Monday morning, so that the prisoner would from that time have been legally detained on a warrant, that he was guilty of unlawfully imprisoning the accused and that, therefore, he was guilty of unreasonable delay, which rendered him liable to. prosecution for unlawful imprisonment.</p>

<p>Error to the Court of Common Pleas of Ashtabula county.</p>

The suit was to enjoin the collection of taxes on additions of $35,760 and $20,000 made to the plaintiffs’ tax return for the year 1892, under the Rawlings Daw, section 2742, R. S., by the board of review sitting as a board of equalization. The hearing below was on demurrer to the petition, which was sustained by Judge Sayler in an opinion holding the law constitutional.

<p>.CONTEMPT OF COURT.</p> <p>Hale, Marvin and Caldwell, JJ.</p> <p>1. Information to be Filed By a Proper Representative of the State.</p> <p>When the transactions constituting-an alleged contempt of court are not within the personal cognizance of the court through his own senses, the better practice would seem tb be to require an information to be filed by a proper representative of the state, specifying the transaction alleged to be contemptuous and permit the accused to file an answer to the charge made against him in such information.</p> <p>2. Rights of the Accused.</p> <p>In such prosecution, whether the transaction constituting the alleged contempt is brought into the record by information filed, or first entered on the journal of the court by order of the court before the arrest of the accused or any notice to him, the fullest opportunity should be given to him to show cause why he should not be punished for contempt, and his guilt should not be determined before such opportunity is given to him.</p> <p>S. Evidence to Mitigate the Offense.</p> <p>In such action the accused is entitled to show by witnesses, that the facts referred to or recited in the article alleged to be contemptuous,occurred as therein stated. Such evidence is competent, as it tends to mitigate the offense, and is entirely, proper to be considered in fixing the measure of punishment to be awarded.</p> <p>4. Proof that the Article was not in Law Contemptuous.</p> <p>In such cause the accused in an endeavor to show why he should not be punished for contempt, has the right to show, if he can, that the article published was not in law contemptuous, and a refusal to hear counsel on that proposition is error.</p> <p>■5. Newspaper Criticisms.</p> <p>Newspaper comments though libelous, having relation to proceedings of a court which are wholly past and ended, are not in contempt of court nor the authority of the court to which reference is made.</p>

<p>WILLS.</p> <p>Pomerene, Adams and Kibler, JJ.</p> <p>1. Construction of a Wide Containing an Absolute Power op Disposition.</p> <p>A will containing the following provision: “I give and devise to my beloved wife, all my property, both real and personal, to bave and to hold during her natural life, and to dispose of as she sees fit,” will be held to confer upon the wife the whole estate of the testator in the property mentioned. And the words, “and to dispose of as she sees fit,” will be held to enlarge the life estate into a fee, or an absolute disposition of the estate.</p> <p>2. A Wide does not Coyer After Acquired Property, When.</p> <p>Where a wife made her will five years before the death of her husband, and the husband shortly before he dies made a will disposing of his property to his wife with the provision that she is, “to have and to hold during her natural life and to dispose of as she sees fit:” Held, that the wife’s will made five years before the will and death of her husband is not a valid execution of the power contained in her husband’s will. And there being nothing in the wife’s will which clearly and manifestly indicates an intention to pass any after acquired property, she will therefore be held to have died intestate as to the property devised or bequeathed to her by her husband’s will, and such property is to be transmitted under section 4162, Revised Statutes.</p>

<p>SCHOOLS.</p> <p>Pomercne, Adams aud Kibler, JJ.</p> <p>1. Control and Management or Schools.</p> <p>The control and management of the schools of this state is given to the boards of education by the statute, and these boards cannot be interfered with in any manner by the court unless there is a gross abuse of the discretionary powers given.</p> <p>2. Election or Teacher by a Board op Education.</p> <p>Where the minute book, containing the record of the proceedings of a board of education shows that all the members were present, and that on motion the board proceeded to elect a teacher, clearly showing the yea and nay vote but does not state that the roll was called, such election will be considered to be in substantial compliance with section 3982, Revised Statutes.</p> <p>3. Employment oe Teachers Not Having a Certificate.</p> <p>Under the section of the statute requiring that hoards of education shall not employ, teachers without having a certificate to teach the branches, does not render invalid a contract for employment made with a teacher before he obtains the requisite certificate, provided he obtains it before entering upon the duties of his employment.</p> <p>4. Suit by Taxpayer.</p> <p>A taxpayer may commence a suit to restrain a board of education from doing an illegal act, and sections 1277-8 and 1777-8 of the Revised Statutes do not apply to such action.</p>

The original proceeding was in partition. The prayer of the petition was for partition or the real estate of Thomas B- Hayes, deceased, between those entitled, and the assignment of dower to his widow, Hannah Hayes. The widow made answer, waiving dower interest in money.

<p>BUILDING ASSOCIATIONS.</p> <p>King, Haynes, and Parker, JJ.</p> <p>A Manufacturing Corporation may Lawfully Become a Member of a Loan Company.</p> <p>A manufacturing corporation may lawfully become a member of a loan company for the purpose of borrowing money for any use that it bad; but, if it did not have that power expressly or by law, still, having borrowed money from, such association and received its benefits, and having contracted and agreed to pay it back and also agreed that it should be a lien upon its property, that contract a court of equity will execute, and they will not listen to the plea of the manufacturing corporation after it had used the money, much less that of another general creditor, that the corporation orginally had no power to borrow.</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. An Employee is Bound to Observe the Rules oe His Employer.</p> <p>An employee is bound to exercise ordinary care to ascertain and observe the rules of his employer, and it will not excuse him for a violation that the employer or his agent, superior to the plaintiff, has at some time disobeyed snch rules.</p> <p>2. Violation oe Principal’s Instructions.</p> <p>If an employee has suffered an injury brought about by violation of the plain instructions of his principal, he cannot hold his principal liable therefor.</p> <p>3. Contributory Negligence.</p> <p>If an employee, with knowledge of the habitual and continued negligence of his superior fellow employee - in some matter acquiesces therein and continues in the service of his employer without objection or effort toward correction of such neglect, he thereby waives his right against the company and takes the risk upon himself.</p>

<p>EVIDENCE — INJUNCTION.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Evidence oe Conversations Between Parties.</p> <p>Conversations between parties interested upon one side of a controversy, at which the other party was not present and had no means of knowing of it, would not be competent to show the actions or intention of an opposite party. ^</p> <p>2. Enjoining a Competitor From Managing Its Business.</p> <p>Plaintiffs, who are the owners of a large and profitable business, being also the owners of a certain number of shares in the defendant company, a rival concern, seek to enjoin it from managing its own business according to its own judgment, and from selling its own product at such a price as to entail a loss upon said defendant company and its shareholders: Held., that the interest of the plaintiffs in asking for an injunction, though owners of stock in defendant company, was plainly not in preserving the value of defendants’ stock, but was prosecuted for its own interests, it being a rival concern. Such action not being bona fide for the benefit and interest of the stockholders whom plaintiffs claim to represent, a court of equity will not enjoin the defendant company, a competitor, from managing its business according to its own judgment.</p>

<p>APPROPRIATION OF LANDS — EVIDENCE— LIMITATION S.</p> <p>Ring, Haynes and Parker, J J.</p> <p>1= A Demurrer to the Answer Searches the Record.</p> <p>In an action by. a party to recover compensation for lands that have been entere upon by a railway company without the consent of the owner in writing, the defendant filed an answer claiming that the cause of action did no accrue within sis years next before the'action was begun; to this defense plaintiff demurred : Held,, that the demurrer to the answer searches the record and the court is warranted to look back to the petition and see when the cause of action did arise, and if it finds that it arose within sis years prior to the commencement of the suit, it will not be error in the court in sustaining the demurrer to this defense.</p> <p>2. The Cause of Action Accrues at the Time the Owner Transfers the Deed to the Company.</p> <p>Where a railroad company has taken possession of land for its right-of-way without the owner’s consent, such property belongs to the owner up to the time that he tenders the deed, and, if, at the time of tendering the deed for such property, the owner elected to hold the company for the land and receive for it the compensation which was due him for the value of the land: Held, that by that election the owner’s cause of action arose, and he had the right to bring and maintain his suit, and damages should be awarded of the date when the title of property passed, that is, for the value of the land to the owner at that tirpe.</p> <p>8. Evidence as to the Yaeub of the Hand Appropriated.</p> <p>In such case it is error for the court to allow testimony to be offered as to the value of the land when the railroad company went into possession, in that it was offered and directed to a point of time prior to the time when the cause of action accrued. Such testimony should have been confined to the time when the deed was delivered.</p> <p>4. Damages in Such Case is Restricted Oni,y to Dand Taken.</p> <p>It is error for the court to refuse to charge the jury that in such case the plaintiff is not entitled to recover damages to land not taken by the railroad company, but is restricted to compensation for land taken-</p>

<p>CRIMINAL LAW — COURT—JURY.</p> <p>King, Haynes and Adams, JJ.</p> <p>(Judge Adams of the Fifth Circuit taking the place of Judge Parker.)</p> <p>1. An Indictment Need Not be Signed by the Prosecuting Attorney.</p> <p>An indictment properly returned by the grand jury need not be signed by the prosecuting attorney. Even if required and omitted, such omission would not be sufficient to authorize a verdict returned on such indictment to be set aside.</p> <p>2. Indictment for Murder in the First Degree.</p> <p>An indictment for murder in the first degree, which alleges that the act and crime was committed by all three defendants, there being no allegation that one of them committed the act-: Held, that it is not necessary for the indictment to set out which one of the defendants fired the fatal shot. It was prop-per to allege that all three committed the unlawful act.</p> <p>3. Construction of the Word “ Prosecuted ” as Used in Section 6804.</p> <p>The word “ prosecuted ” as used in section 6804, Revised Statutes, alludes to the finding of the indictment.</p> <p>4. Adjournment of Court to a Legad Houiday -Effect.</p> <p>When a court by mistake or inadvertence adjourned its term to a date on which it could do no business — a legal holiday — such term does not therefore lapse or come to an end, but such court, on such holiday, may legally adjourn to the following day, at which it may legally proceed with, the transaction of its business.</p> <p>5. Competency of a Person who has Formed an Opinion to Serve as Juror.</p> <p>Where a person summoned as a juror in a criminal case states upon his voir doir that he has formed an opinion touching the guilt or innocence of the accused from reading a report of what purported to be the evidence, given at a preliminary hearing, but testified that he would, if selected as a juror, render a fair and impartial verdict according to the law and the evidence, and it appears that the trial court by accepting him was of that opinion, then such juror will be considered competent to serve.</p>

<p>RAILROADS — STREETS—EQUITY.</p> <p>Hale, Marvin and Caldwell, JJ.</p> <p>1. Use oe Public Streets by Railroads.</p> <p>Where a city by ordinance contracts with a railroad company, giving such company the privilege of taking and using for its railroad so much of certain public streets as said company shall deem expedient for the purpose of building its railroad: Held, that the company did not take the exclusive use of such streets under the contract, but could use them only so far as it was necessary for the railroad to use them and not so far as it should deem necessary. It was the duty of the railroad to restore such streets to their former state of usefulness, and failing to do so the city cannot be interfered with in thus restoring them.</p> <p>2. Rights oe the Party at Eault in a Court oe Equity.</p> <p>A party is not favored in gaining rights by his own wrong, or its own neglect of duty in a court of equity.</p>

<p>POLICE COURT — JURY.</p> <p>Cox, Smith and Swing, JJ.</p> <p>1. JURISDICTION OF THE POLICE COURT.</p> <p>There is no constitutional objection to the conferring by the legislature upon the police court of a city, jurisdiction to hear and determine the question of the guilt or innocence of a person charged with the commission of an offense against the state outside of the limits of the city.</p> <p>2. Failure of a Statute Which Authorizes a Penalty by Fine Only Upon Conviction, to Provide for a Triad by Jury.</p> <p>A statute which authorizes a penalty by fine only upon a summary conviction under a police regulation, or of an immoral practice prohibited b.y law, although imprisonment as a means of enforcing the payment of the fine is authorized, is not in conflict with either sections 5 or 10 of article I, of the constitution, on the ground that no provision is made for trial by jury in such cases, and therefore is not a denial of constitutional rights.</p> <p>3. Party Entitled to Triad bít Jury — When.</p> <p>It is only where the accused is charged before the police court or a magistrate with an offense, the punishment of which, in whole or in part, is imprison - ment, that he is there entitled to a jury trial, unless the law confers the right upon him in other cases.</p>

Heard on Error to the Common Pleas Court. The plaintiff in error while standing upon a step-ladder repairing the chandeliers in the defendant’s schoolroom was violently thrown to the floor and injured by the pushing of the ladder from under him by the janitor cleaning the room. The present suit is for damages on account of the wrongful act of the janitor.

Heard on Error to the Common Pleas Court. This was in action for recovery of $7,500 from the defendants on an appeal bond executed by John B. Mannix, assignee of J. B. and Edward Purcell. The appeal was from the judgment of the probate court, which was June 2, 1886, rendered against Mannix for $805,827.70.

Heard on Error to the Common Pleas Court. E. H. McCammon Bros., sued Amiss before a magistrate, and garnisheed Fred E- Mentel. The garnishee paid the money into court, and Amiss having claimed homestead exemption, the magistrate turned the money over to him. On appeal to the common pleas, Amiss failed to appear, and judgment for the amount of the claim against him was given against the garnishee.

<p>OIL, AND GAS LEASE.</p> <p>King, Haynes and Parker, JJ.</p> <p>Forfeiture ok ah Oil and Gas Lease.</p> <p>A lessee operating under an oil and gas lease, who has entered upon the premises and expended money under such lease, has a right to know if the lessor is going to insist upon greater developments of the property that have already been going on, and shall have notice of the fact and be given an opportunity to more fully and more speedily develop the property before the lessor is entitled to claim a forfeiture of the lease on the ground that there is not a reasonable operation under the lease.</p>

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

PETITION for Mandamus to require the county auditor to pay over money to certain townships in Sandusky county as provided by the act of the general assembly of the state of Ohio, passed April 27, 1896. 92 O. L., 748.

<p>MANDAMUS — BIDS—SCHOOLS.</p> <p>Hayaes and King, JJ.</p> <p>A Writ of Mandamus wide, be Allowed to Comped a Board of Education to iet a Certain Contract, When.</p> <p>A writ of mandamus will not be allowed to compel a board of education to award a certain contract for furnishing a school house to the relator, who was a bidder for the same, unless he shows that he is the one under the law with whom the board should enter into the contract, and that, regardless of the rights of anybody else. Such relator cannot rely upon the weakness, or informality, or inrregularity of the bids or of the proposed actions of the school board with reference to awarding the contract to anybody else.</p>

<p>EVIDENCE — CHARGE OF COURT — CUSTOM.</p> <p>Haynes, Scribner and King, JJ.</p> <p>1. Admission op Statements op Employees.</p> <p>The statements of mere employees who are charged with specific duties cannot be offered in evidence to bind the defendant, when it appears that such employees had no such control or authority as would make their admissions competent.</p> <p>2. Evidence as to Whether a Gas Weld Produces Gas in Paying Quantities.</p> <p>The qitestion as to whether a well produces gas in paying quantities is a question for the jury to decide, and a witness cannot be called to decide such fact for them. The witness might be called to give the jury evidence of facts which would enable it to arrive at a conclusion as to what a well should produce to justify marketing, but a witness cannot be asked the very question that is involved in the litigation, for if that was so, it would not be necessary to have a jury.</p> <p>3. Eppect op Pleading a Custom in an Action upon an Oil and Gas Lease.</p> <p>In an action upon an oil and gas lease to which the defendant alleges that there prevailed a custom at the time of making this contract,' well known to the parties and people generally, to the effect that a person operating under one of these leases would have the right to use so much of the gas produced from any well as would be necessary to operate that well: Held, that it was not error for the court to charge the jury that the burden was upon the defendant to establish it and he must establish it by a fair preponderance of the evidence and that unless defendant did so establish it the defense was not maintained.</p>

<p>RECEIVERS.</p> <p>Cox, Smith and Swing, JJ.</p> <p>1. Appointment of a Receiver, in an Action at Haw.</p> <p>In an action by plaintiff upon certain notes executed by defendant corporation, for which plaintiff asks judgment and for the appointment of a receiver. Such action is on a note for which he asks judgment and is not a case for the appointment of a receiver before judgment, and therefore, it is error for the court to appoint such receiver in such action.</p> <p>2. Effect of Appointing a Receiver in an Action at Law.</p> <p>To appoint a receiver in an action at law for money, would be in effect granting an attachmeul, which cannot be done.</p>

<p>COSTS.</p> <p>Cherington, Russell and Sibley, JJ.</p> <p>1. Recovery oe Costs in Any Case Defends Upon Statutory Provision.</p> <p>At common law, costs were not recoverable, eo nomine, either in civil actions or criminal prosecutions; hence their recovery in any case depends wholly upon statutory provisions therefor.</p> <p>2. Legal Signification of the Word “Costs.”</p> <p>The word “costs” has long had a legal signification, and in Ohio it covers only those expenditures in a suit which by law are taxable, and to be included in the judgment therein.</p> <p>Fees of Persons Summoned as Jurors in Criminal Cases.</p> <p>Under the law of this state, the fees of persons summoned as jurors in criminal cases, whether used on the trial or discharged, are not taxable as costs against . a party convicted of an offense.</p> <p>4. Payment of Costs Incurred by Change of Venue in Criminal Cases.</p> <p>This term, as used in section 7264 Revised Statutes which provides for a change of venue in criminal trials, and for the reimbursement of the county to which a case is thus sent, for “costs accruing” from such change, must be read as having its usual legal import. Therefore, L. being indicted in M. county for murder, the venue changed to G. county, where the case was tried, and he convicted o manslaughter; Held, that the latter county is not entitled to recover from the former, fees it was compelled to pay to persons summoned as jurors in the case, notwithstanding they were necessarily and properly called for such service._</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>ORDINANCE — ARREST.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Validity of an Ordinance Providing for the Punishment of Lascivious Behavior.</p> <p>An ordinance, passed by a hamlet, providing for the arrest of any person guilty of any loud or lascivious behavior in the streets, alleys and other public places in such hamlet, is valid, and full authority is given the hamlet to pass such ordinance, by the provisions of section 1658, Revised Statutes.</p> <p>2. Liability of an Officer Making Arrest on View.</p> <p>Where a person is arrested on view, without a warrant, for the violation of an ordinance providing for the arrest and punishment of any person committing certain mentioned immoral acts, and trial and conviction followed for the identical offense for which the arrest was made, the officer making such arrest is accorded the same protection from a civil action for damages for the injury resulting from the arrest, by the party arrested, as if the arrest had been made under the authority of a warrant.</p>

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

<p>OIL AND GAS LEASE,</p> <p>Haynes, Scribner and King, JJ.</p> <p>When a Well will not be Considered as a “Gas Well.”</p> <p>There are two classes of property provided for in an oil and gas lease. One is an oil well, and the other is a gas well, both of which cannot usually exist at the same time and be paying property. And, as the general provision of such lease is that if the lessee gets a gas well he is to pay a certain rental, and if he gets an oil well he is to pay so much royalty for each well; therefore where the lessee under such lease did sink a number of wells and in each case found a little gas which was used for running the boilers on the premises, such well in the general sense would not be considered as a “gas well” upon which the lessee would be liable for the payment of any stipulated rentals.</p>

<p>LANDLORD AND TENANT. — NOTICE.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Termination oe a Tenancy from Year to Year.</p> <p>Where a tenant enters into possession of certain premises under a written lease for the term of one year, and after its expiration he holds over from year to year without any other lease having been made : Held, that such tenancy may be terminated by the landlord by serving the tenant with a notice four months before the expiration of the year during which he was then holding the premises. The common law rule requiring a notice of six months, is inapplicable to the termination of a lease like this.</p> <p>2. Charging the Jury as to What Includes a Reasonable Notice to Quit.</p> <p>Under a tenancy from year to year, the serving of a notice upon the tenant four months before the expiration of the year he was then serving, includes a reasonable notice to quit the premises, and it is not error for the court to charge the jury to that effect.</p>

<p>CORPORATIONS.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Duty op Persons Dealing with the Oppicers op a Corporation. •</p> <p>Persons dealing with, officers of a corporation are only bound to know the legal power of the corporation to perform acts, they are not required to know that all the formalities required of the different officers in the performance of their duties have been observed.</p> <p>2. Right op Corporation to Borrow Money and Give Security por the Same.</p> <p>A corporation in Ohio has a right to borrow money to pay its debts and to run its business, and it has a right to give a mortgage upon all the property it possesses to secure that loan.</p> <p>8. Validity op Chattel Mortgage Executed by the President and Secretary op the Corporation.</p> <p>Where a manufacturing corporation borrows money from a bank and executes to the bank its promissory note for the amount borrowed, which note was executed by the president and secretary of such corporation in their official capacity, and later the corporation, by its president and secretary, and under the seal of the corporation, executes to the bank a chattel mortgage upon its property to secure a new note for the amount of its entire indebtedness to the bank: Held, that such mortgage is valid and not given in fraud of creditors, and cannot be set aside by the general creditors but the bank shall be entitled to the money realized on it.</p>

<p>Heard on Error.</p>

<p>APPROPRIATION OF PROPERTY.</p> <p>Scribner, Haynes and ICing, JJ.</p> <p>Not Necessary to Notify the Mortgagees of the Proposed Application</p> <p>When a municipal corporation seeks to appropriate private property under section 2235 Revised Statutes, as amended, (91 O. D., 127), the mortgagees of such property are not necessary parties to be notified of the resolution before the passage of the same.</p>

<p>HUSBAND AND WIFE — HOMESTEAD.</p> <p>King, Haynes and Parker., JJ.</p> <p>Husband Entitled to a Homestead, Though Not Living With His Wife.</p> <p>Where a husband is left with his minor children living with him in the homestead, his wife having left him, he is entitled to a homestead exemption the same as if he were living with his wife and occupying the homestead.</p>

<p>ATTACHMENT — EXEMPTIONS.</p> <p>King, Haynes and Parker, JJ.</p> <p>A Non-resident Defendant In A Bastardv Proceeding May Ceaim His Exemptions.</p> <p>A defendant in a bastardy proceeding whose earnings have been garnisheed, is entitled to his exemptions under the provisions of section 5430, Revised Statutes, even though such defendant be*a non-resident</p>

<p>STREET RAILROADS — NEGLIGENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>Negligence oe Person in Driving Upon and Attempting to Cross the Tracks of a Street Railway.</p> <p>In this case the decedent was guilty of negligence in driving upon and attempting to cross the track of a street railroad under all the circumstances attending the attempted crossing without looking to see if the cars were coming.</p>

<p>SALE — -REPLEVIN —PLEADING—AGENCY—EVIDENCE.</p> <p>Baldwin, Upson and Caldwell, JJ.</p> <p>1. Sufficient Allegation of Ownership.</p> <p>Where goods are sought to be replevied on the ground that they have been fraudulently purchased, and the party replevying them claims to be the general owner, an allegation that, “the defendant wrongfully detains from plaintiffs the following goods and chattels of the plaintiffs,” will be held to be a sufficient allegation of ownership on the part of the plaintiffs.</p> <p>2. Title of the Vendor to Goods Purchased From Him by Fraud.</p> <p>Where goods have been purchased by fraud from a merchant, and the latter undertakes to rescind the sale and replevin the property, the title of such merchant in such goods will be that of a general owner and not that of a special owner.</p> <p>8, Person Obtaining Goods by False Pretenses is not Entitled to Demand Before Replevying Them.</p> <p>A person who obtains goods by false pretenses, does not lawfully come into their possession, and is not entitled to demand for their return before bringing an action in replevin for such goods.</p> <p>4. Return of Notes Before Instituting Proceedings in Replevin, not Necessary.</p> <p>Where a person fraudulently purchased a quantity of goods and executed a note for the same, and afterwards the seller rescinds the sale and replevins the goods: Held, that it is not necessary for the seller to first return the note to the purchaser before bringing the suit in replevin. It is sufficient if the seller has the note in his possession at the commencement of the suit, and brings the same into court, subject to whatever the court might do with it.</p> <p>5. DEMAND Required, When.</p> <p>Demand is only required before replevin proceedings! are commenced, when necessary to terminate tbe defendant’s right of possession or confer the right cf possession upon the plaintiff.</p> <p>6. Possession oe Goods Obtained by Fraud.</p> <p>Where goods have been obtained by fraud, the right of possession never passes to the purchaser at all. If the sale is elected to be rescinded, it is because there was no right on the part of the purchaser in the outset to the possession of such goods.</p> <p>7. Judicial Notice oe the Business oe Mercantile Agencies.</p> <p>Courts will take judicial notice of the nature of the business and the office of mercantile agencies.</p> <p>8. Representations Made to Mercantile agencies.</p> <p>Where a representation is made to a mercantile agency and that same-representation is carried by the agency to the seller, that is substantially a representation made by the buyer to the seller.</p> <p>9. Admission oe Statements Made to a Commercial Agency.</p> <p>The statements made to a commercial agency and also the statements made by the agency to its subscriber, the purchaser, are proper to be introduced in evidence to enable the jury to say whether the agency stated to the purchaser those things which it had been authorized to state to the latter or to anybody else who had any good reason for inquiring.</p> <p>10. Purchase oe Goods by an Insolvennt Person, Effect.</p> <p>When a person buys goods, being insolvent, knowing that he is insolvent, and not intending to pay for those goods, such sale is fraudulent and void.</p> <p>11. Contract eor the Purchase oe Goods on Credit.</p> <p>A contract for the purchase of goods on credit, made with the intent on the part of the purchaser not to pay for them is'fraudulent.</p> <p>12. Purchase oe Goods With no Expectation to Pay, Eeeect.</p> <p>If the purchaser of goods has no reasonable expectation of being able to pay for them, such fact is equivalent to an intention not to pay.</p> <p>13. Admission oe Evidence in an Action to Set Aside a Sale on the Ground oe Fraud.</p> <p>In an action to set aside a sale on the ground of fraud, it is competent to introduce false representations made by the purchaser to other persons, both before and after the sale, for the purpose of showing that there was a fraudulent concealment on the part of the purchaser not to pay for such goods.</p> <p>14. Admissions oe an Agent.</p> <p>The admissions of an agent, if they are to bind his principal, must be made in the execution of the purposes of his agency.</p> <p>15. Admissions oe an Agent in an Action to Replevin Goods From Him.</p> <p>Where goods are replevied from an agent of others, in which action the agent defends in his own name, any admissions of his which bore upon the subject of his right as an individual to hold the goods, can be used as against him, though such admissions were not made in the execution of the purposes of his agency.</p>

<p>PARTNERSHIP — PLEADING—JUDGMENT.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Manner oe Putting in Issue the Genuineness oe a Signature.</p> <p>The genuineness of the signature of a person sued upon a written instrument which purports to he signed by him, may he put in issue by “an affidavit that such instrument of writing was not made, given, subscribed, accepted or endorsed by him.”</p> <p>2. Right oe Partnership to Sue in its Firm Name.</p> <p>Where a partnership sues in its firm name, it not being shown that it was entitled to thus sue and prosecute its action, and it does not affirmatively appear in the record that it was a partnership, formed for the purpose of carrying on a trade or business or holding property in this state, then such action does not come within the purview of section 5011, authorizing such partnership to sue by the usual or ordinary name, which it has assumed, or by which it is known, and therefore such partnership has no legal capacity to sue, and unless the pleading is demurred to on this specific ground; the objection is waived. The absence of affirmative allegations or proof in support of its right to sue in the firm name, where no objection had been interposed to its suing in this way, is not sufficient to justify a judgment against such partnership.</p>

<p>Heard on Appeal from the Hamilton Common Pleas Court.</p>

Tl:is was an action by Oskamp, Nolting & Co. against the Southern Express Co., in the Ross county common pleas, to recover $562.50, the value of diamond ear-rings and pins, which they allege the Express Co. received from them March 35, 1895, and was in possession of at Hopkins-ville, Kentucky, as a common carrier for hire, for the purpose of delivering to one T. M. Jones, in that place, and which at that date, they aver, it wrongfully converted to its own use ‘ ‘by…

<p>LIFE INSURANCE — AGENCY.</p> <p>King, Haynes and Parker, JJ.</p> <p>Recovery oe Premium Paid By Agent Without Request op Applicant.</p> <p>Where an agent of a life insurance company secures the application of a person for insurance and such agent without the request or authority of the applicant forwards to the company the amount of the first annual premium, and the applicant before the policy was issued by the company recalled his application ; but regardless of this, the policy was afterwards delivered to the applicant and an action instituted by the agent in his own name to recover the amount of the premium paid by him: Held, that the agent could not maintain the action, there being nothing in the pleadings or testimony tending to show that the agent stood in a position where he might maintain an action for this premium as the assignee or successor in interest of the insurance company. Such action could only be maintained by the company or one who has received the claim of the company by assignment or otherwise.</p>

<p>FEES OF COUNTY CLERK — WORDS.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Use oe the Words “Cause, Suit, Action and Case.”</p> <p>The words, “cause, suit, action and case,” when used to describe a proceeding whereby litigation is carried on, are used as synonymous terms.</p> <p>2. Construction oe Section 1263, Revised Statutes.</p> <p>Every suit or action, without regard to the number of parties plaintiff or defendant, is a single cause within the meaning of section 1263, Revised Statutes</p> <p>3. Fees oe County Ceerk eor Indexing Pending Suits and Judgments. '</p> <p>No compensation is provided or authorized to be paid by the county for making and continuing indexes to pending suits and judgments, and therefore the clerk making such index is not entitled to recover compensation for such services. ,</p>

<p>Appeal from the Court of Common Pleas of Hancock county.</p>

<p>SCHOOLS — INJUNCTION</p> <p>Pomerene, Adams and Price, JJ.</p> <p>[Judge Price of the Third circuit taking the place of Judge Kibler.]</p> <p>Removal oe a School House by the Board oe Education will be Enjoined, When.</p> <p>The control and management of school interests in the selection of- sites and in the erection and equipment of buildings is committed to the jugdment and discretion of the board of education; but when such board proposes the expenditure of public money to take down a satisfactory school building and rebuild it on another site in a somewhat distant part of the district and such action of the board being uncalled for and no good excuse given for it, is an abuse of their authority and discretion, which a court of equity will enjoin.</p>

<p>EVIDENCE-PARTY WALL — STATUTE OF FRAUDS.</p> <p>Day, Price and Finley, JJ.</p> <p>1. Admission of Oral Statements of an Alleged Donor to Prove a Gift of Real Estate.</p> <p>Oral statements or declarations of an alleged donor are not competent, as against innocent third persons, to prove a gift of real estate, or of an appurtenance to real estate; nor, are such declarations admissible in evidence, where they have a tendency to discredit the title to real estate theretofore conveyed, in due form, by such alleged donor.</p> <p>á. Paroi, Agreement for the Erection of a Party Wall.</p> <p>W, intending to erect a three story, brick 1 uildingonhis lot, entered into aparol agreement with H, the owner of the adjoining lot, for construction of a party wah, upon the terms and conditions : That the wall was to be located and constructed, one-half on each side of the division line between said lots; was to be completed and the entire cost of construction borneby W, and H, was not to be liable for anjr portion of such cost, until he used it in the construction of an adjoining building on his lot, when he was to become liable for the payment of one-half such cost. The wall was completed by W, in I874in accordance with the stipulations of said agreement, and in 1894, H, made use of the wall in the constuction of a building on his adjoining lot: Held,,</p> <p>3. There was such performance of the agreement as relieved, it from the operation of the statute of frauds.</p> <p>4. The stipulations and conditions of the agreement, all together, constituted an entire contract, and the burden of showing that one provision thereof became severed, so as to become independent and personal, rested on the party asserting such claim.</p> <p>5. The wall was and is real estate; so the contract had reference to and was for and concerning an interest in real estate, and its covenants were of such character and import as to run with the land.</p> <p>6. Upon the completion of the wall, the stipulation for Hall to become liable for one-half the cost of it, when used for the purpose of a building on the adjoining lot, unless severed from its context and made independent, became an appurtenance of the said real estate and passed to the assignee thereof.</p>

<p>SPECIFIC PERFORMANCE.</p> <p>Day, Price and Norris, JJ.</p> <p>Specifc Performance of a Contract is not an Absolute Remedy, but is Discretionary With the Court.</p> <p>Specific performance is not an absolute remedy, but is, in all cases discretionary -with the court, and ought to be refused — if the contract lacks the essential element of mutuality; or, if the parties to it, were not standing on an equality and dealing at arm’s-length: or, if the contract was not fair and free, or, if performance would be harsh, oppressive, inequitable or calamitous in its consequences.</p>

<p>HABEAS CORPUS — INSANE.</p> <p>Cox, Smith and Swing, JJ.</p> <p>Question op Insanity to be tried on Petition oe the Writ.</p> <p>When a petition for habeas corpus for an inmate of Longview Asylum alleges that said inmate is now sane, the question of sanity or insanity can not properly be heard on the application for the writ, hut the writ should issue and this question be tried on the return of the writ.</p>

<p>Heard on Error to the Court of Common Pleas.</p>

<p>NEW TRIAL — WILLS—EVIDENCE.</p> <p>Swing and Smith, JJ.</p> <p>1. Counter Afeidavits may be Tided under Section 5308, Revised Statutes</p> <p>Where plaintiff files affidavits in support of a motion for a new trial, based on the ground of newly discovered evidence, it is not error for the court to allow affidavits to be filed on behalf of defendant in answer to those filed by plaintiff. This is provided for by section 5308, Revised Statutes.</p> <p>% Burden of Proof in an Action to Contest a Wide.</p> <p>Under the provisions of our statute, which provides that in an action brought to contest a will, the order of the probate shall be prima facie evidence of the due attestation, execution and validity of the will, where offered by those claiming under it, and does not impose upon them the necessity of giving some reasonable explanation of any unnatural provision that may appear in the will, but the burden of proof is upon the contesting party, to show that such will was the offspring of mental defect, obliquity or perversion.</p>

<p>Error to the Court of Common Pleas, of Hamilton county.</p>

<p>QUO WARRANTO — PLEADING.</p> <p>Swing, Smith, and Cox, JJ.</p> <p>1. Departure in Peeading Defined.</p> <p>A departure in pleading is defined to be the statement of matter in a replication or subsequent pleading, as a cause of action or defense, which is not per-suant to the previous pleading of the same party, and which does not support or fortify it.</p> <p>2. Reply in a Quo Warranto Proceeding.</p> <p>Where the reply in a quo warranto proceeding sets up the particular facts which it is claimed, show that the defendant company is now exercising franchises and privileges which it may once have had, but which it does not now possess, such reply does not constitute a departure from the petition, but supports and fortifies it, and therefore, it is not demurrable.</p> <p>3. Pleading in Quo Warranto Proceedings.</p> <p>When an information in the nature of a quo warranto is filed against a corporation by its corporate name, calling upon it to show by what warrant it claims to be a corporation, and to exercise corporate powers, and the defendant pleads an act of the legislature granting to it the franchises named in the information, it is competent for the relator lay way of replication to aver cause of forfeiture, and topravfor a judgment of dissolution.</p>

<p>Appeal from the Court of Common Pleas of Wayne county.</p>

Edward Besuden held two chattel mortgages, aggregating $30,000, on the assigned plant. A subsequent chattel mortgage for $25,000, upon the same property, was executed to Henry Besuden, he having full knowledge of the prior mortgages. These several mortgages were all duly filed with the county recorder, but were all rendered void by failure to file them in Millcreek township where one of the partners of P. Wilson’s Sons & Company resided.

<p>Appeal from the Court of Common Pleas of Hamilton county.</p>

<p>Error to the Court of Common Pleas of Hancock county.</p>

<p>FIRE INSURANCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Insurance Company Bound, for1 Fuel Amount Named in Poeicy, Although There is Concurrent Insurance.</p> <p>Where there is a total loss of a building or structure, an insurance company is bound under section 8643, Revised Statutes, to pay the full amount of insurance thereon designated in its policy, although there may be other concurrent insurance by other companies thereon ; and in such case a provision in the policy that the question oi the amount of the loss shall be submitted to and determined by appraisers, is of no binding force. The court dissents from the decision of the superior court of Cincinnati, in Cm Coffin Co. v. Ins. Co7 Weekly Law Bulletin, 342, and calls attention to a typographical errot in the revision of 1880, of the statutes, involving a material change from the original law as passed and found in the session laws, and the court disregards said change.</p> <p>2. Totau or Partiai, Loss, Question for Jury.</p> <p>The question whether the loss was total or partial is for the jury to determine-</p> <p>3. Totae Loss Defined — Insurance of Fish House, Additions, Foundations and Dock.</p> <p>A loss may be total, although part of the structure may not be consumed by the fire. Where a fish-house', additions, docks and foundations constitute a single structure, andaré insured asa single structure by a “blanket” policy, and a fire consumes all of the structure but a part of the dock, which is left intact, but is of no use or value as it stands, and it appears that to rebuild the whole structure it would be necessary to tear down and remove such part of the dock remaining, and that the cost of such removal and replacement of such unconsnmed part of the dock would exceed in amount the value of the material's therein that could be saved and used in such rebuilding, and the value of such materials for any use is less than the cost of saving and utilizing the same, the loss is total.</p>

<p>NEGLIGENCE — DAMAGES.</p> <p>Bentley, Scribner and Haynes JJ.</p> <p>Recovery for Injury Caused by Defective Machinery.</p> <p>In an action for damages for an injury alleged to have been caused by a defect in the machinery upon which plaintiff was at work, and the jury upon a full consideration of the.evidence found that the plaintiff had shown that the machinery was defective and that the injury had occurred from the defect existing in the machinery, in such case the plaintiff will be entitled to recover damages for the injury received.</p>

<p>MUNICIPAL CORPORATIONS — APPROPRIATION OF PROPERTY.</p> <p>Scribner, Haynes and King, JJ.</p> <p>1. Enjoining the use oe Property Sought to be Appropriated.</p> <p>Where plaintiff, a municipal corporation, seeks to enjoin a party from cutting trees on certain lands, which plaintiff alleges in its petition it has commenced proceedings in the common pleas court to appropriate under a statute giving it that power, and defendant answered denying the allegations in the petition and also set up a cross-petition asking for a counter injunction enjoining plaintiffs from prosecuting their aforesaid appropriation proceedings: Held, that the defendants could not maintain a cross-petition enjoining the plaintiffs in the court of common pleas from prosecuting another suit in the same court for any reasons or grounds -which might have been set up as a defense to the appropriation proceedings.</p> <p>2. Approphiation of Property by a Municipal Corporation for' Park Purposes.</p> <p>Where a municipal corporation has commenced appropriation proceedings of land for park purposes, which proceedings are instituted under the provisions of section 2232 as amended, ( 91 O. U., 213,) relating to the appropriation of land, in such case: Held, that it is not necessary for the clerk of the corporation to file, before appropriation proceedings are commenced, a certificate showing that the money required to be paid out for the appropriation of the land in question was then in the treasury to the credit of a fund for that purpose.</p>

<p>FEES OF COUNTY AUDITOR.</p> <p>Day, Price and Norris, JJ.</p> <p>1. Compensation of County Auditor for Recording Ditch and Road Proceedings.</p> <p>The claim of a county auditor for compensation for recording ditch and road proceedings, as well as for other services required by law, must be presented for allowance to the county commissioners, and be allowed by them, before he is authorized to draw his warrant for the same on the county treasury.</p> <p>2. Remedy if Claim is Disallowed in Whole or in Part.</p> <p>If the claim is disallowed in whole or in part his only remedy is by appeal to the court of common pleas.</p> <p>3. Action Upon the Auditor’s Official Bond to Rocover Back as Illegal and Excessive, a Part of Such Claim.</p> <p>Where such claims have been allowed by the commissioners and their allowance spread upon the minutes of the board, an action upon the official bond of the auditor, to recover back as illegal and excessive, parts of the bills so allowed, will not lie, so long as the record of such allowance is not impeached for iraud or collusion — such allowance being in the nature of a judicial act.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. It Is not Negligence in a Brakeman to Step upon the Pilot oe a Moving Engine.</p> <p>It is not negligence for a brakeman engaged in the regular discharge of hi3 duty, to step upon the pilot of a moving engine from the outside of the track, it being necessary for such brakeman, in the proper discharge of his duties to get on the pilot of the engine, as that was the proper method of doing, and was the method universally employed, in order to facilitate business in coupling cars by means of the draw bar of the engine.</p> <p>2. Knowledge on the Part op the Brakeman that The Engine was Being Operated by the Engineer Alqne, Effect.</p> <p>The knowledge on the part of the brakeman of the fact that the railroad company permitted its engine to be operated by the engineer alone, while the fireman was at dinner, was not such negligence on the part of the brakeman so as to preclude a recovery for an injury received while the engine was being thus operated.</p> <p>3. Proximate Cause of Injury.</p> <p>Where a railroad company permits its engine to be operated by the engineer alone, while the fireman is at dinner, and it so happens that during this time a brakeman who was engaged in the regular discharge of his duty receives an injury while attempting to step upon the pilot of the engine while in motion, but in some way slipped and fell and was caught under the pilot and nushed along several feet, until the attention of the engineer, then temporarily on the left side of the engine, was attracted to the other side, whereupon he immediately stopped the engine, but after the injury to the brakeman had already been done: Held, that the proximate cause of the injury was the negligence of the company in not furnishing two men to run the engine, and in sending it out with only one man, and therefore the Í»roximate cause of such injury was not the negligence of the engineer, in eaving his side of the engine and going to the opposite side.</p>

<p>PERSONAL INJURIES — NEGLIGENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>Negligence of Party Injured Defeats His Right of Recovery.</p> <p>Where an employee, without any business or need in the prosecution of his work, but solely from his own notion or curiosity, walks upon tracks of a traveling elevator or derrick, and there meets with an accident, such action on his part constitutes sheer carelessness for which he cannot recover there being no negligence on the part of those in charge of such elevator or derrick.</p> <p>Not®. — This case was first tried to a jury, before Judge Pugsley, at the January, 1896, term of common pleas court, and resulted in a disagreement. It was again tried to a jury, before Judge Morris, at the April term, 1896, with a like result. The third trial occurred at the September, 1896, term, before Judge Pratt and a jury, and resulted in a verdict for plaintiff of $2,000. Thereupon error was prosecuted to circuit court with above result.</p> <p>Editor Lega® News.</p>

<p>ASSESSMENTS.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Assessments eor Two Separate Improvements — Eeeect.</p> <p>An assessment for paving a street and for building a sidewalk adjoining the lot is an assessment for two separate improvements, and there being no statute limiting the amount of an assessment, or percentage of an assessment for two different improvements such as the above, therefore, there is no limitation which will render either invalid because the sum of the two shall exceed twenty-five per cent, of the value of the lot.</p> <p>2. The Limitation, as Pound in Section 2271, Applies to the Construction oe Sidewalks.</p> <p>The twenty-five per cent, limitation, as found in section 2271, applies to the construction of sidewalks, and, therefore, where a sidewalk is constructed and an assessment is levied, such assessment shall not exceed twenty-five per cent, of the value of such lot at the time the sidewalk was built.</p>

<p>JUDGMENTS — PLEADINGS—SURETIES.</p> <p>Day, Price and Rohn, JX</p> <p>1. Powee oe Common Pleas Court to OSnoel oe Annul a Judgment Obtained by Fraud.</p> <p>The court of the common pleas, having general equity jurisdiction and powers independent of the provisions of section 5354, Revised Statutes, has power, in an original action for that purpose, to cancel or annul a judgment for fraud practiced by the successful party.</p> <p>2. The Special Proceeding Provided by Section 5354 is Cumulative Merely.</p> <p>The special proceeding provided by section 5354, et seq., is cumulative merely, not exclusive, and not limiting the right, by an original action to impeach a judgment for fraud.</p> <p>3. Pleading in an Action to Set Aside a Judgment Obtained by Fraud.</p> <p>In an action to vacate and set aside a judgment or order of the probate - court, discharging the sureties on an executor’s bond, which cause of action is based on the ground that the judgment or order of discharge was procured by fraud successfully practiced on the court, and the petition definitely states all the facts constituting the fraud, such petition states a good cause of action and is good as against a general demurrer.</p> <p>4. Rights and Liabilities oe a Surety on an Executor’s Bond.</p> <p>The rights and liabilities of a surety on an executor’s or administrator’s bond are fixed and determined by the provisions of the statute. The contract of such surety is made with reference to the provisions of the statute bearing on the subject, and its provisions are as much a part of the contract as if w'ritten into it.</p> <p>6. How a Surety on an Executor’s Bond May Be Released ebom Liability.</p> <p>A surety on an executor’s or administrator’s bond may be released from liability thereon by order of the probate court, on request and good cause appearing to the court, and the court shall order a new bond given, but the surety shall not be released until such new bond is given.</p>

<p>ACCIDENT INSURANCE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Notice to Agent Not Notice to Company, When.</p> <p>Where an agent of an insurance' company accidentally hears of the death of the insured, such knowledge on the part of the agent is not notice to the company such as is required hy the policy.</p> <p>2. Failure oe Insured to Notify the Beneficiaries of the Existence of the Policy.</p> <p>Where a person procures a policy of insurance on his life, and fails to make such fact known to the beneficiaries, so that immediate notice of his death could he given, such negligence on the part of the insured cannot he imputed to the administrator, and the company will not he relieved from liability on such policy in a suit brought by a representative of the deceased.</p> <p>3. Question of Notice to be Determined by the Jury.</p> <p>What is a sufficient compliance with the conditions of a policy of accidental insurance requiring immediate notice of the death of the insured is a question of fact to he determined hy the jury.</p> <p>4. Existence of Policy not Known by the Beneficiary, When—</p> <p>Where the, beneficiaries under a policy of accident insurance do not know of the existence of such policy until some time after the death of the insured, when it was accidentally discovered and the company was then duly notified of the death of insured: Held, that the condition of the policy requiring immediate' notice to be given had been fully complied with.</p> <p>6. Establishing the Death of the Insured.</p> <p>In establishing the death of the insured' the conditión as to proof is ‘complied with if affidavits were filed showing in general the manner of the death. It is not necessary to enter into every detail.</p>

<p>CRIMINAL LAW.</p> <p>Swing, Cox and Smith, JJ.</p> <p>1. Effect of Two Judges Presiding During the Trial of a Criminal Case in the Common Pleas Court.</p> <p>The fact that on the trial of a criminal case in the court and room presided over by a judge of the court of common pleas, who had been assigned by the judges of the court of common pleas in joint session to hold court in said room, said judge invites another judge of the same court to sit with him upon the bench in the trial of such case, and he does so, and they together hear and agree upon the decision which should be rendered, and it is entered in due form upon the journal of the proper court, does not make such action erroneous or prejudicial to the defendant, and particularly so when no objection whatever was made to this until the filing of the motion for a new trial.</p> <p>2. Duty of the Court in the Trial of a Case. Involving the Life or Liberty of a Person.</p> <p>In a case involving the life or liberty of a person, courts should be astute and vigilant in seeing that the accused has a fair and impartial trial. And it is better to err in favor of a defendant than against him in this regard. But it is the further duty of courts to see that a speedy trial also be had, in so far as may consist with the rights of the defendant, and a large discretion as to this is necessarily conferred upon the trial court, and its exercise should be upheld and maintained unless manifestly abused.</p> <p>3. Question of Deliberation and Premeditation.</p> <p>Where a person has purposely, maliciously and with premeditation committed one great crime against the person of another, and afterwards purposely, maliciously and with premeditation takes the life of such person with the hope thereby of covering up his crime and escaping punishment: Held, that such person will not be deemed unable to deliberate on his act, for the reason that he is laboring under the excitement naturally brought about by his own unprovoked conduet.</p>

<p>INJUNCTION BOND — DAMAGES.</p> <p>Smith, Swing and Cox, JJ.1</p> <p>jjAUTT.TTY OF OBLIGOBS ON AN INJUNCTION BOND.</p> <p>Where, in a proceeding in the common pleas court, in which an injunction is asked for, and afterwards an appeal is taken to the circuit court, the judgment of the common pleas court making the injunction perpetual does not put an end to the liability of the obligors on the injunction bond, but, on the contrary, when it was in effect found by the appellate court that the injunction ought not to have been granted, though there was no express finding of the court that it ought not to have been granted, a right of action arose on the bond against the obligors to recover the damages sustained by the other party by such injunction.</p>

<p>Error to the Court of Common Pleas of Scioto county.</p>

<p>LIBEL — SCHOOLS.</p> <p>Smith, Swing and Cox, JJ.</p> <p>A Communication made to the Appointing Power Concerning aw Applicant for Position as Teacher is Privileged.</p> <p>A citizen interested in the public welfare, not only has the right, but it is his duty as a citizen to communicate to the appointing power whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and, when such communications are made in good faith, the citizen is protected, even though the statements contained in the communication be not true.</p>

<p>MUNICIPAL CORPORATIONS — QUO WARRANTO — LIMITATIONS.</p> <p>Hale, Marvin and Caldwell, JJ.</p> <p>1. Action in Quo Warranto Against a Municipiai Corporation.</p> <p>II an action cannot he brought against a municipal corporation to oust It from the exercise of a franchise, which it is exercising under an alleged unconstitutional act, then such action cannot be brought against the officers appointed or elected to perform the duties imposed by such act.</p> <p>2. ActioN to Oust the Members of the Sinking Fund Commissioners of the City or Cleveland.</p> <p>An action to oust the members of the sinking fund commissioners of the city of Cleveland from the offices which they are now filling, which action is based on the ground of the alleged uneonstitutionality of the act of 1862, creating such office, cannot be maintained where the powers and franchises of such office have been exercised for over a period of twenty years since the right of action accrued.</p> <p>#. Validity of the Official Acts of the Sinking Fund Commissioners.</p> <p>If the sinking fund commissioners of the city of Cleveland hold their office by a title unassailable, then their official acts cannot be challenged in a proceeding in quo warranto to oust them from office, and therefore the appointment of the members of the board of park commissioners by such board was an official act which such board was authorized to perform, and the appointment will be held a valid one.</p> <p>4. Collateral Attack upon the Validity of a Statute.</p> <p>An action to oust the members of the park board because of the unconstitutionality of the statute creating the appointing board (the sinking fund commissioners) is a collateral attack upon the validity of such statute, and cannot be made in this proceeding.</p> <p>6. Construction of Section 6789, Revised Statutes.</p> <p>The limitation, as provided for in section 6789, Revised Statutes, applies to an action brought by the state, where the purpose and object of such action is simply to oust a corporation from the exercise of a franchise or power conferred upon it by an act of the legislature.</p> <p>6. Jurisdiction to Oust a Municipal Corporation.</p> <p>Jurisdiction in quo warranto exists to oust a municipal corporation, assuming to exercise a franchise not conferred on it by law, providing such proceeding is brought against the corporation within the time limited. After the time limited, it cannot be brought.</p> <p>7. Officer Be Facto.</p> <p>A person holding an office, the existence of which is supported by no color of law, is not an officer de faoto, but one holding an office created, or attempted to be created, by an act unconstitutional may be an officer de facto.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Hale, Marvin and Caldwell, JJ.</p> <p>1. Passage of a Pbeliminarv Resolution.</p> <p>A preliminary resolution, passed by the council of a municipal corporation, declaring it necessary to issue bonds lor the erection and purchase of waterworks for the purpose of supplying water to the inhabitants of such municipality, is not a resolution of a general or permanent nature, and, therefore, it is not necessary that such resolution he read at three separate meetings of the council before its final adoption.</p> <p>2. INDEFINITENESS OF THE RESOLUTION AS TO THE AMOUNT OF BONDS TO BE ISSUE» —Effect.</p> <p>Such resolution is not valid on the ground that it does not definitely state the amount of the bonds to he issued, but merely provides for the issue of bonds not to exceed ?250,000.</p> <p>X. The Resolution Does Not State a Double Purpose.</p> <p>A preliminary resolution, passed by the council of a municipal corporation, providing for the erection and purchase of waterworks, the city having a plant already in existence, does not state a double purpose for which the bonds of the municipality were to he issued, the sole object being to supply the city with water.</p> <p>4. Uniting Two ob Mob® Things in a Peoposed Improvement.</p> <p>The council of a municipal corporation may unite in a proposed improvement two or more things so authorized by law, providing they are so intimately connected as in fact to form but one improvement.</p> <p>6. Variance in the Reading of the Resolution, Proclamation and Ordinance — Effect.</p> <p>"Where the preliminary resolution, passed by the council of a municipal corporation, providing for the erection of waterworks, was “To purchase and construct,” and the proclamation issued by the mayor, in submitting the proposition to the vote of the people, designating the purpose for which the bonds were to be issued, was “For the erection of waterworks,” and the ordinance, as passed by the council after the vote of the people, was “For the erection or construction of waterworks: Held, that the variance in the reading of the resolution, proclamation of the mayor and the ordinance as passed by the council does not invalidate the proceedings.</p>

<p>BILLS AND NOTES.</p> <p>Hale, Marvin and Caldwell, JJ.</p> <p>Liability or a Person Who Signs His Name With the Word “Agent” Adds®.</p> <p>Where a person draws a number of bills and endorses a number of notes, signing his own name thereto, with the word “agent” added, such person is personally liable upon them, and cannot be heard to explain that he was the agent of his wife and known by the bank, which discounted such bills and notes, to be such agent when he drew the bills and endorsed the notes.</p>

<p>ERROR to the Court of Common Pleas of Hamilton county.</p>

<p>VENDOR AND PURCHASER.</p> <p>Hayes, Scribner and King, JJ.</p> <p>AGJUCBMENT TO SHARE THE NET PROFITS REALIZED PBOM A SAXE.</p> <p>A purchaser, who purchases certain real estate without any knowledge on his part regarding an agreement between two parties, the plaintiffs, whereby they were each to receive one-half of the net profits realized from the sale of such property, such purchaser cannot be held liable by either party for his share of the profits, as provided for in their written agreement.</p>

<p>AMENDMENTS.</p> <p>Haynes, Scribner and King, ,TJ.</p> <p>A Petition on Appeal mat be Amended.</p> <p>In an action brought in the court of common pleas to subject defendant’s interest in certain real estate, to satisfy a judgment recovered against him, bis interest in such real estate being described as a dower interest; on appeal to the circuit court, the plaintiff obtained leave to file an amended petition, denominated a second amended petition, in which the interest of defendant is described as a trust estate, so created with the intent to defraud his creditors: Held, that under the decisions of the supreme court of this state and the principles laid down in them, such amendment is admissible, and, therefore, a motion to strike out such amendment will be denied or overruled.</p>

<p>ERROR to the Court of Common Ple§,s of Seneca county.</p>

<p>AGENCY.</p> <p>Haynes, Scribner and King, JJ.</p> <p>CONSTRUCTION 03? SECTION 3644, REVISED STATUTES.</p> <p>Where an insurance agent makes application to another insurance agent, to procure insurance in his compnay: Meld, that under a true construction of sec. 3644, Rev. Stat. both agents are to be considered as the agents of the company.</p>

<p>Heard on Error to a judgment of the Common Pleas Court finding the plaintiff in error guilty of assault with intent to rape.</p>

<p>Error to tbe Court of Common Pleas of Butler county.</p>

<p>ERROR to the Court of Common Pleas of Hancock county..</p>

<p>IMPRISONMENT FOR NON-PAYMENT OF FINES.</p> <p>Day, Price and. Norris, JJ.</p> <p>1. The Sheriff is the Executive Officer oe the Court.</p> <p>Tke sheriff is the executive officer of the court, and when the court pronounces sentence upon a prisoner, the sheriff is his rightful custodian, . and when he obtains custody of such prisoner, in whatever manner, his authority to restrain him evidenced by the sentence of the court is complete.</p> <p>2. Power oe Auditor to Discharge from Imprisonment.</p> <p>When it is made clearly to appear to the county auditor that a fine or amercement cannot be collected by imprisonment, he may discharge from imprisonment any person who is confined in the county jail for non-payment of such fine or amercement.</p> <p>3. Construction of Section 1028, Rev. Stat.</p> <p>Section 1028, which empowers the county auditor to discharge certain prisoners confined in the county jail is not mandatory upon him.</p> <p>4. Effect, Where the Sentence of the Court is Erroneous in Part.</p> <p>Where the sentence of a court is erroneous in part, error may be prosecuted to to the part which is erroneous, and this to the exclusion of relief by Habeas corpus. The prosecution of error contemplates the correction of that part of a proceeding which is wrongful and illegal.</p> <p>6. THE' Sentence of the Court Must be Complete.</p> <p>A sentence in a criminal case must be so complete as that the offender, while suffering the penalty of the law, may still have preserved to him any contemplated rights or conditions. It must be so complete as need no construction of a court to ascertain its import. It must be so complete as that he may not have to look between the lines for its meaning; and it cannot be supplemented by a non-judicial or ministerial officer.</p>

<p>ERROR to tbe Common Pleas Court of Butler county.</p> <p>The plaintiff-in-error, Mary M. Moon, being the plaintiff in the eourt below, resided on Garfield avenue in the city of Middletown. The said city in November 1894, through certain contractors, was putting in cement sidewalks on said street, making the necessary excavations therefor.</p> <p>Late in the afternoon of a dark November day (November 23), an excavation for said purpose was made in the sidewalk immediately in front of the premises of plaintiff.</p> <p>After nightfall of that day, the plaintiff in attempting to pass from her premises to the street fell into the excavation and was severely injured.</p> <p>She brought suit against the city on the ground of negligence, claiming that said excavation was left with no light to indicate its location and unguarded by any railing or suitable protection, and asked for damages in the sum of $5,000.00.</p> <p>The city answered, denying the injuries, averring that the contractor having charge of the work had placed lights on the street, and alleging negligence on the part of the plaintiff.</p> <p>A trial was had, resulting in a verdict for the defendant.</p>

<p>STORAGE OF DANGEROUS SUBSTANCES.</p> <p>Day, Price and Norris, JJ.</p> <p>A Person Storing Dangerous Substances on His Premises, Stores Them at His Peril.</p> <p>One who takes and keeps upon his own premises, material or substance which in itself is dangerous and liable to explode and do injury to person or property on adjoining premises, or on premises in the neighborhood or vicinity, and it does explode, such person is liable in damages for the injury directly caused thereon by such explosion without proof of negligence in storing or caring for such material or substance.</p>

<p>ELECTIONS.</p> <p>King, Haynes and Parker, JJ.</p> <p>Proceeding to Deprive as Officer of ms Office for Violating the Provisions of the Act Passed April 8, 1S96.</p> <p>Under the act entitled, “An act to prevent corrupt practices at election,” 92 O'. D., 192, an elector is not entitled to file the complaint and application forming the basis of a proceeding to deprive an officer of his office because of violations of the provisions of said act, unless such elector shall have been entitled to vote for or against such officer at the election at which he was elected.</p>

<p>MERGER — JUDGMENT.</p> <p>Swing, Cox and Smith, JJ.</p> <p>No Merger, When.</p> <p>No merger where judgment is taken against one of the two parties on a joint claim, the other being returned “not found,” hut being afterwards brought in on an alias summons.</p>

Heard on Error'to the Common Pleas Court of Hamilton county. The plaintiff in error was convicted of murder in the first degree in the killing of his wife, and is under sentence of electrocution.

<p>DITCHES AND DRAINAGE — EVIDENCE—JUDGMENT.</p> <p>King, Haynes and Price, JJ.</p> <p>(Judge Price of the Third Circuit, taking the place of Judge Parker.)</p> <p>1. Probate Cotjet has Power to Modify the Report of a Committee sent out to View the Outlet of a Proposed Ditch.</p> <p>Where the probate judge appoints a committee of freeholders to assess the amount which the upper county is obliged to pay the lower county for the proposed outlet of a ditch, and such committee makes a report to the probate court: Held, that the probate judge, under the provisions of the statute, has power to modify such report, either by increasing or diminishing the amount stipulated in it; or to set aside the report and send out a new committee to report.</p> <p>2. Hypothetical Questions.</p> <p>A hypothetical, question must be based upon facts assumed to have been proved in the case on trial.</p> <p>S. Rule Applicable in Setting Aside a Judgment that is not Supported by the Evidence.</p> <p>The rule applicable in a case in which it is sought to set aside the judgment on the ground that it is not supported by evidence, is whether there is satisfactory evidence upon which the finding of the court may be sustained. If there is not, it must be reversed or reduced, but if there is, it must be sustained.</p>

<p>ERROR to tbe court of Common pleas of Lucas county.</p>

<p>DEPOSITIONS.</p> <p>King, Haynes and Parker, JJ.</p> <p>Right to take Deposition of Opposite Paety Denied, When.</p> <p>A party to a case cannot compel the opposite party to give bis deposition wben be is in good bealtb and expects to be present at tbe trial, and where the deposition is evidently taken for the purpose of obtaining information which will enable such party to prepare his case for trial, with no idea of using the testimony itself, unless it, or some part of it, shall be found favorable to his notions of what the truth is.</p>

<p>DIVORCE — INJUNCTION.</p> <p>King, Haynes and Parker, JJ.</p> <p>NO INJUNCTION NECESSARY OX) HOLD PROPERTY IN AN APPLICATION FOR DlVOKCH and Alimony.</p> <p>No injunction is necessary to bold property in an application for divorce and alimony, where the property is described and the owner of the property and the person having an interest in it are made parties; that they cannot thereafter, transfer it, although there is no injunction against such transfer. ,,. . ;i</p>

<p>APPEALS — PLEADINGS—JUDGMENT.</p> <p>1. Bight of Defendant where Plaintiff has failed to Pile his Petition in an Appeal Case.</p> <p>Where an appeal has been perfected, and the court has acquired jurisdiction of the parties, but no pleadings having been filed within the rule days for filing pleadings in such cases, the defendant may either move to dismiss the appeal or file his answer, asking- for a judgment upon the answer, for failure of the plaintiff to file his petition.</p> <p>2. Power of Court to Extend the Time for Fhjng Pleadings.</p> <p>The power which rests in the court, given by the statute granting it the power to extend the time for filing any pleading, or to give leave at any time to file a pleading, is a power given to the court which may be exercised at any time and in any manner it pleases, unless objection be made at the time or subsequently and exception taken to that order or rule.</p> <p>3. Validity of Judgment Rendered on a Pleading Piled out of Rule.</p> <p>The court having power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without making any order on that subject, and when it shall have done so, by rendering judgment; that judgment will be conclusive, unless some method is taken in the court to set it aside.</p>

<p>BILLS OF EXCEPTIONS — INJUNCTION—DAMAGES.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Bill of Exceptions must be in Hands op Opposite Counsel and Judge, When.</p> <p>A bill oí exceptions must be in the hands of opposite counsel on or before the fortieth day after the overruling of the motion for a new trial and must be in the hands of the judge for his allowance on or before the forty-fifth day after the overruling of the motion for a new trial.</p> <p>2. Taking a Bill op Exceptions in a Matter Consideked Alone bt the Judge.</p> <p>There is no provision for taking a bill of exceptions to a matter considered alone by the judge, therefore, it is impossible to take a bill of exceptions to the consideration by thie judge of the question as to whether he shall sign another bill of exceptions, consisting of facts occurring in a trial in court.</p> <p>8. Action upon a Bond Given in an Injunction Proceeding.</p> <p>In an action founded on a bond given in an injunction proceeding, in which the petition shows upon its face that there was an original bond, the action being brought on an additional bond that had been allowed by the court: Held, that if there had been any defense made in showing liability of others not made parties, it would have been necessary to at least join the makers of the original bond with those in the additional bond; but as that defense was not made, and nothing appears. to show that the makers of one are not the makers of the other, that objection is not good.</p> <p>4. No Damages fob Being Enjoined fkom Fishing in Waters op Lake Erie.</p> <p>Where a party has been enjoined from fishing in a certain place in the waters of Lake Erie, and he afterwards brings an action for damages for being thus enjoined: Held, that such party is not entitled to recover as damages the value of the use of .his property provided for the purposes of such fishing.</p>

<p>STREET ASSESSMENTS.</p> <p>Cox, Smith and Swing, JJ.</p> <p>1. Lessee oe Pbopebty Signing Petition fob Stbeet Impkovement, Effect.</p> <p>Under see. 2272, Rev. Stat. a lessee of property is not the owner of such property for the purpose of signing a petition for the improvement of certain streets, and making the assessments binding upon the interest of the owners of such lots, and therefore such lessee can only represent his own interest therein, and not that of his lessor, and such lessor is not bound by the act of the lessee in signing such petition.</p> <p>2. Lessee is not the Agent of the Lbssob.</p> <p>The lessee is not the agent of the lessor for the purpose of signing a pe-' tition asking for the improvement of certain streets.</p>

<p>Appeal from the Court of Common Pleas of Allen county.</p>

<p>Error to tbe Court of Common Fleas of Lucas county.</p>

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

<p>OBSTRUCTIONS IN STREETS.</p> <p>King, Haynes and Parker, JJ.</p> <p>Liability of an Abuttins Lot Owner for Injuries Received from Obstructions Heins Placed in the Street in Front of His Lot.</p> <p>"Wtiere the owner of a city lot abutting upon a street applies for and obtains from tbe city permission to use a part of the street at the front of his lot for the deposit of material to be used in the construction of a building on such Jot, and a condition of such permission required that lights or guards should be placed about any obstruction in such street caused by the deposit therein of such building material; and where, in pursuance of such permission, building materials are so placed in said street as to cause a partial obstruction thereof, and the same are not properly lighted or guarded, so that a traveler on such street is injured: Held, that in an action by the person so injured against the owner of said lot the latter cannot escape liability for such acts by showing that such materials were so deposited by a person to whom he had let the work of erecting said building, and over whose operations he had reserved no control.</p>

<p>RAILROADS — NUISANCE—DAMAGES.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Recovery or Damages Caused by Sparks, Cinders, etc., by a Railroad Operating in a Public Street.</p> <p>The owner of a grist mill and appurtenances, situate upon village lots abutting upon a street, may recover from a railroad company which occupies a part of such street with its tracks, damages resulting to such property from a diminution of the value thereof caused by sparks, cinders, smoke or noise produced by the operation of locomotives while upon such track, and within the limits of the street, if such place is near to his property; though it may not abut upon that part of the street so occupied by such track.</p> <p>2. Construction op Sec. 3283, Rev. Stat.</p> <p>A point from three hundred to three hundred and fifty feet distant therefrom, may be “near to” such property, within the meaning of sec. 3283, Rev. Stat.</p> <p>3. Owner oe Abutting Property Cannot Recover Damages prom a Railroad fob Partially Obstructing a Public Street.</p> <p>The owner of property so situated, cannot recover damages on account of any obstruction to the street caused by such tracks or by running cars and engines over the same, which does not cause him injury different in character from that suffered by the general public; although his injury therefrom may be greater in degree; and the rule of the common law as to such injuries is not abrogated or modified by said sec. 3283.</p>

<p>ERROR to Court of Common Pleas of Clinton county.</p>

<p>ERROR to tbe Circuit Court of Cuyahoga county.</p>

<p>ERROR to the Court of Common Pleas of Auglaize county.</p>

<p>JURY — EVIDENCE—CONSPIRACY—TRIAL.</p> <p>Cox, Smith and Swing, JJ.</p> <p>1. EXAMINATION OF A JUROR ON HIS Voir Dire AS TO HlS COMPETENCY.</p> <p>If a person called as a juror has formed or expressed an opinion as to the guilt or innocence of the accused, he is incompetent to sit on such trial, unless the other requirements of the statute are complied with, and, if on examination by the court, as to the grounds of his opinion, he, the juror, is able to say that he believes he will be able to render an impartial verdict, notwithstanding his present opinion, and convinces the court of that fact, he may be competent.</p> <p>S. Testimony of a Conversation had in the Absence of the Accused is Incompetent.</p> <p>Testimony as to a conversation by telephone between the prosecuting witness, and his agent, in the absence of the accused, and without his knowledge, is wholly incompetent.</p> <p>3. The Order oe Testimony Rests Largely in the Discretion op the Trial-Court.</p> <p>Tlie order in which, testimony shall be introduced, must of necessity be largely in the discretion of the trial court. But this should be a legal and proper discretion, and such course should be pursued as should not prejudice the rights of the parties.</p> <p>4. Admission op Evidence op tiie Guilt op Other Parties.</p> <p>It would be most unjust to the rights of a defendant on trial for a grave offense, to allow evidence of the guilt of other parties to he shown without some evidence to connect him with such parties, or make him responsible in some way for their conduct, and great care should be exercised by the-court in this regard.</p> <p>5. Evidence op the Acts or Declarations op Persons Alleged to be Co-conspirators with Dependant.</p> <p>Evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can not properly be received 'against him, until the judge is satisfied that apart from them, there are prima facie grounds for believing in the existence of the conspiracy.</p>

<p>SURETIES.</p> <p>King, Haynes and Parker, JJ.</p> <p>Indemnity Received by a Co-surety is to be shared Equably.</p> <p>Wliere N. signed a promissory note as surety, with the understanding that the principal should obtain another suretty thereon, and R., with knowledge that N- signed with such understanding, afterward signed said note as surety, but before signing, as a condition precedent thereto, and without the knowledge of N., required the principal to give him indemnity: Held, First — That N. and R. were co-sureties. Second — That N. was entitled as against R., to share such indemnity equally with him.</p>

<p>EeROb to the Court of Common Pleas of Lucas county.</p>

<p>AMENDMENT —MASTER AND SERVANT — PLEADING — EVIDENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Amendment or Petition aeteb the Evidence has been Submitted to the Joey.</p> <p>Where the defendant first enters upon the examination of a witness as to facts not involved in the issues made by the pleadings, and the case is submitted to the jury without any question or objection being made or raised as to the admissibility of such testimony, the court may under sec. 5114, Rev. Stat., after verdict and judgment, in furtherance of justice, permit an amendment of the petition by averment of such facts, where such amendment does not change substantially the plaintiff’s claim but dees conform the petition to the facts proved.</p> <p>t. Necessary Averment in a Petition in an Action by a Servant for Injuries Received while Operating Defective Machinery.</p> <p>In an action brought by a servant against his master on account of injuries received while operating machinery for the master, where the petition contains averment that the servant upon discovering a defect in the machine making it dangerous for him to operate it as directed, informed the foreman of the fact; that the foreman subsequently informed the servant that he had remedied the defect and directed the servant to resume work with and upon the machine, which the servant accordingly did, believing and relying upon this assurance of the foreman that the defect had not been remedied, and in consequence thereof the servant was injured; and it appearing that the defect was not obvious or apparent to one working at the machine and that the plaintiff was without fault in the premises. Held, that a further averment or proof that the plaintiff ' did not have equal means of knowing of said defect with the defendant is not required.</p> <p>S. Right of Plaintiff on Rebuttal to Show that the Machine was Defective.</p> <p>The defendant having introduced testimony tending to show that the machine had not been repaired since the injury to plaintiff, and the jury having'viewed the machine and it appearing that it was not then defective, the plaintiff had a right on rebuttal to show that the machine was de- ‘ fective, as alleged, at a time subsequent to the injury.</p>

<p>DEEDS OF ASSIGNMENT.</p> <p>King, Haynes and Parker, JJ.</p> <p>1. Such Deed Takes Effect from Time of Delivery to the Probate Court.</p> <p>A deed of assignment conveying lands of the assignor situate in another county of the state than that of his residence takes effect as to all persons from the time of its delivery to the probate court of the county in which the assignor resided at the time of its execution.</p> <p>2. Need hot be Recorded in County where the Land is Situate.</p> <p>It is not necessary that it be also filed for record with the recorder of the county where the land is situate.</p>

<p>OIL AND GAS LEASE.</p> <p>King, Haynes and Parker, JJ.</p> <p>¿Onstetjction or An On, and Gas Lease.</p> <p>A lease of land for tbe production of oil and gas, providing that the lessee might exercise certain rights and privileges thereon for three years, or as long as oil or gas should be developed therefrom in paying quantities, and stipulating that as compensation therefor the lessee should deliver to the lessor a certain share of the oil produced, and that “should gas be found and developed upon said premises producing 100 pounds pressure to the square inch in thirty seconds, said first party (lessor) is to have the right to consume for lighting and heating his dwelling such amount as may be necessary therefor, the said company (lessee) to furnish such an amount of one-inch pipe not exceeding 500 feet as may be necessary to conduct the gas from the well to the dwelling, and the additional sum of ?100 per annum for each gas well exceeding 200 pounds pressure to the square inch in thirty seconds, when and as soon as the same is marketed and utilized,” and providing for no other compensation for the exercise of such rights and privileges by the lessor: Held, that the lessee having been permitted to exercise such rights and privileges for the said term of three years, and for three additional years thereafter, and having drilled but one well, which produced gas only, but not in sufficient quantities to at any time create a pressure of 200 pounds to the square inch in thirty seconds, and having furnished the pipe as required by the lease to convey gas to the lessee’s residence, and permitted the use of such gas for the lighting and heating of such residence, is not bound to pay any rental, compensation, or damages for such occupation or use of said premises for any of said time, either before or after the expiration of said three jeers’ teen, - * v r rnni</p>

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

<p>SALE — TRUSTS.</p> <p>King, Haynes and Parker, JJ.</p> <p>Upon the Pacts in this Case a Resulting Trust was Created in Pavor of the Vendor of Goods.</p> <p>Upon a sale of a stock of merchandise by S. to E. on credit, possession thereof was delivered to E., with authority to sell therefrom at retail, but it was agreed that he should not allow the stock to become reduced, but should keep it intact by supplying goods in the stead of those retailed, and should not sell or transfer the stock of goods until the same had been paid for on payment secured to this satisfaction of S., and afterward, and when the value of the stock was not greater than the amount of the indebtedness therefor, it was traded by E. for land, the title of which was taken to E., with the consent of S., but upon the promise of E., that upon the consummation of such trade he would convey said land to S., which he subsequently refused to do: Held, that E. held the title to the land in trust for S., and that the conveyance thereof agreed upon might be required by a court of equity.</p>

<p>CONTRIBUTORY NEGLIGENCE.</p> <p>Smith, Swing and Cox, JJ.</p> <p>Railway Company not Liable foe Injuey to Person on Track Without Looking.</p> <p>Suddenly stepping upon the railway track, or walking thereon unnecessarily, and without looking to see if a train is approaching, constitutes contributory negligence, and the railway company is not liable, even though it was negligent or not, having a light upon the tender of a backing engine.</p>

<p>Appeal from the Court of Common Pleas of Hamilton county.</p>

<p>MotioN to strike petition in error from the files.</p>

<p>NEXT OF KIN.</p> <p>Cox, Smith, and Swing, JJ.</p> <p>Parents abe Entitled to make Application bob Removal or Childben’s Bodies FROM CEMETEBY IP OTHEB CHILDREN ABE MINORS.</p> <p>Brothers and sisters are the next of kin, under the act of May, 1894, 91 O. L. 231, providing for the removal of bodies from cemeteries, hut where they are minors, the parents are next of kin and entitled to make the application.</p>

<p>BLACKMAIL.</p> <p>Cox, Smith and Swing, JJ.</p> <p>1. Chime of Blackmail. Two wats of Committing under Sec. 6830, Rev. Stat.</p> <p>Under sec. 6830, Rev. Stat., there are two ways by which the crime of blackmail may be committed. One is to accuse of a crime, punishable by law, or of immoral conduct, etc., with intent to extort or gain chattel, money or valuable security. The other, to knowingly send or deliver any letter or writing, or a matter of printed communication with or without a name, or with any letter, mark or designation, accusing or threatening to accuse of any crime punishable by law, etc., or to do injury to the person or property of any pex-son, with the intent above stated.</p> <p>2. Affidavit filed with Mayor charging Murder is Sufficient.</p> <p>An affidavit, filed with a mayor, charging a person with having committed the crime of murder, with the intent thereby to secure chattel, money or valuable security, is sufficient to sustain an indictment under sec. 6830 Rev. Stat.</p> <p>5. Indictment need not Allege Issue or Service of Warrant.</p> <p>It is not necessary, in an indictment for blackmail, based on the filing of an affidavit with the mayor, accusing a person of committing a crime, to allege or set forth the warrant or its service.</p> <p>4. Proof that Warrant was Communicated to Accused does not Justify Conviction.</p> <p>Proof that the warrant issued on an affidavit, charging a person with the crime of murder, was communicated to accused, or sent or delivered with the purpose of having it communicated to accused, under circumstances which rendered it probable that the same would be so communicated, with intent alleged to the indictment, will not justify conviction of the crime of blackmail and it is -error in the court to charge that this proof, upon failure to prove the filing of the affidavit, will warrant conviction.</p> <p>6. Demurrer to Indictment. Waiver of Duplicity in Contents.</p> <p>A demurrer to an indictment for blackmail is a waiver of such an objection as that it charged different, distinct and repugnant crimes, and was bad for duplicity. Such irregularity can only be reached by motion to quash.</p> <p>6. Error in Overruling Motion to Quash, Available only to Party making it.</p> <p>An error in overruling a motion to quash an indictment for blackmail, filed by one of several defendants, jointly indicted, is not available to other defendants. They must join in the motion or file one on their own behalf</p>