Volume 71 — Ohio State Reports, New Series

<p>“Classified list” — In section 149, Revised Statutes — Municipal code — Means register prescribed by section 164, Revised Statutes — Municipal law — Interpretation of.</p> <p>By the words “classified list” in section 149 of the municipal code of 1902 (96 O. L., 20), is meant the register prescribed by section 164.</p>

<p>Duplicate of unpaid personal property tax — Section 2855, Revised Statutes — What taxes auditor is required to enter as unpaid —Peremptory writ will not be awarded — To compel auditor to bring up and enter — Delinquent taxes omitted by predecessors —Duties of county treasurer and auditor.</p> <p>In malting" up annually, the delinquent tax duplicate required by section 2855, Revised Statutes, the county auditor is required to enter on such duplicate only the taxes on personal property remaining unpaid, as shown by the treasurer’s books and the delinquent record as returned by him to the auditor at the time of his next preceding semi-annual settlement in August. And where in making up such delinquent duplicates, former auditors, in previous years, have omitted to carry forward and enter thereon from, year to year, the unpaid personal taxes upon a former delinquent duplicate or duplicates, so that such former delinquent taxes are not shown by the treasurer’s books or the delinquent record returned by him to the auditor at the time of such semi-annual August settlement, a peremptory writ of mandamus will not be awarded to compel the present auditor to bring up and enter upon the current delinquent duplicate, such delinquent personal taxes so omitted by his predecessors, the right to require him so to do not being clear, and the duty not being one specifically enjoined upon him by law.</p>

<p><One tried and convicted before mayor — Por violation of ordinance —Applies under section 1152, Revised Statutes, to common pleas court-r-To file petition in error — Refusal to grant leave to so file, not reviewable in circuit court, when — Court procedure.</p> <p>Where one who has been tried and convicted before the mayor of a municipal corporation for violation of an ordinance, applies under section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court, or judge, to whom the application is made refuses to grant leave to file the petition in error, such refusal is not reviewable on error in the circuit court.</p>

<p>Judgments and orders may be entered nunc pro tunc, when— Petition in error for reversal may be filed in Supreme Court, when — Act to amend requirement in appeal relates to remedy, when — Section 79, Revised Statutes — Court procedure — Effect of amendment of statute upon pending action.</p> <p>1. Judgments and orders may be entered nunc pro tunc in furtherance of justice only, and when an order dismissing an appeal is SO' entered by the circuit court, a petition in error for its reversal may be filed in the Supreme Court at any time within four months from the date of its actual entry.</p> <p>2. An act to amend the statutory requirement respecting notice of an intention to appeal from the judgment of the court of common pleas to the circuit court, with a view to a trial dé novo, relates to the remedy, and, unless the amending act expressly provides otherwise, a party may, under favor of section 79, Revised Statutes, give such notice in the mode prescribed by the statute in force at the commencement of the original action.</p>

<p>Mandamus.</p> <p>The petition is as follows:</p> <p>‘ ‘ The relator represents to the court that the sixth congressional district of Ohio is composed of the counties of Brown, Clermont, Clinton, Greene, Highland and Warren in said state, that , said Greene county had at the last federal census the largest population of any of said, counties; that for the period of one year next preceding the first Monday in August, 1904, defendant was the duly chosen, qualified and acting chief deputy state supervisor of elections for Greene county; that on or about the thirteenth day of April, 1904, relator filed with defendant as such chief deputy state supervisor of elections for Greene county a paper purporting to be a certificate of the nomination of the relator for congress by a delegate congressional convention of the republican party, duly called and held on the twelfth day of April, 1904, at Wilmington, in Clinton county, in said district.</p> <p>“Within five days thereafter objections to said certificate were filed by Thomas E. Scroggy and others with the defendant as chief deputy state supervisor of elections as aforesaid.</p> <p>“That on or about the fourteenth day of April, 1904, said Thomas E. Scroggy filed with the defendant, as chief deputy state supervisor of elections for Greene county, a paper purporting to be a certificate of the nomination of the said Thomas E. Scroggy to congress by a delegate congressional convention of the republican party, duly called and held on the twelfth day of April, 1904, at Wilmington, Clinton county, in said district.</p> <p>“That within five days thereafter objections to said certificate were filed with the defendant, as chief deputy state supervisor of elections, as aforesaid by the relator and others.</p> <p>“That thereafter, to-wit, on or about the nineteenth day of May, 1904, a meeting was held at Xenia, Greene county, in said district of the then chief deputy state supervisors of elections of each of the counties aforesaid, and of the then clerks of the election boards of said several counties comprising said district. At said meeting said board claimed to have authority and jurisdiction to finally determine and pass upon the validity of said certificates of nomination filed by the relator and by Thomas E. Scroggy, respectively, and upon the objections filed to each of said certificates. That before proceeding to the determination of the validity of said nominations and before passing upon said objections to each of said nominations respectively, the said board determined and announced that in its deliberation thereon it would receive only affidavits filed by or on behalf of each of said candidates and in support of said several objections, and would entertain only written arguments upon the matter, and that its consideration of said evidence and arguments would be in executive session. That relator in writing protested against tbe manner of said deliberation and requested that said hearing be public, and that be, tbe said relator, have an opportunity to see the affidavits filed in support of tbe objections to bis claimed certificate of nomination and for tbe further opportunity to present affidavits in reply thereto. But notwithstanding said protest and request, said meeting was held in executive session, and this relator was not permitted to be present at said meeting or to read tbe affidavits filed in support of tbe objections to bis claimed certificate or to offer counter affidavits thereto.</p> <p>“That at said meeting held on tbe day and date aforesaid, and composed of tbe then chief deputy state supervisors and clerks of tbe boards of elections of tbe several counties aforesaid, the said board, under its claim of authority and jurisdiction in tbe premises, adopted the following resolution:</p> <p>“ ‘Resolved, That tbe objections of Thomas E. .Scroggy et al. to tbe certificate of nomination of Charles Q. Hildebrant be sustained, and tbe certificate of nomination of tbe said Hildebrant be stricken from tbe files. ’</p> <p>“That at said meeting tbe said board, under its claim of authority, as aforesaid, adopted also tbe following resolution:</p> <p>“ ‘Resolved, That tbe objections of said Charles Q. Hildebrant et al. to tbe certificate of nomination ■of Thomas E. Scroggy be overruled and that Thomas E. Scroggy be declared tbe nominee of tbe regular republican convention under tbe call of tbe congressional committee of tbe sixth congressional district ■of Ohio, held at Wilmington, Ohio, on tbe twelfth day of April, 1904, and that his nomination he certified by the chief deputy state supervisor of the county containing the greatest number of inhabitants at the last federal census, to-wit, Greene county, to the several chief deputy state supervisors of the other counties of said sixth congressional district of Ohio, as required by law. ’</p> <p>“That thereafter, on the first Monday in August, 1904, the terms of office of certain of the deputy state supervisors of elections in each of the said counties expired and the state supervisor of .elections, in accordance with law, duly appointed the successors to said deputy state supervisors whose terms so expired; that said successors duly qualified and entered upon the discharge of their duties. That thereafter in each of said counties composing the sixth congressional district the deputy state supervisors, as then appointed, qualified and acting, met and organized in accordance with the statutes, electing in each of said counties a chief deputy state supervisor and a clerk of the board of elections as required by law, and that under said organization had as aforesaid, the defendant became the chief deputy state supervisor of elections of said Greene county, being the county having, at the last federal census, the largest population of any county in said sixth congressional district.</p> <p>“That on or about the nineteenth day of September, A. D. 1904, a majority of said newly chosen chief deputy state supervisors of elections and clerks of the boards of elections of the said counties comprising the said sixth congressional district, convened and entered upon the consideration of the claimed certificates of nominations theretofore filed by the relator and by the said Thomas E. Scroggy as hereinbefore more fully set forth. That said meeting Was called by notice, signed by a majority of the chief deputy state supervisors of elections and clerks of the election boards of said counties, duly served upon all the chief deputy state supervisors of elections and clerks of the election boards of said several counties. That at said meeting the majority of said chief deputy supervisors of elections and clerks of the boards of elections of the counties comprising the said sixth congressional district, having heard all the evidence presented in support of the objections theretofore filed, and having considered the same, did make the following finding of facts, to-wit:</p> <p>“ ‘That all the chief deputy state supervisors of election and clerks of the board of deputy state supervisors of elections of the counties of Brown, Clermont, Clinton, Greene, Highland and Warren, being the counties composing the sixth congressional district of Ohio, have each and all had due and legal notice of the time, place and purpose of this meeting.</p> <p>“ ‘That Charles Q. Hildebrant and Thomas E. Scroggy have each had due and legal notice of the time, place and purpose of the meeting. That there are on file with R. I. Stewart, chief deputy state supervisor of elections for Greene county, Ohio, which said county has the largest population of any county in said district according to the last federal census, the certificates of nominations of Charles Q. Hildebrant and Thomas E. Scroggy, each of whom claim to be the regularly nominated candidate for the republican party for representative in congress for said district.</p> <p>“ ‘That to each of said certificates of nomination there are. on file with said R. I. Stewlart, as chief •deputy state supervisor of elections as aforesaid, •certain objections.</p> <p>“ ‘That on the nineteenth day of May, 1904, the ■chief deputy state supervisors of elections and clerks of the boards of elections of the said counties comprising said, congressional district attempted to make its finding and order as to who was the regularly and duly nominated republican candidate of said district •over the objections and protest of the said Charles Q. Hildebrant. That said chief deputy state supervisors of elections and clerks, notwithstanding said objections and protest, did order that the certificate of nomination of the said Charles Q. Hildebrant be stricken from the files and did order that the certificate of nomination of the said Thomas E. Scroggy be by the said R. I. Stewart, as chief deputy state supervisor of elections as aforesaid, certify to the boards of deputy state supervisors of elections of the said several counties composing said sixth congressional district, as the republican candidate for representative in congress for said district.</p> <p>“ ‘That the term of office of each of said chief •deputies and clerks making said orders as aforesaid expired by operation of law on the first Monday of August,- 1904, next succeeding the making of said order.</p> <p>“ ‘That said finding and order were made upon ex parte affidavits limited in number, privilege denied to either of said candidates to see said affidavits or to file counter affidavits thereto or to appear in person or by counsel before said board at said pretended hearing. That the action of said board was had in secret. That the members of said board by the action of eight members thereof were kept together in a room locked and guarded by one or more sergeant-at-arms on the outside of said room and were not permitted to separate until they made said, finding and order.</p> <p>“ ‘That said order and finding were made upon insufficient evidence. That many of the statements contained in the affidavits filed on behalf of Thomas. E. Scroggy are untrue and that said Charles Q. Hildebrant was denied the privilege of filing counter-affidavits to refute and deny the same.</p> <p>“ ‘That the finding and order of said chiefs and clerks as aforesaid made on the nineteenth day of May, 1904, were fraudulently, corruptly and collusively procured.</p> <p>“ ‘Each and all of the above and foregoing finding-of facts is made upon sworn testimony of reputable witnesses before us at a public hearing had by us at. the village of Loveland, Clermont county, Ohio, on the fourteenth day of September, 1904.</p> <p>“ ‘It is therefore ordered and decreed by a majority of eight of the chief deputy state supervisors, of elections and clerks of the board of deputy state supervisors of elections of said counties composing-the sixth congressional district of Ohio, that the said finding and order so far as aforesaid made on the-nineteenth day of May, 1904, striking the certificates, of nomination of the said Charles Q. Hildebrant from the files and ordering the certificate of nomination of Thomas E. Scroggy to be certified to the' board .of deputy state supervisors of elections of said several counties comprising said district as the republican candidate for congress was made upon insufficient testimony, and is fraudulent, corrupt, collusive and void and the same is hereby set aside and. held for naught.</p> <p>“ ‘Coming now to a consideration of the question arising upon the filing of the certificates of nominations of Thomas E. Scroggy and Charles Q. Hildebrant and the objections thereto, we find from the evidence the following facts:</p> <p>‘ ‘ ‘ That on the fifth day of March, 1904, the republican congressional committee of the sixth congressional district of Ohio, issued a call for a congressional convention to be held at Wilmington, Ohio, on the twelfth day of April, 1904, for the purpose of nominating a candidate for representative in congress, two delegates and two alternates to the national republican convention and one presidential elector, and fix a representation in said convention at 139 delegates and 139 alternates and apportioned the same among the counties as follows:</p> <p>“ ‘Brown county, sixteen delegates, sixteen alternates.</p> <p>“ ‘Clermont county, twenty-five delegates, twenty-five alternates.</p> <p>“ ‘Clinton county, twenty-two delegates, twenty-two alternates.</p> <p>“ ‘Greene county, twenty-six delegates, twenty-six alternates.</p> <p>“ ‘Highland county, twenty-six delegates, twenty-six alternates.</p> <p>“ ‘Warren county, twenty-four delegates, twenty-four alternates.</p> <p>“ ‘Of which number seventy would be necessary for a choice.</p> <p>“ ‘The said cal!also provided for a temporary organization as follows:</p> <p>“ ‘W. C. Bishop, chairman.</p> <p>“ ‘Andrew Jackson, secretary.</p> <p>“ ‘S. S. Outcalt, sergeant-at-arms.</p> <p>“ ‘That said counties duly elected delegates and alternates in pursuance of said call of said congressional committee.</p> <p>“ ‘That the regular and duly elected delegates from Brown county, sixteen in number; Clermont county, twenty-five in number; Clinton county, twenty-two in number, and Warren county, twenty-four in number, being eighty-seven in all, and a majority of all the duly elected delegates, met at Wilmington, Ohio, on the twelfth day of April, 1904, in pursuance to said call of said congressional committee and w'as presided over by said temporary organization so as aforesaid provided, by said congressional committee, except the secretary, Andrew Jackson, who voluntarily absented himself, and Seymor S. Tibbies was chosen in his stead, which said organization was made permanent.</p> <p>“ ‘That said convention regularly nominated Charles Q. Hildebrant as the republican candidate for representative in congress and one presidential elector and two delegates and alternates to the national republican convention, and that each of said nominations were duly certified by the officers of said convention to the properly constituted authorities to secure and file the same.</p> <p>“ ‘That the delegates and alternates, so as aforesaid chosen to the national republican convention were recognized by the national republican committee and placed by it on the temporary roll of said national republican convention and by the action of the committee on credentials were placed on the permanent roll of said convention.</p> <p>“ ‘That the delegates in the republican state convention from Clermont county were selected by the same county convention and at the same time that said delegates to said congressional convention were selected, and on a contest before tbe republican state central committee were placed on the temporary roll of said convention and by the action of the committee on credentials placed on the permanent roll-call of said convention.</p> <p>“ ‘That the regular delegates from the counties of Greene and Highland, being fifty-two in all, and less than a majority of the whole number of the legally elected delegates to said convention, refused to attend and participate in its proceedings, but voluntarily absented themselves. That shortly afterward said delegates met in the street in Wilmington and from there adjourned to the West House and from there to the dining room of the Odd Fellows’ Temple, and there went through the form of nominating Thomas E. Seroggy for representative in congress for said sixth congressional district, and which said nomination was certified to said R. I. Stewart, chief deputy state supervisor of elections of Greene county, Ohio, and which certificate of nomination is the one on which the said Thomas E. Seroggy bases his right and claim to be the republican candidate for representative in congress for said district.</p> <p>“ ‘It is therefore ordered and decided by the chief deputy state supervisors of elections and clerks of the boards of elections of the several counties comprising the sixth congressional district of Ohio, that the said Charles Q. Hildebrant is the regularly and duly nominated republican candidate for representative in congress for the sixth congressional district of Ohio, and the chief deputy state supervisor of elections of Greene county is hereby ordered to certify the certificate of nomination of Charles Q. Hildebrant to the boards of supervisors of elections of all counties comprising the sixth congressional district as the regularly nominated republican candidate for representative in congress for said district. It is further ordered and decided that said Thomas E. Scroggv is not the regularly nominated republican candidate for representative in congress for said district, and said chief deputy state supervisor of elections of Greene county is hereby ordered not to certify the nomination of said Thomas E. Scroggy to said hoards of deputy state supervisor of elections.</p> <p>“ ‘And it is further ordered, by the board, that an order of this hoard, signed by all the members participating in this meeting, and setting forth the determination of the hoard in said contest, issued to' the said several hoards of deputy state supervisors of each and all of said counties, commanding them that they place the name of Charles Q. Hildehrant on said ballot as such republican candidate as aforesaid.’</p> <p>“Relator further represents to the court that defendant, as the chief deputy state supervisor of elections of Greene county, being the county having, at the last federal census, the largest population of any county in said sixth congressional district, has refused, still refuses and will continue to refuse to certify the nomination of relator as found as aforesaid..</p> <p>“Relator further says that his right to require the performance of the said act of the defendant as. aforesaid is clear and that no valid excuse can he given for not performing it, and that the relator has. no plain or adequate remedy in the ordinary course of the law.</p> <p>“Wherefore, relator prays that a writ of mandamus issue to said defendant as chief deputy state supervisor of Greene county as aforesaid, commanding Mm forthwith to certify the nomination to congress of the relator by the regular republican congressional convention of the sixth district as aforesaid to the deputy state supervisors of elections in all the other counties in said sixth congressional district as aforesaid, and for all other and proper relief. ’ ’</p> <p>The defendant answered as follows:</p> <p>“The defendant, for answer to the writ issued to him, says, the mode of proceeding adopted by the board composed of the chief deputy supervisors and clerks of the county boards of elections of the six counties comprising the sixth congressional district of the state of Ohio, was agreed upon by them unanimously without suggestion or interference by either candidate for the nomination. It was agreed upon in writing on the tenth day of May, A. D. 1904, and such action was immediately communicated by letter to both Hildebrant and Scroggy.</p> <p>“The board convened in Xenia by agreement on the nineteenth day of May, A. D. 1904, all the members being present, to consider the objections filed to the nominations respectively of said Scroggy and Hildebrant.</p> <p>“No communication was received by the board or any member thereof, to the knowledge of defendant, until the meeting of the board at Xenia on the nineteenth of May, when the following motion was filed by counsel for Hildebrant:</p> <p>“ ‘State of Ohio, Greene County, ss:</p> <p>“ ‘In re the matter of the objections of Thomas E. Scroggy to the certificate of nomination of Charles Q. Hildebrant, as a candidate of the republican party for representative in congress for the sixth congressional district of Ohio. ,</p> <p>“ ‘Before the board of supervisors of election within and for the sixth congressional district of Ohio.</p> <p>“ ‘motion.</p> <p>“ ‘Comes now Charles Q. Hildebrant, who claims to be the regular and duly nominated candidate of the republican party, of the sixth congressional district of Ohio, for representative in congress, and moves this honorable board to adjourn its sittings to the city of Loveland, Ohio, and to reconvene at said city of Loveland on Monday, the twenty-third ■ day of May, A. D. 1904, and that it order all witnesses whose affidavits have been herein filed, and such others as it may deem necessary, to appear before it and submit to an oral examination, under oath, touching the several matters in issue herein; and that all the proceedings of this board shall be open to the public, to the end that the full truth relating to the several matters and things herein in issue may be fully known by all the voters in said sixth congressional district of Ohio.</p> <p>“ ‘C. Q. Hildebrant,</p> <p>“ ‘By Hayes & Swaim,</p> <p>“ ‘Thorp & Miller and</p> <p>“ ‘Smith & Clevenger,</p> <p>“ ‘His Attorneys.’</p> <p>“Said motion contained the following indorsement : ‘ Filed May 19,1904. Miles Bicking, clerk of board. Motion not seconded. No action taken on same. ’</p> <p>“A member of the board offered the said motion, but there was no second and no action taken upon it. The board proceeded to act upon the various objections and took action as stated in the petition, the vote being eight to four in favor of the certificate being awarded to Thomas E. Scroggy — all of which was duly made a matter of record.</p> <p>“No protest or objection, other than that stated in the motion above, was made in writing or verbally by Charles Q. Hildebrant, to the organization of the board, its method of proceeding or its right to proceed ; and both parties voluntarily submitted a large number of affidavits in writing sustaining their respective claims, and filed written briefs and arguments in support thereof.</p> <p>“No request was made by Charles Q. Hildebrant or any one on his behalf for permission to inspect the affidavits filed on behalf of Judge Scroggy.</p> <p>“Said board fully, honestly and carefully considered the questions submitted to it — convening at 10:30 A. M., on the morning of the nineteenth, and sitting until it reached a conclusion on the morning of May 20th, adjourning for dinner and supper on the nineteenth of May in the usual manner and for the usual time. After its finding it adjourned without day.</p> <p>“This defendant did not call the meeting which subsequently met at Loveland on the fourteenth day of September, nor was he present at the same, nor more than eight members of the said board. And no one was present on behalf of Thomas E. Scroggy.</p> <p>“Defendant further avers that on the ninth day of September, A. D. 1904, as chief deputy state supervisor of the district, he certified to each one of the deputy state supervisors in each of the other five counties of the district the name of Thomas E. Scroggy as the regular republican nominee of the sixth congressional district, with orders to place his name upon the official republican ballot in each of said counties to be voted for at tbe next regular election in November.</p> <p>.“This defendant takes no issue upon tbe false and malicious statements in tbe finding of tbe pretended board on tbe fourteenth day of September, A. D. 1904, to tbe effect that tbe action of tbe board on tbe twentieth day of May, A. D. 1904, was corruptly, fraudulently and collusively made, because said statements are not made or alleged by tbe said Hildebrant, nor sworn to by him nor by any person on bis behalf, although if material, or put in issue, be emphatically denies tbe same.</p> <p>“Tbe defendant having fulfilled tbe duties required of him by law and tbe action of the board of which be is a member, prays to be dismissed with bis costs.”</p> <p>Tbe relator demurred to tbe defendant’s answer upon tbe ground that tbe same does not state facts sufficient to constitute a defense.</p>

Mandamus. The facts appear in the petition, answer, demurrer to the second and third defenses of the answer and reply to the first defense, as follows: The relator says that he is a republican elector of Brown county, Ohio.

The defendant in error was charged, by affidavit filed with P. A. Carver, a justice of the peace in and for Franklin townshp, Tuscarawas county, with having unlawfully sold and delivered to one Martin Cowen, oleomargarine to the amount of one pound, which oleomargarine then and there contained artificial (yellow) coloring matter, the name of which coloring matter was unknown to the affiant, contrary to statute in such case made and provided, etc. On this affidavit the…

<p>Error to the Circuit Court of Richland county.</p> <p>In the year 1899, the railroad company planned extensive improvements upon a line of its road in certain parts of the state of Ohio, comprising a change of grade, a large amount of excavating and the constructing a new roadbed. The amount of excavating was estimated at 400,000 cubic yards, 238,000 cubic yards of which was a little north of the village of Fredericktown in what is known as the Frederick-town cut. It invited proposals for doing the work, and on the tenth of April entered into a contract therefor with Jolly Bros. The contract was on the printed form of the company and is quite lengthy, covering thirty-eight pages of the printed record. So much of it as is necessary to an understanding of the questions determined is as follows:</p> <p>“5. Excavation will be unclassified and so bid and paid for, unless otherwise specified, in which ease classification will be made in accordance with the following, viz.:</p> <p>“Earth will include clay, sand, loam, gravel, all hardpan that can be ploughed, and all earthy matter, • or earth containing loose stones, or boulders intermixed which do not exceed in size three cubic feet.</p> <p>“Nó haul will he allowed, as contractors are expected to make such personal examination of the work to he performed as will enable them to make such bids for excavation and other work as will cover the cost of hauling the materials and the disposition of the same.</p> <p>“2. The quantities of graduation and masonry, piling, etc., exhibited to the contractor at the letting are merely approximate; they furnish only general information and will in no way govern or affect the final estimate of the work, which will be made out upon its completion from exact measurement and established facts, not now in the possession of anyone, nor possible to be obtained at the time of drawing up these specifications. •</p> <p>“9. Whenever in this contract the words ‘chief engineer’ are used, it will be understood to mean the engineer of construction; and whenever the word ‘engineer’ is used, it is to be understood as applying to the local or resident engineer having charge of the particular work for the time being.</p> <p>“13. All alterations, amendments or modifications of this contract in any particular whatever must he in writing and called a supplement, which shall have proper reference to the contract, by date and description of work, and be duly signed, in which supplement shall be fully described the particular work to be affected by such alterations, amendment or modification.</p> <p>“15. No claims shall be allowed for any extra work unless the same shall have been done in pursuance of a written order from the engineer, and copies of such orders must be attached to the bills of the contractors for extra work, and no bill will he entertained unless accompanied by such copy.</p> <p>“17. The classification of all excavations, ma- , sonry, etc., shall he made by the engineer, or chief engineer, and their decision in regard to the same shall be final and binding, and from it no appeal shall be taken.</p> <p>“In lieu of waiving the usual ten (10) per cent, on monthly estimates, the contractors agree to furnish a bond in the sum of thirty thousand dollars ($30,-000) of a guarantee company acceptable to the said company and receivers. Said bond shall be furnished within thirty (30) days from date of this contract and before any money is paid on account of this contract.</p> <p>“Free transportation will also be furnished to-said first parties from and to Pittsburgh, also on trans-Ohio division, for such materials as are termed grading outfit. The rate of three (3) mills.per ton per mile will be charged for all other materials and supplies used in the construction of said work.</p> <p>“The above payments shall be made in the following manner — that is to say, during the progress, of the work and until it is completed, there shall be a monthly estimate made, by the aforesaid engineer, of the quantity, character and value of the work done during the month, or since the last monthly estimate, to be made by actual measurement or simple estimate, or both combined, as by said engineer may be deemed expedient,---of which value shall be paid to said parties of the first part, at such places as the chief engineer may appoint; but it is expressly agreed that the amounts of the said monthly estimates shall in no wise be deemed payable (except as determined by the chief' engineer), nor shall the same be in any manner assignable or transferable, either by the act of “the parties of the first part, or by operation of law as a subsisting debt or liability of the parties of the second part, until the final estimate shall have been made and become payable as hereinafter provided ; and when the said work is completed and so ■accepted by the said chief engineer, there shall be a final estimate made, by the engineer, of the quantity, •character and value of said work, agreeably to the terms of this agreement, when the balance appearing to be due to the said parties of the first part shall be paid to them upon their giving a release under seal to the said company from all claims or demands whatsoever growing in any manner ont of this agreement. And it is further agreed between the parties hereto, that said monthly and final estimates .shall not be payable, and said parties of the first part shall not be entitled to receive any portion of the said estimates, until said parties of the first part shall have paid in full all persons and laborers and ■subcontractors in the employ of said parties in the said work, for all work and labor done up to and including the date for which the preceding estimate ■or estimates may have been made, and shall give evidence of such payment by filing with the chief engineer or engineer in charge, the pay rolls for said laborers or persons, receipted in full by the same. And it is further agreed that the chief engineer shall have the right, at any time, if he sees fit, of paying ■said laborers and persons the amounts due them by ■said parties of the first part, and deducting the sums ■so paid from the amounts payable under said estimate. And it is expressly understood that the monthly and final estimates of said engineer, as to the quantity, character and value of the work, shall "be conclusive between the parties to this contract, the former for the time being and the latter for all time, without further recourse or appeal (the monthly estimates of the engineer being, however, subject to correction by him in any subsequent monthly, or in his final estimate, for the reason that the monthly or current estimates being merely made out as basis for payment on account, will necessarily be only approximately correct, pains being taken, however, to make them as accurate as possible); unless the chief engineer may deem it proper at any time to revise and alter the monthly or final estimate of said engineer, in which event the estimate of said chief engineer shall be substituted to all intents and purposes, in place of the estimate of said engineer, and shall be final and conclusive on the parties, without further recourse or appeal, it being, however, wholly optional with the said chief engineer to exercise such power of revision or not.</p> <p>“And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same; and each and every one of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of the covenants and provisions herein, so that the decision of said chief engineer, shall in the nature of an award, be final and conclusive on the rights and claims of said parties.</p> <p>“Before signing the foregoing contract, the undersigned contractors, have carefully read the same, and understand all the provisions thereof.</p> <p>“Jolly Bros. & Co.</p> <p>“By J. K. Jolly.”</p> <p>Jolly Bros, commenced the work sometime m May, 1899, and continued at it until February, 1900, when they quit, and commenced an action against the railroad company for damages.</p> <p>The first cause of action, as set out in the amended petition, omitting the averments that the plaintiffs, are partners and the defendant a corporation, is as follows:</p> <p>“The said defendant on and prior to the tenth day of April, 1899, proposed changing the grades of the said railroad track from station 550 to station 700 near the village of Utica, and from station 900 to station 1140 near said station of Hunt, and from station 1340 to station 1410 near the city of Mt. Vernon, and also from station 1690 to station 1900 near said village of Fredericktown, on what was-known and called the Lake Erie division of the said railroad company. In pursuance of said object the-said defendant sent an invitation to the said plaintiffs to bid on the work of said construction, and in accordance with the said request of said defendant the said plaintiffs came to Zanesville, Ohio, and met the officials and agents representing the said railroad company, and with the said agents and officials, they passed over and casually examined the said proposed improvement desired to be made by the said defendant. That the said work consisted in changing the grade of the said railroad from and between the stations hereinbefore stated, in constructing a roadbed and in making certain excavations which necessitated a large amount of work and labor.</p> <p>‘‘ One David Lee was the engineer of maintenance of way on said Lake Erie division, and one A. M. Kinsman was the engineer of construction on said Lake Erie division. Said Lee and Kinsman were the duly authorized agents of the said defendant and represented said defendant in said proposed improvement, and in making representations on behalf of said company with reference to the character of said proposed improvement, and in entering into a contract for the same with said plaintiffs. Said Lee and Kinsman were each well acquainted with the character of the material to be excavated and removed, and from which the roadbed was to be constructed ; at the time plaintiffs made a casual examination of the said proposed improvement the ground was frozen and covered with snow, and along much of the said improvement the excavation to be made was from thirty to forty feet deep, and plaintiffs were compelled to and did rely upon the representations of the said agents of the said defendant as to the kind and character of the material to be excavated and removed. Plaintiffs inquired of said agents of said defendant as to the kind and character of said material so to be excavated and removed and said agents informed plaintiffs that where said excavation was the deepest north of the village of Fredericktown on said Lake Erie division that the material was dry bank gravel, easy to be excavated and removed; that near Hunt station on said Lake Erie division, which was about eight miles south of Mt. Vernon, there was some hardpan, but almost all of said material to be removed south of the city of Mt. Vernon was gravel, sand or loam. Said agents of said defendant for the purpose of inducing plaintiffs to enter into a written contract with said defendant, falsely and fraudulently represented to plaintiffs that not only was the material to be excavated and removed north of said village of Fredericktown dry bank gravel, but that there was no water to interfere with said proposed improvement or the removal of said material and the construction of said roadbed. They further represented to plaintiffs that the defendant had made a careful examination of said material so to be excavated and removed, north of said village of Frederick-town ; that they had caused test holes to be dug along the line of said proposed improvement to ascertain the kind and character of said material, and that it was dry bank gravel. Plaintiffs further aver the fact to be that it was true that said defendant had caused test holes to be dug along the line of said proposed improvement to ascertain the kind and character of the material to be excavated and removed, and the defendant did know the kind and character of said material, but defendant by and through its said agents, falsely and fraudulently represented to plaintiffs that said material to be removed was dry bank gravel, and that there was no water to interfere with the excavation and removal of said material, when in truth and fact, said material to be removed was blue mud, quicksand and wet excavation; and said defendant through its said agents so falsely and fraudulently represented the facts to be, as herein-before set forth, that there was no water to interfere with said excavation and removal of said material, and that the same was dry bank gravel, to induce plaintiffs to enter into a written contract with defendant at a price for said work greatly below the value of the same, and plaintiffs did rely upon said false representations, and did enter into a written contract with said defendant on the tenth day of April, 1899, relying wholly and entirely upon the said false and fraudulent representations of the said agents of the defendant, and agreed to excavate and remove said material at the price of seventeen and one-half cents per cubic yard; that said sum of seventeen and one-half cents per cubic yard was a fair and reasonable price for the excavation and removal of dry bank gravel or sand and loam, but was not a fair and reasonable price for blue mud, quicksand and wet excavation.</p> <p>“Plaintiffs further say that relying upon said false and fraudulent representations of said agents of said defendant, that in the month of May, 1899, at great expense and with a large force of men and teams, and. with three steam shovels, six small locomotives, 250 cars, and the necessary picks, shovels and tools, they commenced work on said proposed improvement and proceeded diligently to complete the same. That on or about the twentieth day of May, 1899, in the prosecution of said work north of the village of Fredericktown they ascertained for the first time that said representations so made by said Lee and Kinsman with reference to the kind and character of the said material so to be removed and the condition and quantity of the water which permeated a large part of the said material, was false. Instead of said material so to be excavated and removed north of said village of Fredericktown being dry bank gravel the greater part of it was blue mud, quicksand and wet excavation; and in attempting to excavate and remove the same it adhered to the dippers of the steam shovels and was difficult to load into the cars and difficult to dump from the cars for the reason that it adhered to said dippers and the said cars, and often intermingled with said blue mud and was large chunks of a very hard substance that could not be removed in the dippers on the steam shovels, and much of the time, the men in performing sáid work were compelled to and did work in water and mnd above their knees; and instead of the usual number of four men working in advance of the steam shovels, to each shovel, plaintiffs were required to have and did have eight men so working in mud, water and quicksand.</p> <p>“As soon as plaintiffs ascertained that the said representations so made by the said agents of said defendant with reference to the kind and character of said material to be excavated and removed, were false, they at once notified A. M. Kinsman, who was the said agent of said defendant, and who was duly authorized by the said defendant to enter into the said written contract with plaintiffs and who was duly authorized to make and enter into contracts with said plaintiffs for the performance of said work, and who had entered into said written contract on behalf of said defendant with said plaintiffs, plaintiffs notified said Kinsman that the kind and character of said material so to be removed north of said village of Fredericktown was not dry bank gravel as represented by him and said David Lee, but was blue mud, quicksand and wet excavation; and said A. M. Kinsman on or about the first day of June, 1899, with plaintiffs went over said work that was being performed by plaintiffs north of said village of Fredericktown, and plaintiffs then notified said Kinsman that they had been greatly damaged by said false representations and that they would abandon said work and contract and claim damages for the fraud perpetrated upon them. Said Kinsman then and there informed plaintiffs that the material that they were removing north of said village of Fredericktown was not as represented by him and said David Lee to plaintiffs, and if they ymuld continue the work that they should he paid for the excavation and removal of the said material what the same was reasonably worth; and he further stated to plaintiffs on or about the first day of June, 1899, that if they would continue the performance of said work, and excavate and remove said material that he would see that they were allowed what the same was reasonably worth together with other material removed and excavated by them, and that they should be paid therefor between the tenth and fifteenth of each month for the amount of the material excavated and removed on the preceding month. Plaintiffs further say they relied on this new promise so made by the said A. M. Kinsman; and he was duly authorized to make said promise, he was the agent of said company that had entered into the written contract with plaintiffs on behalf of said defendant, and was duly authorized to make allowances to plaintiffs for any and all work performed by them what the same was fairly and reasonably worth. Plaintiffs relying upon said promise continued in the performance of said work thereafter, but were not allowed by the said defendant or the said A. M. Kinsman as its agent what the said work was reasonably worth, nor were they allowed any extra amount for the removal of said blue mud, quicksand and wet excavation. Plaintiffs repeatedly called upon said A. M. Kinsman and requested that they be paid for the said work, so performed and in the month of October, 1899, said Kinsman promised plaintiffs that they should be allowed for the same in the month of November, 1899, but defendant did not allow plaintiffs for said work. Plaintiffs continued in the prosecution of said work through the month of December, 1899; said Kinsman for said month of December, 1899, made an allowance to apply on work done in month of December, 1899, the snm of $1,954.05, which he promised would be paid on or before the fifteenth day of January, 1900, but no part of the same was paid. Plaintiffs continued the prosecution of said work through the month of January, 1900, and the said Kinsman again informed plaintiffs that he had made another estimate to apply on their said work of $1,273.75 for the said work done in the month of January, 1900, which would be paid on or before the fifteenth day of February, 1900, but no part of the same was paid. Plaintiffs frequently demanded payment not only of said two several estimates for the month of December, 1899, and the month of January, 1900, amounting to $3,227.80, but also for the whole amount due them for said work so performed for said defendant under said verbal contract so made with said A. M. Kinsman, but said defendant refused to pay the same or any part of the same, and have ever since refused to pay the same or any part of the same. Plaintiffs notified defendant that they would not complete said work and would remove their grading outfit from the same unless defendant paid them for the work they had already performed, but defendant refused to pay plaintiffs the amount due them or any part of it, and thereupon plaintiffs quit said work and removed their grading outfit from the same.</p> <p>“Plaintiffs further say that they excavated and removed in the work of said improvement and in the construction of said roadbed 340,000 cubic yards of material, of which 26,300 cubic yards was called hardpan by the said A. M. Kinsman and an allowanee of twenty-two cents per cubic yard was made for the same by the said A. M. Kinsman, or $5,786.00' for the excavation and removal of the said 26,300' cubic yards of hardpan; 4,400 cubic yards of loose rock or shale which was fairly and reasonably worth 28 cents per cubic yard or $1,232.00 for the excavation and removal of the said 4,400 cubic yards of loose rock; 174,030 cubic yards of earth, gravel, sand and loam which, was fairly and reasonably worth seventeen and one-half cents per cubic yard or $30.-455.25 for the excavation and- removal of said 174,-030 cubic yards of earth, gravel and loam; 4,370 cubic yards of solid rock which was worth 50 cents per cubic yard or $2,185.00 for the excavation and removal of the said 4,370 cubic yards of solid rock. Plaintiffs further say that under the verbal contract so made by said A. M. Kinsman on or about the first day of June, 1899, they excavated and removed 130,-000 cubic yards of blue mud, quicksand and wet excavation, which was fairly and reasonably worth forty cents per cubic yard for the removal of said blue mud, quicksand and wet excavation, and the removal of said 130,000 cubic yards was worth the sum of $52,000.00 of which $10,278.95 was paid on account of said excavation and removal of blue mud, quicksand and wet excavation, leaving remaining due and unpaid for said 130,000 cubic yards of blue mud, quicksand and wet excavation the sum of $41,-721.05, and the total amount of said material of all kinds so removed by them in the construction of said work was fairly and reasonably worth $91,658.25, which was all due and payable on or before the fifteenth day of February, 1900. Plaintiffs further say that they received from time to time from said defendant to apply on said work so performed by them the sum of $49,937.20, and that there is a balance due them from said defendant for said work the sum of $41,721.05, in addition to the December, 1899, estimate of $1,954.05 and the estimate of January, 1900, of $1,273.75, with interest thereon from February 15, 1900, for which they pray judgment. ’ ’</p> <p>The second cause of action was for $2,014.20 for extra work and material.</p> <p>The third cause of action was for $400.00 retained for freight on the grading outfit, and.</p> <p>The fourth cause of action was for damages in the sum of $2,200 for not permitting plaintiffs to perform a contract for excavating made with the defendant on May 10, 1899, and the whole amount prayed for was $49,563.12.</p> <p>The railroad company answered as follows:</p> <p>“The defendant also admits that the said David Lee and the said A. M. Kinsman held offices on said Lake Erie division as stated in said amended petition, but it denied that the said Lee and Kinsman had any authority to make any representations to the said plaintiffs with reference to the work upon which they were about to bid, and it denies that the said Lee 'and Kinsman made any such representations.</p> <p>And the defendant avers that no agent or officer of the said defendant had any authority to make any representations or statements with regard to the work which was to be done except such as were contained in the contract which was signed by the said plaintiffs and this defendant, in duplicate, one of which has at all times been and now is in the possession of the plaintiffs and the other in the possession of this defendant, the terms of which were to some extent explained by the said David Lee to the said plaintiffs, and as a result of .such explanation the bid of the said plaintiffs for said work was increased in several particulars.</p> <p>“And the said defendant says that it is not true that the said plaintiffs were compelled to rely and did rely upon any statements made by it or any of its officers or agents with reference to the character of the earth to be removed in the performance of their said contract.</p> <p>“And the defendant says that the test holes referred to in said amended petition were not made for the purpose therein stated, but for an entirely different purpose.</p> <p>“And the defendant says that no representations, true or otherwise, were authorized by this defendant and none such were made under its authority. And the defendant says that the said plaintiffs did not rely upon such representations and had no authority, as they were advised, to rely upon any such representations. And the defendant says that it is not • true that said plaintiffs on or about the date named in said amended petition discovered the kind and character of the material to be removed under their said contract, and it says that if such is the fact, that it was owing to the negligence and want of proper care upon the part of the said plaintiffs in bidding upon the said work without having full knowledge with reference to such kind and character of material.</p> <p>“And the said defendant denies each and all of the other averments contained in said amended petition and says that the same are not true.</p> <p>“And the defendant further avers and says that the said plaintiffs, without the consent of this defendant, and without any excuse for so doing, abandoned the performance of their said contract and refused to proceed with or complete the same, and that they are not, therefore, entitled to recover anything by reason of any of the matters averred in said amended petition.</p> <p>“And for answer to the second cause of action contained in said amended petition, the said defendant says that the said A. M. Kinsman had no authority to make a contract with said plaintiffs for the extra work referred to in said cause of action, and it denies that he made any such contract.</p> <p>“And for answer to the third cause of action contained in said amended petition, the defendant denies each and all of the averments therein contained.</p> <p>“And for answer to the fourth cause of action contained in said amended petition, the said defendant,, admitting the execution of the contract referred to-therein, and the commencement by the said plaintiffs of work thereunder, denies each and all of the-other averments therein contained, and says that the same are not true.”</p> <p>The jury found for the plaintiff on the first cause-of action, $42,526.16; on the second, $2,261.98; on the third, $454.13; and on the fourth, $1,505.01. Motion for new trial was made and overruled and judgment entered on the verdict. The circuit court found the judgment excessive in the amount found due on the third cause of action, and as to all hut $354.13 of the amount found due on the fourth, and upon the plaintiff entering a remittitur of those-amounts, the judgment as to the remainder was affirmed.</p>

<p>County commissioners — Except in sections 4488 and 4485, Revised Statutes — Are without authority to construct a ditch —In municipal limits.</p> <p>Except as provided in section 4483 or 4485 of Title 6, Chap. 1, Revised Statutes, county commissioners are without jurisdiction or authority to locate and construct a county ditch within the corporate limits of a municipality.</p>

<p>■One becoming owner by private or judicial sale — Of realty in trust belonging to heirs at law of mortgagor — May plead statute of limitations, when — Mortgages—Parties—Pleadings.</p> <p>One who, hy either private or judicial sale, has become the owner of the interests in real estate belonging to one or more of the heirs at law of a mortgagor, may plead the statute of limitations in bar of an action to foreclose the mortgage on the real estate so acquired, although each and all of such heirs at law are parties to the action, and neglect, or refuse to interpose the plea.</p>

The defendant in error began his action in- the court of common pleas of Stark county against the plaintiff in error* the Board of Education of the City of Canton, to recover damages in the sum of nine hundred dollars alleged to have been sustained by reason of his dismissal from the position of principal of one of the schools of said city. An answer was filed which contained five defenses.

<p>Error to the Circuit Court of Paulding county.</p> <p>The action out of which the present' error proceeding arises was brought by the defendant in error, The Merchants’ National Bank of Defiance, against .the defendant in error, John B. Lamb, and the plaintiff in error, Charles O. Pinney, and others, to recover against Lamb as maker of a promissory note, and tó obtain foreclosure of a m'ortgage given by said Lamb, upon four hundred acres of land in Paulding county. Demand was also made for an accounting of rents and profits. Lamb made no answer but was in default. The plaintiff in error, Pinney, answered denying the claim of the Bank, and setting up title to a portion of the land by virtue of a sheriff’s sale and deed upon foreclosure of a mortgage prior to that claimed to be held by the Bank. He also set up that if the Bank’s claim should prevail he should be allowed for lasting and valuable-improvements upon the land, made by him and his predecessors in title, and for taxes and assessments paid on the same. Other parties appeared, but their controversies are not brought to this court, and we-have to do only with the contention between the-Bank and Pinney. Their controversy involves the question whether or not the mortgage claimed to-be owned by the Bank was foreclosed, and the Bank’s, rights determined, by the foreclosure and sale above-referred to. Upon trial on appeal in the circuit court at its May term, 1903, the issues were found, generally for the Bank and judgment in its favor-entered. The circuit court made a finding of facts separate from its conclusions of law, and from that finding the following pertinent facts are gleaned:</p> <p>On December 21, 1892, John D. Lamb was the owner of a four hundred acre tract of land in Paulding county, being the west half and the southwest quarter of the northeast quarter, and the northwest quarter of the southeast quarter of section thirteen in Harrison township. On that day said Lamb, his wife Florence B. joining, executed and delivered to-one Dickinson a mortgage on the land to secure a note for five thousand dollars at the same time executed and delivered. On December 26th, following,, the mortgage was duly recorded in the mortgage records of Paulding county. Thereafter, for value, the note and mortgage were duly sold and assigned to one Woodhead.</p> <p>On July 6, 1893, Lamb and wife executed and delivered to one J. P. Buffington their note for twenty-five hundred dollars and a mortgage upon the same premises to secure it, the note coming due one year from date, which mortgage was duly recorded July 15, 1893. July 20, 1893, Buffington transferred and assigned the note and mortgage to the Merchants’’ National Bank, as collateral security for a preexisting debt then amounting to about four thousand two hundred dollars. The assignment was in writing upon the mortgage, but the same was never recorded in the office of the county recorder of Paulding county. ' The indebtedness of Buffington to the Bank still exceeds the amount of the note secured by the mortgage.</p> <p>On January 1, 1894, Woodhead, as the owner of the first-named note and mortgage, commenced an action in foreclosure in the court of common pleas-of Paulding county, making Lamb and others defendants. The petition alleged that J. P. Buffington claimed an interest in the premises but that the same-was subsequent and inferior to that of Woodhead. Buffington’s name did not appear in the caption of any of the pleadings. Buffington did not file any pleading, nor does the record of the common pleas show the issuing of any summons against Buffing-ton on the petition, but the record, under date of’ April 28, 1894, upon a hearing upon divers answers and cross-petitions, and the evidence, does show that the court found that Buffington had been served with summons and was in default. The record also-■shows, under date of July 28, 1894, upon a further hearing upon divers answers and cross-petitions, .and the evidence, that the court found that Buffing-ton had been duly served with summons and was in default. The record of the -common pleas further shows that upon final hearing, September 24, 1894, upon the amended and supplemental petitions and the evidence, that John D. Lamb and Florence B. Lamb had been served with summons and were in default, and that Buffington had waived the issue and service of summons and voluntarily entered his appearance herein, and was in default. A judgment in favor of Woodhead (plaintiff) for $5,459.49 was then rendered, and •decree for sale was thereupon taken. The Bank was not made a party to the action, nor brought in as such in any manner.</p> <p>• Sales were duly made under the order, the west half (the land now in controversy) being sold to one Francisco for $6,401.00, and upon confirmation and payment of the purchase money by the purchasers, deeds were made to them respectively and they thereupon entered into possession, and with their ■successors in title, including Pinney, have been and still are in possession under and by virtue of said proceedings. This final decree adjudged that the title of Francisco to the tract so by him purchased was free and clear from all claims of Buffington, and .all persons claiming under him, and that said title ought to be and was quieted as against said Buffing-ton and all persons claiming under him, 'and they were enjoined from interfering with the title or possession of Francisco to the premises. Thereafter, on January 12, 1895, pursuant to an order of the ■court, and in accordance with section 4139, Revised Statutes, the clerk of the court caused satisfaction of the mortgage set forth in the petition, and of the Buffington mortgage, to be entered upon the record thereof in the office of the county recorder.</p> <p>Pinney, the plaintiff in error, became the owner of the west half of section thirteen by mean conveyances from Francisco, the purchaser.</p> <p>At the time of sale the lands were neither cleared nor drained and were wholly unimproved. Pinney, and his predecessors in title from Francisco, placed lasting and valuable improvements on the land to the value of $9,005.00, and paid taxes and assessments thereon to the amount of $2,210.29. The purchase price paid by Francisco ($6,401:00), was applied to the payment of taxes then due, costs, the amount due on the judgment in favor of Woodhead on the Dickinson mortgage, and other liens, all •of which were prior and superior to the lien of the Buffington mortgage, a portion of which prior liens still remain unpaid.</p> <p>Neither Woodhead, Francisco, nor Pinney, nor any ■of the holders of title to any of the premises, had any knowledge that the Bank claimed to have any interest in the note or mortgage to Buffington, or that he had transferred any interest to anyone, until the •commencement of the Bank’s suit.</p> <p>A few weeks after the sale of the lands, and the taking possession by the purchasers, Buffington talked to the cashier of the Bank, or the Bank officers, in regard to the sale of the lands at sheriff’s sale.</p> <p>On these facts the circuit court found that the mortgage set forth in the petition of the Bank is a good, valid and subsisting lien, for the amount due, viz.: $4,433.33, including interest to date, and for interest thereon at eight per cent, until paid; that the conditions of the mortgage have been broken, and that the Bank is entitled to a foreclosure thereof. The court found as to the other issues between the Bank and Pinney that the latter was entitled to be subrogated to the lien of the state for taxes and assessments, and the rights of the lienholders whose claims were paid in the action of Woodhead to the extent of the purchase money paid by Francisco; also that he had a lien to the extent that the improvements exceed in value the rents, all of which is superior to the lien of the Bank. Judgment was rendered accordingly. It was adjudged that of the amount due the Bank there should be apportioned against the land owned by Pinney the sum of $3,-740.78. It was further adjudged that unless the sum found due the Bank and so apportioned, with interest at eight per cent, be paid by June .1, 1903, that an order of sale issue to the sheriff to sell the premises.</p> <p>As to John D. Lamb the court found that he has no' equities to be let in to redeem, his equity of redemption being foreclosed and his right to redeem barred by the decree in Woodhead v. Lamb et al.</p> <p>From this judgment and decree error is prosecuted to this court by Pinney.</p>

<p>Error to the Circuit Court of Ottawa county.</p> <p>In November, 1898, certain fish nets, the property of the defendant, set in one of the bays or estuaries of Lake Erie in this state, were destroyed.</p> <p>On May 10, 1902, the general assembly passed an act entitled “An act to authorize claimants for damages and rebate of license fees under an act passed April 26, 1898, entitled ‘An act for the further and better protection of fish and game’ (O. L., v. 93, 303-307), to sue the state of Ohio.” (95 O. L., 498.) The act authorized a suit against the state by any resident whose nets had been destroyed under authority of the act of April 26,1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), for such damages as he may have sustained not exceeding the value of the property destroyed providing the act (last referred to) should be declared in violation either of the constitution of Ohio or of the United States.</p> <p>The defendant brought suit averring the summary destruction of his nets by a deputy fish and game warden under said act of 1898 and that said- act is void because in contravention of the constitution of Ohio and of the constitution of the United States in that it authorized the taking of property without due process of law.</p> <p>The act of April 26, 1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), among other matters provides, “Any net, or any other means or device whatever for taking or capturing fish, or whereby they may be taken or captured, located, set, put, floated, had, found or maintained, in or upon any of the water or streams of this state, or upon any boat engaged in fishing in any waters of this state, in violation of any law enacted for the protection of fish, is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by any person. And it shall be the duty of every game warden, deputy game warden, sheriff, constable, or other police officer, to seize and remove, and forthwith destroy the same; and no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction. ’ ’</p> <p>The state filed an answer containing two defenses: First, that the act of 1902 was unconstitutional; and second, a general denial.</p> <p>The trial court held the act of 1898 unconstitutional, and French recovered a judgment for the value of his nets. The circuit court affirmed the judgment and error is prosecuted to this court.</p>

<p>In Mandamus.</p> <p>This is an action in mandamus commenced originally in this court. The averments and prayer of relator’s petition are as follows:</p> <p>“The relator says that he is an elector, citizen and taxpayer of, and the owner in fee simple of real estate in the county of Mahoning and state of Ohio.</p> <p>“That the defendants, Disney Rogers, George F. Robinson and E. E. Roberts, are the duly elected, qualified and acting judges of the court of common pleas of the county of Mahoning and state of Ohio.</p> <p>“The relator further says that he is the duly elected, qualified and acting surveyor of Mahoning county and state of Ohio. That on the twenty-seventh day of May, 1904, he requested said defendants to make an allowance and fix the amount of compensation of himself, as county surveyor and fix an aggregate sum for his assistants from May 1, 1904, to January 1,1905, as provided by an act known as House Bill, No. 292, fixing the salaries of the-county surveyors in various counties of the state of Ohio, which act was passed by the general assembly of the statq of Ohio on the twenty-fifth day of April, 1904 (97 O. L., 313). That it is the duty of the-said defendants, Disney Rogers, George F. Robinson and E. E. Roberts, as such judges of the court of common pleas, enjoined upon them by force of said act heretofore referred to, to fix the amount of compensation of said county surveyor as heretofore stated.</p> <p>“The relator further says that said defendants,. Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county as aforesaid, entertaining doubts' with respect to their duty in the premises neglect, decline- and refuse to and declare that they will not fix the-compensation for Ms services as county surveyor as provided in said act heretofore referred to.</p> <p>“Relator further says that ever since the passage of the above entitled act the relator, as such surveyor as aforesaid, has done and performed and is now doing and performing and must continue to do and perform a large amount of public work of the kind for wMch prior to the passage of this act he was compensated according to the provisions of sections 1171, 1177, 1178, 1183, 1192, 1194 and 4664 as such sections then existed.</p> <p>“The relator further says that by the ordinary course of the law he has no adequate remedy against the said defendants for so refusing.</p> <p>“Wherefore, the relator prays that the defendants, Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county, Ohio, may be compelled to fix the amount of compensation of the relator as the surveyor of said county of Mahoning and state of Ohio, to be effective as of the date of the approval of said act; that an alternative writ of mandamus may first issue requiring the defendants to show cause, by day named therein, why they do not fix the amount of compensation of the relator as surveyor of Mahoning county aforesaid as of the day aforesaid, and that on the final hearing a peremptory writ of mandamus may be awarded to compel the defendants to fix the amount of compensation of the surveyor of the county of Mahoning, and for such other and further relief as the nature of the case may require. ’ ’</p> <p>• The defendants and each of them waived the issuing and service of an alternative writ of mandamus herein and demurred generally to the relator’s petition.</p>

On the eleventh day of January, 1899, one C. F. Hurr was the owner of a retail grocery store in the city of Bucyrus, Ohio, and on that day, he sold the stock of groceries to E. A. Smith for the agreed price of $1,405.00, $405.00 of which was paid in cash by Smith, and for the balance of the purchase price, he executed and delivered to Hurr four promissory notes of that date, for the respective sums of $166.00, $166.00, $334.00 and $334.00, payable July 1, 1899, January 1,…

<p>Error to the Circuit Court of Tuscarawas county.</p> <p>Plaintiff in error filed her original petition in the court of common pleas for the purpose of recovering from the defendant in error the value of her house which had been destroyed by fire owing to the failure of the water company to supply the village of Uhrichsville with water and apparatus sufficient in amount and character to afford due protection to its inhabitants against fire in accordance with the terms ■ of a contract between the municipality and the water company. The allegations of the petition with respect to the company’s obligation are in substance that on or about the eleventh day of February, 1888, the village for the purpose of protecting the property of the citizens against fire and causing them to be furnished with a sufficient quantity of water passed an ordinance authorizing the defendant to lay mains and pipes and to convey water thereby in and through the village and it was provided by the ordinance that the defendant was authorized to lay and maintain a system of pipes, conduits and hydrants along the streets and alleys of the village to supply the village and its inhabitants with water suitable for domestic, manufacturing and fire purposes. The company assumed the obligation to furnish machinery having power and capacity sufficient for fire protection and to maintain an adequate and efficient system. By the terms of the contract as alleged fifty-six frost proof hydrants of approved pattern and workmanship having double delivery were to be furnished by the water company; that the compensation therefor was to be derived by the village from a tax levied upon the taxable property of the city including that of the plaintiff; that the damage to the plaintiff resulted from the failure of the water company to comply with its said contract. The company demurred to the petition and in the court of common pleas the demurrer was sustained. On petition in error the judgment of the court of common pleas was affirmed by the circuit court.</p>

Exception to the ruling of the Court of Common Pleas of Summit county. Carl was indicted by the grand jury of Summit county under section 6816, Revised Statutes, for abusing and carnally knowing E. W., a female person under the age of sixteen years, he being more than eighteen years of age.

<p>.Surety bonds — Act of April 20, 1904 — Relating to giving of same ' —Invalid—Constitutional law.</p> <p>The act of the general assembly entitled “An act to amend section 3641c of the Revised Statutes of Ohio, relating to the giving of surety bonds,” passed April 20, 1904 (97 O. L„ 782), is unconstitutional and void, being in violation of article 1, sections 1 and 2 of the constitution.</p>

<p>Error to the Circuit Court of Crawford county.</p> <p>The case below was that of The Massillon Stoneware Co. v. A. Strauch, tried in the common pleas of Crawford at its February term, 1903, in which case the Company recovered judgment. - Strauch took a bill of exceptions and prosecuted error to the circuit court. That court, on motion of the Company, refused to consider and struck off the bill .of exceptions; and, there being no error otherwise shown, affirmed the judgment. Strauch brings error.</p>

<p>Oil and gas contract — Right to enter premises to drill and operate for oil and gas — Grantor to have one-sixth of the product— Implied duty of lessee — Performance within ninety days — Or penalty payable by lessee — Lease becomes null and void, when — Law of contracts.</p> <p>1. A grant in consideration of one dollar of all the oil and gas under certain premises with the right to enter thereon for the purpose of drilling and operating for oil and gas excepting and reserving to the grantor the one-sixth part of all the oil produced and saved from said premises, to be delivered in the pipe lines with which the grantee may connect his wells, implies an engagement by the lessee to develop the premises for oil and gas.</p> <p>2. The time within which the implied engagement must be performed is postponed by acceptance of the sum specified in the condition of such grant that “in case no well is completed within ninety days from date hereof, unavoidable delay excepted, then this grant shall become null and void, unless second party shall pay to first parties, twenty-five cents an acre per year, payable by deposits at the - or directly to first party, after demand having first been made,” and does not commence to run until the end of the year for which payment is accepted, and the lease does not become null and void at the end of such year upon refusal of the grantor to accept payment for another year.</p>

<p>'Trial for homicide — Defense of insanity — Burden of proof on defendant — Presumption of sanity — Effect of proof of insanity prior to crime — Does not shift burden, when — Laws of evidence — Criminal law.</p> <p>1. Where in a trial for homicide the insanity of the accused is set up as a defense, the burden of establishing such defense by a preponderance of the evidence rests upon the defendant.</p> <p>.2. The law presumes every person sane until the contrary is shown, and in a criminal case this presumption of sanity serves the state as the full equivalent of express proof until such time as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him.</p> <p>•S. On the trial of A, indicted for the crime of murder, it having been proved that prior to the commission of the alleged homicide he had twice been adjudged insane and committed to an asylum, but was discharged therefrom the last time nearly two years previous to the time of the homicide, counsel for defendant requested the court to give to the jury the following instruction: “Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued lunacy.5’ Held: Such instruction was properly refused.</p>

<p>Error to the Circuit Court of Mahoning county.</p> <p>The action in the court of common pleas against tifie railway company was for the recovery of damages for personal injuries, sustained by the plaintiff in error, while in the employ of defendant in error, which it is alleged, were caused by the negligence of the railway company.</p> <p>On the issues joined between the parties, the jury returned a verdict for the plaintiff. The court overruled a motion for new trial, and rendered judgment ■on the verdict.</p> <p>The railway company excepted and took a bill of exceptions containing the evidence and other proceedings had at the trial, and filed the same in the circuit court, with a petition in error, praying for the reversal of the judgment rendered in the court of common pleas. The verdict was returned on the fifth day of June, 1903, and the motion for new trial was overruled on the twentieth day of July, 1903, and the judgment was entered upon the same day.</p> <p>The following docket entries and filemarks show the history of the bill of exceptions after it had been ■ prepared:</p> <p>“This bill filed with the clerk, August 15, 1903. J. Howard Edwards, Clerk.</p> <p>“Adverse party notified of the filing of this bill August 15, 1903. J. Howard Edwards, Clerk.</p> <p>“Objections filed by adverse party August 19, 1903. J. Howard Edwards, Clerk.</p> <p>“This bill transmitted to the court by the clerk, this tenth day of September, 1903. J. Howard Edwards, Clerk.</p> <p>“This bill received by the court September 17, 1903. T. I. Gilmer, Judge of the Court of Common Pleas.</p> <p>“On this eighteenth day of September, 1903, this bill returned to the clerk. T. I. Gilmer, Judge.</p> <p>“On the eighteenth day of September, A. D. 1903, this bill received by the clerk and filed. J. Howard Edwards, Clerk.”</p> <p>The plaintiff in error filed his motion in the circuit court, to strike the bill of exceptions from the files for the reason “that said bill of exceptions was not transmitted by the clerk to the trial judge within fifteen days after forty days from the overruling of the motion for a new trial, and that said bill of exceptions was not signed by the trial judge and transmitted to the clerk of the court of common pleas of Mahoning county, Ohio, within the time required by the provisions of the statutes of Ohio.”</p> <p>Before the motion was disposed of, the plaintiff in error asked leave to amend the motion as follows:</p> <p>“First: That said bill of exceptions is not authenticated in the manner and within the times as provided by sections 5301 and 5301a, Revised Statutes of Ohio.</p> <p>“Second: That said bill of exceptions was not transmitted by the clerk in the manner and within the times as provided by section 5301, Revised Statutes, of Ohio.</p> <p>‘ ‘ Third: That said bill of exceptions was not received, signed and allowed by the trial judge and transmitted to the clerk of said court of common-pleas within the times and in the manner required by the provisions of section 5301a, Revised Statutes of Ohio.”</p> <p>The circuit court refused to allow the amended motion as a whole to be filed, “as it alleges matters for which the party obtaining said bill of exceptions is not responsible.” An exception to this ruling was taken. The original motion was overruled and that ruling was excepted to. The case was then heard on the assignments of error, and the court found .error apparent upon the récord, to-wit: “That the verdict of the jury and the judgment thereon are contrary to, and against the clear weight of the evidencé, and against the law of the casé, and that the court of common pleas erred in overruling the motion of plaintiff in error for a new trial. ’ ’</p> <p>The judgment of the court of common pleas was reversed and a new trial granted. The case was remanded to the court of common pleas for further proceedings according to law. Exception was taken to the judgment of reversal, and error is prosecuted in this court to reverse the judgment of the circuit court.</p>

<p>Prosecuting attorney may waive issuance of summons — And enter appearance of state, when — Criminal law — Petition in error.</p> <p>A prosecuting attorney may effectively waive the issuance and service of summons in error and enter the appearance of the state by a proper endorsement for that purpose upon a petition in error filed for the reversal of a conviction for crime or misdemeanor.</p>

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

<p>Error to the Circuit Court of Holmes county.</p> <p>The action out of which the present error proceeding grows was one by the plaintiff in error, Paul Oliver, against the defendants in error, John B. Canan and Jacob Spreng, brought in the common pleas of Holmes, June 10,1898, to recover judgment against them in the sum of $3,267.86, and interest, upon an unsatisfied balance of a judgment rendered in favor of the plaintiff against the defendants by that court in the year 1885; also, by amended petition filed May 1,1902, for the further purpose of obtaining an injunction to prevent Canan from levy-mg execution against the property of plaintiff upon a certain judgment theretofore rendered in favor of said Canan and against Oliver and one W. A. McCool by the circuit court of Eiehland county; and a further judgment allowing the plaintiff to set off against the latter judgment the amount so due plaintiff on his unsatisfied judgment against Canan.</p> <p>Defendant Canan’s answer set up four defenses, viz.: Denial that the amount of the alleged judgment was truly stated, and averring that it was for a much less amount; also that the judgment actually rendered had been paid and satisfied; also that the amount of the judgment actually rendered was only $1,034.00, instead of $2,574.83, as alleged, and that Oliver, by fraudulent representations and practices caused the clerk to wrongfully enter in the journal in said cause a larger amount, to-wit: the sum of $2,068.68, with interest at seven per cent, and $506.15, with interest at six per cent; and finally denying that at the time of the filing of the suppleméntal petition herein, April 10, 1901, defendant was the owner of the judgment rendered in the circuit court of Eiehland county against Oliver and McCool, or had any interest in said judgment or any part of it. Also pleading want of jurisdiction in the court to grant the plaintiff any relief whatever.</p> <p>Eeply was interposed by plaintiff to the new matter, and trial had in the common pleas and an appeal to the circuit court. That court determined the issues against the plaintiff, -and he alleges error. Error was also attempted to he prosecuted to the common pleas judgment, hut that was superseded by the appeal. Further pertinent facts are stated in the opinion.</p>

<p>Error to the Circuit Court of Jefferson county.</p> <p>November 27, 1900, Gordon sold to Steinmetz a mare for $100.00. Fifty dollars was paid in cash, and a promissory note dne February 27, 1901, was given for the remainder.</p> <p>December 26, 1900, before the maturity of the note, Steinmetz, hereafter referred to as the plaintiff, brought suit against Gordon, hereafter referred to as the defendant, to recover damages for breach of warranty in the sale.</p> <p>The plaintiff recovered before the justice $36.25 as damages, and his costs taxed at $55.90, and the defendant appealed thé case.</p> <p>In the court of common pleas the plaintiff filed a petition setting forth his-cause of action; and the defendant, March 29,1901, filed an answer and cross-petition, for answer admitted- the sale of the mare for the price averred and denied every other allegation, and by way of cross-petition set up the note and asked for judgment for the amount of the note with interest, and for costs of suit.</p> <p>For answer to the cross-petition of the defendant, the plaintiff set up two defenses. First, the false warranty, as set out in his petition, and second, that at the time of the commencement of the action the note had been transferred to and was held by a third person.</p> <p>The jury returned the following verdict:</p> <p>“We, the jury, being duly impaneled, sworn and affirmed, find that there is due the plaintiff from defendant herein, Gordon, the sum of $30.00, and we find that there is due the defendant, Ernest Gordon, from the said plaintiff, John M. Steinmetz, the sum of $53.28, leaving the amount due the said Ernest Gordon, $23.28. ”'</p> <p>The court overruled a motion for new trial and rendered judgment against the plaintiff in favor of the defendant for the balance found due him by the verdict of the jury, and for his costs, and rendered judgment against the plaintiff for his own costs.</p> <p>A. motion to retax the costs was overruled and error prosecuted to the circuit court.</p> <p>The circuit court found that the common pleas court erred “in the awarding of judgment for all of the costs against said plaintiff below. And the said judgment of the court of common pleas is hereby modified as follows: Judgment is entered for plaintiff below for all costs of the said plaintiff on the trial of'this cause of action before the justice of the peace, and in the court of common pleas on appeal; and judgment is rendered for said defendant for all costs on his .counterclaim — that is for all costs not awarded to the plaintiff.</p> <p>“It is therefore considered, ordered and adjudged by this court that the judgment and proceedings of the court of common pleas in said action in favor of said defendant in error and against said plaintiff in error, in so far as applies to the costs aforesaid, be and the same hereby are set aside, reversed and held for naught, and the costs of said action are hereby, adjudged against the said parties as hereinbefore stated.” ■</p> <p>Error to the circuit court is prosecuted in this court.</p>

<p>Union Depot Company — May grant to Transfer Company — Exclusive right to use portion of depot grounds — For standing its hacks, etc. — All others may he excluded,, when — Sections 8446 to 3452, Revised Statutes — Rights of contract.</p> <p>A Union Depot Company organized under the act of April 3, 1868 (65 O. L., 63, now sections 3446 to 3452, Revised Statutes, inclusive), may grant to a Transfer Company the exclusive right to use a designated portion of its depot grounds for the purpose of standing thereon its hacks and vehicles, and of soliciting thereon the patronage of incoming passengers; and a rule of said depot company excluding therefrom all others engaged in a like business, except for the purpose of delivering passengers or of receiving passengers who shall have previously employed them, is a reasonable rule, and may be enforced so long as said transfer company provides and furnishes at such depot adequate accommodations in the way of vehicles to meet the reasonable requirements of the traveling public and shall make no greater charge for its services in carrying passengers and baggage to and from such station than is made or may be permitted to be made by others for like services.</p>

<p>Will contest — Interpretation of will — Not subject for court, when —Claim will not properly signed — Under section 5946, Revised Statutes — Writing on margin of will — Question whether signature covered said marginal writing — Charge to jury — Law of wills.</p> <p>1. In an action to contest a will on the solé ground that it was not signed at the end thereof as required by section 5916, Revised Statutes, its construction or interpretation is not a subject for the consideration of the court or jury, the- • only question being, whether the will has been executed in substantial compliance with the formalities prescribed by the statute.</p> <p>2. Where,-in the trial of -such issue, the original will is in evidence, and shows the body of it to be written on horizontal lines of several pages of foolscap or legal cap paper, so that all its items and provisions are in consecutive order to the end on the last page and under which the testator’s signature appears, and it also shows that there is written in the margin of the last page to the left of and separated from the body of the instrument, a dispositive clause, extending lengthwise of the page from near the bottom to near the top thereof, and in no manner connected with the body of the instrument by any words, mark or character as a reference to indicate where the marginal matter is to be read in relation to the other provisions; and it is established by the testimony that' the marginal matter was written after all the-other provisions, at the request of the testator and before he attached his signature under, the body of the will, then such will is not signed at its end as required by statute and it is invalid for that reason.</p> <p>3. Where such will and such facts are before the jury, it -is not error for the court to charge as follows: “If you find from the evidence that the matter written upon the margin of the page upon which the testator’s signature appears, was written before the will was signed by him, and that, the testator intended such written matter on the margin to be a part of his will, then I say to you, such will is not signed at the end as required by statute and your, verdict should be for the plaintiffs and that the paper writing produced is not the last will and testament of Henry Irwin.”</p>

<p>County commissioner — Without wilfulness or corrupt motive— But through ignorance — Disregards provisions of statute— Regulating his duties — Not guilty of misconduct — Duties of public officials — Section 6915, Revised Statutes.</p> <p>A county commissioner who, without wilfulness or a corrupt motive, hut through ignorance, disregards the provisions of a statute regulating the exercise of his official duties, is not thereby guilty of misconduct in office within the meaning of section 6915 of the Revised Statutes which prescribes a fine and the forfeiture of office for such misconduct.</p>

<p>Municipal corporation enters into contract mth an individual— Under a statute which is unconstitutional — But subject-matter of contract is not ultra vires nor illegal — Facts such as would estop an individual from defense of unconstitutionality — Municipal corporation likewise estopped — Section 2702, Revised Statutes, does not apply, when — Controversy between parties under contract — Cannot be determined in mandamus proceedings, when.</p> <p>1. Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibitum, and the, facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.</p> <p>2. In- such case, when it is provided, in such statute that section 2702, Revised Statutes, shall not apply to contracts made under such statute, such provision must be read as an exception to said section 2702, and the latter section does not apply to contracts made under such statute.</p> <p>3. A controversy between the parties to a contract as to their respective rights under the contract cannot be determined in proceedings in mandamus.</p>

<p>Fees and mileage of jurors — Adjudged against a corporation— How taxed and paid — Section 6451, Bevised Statutes — Said statute a valid exercise of legislative power — Interpretation of law.</p> <p>1. The provision that “the whole costs so taxed shall be adjudged against and paid by the corporation,” found in the section of the Revised Statutes (6451), which directs how costs shall.be taxed and paid in appropriation cases, requires that the fees and mileage of jurors shall be so taxed and paid.</p> <p>2. Said provision is a valid exercise of legislative power.</p>

<p>.Assessments upon the trafficking business in intoxicating liquors —Become a lien upon the property on which traffic is conducted — Assessment lien is superior to prior mortgage, when —Priority of such lien not affected by fact that sale of liquor was not known, when — Liquor laws — Laws of taxation — Priority of liens.</p> <p>1. By force of our tax laws, tbe assessments upon the business of. trafficking in intoxicating liquors which it is the duty of the county auditor to place upon the tax duplicate, as well those for previous years which may have been omitted as those for the current year, become a lien upon the property in and on which such traffic has been conducted, superior to that of a mortgage given and duly entered of record prior to the entry of such tax on the duplicate and prior to the beginning of such traffic on the premises.</p> <p>:2. Such priority of lien is not affected by the fact that at the date of such mortgage no sale of liquor was ever known to have taken place on the premises; that the premises were not adapted to the traffic; that the mortgagee had no knowledge at any time of any sale of liquor thereon, or of any intention to sell on the part of any one, and that he loaned his money in good faith and had no reason to suspect or fear that any sales of liquor would ever he made on the-mortgaged premises.</p>

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

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

<p>Error to Circuit Court of Jefferson county.</p>