Volume 73 — Ohio State Reports, New Series

The original action was brought by the defendant in error, Nellie Forrest, against the Traction Company, to recover for personal injuries by reason of alleged negligence of the Company. A verdict was rendered in her favor and judgment thereon entered. This judgment was affirmed by the superior court in general term and the Company brings error.

<p>Error to the Circuit Court of Marion county.</p> <p>The tenth item of the will of William P. Hazen, executed in 1896, is as follows: ‘ ‘ Tenth. I give and bequeath to my niece, Miss Mary Pierce, daughter of my sister, Emily Pierce, of Middlefield, Geauga county, Ohio, $5,000.00, the same being in consideration of her care of my invalid mother many years preceding her death, and also her care of my infant son, Martin L. Hazen, after the death of his mother. ’ ’</p> <p>The legatee died without issue in the lifetime of the testator. Suit was brought by the administrator of the legatee against the executor to recover the. amount of the legacy. It is averred in the petition that in 1858 the testator was indebted to the legatee for services then and theretofore rendered by her at his request in the care of his invalid mother and of his infant son, which were of the value of $5,000.00.</p> <p>The tenth item of the will is then set out as an acknowledgment of the debt in writing and signed by the párty to be charged to remove the bar of the-statute of limitations. The court of common pleas sustained a general demurrer to the petition. The circuit court reversed.</p>

Suit was brought by Elizabeth M. Chambers in the court of common pleas of Mahoning county, Ohio, against The Baltimore & Ohio Railroad Company, to recover damages from said company for negligently causing the death of her husband, Harry E. Chambers, who she alleged was killed on the nineteenth-day; of September, 1902, on the line of defendant’s railroad in the state of Pennsylvania.

<p>Error to the Circuit Court of Greene county.</p> <p>The defendant in error was prosecuted before the mayor of Jamestown, Greene county, Ohio, on an affidavit which charged him with having, sold liquor in another municipal corporation in that county, contrary to law.</p> <p>The trial before the mayor resulted in conviction, and he was duly sentenced to pay a fine and the costs of the prosecution. The case was taken on error to the court of common pleas where the judgment of the mayor was affirmed. Ridgway prosecuted error in the circuit court, and that court on consideration of the record, reversed the judgments of the court of common pleas and mayor on the ground that the affidavit upon which Ridgway was tried and convicted by the mayor was defective in not stating the name of the party to whom the liquor was sold; hut the circuit court affirmed the judgment of’ the common pleas on all other questions raised. The case was remanded to the mayor of Jamestown with an order that it he dismissed. The State prosecutes error in this court to reverse the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>Mrs. Felix brought suit in the.court of common pleas to recover from the plaintiff in error the amount of premiums which she had paid to it upon the policy on the life of her husband, the right to recover being placed upon the ground that the policy was void. The company denied that the policy was void and alleged that it had treated it as valid from the time of its issuance in April, 1886, receiving premiums thereon until April, 1894, when she ceased to pay premiums and on June 25,1894, she forfeited the policy for non-payment of premiums and for no other reason. In the court of common pleas a jury was waived and the cause was submitted to the court upon the following agreed statement of facts:</p> <p>Minnie Felix, the plaintiff in the case, upon the solicitation of an agent of the defendant, insured her husband, Michael Felix, in the defendant company for the sum of $660.00, under the following circumstances :</p> <p>On April 2, 1886, Mrs. Felix, upon the solicitation of an agent of the defendant, stated to said agent that she would like to insure her husband for $1,000.00, but that her husband objected to being insured, and would not sign an application nor submit to a medical examination. The agent said he could insure the husband for $660.00, that he need not sign the application, nor be examined nor know anything whatever of the matter. Relying on these representations, Mrs. Felix consented to take out the policy and to pay for the same the sum of fifty-five cents weekly as premiums. An application was made out and the name of Michael Felix signed thereto, and it was upon said application that the company issued the policy, but it does not appear who made it out or signed the same, except that it was not done by either Mr. or Mrs. Felix, or anyone acting for them.</p> <p>April 12, 1886, Mrs. Felix received the policy in question and the receipt book, both of which are hereto attached. See Exhibits “A” and “C.”</p> <p>Mrs. Felix continued to pay the premiums from April 12, 1886, to April 16, 1894, when the same amounted to the sum of $233.20, at which time she discontinued payment of premiums and paid no more, and the policy was upon June 25, 1894, forfeited and canceled for non-payment. Mrs. Felix told her husband of the existence of the insurance in April, 1894, and because he still objected to being insured and also because she then became convinced that the policy had always been void, she refused to make further payment of premiums.</p> <p>The company had always treated the policy as valid, and after Mrs. Felix stopped payment, she was solicited .by the company’s agent to reinstate the policy and resume payments of premium, but she declined.</p> <p>Demand was made for a return of the premiums paid on the ground that the policy was void ab initio, and the premiums paid were unearned; the company refused to pay, and this suit is brought for their recovery.</p> <p>Plaintiff claims that the policy of insurance in question, No. 2485016, the application for the same (attached hereto as Exhibit “B”), and the premium receipt book, in which were entered premiums paid on said policy, and in which were printed “Rules and Regulations” of the company, to which plaintiff refers in her petition, all together constituted the contract of assurance.</p> <p>Defendant denies that the said rules and regulations constitute any part of said contract.</p> <p>Plaintiff never read the said rules and regulations until upon said- sixteenth day of April, 1894, her husband called her attention more particularly to that portion thereof, which is referred in the petition, and she then read all of said rules and regulations in said receipt book contained.</p> <p>Plaintiff had never read the application nor seen the original or a copy of it, until the original was exhibited to her in the court room at this trial.</p> <p>Michael Felix, the assured, was never examined by any physician for said insurance and never consented nor desired to be insured in this defendant company, nor did he know of the existence of the policy in question until the plaintiff accidentally revealed its existence to him on April 16, 1894, at which time he insisted that plaintiff cancel the same and called plaintiff’s attention to the fact that according to the rules and regulations there had been no valid insurance.</p> <p>The material representations and stipulations of the exhibits are the following:</p> <p>APPLICATION TO THE</p> <p>Metropolitan Life Insurance Co.</p> <p>J. Hurley, agent at Newport, under John Garrett, assistant superintendent.</p> <p>The undersigned hereby declares and warrants that the representations and answers made below, and in the examination on the other side, are strictly correct and wholly true; that they shall form the basis and become part of the contract of insurance (if one be issued), that any untrue answers will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health. The undersigned further agrees to be governed by the rules and regulations of the Metropolitan Life Insurance Company as they now exist, or may hereafter be altered or amended. The provisions of chap. 347 of the laws of New York, passed May 21, 1879, are hereby waived.</p> <p>Signature of Applicant: Michael Felix.</p> <p>RULES AND REGULATIONS.</p> <p>Under no circumstances can an application be written upon the life of a husband for the benefit of his wife, or vice versa, or upon the life of any person for the benefit of another (children excepted), unless the life proposed for insurance fully understands the matter and consents to the issuance of the policy, and personally signs the certificate of examination on the hack of the application. Any policy obtained in violation of this will be void.</p> <p>An adult application must be signed on its face directly under the warranty by the applicant in person, and on the back, at the foot of the examination form by the life proposed for insurance, and an infantile application by one of the parents of the child, or, if they be dead, by the person who has undertaken its support. * * *</p> <p>No policy on an adult life will be binding upon the company unless the person against whose death it insures is aware of the insurance — consents to the same — is examined by a physician of the company if the amount applied for is over $200, or by an agent if under that amount, and personally signs the examination form after the answers in said form are all recorded, and not otherwise.</p> <p>The material stipulations of the policy are: “In consideration of the representations and agreements in the printed and written application for this policy respecting the person named in the schedule hereinafter contained which application is hereby referred to and made a part of this contract” * * # “if any of the representations above referred to and upon which said policy is granted be not true this .policy shall thereupon become void.”</p> <p>Upon these facts the court of common pleas rendered judgment in favor of Mrs. Felix and that judgment was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Washington county.</p> <p>The facts are stated in the opinion.</p>

<p>■ Failure to provide for illegitimate child — Section 8140-2, Revised Statutes — Allegation as to previous proceedings under has-, tardy act.</p> <p>An indictment under section 3140-2, Revised Statutes, for failure ■to provide for an illegitimate child under sixteen years of •age need not allege that, in a. previous proceeding under the bastardy act the defendant had been adjudged to be the reputed father of such child, nor is evidence of such former adjudication necessary to a valid conviction.</p>

Smith brought suit in the court of common pleas of Butler county against Sterwerf for a revivor of a judgment. Judgment was rendered against Sterwerf reviving the.original judgment; and such proceedings were had that Sterwerf filed a petition in error in the circuit court of.Butler county to reverse the judgment in favor of Smith against Sterwerf.

<p>Error to the Circuit Court of Hamilton county.</p> <p>The controversy out of which the present error proceeding arises originated in the probate court of Hamilton, by the filing, January 26, 1904, of a petition by the Telephone Company against the City, averring in substance that the plaintiff is a corporation organized under the laws of the state of Ohio, for the purpose of constructing, operating and maintaining lines of telephone and telegraph, with the necessary poles, conduits, wires and appurtenances, in the city of Cincinnati; that on the twelfth day of October, 1903, the plaintiff made application to the council of the City of Cincinnati, to prescribe the manner of use by it of the streets, alleys, public ways, and other public property of the City, in constructing plaintiff’s lines of telephone and telegraph, and transmitting at the same time the form of an ordinance that the plaintiff was willing to accept and bind itself to perform and conform to; that on the twenty-fifth day of January, 1904, a committee to whom the application had been referred reported to the council that there was not room in the streets of the City for the accommodation of the lines asked for and that it was inexpedient to make any grant or agreement, which report was by the council on the date above named adopted, and thereupon the council finally rejected the application of plaintiff, and so the City and plaintiff have failed to agree on the mode of use of the streets, alleys, public ways, and other public property of the City in constructing plaintiff’s, lines of telephone and telegraph, although plaintiff has been and is willing to accept the permission upon any terms and conditions prescribed by the council that may be proper and lawful'for it to prescribe, or to accept any amendment which might be lawful and proper to the proposal presented by plaintiff. Then follows a prayer. that the court direct in what mode plaintiff may construct its telephone and telegraph lines along the streets, alleys, public ways and public property 'Of the City so as not to incommode the public in the use of the same.</p> <p>To this petition the City interposed a motion to make more definite by setting out what streets, etc., plaintiff proposes to occupy with the poles, wires and underground conduits; by setting out also the exact location of its proposed poles, wires, conduits, and other structures, and by stating further specifically the character of the poles and wires to be erected and the conduits and other structures proposed to be put upon or under the streets, etc.</p> <p>This motion, and likewise a motion asking that the cause be consolidated with actions by three other companies then pending in the probate court for like relief, being overruled, the defendant answered and admitted that the plaintiff presented to the- council the ordinance set forth in the petition and asked council for the consideration and passage thereof. Admitting that the council adopted the report of the committee referred to, and refused to pass the ordinance, the answer further averred that at the time the ordinance was so presented three other companies, to-wit: The Cincinnati Telephone Company, The Interstate Telephone Company, and The Fitzsimmons Telephone Manufacturing Company, presented to council for passage ordinances fixing the mode of like use of the streets for each, which were all referred to the committee and in pursuance of its report, council refused to pass any of said ordinances, and thereupon plaintiff and each of the three other companies named filed applications in the probate court asking said court to fix the mode of use of the streets, etc., for telephone purposes, all of which actions are still pending. The answer further alleged that “all the streets in the City of Cincinnati, in the business portion thereof, and the majority of said streets in the residence portion and the outlying districts, have been permanently improved, either with granite, asphalt, brick, bowlder or macadam; that in the various streets and highways of said City there is now an underground network of telephone, telegraph, electric light conduits, gas, sewer and water pipes, with the various manholes and fire cisterns used in connection therewith ; that at the intersection of the principal streets such conduits, pipes, manholes and other structures now occupy so great a proportion of the streets that it is dangerous, if not impossible, to permit a further use of the streets for such purposes; that in said City it is the uniform custom to permit property owners to utilize the space underneath the sidewalk as far as the curb for the purposes of their buildings ; that in the continued growth of said city such space as is not now used for underground purposes will be necessary to be used in the extension of the system of underground purposes by the City and other persons now having a right to use the streets for such purposes.</p> <p>‘ ‘ This defendant further says that The Cincinnati & Suburban Bell Telephone Company, a corporation under the laws of Ohio, now owns and operates a telephone exchange and system of wires for telephone purposes through conduits and upon poles in the streets and highways of the City of Cincinnati, under an agreement with said defendant for the maintenance and use of telephone conduits and poles; that said Company occupies all of the business portion and a large part of the residence portion with underground conduits, to-wit, all that portion between Freeman and Eggleston avenue, and the Ohio river and McMicken avenue, together with many other thoroughfares leading in the suburbs of tbe City, and that with these facilities and pole lines in outlying portions it is able to and it has supplied all the demands made or existing within the City for telephone service; that no further occupancy of the streets or highways is at all necessary for the purpose of such service, and that further occupancy for the same would incommode the public in the use of such streets and highways, and would cause additional expense to the residents and business concerns of the City; and if the plaintiff were permitted to occupy and should occupy the streets and highways of the City for telephone purposes, and much more if the other applicants aforesaid or any future applicants were permitted so to do, and should occupy said streets and highways, such occupancy would, in operation and effect, divert the said streets and highways, especially in the business portions of the City, from their original and legitimate purposes and uses, and prevent the further growth and extension of the uses to which the said City of Cincinnati ought to and will be compelled to apply them; and that under these circumstances and facts "it was impracticable, as in substance and effect-stated in the report above set out, for the city to formulate the terms of or to enter into an agreement with the plaintiff, of the other applicants above mentioned’, for the occupancy of its streets and highways for further telephone use and service, and that in consequence it did not unreasonably refuse to adopt the ordinance which plaintiff presented and sought to have passed either as the ordinance was written or as it could reasonably be amended. By reason thereof, said Cincinnati & Suburban Bell Telephone Company claims an interest in the streets and highways of said City superior to any right which plaintiff may acquire.</p> <p>“This defendant denies all other allegations in plaintiff’s petition not herein expressly admitted.</p> <p>“Wherefore this defendant prays that said-The Cincinnati Telephone Company, The Interstate Telephone Company, The Fitzsimmons Telephone Manufacturing Company and The Cincinnati & Suburban Bell Telephone Company he made parties herein, and he required to set up their several claims to rights in the streets- of the City of Cincinnati, and for all other and proper relief.”</p> <p>The reply admitted that the application of the three other companies named in the answer, accompanied by ordinances similar to that of plaintiff, were referred by council to the committee along with that of plaintiff; that the committee made the report alleged, and that council refused to pass any of the ordinances so presented, and denied all the other allegations of the answer.</p> <p>Upon trial the probate court found for the plaintiff ; further finding in substance that it was a corporation organized under the laws of the state for the purpose of building, owning, maintaining and operating a system of telephone and telegraph lines and conducting a telephone and telegraph business ' in the City of Cincinnati and elsewhere, and is authorized to bring this proceeding; that the plaintiff applied to the city, through its council^ for the purpose of coming to an agreement as to the mode of use- of the streets, alleys, public ways, and other public property of, and within the limits of the City, - but the City, on January 25, 1904, refused to agree with the plaintiff upon the mode of use of such streets, etc., for the purpose stated upon any terms, and that it is necessary for plaintiff to nse said streets, alleys and public ways. The court, then proceeding to direct a mode of such use, adjudged and decreed that upon certain designated streets, and in such other thickly settled portions of. the City as plaintiff may from time to time select, all its wires shall be placed in underground conduits or subways, and no poles should be erected in said district or other portions of the city where the wires are placed in conduits, except for distribution of wires or cables from conduits to buildings, and all such poles shall be, as far as possible, located in alleys; and further provided for the erection of the poles and wires therein in other portions of the City, with authority to the plaintiff to construct all conduits, etc., etc., in. such manner as to make its system a complete working system of telephonic communication. Then follow specific directions with respect to the character of the poles, wires, etc., the manner in which they are to be placed and maintained, for the method of procedure generally, and for change of the poles, wires, etc., as the future necessities of the streets and ways may require. The order further provides that before entering upon the construction of the contemplated work the plaintiff should file with the board of public service plans showing the location and character of the work designed to be constructed, and with power to the board to change and adjust the location and character of the work to meet conditions existing at particular localities at the time.</p> <p>Error being prosecuted by the defendant to the common pleas the judgment of the probate court was reversed. The Company then prosecuted error to the circuit court, by which court the judgment of the common pleas was affirmed. To reverse these latter judgments the Company brings error to this court.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>September 9, 1903, the city of Cleveland granted a franchise to Albert E. Green and assigns for the .construction and operation for twenty years of an electric street railway on Denison avenue between Lorain and Pearl streets in said city.</p> <p>Green in writing accepted the terms of the ordinance and commenced the construction of the railway.</p> <p>November 12, 1903, the defendant in error, Day, an owner of property fronting on that part of Denison avenue, brought suit in the court of common pleas of Cuyahoga county to enjoin Green and The Forest City Railway Company, plaintiffs in error, from constructing the railway, on the ground that at the time of the passage of the ordinance the written consent of a majority of the property owners on that part of Denison avenue, represented by the feet front of the property abutting that part of the avenue, had not been obtained.</p> <p>The court of common pleas found for the defendants and dismissed the petition. On appeal the circuit court made a special finding of facts and concluded as matter of law that a majority of consents had not been obtained and perpetually enjoined the construction of the road.</p>

<p>Foreign corporation for the purpose of defending physicians and, surgeons against prosecution for malpractice — But not agreeing to pay judgment against physician — Is not engaged in the insurance business — Such corporation not entitled to transact business in Ohio — Section 3235, Revised Statutes— Insurance law.</p> <p>1. A foreign corporation, the sole business of which as authorized by its charter, is that of defending physicians and surgeons against civil prosecution for malpractice, which, in the prosecution and conduct of said business, issues and sells to members of the medical profession a contract whereby it undertakes and agrees to defend the holder of said contract against any suit for malpractice that may be brought against him during the term therein specified, but does not assume, or agree to assume or pay, any judgment that shall be rendered against him in such suit, is not engaged in the business of insurance, nor is the contract so issued and sold an insurance contract.</p> <p>2. But a foreign corporation created for the purpose of engaging in and carrying on such business, is not entitled to have or receive from the secretary of state of the state of Ohio, a certificate authorizing it to transact such business in this state, for the reason that the business proposed is professional business, and as such is expressly prohibited to corporations by section 3235 of the Revised Statutes of Ohio.</p>

<p>Compensation of county auditors — Entitled to graded per cent. . of entire grand duplicate, when — Amount allowed on school hoard levy — Section 1069, Revised Statutes.</p> <p>Under section 1069, Revised Statutes, which provides for the compensation of county auditors, they are entitled to the graded per cent, therein specified, calculated on the entire grand duplicate of the county, including moneys collected on levies made hy school hoards, and also, to one percentum on the latter.</p>

<p>Error to the Circuit Court of Ashland county.</p> <p>Mrs. Hunter brought suit in the court of common pleas to recover against the defendant, a New York corporation, the amount of a policy of fire insurance executed by it upon her property situated in Clay county, in the state óf Florida. Her petition was filed March 30, 1898. It alleged that the policy was executed on April 29, 1891, and that the property was totally destroyed by fire on the twenty-first day of May, 1891.</p> <p>She further alleged that on or about the eighth day of June, 1891, the circuit court of Clay county, Florida, in a suit wherein Post and Flagg were plaintiffs and T. J. Adams, J. I. Adams, The Niagara Fire Insurance Company, Thomas S. Hunter et al. were defendants, an injunction was allowed restraining the defendants from adjusting, settling, collecting or attempting to collect the amount of said loss; that on or about March, 1893, she learned that said injunction had been dissolved and that afterwards said cause was appealed to the supreme court of Florida and was pending therein for several years. She also alleged that she was a resident of Ohio. In its answer the company alleged numerous matters of defense including the following: that the insurance was upon property situated in the state of Florida; that the contract was executed in that state; that the cause of action arose there; that by the statutes of Florida, and therefore by the statutes of Ohio, an action upon it was barred in five years; that the company has kept an office at Jacksonville, Florida, where the policy was executed, from that time until the beginning of the suit and that in the injunction suit in Florida, Mrs. Hunter was not a party and was not served with summons.</p> <p>Upon the trial of the case the statute of limitations of the state of Florida was introduced by stipulation and it provides that an action upon an instrument in writing not under seal is limited to five years. The cause was submitted to the court without the inter- • vention of a jury and judgment was rendered for the plaintiff. In the circuit court that judgment was reversed upon the ground that- the action was upon a Florida contract; that it was barred by the statutes of that state and therefore barred by the statutes of this state.</p>

<p>Error to the Circuit Court of Jefferson county.</p> <p>Basilio Marino was a subject of the King of Italy, resident in the state of Ohio in June, 1902. His wife and children then resided, and still reside, in Italy. On the sixth day of Juné, 1902, Marino was killed in Jefferson county, Ohio, by a passenger train operated by the plaintiff in error. The defendant in error, a citizen and resident of the state of Ohio, was duly appointed and qualified as administrator of the estate' of the decedent, Marino, and filed his petition in the court of common pleas of Jefferson county, alleging that the deceased was killed by the negligence of the railroad company and praying for a judgment, as damages, for the benefit of the wife and children of the deceased in the sum of $10,000.</p> <p>The second ground of defense .alleged in the defendant’s answer is as follows: “That plaintiff-ought not to have or maintain this action for the reason that the defendant is and was on the sixth day of June, 1902, a citizen and resident of the state of Ohio; that the said Basilio Marino was at the time of his death a native and citizen of Italy, that the .wife and children of the deceased for whose benefit this action has been brought are non-resident aliens of the state of Ohio and of the United States of America; that as such non-resident aliens they are not authorized by the statutes of the state of Ohio to recover damages through a legal representative for the death of said Basilio Marino.” The plaintiff demurred to the defendant’s second defense upon the ground that the same does not state facts sufficient to constitute a defense. The demurrer was overruled by the court of common pleas and judgment was rendered for the defendant. The circuit court reversed the judgment of the court of common pleas and remanded the case to the court of common pleas with instructions to sustain the demurrer. This proceeding in error is prosecuted to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Tuscarawas county.</p> <p>The plaintiff in error, Alice Graham, sued the defendant in error in the court of common pleas of Tuscarawas county to recover damages for the unlawful sale of intoxicating liquors to her husband. She averred “that on or about the twenty-first day of November, 1902, the plaintiff notified the defendant in writing not to sell any intoxicating liquors to her said husband.” A general demurrer to the petition was overruled and a trial resulted in a verdict and judgment.</p> <p>The circuit court reversed the judgment on the ground that the court of common pleas erred in oyerruling the demurrer.</p>

The plaintiff in error was tried and convicted by the mayor of the village of Hillsboro for unlawfully keeping a place where intoxicating liquors were sold in violation of law. The mayor exercised final jurisdiction in hearing and deciding the case and sentenced the accused to pay a fine of $200 and the costs of prosecution amounting to $42.25, and ordered that he be imprisoned in the county jail until the fine and costs be paid or secured to be paid.

<p>Conflict of statutes — Later act governs earlier one — Act of February 25, 1852, giving general jurisdiction to probate court— Concerning extradition of fugitives from justice — Fro tanto repealed by act of March 28, 1875 — Duty of sheriff on receiving warrant for arrest of fugitive from justice — Jurisdiction of courts in premises — Habeas corpus — Sections 97 and 5727, Revised Statutes — Criminal law.</p> <p>1. Where the general provisions of a statute are found to be in conflict with the express provisions of a later act relating to a particular subject, the latter will govern although the words of the earlier general act, standing alone, would be broad enough to include the subject to which the more particular provisions relate.</p> <p>2. The provision of the act of February 25, 1852, which gives tO' the probate court general jurisdiction to allow writs of habeas corpus (now incorporated in section 5727, Revised Statutes), is, with respect to the extradition of fugitives from justice, in conflict with the act of March 23, 1875 (now section 97, Revised Statutes), and is pro tanto repealed and superseded by the later act, the same being a special provision relating to a particular subject.</p> <p>3. Where a sheriff receives from the governor a warrant issued to him under favor of section 97, Revised Statutes, it is his imperative duty to arrest the person named therein as a fugitive from justice, if found within his county, and take him before a judge of the supreme court, or of the circuit court, or of the common pleas court of the district, to' be examined on the charge named in the warrant; and the probate court is without power, by virtue of its general jurisdiction in habeas corpus, or otherwise, to order a discharge of the prisoner.</p>

<p>Assessment for county ditch — Not made hy county commissioners —Until ordered placed on duplicate — -Section Jflf19, Revised Statutes.</p> <p>An assessment for a county ditch is not made hy the county commissioners until it is ordered hy them to he placed on the duplicate against the lots or lands or corporations or railroads assessed as provided hy section 4479 of the Bevised Statutes.</p>

<p>In Mandamus.</p> <p>The petition of relator in this ease is an original petition in this court, the averments of which are as follows: “Now comes the relator, C. R. Horn-</p> <p>beck, and for his cause of action herein says: “That he is the duly elected, qualified and acting prosecuting attorney within and for the county of Madison, Ohio, and that the defendant, S. W. Durflinger, is the duly elected, qualified and acting judge of the court of common pleas within and for the fifth district of the state of Ohio and holds the terms of the court of common pleas within and for the county of Madison.</p> <p>“That at the May term of said court of common pleas, 1905, within and for said county, the grand jury returned an indictment against one Jacob McCartney for murder in the second degree, to which indictment, after being arrested on a warrant duly issued thereon, the said Jacob McCartney has entered a plea of not guilty, and upon which issue the cause is now pending in said court for trial. Thereupon at said May term of said court this relator being fully satisfied that a fair and impartial trial of the said Jacob McCartney on said indictment could not be had in the said county of Madison, made application on behalf of the State, in writing to said court, the said defendant then presiding, under and by virtue of the provisions of section 7263 of the Revised Statutes of Ohio, for a change of venue and for an order that the said Jacob McCartney he tried on said indictment in a county adjoining the said county of Madison.</p> <p>“That said application came on for hearing before the said S. W. Durflinger, as judge of said court as aforesaid, who thereupon refused to consider the said application and refused to hear any evidence thereon and refused to pass upon the merits of the same for the sole and only reason that in the opinion of the said S. W. Durflinger the State of Ohio was not entitled under the constitution and laws of the state to a change of venue in a criminal case.</p> <p>“Wherefore, relator prays that a writ of mandamus issue against the said S. W. Durflinger commanding him to proceed to hear and determine said application for a change of venue on its merits, and also asks all other proper relief.” To this petition the defendant interposed the following demurrer: “Now comes the defendant and demurs to the petition and application of the plaintiff herein for the reason that the same does not state facts sufficient to -constitute a cause of action against the defendant.” Upon this demurrer, which challenges the right of relator to the relief prayed for, this cause is now submitted. (lessees) should yield and pay to the lessor, plaintiff herein, the one-sixth part of all the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the credit of plaintiff * * It is further alleged that in pursuance of the terms of the lease, the lessees proceeded to operate and have completed six wells, and since on or about December, 1902, have been continuously operating-under said lease; that The Buckeye Pipe Line Company connected its lines with the oil tanks on the leasehold under an arrangement with the lessees, and that it has taken into its lines all the oil produced from his lands without any authority from him to so do; that plaintiff had signed and tendered to the Pipe Line Company a division order giving him the one-sixth of said oil, and the lessees five-sixths, and requested it to sign the same, and that it refused ; that he signed and presented a similar division order to the lessees and requested them to sign the same and that they refused, and that by their conduct and the conduct of the Pipe Line Company, he has been and is being deprived of his one-sixth of the oil. The prayer of the petition is for a decree of specific performance, and that the Pipe Line Company account for the oil taken from said premises, and that plaintiff have judgment for the amount found due him and for general relief.</p>

<p>Error to the Circuit Court of Wood county.</p> <p>On the nineteenth day of December, 1903, the. defendant in error, Jacob J. Amos, commenced an action in the court of common pleas against the plaintiffs in error and The Buckeye Pipe Line Company, to enforce specific performance of the conditions of an oil lease, and for an accounting for his share of all the oil produced under said lease. .</p> <p>He avers in his petition that the plaintiffs in error, George Nonamaker, Peter Finkler and Henry C. Bacon, • are jointly interested in the work of operating for and producing oil from his lands in Wood county, under a written lease between them, dated October 11, 1902, which contained the provision that “for the consideration of one dollar and other valuable considerations the lessor demised and granted to the said lessees the said sixty acres of land for the purpose and with the exclusive right of operating thereon for gas and oil, upon the express conditions that the said named defendants,</p> <p>The answer of the lessees, plaintiffs in error, admits the terms of the lease as stated by the lessor, but further avers “that upon the completing and testing the first well on said premises, they became convinced that the amount of oil which could be produced from said well, or from any well or wells on said lands, would be so small that said premises could not be profitably operated for oil at a royalty of one-sixth.. That thereupon, they so informed the plaintiff, and stated that they would at once surrender their rights under said instrument and abandon the premises unless he would reduce the royalty prescribed in said instrument from one-sixth to one-eighth, and that they would have immediately abandoned, but that the plaintiff made and entered into the following verbal agreement with them, viz.: that in consideration of their continuing to operate said premises for oil, the royalty should and would thereafter be oné-eighth instead of one-sixth, as prescribed in said instrument, and that if at the end of thirty days after the completion of any well, the production of the land should amount to an average of five barrels per day for each well in operation, the royalty should be one-sixth, as specified in said instrument; and furthermore, that if at the end of thirty days from the completion of any well on said lands, the production of said lands should amount to an average of ten barrels per day for each well, the royalty, in that event, should be one-fourth of the production; that in consideration of said agreement, these defendants continued in possession of said lands and at a large expense to themselves, drilled, completed and equipped thereon five additional wells, which, with the first well, they have continuously operated, which they would not have done but for said agreement; that at no time at or after thirty days from the completion of any of said wells has the total production of said lands averaged more than two barrels per well per day.”</p> <p>The defendants then say that they have always been willing to account for the one-eighth royalty and willing to sign a division order to that effect.</p> <p>To this answer plaintiff replied denying all its averments. He further alleges that the claim made in the answer is within the statute of frauds and therefore void.</p> <p>Trial was had in the court of common pleas on the issues, and the finding and judgment were for the plaintiff. The defendants appealed to the circuit court, where the case was again tried. That court made findings of-fact which support the allegations of the answer as to the agreement to change the royalty from one-sixth to one-eighth, hut held that the agreement, not being in writing, is within the statute of frauds and therefore void. The defendant in error has filed a cross-petition in error, alleging, in part, that the findings of fact are not justified by the evidence. These findings of fact are further noticed in the opinion. The court made a decree for the plaintiff, against the plaintiffs in error, and error is prosecuted here to reverse it.</p>

Mrs. Ewing brought suit in the court of common pleas to recover of the executors of the last will and testament of her uncle, John C. Larwill, the sum of $50,000 which he had bequeathed to her mother, Elizabeth Lj Miller, who was the sister of the testator and the mother of Mrs. Ewing. The facts material to her right to recover are that John C. Larwill died testate August 30, 1901; his will had been executed October 4, 1897, one item thereof being: “Fifth.

<p>Legislative branch of, government — Is expressly prohibited from, exercising judicial power — But may empower and define jurisdiction of courts — General assembly may determine by which department of government an act may be exercised— Where constitution does not distinctly define the judicial power — Sections '1536-60 and 1536-61, Revised Statutes — Powers of government — Legislative authority.</p> <p>1. The legislative branch of the state government is expressly prohibited from exercising judicial powers, except as expressly conferred in the constitution, and it is expressly empowered to define the jurisdiction of the courts. Under the constitution of this state the power of defining the functions of the judicial department is only limited by the general rule that a grant of general powers to any department constitutes of itself an implied exclusion of all other departments from the exercise of such powers; and when the constitution does not distinctly define and distribute judicial powers, and it is not clear whether an act is wholly the exercise of legislative, executive or judicial power, it is within the power of the general assembly, as the depository of the legislative power of the state, to determine by which department it shall be exercised.</p> <p>2. The act entitled “An act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships,” 95 O. L., 259, Revised Statutes, sections 1536-60 and 1536-61, does not confer legislative power on the court of common pleas or a judge thereof, and is constitutional.</p>

<p>On October 21,1905, the grand jury for Coshocton county returned an indictment against the defendant, Benjamin Dickerson, for murder. Thereafter, on the fifteenth of November, the defendant filed a plea in abatement, to which the prosecuting attorney filed a demurrer, which was overruled, and thereupon the prosecuting attorney took a bill of exceptions and now presents the same to this court and applies for leave to file it for the decision of this court upon the points presented therein.</p>

<p>Motion for leave to file petition in error to tlie Circuit Court of Wyandot county.</p> <p>At tlie April term, 1901, of tlie common pleas of Wyandot, Willis Miller was convicted of murder in the second degree. Sentence followed, which upon error to the circuit court was at its January term, 1904, affirmed. The principal grounds urged for the motion, and for a reversal of the judgment below are the absence of the trial judge from the court room during a portion of the closing argument for the state and the misconduct of the prosecuting attorney during that absence.</p> <p>From the bill of exceptions it appears that during the absence of the judge certain proceedings were had, which are indicated by the extract which follows:</p> <p>“ And thereupon argument to the jury proceeded; and during the closing argument for the state, Mr. Meek, the prosecuting attorney, among other things, said: ‘We have had the judgment of seventy-five men supporting the state.’ ”</p> <p>By Clayton: “We object and except to that remark. ’ ’</p> <p>By Meok : “ I do not mean in this Willis Miller case, gentlemen of the jury; I do not mean it that way. ’ ’</p> <p>(The presiding judge left the court room and did not return during the remainder of the argument.)</p> <p>By Meck : ‘ ‘ Gentlemen of the jury, Mr. Burket says I acted dishonestly in this matter.”</p> <p>Burket: “I object and take exceptions to that remark of the prosecuting attorney. I said he acted ungentlemanly and unprofessionally. ”</p> <p>Meck: “No, sir, I have your very remark, and I took it down. He said, gentlemen, I acted dishonestly. That’s what you said Burket and you are taking exceptions to your own remarks. I say, you said to this jury, that I acted dishonestly. Now, do you want to take it hack?”</p> <p>Burket : “I don’t believe I said it. ’’</p> <p>.Meck: “Well, I thought, gentlemen, the gentle-</p> <p>men talking to'you yesterday would not believe their own statements, if they saw them in print. Well,, it’s a good thing for Mr. Burket, to withdraw his remark, because I was just about to pay my compliments to Burket; and if he withdraws that remark I will not stick the knife as deep in him as I would otherwise have stuck it. Burket was a stranger, hut I want to tell you that I have learned that he is a very clever ‘Alibi Fixer/ ”</p> <p>Burket: “I object and take exceptions to that statement.”</p> <p>Meck: “I say to you, gentlemen, that somebody fixes these alibis. I am finding alibis, alibis, alibis, since the twenty-eighth day of last April, when we began these trials; and I expect to meet an alibi as much as I expect to meet a jury. Alibis! They have a manufacturing establishment over there in Find-lay where they have alibis made to suit the occasion and I understand that Charles O. Burket was the foreman of it.”</p> <p>Burket: “I object and take exceptions to that improper statement to the jury.”</p> <p>Meck: “Yes, gentlemen, I presume they would take exceptions, but the alibis are ready; as soon as some one gets in trouble in Findlay they have an ali-bi. It puts me in mind of the story told of the negro that was convicted, who told the court, ‘Why, judge, I ought to have a new trial because I have two more alibis,’ and we have the same condition, for alibis are just as plenty over in Findlay. In fact, do you suppose I would not be surprised if I came in this case and found they had.no alibi? •’Why don’t they introduce some other defense at least in connection with the alibi? I am tired of this thing of having to meet bogus alibis, and I have had to fight alibis and alibis, case after case, and it makes a man weary, gentlemen. There are other defenses, and one is insanity, that they might set up, but they don’t claim to be insane, and I believe they represent one of the smartest of criminals. Why don’t you put up the defense of good character?”</p> <p>Clayton: “We object and except.”</p> <p>Meck: “Of course a man is presumed to have a good character unless the contrary is shown, but in a criminal case a man has a right to produce evidence of good character by his neighbors and friends to show that he is a man not liable to commit a crime. ’ ’</p> <p>Clayton : “We except. ’ ’</p> <p>Meck: “I would like to have a man put up a defense of that character. You must not forget that I am fighting for the fifth time for the state and never meeting any other defense hut an alibi is getting monotonous.”</p> <p>Clayton: “We except to this.”</p> <p>Meck : “And they have put up an alibi, and it is what we call, in the language of Gassy Hunt, ‘A Findlay alibi!’ ”</p> <p>Clayton: “We except.”</p> <p>Meck: “Yes, you gentlemen would take exceptions to my living, I guess. Now, as to Cora Landis. Why, she would testify to anything that Burket and the rest of them would ask her to.”</p> <p>Burket: “I except.”</p> <p>Meck: “Yes, and Bert Foster and Burket evidently worked up the alibi. They were over there together.1 ’</p> <p>Burket: “Note our exceptions.”</p> <p>Meck: “Yes, I would take exceptions, and I do take exceptions to your fixing up alibis. Those are my exceptions.”</p> <p>Burket : “Mrs. Ellis testified she never talked to me in her life.”</p> <p>Meck : “I say Bert Foster went down and talked to her, and I say you and Bert Foster together fixed up the alibi, and you know Bert Foster testified that you were at their house and he then talked to Lucy Ellis, and you then fixed up that alibi.”</p> <p>Burket: “Note our exceptions to these remarks. ’ ’</p> <p>Meck: “I did put Mrs. Landis upon the witness stand for the state, hut I took all precautions to support her and notwithstanding that support I had for her I knew how the jury threw her testimony to the winds. It was not necessary for us to have her testimony to get a conviction in the other cases. I say how strong the Charley Foster case was! How strong the George Ury case was, and it was not necessary that we would use Mrs. Landis in order to' convict them.”</p> <p>' Clayton: “Note our exceptions.”</p> <p>Meck: “Yes, hoys, take your exceptions. Gentlemen, they hate to have the pot uncovered and let you see what they have.”</p> <p>Meck : ‘ ‘ They have gone to the expense of getting here Charley Foster and George Ury, and they have them over here in the jail in calling distance, and they have put the county to the expense of getting them here and they do not call them. ’ ’</p> <p>Clayton : ‘ ‘ Note exceptions. ’ ’</p> <p>Meck: “Note all the exceptions you please. DO' you say it is not true?”</p> <p>Clayton: “We say there is no evidence to that effect and you have no right to make these remarks. ’ ’’ Meck : ‘ ‘ Guard Lime said he was here with them, didn’t he? I want to know why you put the county to the expense of getting Charles Foster and George’ Ury here and did not put them on the witness stand?' They dared not, gentlemen, the only inference natural to be drawn from that is they couldn’t do them any good. You have subpoenaed Marsh Lindsay and you have Mrs. George Ury subpoenaed — who else have you not got subpoenaed? Why don’t you put-them on the witness stand? Why, gentlemen, the only natural presumption or inference that, you can draw from it is that they cannot do them any good.”</p> <p>Meok : “I have heard it claimed, gentlemen, that George Ury was not there. Why don’t you show the jury that George Ury was not at the Johnson home? I will tell you why you want to show it to show that Mrs. Johnson and her son Albro made a mistake, but you cannot do it. Why don’t you show Charley Foster was not there? If you show Charley Foster was not there you show this jury that Mrs. Johnson and her son had made a mistake, but you can not do it. Why not show that Lock Foster was not there and Marsh Lindsay was not there? You cannot do it. Why don’t you show the rig was not out?”</p> <p>Clayton: “Note our exceptions.”</p> <p>Meck: “You have tried to berate Mrs. Johnson and her children in every way possible. You have misrepresented her; in fact, you have lied about her, and you cannot show where she made a single mistake in these five trials — ”</p> <p>Clayton: “We except.”</p> <p>Meck: “You must, concede by the fact that you don’t try to prove the whereabouts of Charley Foster, Lock Foster, Marsh Lindsay, and George Ury, you must virtually concede that Mrs. Johnson was right in four out of five trials. You must concede it and you do concede it. That’s a fact — ”</p> <p>Clayton : “We except.’’</p> <p>Meck: “And, gentlemen, what Dickson says is not denied. You have a right to consider that what he said has not been denied.”</p> <p>Clayton: “It is denied by the defendant’s plea of not guilty.”</p> <p>Meck : “It is not denied by the plea of not guilty. I say the defendant has plead not guilty and that’s all lie did. I say there has not any witness appeared before the jury and says what Charles Dickson testified to is not true.”</p> <p>Clayton : “We except to this. ”</p> <p>Mece: “I asked Sheriff Cliffe if he had told Dickson what to state and they objected, objected. I don’t know whether Willis Miller told him what he testified to or not, but I do say it is not denied by anybody. ’ ’</p> <p>Clayton : “ Note our exceptions. ’ ’</p> <p>At the conclusion of Mr. Meclc’s remarks:</p> <p>Clayton: “If the court pleases, during your absence from the court room or the bench, almost all the time the prosecuting attorney has been arguing to the jury the case, he has made many remarks exceedingly prejudicial to the defendant for which we have had no opportunity to make our objections and exceptions to the court, although we excepted, and now we wish the record to show that we call your attention to and protest against these improper and prejudicial remarks.”</p> <p>The Court : ‘ ‘ The court will now give the jury a ten minutes recess and you may put such things as you excepted to in writing and the court will instruct the jury full upon those matters.”</p> <p>And thereupon a recess of ten minutes was had, after which:</p> <p>Clayton: “We have not been able, your honor, to reduce the matters to which we excepted to writing, but we except, however, to the many prejudicial remarks and improper conduct of the prosecuting attorney in his closing address to the jury and we also except to the fact that the presiding judge was absent from the room during the time of his address or the greater portion of it, during the utterance of those remarks, which prevented us from making our objections at the time to the court.”</p> <p>The Court: “We will proceed with the case. ’’</p>

<p>Permit by city to use street — -For placing building materials— Is mere regulation and not a license — City not liable for damages, when — Question of notice to city.</p> <p>A permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is the mere regulation of a right of the property owner to make such use of the street and not a license to do an act in the street which but for such license would be illegal or a nuisance, and a city by giving such permit is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights unless it had notice express or implied of such omission and after such notice was guilty of negligence.</p>

<p>Error to the Circuit Court of Columbiana county.</p> <p>The facts of this case are sufficiently stated in the opinion.</p>

<p>Error to the Circuit Court of Morgan county.</p> <p>The defendant in error filed in the circuit court of Morgan county the following petition for mandamus:</p> <p>“Delator, for cause of action, says;. The defendant is the duly elected, qualified and acting auditor of the county of Morgan, in the state of Ohio.</p> <p>‘ ‘ That since August 1, 1902, relator has purchased the coal underlying about 3,269.79 acres of land lying and being in sections numbered 22, 23, 24, 25, 26, 27, 34, 35 and 36, in township numbered 14 of range numbered 14, in York township, Morgan county, Ohio, from the persons theretofore owning the same in fee, and deeds have been made, executed and delivered to him by the various owners thereof, conveying to the relator the fee in said coal with the right and privilege of mining and removing the same.</p> <p>“That each and every part and parcel of land from under which relator purchased said coal was appraised for taxation at the decennial land appraisement for the year 1900, by the land assessor of said York township, and such appraisement, with the corrections made necessary by the action of the county and state boards of equalization, was entered upon the tax duplicates of said Morgan county, Ohio, by the auditor thereof, and taxes thereon charged against said several and various landholders.</p> <p>“That your relator purchased and received conveyances from the following named persons, for the coal underlying the following described lands situate in said York township, Morgan county, Ohio, which were and are charged with taxes (exclusive of buildings), in the following amounts, to-wit:” (Here follows a description of the various tracts of lands — the names of the owners thereof and the amount of tax valuation of each tract on the tax duplicate of the county.)</p> <p>The petition then proceeds:</p> <p>“That relator and each of the above named grantors entered into an agreement in writing, endorsed upon the deed and signed by the grantor in the words following, to-wit:</p> <p>‘To the Auditor: You are hereby authorized to transfer the above granted property to the grantee, charging him with the one-third of the tax valuation of the same, after deducting valuations of buildings. ’</p> <p>“That relator purchased and received conveyances from the following named persons for the coal underlying the following described lands situate in said township, county and state, which were (and are) charged with taxes (exclusive of buildings), in the following amounts, to-wit: ’ ’ (And here follows a list of the various tracts of land — the names of the owners thereof and the tax valuation of each tract as it appears on the tax duplicate of the county.)</p> <p>The petition proceeds to aver:</p> <p>“That relator did not make any agreement with said landholders as to the division of the tax valuation of the said lands.</p> <p>“That on November 5, 1902, relator, by his counsel, presented his deeds for the first above described lands, together with the above described written request for transfer to the defendant, and demanded and requested of him as such auditor, to make transfer to him of the first above described lands upon the tax duplicates of the said county and charge him with the one-third of such tax valuation of each of said tracts, as agreed upon between relator and the above mentioned landowners, to-wit: George Ogg, F. Darringer, H. W. Weller, E. Nemberry, Emaline Deaver, A. R. Pickens, L. S. Gossman, B. R. House, M. L. Howard, Jesse George, M. V. B. Woods, C. E. Baker, J. A. Woods, C. O. Crider, Joseph 'Driggs and W. R. Milligan, and that said defendant then and there refused to transfer the said lands or any part thereof, as requested, and declined and refused to recognize the right of the relator and said landowners to make the said or any agreement of division of tax valuation, and threatened, if said deeds were given him for transfer, to place the same on the tax duplicates for taxation at a valuation of about eight dollars per acre, and as relator understands and alleges, without making any reduction of the valuation of said lands as charged against the said above named persons who sold the same to relator, but leaving the tax values to stand as before the sale of said coal to relator.</p> <p>“Relator says that at the time he presented to said defendant his deeds of conveyance last herein above described and demanded and requested of defendant that he transfer the same upon said tax duplicates, so that relator might be charged with such taxes upon his said coal as might be just and equitable, and so that the valuation of said coal be ratable with said first above described coal land, and that all of relator’s holding in said township be táxed at uniform values.</p> <p>“The defendant refused and declined to comply with said request, and refused and declined to transfer said lands, except at an arbitrary valuation of about eight dollars per acre, and without making any reduction of valuation to said persons who made said above described conveyances to relator.</p> <p>‘ ‘ That it is the duty of said .defendant, as such auditor, under the law to make transfer of all deeds and conveyances of real estate situate in his county, when presented to him, and to apportion the tax valuation of the same between grantor and grantee as they may agree, and, in the absence of such agreement, in proportion of the value of the part sold, to the part retained.</p> <p>“That the coal sold and conveyed to relator, as hereinbefore alleged, was part of the real estate appraised, and upon the duplicate for taxation, and the value of the same was included within, and was a part of the valuations hereinbefore set forth and alleged, and relator, and each of his grantors, have a right and are entitled.to have the tax valuation of said lands apportioned between them, as they have agreed, or, where there is no agreement, in proportion of the value of the coal bought by relator, to the residue of said lands still owned by his grantors.</p> <p>“Wherefore relator prays that a writ of mandamus issue against the defendant, commanding him to recognize agreements for division of tax valuations made by and between relator and his several grantors, as hereinbefore set forth, to transfer the said lands and coal sold him at a tax valuation of one-third of the present valuation, exclusive of buildings, to transfer his said lands where he has made no agreement of division, at such proportionate part of the present tax valuation, as the value of the part purchased by relator, bears to the part retained unsold by his grantors, and for all proper relief in the premises.”</p> <p>On motion of the relator, the court allowed an alternative writ of mandamus to issue, returnable on the first day of the next term thereof to be held in said county. The auditor filed a general demurrer to the alternative writ, which the court overruled and the auditor excepted.</p> <p>He then answered to the petition, hut the answer was held had on general demurrer. An amended answer was filed, in which it is denied that he refused to transfer said lands to relator upon the tax duplicate ; that on the contrary he was ready and willing, and offered at the time set out in the petition to make said transfers, hut that he refused to recognize the right of the landowners and the relator to determine hy agreement between them in what manner or to what amounts the tax valuation on said lands should be divided upon the duplicate.</p> <p>In addition to other facts, not regarded as material in disposing of this controversy, the amended- answer alleges that the relator, at the time he presented his deeds, nor at any time, did not furnish or offer any proofs of the value which the coal so assigned by the respective deeds, bears to the value of the lands retained by the grantors, and that the valuations agreed upon by the relator and his grantors is not just or equitable. It is also alleged that at the preceding decennial appraisement of said lands, it was not known that there was coal therein and the appraisement was made regardless of coal.</p> <p>In the reply the relator admits, that the auditor was willing and offered to transfer the lands described in the deeds; and further admits that the relator offered no proof of the value of the part purchased by him, but assigns as an excuse that the auditor refused to recognize said contract of division and to make any division other than at ten dollars per acre.</p> <p>The court heard some evidence, which appears in a bill of exceptions, and excluded evidence offered by the auditor.</p> <p>A peremptory writ of mandamus was granted and error is prosecuted in this court to reverse that judgment.</p>

<p>Error to the Circuit Court of Huron county.</p> <p>In the court of common pleas there was a recovery against the City of Norwalk as defendant upon what the plaintiff styled the second cause of action, the substance of which was that the city had permitted ice to accumulate and remain for forty-eight hours upon a prominent street of the city and that Tuttle while in the exercise of due care as a footman upon such street slipped upon said ice and fell sustaining injuries of a serious character.</p> <p>It was not alleged against the city either that there was a structural defect in the walk or that it had by any act contributed to the formation of the ice upon which Tuttle sustained his injury. A demurrer to this cause of action was overruled.</p> <p>In the answer of the city the allegations of negligence were denied and Tuttle’s own negligence was alleged to have been the cause of his injury. These affirmative averments were denied by a reply. On the trial there was no evidence to show any structural defect in the walk or any act of the city causing the formation of the ice. The evidence of Tuttle himself showed that the ice upon which he fell was plainly visible and that he actually saw it before going upon it. There was a verdict for the plaintiff, a motion for a new trial was overruled and judgment against the city followed the verdict. This judgment was affirmed by the circuit court.</p>

<p>Jurisdiction of circuit court — To review order of common pleas — r ■On appeal from prodate court.</p> <p>The circuit court has jurisdiction to review on error an order of the court of common pleas, made on appeal from the probate court, removing a guardian for cause.</p>

March 7,1903, Carl J. Haker commenced an action in the court of common pleas of Cuyahoga county for the purpose of having set off against a judgment which had been recovered against him, February 1, 1900, by the defendant John Serhant for $24.03, a ■certain judgment which, the plaintiff had recovered February 6, 1900, against Serhant for $30.40.

<p>Error to the Circuit Court of Richland county.</p> <p>• In October, 1902, Eleanor Vance, defendant in error, commenced this action in the court of common pleas of Richland county against the defendant in error, C. E. McBride, as administrator de bonis non of the estate of J. B. Daily, deceased, to recover on a promissory note.</p> <p>The plaintiff in her petition, after stating the appointment and qualification of the defendant, avers that he is. indebted to her upon a promissory note of which the following is a copy with all credits and endorsements:</p> <p>“Mansfield, 0., January 21, 1875.</p> <p>“One day after date I promise to pay to the order of T. J. Rohinson, four hundred and fifty dollars, at ten per cent interest.</p> <p>“John B. Daily.”</p> <p>“Received Jan. 21, 1876, forty-five dollars being interest to this date. $45.00.</p> <p>“Received April 13, 1887, three hundred and fifty dollars. Paid by P. W. Schaden, Admr., estate J. B. Daily.</p> <p>“Accepted as a valid claim against the estate of J. B. Daily. C. E. McBride, Admr. de bonis non of the estate of J. B. Daily. Jan. 29,1892.”</p> <p>She then avers that on the twenty-ninth day of January, 1892, she presented the claim to the defendant and that he endorsed thereon his allowance of the same, that eighteen months have elapsed, that no part of the claim has been paid and that there is due her therbon a sum stated which she claims with interest. The defendant for answer admits his appointment, that he allowed the claim but avers that he subsequently, in September, 1902, rejected it and denies every other allegation, and for a second defense avers that the claim is barred because more than five years elapsed after the pretended cause of action arose and before, the commencement of the suit.</p> <p>For a third defense he avers that the .claim is barred because more than four years elapsed before the commencement of the action and after he had qualified and had given notice of his appointment.</p> <p>And for a fourth defense he avers that more than two years elapsed after he was appointed and before the commencement of the action.</p> <p>A jury was waived and on the trial the plaintiff introduced evidence that she was the daughter , and only child of T. J. Robinson and also of her mother Sarah S. Robinson, who died in 1898, and that she found the note among her mother’s papers after her death and that it then bore the credits and endorsements above mentioned. Evidence was offered tending to prove the signature to the note and it was then received in evidence against the .objection of defendant.</p> <p>If appears from the note that it bears in addition to the credits and endorsements set out in the petition the following endorsement:</p> <p>“Pay to the order of Sarah S. Robinson. •</p> <p>“T. J. Robinson. ”</p> <p>The plaintiff testified that her mother • survived her father, that the note belonged to her mother, that she died testate and the note now belongs to the plaintiff. There was no proof of how or when the note came into the possession of the mother or that she disposed of it by her will.</p> <p>Judgment was entered for the plaintiff and the circuit court affirmed.</p>

<p>Property exempt from levy — Section 5441, Revised Statutes— Judgment debtor may exempt from/ execution property to value of five hundred dollars, when — Rxemptor after former exemption allowance may again claim exemption, when— Law of exemptions.</p> <p>1. Every judgment debtor, entitled to the exemption allowed by section 5441, Revised Statutes, may, at all times, keep in possession and hold exempt from levy and sale, real or personal property, to be selected by such debtor, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.</p> <p>2. A judgment debtor who has once claimed her exemption under section 5441, Revised Statutes, and has had the same set off and allowed to her, may thereafter, notwithstanding such former allowance, again claim her exemption against the same judgment out of other property; subject however to the limitation that a judgment debtor may not at any one time hold exempt, in lieu of a homestead, property in excess of five hundred dollars in value, in addition to the chattel property otherwise by law exempted.</p>

<p>Error to the Circuit Court of Columbiana county.</p> <p>The plaintiff in error was plaintiff below in an action against Reason B. Pritchard, William Moore, John McVicker, James K. Frew and David A. Pritchard, to recover of them $2,000, damages which he sustained by reason of the representations and conduct of said defendants while they were acting as directors of the First National Bank of New Lisbon.</p> <p>They were the lawful directors during the year 1897 and were elected again to the same positions on the eleventh of January, 1898; they qualified and entered upon the discharge of their duties. During both years, and until the twenty-first day of October, 1898, Reason B. Pritchard was president and William Moore, vice-president of the bank. On the latter day, the comptroller of the currency took possession of the bank, and on the twelfth day of November, 1898, I. B. Cameron was appointed receiver on account of its insolvency.</p> <p>On or about the fifteenth day of January, 1898, the plaintiff below, now plaintiff in error, purchased from W. S. Potts, as administrator of the estate of Simon Wisden, deceased, ten shares of the capital stock of said bank for a consideration of $1,000, and procured the shares to be duly transferred to him on the books of the bank, and he owned the stock when the receiver was appointed and the affairs of the bank wound up. He, with other stockholders, was assessed one hundred per cent, on his shares for the purpose of discharging the liabilities of the bank, which he says he paid. This amount and the original purchase price of the stock constitute the sum for which he. asks judgment in his petition.</p> <p>He alleges that “On the twenty-fourth day of December, • (which was a short time before he purchased the stock referred to above) the said corporation (the bank) professing to comply with the acts of congress requiring reports exhibiting the resources and liabilities of national banking corporations to be made to the . comptroller of the currency, made, with the knowledge, assent and direction of the defendants, a report to the said comptroller, of the resources and liabilities of said corporation as they existed on the fifteenth day of December, 1897, which report was sworn to by M. J. Child, as cashier, and was attested as correct by said Reason B. Pritchard, J ames K. Frew and J ohn McVicker, A copy of said report, marked exhibit “A” is hereto attached and made a part hereof.”</p> <p>The following is the report:</p> <p>“exhibit a.</p> <p>“Statement of the condition of the First National Bank at Lisbon, in the state of Ohio, at the close of business December 15, 1897.</p> <p> Resources. </p> <p>1 'Loans and discounts ............... .$ 74,208 01</p> <p>“Overdrafts, secured and unsecured.... 7,509 25</p> <p>“U. S. bonds to secure circulation...... 12,500 00</p> <p>“Banking house, furniture and fixtures, 7,850 00</p> <p>“Due from National Banks (not reserve agents) ........................... 1,989 95</p> <p>“Due from approved reserved agents... 13</p> <p>“ Checks and other cash items.......... 72 00</p> <p>“Notes of other National Banks....... 1,520 00</p> <p>“Fractional paper currency, nickels and cents ............................ 112 77</p> <p>“Lawful money reserved in bank, viz: Specie.................$24,345 60</p> <p>Legal tender notes...... 6,920 00</p> <p>“U. S. certificates of deposit for legal tenders.......................... 31,265 60</p> <p>“Redemption funds with U. S. Treasurer (5 per cent, of circulation)........ 562 50</p> <p>“Total .....................$137,590 21</p> <p> Liabilities. </p> <p>“Capital stock paid in............... $50,000 00</p> <p>‘£ Surplus fund ....................... 1,198 38</p> <p>“Undivided profits, less expenses and taxes paid....................... ' 2,331 29</p> <p>“National Bank notes outstanding...... 10,950 00</p> <p>“Due other National Banks............. 1,635 77</p> <p>“Individual deposits, subject to check.. 48,013 40</p> <p>“ Demand certificates of deposit........ 17,461 37</p> <p>“Bills payable....................... • 6,000 00</p> <p>“Total</p> <p>$137,590 21</p> <p>“The State op Ohio,</p> <p>“Columbiana County, ss.:</p> <p>“I, M. J. Child, cashier of the above named bank, do solemnly'swear that the above statement is true to the best of my knowledge and belief.</p> <p>• “M. J. Child,</p> <p> “Cashier. </p> <p>‘ ‘ Subscribed and sworn to before me this 24th day of December, 1897.</p> <p>“James W. Clark, “Notary Public.</p> <p>“Correct Attest:</p> <p>“R. B. Pritchard,</p> <p>“James K. Frew,</p> <p>“John McYicker,</p> <p> •“Directors.” </p> <p>The said report and attestation were caused by the defendants as directors and officers of the bank, to be duly published on or about the twenty-seventh day of December, 1897, in the Lisbon Journal, a newspaper published in Lisbon, Ohio.</p> <p>The petition alleges that said report was false in this, to-wit: the loans and discounts that were good and collectible did not exceed $40,000 instead of being $74,208.01 as stated in the report. The remaining $34,208.01 of said loans and discounts were, on December 15, 1897, uncollectible and worthless, as defendants then knew. The overdrafts did not exceed $1,000, instead of being $7,509.25; the remaining $6,509.25 of said overdrafts were, on December 15, T897, uncollectible and worthless, as defendants then knew.</p> <p>The total resources did not exceed ■ $96,873.95, instead of being $137,590.40, as stated in the report.</p> <p>The plaintiff also avers in his petition, that the individual deposits exceeded $68,000, instead of being $48,013.40, as reported.</p> <p>The demand certificates of deposit exceeded $46,000, instead of being $17,461.37, as reported.</p> <p>The bills payable exceeded $19,000, instead of being $6,000, as reported. The total liabilities exceeded. $199,115.44 instead of $137,590.54, as reported.</p> <p>It is further alleged that on the fifteenth day of December, 1897, and ever since, the bank was insolvent and unable to meet its liabilities, and its capital stock utterly worthless, all of which was well known to the defendants, and that any examination of said report and of the books would have disclosed to defendants as such directors that said report was wholly false, and that said bank was being mismanaged and its monies and assets misappropriated and squandered; that said directors, in failing to exercise the slightest diligence or make the slightest investigation of the business of the bank, were grossly negligent of their duties.</p> <p>He further alleges that in purchasing his stock, he relied upon the statements contained in said report as published, and believed them to be true, he made said purchase, which he would not have done if the true condition of the bank had been stated in the report.</p> <p>The answer admits that the defendants were directors and officers of the bank, as plaintiff alleged; and that on or about October 21, 1898, the comptroller of the currency took possession of the bank and that on November 12, 1898, I. B. Cameron was appointed receiver; and they admit that on or about the twenty-fourth day of December, 1897, the bank made a report to the comptroller of the currency of its resources and liabilities, which was duly published in the Lisbon Journal. The answer denies each and every other allegation in the petition. On the issues thus made up the case was tried to a jury.</p> <p>The bill of exceptions contained in the record shows that on the trial, evidence was given tending to prove that the report of the comptroller of the currency on the twenty-fourth of December, 1897, was made as set out in the petition; that the report was attested as correct by the defendants Reason B. Pritchard, James K. Frew and John McVicker, and caused by M. J. Child, cashier, to be published on the third day of January, 1898, in the Lisbon Journal, a newspaper published in Lisbon, Ohio; that the report was false in this, to-wit: that the amount due individual depositors was $68,902.65, and on certificates of deposit $41,781.92 — making the amount of total liabilities $179,270.34; that the bank, on the fifteenth day of December, 1897, was, and ever since, has been, insolvent and unable to meet its liabilities; that John McVicker and James K. Frew signed said report without any examination at the time, of the books of said bank as to its correctness; that an examination by a competent bookkeeper on said day, of the balances stated in the accounts of the individual depositors, would have shown the total amount due them to have been $68,902.65, and an examination of the entries in the journal as to certificates of deposits paid, with the ledger of said bank as to the “certificate deposit account,” would have shown— (here follows in detail the comparison between the amounts of various certificates paid as entered on the journal, and the amounts of same certificates as posted in the ledger at different times between April 11, 1891, and October 29, 1897, making a total of $31,117.25 of false entries in the ledger to the debtor side of the certificate of deposit account. One certificate for $125 which had been paid April 11, 1891, was entered as paid again for $9,117.25 and carried into ledger for that amount).</p> <p>The evidence further tended to show that the plaintiff relied on the statements contained in the said report, on the fifteenth day of January, 1898, when he purchased the shares of stock set out in the petition; that he paid $1,000 therefor and was assessed thereon $1,000, which he paid.</p> <p>Before argument the plaintiff requested the court to give the following instructions:</p> <p>“Gentlemen: If you find that the defendants, John McVicker, James K. Frew, and Reason B. Pritchard, or any of them, attested as correct the report of the condition, on the fifteenth day of December, 1897, of the First National Bank of New Lisbon, Ohio, said attestation as to the persons making the same vouched for, or certified to, the absolute truthfulness of the statements contained in said report; and if you find that said report was not correct, in that the assets were much less, or the liabilities, especially to the individual depositors, or, on certificates of deposit, were much greater, than represented in said report, or that said Bank was insolvent at said time; and if you further find that said report and attestation was caused by said defendants, or any of them, to be duly published in the Lisbon Journal, and that the plaintiff, relying upon said report and the statements therein contained, purchased some of the capital stock of said bank, and has been damaged thereby, you will find in favor of the plaintiff against such of said defendants as so attested and published said report, for the amount of such damage.”</p> <p>The court refused to give this request and the plaintiff excepted. In the charge to the jury, which will be considered in the opinion, the court instructed the jury, that as there was no evidence to show that William Moore and David A. Pritchard, who had not attested said report, were present or took any part' either in attesting the report or in assenting to or directing its publication, they should not find a verdict against them; and that, as Reason B. Pritchard had deceased during the pendency of the action, and there had been no competent evidence introduced to bind his estate in the hands of his executrix, the jury was not warranted in finding a verdict against said estate. The case was submitted as to the two other defendants, John McVicker and James K. Frew, and the verdict was in their favor, upon which the court rendered judgment. This judgment was affirmed by the circuit court, and the plaintiff prosecutes error here to reverse both of said judgments.</p>

<p>Error to the Circuit Court of Guernsey county.</p> <p>The defendant in error brought suit in the court of common pleas to recover of the Coal Company on account of injuries by him sustained while working in its mine. The petition is as follows:</p> <p>Plaintiff says that the defendant is and was at all the times hereinafter mentioned, a corporation duly organized and doing business under the laws of the state of Ohio, and owning a coal mine in said county of Guernsey, known as “Old Orchard Mine,” and to that end, employing many men, some of whom were by the defendant put under the control and direction of other employes employed by the defendant, as hereinafter appears.</p> <p>On and prior to the twenty-sixth day of October, 1901, plaintiff was employed hy defendant in said mine, known as “Old Orchard Mine,” as a machine man, so-called, for a hire amounting to about three (3) dollars per day, with the duty to labor in said mine, underground, at such places and at such work, as his foreman, also employed by the defendant, should direct.</p> <p>On said twenty-sixth day of October, 1901, plaintiff was by said foreman, ordered to work in room No. 10 at mining part of the pillar between room No. 9 and room No. 10,-which rooms were driven off of entry number six (6) in said mine, as a machine man, with a certain coal mining machine owned by the defendant, and operated by electricity furnished by the defendant, the roof whereof covering said working place in mining said part of said pillar, at, and covering a space of less than five (5) feet from, the face thereof, was unsafe and dangerous.</p> <p>That said unsafe and dangerous condition of said roof was so near to the face of the wall of the coal where plaintiff had to perform his duties in cutting the same with said machine, that it could not be posted or propped, and made safe, by the plaintiff while performing his duties in cutting the same; that said machine with which plaintiff had to work was eight (8) or ten (10) feet long and had to be worked across the entire working place; that the defendant knew that said roof was unsafe and dangerous, and knew that the plaintiff could not post or prop the same, for the reasons aforesaid, and that said defendant knew that the plaintiff had abandoned said working place on account of said dangerous condition of said roof, a day prior to the twenty-sixth day of October, 1901; that the defendant on the said twenty-sixth day of October, T901, with the knowledge aforesaid, represented to the plaintiff that it had caused said working place to be inspected, which was its custom to do in said mine, and that said place was reasonably safe for plaintiff to labor therein, and then and there directed and ordered plaintiff to proceed with said machine to work in said place, and relying upon the said representations and assurances of the defendant, and upon the faithful discharge of the defendant to make said place reasonably safe for said plaintiff, though plaintiff had abandoned the same, as aforesaid, plaintiff entered upon his labor at said place, and while engaged therein, a large part of said unsafe and dangerous roof suddenly fell upon him, throwing him upon said coal mining machine, which was then in operation, and by the weight of said slate upon him and the running of said machine, he was greatly and permanently injured by being bruised, cut and wounded upon the head, body and limbs, so that he was for about two months confined to his bed and to his home in great pain and misery, and incurring an expense of about seventy ($70) dollars for medicine and medical and surgical attention, and has ever since been permanently injured on the head, in the breast, back, right arm, hip, and left leg at the knee, and his ability to labor and his earning capacity have been greatly injured and lessened to his damage in the sum of ten thousand ($10,000) dollars.</p> <p>Plaintiff says that the defendant knew, or by the exercise of reasonable care, could have known, that said roof was unsafe and dangerous, and with said knowledge, carelessly and negligently assured and represented to plaintiff that said roof was safe and not dangerous, and carelessly and negligently ordered plaintiff to work at said place, and carelessly and negligently failed to make the same reasonably safe by removing said slate, as was its duty to do, as hereinafter stated, and thereby or by one or more of said negligeneies, caused plaintiff the pain, injuries and damage, as above set forth.</p> <p>Plaintiff says that on the twenty-fourth day of October, 1901, and for a long time prior thereto, that the roof, commonly called “draw-slate,” in the said Old Orchard Mine, frequently became loose and fell as soon as the coal was removed from under the same, and the defendant with full knowledge of the same, agreed with all of its employes, including the plaintiff, to remove from eaeh of said working places daily, the loose slate, commonly called “draw-slate,” and the removal thereof by the defendant, was part and parcel of the contract of employment existing between its employes, including the plaintiff, and the defendant; and the plaintiff says that the loose and dangerous slate in said working place was “draw-slate,” and for the purpose of carrying out said contract, the defendant on the twenty-sixth day of October, 1901, and for a long time prior thereto, caused said working place or places to be inspected each day, before its employe or employes entered their respective working places, for the purpose aforesaid. And on the twenty-sixth day of October, 1901, plaintiff relied upon said inspections and relied upon the representations made by said defendant at the time, that said working place was safe.</p> <p>Plaintiff says that he was without fault *or' negligence on his part.</p> <p>Wherefore, plaintiff prays judgment against the defendant in the sum of ten thousand ($10,000) dollars.</p> <p>A demurrer to the petition was sustained in the court of common pleas. Its judgment was reversed in the circuit court.</p>

<p>Term of probate judge — Section 7, article If, Ohio Constitution — In force November 7, 1905 — Person then elected to succeed himself as probate judge — Elected for term of three years — Article 17, amendment to the Constitution not retroactive — Terms of office thereunder not abolished, when— Existing terms of office may be extended by general assembly — Power of deputy election supervisors limited, how— Constitutional law — Law of elections.</p> <p>1. Section 7 of article 4 of the constitution was in force as to all of its provisions until the close of the election on November 7, 1905, and a person who was elected on that day to succeed himself as probate judge was elected for the term of three years from and after the expiration of the term which he was already holding.</p> <p>2. Section 2 of the amendment to the constitution which is now designated as article 17, providing that the term of office of a probate judge shall be four years, applies only to such persons as shall be elected to such office as provided in section 1 of such amendment.</p> <p>3. Said amendment is not retroactive. Terms of office existing at and before the adoption of the amendment are not restricted or abolished thereby; but existing terms of office may be extended by the general assembly so as to effect the purpose of section 1 of the amendment. The phrase "existing terms of office” means the terms of office as defined in the constitution and acts of the general assembly as they existed at the time of the proposal of the amendment and of its adoption.</p> <p>4. In certifying the election of an officer the power of the deputy supervisors of elections is limited to certifying that the successful candidate has been elected, and they have no power to decide upon a disputed term of office.</p>

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

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