Volume 77 — Ohio State Reports, New Series

<p>General index of county recorder — Recorder not compelled to keep up same, when — Sections n$4 and 1155, Revised Statutes.</p> <p>Under the provisions of Section 1155, Revised Statutes, a recorder cannot be compelled to keep up general indexes provided for by Section 1154, Revised Statutes, and theretofore authorized and completed, when the commissioners of the county refuse to pay therefor.</p>

The State, on the relation of the prosecuting attorney of Sandusky county, brought its action in the common pleas of that county against S. M. Fronizer, N. V. Elliott and The Bellefontaine Bridge and Iron Company, by virtue of section 1277, Revised Statutes, for the sum of $1931, as money illegally drawn from the treasury of said county by the defendants.

<p>Pishing in Lake Erie — Section 6968-2, Revised Statutes — (93 O. L,, 303)- — Requirement of license and payment of fee therefor — Not in violation of 14th amendment of U. S. Constitution — Nor Section 26, Article 2, Ohio Constitution — Constitutional law.</p> <p>Section 6968-2, Revised Statutes, as amended April 26, 1898 (93 O. L., 303), in -so far as it enacts that every person, firm or corporation desiring to engage in fishing in the waters of Lake Erie and the estuaries and bays thereof within this state shall make application to the commissioners of fish and game and obtain a license or authority so tó do, and for such license or authority shall pay the fee therein specified, is a valid enactment, and is neither in violation of the fourteenth amendment to the Constitution of the United States, nor repugnant to Section 26, Article 2, Constitution of the State of Ohio.</p>

<p>Error to the Circuit Court of Coshocton County.</p> <p>The defendant in error was indicted by the grand jury of Coshocton County at the January term of the court of common pleas for the year 1906, for killing Katherine Hughes, a neighbor, and wife of Simon Hughes. The indictment contains three counts, to which the accused plead not guilty, and he was tried on the issue joined as to each count.</p> <p>The first count charges the killing through deliberate and premeditated malice; that he assaulted the deceased with a certain blunt instrument which he held with his two hands, and that he unlawfully, purposely and with deliberate and premeditated malice, did strike, beat and wound the said Katherine Hughes with said instrument, prostrating her thereby, and that 'with like malice and purpose, he then and there choked and suffocated the deceased by forcing her neck between two saplings, which were so close to each other that their pressure towards each other choked and strangled her. The methods of accomplishing the death are minutely described in this part of the indictment, which alleges that the crime was committed in Coshocton County, Ohio, on the 28th day of June, 1905.</p> <p>The second count charges the killing by same acts of violence, while the accused was perpetrating a rape on the said deceased. This crime, it is alleged, was committed on the 28th day of June, 1905, in said Coshocton County, State of Ohio.</p> <p>The third count charges the killing of Mrs. Hughes on the same day and in said county by means of the same instrumentalities, while the accused was engaged in an attempt to perpetrate a rape.</p> <p>The trial on these counts resulted in a verdict of guilty as charged in the third count of the indictment, and a sentence of death was pronounced by the trial court. A motion for new trial, containing many grounds, was overruled, and the case taken on error to the circuit court, which found error in the following particulars, as shown by the judgment entry:</p> <p>“This cause came on for hearing upon the petition in error, the transcript, bill of exceptions, and the original papers and pleadings from the court of common pleas of Coshocton County, Ohio, and was argued by counsel; on consideration whereof, the court find that error appears affirmatively upon the face of the record to the prejudice of the plaintiff in error, in this, in cross-examination of witnesses offered by the defendant, Dickerson, as to character; error in permitting witness, Trego, to testify as to what Mrs. Hughes told him; error in permitting witness, Elijah Thomas, to testify that Mrs. Hughes told him about Dickerson hiding in the bushes; and error in giving fifth and tenth requests of the state to the jury.</p> <p>“It is therefore considered by the court, that the judgment aforesaid be reversed and held for naught. And said cause is hereby remanded to said court of common pleas for such further action as is provided by law.” The following exceptions are noted in the entry:</p> <p>“To all of said findings, orders and judgments the defendant in error, by James Glenn, prosecuting attorney, excepts. And James Glenn, the prosecuting attorney representing the state, excepts.”</p> <p>“Also comes the plaintiff in error, Benjamin Dickerson, and excepts to the failure of the court in not passing on and in not sustaining each and .every of the errors assigned for the reversal of said judgment as the same are set forth in his petition in error in said circuit court; and in failing to find and to sustain other errors set forth in said petition in error, and other errors apparent in the record other than the errors specifically found and set forth in its finding, order and judgment of reversal of said cause.”</p> <p>The petition in error filed in the circuit court by Dickerson contained many assignments of error not mentioned in the said entry, some of which will be noticed in the opinion.</p> <p>The state prosecutes error to the judgment of the circuit court, and asks its reversal and the affirmance of 'the judgment of the court of common pleas. The important questions raised in the record are stated and discussed more fully in the opinion.</p>

<p>Error to the Circuit Court of Miami County.</p> <p>The parties to the suit are the exécutors of the last will of Larkin Younce, deceased, and his children and legatees. Mrs. Flory, the defendant in error, brought suit against the plaintiffs in error in the court of common pleas praying for a construction of said will and especially for the cancellation of an item of $2,850 charged against her in a book of advancements explicitly referred to in said will. Fler petition alleges the due execution of the will and its admission to probate. It exhibits a copy of said will, of which the fourth item is material to the case. That item is as follows :</p> <p>“Item 4. I will to each of my children an equal share in my estate subject to the charges against them in my book of advancements, and to the following provisions as to my son John.”</p> <p>The petition further alleges that no advancement had been made to her by her father and that he, in consequence of feebleness resulting from age, had regarded certain real property belonging to his first wife, who was the plaintiff’s mother, as a part of his estate, and that a deed of his life estate therein which he had many years before made to Mrs. Flory’s husband at her request, was an advancement, and that in consequence of such mistake she had been charged with the item which she now seeks to have cancelled. A demurrer to the petition was overruled, and upon a denial of these allegations the court upon the evidence made the following finding:</p> <p>“And thereupon the court, after hearing the evidence, argument of counsel and due consideration does find, adjudge and decree that it was the true intention of said decedent, Larkin Younce, to secure an equal distribution of his estate among his children as indicated by the terms and conditions of said will. And the court does find from the evidence adduced, that said plaintiff, Millie Flory, never in fact received said sum of $2,850 or any part thereof, charged to her as an advancement. And that to charge the said Millie Flory the said'sum of $2,850 as an advancement would work an unequal distribution of the estate of Larkin Younce, deceased, and would be contrary to the true intention and conslaruction of his said will.”</p> <p>It thereupon adjudged that the executors should in the distribution of the estate of Larkin Younce disregard said charge in his book of advancements and pay to Mrs. Flory her full share of said estate as though said charge had not been made against her. This judgment was affirmed by the circuit court.</p>

<p>Abandonment of child by parent — Prosecution under Section 3140-2, Revised Statutes — State need not prove demand on father, vahen.</p> <p>In a prosecution under Section 3140-2, Revised Statutes, against a father for failure to support his child, he being able to do so, it is not necessary for the state to prove that a demand was - made upon the father for the performance of the duty enjoined by the statute.</p>

<p>Privilege from summons — Extended to non-resident stiitor — Going to or returning from court — Reasonable deviation from direct route allowed.</p> <p>1. A suitor going to, attending or returning from court, for the purposes of a case to which he is a party, is privileged from service of summons while so going, attending or returning. Andrews v. Lembeck, 46 Ohio St., 38, approved and followed.</p> <p>2. The privilege extends to all suitors, whether they be residents or non-residents of this state.</p> <p>3. The privilege should be allowed with a reasonable latitude. A party going to or returning from court need not take the most direct route. Reasonable deviations or delays should be allowed, provided they do not arise in carrying out a purpose entirely distinct' from the purpose of going to, attending, or returning from court.</p>

<p>Error to the Circuit Court of Wood county.</p> <p>The controversy originated in á suit before a justice of the peace. In its bill of particulars the plaintiff below, The American Bonding Company, of Baltimore, Maryland, alleged its corporate capacity and its authority to transact business in Ohio. It further alleged that June 16, 1903, the defendant, Edward S. Bryant, as colonel of the second regiment Ohio National Guards, made application to the plaintiff for a bond in the sum of $4,000, to run indefinitely, for an annual premium of twelve dollars; that defendant paid the first annual premium, and that at the end of one year an annual premium became due on said bond and application, which defendant has refused to pay, and asking judgment for the same and costs.</p> <p>By answer the defendant admitted the corporate capacity and right to do business in Ohio of the plaintiff; admitted the making of the application and the issuing of the bond and denied that the bond might be renewed and continued except upon mutual agreement between plaintiff and defendant ; admitted that he. paid the annual premium for the year ending June 16, 1904, and alleged that prior to the above date he notified the plaintiff that he did not desire a renewal and did not agree to such renewal or continuance of the bond after that date.</p> <p>The justice found for the defendant. Motion for a new trial was overruled and a bill of exceptions taken. On error to the common pleas by the Company the judgment was affirmed. These judgments were reversed by the circuit court, that court holding that the justice erred in overruling the motion for a new trial. Defendant below brings error. Further facts, bearing upon the issues, will be-found stated in the opinion.</p>

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>On the 6th day of June, 1903, Arminda S. Nicholson, of Lakewood, Cuyahoga County, Ohio, wrote her last will and testament on a printed blank form of will.</p> <p>Following the last item of the will is a blank space the full width of the paper and about six inches in length. Following this blank space is a printed blank testimonium clause, as follows: In testimony whereof, I have set my hand to this my last will and testament, at ......, this . . . day of ......, in the year of our Lord One Thousand .... Hundred and......</p> <p>Then follows a blank line extending about half way across the width of the page for the signature of the testator. Then there is a heavjr line extending clear across the page, and following this heavy line appears the following printed blank attestation clause:</p> <p>The foregoing instrument was signed by the said ......... . . in our presence, and by ...... published and declared as and for......last will and testament, and at......request, and in ...... presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses, at ........, this .... day of ......, A. D. 1....</p> <p>............, resides at...........</p> <p>............, resides at...........</p> <p>The blanks in this testimonium clause and attestation clause she filled in, and they then read as follows, including the signatures of the two witnesses:</p> <p>“In testimony whereof, I have set my hand to this my last will and testament, at Lakewood, Ohio, this Sixth day of June, in the year of our Lord One Thousand Nine Hundred and Three.</p> <p> U }> </p> <p>“The foregoing instrument was signed by the said Arminda S. Nicholson in our presence, and by her published and declared as and for her last will and testament; and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses, at Lakewood, Ohio, this Sixth day of June, A. D. 1903.</p> <p>“J. W. Southern, resides at Lakewood, O.</p> <p>“Julia K. Southern, resides at Lakewood, O.”</p> <p>On the 30th day of April, 1904, she died, and on the 3d day of May, following, her will was presented to the probate court of Cuyahoga County for admission to probate, and it was admitted to probate by that court.</p> <p>In June, 1904, the plaintiffs in error filed their petition in the court of common pleas of that county, asking that the will be set aside for the reasons, among others, that it was not handwritten or typewritten; that it was not signed by the said Arminda S. Nicholson; that it was not signed by her at the end thereof, nor by any person in her presence by her express direction.</p> <p>Answers were filed, and on January 4th, 1905, the court made the following order:</p> <p>“January 4, 1905. To Court: The motion by the defendants to require the plaintiff to make his petition more definite and certain, and praying for an order directing an issue to be made upon the' record in this cause,' is heard and refused as to the request to make more definite and certain, and granted as to the request to direct an issue to be made upon the record. Wherefore, it appearing to the court that the plaintiff in this case seeks to set aside a certain paper writing purporting to be the last will and testament of Arminda Nicholson, deceased, late of the county of Cuyahoga,' Ohio, which has been admitted to probate in said county, according to the statute in such case made and provided, and no issue being made up by the pleadings, it is now .ordered that the validity of said will be, and it hereby is, put in issue between the parties hereto, and that it be ascertained, by the verdict of a jury, whether said writing is, or is not, the last will 'and testament of said Arminda Nicholson, deceased.”</p> <p>In October, 1905, the case was tried by a jury. The defendants offered in evidence the will and a certified copy of the order of probate, and rested. The plaintiffs -then requested the court to direct the jury to return a verdict that the writing produced as the last will of Arminda S. Nicholson is not her valid last will and testament, for the reason that the testimony is insufficient to sustain the alleged will. The defendants then asked leave to withdraw the submission of the case for the purpose of offering additional evidence, and they then .offered to prove that the words, “Arminda S. Nicholson,” in the attestation clause, were the handwriting and signature of Arminda S. Nicholson, and that after her death the said will was found among her private papers, in a box, and inside of an envelope upon which was endorsed in her own handwriting, the words, “Last Will and Testament of Arminda S. Nicholson.” This testimony the court rejected, and upon the plaintiffs renewing their motion, the court directed the jury to return a verdict finding that the paper is not the last will and testament of Arminda S. Nicholson, and the jury returned a verdict as directed. Motion for a new trial was then filed and overruled, and judgment entered that the paper writing was not the last will and testament of said Arminda S. Nicholson.</p> <p>On error the circuit court reversed.</p>

<p>Contract for sale of corporation stock — Does not lack mutuality, when — Vendor to retain possession till certain dividends accrue— No time stipulated for payment — Payment to be made in reasonable time — Implied agreement.</p> <p>J. R. S. entered into a written agreement with S., J. and G., whereby he agreed to sell, and they agreed to buy in equal proportions, three hundred and sixty shares of corporate stock on certain terms and conditions which were in part: 1. “The purchase price of said stock shall be its par value of one hundred dollars ($100.00) per share.” 2. “Said stock shall remain in the name of said J. R. Stewart, until it is fully paid for as herein provided,” etc. 3. “All dividends declared on said stock shall be paid to said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.” 4. “Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.” There was no express promise by the purchasers, to pay for said stock, and no time named in the contract itself within which it was to be performed. Held; The contract is not wanting in mutuality or consideration. No time of payment being fixed by said contract, the law implies- — from their agreement to purchase — a promise and engagement on the part of the purchasers to pay, through dividends or otherwise, within a reasonable time.</p>

<p>Parish houses — Residences of priests — Not exempt from taxation— Article 12, Section 2, of constitution — Section 2732, Revised Statutes — Taxation of real property.</p> <p>Parish houses, otherwise known as the residences of the priests and bishops of the Roman Catholic church, are not exempt from taxation and legal assessments, by virtue of Section 2 of Artificie 12 of the Constitution of Ohio, nor by the provisions of Section 2732, Revised Statutes, although such places of residence are used by the priests and bishop for the discharge of many duties of a religious and charitable nature, which are imposed by the vows of their ordination and rules of the church.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The plaintiff, who was engaged in the business of trafficking in intoxicating liquors, filed his petition in the superior court against the defendants, who are the auditor and treasurer, the taxing officers, of Hamilton County, for a decree enjoining them from assessing and collecting a tax upon his business in excess of $350 for the year commencing May 28, 1906, a tax of that amount being assessable under former legislation of admitted validity, the excess of $650 above that sum, which the auditor proposed to assess, having no authority except the Act of March 28, 1906 (98 O. L., 99), whose constitutional validity is challenged in the present case upon the ground alleged in the petition, that it was never presented to the governor as required by the amendment to Article II, Section 16, of the constitution adopted in November, 1903. The case proceeded to trial upon an issue as to the presentation to the governor of the bill after it had passed both houses of the general assembly. The court below admitted the record evidence upon the subject of presentation, and excluded all oral evidence offered by the plaintiff to sustain the allegation of his petition that the bill had not been presented to the governor. It was known in the legislative proceedings as House Bill No. 24. It was not signed by the governor, but the superior court found the following facts:</p> <p>“On consideration thereof the court does find that there appears in the general record of the governor of Ohio, under date of March 28, 1906, the following entry:</p> <p>“ 'March 28. H. B. No. 24 presented to governor March 28. Filed, secretary of state, April 10, ’06.’</p> <p>“And the court does further find that upon the enrolled copy of said House Bill No. 24, known as the Aikin Law, and published in 98 Ohio Laws, pages 99 to 101, as the same is deposited in the office of the secretary of state of Ohio, there appears the following endorsement:</p> <p>“ ‘This bill was presented to the governor March 28, 1906, and was not signed or returned to the house, wherein it originated, within ten days after being so presented, exclusive of Sundays and the day said bill was presented, and was filed in the office of the secretary of state April 10, 1906.</p> <p>“ ‘Lewis B. Houck,</p> <p>“ ‘Secretary to the Governor.’</p> <p>“The court further finds that there appears in a book entitled ‘Minute Book of Acts of the General Assembly messaged to the governor, with his action thereon and disposition thereof,’ kept in the office of the governor of Ohio, under date of March 28, 1906, the following entry:</p> <p>“ ‘Mar. 28. H. B. No. 24 became a law on April 10, 1906, lapse of time. April 10. H. M. Shaul.’</p> <p>“The court further finds that there appears in the office of the clerk of the senate of Ohio, in a book entitled ‘Governor’s Receipt for Bills,’ at page 27 thereof, the following:</p> <p>“ ‘Executive Department, Office of the Governor,</p> <p>“ ‘Columbus, Ohio.</p> <p>“ ‘Receipt of the following bills is hereby acknowledged: LI. B. No. 24, Mr. Aikin.</p> <p>“ ‘C. C. Lemert, Executive Clerk.</p> <p>“ ‘Date, March 28, 1906.’</p> <p>“The court therefore finds that the foregoing record with respect to the presentation "of H. B. No. 24 to the governor of Ohio is regular and free from fraud.</p> <p>“The court does therefore exclude and rule out as incompetent and irrelevant all parol evidence offered herein to contradict said entries in the office of the governor of Ohio, and the endorsement on said bill; and all evidence to show that said entries and endorsement were not individually made by the governor of Ohio, or to show that no official proceedings were had or taken by the governor of Ohio during a period of time commencing March 27, 1906, and ending April 11, 1906; or that during said entire period of time commencing March 27, 1906, and ending April 11, 1906, the governor of Ohio was disabled by illness from performing any of his official duties, or to show that said enrolled copy of said H. B. No. 24, bearing the signature of the president of the senate and speaker of the house -of representatives, was not personally presented to the governor of Ohio, or placed in his custody.</p> <p>“It is therefore considered, ordered and adjudged that said House Bill No. 24,'known as the Aikin Law (88 Ohio Laws, pages 99 to 101), is a valid law of the State of Ohio, and that the provisions of said law were and are in full force and effect. And it is therefore considered, ordered and adjudged that the petition herein be and the same is hereby dismissed at the costs of the plaintiff, and that the temporary injunction heretofore granted by the court in Special Term be and the same is hereby vacated and dissolved, and the defendants are restored to all things lost by reason thereof.</p> <p>“To each and all of which findings, rulings, orders, judgments and decrees the plaintiff excepts.</p> <p>“And thereupon the plaintiff filed his motion in writing, as appears of record, for a new trial, and to set aside the foregoing decision, judgment and decree, and the court having considered the same, does now overrule said motion. To all of which the plaintiff excepts.</p> <p>“[Duly certified.]”</p> <p>Upon the facts so found the superior court, being of the opinion that the bill had become a law without being signed by the governor, rendered final judgment for the defendants.</p>

The plaintiff in error was tried in the police court of the city of Columbus on two affidavits charging him with receiving certain quantities of old metal, and with having failed to retain the same for the period of thirty days after the metal was received. In the police court the accused filed a demurrer, contending that Sections 4413 and 4414 of the Revised Statutes, under which the affidavits are drawn, are unconstitutional.

The defendant in error, Emma R. Shell, commenced an action in the court of common pleas of Perry county, October 21, 1904, to recover against the plaintiffs in error, R. G. Ardrey and M. T. Huston, as executors of Sarah Thompson, deceased, upon an account for personal services alleged to have been rendered during the life of the testatrix from May 6, 1898, to August 17, 1899, the claim having been rejected October 20, 1904.

<p>Duty of occupier of land — To intruding children — Railroad company not liable, when — Water works company not liable — For drowning child, when — Doctrine of turntable cases disapproved — Law of damages.</p> <p>1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.</p> <p>2. A railroad company is not liable to an infant who comes upon its premises without invitation and who is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable cases is disapproved. Harriman v. Railroad Co., 45 Ohio St., 11, distinguished.</p> <p>3. A water works company is not liable for the death by drowning of an infant who comes upon its land without invitation and there falls into a reservoir or basin of water while playing about it without the knowledge of the company.</p>

<p>Certain sureties may require creditors to sue• — Section 5833, Revised Statutes — Must be strict compliance with statute — Notice to ' husband of creditor is insufficient.</p> <p>A person bound as surety in a written instrument for the payment of money, who would avail himself of the defense of having given notice to sue, under Section 5833, Revised Statutes, must show a strict compliance with the requirements of said section. And where the creditor is a married woman, a notice by the surety directed to and served upon her husband, demanding that he bring suit thereon forthwith is insufficient, although such, notice be communicated and exhibited by the husband to his wife.</p>

<p>County ditches — Supervision of work and payment for construction— Commissioners to fix compensation for damages — Sections 4447 and 4461, Revised Statutes — Determination of necessity for ditch — Appeal from finding of commissioners premature, vahen— ' Ditch construction proceedings.</p> <p>1. In proceedings to establish a county ditch by virtue of Section 4447, Revised Statutes, and subsequent cognate sections, the-final order or judgment of the county commissioners contemplated by the last clause of Section 4461, from which an appeal may be taken by an aggrieved party, is the order or judgment finally determining that the proposed ditch is' necessary and will be conducive to the public health, convenience or welfare and that it is the best route, and also determining all claims for compensation and damages, if any are made.</p> <p>2. An appeal taken from the finding of the county commissioners that the ditch is necessary, in advance of the time set for the hearing of such claims for compensation and damages and before they are heard and determined, is premature and may be dismissed by the probate court for that reason.</p>

<p>Error to the Circuit Court of Franklin County.</p> <p>Clara Fendrick was arraigned before the police court of the city of Columbus on charge of a misdemeanor committed in Franklin County, but about two hundred feet south of the south corporation line of the city of Columbus. She entered a plea of not guilty. A jury being drawn for the trial of the charge, she challenged the array upon the ground that she resided, and her offense was alleged to have been committed, beyond the corporation limits of the city, while the jury was drawn wholly from within the limits of the city. Her challenge was overruled, and upon a trial she was found guilty, and an appropriate sentence followed the verdict. Upon her petition in error the court of common pleas affirmed the judgment, and the circuit court reversed the judgments of both the common pleas and the police courts.</p>

<p>Accused indicted for murder — May prove character of deceased — ■ From general reputation — Evidence of particular acts — Not admissible, when — Criminal lazu — Rules of evidence.</p> <p>1. When the person accused in an indictment for murder is defending on the ground of self-defense, he may prove that the deceased was a person of violent and dangerous character and that such character of the deceased was known to him at the time of the affray.</p> <p>2. In general the mode of proving the violent and dangerous character of the deceased is by showing that such was the general reputation of the deceased in that community and at that time and that such reputation was known to the defendant; hut the defendant can not he permitted to prove, for the purpose of showing reasonable ground for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness. on part of the deceased, which did not concern the defendant and at which the latter was not present and of which he has no personal knowledge.</p>

<p>Error to the Circuit Court of Clark county.</p> <p>Action was brought in the common pleas of Clark'by The First National Bank of Springfield against H. L. Rockfield, L. M. Goode, E. H. Ackerson, John Snyder, Frank Patterson and The Springfield, Charleston, Washington & Chillicothe Railway Company, to recover on a .promissory note, a copy of which follows:</p> <p>“$10,000. Springfield, Ohio, December 12, 1904.</p> <p>“On demand after date we jointly and severally promise to pay The First National Bank of Springfield, Ohio, or order, at its banking house Ten thousand dollars for value received, with six per cent, interest after date.”</p> <p>“(Signed) The Springfield, Charleston, Washington & Chillicothe Railway Company.</p> <p>“H. L. Rockfield, President, E. IT. Ackerson, Secretary.”</p> <p>On the back of the note appeared these names: “John Snyder, Frank Patterson, L. M. Goode, E. H. Ackerson.”</p> <p>The petition avers that there were no credits and that there were due plaintiff from defendants ten thousand dollars with interest from date. It further avers that the defendants, Rockfield, Goode, Ackerson, Snyder and Patterson indorsed the note before it was delivered to plaintiff; that due demand had been made of each defendant July 5, 1905, but no part had been paid.</p> <p>Demurrers were interposed by defendants, Rock-field, Snyder and Ackerson, which being overruled those defendants answered admitting that they indorsed the note before delivering it to plaintiff, but averred that they indorsed it for accommodation only, receiving no consideration whatever for so indorsing the note. Also that defendants were not notified of the non-payment of the note by the maker at maturity, and, therefore, were not indebted to the plaintiff in any sum. To this answer plaintiff demurred. This demurrer was sustained, and the answering defendants not desiring to plead further, judgment was rendered against them for the amount claimed and costs. On error to the circuit court this judgment was affirmed. Rockfield and Snyder, by this proceeding, ask a reversal of the judgments below.</p>

<p>In mandamus.</p> <p>This is an original action in this court. The petition prays for a writ of mandamus directing the auditor of state to issue his warrant on the treasurer of state for the amount paid by the commissioners of Franklin county for the services of an expert witness in a case of murder in the second degree.</p> <p>It is averred in the petition, that on the trial, it appeared necessary to the prosecuting attorney to have the testimony of an expert witness; that a certain expert was subpoenaed and testified; that the expert presented a bill for his compensation; that the prosecuting attorney certified that the services were necessary; that the county commissioners allowed the claim, the trial judge approved it, the county auditor issued a warrant on the county treasurer for its payment, and that the , county treasurer paid it. It is further averred that the accused was convicted and sentenced to the penitentiary for life and to pay the costs of prosecution, and that thereupon a writ of execution against the property of the defendant was issued and returned by the sheriff “No goods, etc,” and that thereupon the clerk of the court made a complete bill of the costs in the prosecution and included therein the compensation paid said expert, and that the prosecuting attorney examined into the correctness and legality of each and every item therein charged and certified that each and every item was correct and legal, and it is averred that the bill of costs so certified was then .presented to the warden of the penitentiary, who allowed the same and certified such allowance, and that said bill, with such certificate of the warden, was then presented by the sheriff to the auditor of' state, who deducted the item for the compensation of the expert from the amount of the bill, and refused to issue a warrant for the payment of that item.</p> <p>The defendant has filed a general demurrer to the petition.</p>

<p>Error to the Circuit Court of Defiance County.</p> <p>A sufficient narrative of the facts in this case, is found in the amended petition filed by plaintiffs below — defendants in error here — which amended petition reads as follows:</p> <p>“Said plaintiffs for their cause of action against the defendant say that at the general election held in November, A. D. 1891, one Wesley O. Barney was duly elected to the office of county treasurer of Defiance county, Ohio, to serve for a full term of two years commencing on the first Monday in September, 1892.</p> <p>“That the said Wesley O. Barney qualified as such county treasurer and entered upon the discharge of his duties as such officer on the said first Monday in September, 1892.</p> <p>“That previous to entering on the duties of his said office, the said Wesley O. Barney gave bond as such officer in the sum of $125,000 payable to the state of Ohio, and conditioned as provided by law, which bond with the oath of office of said treasurer and the approval of the commissioners thereon indorsed, the said Wesley O. Barney deposited with the auditor of said county.</p> <p>“That the said plaintiffs together with one W. H. Fee, one J. T. Wilcox and one A. Wilcox and the defendant became and were sureties on and upon the bond of the said Wesley O. Barney as such county treasurer.</p> <p>“That at the general election held in November, 1893, the said Wesley O. Barney was duly elected to the said office of the county treasurer of Defiance county, Ohio, to succeed himself for the term of two years beginning the first Monday of September, 1894, and the said Wesley O. Barney being duly qualified under his said re-election to the said office and on the said first Monday in September, A. D. 1894, entered upon the discharge of the duties thereof.</p> <p>“That the said Wesley O. Barney served in his said office as county treasurer of said county under his re-election thereto, as aforesaid, from the first Monday in September, A. D. 1894, until about the 27th day of November, A. D. 1894, when the said Wesley O. Barney resigned the said office, leaving said office vacant for the balance of said term to which he-had been re-elected as aforesaid.</p> <p>“That about December 1st, 1894, the board of county commissioners of said county of Defiance, duly appointed the defendant, George C. Serrill, as county treasurer of said county to fill the said vacancy in said office occasioned by the resignation of the said Wesley 0. Barney, as aforesaid, that is to say, to serve thereof from the date of his qualification as such treasurer until the first Monday in September, 1896.</p> <p>“Said plaintiffs say that during the said Wesley O. Barney’s incumbency in said office for the term for which he was first elected, he misapplied the. public funds coming into his hands by virtue of his said office and did not pay over according to law all such moneys which came into his hands for state, township, county and other purposes.</p> <p>“That the said public moneys so misapplied by the said Wesley O. Barney and not paid over according to law, as aforesaid, amounted to more than nine thousand dollars ($9,000), and by reason of the said misapplication of the said moneys and the failure of the said Wesley O. Barney as such county treasurer as aforesaid, to account for and pay over according to law the moneys so misapplied, the plaintiffs herein and the said defendant as sureties upon the said official bond of the said Wesley O. Barney were obliged to and did pay into the said county treasurer, to make good the amount so misapplied by the said Wesley O. Barney, as county treasurer, as aforesaid, more than nine thousand dollars ($9,000).</p> <p>“Plaintiffs say that in order to obtain the said sum of nine thousand dollars ($9,000) wherewith to make good the said amount so misapplied by the said Wesley O. Barney as county treasurer as aforesaid, these plaintiffs and the defendant borrowed the said amount from certain banking institutions, and to evidence the amount so borrowed from the said banking institution respect-. ively, gave their joint and several promissory notes.</p> <p>“Said plaintiffs say that at the time of the appointment of the said defendant to fill the said vacancy in said office of county treasurer as aforesaid, the said joint and several obligations of the plaintiffs and of the defendant given to evidence the said moneys by them borrowed to make good the said misappropriation of the said Wesley O. Barney were still outstanding and wholly unpaid, and the said plaintiffs and said defendant were jointly liable thereon for the whole of the said sum by them borrowed as aforesaid.</p> <p>“Said plaintiffs further say that the said defendant by reason of his appointment to fill the said vacancy in the said office of county treasurer became ex officio treasurer of the moneys and funds of the city of Defiance in said county and entitled to the pay, salary and emoluments of such office.</p> <p>“Said plaintiffs further say that upon the appointment of said defendant to fill said vacancy in the said office as aforesaid, the said defendant solicited these plaintiffs to become his sureties upon his official bond as such county treasurer under said appointment, and then and there offered and proposed to the plaintiffs that if they would sign his said official bond and become his sureties thereon, the said defendant would forthwith upon the execution and acceptance thereof, enter upon- the discharge of the duties of such office and of said office of city treasurer of the said city; and in consideration of the said plaintiffs becoming sureties upon his said official bond, would use and employ all the fees, salary and emoluments of said office received by him as such county treasurer and as treasurer of the said city in excess of ninety-one dollars and sixty-seven cents ($91.67) per month in the discharge of the said joint obligations of the said plaintiffs and said defendant given by them as aforesaid in evidence of moneys by them borrowed and otherwise procured and paid over to make good the said public moneys misappropriated by the said Barney as such treasurer as aforesaid.</p> <p>“Plaintiffs say that they then and there accepted said offer and proposition of said defendant, and in consideration that the said defendant use and employ all the said fees, salary and emoluments received by him during his incumbency in said office under such appointment on account of his services as such county treasurer, and as such 'city treasurer, in excess of the said sum of ninety-one dollars and sixty-seven cents ($91.67) per month, in the payment of the said joint obligations of the said plaintiffs and said defendant and in consideration of the said promises and agreements of the said defendant so to do, the said plaintiffs signed the said bond of said defendant in the sum of one hundred and twenty-five thousand dollars ($125,-000) ; that the said bond of the said defendant as such county treasurer was conditioned as provided bv law and signed by these' plaintiffs as sureties as aforesaid, and was duly approved by the county .commissioners of such county, and such approval indorsed thereon, and the said bond deposited by the said defendant with the auditor of said county.</p> <p>' “Plaintiffs say that the defendant as such appointee entered upon the discharge of the duties of said office on the first day of December, 1894, and served as treasurer of said county under such appointment for the whole of the said vacancy, that is to say, until the first Monday in September, 1896.</p> <p>“Plaintiffs say that between December 1st, 1894, and September 1st, 1896, the fees, salary and emoluments coming into the hands and received and paid over to-the said defendant on account of the services -of said defendant as county treasurer and the services of said defendant as said city treasurer, amounted to the sum of fiye thousand and ninety-four dollars and sixty-one cents ($5,094.61), which amount was paid to and received by said defendant; that under and by the terms of said contract and agreement of said plaintiffs and said defendant, by which said plaintiffs became sureties upon the said official bond of the said defendant as aforesaid, the said defendant was liable for the payment and required to pay over for the benefit of said plaintiffs and said defendant upon their said joint obligations, all of said fees, ■salar}'- and ■ emoluments paid to and received by said defendant during his incumbency in said office as' aforesaid, in excess of the sum of $1,925.07, that is to say, to so use arid employ out of said fees, salary and emoluments paid to and received by said defendant during his incumbency in said office, the sum of $3,169.54.</p> <p>“Plaintiffs say that the said defendant, pursuant to his said contract with the plaintiffs, did use, employ and pay out in the discharge of the said joint obligations of the said plaintiffs and said defendant and in the discharge of certain other joint obligations of the said plaintiffs and said defendant growing out of their said suretyship upon the said official bond of the said Wesley O. Barney, and arising through the misappropriation of the said public funds of the said county by the said Barney, in the aggregate the sum of $2,-079.77, which amount was so paid by the said defendant out of the said excess of the said fees, salary and emoluments of the said office, earned, paid • to and received by the said defendant over the said sum of ninety-one dollars and sixty-seven cents per month.</p> <p>“Plaintiffs say that the said defendant never in any wise paid out, used or employed any further or additional amount in the payment of the'said joint obligations of the said plaintiffs and defendant, nor did the said defendant ever pay to the said plaintiffs or to either or any of them, or for their use or the use or benefit of either or any of them, any part or portion of the said fees, salary and emoluments of the said offices earned and received by him as aforesaid, excepting the said sum of $2,079.77, so paid out bv the said defendant as hereinabove stated.</p> <p>“Plaintiffs say that the said joint obligations of the said plaintiffs and the said defendant to the amount' of $3,000 still existed and were outstanding and wholly unpaid at the time the said term of the said offices to which the said defendant was appointed as aforesaid expired.</p> <p>“Plaintiffs further say that afterwards the said obligations were sued upon and judgments were. duly rendered, taken and entered against said plaintiffs and said defendants jointly on said obligations; that said defendant failed, neglected and refused to pay over in the discharge of the said judgments any of the said excess of the fees, salary and emoluments of the said offices over and above the said sum of ninety-one dollars and sixty-seven cents per month earned, paid to and received by the said defendant as aforesaid.</p> <p>“Plaintiffs further say that the said defendant of his own means and money paid about one-eleventh part of the amount of said judgments, and these plaintiffs were obliged to and did pay out in the discharge of the said judgments about seven-elevenths thereof, and an amount in excess of the sum of $1,089.77, the remaining three-elevenths of said sum having been paid by the said other persons who, with the said plaintiffs and said defendant, were sureties upon the said bond of the said Wesley O. Barney.</p> <p>“Plaintiffs further say that the said fees, salary and emoluments of the said office earned, paid to and received by the said defendant in excess of the said sum of ninety-one dollars and sixty-seven cents ($91.67) per month in addition to the said excess paid out by the said defendant for the use of the said plaintiffs and said defendant and in the discharge of their said joint obligations as aforesaid, amounts to the sum of $1,089.77.</p> <p>“Plaintiffs further say that by reason of the making of the said contract between said plaintiffs and the said defendant, and by reason of the other facts aforesaid, the said defendant became and is indebted to these plaintiffs in the sum of $953-54» the said sum being seven-eighths of said sum of $1,089.77, received and retained by the said plaintiff, with interest thereon from the first Monday in September, 1896.</p> <p>“Said plaintiffs further say that the said defendant has never paid' the plaintiffs the said sum or any part thereof, and there is now due and owing the said plaintiffs from the said defendant by reason of the facts aforesaid the said sum of $953.54, with six per cent, interest thereon from September 5th, 1896, which said plaintiffs claim.</p> <p>“Wherefore said plaintiffs pray for a judgment against the said defendant for the said sum of $953.54, together with six per cent, interest thereon from September 5th, 1896.”</p> <p>To this amended petition the defendant below, George C. Serrill, filed a general demurrer. This demurrer being overruled by the court the defendant answered, admitting the election and re-election of Barney, and his qualification as treasurer of Defiance county; the appointment of Serrill and his qualification; the giving of the official bonds by Barney and Serrill and the signing thereof by the sureties named; the defalcation of Barney, and the payment of the shortage by his sureties; the borrowing by the sureties, of the money to make good such shortage, and the giving of their joint and several promissory notes for the amount so borrowed, and denied all the other allegations of said amended petition. Issue being joined, a jury was waived, and by consent of all the parties the cause was submitted to, and tried by, the court. After hearing the evidence and arguments of counsel, the court, upon consideration found and adjudged that the contract and agreement between plaintiffs and defendant, set out in plaintiffs' amended petition, as and for their cause of action, was against public policy, and was illegal and void; and thereupon the court rendered judgment in said cause against the plaintiffs and in favor of the defendant, George C. Serrill. A motion for new trial was made and overruled, and exceptions were duly noted. The case was taken on ' error to the circuit court, and' that court, finding no other error in the record, reversed the judgment of the court of common pleas upon the sole ground, as stated in its journal entry: “that the court of common pleas erred in finding and determining that the said alleged contract of the said defendant, George C. Serrill, with the said plaintiffs — being the contract sued upon by the said plaintiffs — is contrary to public policy and is illegal and void.” George C. Serrill now prosecutes error in this court, asking that said judgment of the circuit court be reversed, and that the judgment of the court of common pleas be affirmed.</p>

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>The plaintiff in error was plaintiff in the court of common pleas in an action against the defendant in error to recover on a policy of insurance. She was the wife of Elias Rheinheimer, the insured, and the beneficiary named in the policy. The petition alleges that: “On the 13th day of November, 1899, at the city of Cleveland * * *, through W. G. Wilson, who was then and there its general and countersigning agent, with authority to receive premiums, accept risks and issue policies, in consideration of the sum of twenty-five dollars then paid to it by the said Elias Rheinheimer, said defendant agreed and promised in case of the death of said Elias Rheinheimer, resulting solely from bodily injuries effected during the term of twelve months from noon of the 13th day of November, 1899, through external, violent and accidental means within ninety days from the date of said injuries, to pay to the said plaintiff the sum of five thousand dollars.</p> <p>“Thereafter, in consideration of the further payment of twenty-five dollars to it paid by said Elias Rheinheimer, said defendant continued in full force said policy for twelve months from noon on November 13, 1900, through W. G. Wilson, its agent as aforesaid. On the 30th day of December, 1900, said Elias Rheinheimer accidentally scratched the index finger of his left hand, leaving a visible mark, thereby then and there introducing into his system blood poisoning, which caused his death on the 3d day of January, 1901. Said death did not result wholly or partly, directly or indirectly, from any of the causes excepted in said policy, but wholly and directly from said accidental scratching of said hand.</p> <p>“Immediate and due notice in writing of said accidental injury and death, and the proof of death, was forthwith made and delivered to said company and accepted -by it. More than ninety days have elapsed since the receipt by defendant of said proof of death. By reason of the premises there is now due and payable from said defendant to this plaintiff the sum of five thousand dollars, with interest thereon from the 3d day of April, 1901.”</p> <p>Plaintiff prayed for judgment in said sum with interest. No copy of the policy was attached to the petition.</p> <p>The defendant answered and set up six defenses. The first defense consists of admissions of the execution and delivery, the payment of premiums and terms of the policy, the death and proof thereof as averred in the petition, and denies all other allegations not admitted.</p> <p>As a second defense, the answer sets out a copy of the insurance policy, and pleads the third condition of the policy, the part pertinent here being as follows: “nor the result, fatal or otherwise, of voluntary or involuntary taking of poison, contact with poisonous substances, inhaling of any gas or vapor, or of sunstroke or freezing. This insurance does not cover in event of accident or death, loss of limb or sight, or disability, res%ilting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form, proximate or contributory, as a primary, secondary or final cause of accident, injury, disability or death; nor does it cover death or disability due to hernia, existing prior or subsequent to the issue of .this policy,” etc.</p> <p>Having quoted this clause of the policy, the defense further says, the death of the insured was not the result of means or causes covered by said policy, but was caused wholly or partly by a disease, to-wit, blood poisoning.</p> <p>The third defense alleges that the death was caused by the voluntary or involuntary contact of said Elias Rheinheimer with poisonous substances.</p> <p>The fourth defense avers that, “the insurance policy in terms provided only for injuries or death resulting from bodily injury effected during the term of this insurance, through external, violent and accidental means, and that the death of said Elias Rheinheimer did not result from such means, but resulted from the intentional, wilful and intelligent contact of said Elias Rheinheiiner with poisonous substances and material.”</p> <p>The fifth defense is in substance like the second.</p> <p>The sixth defense avers, in substance, that the death was due to unnecessarily exposing himself to obvious risk of injury, especially that, well knowing the danger of so. doing, wilfully and persistently handled and came in contact with poisonous substances', when such acts were obviously dangerous and would result in injury, disease or death.</p> <p>. The reply denied each and every affirmative allegation of the answer. The case was tried to a jury. The court gave some of the special instructions requested by defendant and refused others. Exceptions were taken to the refusal and to the general charge. Counsel for defendant, before the general .charge to the jury, requested the court to instruct the jury to return a special verdict in writing upon all the issues raised by the pleadings, but defendant’s counsel declined to assist in framing the form of such verdict, and when it was prepared and submitted to the court by counsel for plaintiff, the defendant’s counsel objected to it going to the jury, but offered no form in its place.</p> <p>The special verdict returned by the jury is as follows : “We, the jury in the above entitled case, being duly impaneled and sworn do find that plaintiff is the wife of Elias Rheinheimer; that the defendant is a corporation under the laws of' Connecticut; that at the time of all the matters hereinafter mentioned the policy of insurance, a copy of which is annexed hereto, marked ‘A’ and made a part hereof, was outstanding and in force; that due proofs of death were delivered to the defendant and accepted by it. That on the evening of the 30th day of December, A. D. 1900 (the jury are unable to determine the exact hour), said Elias Rheinheinier accidentally and unintentionally scratched his left index finger in locking up the house; upon what he scratched it the jury are unable to say. That this scratch penetrated through the skin to the tissues and blood vessels beneath and left a visible mark; that it drew blood; that at the time of the accident and by the accident germs of staphylococcus pyogenes aureus and of the vibrión septique of Pasteur were introduced into the circulatory system of said Elias Rheinheinier by the lymphatic vessels, setting up an inflammation of the lymphatic vessels of said finger, left hand, left arm and upper left breast, producing an oedema of a malignant nature, that is, an acute and aggravated oedematous condition of the left arm and left breast, producing ultimately the death of the said Elias Rheinheimer. That said accidental scratch was the sole, proximate and immediate cause of the death, of said Elias Rheinheimer which resulted directly and proximately therefrom between ten and twelve o’clock of the morning of the third day of January, A. D. 1901. That the effects of said wound began to manifest themselves ■at about seven o’clock on the evening of the 31st day of December, A. D. 1900, and continued to progressively increase until they finally resulted in his death; and said death did not result from contact with poisonous substances, nor did it result wholly or partly, directly or indirectly from bodily infirmity, or disease in any form, proximate or contributory, as a primary, secondary or final cause of death; nor did it arise from any unnecessary exposure to obvious risk of injury or obvious dang'er. If upon the whole matter, the court shall be of the opinion that the plaintiff has established her cause of action, we then find for the plaintiff and assess her damages at the sum of sixty-two hundred dollars.”</p> <p>The defendant excepted to the verdict and to its being received by the court. These were overruled, as was a motion for new trial, and the court rendered judgment on the verdict. The case was taken on error to the circuit court. That court reversed the judgment of the court of common pleas, “for error in overruling the motion of plaintiff in error for judgment in its favor upon the pleadings, there being no other error apparent in the record to the prejudice of the plaintiff in error.” Having so found, the circuit court rendered final judgment dismissing the petition.</p> <p>Error is prosecuted in this court to reverse the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Erie County.</p> <p>The plaintiff brought suit in the court of common pleas of Erie county for a perpetual' injunction restraining the defendant from the continuance of wrongs set forth in his petition. Upon a trial of the issues of fact the court found for the plaintiff and decreed a perpetual injunction as prayed for. The defendant at once perfected an appeal of the cause to the circuit court, and without taking any steps whatever to procure a dissolution or suspension of the injunction, continued to do the acts which it prohibited. The plaintiff thereupon filed in the circuit court a complaint with affidavits showing the aforesaid violation of said injunction, and charging the defendant with a contempt of court. This complaint the circuit court dismissed solely upon the ground, as appears from the record, that it was without jurisdiction in the premises.</p>

<p>Repair of fence — Between railroad and adjoining land — Land owner refuses to permit repair — Injury to horse caused by defective fence — Railroad not liable, when — Negligence.</p> <p>Where a railroad company is proceeding to repair or rebuild a defective fence along the line of its right of way and upon the line where the fence has always been, and the adjoining land owner orders the company’s employes off the premises and notifies the company to stop work, claiming that the line of the old fence is not the true line, and the adjoining proprietor continues to use his land as a pasture knowing that the fence is defective and dangerous, without revoking or modifying his warning to the company or doing anything to determine the true line, and his horse is then injured by becoming entangled in the loose barbed wire of the defective fence, he can not recover for the injury to the animal, because his own conduct has proximately contributed to bring about the condition which resulted in the injury.</p>

<p>Action for damages for personal injuries — Injuries cause death of plaintiff — Personal representative may prosearte such action— Sections 3144, 6134 and 6133, Revised Statutes — Two actions not in same right, when — Recovery in one not bar in other— Law of damages.</p> <p>1. Section 5144, Revised Statutes, gives to the personal representative of a deceased person the right to prosecute an action for injuries to person began by such deceased to recover in the interest of the estate such damages as were suffered by the deceased because of the wrongful acts of another, even though the death was the direct consequence of the injuries inflicted.</p> <p>2. Sections 6134 and 6135, Revised Statutes, give an independent right of action for the benefit of the persons named in section 6135, where death has resulted from the injuries, to recover for such pecuniary loss as they have sustained by the decease of the injured person, such right being subject to the condition that the act, neglect or.default, is such as would have entitled such person to maintain an action and recover damages in respect thereof if death had not ensued.</p> <p>3. The two actions, although prosecuted by the same personal representative, are not in the same right, and hence a recovery and satisfaction in one case is not a bar to a recovery in the other.</p>

<p>Error to the Circuit Court of Wyandot County.</p> <p>September 3, 1903, Mary Roth died leaving Adam Roth, her widower, and ten children her only heirs at law.</p> <p>July 7, 1905, Adam Roth made application to the probate court of Wyandot county to admit to probate the last will and testament of said Mary Roth, which he represented' she had left at the time of her decease, and that the same subsequently thereto had been lost or destroyed.</p> <p>To this application he attached what he averred was a copy of the will, and concluded his application as follows: “Your petitioner offers said</p> <p>will for .probate and prays that a time may be fixed for the proving of the same, and that said above named persons resident in this state may be notified according to law of the pendency of said proceedings.”</p> <p>On the same day the probate court ordered a copy of the will to be filed and fixed the 17th day of July for the hearing of the application, and ordered that due notice be given to the widower and next of kin of the testatrix, resident of the state of Ohio.</p> <p>July 17, 1905, the probate court examined the witnesses that appeared and reduced their testimony to writing and filed it, and found that the testimony failed to show that the will was lost or destroyed, and that there was no testimony to show the contents of the will and refused to admit the same to probate.</p> <p>Adam Roth gave notice of appeal, and on July 31, 1905, filed in the court of common pleas the transcript of the proceedings before the probate court and the original papers.</p> <p>October 16, 1905, the court of common pleas overruled the motion, filed by two of the heirs, to dismiss the appeal.</p> <p>October 30, 1905, the following entry appears on the records of the court of common pleas:</p> <p>“In the matter of the application to admit to probate the last will and testament of Mary Roth, deceased.</p> <p>“Adam Roth came this day before this court for the purpose of proving the execution and contents of the last will and testament of Mary Roth, late of Wyandot county, deceased; and it appearing to the court that due notice has been given all persons interested in said will, thereupon Bernice B. Stutz and Arthur A. Stutz, subscribing witnesses to said will, and also Adam Roth, appeared in open court and were duly sworn and examined touching the execution and contents of said will, and their testimony thereon was reduced to writing and filed.</p> <p>“And the court being satisfied from the testimony so taken that the said Mary Roth did, in the year of 1900 or 1901, duly execute her last will and testament, in the mode provided by the law in force at the time of its execution, and that said will was not revoked by said testatrix, but that it has been lost subsequent to the death of said testatrix, the court finds and does hereby establish the contents of said will to have been, as near as can be ascertained, as follows:</p> <p>Tn the name of the Benevolent Father of all, I, Mary Roth, of Upper Sandusky, Wyandot County and State of Ohio, being of sound and disposing mind and memory, considering the uncertainty of the continuance in life, and desiring to make such disposition of my worldly estate as I deem best to make, publish this and declare this to be my last will and testament, hereby revoking all former wills by me made.</p> <p>‘Item 1st. It is my will and desire that all my funeral expenses be paid out of my estate.</p> <p>‘Item 2d. I will and bequeath to my beloved husband, Adam Roth, all my estate both real and personal.</p> <p>‘Should my husband, Adam Roth, die before my demise, it is my will and desire that my estate shall be divided share and share alike between my sons, Adam Roth, Charles Roth, Christ Roth, George Roth, William Roth, John Roth, Henry Roth and Frederick Roth and my daughter, Mary Roth, wife of Jacob Siefert.</p> <p>■ ‘My son, Jacob Roth, to have one ($1.00) dollar as his share in my estate in the event that my beloved husband, Adam Roth, • dies before- my death.</p> <p>. ‘Item 3d. ' I hereby maintain and appoint my beloved husband, Adam Roth, executor of this my ■last will and testament, and desire that he shall not be required to give bond as such executor, and that the court of probate direct the omission of the same in pursuance of the statute.</p> <p>‘In testimony. whereof I have hereunto set my hand and seal this .... day of........, 1900 or 1901.</p> <p>: ‘Mary Roth.</p> <p>‘Signed and acknowledged by the said Mary Roth, as her last will and testament in our presence, and subscribed and attested by. us as witnesses in her presence and at her request.</p> <p>‘Bernice B. Stutz, (Seal).</p> <p>‘Arthur A. Stütz, (Seal).’</p> <p>• “And it is further, ordered that the clerk of this court certify to the probate court the final order of this court, together with the will and testimony so taken, the will, order and testimony shall be recorded in the probate court as in the case of other wills admitted to probate. .</p> <p>“To all of which Mary Siefert and Jacob Roth, severally except.</p> <p>“This day this matter came on to be heard on motion of Mary Siefert and Jacob Roth for a rehearing of said matter, on consideration said motion is overruled, to which said Mary Siefert and Jacob Roth except.”</p> <p>February 20, 1906, petition in error and bill of exceptions were filed in the circuit court.</p> <p>October 12, 1906, the circuit court found that there was error,' “in this, to-wit: in refusing to allow cross-examination of witnesses called by defendant in error and because the alleged will submitted to and passed upon by the court of common pleas was not the same alleged will that was submitted to and passed upon by the probate court, and the court finds no qther error,” and reversed the judgment and remanded the case to the court of common pleas for a new trial and other proceedings according to law.</p> <p>Error is prosecuted in this court.</p>

<p>Valentine Anti-Trust law — Section 4427-1 to 4*127-12, Revised Statutes — When imprisonment is part of penalty — Sentence must be to county jail and not to workhouse■ — Criminal law.</p> <p>A defendant convicted in Lucas county of violating the provisions of the Valentine Anti-Trust law, Section 4427-1 to 4427-12, Revised Statutes, must, if imprisonment is part of the penalty imposed by the court, be sentenced to the county jail and not to the Toledo workhouse.</p>

<p>Possession of bottles — Sections 4364-42 to 4364-45, Revised Statutes, invalid — Conñict zvith Sections 1, 14 and IQ, Article I of Ohio Constitution — Criminal law.</p> <p>Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, making it a crime to have in possession for use or sale certain bottles or other vessels without the written consent of the owner, and providing for search warrant to seize and restore such property to the owner, are invalid, being in conflict with Sections 1, 14 and 19 of Article I of the Constitution of Ohio.</p>

<p>Endeavoring to influence officers of court — By written communications — What constitutes endeavor — Section 6907, Revised Statutes — Indictment thereunder — Requisites and sufficiency.</p> <p>1. One who addresses a communication to the judges of a court for the purpose of influencing their decision in a case pending therein by disparaging one of the parties or the relator in a suit brought by the state, corruptly endeavors to influence officers of a court in the discharge of their duties within the meaning of Section 6907, Revised Statutes.</p> <p>2. An indictment under that section is not defective because it does not charge that the court was in session when the communication was sent or received, nor because the communication does not comment upon the merits of the case, nor because the act charged may be punished as a contempt of court.</p>

<p>Error to the Circuit Court of Montgomery county.</p> <p>The plaintiff in error was indicted for obtaining money and property by certain false pretenses, to-wit: that certain real estate situate in Benton township, Pike county, being one hundred and ten acres in quantity, was then and there of the value of $11,000, and that one Martha M. Williams, then and there believing said representation of value to be true, and relying and acting upon that belief, was induced to and did purchase from the plaintiff in error, the said real estate, and accepted his deed therefor, and gave to him and one Neal Overholser in payment therefor, money and property to the amount and value of $7,700, whereas, in iact, the said real estate was not then and there of the value of $11,000, and was of the value not to exceed three dollars per acre, that is, $330 in all; and that the plaintiff in error then and there knew that the value of said real estate did not exceed the sum of $330, and knew at the time he so falsely represented the value of said real estate that the same was false. To this indictment the plaintiff in error filed a motion to quash and also a demurrer, which were both overruled; and the case coming on for trial, at the close of the evidence introduced by the state, a motion was made by the defendant to instruct the jury to return a verdict of acquittal, which was overruled; and the court thereupon charged the jury, among other things, as follows: “But where the buyer relies entirely upon the representations of the seller and the seller knows that ■the properety he is describing is of such, small value as to be practically worthless, and nevertheless represents it to be worth a specified sum of great amount, and the discrepancy between the real and the represented value is so enormous as to shock the conscience; when the representation is so grossly untrue that it could not be made upon any possible foundation of belief; and when it appears that the seller was plainly seeking by means of such statement to obtain the property of the buyer and practically return no equivalent therefor, the court takes the responsibility of saying to you that you have the right, if your judgment of evidence so convinces you, to regard such representations as one of fact rather than mere opinion.” The jury found the defendant guilty and judgment was rendered accordingly, which judgment was affirmed by the circuit court, and this proceeding in error is to reverse that judgment.</p>

<p>Appointment of guardian — Application in probate court — Appeal to common pleas court — Latter may appoint, when — Section 6302, Revised. Statutes — Original jurisdiction to remove guardian, where — Section 524, Revised Statutes — Not error for court to sustain general demurrer.</p> <p>1. The appeal to the court of common pleas from the judgment and order of the probate court refusing to appoint a guardian for one alleged to be an imbecile and dismissing the application for such appointment, authorized by section 6302, Revised Statutes, transfers to the court of common pleas the entire cause, and empowers that court, upon finding the person to be an imbecile and that a guardian is needed, to appoint a guardian.</p> <p>2. Upon such appointment being made it is the duty of the clerk of the court of common pleas to certify, by a duly authenticated transcript, the order, judgment and proceedings to the probate court.</p> <p>3. Exclusive original jurisdiction to remove a guardian being, by section 524, Revised Statutes, vested in the probate court, the court of common pleas is without original jurisdiction to entertain an application to remove a guardian.</p> <p>4. Where an application for such removal is made in the first instance to the court of common pleas, it is not error for that court to sustain a general demurrer to such application and dismiss the proceeding.</p>

<p>Legislative powers — Constitutional limitations — Do not apply, when —Act authorised by amendment to constitution — Constitution does not limit amendment, when — Eligibility of sheriff — Article X, Section 3 — Does not apply to act of 98 O. L., 271.</p> <p>1. An act of the legislature authoiized by an amendment to the constitution and enacted to make the amendment operative is not necessarily subject to provisions of the constitution limiting the legislative power, but is to be interpreted as if part of the amendment.</p> <p>2. The general provisions of the constitution do not limit conflicting provisions of an amendment to the constitution that are specific and temporary.</p> <p>3. Section 3, Article X, of the constitution that “No person shall be eligible to the office of sheriff, or county treasurer, for more than four years in any period of six years,” is not applicable to the act entitled, “An act to conform the terms of office of various state and county officers to the constitutional provisions of (relating to) biennial elections,” 98 O. L., 271.</p>

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

<p>Bailments — U. S. bonds loaned to national bank — To be deposited with U. S. treasurer — To secure issue of bank notes— Constitutes bailment and not sale — Contract not taxable as credit of lender.</p> <p>On the 27th day of February, 1900, F. was the owner of three per cent, bonds of the United. States issued under the act of congress passed in June, 1898, in the sum of $12,500, and The First National Bank of New Comerstown, then being organized, desiring the use of bonds of that character to deposit with the. treasurer of the United States to secure its circulating notes about to be issued, it was agreed in writing between F. and said bank, that he deliver to it his bonds . for said purpose, to be returned to him at any time upon demand, after sixty, days notice, or, to pay him their equivalent in lawful money of the United States, as F. might elect, the price to be paid, if paid in money, to be the selling price of said bonds upon the day of delivery for sale upon the stock exchange in the city of New York. It was further agreed that when said bonds should be returned to F., they should be the same as those delivered to the bank, or, of the same class, to-wit: five thousand in three per cent, registered, and seventy-five hundred in three per cent, coupon bonds.</p> <p>In consideration of the delivery of said bonds, the bank agreed to pay F. the interest it would receive on them from the treasury of the United States, and in addition thereto, the further sum of $156.25 per annum, payable quarterly, for such time as the bank might hold the bonds. This contract was complied with during the life of F. who did not elect to take the money in lieu of the bonds. He died on the 31st day of December, 1903, and on or about the 25th day of March, 1904, at request of the executors of his will, the bonds were sold at a price as provided in said contract and at a gross premium of $800. The proceeds were soon thereafter turned over to the executor.</p> <p>Held: That the transaction covered by said contract was not a sale of the bonds by F. to the bank, but a ■ bailment, and said contract was not a taxable credit against F. during the years 1900, 1901, 1902 and 1903.</p>

Suit was brought by the plaintiff in error in the court of common pleas to recover from the insurance company upon two policies on the life of his intestate. Held: it was the duty of the trial court in this cause, to whose judgment this error proceeding is prosecuted, to have directed a verdict for the defendant at the conclusion of the testimony, to all of which plaintiff in error excepts.

At the January term of the court of common pleas of Licking county for the year 1906, the grand jury returned an indictment against the defendant in error for forgery. The indictment resulted from an investigation of the affairs of The Homestead Building & Savings Company of Newark, Ohio, an institution incorporated in the year 1887.

The defendant in error was tried in the court of common pleas of Allen county upon an indictment charging him with a felony. A verdict of guilty having been returned, he filed a motion for new trial on the ground, among others, that the verdict had been procured by misconduct of one of the counsel representing the state, the misconduct being in his address to the jury.

<p>Error to the circuit court of Mahoning county.</p> <p>The case is stated in the opinion.</p>

■ January 2, 1908, the Ohio Republican state central committee issued its call for a Republican state convention to meet at the city of Columbus on Tuesday and Wednesday, March 3 and 4, 1908, for the purpose of electing four delegates at large and four alternates at large to the Republican national convention, and for the purpose of nominating two candidates for the office of presidential elector at large, a governor, a lieutenant governor, a secretary of state, an auditor…

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

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

<p>Error to Circuit Court of Van Wert county.</p>

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

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

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

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

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

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