Volume 79 — Ohio State Reports, New Series

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

<p>Error to the Circuit Court of Pike county.</p> <p>The action below was brought by the defendant in error, G. S. Hagans, a taxpayer, against the plaintiff in error, A. C. Pierce, as clerk of the village of Piketon, and Samuel F. Hunter, in injunction, to prevent an alleged misapplication of the corporate funds of the village.</p> <p>In substance the amended petition of the plaintiff below set forth that he is a resident taxpayer of the incorporated village of Piketon, Ohio, the owner of property on the tax duplicate of the village, which property has heretofore been and will hereafter be taxed for the revenues of the village; that the village has not now and never has had a village solicitor or other legal counsel whose duty requires him in the name of and in behalf' of the village to apply to a court for an injunction to restrain the misapplication of funds of the corporation or the abuse of corporate powers, and for such, reason the plaintiff, as a resident taxpayer of the village, brings this action on behalf of said municipal corporation.</p> <p>April 16, 1906, the council of the village passed the resolution which follows:</p> <p>“Whereas, the incorporated village of Piketon is about to become involved in litigation, and it will be necessary to retain counsel to maintain the rights of said village; therefore, be it resolved by the village council of the incorporated village of Piketon, Ohio, that a committee of one be appointed to look after said matter, and that there be set aside of the general funds of said village the sum of seventy-five dollars, and that the clerk is hereby ordered to issue on the treasurer of said village, payable to said committee of one, to be appointed at once by the mayor, and that said committee of one is hereby instructed to report to council his proceedings in this behalf.”</p> <p>The mayor thereupon appointed the defendant Samuel F. Hunter as a committee of one to receive said order, said Hunter being at the time a member of said council. It is not true that the village is about to become involved in litigation and that it will be necessary to retain counsel to protect its rights, but the resolution is nothing more than a subterfuge, and is a scheme to obtain seventy-five dollars from the village treasury with which to pay the- obligations of said Hunter and others, as members of the council in a certain proceeding in mandamus wherein-said Hunter and others were respondents, and in which proceeding, by the decision of this court, a judgment was rendered, against the said respondents in their individual capacity, which judgment at the time of the passage of said resolution, had been paid. The resolution is without legal effect because the fund from which the proposed money was to be drawn was at the time largely overdrawn, and the clerk of the village had not, before the passage of the resolution, nor since, certified to the clerk that the money required was in the treasury of the village to the credit of the fund from which it was to be drawn and not appropriated for any other purpose; nor did the clerk certify that a levy had been made by the council and placed upon the tax duplicate and the money provided by the resolution in process of collection. Said Hunter will demand from the clerk an order for said sum and said clerk will issue to him such order unless enjoined, and plaintiff is without any remedy at law to prevent such misapplication of corporate funds. Plaintiff prays injunction.</p> <p>To the amended petition a demurrer was sustained by the court of common pleas on the ground that the plaintiff was without legal capacity to maintain the action, and rendered judgment for defendant below. This judgment was reversed by the circuit court for error in sustaining the demurrer, and the cause remanded to the common pleas for further proceedings.</p> <p>The defendants below now seek a reversal by this court of the judgment of the circuit court and an affirmance of that of the common pleas.</p>

<p>Removal of suit from state to federal court — Party procures withdrawal of petition — And prosecutes action in state court — Under agreement — Objection to jurisdiction cannot be made, when —Devise to son, and if he dies without lineal descendants,, etc., then over — Not sufficient to create estate in lineal descendants— Son takes a fee defeasible — Law of vuills.</p> <p>1. Upon the filing in a state court of-th'e requisite petition and bond for the removal of the suit to a federal court, the state court is divested of jurisdiction; but a party who procures the withdrawal of the .petition and bond, by the party who filed it, before any action in the federal court, and then dismisses his action in the state court as to the party who filed the petition for removal, and by agreement with the remaining parties prosecutes the suit in the state court, cannot be heard, after judgment against him, to assert that the jurisdiction of the state court had not been restored.</p> <p>2, Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves, without assistance from other parts of the will, sufficient to create an estate by implication in the lineal descendants, but the son takes a fee defeasible upon his death without lineal descendants, living at the time of his decease, and in the event of lineal descendants living at the time of the son’s decease his fee becomes absolute and such descendants have no interest under the will as against his grantee.</p>

<p>Exceptions by Prosecuting Attorney to decision of the Court of Common Pleas of Guernsey county.</p> <p>At the May term, 1908, of the Court of Common Pleas of Guernsey county, the defendant, Earl Turnbaugh, was, by the grand jury . of said county, indicted for the crime of burglary and larceny. Said indictment, omitting the formal parts thereof, charged “that Earl Turnbaugh, late of said county, on the 4th day of December, in the year of our Lord one thousand nine hum dred and seven, at the county óf Guernsey aforesaid, in the night season of the same day, to-wit: about the hour of eleven o’clock at night, in the county of Guernsey aforesaid, into a certain storehouse of one George Butts, there situate, did unlawfully, maliciously and forcibly break and enter with intent then and there and thereby the personal property of the said George Butts in the said store-house then and there being, unlawfully to steal, take and carry away, and money of the value of twelve dollars ($12.00) of the personal property of the said George Butts in said storehouse then and there being found, then and there unlawfully did steal, take and carry away.” It being admitted in this case that the statement made by the prosecuting attorney in his brief touching the location, character, etc., of the building alleged to have been broken and entered, is a correct statement of the facts as proved by the state on the trial, we may for the purposes of the present inquiry adopt that statement, which is as follows: “The evidence showed the building to be situated on the corner of Harris avenue and Second street, Cambridge, Ohio. That there is no entrance to the building on. Harris avenue. That from Second street there are three entrances, — one into the north room which adjoins Harris avenue, in which room George Butts and his family reside; one into the grocery room south of and adjoining the living room; one into the other grocery room on the south, being the south part of. the building, each of said grocery rooms extending back the full extent of the building. The house as originally constructed, did not include the grocery room on the south, this south room being built about two years ago as an addition, and for the express purpose of being used as a meat and grocery room, in connection with the adjoining grocery room on the north, which said south room was connected with the other grocery room by means of an open archway about seven feet wide and reaching to the ceiling, and said two rooms were used as the grocery store of George Butts.</p> <p>“There is a permanent partition between the grocery rooms and the living-room, extending from the floor to the ceiling, except there is a communicating door about ten feet from the rear of the storeroom, leading to the living-room, which communicating door was kept locked at night, and was locked on the night of the burglary herein. The building as it stood at the time of the burglary was as long on Harris avenue as it was wide on Second street, and besides the entrance or doorway to each of the storerooms from Second street, there was a door into the rear of the north storeroom from the out-, side. There was also a window on the south side of the south storeroom opposite the archway above mentioned, and it was through this last named opening or window that the burglar broke and entered, this south room into which he first entered, being the room built expressly for use as a store.</p> <p>“The burglar passed from the south room through the open archway into the other grocery room, and it was in the north grocery room, near the archway, where the money was found. There was no way of entering the living-room or dwelling-house proper from the storerooms, except through the communicating door, and that door was securely locked. The burglar did not enter, or attempt to break or enter, the living-room or dwelling-house proper.”</p> <p>On the trial, at the conclusion of the state’s evidence, counsel for the defendant, Turnbaugh, .moved the court to direct the jury to return a verdict of not .guilty and to discharge the accused, because of a claimed variance between the allegations of the indictment and the proof offered by the state, in this, to-wit: that the defendant was charged in said indictment with breaking and entering a storehouse, whereas the evidence, it was claimed, showed that the building broken and entered was not a storehouse, but a dwelling-house. Said motion was sustained by the court and the jury was directed- to, and did, return a verdict of not guilty, whereupon the court discharged the accused from custody. To all of which the state by the prosecuting attorney duly excepted. * The present proceeding is prosecuted to obtain the decision of this court as'to the law to govern in similar cases.</p>

<p>Error to the Circuit Court of Lucas county.</p> <p>Ella S. Coghlin brought suit in the court of common pleas to contest the validity of the last will and testament of Dennis Coghlin. Issues having been joined the followed facts were shown upon the trial: On the 28th of July, 1893, Dennis Coghlin executed his last will and testament, and on the 17th of June, 1896, he . executed a codicil thereto. The instrument consisted of eight pages,' typewritten on one side of the sheets of paper. In the autumn of 1898 he and one of his sons were sitting in his library when the father, having spent about twenty minutes in examining his will, carefully tore the last leaf but one from its place, tore the detached leaf from top to bottom and the pieces crosswise, threw the pieces into the waste-basket, and leaving the will lying on his table left the house. His act was attended by no expression whatever. Before the father left the house the son recovered the pieces of the torn leaf and took them, with the rest of the will, to another room and gave them to his - mother. The torn page contained the eleventh item which related to family councils, the twelfth which provided for the appointment of executors and their compensation, the thirteenth which revoked former wills, and the fourteenth which gave a legacy to a beneficiary therein named. The testatum and attestation clauses were upon the last page which remained attached to the residue of the will and was undisturbed. After the will and the torn pieces of the separated leaf were delivered to the testator’s wife, the pieces were rearranged in their original connection and secured by adhesive strips pasted on the back of the page. The page thus restored was re-attached to the will in its original position and the whole was delivered to the testator’s attorney. Thereafter, as was shown by the testimony of the attorney, he and the testator had conversations about the will, having the instrument as restored before them. The conversations related chiefly, if not wholly, to the item concerning the executors and their compensation with which the testator was not entirety satisfied. A codicil to change it was discussed and drawn, but the testator apparently being undecided in the matter never executed it. This testimony of the attorney was admitted over the objection of the plaintiff. The material portions of the charge were as follows:</p> <p>“1. The statute of this state provides that a will may be revoked by the testator tearing it with the intention of revoking it. No particular amount of tearing is required — but the intention to revoke the will must exist. Any tearing, if the intent to revoke the will exists, is sufficient to satisfy the requirements of the statute. And if the jury find by a preponderance of the evidence that Dennis Coghlin tore his will with the intention of revoking it, their verdict should be that the will offered in this case is not his last will.</p> <p>“2. In order to find that Dennis Coghlin revoked his will the jury must find from a preponderance of the evidence that he tore it with the intention at the time to revoke it. If he intended to revoke it at the time of the tearing it was then and there finally revoked and no subsequent change of intention on his part to recognize or treat it as his will could have the effect to restore it.</p> <p>“And if the jury find that he intended to revoke it at the time of the tearing, then the verdict must be that it is not his last will, notwithstanding the jury also find that at a later date he regarded or treated it as his last will and supposed that it was his last will. ‘</p> <p>“The jury in considering the intention of the testator concerning the act in question, have the right to take into consideration, his acts and statements with reference to any of the particular clauses on the page in question, either before the tearing thereof or after, and also have the right and it is their duty to consider as bearing on the question of intent, the fact, if they so find from the evidence, that the testator saw the will with the torn clauses inserted and pasted in where they originally were, and considered the document as his will and had under consideration the question of revoking one of said torn clatises by a new codicil.</p> <p>“But the jury are instructed that such facts are to be considered only as bearing upon the intention of the testator at the time the tearing was done.”</p> <p>In the court of common pleas the verdict and judgment were, that the paper writing which had been admitted to probate was the last will and testament of Dennis Coghlin. The judgmént was affirmed in the circuit court.</p>

<p>Circuit court’s jurisdiction — Review of judgment of mayor — Section 7356, Revised Statutes — Leave to Ale petition in error— May be granted to convicted party — Act of February 23, ipo<5— Local option lazv.</p> <p>1. Under the provisions of Section 7356, Revised Statutes, it is competent for the circuit court in the first instance to take and entertain jurisdiction of proceedings in error to review the judgment of the mayor of an incorporated village convicting the defendant of a crime.</p> <p>2. For the purpose of such review, under the provisions of Section twenty (20) of the act of the General Assembly entitled, “An act to provide for the enforcement of local option laws prohibiting the sale of intoxicating liquors as a beverage,” ' passed February 23, 1906, (98 O. L., 12), the circuit court may grant leave to the convicted party to file a petition in error therein to review the judgment of conviction.</p>

Adolphus H. Smith recovered a judgment in the court of common pleas against the defendant in error in the sum of twenty-three hundred and fifty dollars, for damages accruing by unlawful and unauthorized cutting of the limbs and branches of an avenue of trees situated on the farm of the plaintiff. This judgment was affirmed by the circuit court and thereafter was reversed and remanded by the supreme court to the court of common pleas for a new trial.

<p>Settlement of estate of decedent — Allowance to administrator — For extra services — Part of account — Cannot take effect until court acts after notice — Exceptions to allowance — Constitutes direct attack — Subject to review.</p> <p>1. The statutes of the state bearing upon the settlement in the probate court of the estates of deceased persons, taken together, show that the allowance to an administrator for extraordinary services in the settlement of the estate is part of the statement of his account, and is to be considered by the court accordingly.</p> <p>2. Whether the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.</p> <p>3. Exceptions to such allowance in the account by creditors constitute a direct attack on the allowance, and not a collateral attack, and the allowance is then subject to review upon the exceptions the same as any other disputed item of the administrator’s account.</p>

The plaintiffs in error, Garret Yeager, J. W. Smith, William Davis, Jacob Miller, James Jones, H. H. Viars, C. C. Reese, J. G. Robertson and Mary E. Trichler, were plaintiffs in the court of common pleas, and the defendants in error, John P. Tuning, James J. Maddy, G. R. Viars, Clark Berry, A. L. Keeler, P. F. Hern and Phoebe Hern, were defendants in that court.

<p>Wife not competent witness against husband — Charged with failure to provide for children — Section 3140-2, Revised Statutes.</p> <p>The wife is not a competent witness to testify on behalf of the state and against her husband on the trial of the latter upon an indictment charging him with a violation of Section 3140-2, Revised Statutes.</p>

<p>Error to the Circuit Court of Lucas county.</p> <p>Error to the Circuit Court of Wood county.</p> <p>These cases began in the court of common pleas by applications to that court to define the mode in which the junior company should construct its road in crossing that of the senior company, the applications being made under favor of the act of April 23, 1904 (97 O. L., 548). The applications having been heard and determined in the court of common pleas, an appeal was, in each case, taken to the circuit court as authorized by the concluding provision of the first section of the act. In that court it was found, in each case, that it is reasonable and practicable to avoid a grade crossing, and an order was made for the separation of the crossings, The Lima and Toledo Traction Company being required to construct its track beneath that of the senior company, and The Toledo, Fostoria & Findlay Company to cross- the tracks of the Pennsylvania Company by an overhead structure, and in each case the character of the structure was indicated by specifications which are admitted to be sufficiently clear and complete. In both cases the court ordered that the initial costs of construction and the expenses of maintenance be borne equally by' the two companies. In the latter case the findings of the circuit court, four to ten inclusive, raise a question which is peculiar to that case.</p> <p>“Fourth. That the section line road between sections eight and nine in Lake Township, Wood County, Ohio, is a public highway, and that The Toledo, Fostoria & Findlay Railway Company has procured from the Commissioners of Wood County, Ohio, by an order duly entered upon the journal of said commissioners, the right to use the said section line road called ‘The Loop Road/ for the construction and operation of its said -line of electric interurban railway from the village of Pernberville to the north line of Wood County, Ohio, and one’ of the requirements of the grant is that the electric road shall conform to the present level of the public highway, wherever the tracks are laid in the highway, which, at this point, crosses The Pennsylvania Company’s road at grade. The electric line is constructed upon private right of way the greater part of the distance from Pemberville to Walbridge and turns into the highway about thirty rods from the proposed intersection of The Pennsylvania Company’s tracks.</p> <p>“Fifth. At the time of the filing of the application herein, and at the date of the hearing, The Toledo, Fostoria & Findlay Railway Company and The Pennsylvania Company had not agreed upon the manner and mode of crossing the tracks of The Pennsylvania Company by the tracks of The Toledo, Fostoria & Findlay Railway Company, the electric line, and The Pennsylvania Company has declined and now resists the installation of a grade crossing.</p> <p>“Sixth. At the proposed point of intersection of the two roads, The Pennsylvania Company’s lines run in a northwesterly and southeasterly direction, so that the section line road called ‘The Loop Road’ does not cross the railroad tracks at a right angle, but at an angle of about thirty-five degrees, and a grade crossing at this point would be highly dangerous.</p> <p>“Seventh. It is entirely reasonable and practicable to present and avoid a grade crossing at the point of the proposed intersection, and it is entirely practicable and reasonable that the grades be separated by the construction for the electric line of an overhead crossing. It is not practicable or reasonable to construct an undergrade crossing of the tracks of The Pennsylvania Company. Such crossing would bring the tracks of the electric road below high water mark, and the water would interfere with the operation of the road at that point.</p> <p>“Eighth. To carry the crossing overhead within the limits of the highway at this point would be destructive in part of the uses of the road; the structure would necessarily occupy about twenty-two feet of the width of the road for a distance of about one thousand feet, and would necessarily be immediately in front of a large number of dwellings and store buildings and would impair the access of the proprietors thereof to the public highway.</p> <p>“It would be practicable from an engineering standpoint to construct and operate an overhead crossing at this point within the limits of the highway, but the damage to private property therefrom would be so great, and the prevention of such crossing by the public authorities or others by legal process would be so probable, that, if there were no other point near by at which an overhead crossing could be constructed and operated conveniently, it would not be reasonable and practicable to prevent and avoid a grade crossing.</p> <p>“Ninth. That at points within a distance of six hundred feet easterly from said highway and railway crossing, it is reasonable and practicable to obtain a right of way for, and to construct and operate an overhead crossing with proper approaches, for said electric railroad over said Pennsylvania Company’s tracks, and such crossing need not have any greater curvature or heavier grades than the grades and curves of said electric line of The Toledo, Fostoria & Findlay Railway Company at other points upon its line.</p> <p>“Such overhead crossing is the mode that will do the least practicable injury to the rights of The Pennsylvania Company.</p> <p>“Tenth. That the form of construction herein ordered is practicable and reasonable, and that it is fair and just to divide the expense as herein adjudged.”</p> <p>The following order followed the findings of fact in that case:</p> <p>“Upon the foregoing facts, the court orders, adjudges and decrees that a grade crossing of the tracks of The Pennsylvania Company by the track of The Toledo, Fostoria & Findlay Railway Company shall be, and the same hereby is, prevented, except as to the temporary crossing as hereinafter provided; that the track of the said The Toledo, Fostoria & Findlay Railway Company shall cross the -tracks of The Pennsylvania Company by an overhead structure composed of a steel span skew bridge and the necessary approaches thereto; that said approaches shall be constructed by an earthen fall of sufficient width for a single track, and the steel bridge or span shall be supported by concrete abutments at either end, of the necessary size and style, and said bridge shall be built of steel of sufficient, width for a single track and have sufficient strength to sustain the weight of the traffic to be carried with a proper allowance as a factor of safety; said steel structure to weigh approximately' one hundred and fifty thousand pounds; and the lowest parts of said bridge to clear The Pennsylvania Company’s tracks at least twenty-one feet.</p> <p>“It is further ordered, adjudged and decreed that the cost of the necessary right of way for said overhead structure and fill from the point where such right of way leaves the highway to the point where it returns to the highway, and the cost of constructing said entire fill and structure shall be borne equally by both coiaapaaiies.</p> <p>“That the cost of future maintenance of said entire overhead crossing, including approaches, ties and rails, shall be borne alone by said The Toledo, Fostoria & Findlay Railway Company, its successors and assigns, except the maintenance of the bridge span and abutments, which shall be forever maintained at the equal joint expense of both companies, their successors or assigns.</p> <p>“It is further ordered, adjudged and decreed that the temporary grade crossing heretofore installed and now in operation under the previous order of this court be permitted and allowed to remain in place and to be operated by said electric line, without any prejudice whatever to any of the rights of said The Pennsylvania Company, for a period of six months from the date of this decree, and the operation thereof shall cease and said crossing shall be removed not later than the first day of July, A. D. 1908, and upon the failure of said The Toledo, Fostoria & Findlay Railway Company to entirely remove said temporary crossing, on or before the said first day of July, A. D. 1908, said The Pennsylvania Company is hereby authorized to, and it shall, remove said crossing, restoring its tracks to the same condition which they were in prior to the installation of said crossing', unless an extension of time for such removal be granted by this court or by the supreme court.</p> <p>“It is further ordered, adjudged and decreed that the original cost of the installation of said temporary grade crossing, including the cost of laying and removing so much of the track in the highway as must be abandoned if overhead crossing shall be constructed (but not including the cost of any materials thereof except the cost of the bridge over the creek in the highway) be borne and paid equally by both of said companies.</p> <p>“It is further ordered, adjudged and decreed that each company shall pay one-half of the costs of this proceeding, taxed at $......, and in default thereof within sixty days from this date that execution issue for the collection thereof.”</p> <p>In case number 10958 it made- the following order upon that subject:</p> <p>“It is further ordered that said structures may be built and the necessary work incident thereto may be done by plaintiff and the total cost thereof including the expense of removing said piling; of temporary supports for track of defendants; and earth filling as above provided and relaying of defendant's track and all other material and labor necessary to complete said structures and crossing shall be borne and paid one-half by plaintiff and one-half by the defendants; and shall be a first lien and charge against the property of the respective parties and the assets of said receivership. It is further ordered that the plaintiff and defendants shall share equally the cost of maintaining said crossing and structures. Ordered further that the costs of this proceeding be paid one-half by plaintiff and one-half by defendants.”</p>

<p>Plaintiff cannot dismiss his action — After final submission to court— Section 5314, Revised 'Statutes — Court procedure.</p> <p>1. Under favor of subdivision one (1) of Section 5314, Revised Statutes, the plaintiff cannot as a matter of right dismiss his action after the final submission of the case to the court.</p> <p>2. Where the plaintiff has introduced his evidence and rested, and each of the defendants has moved the court for a directed verdict on the ground that the plaintiff has failed to make a case for the jury, upon which motions the cause has been submitted to the court and its conclusions thereon announced, the plaintiff has not the right to dismiss the action without prejudice to a future action.</p>

<p>Section 2833, Revised Statutes, as amended April 4, 1906 — Makes dog tax lien on real estate — In part unreasonable and unconstitutional — Constitutional lavs.</p> <p>Section 2833, Revised Statutes, as amended and took effect April 4, 1906 (98 O. L., 87), so far as it requires the levy of the per capita tax on dogs upon the real estate upon which the dogs may have been kept and harbored, and the collection thereof as other taxes upon real estate, notwithstanding the owner of' such real estate had no knowledge that the dogs had been harbored thereon and was not consenting thereto, is an arbitrary and unreasonable exercise of police power not required by the general welfare and therefore unconstitutional and void.</p>

<p>Death of principal contractor — Does not deprive sub-contractor— Of right of lien, when.</p> <p>The death of the principal contractor during the completion of a contract for the improvement of a village street, which contract was thereafter completed by the administrator, does not deprive a sub-contractor who has furnished material which has gone into the work, of his statutory right to a lien upon the fund arising from the contract.</p>

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

<p>Rule that where master directs servant — To continue use of defective tool — Relieves servant of risk — Does not apply to tool of simple construction, when — Law. of respondeat superior— Servant injured by defective step-ladder.</p> <p>1. The rule that a direction by the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to cases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master.</p> <p>2. Where an employe whose duties require him to use an ordinary step-ladder, discovers and appreciates that the step-ladder has become and is defective, dangerous and “unfit for him to use in connection with his said work,” and he notifies the master, who promises to furnish another, but before doing so the employe in using such defective step-ladder is injured, the master under such circumstances is not liable</p>

<p>Error to the Circuit Court of Union county.</p> <p>On February 26, 1906, F. O. Penney filed his second amended petition in the court of common pleas (the original petition having been filed July 1, 1905) against the plaintiffs in error and others, to subject certain real estate described therein to the satisfaction of a lien, which he claimed to have thereon by virtue t>f the facts alleged by him. Issues having been joined the case was tried in the court of common pleas where the facts were found and a judgment rendered in favor of the plaintiffs in error dismissing the petition. On petition in error the cirquit court reversed the judgment of the court of common pleas and rendered a final judgment i.n accordance with the prayer of the amended petition. The following facts appear from the untraversed allegations of the pleadings and the findings of the court of common pleas: On and prior to May 25, 1905, John M. Sanders, Percy H. Sanders and Jesse S. Ivagay were the owners of the premises described. In a room in a building thereon from November 11, 1904, to December 6, 1904, inclusive, one George A. Baker carried on a bucket shop with the knowledge of said owners, though not as their lessee, but as a sub-lessee from one Carl Algower who was their lessee. May 3, 1905, Penne}'- recovered a judgment against Baker in a proceeding against him alone (the owners of the property not being joined) for $776.25, money which he had lost in the bucket shop carried on by Baker. On the 25th of May, 1905, the said owners conveyed said premises to the plaintiffs in error, who purchased the same for value, and without knowledge of the claim of Penney. On July 1, 1905, Penney brought the present suit and then, for the first time, joined the owners of the premises as defendants.</p>

On the 15th day of April, 1904, the plaintiff in error filed a petition in the Court of Common Pleas of Butler county against Florentine Kraft as administratrix of the estate of Franz Kraft, deceased, to obtain possession of certain personal property then in the possession of defendant. The petition contains two causes of action.

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

On the 15th day of August, 1902, the plaintiff in error brought suit against defendant in error, in the Court of Common Pleas of Hardin county, alleging in substance, that plaintiff and defendant are owners of farms in said county — one of said farms consisting of about three hundred acres belonging to the plaintiff, and the other consisting of ■ about two hundred and forty acres belonging to the defendant Bower.

Mrs. Hover brought suit in the court of common pleas to recover from Straight damages which she alleged were sustained by her in consequence of his polluting a stream of water which naturally flowed from his premises upon hers, the pollution resulting from Straight’s operation of his lands for underlying petroleum, in which operation petroleum was separated from salt water with which it is commingled, and the salt water discharged into the stream rendering its water unfit…

The defendant in error commenced an action in the Court of Common Pleas of Monroe county to recover possession of certain real property situate .in that county and for damages for the unlawful detention of the same. The plaintiff in error defended first upon a general denial of the plaintiff's right of possession.

The controversy below had its origin in the probate court of Stark and was there heard and disposed of upon an exception by the defendant in error, Milton J. Braucher, as guardian of Stewart I. Allen, a minor, to the fourth settlement account of Grant B. Willis, administrator de bonis non with the will annexed of John C. Allen, deceased.

<p>Tax upon foreign insurance company — Section ¿745, Revised Statutes, construed.</p> <p>Section 274S, Revised Statutes, does not require a foreign insurance company to pay to the state, annually, two and one-half per centum on the business done by it within the state, or of the net amount of premiums received by it from the state, but only such per centum of the net amount of premiums received by it in the state.</p>

<p>Exemption in lieu of homestead — Assignor foregoes selection of property — Right to exemption not abandoned, when — May be enforced against proceeds of sale.</p> <p>Where an assignor for the benefit of creditors is induced to and does, forego the selection of specific articles of personal property under his claim for exemption in lieu of.a homestead, because of representations made to him by the assignee that he would have to wait until the property was sold and an order of court obtained, and that he would then be paid his exemption, actual selection, under such circumstances, is waived or excused, and the want of it cannot be held to be an abandonment or forfeiture of the assignor’s right to claim and have his exemption out of the proceeds of sale of the assigned property, upon formal demand made therefor before distribution.</p>

<p>Municipal corporation improvement of streets — Separate contracts for respective streets — Certificate of clerk that money required is in treasury — But specifying no amount — Not hi compliance with Section 2702, Revised Statutes — Municipal law.</p> <p>1. Where a municipal corporation, by sale of its bonds, creates a fund for the improvement of certain streets, and takes the necessary steps to receive and accept bids and to contract separately for the improvement of each of said streets, the following certificate filed by the clerk of the corporation at the time the bid is accepted and contract executed, to-wit: “I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement and not appropriated for any other purpose sufficient to pay for the same. L. Hall, Village Clerk,” — is not in compliance with Section 2702 (old number), Revised Statutes, in that it is not certified that a specified sum of money required for the contract to improve the street “is in the treasurj’- to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose.”</p> <p>2. Where the above defect in the certificate is discovered before the execution of the contract, and the clerk of the corporation, in the presence of the municipal council and with its knowledge and consent, amends the certificate by inserting therein, although in- figures, the sum of money required for the con'tract» and the certificate so amended is filed and recorded as required by said section, and the contract then executed, said certificate is a limitation on the amount to be paid on the contract for that street, beyond which the corporation is not liable to the contractor.</p>

<p>Imposition upon private property — Against owner for benefit of another — Prohibited by constitution — Act of April 18, 1904, construed.</p> <p>1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.</p> <p>2. The act of April 18, 1904 (97 O. L., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a- line fence for the sole benefit of the adjoining proprietor.</p>

<p>Error to the Circuit Court of Greene • county.</p> <p>James Barr died on the 7th day of October, 1879, leaving a will, in which he provided that after all his just debts were paid the whole of his estate both real and personal should go to his wife, Mary A. Barr, during her natural life, except certain payments to be made to certain of his children in order to make them equal with two sons who had already received a part of his estate. And he further provided that, “after the death of my wife I desire that the whole of my property both real and personal be sold by my executor and after expenses are paid to distrib%ite equally to my legal heirs.” About eleven years after the death of the .testator, his daughter Margaret Maud Barr, married the defendant, Henry H. Denney, and about two months after her marriage, and before the death of the widow of the testator, she died leaving no issue. The defendant, Denney, claims an eighth interest in the distribution of the fund arising from the sale of the said real and personal property. The administrator de bonis non with the will annexed of James Barr, deceased, began this proceeding to determine the true construction of the will and especially of the clause already quoted. The court of common pleas found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the period of distribution, to-wit, the death of the widow, and held, therefore, that the defendant, Henry H. Denney, was not entitled to share in the distribution of the estate. The circuit court reversed this finding and found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the time of his death and not at the time of the death of his widow and therefore held that Henry H. Denney, as the administrator of Margaret Denney, was entitled to an eighth of the fund to be distributed. This petition in error is prosecuted to reverse the finding and judgment of the circuit court and to affirm the finding and judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>Action below was to recover damages for breach of the following contract:</p> <p>“This Agreement by and between Michael J. Rogan, Seth H. Doan, Dudley J. Mahon and Conrad Roth, witnesseth:</p> <p>“First. That it is hereby mutually agreed .between the parties hereto that a corporation shall be organized under the laws of Ohio for the purpose of carrying on in Cleveland, Ohio, a retail clothing business. That said company shall have a capital stock of thirteen thousand dollars ($13,-000.00) divided into thirteen hundred shares of ten dollars ($10.00) each, the name of the same to be The Rogan Clothing Company.</p> <p>“Second. That it is understood and agreed between the parties hereto that the said Michael J. Rogan is to pay to such corporation when formed the sum of five thousand dollars ($5,000.00) in cash and to receive therefor 500 shares, of the paid up capital stock of said company. That to each of the other parties to this' agreement there is to be issued one share of the capital stock of said company.</p> <p>“Third. That in said corporation it is hereby agreed that each of the parties hereto are to be directors and that said Michael J. Rogan is to be the president of said corporation, Seth H. Doan, the treasurer and general manager, Dudley J. Mahon, the secretary, and Conrad Roth the vice-president.</p> <p>“Fourth. That during the first year said Michael J. Rogan as such president is to draw no salary, but during such time as he is in Cleveland attending to the business of said company his necessary expenses are to be paid by the company.</p> <p>“Fifth. That said Seth H. Doan as such treasurer and general manager is to receive the sum of thirty-five dollars ($35.00) per week and the sum of four hundred dollars ($400.00) as a bonus at the end of the year. That said Dudley J. Mahon and Conrad Roth as the secretary and vice-president of said company are to each receive the sum of twenty-seven and 50-100 dollars ($27.50) per week, said salaries to commence August 1, 1903.</p> <p>“Sixth. That at the expiration of every six months a complete inventory is to be taken, based on the market value of the goods at the time of the taking said inventory and any profits are to be divided into four equal parts and shares of the said capital stock are to be issued said four persons to the extent of the said profits, and the same course is to be followed until all the remaining' stock, to-wit, the said seven hundred' and ninety-seven (797) shares have been issued. And after said stock is paid up, the profits are to be divided into four equal parts and paid to the.four parties to this agreement by way of dividends for the period of three years from this date.</p> <p>“Seventh. That upon the final dissolution of the temporary partnership hereby formed, or the fin,al distribution of the assets of the corporation to be formed, and in the determination of all profits and dividends, the said five thousand dollars ($5,000.00) paid by Michael J. Rogan is to be treated as if it were a liability of the partnership or corporation, although the same is not in fact to be really a' debt, but merely a first charge on the assets'after the real debts have been paid. But interest on said sum is to be paid by the partnership to said Michael J. Rogan at the rate of six (6) per cent, per annum, and when said five hundred (500) shares of stock are issued to him for said sum he is to be paid six (6) per cent, per annum by said corporation, but is to receive by reason of said five hundred (500) shares no further share in the profits, whatsoever, for the period of three years from this date.</p> <p>“That the said Michael J. Rogan hereby guarantees to protect said Seth H. Doan, Dudley J. Mahon and Conrad Roth from any liability for any debts incurred by the said corporation in the purchase of goods, it being mutually understood and agreed that no goods are to be purchased or debts incurred without the written consent of Michael J. Rogan, and that no note, draft, check or writing of said parties or the said corporation is to have any validity whatsoever until the same has been countersigned by said Michael J. Rogan.</p> <p>■ “That all checks, drafts, notes and instruments are to be executed for said corporation by said Seth H. Doan, its treasurer, and then countersigned by said Michael J. Rogan, the president.</p> <p>“Eighth. That said Michael J. Rogan as such president is to have the power to discharge any officer or employe of the company for just cause.</p> <p>“Ninth. That said Seth H. Doan, Dudley J. Mahon and Conrad Roth are to give their entire and undivided attention to the business of the company and to faithfully discharge. their duties. That said Seth H. Doan is to perform the work usually done by a general manager and to exercise the usual authority of said officer. That each of said persons during the period of three years from this date will give all of their time to said business and engage in no other occupation or business enterprise whatsoever.</p> <p>“Tenth. That neither of the parties hereto, or any member of the company shall sell any goods upon credit. That if any goods are so sold the same are to be at once charged against the individual making the sale and he is to settle for the same within thirty days from the time of the sale.</p> <p>“Eleventh. That if any delay should occur in the formation of the corporation above referred to, in the meantime this agreement from its execution shall be considered as creating a partnership bet-tween the parties hereto, the same to continue upon the terms above provided for the period of at least three years.</p> <p>“Twelfth. That if either said Seth H. Doan, Dudley J. Mahon or Conrad Roth shall sever his connection with the said temporary partnership or said corporation without the consent of Michael J. Rogan and within three years from this date the person so offending shall pay said Michael J. Rogan the sum of one thousand dollars ($1,000.00) as his liquidated damages.</p> <p>“Thirteenth. That when said corporation has been formed such clauses shall be inserted in the regulations and by-laws as may be necessary to give effect to any of the stipulations herein.</p> <p>“In witness whereof the parties hereto set their hands at Cleveland, Ohio, June 24th, 1903.</p> <p>“(Signed) “M. J. Rogan,</p> <p>“Seth H. Doan, “Conrad Roth,</p> <p>“Dudley J. Mahon.”</p> <p>The breach consisted in a violation of the twelfth clause of the contract and arose by reason of the plaintiff in error (defendant below) Seth H. Doan, refusing to go on with or in any way performing his agreement as expressed by the contract.</p> <p>Doan’s answer contained an admission of the making of the contract and a general denial otherwise. Also that the contract was without consideration and was void for illegality and want of mutuality; that Rogan had suffered no loss in the premises; and that before the contract was accepted by • the corporation to be formed, and before plaintiff had expended any money in proceeding to carry out the terms of the contract, defendant withdrew from the arrangement and notified plaintiff and the other signers of the instrument that he could not carry out the terms specified to be performed by him.</p> <p>The case was tried in the common pleas to a jury. These facts were disclosed at the trial: The plaintiff, Michael J. Rogan, a resident of Detroit, Michigan, desiring tp engage in the clothing- business at Cleveland, and not being himself acquainted with the trade at that place, entered into negotiations with Seth H. Doan, Conrad Roth and D. J. Mahon, salesmen then in the employ of a larg'e .mercantile establishment in that city, for their co-operation, which resulted June 24, 1903, in the making of the contract copy of which is hereinbefore given. A location was determined upon on Euclid avenue in the building known as the Arcade, at which location the contract was signed by the parties. Doan was to be the treasurer and general manager and was to receive, as stated in the contract, thirty-five dollars per week and four hundred dollars yearly as bonus; the other two less salaries, and Rogan to receive no salary. Ele was to put in five thousand dollars capital and receive six per centum interest on that. Relying upon the stipulation of these persons as expressed in the contract, and apparently especially relying upon that of Doan, Rogan, in the presence of Doan, and with verbal assurance of intention to stand by his agreement,, entered into a three-year written lease with the Arcade company in his own name, from August 15, 1903, of four rooms in the Arcade for store purposes at a monthly rental of one hundred and fifty dollars. The day the contract was signed, and after executing the lease, Rogan left for the East for the purpose of buying goods for the store expecting that the other three would meet him in Rochester a day or two later. After the execution of the contract and of the lease, Doan, Roth and Mahon resigned their positions with their former employer, and the next day Roth and Mahon went on to Rochester to meet Rogan. Doan, being advised b}r Roth and Mahon that they were going to meet Rogan and expected them to accompany them, finally, after some negotiation, declined to go and the other two left without him. Doan sent no word to Rogan, and did not afterwards communicate with him. His conduct was in effect a refusal to go on with the contract and a breach of it. Rogan, with Roth and Mahon, went on with the business, each performing the contract on his part.</p> <p>During the month of July following the contemplated corporation was formed by the three contracting parties, two others being associated ■in order to comply with the statute as to the number of corporators, but Rogan having furnished the capital became the principal stockholder, the others holding only one share each. In so far as it was practicable to do so the contract between the four was recognized and the method of conducting the business therein provided for was carried out. The business, however, proved unremunerative, and Rogan lost his money.</p> <p>It was the opinion of the court of common pleas that the sum mentioned in the twelfth clause as liquidated damages was in effect a penalty, and that inasmuch as ho proof of actual damage had been offered, the plaintiff was, entitled to nominal damages only. The jury was instructed accordingly, and a verdict for nominal damages was returned on which judgment was entered. This judgment was reversed by the circuit court and final judgment rendered for Rogan. The plaintiff in error, Doan, brings error.</p>

<p>Person refused recognition as member of council — Not entitled to injunction — City council is judge of qualification of members —Court may determine facts, when — Provisions of Sections 1536-205 and 1556-612, Revised Statutes — Councilmen ' shall have no interest tn city contracts — Determination of fact of disqualification — R’elator admits disqualification — Will not be, restored in quo warranto — Municipal law.</p> <p>1. The council of a city is made by statute, the judge of the election and qualifications of its members, and a person elected a member, who is refused recognition as a member by the members who have met to organize, on the ground that he is disqualified, is not in possession of the office or entitled to an injunction to enable him to exercise its functions.</p> <p>2. A city council is the exclusive judge of the qualifications of its members, but in a proceeding in quo zvarranto the court may determine whether in law the facts constitute a disqualification.</p> <p>3. The provision of Section 1536-205, Revised Statutes, which provides that, “nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure of money on the part of the corporation other than his fixed compensation; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation, and render him liable to the corporation for all sums of money or other things he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom,” is not one of the qualifications of a member of council that the council is made the judge of by Section 1536-612, .Revised Statutes; and the city council is without authority to determine the fact of such disqualification and upon a finding of such fact to declare a member’s seat vacant, and to proceed to fill the vacancy, but the court will not in a proceeding in quo warranto, by the person so deprived of his office, oust the person elected to fill the vacancy and restore the relator to the office when in his petition he admits the fact of such disqualification.</p>

<p>Motion to dismiss petition in error.</p> <p>The facts are stated in the opinion.</p>

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

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

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

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

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

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

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

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

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

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