Volume 8 — Ohio Circuit Court Reports

The plaintiff, who is a taxpayer in the Village of West Carrollton, in Montgomery county, brings this suit against the village and the members of its council to enjoin the issue of $12,000.00 of bonds under authority assumed to be conferred by the following act passed by the General Assembly March 14, 1893: “An act to authorize the council of any incorporated village in the State of Ohio, which at the last federal census had, or at any subsequent federal census may have a…

<p>An order made by the court of common pleas that a divorce case pending therein should not be tried until the plaintiff had paid the costs adjudged against him on two other actions for divorce prosecuted by him against his wife (the same defendant), based on wholly different grounds from that set out in the petition in the case in which said order.was made, and which said two cases had been dismissed at the cost of the plaintiff, was not warranted by law, the cause of action in the last case having accrued after the dismissal of the other cases. And where, after such order was made, said last case was duly assigned for trial, the judge before whom such cause was so sot for hearing could not properly decline to try the same on the sole ground that such costs had not been paid. And mandamus will lie to require such cause to be tried when duly and regularly assigned, and reached.</p>

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

<p> Quo Warranto. </p>

<p>Under the constitution and laws of this state the term of office of the clerk of court of common pleas continues until his successor is elected and qualified, and this is so even if the time for his successor to qualify and take his office has been extended, as under the act amending sec. 1240, Rev. Stat., passed March 2, 1893.</p>

<p>1. An instrument of lease, duly executed and recorded, conveying to the grantee named an absolute estate for life in a tract of improved farm land, including dwelling house and other buildings, and containing provisions forfeiting said life estate only for waste, non-payment of taxes, and in case a sale thereof on execution is permitted, constitutes such grantee the owner of a homestead, and entitled to its benefits, within the meaning of the law relating to homesteads and exemptions.</p> <p>2. Such grantee, while in undisputed possession of the premises under said lease, and actually occupying and using them with his family, as the home of his family, is not entitled to the exemptions of personal property, in lieu of a homestead, provided in section 5441, Revised Statutes.</p>

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

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

<p>1. Where, from the general nature of the pleadings, the pleadings themselves do not show what issue was made in a former case, then it is competent to show by parol evidence what the subject-matter of the controversy was; but where the pleadings do show precisely the issues between the parties, then it is not competent to show that other questions not in issue between them were considered in the case. Hence, it was not error for the trial court to exclude parol evidence offered to show that the court, in a former action between the same parties, held that the contract sued on had been rescinded, no such question having been raised by the pleadings, the issues of which were precise and definite. In such case, the questions concluded by the former judgment must be determined from the record.</p> <p>2. Where, upon the waiver of a jury, and the trial of the cause by the court, the court finds ‘‘ the issues joined with the defendant,” and gives judgment upon such finding in favor of the defendant, the plaintiff is precluded, in a subsequent action against the defendant, from re-litigating any question involved in any of the issues so found in the defendant’s favor.</p> <p>3. In an action brought by the defendants against the plaintiff in the United States Circuit Court, to enjoin the plaintiff from manufacturing carriage bowsockets, because such manufacture infringed a patent issued to the defendants, the plaintiff by answer set up a right to manufacture the sockets under the contract set out in the petition which the defendants in their petition averred had been rescinded ; the circuit court adjudged the contract to he in full force and operation, and its judgment was affirmed on appeal by the Supreme Court of the United States; held, that such adjudication estopped the defendants from alleging a prior rescission of such contract in an action brought thereon by the plaintiff to recover of the defendants the agreed price for the privilege of manufacturing and selling the article therein described.</p>

<p>1. In a proceeding to revive a dormant judgment where the record if the judgment shows the court had jurisdiction of the person of the defendant, and of the subject matter of the action, the defendant cannot go behind the record of the judgment and make a defense which existed anterior to the judgment.</p> <p>2. In such proceeding, however, a defendant may show that his relation to the judgment is that of a surety ; and may interpose any defense accruing subsequent to the judgment, such as payment, satisfaction or release, or anything done under the original judgment, which exonerates him from liability.</p>

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

<p>A corner lot is, under Haviland v. Columbus, 50 Ohio St. — (30 W. L. B. 108), assessable by its longer front for the improvement of the street upon which it fronts lengthwise, if the whole or part of such lot is occupied by a building or buildings which have front elevations overlooking such street, and are entered therefrom.</p>

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

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

<p>1. Two hundred and fifty shares of its own stock, denominated “ treasury stock,” being held by an incorporated company, was by a vote of the directors of such company issued to one of the directors for the nominal consideration of one dollar. No other sum of money or valuable thing having been paid for the same, and said director voting for such issue of said stock to himself. Held, that said transaction is illegal, and the stock is declared to be void in his hands.</p> <p>2. The plaintiff being in equity the holder of the shares of stock in the defendant company, upon certain facts alleged in his petition prays for the appointment of a receiver of said corporation, with a direction that he proceed to collect certain assessments unpaid upon stock subscribed ; but does not pray for dissolution of corporation or winding up of its affairs. And the court finding that the directors are endeavoring in good faith to carry on the business of the corporation by means within the power conferred upon them.</p> <p>Held, that the prayer of the petition should be refused.</p>

<p>1. Where equity and justice require the payment of a claim against a municipal corporation, though it may not be collectible at law, an ordinance of such city or village legally passed, directing and authorizing its payment, is legal and valid.</p> <p>2. The act of March 26, 1891, operated to repeal sec. 2690h, Revised Statutes, which made the approval of the mayor of Cincinnati essential to the validity of an ordinance appropriating money from the contingent fund.</p>

<p>1. The court of common pleas has no jurisdiction to render judgment, without notice to defendants, upon a warrant of attorney to confess judgment upon a note, the note and warrant being executed in Illinois, and authorizing the attorney to appear in “ any court of record,” and confess judgment without process.</p> <p>2. The terms of such warrant, authorizing, as they appear to do, a confession of judgment, in any court in tlie world, are too general in their nature, and do not authorize such judgment in the state of Ohio.</p>

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

The facts were substantially as follows: On the 17th day of November, 1886, Lewis H. Mason took judgment on a cognovit, in the Court of Common Pleas of Wyandot County, Ohio, for $5,018.95, against Michael Charlton and A. B. Charlton, the latter being surety. He caused execution to issue to the sheriff of Crawford county, who by direction of plaintiff’s counsel levied upon 160 acres of Charlton’s land now in question.

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

<p>1. An easement in real estate can be created only by deed or by prescription ; but it may be surrendered or relinquished in whole or in part by parol, or it may be abandoned.</p> <p>2. Under sections 2409-2415 of the Revised Statutes of Ohio, trustees of water-works are empowered, after a system of water-works has been constructed and put in operation, to contract with the owners of a mill operated in part by water power, for a portion of the water supply required for the uses of the municipality represented by them, to be taken from the slack water above the dam of such mill owners. And when such contract has been entered into upon a valid consideration, it is binding upon subsequent purchasers land mortgagees of the mill property, though they had no actual notice thereof at the time they acquired their interests in said property.</p> <p>S. Where such a contract has been entered into, and the municipality, acting in good faith, has so laid and adjusted its water-pipes as to draw a large portion of its necessary water supply from such slack water, and has exercised this privilege for several years, regularly paying the stipulated compensation therefor, neither a mortgagee of said mill property, whose mortgage was executed subsequently to the date of the contract, nor a subsequent purchaser, has a lawful right to destroy the dam, unless it he for the purpose of abandoning the easement connected therewith or of making necessary repairs to such dam.</p> <p>4. In such case, if a subsequent purchaser or mortgagee in possession, for the alleged purpose of making repairs to the dam, tear portions of it away, thereby permitting the slack water to escape, and depriving the municipality of the entire water supply derived from that source, he must proceed with reasonable expedition in making the proposed repairs. If the circumstances indicate that he is acting wantonly or vexatiously, and without having made due preparation for the speedy completion of the work, a court of equity will enjoin him from continuing such injurious acts.</p>

The plaintiffs in error seek a reversal of the judgment of the court of common pleas sustaining a demurrer to their petition.

The plaintiffs in error, H. P. Cannon, W. H. Rodebaugh and W. B. McCracken, filed their petition in the court of common pleas, alleging in substance that there is due them fifty dollars with interest, from November 17, 1888, for a suit of clothes of the value of fifty dollars which on that day they wagered on the result of the approaching election in Ohio and delivered and lost the same to the defendant, and praying judgment for said sum and interest.

<p>Appeal from the Court of Common Pleas of Cuyahoga County.</p>

<p>The act of February 9, 1893 (90 O. L. 28), which requires the trustees of townships, on the presentation of a petition therefor, signed by the owners of a majority of the feet front abutting on a dedicated street, alley or avenue as set forth in any plat or map of the record in the recorder’s office of any county, and when said street, alley or avenue is not within the limits or subject to the control of any municipal corporation, to open, extend, widen and straighten said street, alley or avenue in such manner as may be indicated on the recorded map or plat which dedicates said street, alley or avenue, and to appropriate, enter upon and hold real estate within the township, necessary for such purpose, and to assess the cost of such appropriation upon each front foot of the lots and lands abutting on each side of the street, alley or avenue to be improved (that is, on either side of the land so appropriated for such extension), and without requiring a finding by the trustees that the public interest requires such extension to be made, is in violation of the rights of the citizen under the constitution, and an assessment made in pursuance thereof will be enjoined.</p>

<p>C. entered into a verbal contract with S. to adopt and make her infant daughter his heir; in pursuance of the agreement the infant, two years old, was delivered to C., and the contract faithfully performed, except that the statutory requirements for the adoption were delayed until the daughter became twenty years old, at which time the formal requirements of the statute were complied with in the probate court, and believed by the parties to he legally valid, and so treated by C. and S. and her daughter until their deaths:</p> <p>Held, that the writing and part performance under it, take the case out of the operation of the statute of frauds, and the daughter became the heir of C.</p>

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

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

Clark, as administrator cle bonis non of the estate of William H. Dunnick, deceased, for the purpose of obtaining money to pay the debts of said estate, brought his action in the court below against A. C. Doney, to recover the value of certain real estate, situate in Franklin county, which he alleged had been fraudulently conveyed with intent to defraud the creditors of said Dunnick.

On the seventh day of March, 1893, Leroy Tussing and others filed with the Board of County Commissioners of Franklin county a petition praying the appointment of road commissioners to lay out and establish in accordance with the laws relating to one-mile assessment pikes, a free turnpike road along the route therein described, which route coincided with the line of an existing established road until it reached the old Hebron road, from which point the course proposed crossed…

<p>G., having since 1881 been a member of the Cincinnati Life Association, left the payment of monthly assessments to his bookkeeper, who turned out a defaulter and had failed to pay the assessment of February 1, 1890. The policy provided that where an assessment remains unpaid for 30 days the policy should be forfeited. On March 1, 1890, the 30 days for paying the February assessment not having yet expired, G. was notified of another monthly assessment, which was not paid, and on March 11 the policy was declared forfeited. On the following day, March 12, G.’s bookkeeper came to the office of the company and offered to pay the two assessments, which was refused, frothing more was done in the matter until September, when G. discovered that the assessments had not been paid. G. then offered to pay all arrearages, and asked to be re-instated, which was refused. Held :</p> <p>1. That the dishonesty and neglect of G.’s bookkeeper was not an unavoidable accident or mistake so far as the association was concerned, for which a court could grant relief.</p> <p>2. The fact that the forfeiture of the policy was not declared sooner by the association than it was, as it had a right to do, does not amount to a waiver of its right to forfeit the policy.</p> <p>3. The rules of the association provided for medical examiners and a medical director, whose duty it was to make all examinations of applicants and to examine all written applications reported by medical examiners, and who might accept or decline applicants, according to the risk. The association having declared its willingness to re-instate G. on furnishing a satisfactory medical examination, Held: Such examination was to be satisfactory to the medical director, provided that the judgment of the medical director should be fair and honest, and in accord with the established rules of medical authority.</p>

The plaintiffs, in these cases, sued to recover the value of shares in the defendant Building Association, which they claim were transferred to them by Eliza Lloyd, now deceased. The parties made defendant were, the Building Association and Frank Bowles, administrator of Eliza Lloyd. The Building-Association answered, admitting that it had in its possession money belonging to Eliza Lloyd, and asking the direction of the court as to whom it should be paid.

<p>1. A record of an action, in any judicial tribunal created by the constitution, should contain, and is, a history of the cause, from its beginning to its end; and where a complete record has not been made, when it is desired to be used as evidence in another action, the pleadings, and docket and journal entries, may be used instead of such record.</p> <p>2. Where, in an action, an order of the court, by consent of parties, was entered on the journal, directing the defendant to execute an undertaking (which was lost) to the plaintiff, to discharge an order of attachment issued therein, and as a substitute therefor, with sureties, to the approval of the clerk, and the clerk subsequently entered upon the appearance docket:' “Bond to be substituted forattaehment filed January 9, 1875, A. L. Moffatt, A. B. Keid, George S. Chase, surety,” such entry is a part of the record, and may be given in evidence, in an action on the lost undertaking, when issue is taken upon the averments of the petition as to such action and attachment proceedings, and the giving of such undertaking, when it appears that a complete record was not made in such action.</p> <p>3. In such case, if it is conceded that a material part of such entry is competent, a general objection to the whole entry should be overruled.</p> <p>4. In such action, it is not error, to the prejudice of the defendant, for the court to say to the jury : “This entry, however, is to be given such weight only as in your judgment in connection with the other evidence in the case it fairly deserves.</p>

<p>Rights of parties in funds in hands of assignee — Lien upon such funds.</p>

<p>1. A party canuot materially divert water from a natural water course, whether that natural water course is found above or below the surface of the earth, to the substantial injury or damage of another.</p> <p>2. All diversions of water from a natural water course are not unlawful. The diversion to make it unlawful must be material. That materiality is measured both by quantity and quality.</p> <p>3. Waters delivered upon the premises of an adjoining proprietor must be delivered in substantially the same condition, both as to quantity and quality, as the water flows through the natural water course,</p> <p>4. Issues joined by the pleadings in a case — the evidence competent upon those issues — the court will apply the law of estoppel to the facts as found from the evidence, although the facts that create an estoppel are not pleaded.</p> <p>5. When a party, by his failure to speak or act when it is his right so to do, and by silence acquiesces in an act, he will he estopped from claiming that the act should be undone when it will work an injury or damage to the actor.</p>

<p>Amendment of petition after verdict — Practice — Objection to sufficiency of petition as amended, how and when to be made — Charge of court, negligence of conductor of street car in starting car — Damages to married woman, when expense for physician employed by husband to treat his wife, not proper item of damages to her.</p>

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

<p>Section 3320, of the Revised Statutes, directing that each railroad company shall cause three each way of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at stations, cities or villages having over three thousand inhabitants, long enough to receive and let off passengers, is not a violation of that clause of the constitution of the United States giving congress power to regulate commerce among the several states, and is valid until congress shall pass some act inconsistent therewith.</p>

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

<p>Heard on motion to dismiss appeal.</p>

<p>1. Where property is used for a purely public charity, under paragraph one of section 2732 of the Revised Statutes, such use exempts the same from taxation.</p> <p>2. Under paragraph six of the same section, property belonging to a purely public charity, and used by it wholly for the purpose of carrying forward charitable work, is exempt from taxation.</p> <p>3. When a purely charitable institution sells by land contract its real property which has been exempt from taxation, and retains possession of the same until payments for the property are completed, and continues to devote the same to charitable uses until payments are completed, such vendors continue during such time, to he the owners of property under the taxing laws of the state, and the property while thus owned and used continues to he exempt from taxation under both paragraphs one and six of section 2732.</p> <p>4. Where real property has been exempt from taxation for a number of years, and the causes that make it exempt cease to exist longer, on July 1, 1893, there is no authority in law for placing such property on the tax lists for taxation before the year 1894.</p>

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

<p>On Appeal from the Court of Common Pleas of Lucas County.</p>

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

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

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

<p>On error to the Court of Common Pleas of Licking County.</p>

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

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

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

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

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

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

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

<p>1. Under the provisions of section 2, article XII, of the Constitution of Ohio, it is competent for the general assembly, by law, to exempt from taxation the gas wells, pipe lines, and machinery and fixtures necessarily connected therewith, acquired, owned and used by the city of Toledo, for the purpose of supplying the city and its inhabitants with natural gas, for heating and lighting, under the act of 1889. 86 Ohio Laws, p. 7.</p> <p>2. Said property to be regarded as used exclusively for public purposes, within the meaning of paragraph 8, of section 2732, as amended in 1891, 88 Ohio Laws, 95, though natural gas supplied thereby is used for lighting and heating private dwellings and factories, as well as public buildings of the city, and although a large part of said property is outside the limits of said city, and of Lucas county. (See State ex rel. v. The City of Toledo, 48 Ohio St. 112.)</p>

<p>The act of April 23, 1894, regulating the sale of wearing apparel by itinerant vendors is a constitutional and valid law.</p>

<p>The act passed April 23, 1891, amending sec. 2742, Rev. Stat., and which is known as the “Rawlings Law,” (Ohio Laws, vol. 88, 341) is not in violation of the constitution of the state, as in effect providing for double taxation on the same property for the same period of time.</p>

<p>1. The provision of sec. 1464, title XI, chapter 2, Revised Statutes, which prohibits township trustees from establishing a cemetery within two hundred yards of a dwelling-house, applies to the location of an addition to a cemetery under section 1472 of said chapter; and such location may be enjoined by the owner of such house.</p> <p>2. The provision of sec. 1465 of such chapter, requiring the question of “ cemetery or no cemetery ” to be submitted to a vote of the electors of the township, has no application to the acquisition of additional cemetery grounds under said section 1472.</p> <p>3. The act of February 23, 1893, (Local Laws, p. 183) which provides that “ Township trustees of any township in the state, which had at the last federal census a population of not less than 690, or may have at any future census a population of not more than 695, are authorized to occcupy and use for cemetery purposes any land that has been bought by said township trustees for cemetery purposes, any act that has heretofore been enacted notwithstanding,” being designed specially to apply to Montville township, is local in its nature, and therefore not in conflict with sec. 26, art. II, of the constitution.</p> <p>4. The provision of said see. 1464, Rev. Stat., confers upon the owner of a dwelling-house a vested right of property, in the nature of an appurtenance to such dwelling-house, against the establishment of a cemetery nearer such house than two hundred yards, without his consent ; and where such owner commenced an action to restrain such trustees from violating such right, before the passage of such act of February 23, 1893, no subsequent repeal of such provision of see. 1464 could affect such right or such action.</p> <p>5. But such act of February 23, 1893, does not, either in express words or by necessary implication, confer upon such trustees the right to use lands for cemetery purposes which lie within two hundred yards of a dwelling-house.</p> <p>6. In any event, while the general assembly might subsequently authorize the establishment of a cemetery within such prohibited distance of a dwelling-house, by general or special act, the establishment of such cemetery would tend to depreciate the value of such dwelling house, and would be an infraction of the owner’s right of property ; and such act would be in violation of sec. 19, art. I, of the constititution, and void, unless it provided a means of first awarding compensation in money to such owner; and because the act in question does not provide such means, it is void as against such owner.</p>

<p>1. Where one of the issues in a case is whether a person holding a policy of insurance, had notified the insurer of a subsequent and additional insurance taken out by him on the same property, it was competent for him to offer evidence that his agent went to a telephone in this city, and called up the telephone in the office of the defendant company in the same city, and then notified the person answering such call, that such additional insurance had been taken out, and that the reply received was, “ all right.”</p> <p>2. The trial court did not err in the charges given to the jury, or in refusing to charge as requested, as the same are set out in the opinion in this ease, or in overruling the motion for a new trial on the ground that the verdict of the jury was against the evidence, and for more than the amount of the loss. The loss was a total one, and under sec. 3643, Rev. Stat., if plaintiff was entitled to recover at all, he was entitled to recover the whole amount of the policy.</p>

<p> Qualifications of a juror who is related to one of the parties to the suit, and the mode of determining the degree of relationship. </p>

<p>Replevin — Presumption that law in respect to giving bond, etc., was complied with, and that property had no' other than pecuniary value — Injunction— Mere averment of irreparable injury insufficient — Adequate remedy at law.</p>

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

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

<p>Book of account — Failure to set out copy of account in petition— When loans of money, simply, without any other mutual dealing, not the proper subject-matter of book account.</p>

<p>1. An action for money against a trustee carrying on business under the direction of a will, where plaintiff's right, if he has any, must arise under the general doctrine of subrogation, is an equitable action, and is appealable.</p> <p>2. Under section 5981, Rev. Stat., where the will appoints a party both as executor and also as trustee to carry on business, separate and apart from each other, such party is required to give separate bonds for each position, and in a suit against him, on a claim arising in the business so carried on by him as trustee, the petition should allege that he had given the bond required as trustee.</p> <p>3. Where the will directs that the whole personal estate should he used in carrying on a business, such direction is subject to the law that the personal estate must first pay the personal debts of the testator, and only the personal estate remaining after payment of such personal debts can be used by the trustee to carry on the business.</p> <p>4. Where a creditor of the business thus carried on by such trustee, who as executor of the estate has paid personal creditors of the testator out of the personal estate, asks to be subrogated to the rights of such trustee as against such creditors paid, on the ground that the business was thus carried on by the trustee with the consent of such personal creditors, and that they were paid with the proceeds of the business thus carried on by the trustee, the petition should state how long the personal creditors agreed to the carrying on of the business ; whether the creditors were paid after the plaintiff furnished anything to carry on said business, and whether such personal creditors were paid from any fund which plaintiff helped to produce.</p> <p>5. In carrying on such business, the trustee has a right to be indemnified for liabilities growing out of the running of the business, and if he chooses not to do so, and is insolvent, the creditor may assert his right in his stead by way of subrogation. And in such case the petition should allege what fund is to be reached. — Ed. Bulletin.</p>

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

<p>1. Owners of intangible property, residents of Ohio, must list the same for taxation, even though the same is under the control and management of a non-resident agent for investment and collection.</p> <p>2. A non-resident of Ohio is not required to list his intangible property for taxation, notwithstanding it is under the control of a resident agent, for investment and collection.</p> <p>3. The fact that promissory notes are jointly owned by three persons, one of whom is a non-resident of Ohio, does not make the interest of the non-resident subject to taxation in this state, although it appears, that under the general directions of the non-resident owner, the resident joint owner manages the fund evidenced by the notes.</p> <p>4. Notice by auditor to a resident joint owner of notes, who is the agent of her mother, also a resident joint owner, but incapacitated to manage-her business, authorizes the auditor to make such additions to the return made on behalf of the mother as would subject her omitted property to taxation.</p> <p>5. The auditor can only add a penalty of fifty per cent, to the amount the owner or agent has failed to list for taxation.</p>

<p>Error to the Superior Court of Cincinnati.</p>

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

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

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

<p>1. In an action brought by a plaintiff to’recover damages from the defendant, who, without authority of law, had cut down the grade of the street of a village, in front of plaintiff’s premises, thereby injuring his abutting property, and his means of access thereto, such plaintiff is entitled to recover therefor, unless it was done by his consent. But where it appears that the plaintiff did consent to the cutting of said street to the depth of from eighteen to twenty-four inches only, but that the defendant cut the same to the depth of from three to five feet, and the evidence in the case as to the amount of the damage thereby occasioned to plaintiff’s premises, was as to what resulted from the whole of such cutting, and there was no evidence tending to show the amount of the damages sustained by reason of the cutting of the street beyond the depth consented to by the plaintiff, a judgment for the whole amount of damages shown to have been sustained by the whole of the cutting can not be upheld.</p> <p>2. Where it appears that such street was cut down by the defendant, in front of another lot abutting thereon, owned by another person who gave no consent thereto, and had no knowledge thereof until after it was done, and which greatly injured such abutting property, a charge by the court to the jury, to the effect, that while the defendant may have unlawfully cut down the streetiin front of such lot, yet if the authorities of the village, afterwards, and during the pendency of this suit, adopted a resolution to lower the grade of such street in front of said lot still more, if such grade was a reasonable one, and if the street was improved thereto, and the plaintiff could not recover damages therefor against the village, that the defendant in this case would also be free from liability therefor. Such resolution had not been acted upon by the village, and there was no competent evidence that it would be. This charge was erroneous and prejudicial to the plaintiff.</p>

<p>1. Under a regulation of the Board of Health of the city of Cincinnati, requiring that any one desiring to prescribe or practice medicine in any of its branches, including surgery, in the city of Cincinnati, must.be registered as such, and that it shall be unlawful for him to prescribe medicine in any of its branches unless he shall have first been so registered, and that such registration shall be allowed on proof satisfactory to the Department of Health, that such applicant is duly qualified according to law to be registered, a peremptory mandamus should not be allowed against such Health Department, requiring it to admit a person to register, if it appears that the discretion thus conferred upon it has not been abused.</p> <p>2. But in view of the fact that by sec. 4403, Rev. Stat., the legislature of the state has provided as to those who shall not practice medicine in any of its branches, in this state for reward, and thereby, in effect, allows all persons not excluded thereby, or by other statutes of the state, to do so; and by sec. 6992, Rev. Stat., has provided that it shall be unlawful for persons to practice medicine in any of its departments, without having the qualifications therein set forth, under the penalties therein mentioned.</p> <p>Held: That while in the exercise of police power, a regulation requiring all persons practicing medicine or surgery in such city, to register as such, would probably be valid; that such a regulation as the one in question, which makes the right to register depend upon sanction or approval of an officer of the board, and of his view as to the qualifications of such person to practice, and provides that the person violating it shall be punished, is not authorized by any law of the state, and is invalid.</p>

<p>1. Where a bill of exceptions, taken on the overruling of a motion for a new trial, was duly presented to the opposite counsel, within the time prescribed by law, and was presented to the trial judge for allowance, one day before the expiration of the forty days (then allowed) from the date of the overruling of the motion for a new trial, and thereupon such judge, by indorsement upon the bill, extended the time for the signing thereof for the period of ten days beyond the expiration of said forty days, and signed the same within said ten days, and had an entry of the allowance thereof made upon the journal,land no objection was made or exception taken thereto by the opposite counsel, such bill of exceptions should not be stricken from the files for the sole reason that it was not presented for allowance to the trial judge not less than ten days before the expiration of said forty days, — said provision being for the convenience of said trial judge, may be waived by him, especially so, if no exceptions be made or exceptions taken thereto.</p> <p>2. Where no exception was taken to the action of the trial court, overruling a motion for a new trial, at the time the order was made, or in the entry upon the journal of said term, overruling such motion, or at any time in said term after the overruling of such motion, and all that was done by way of exception thereto, was, after the motion for a new trial was filed, to notify the judge in court that if the motion was overruled he desired an exception entered thereto, which the judge said should be done, but it was omitted, such exception was not properly taken, and it was error for the court at a subsequent term, to place on the journal of said term an entry nunc pro tunc, as of the day in a former term, at which the motions for a new trial were overruled, that the defendant then excepted thereto.</p> <p>3. In an action brought against a municipal corporation, to recover damages on the cause of action set out in the petition, the substance and effect of which and of the answer thereto are hereinafter set forth, the plaintiff is not entitled to recover counsel fees paid by him in a former action, brought to recover the amount of assessments assigned to him by the city, and which he failed to collect.</p>

<p>In an action on a quantum meruit for services in doing chores daily, in and around the house, stable and premises of the defendant, at irregular intervals during the day, and whenever called on to do so, but without a hiring by the day, or other specific period, where the performance, nature and extent of the services are proved, the jury may estimate and determine the reasonable worth or value of such services from the facts-so proved, according to their own judgment and knowledge of the subject, and the plaintiff is¡not obliged to call witnesses to prove the money value of the services before he can recover more than nominal damages.</p>

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

<p>A decree for partition is appealable, but a final order or judgment confirming commsssioners’ report of partition and adjudging payment of costs and attorney’s fee is not appealable. — [Ed. Bulletin.]</p>

<p>1. When parties themselves give a construction to a contract of uncertain meaning, courts will give, the contract that construction that the parties gave it.</p> <p>2. The people, as a body, can only act toward one of their number iii honesty and fairness, and whether a construction of a contract makes it reasonable and just, or otherwise, is a matter to betaken into consideration by a court, and such construction will be given to the contract, if possible, which leads to justice between the parties.</p>

<p>Where lands were purchased by a cemetery association, as an addition to a tract already owned and used by it as a grave yard, or grounds for burying the dead, and some work was done thereon to prepare it for cemetery purposes, but the same was not platted, or lots therein sold, or any interments made therein until after the day preceding the second Monday of April, 1891, such lands are not exempted from taxation for the year 1891, and under the provisions of sections 2732 or 3581, Revised Statutes.</p>

<p>A judgment rendered against the licensee in a county where an oil well is located, said well being operated by the licensee under what is denominated an oil lease, creates no lien in favor of the judgment creditor.</p> <p>An execution, issued upon a judgment against a licensee, cannot be levied upon an oil well, operated by said licensee under what are denominated oil leases, so as thereby to create a lien.</p> <p>The remedy of a creditor to reach the interest of a licensee in what' are denominated oil leases, is by action under sec 5464 of the ^Revised Statutes of Ohio. .</p> <p>A real estate mortgage, duly recorded, does not create a lien in favor of the mortgagee, upon the interest of a licensee in what are denominated oil leases.</p> <p>Qucere — Are such oil leases the subject of a chattel mortgage?</p> <p>As between individual and partnership creditors, there must be a partnership in fact. Otherwise the property held would be treated as individual property, unless the law of estoppel intervenes.</p> <p>This partnership in fact is determined and depended upon the intention of the persons sought to be charged as partners.</p>

<p>Where an order is drawn by a village clerk on the treasurer of said village, signed by him in his own name as clerk of the village, directing the payment of money to a person named therein, which was afterwards uttered and published by him as genuine, an indictment against him, containing two counts — one charging him with falsely making such order with intent to defraud, and the other charging him with unlawfully uttering and publishing said false order with intent to defraud, he at the time well knowing said order to be false, does not state facts, sufficient to constitute an offense.</p>

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

<p>A livery barn built by B. & H. upon B’s land, with stone-wall foundation let into the earth a foot or more, under a verbal agreement for a joint ownership of the building and so much of the real estate as is required ' for its use, is, prima facie, at least, a part of the real estate, and a levy upon and sale of the interest of H. therein, as personal property, merely, does not confer upon the purchaser at execution sale the right, as against B., to compel partition of the barn or of its use, nor to subject it to sale if such partition cannot, without manifest injury, be made.</p>

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

<p>Error to the Court of Common Pleas of Cuyahoga County,</p>

<p>Os Appeal from the Court of Common Pleas of Montgomery County.</p>

<p>A petition for a writ of mandamus is demurrable unless it shows a present right in the relator to require the performance by the respondent of some act within the definition laid down in sec. 6741, Bey. Stat., and a present necessity for the issuance of the writ.</p>

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

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

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

<p>"Where an action is brought by a wife under sec. 4357, Rev. Stat., against a parly, for damages for selling liquor to her husband, a person in the habit of becoming intoxicated, such party being insolvent, the owner of the premises where such liquor was sold, can not defeat the lien on the premises for a judgment that may be obtained by such wife, by a conveyance of the property during the pendency of the action, but before judgment, made voluntarily, without consideration, and for the purpose of preventing the plaintiff from enforcing a judgment she may obtain against such premises. Bollinger v. Griffith, 23 Ohio St. considered and distinguised.</p> <p>Where the right to enforce such a judgment against the premises exists and is created by statute, in order to defeat such right a person must stand in better relation than in voluntarily receiving the property without consideration and for the purpose of defeating the right created by statute. — (Ed. Law Bulletin.)</p>

<p>1. The statute in force at the time of the commencement of this action, (secs. 5301 & 2, 89 Ohio Laws, 124), the provisions of which governed the taking and allowance of bills of exceptions therein, gave the right to have such bill allowed within fifty days after the overruling of a motion for a new trial, based on any of the grounds mentioned in such sections. And a bill so taken, within such time, is available to raise the question whether errors of law occurred at the trial, though the motion for a new trial was not overruled until a subsequent term. Certainly it will properly raise the question whether the verdict of the jury or the finding of the court was against the weight of the evidence, if this was one of the grounds assigned in the motion for a new trial.</p> <p>2. Where the trial of the case is had at the April term of the court, and a verdict then rendered, and a motion for a new trial is duly filed, and continued for disposition until the following (July) term, and' at that term it is announced by the court that the motion was overruled, but no entry thereof was then made upon the journal of the said July term, but the clerk, without the authority of the court or the knowledge of the losing party, made an entry thereof upon the journal of the preceding April term, and at the commencement of the next (October) term, such party having first discovered that said entry had been so made, filed a motion to vacate and set the same aside, which on October 6th of said term was granted, and said entry striken out, but on the same day the court entered an order on its journal of that day, as of July 27th of the preceding July term, which was more than fifty days before October 6, overruling such motion. Held: That the entry of such order as of July 27th was erroneous. It deprived the plaintiff in error of the right to take a bill of exception to such order overruling the motion for a new trial. Nunc pro tunc orders may be made in proper cases in furtherance of justice, but never to do injustice. The entry of the order overruling the motion should have been made as of October 6th, when it was directed to be entered. And the bill of exceptions having been signed and allowed . on that day, a motion to strike it from the files for the reason that it was not allowed within fifty days from the overruling .of the motion for a new trial, will not be granted.</p> <p>3. In this case the verdict was not warranted by the evidence, and the judgment rendered thereon will be reversed.</p>

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

<p>1. The fact that a horse is found running at large upon uninclosed land is prima facie evidence under the statute that he is running at large contrary to the provisions thereof, and any person may take him up and confine him and give notice to the owner ; but if it be shown that he escaped from the owner or keeper thereof without his fault or knowledge, he must be restored to the owner or keeper upon payment of a reasonable compensation for taking up and keeping the same.</p> <p>2. From this it would appear that even if an animal be found running at large without the fault or knowledge of the owner, he cannot reclaim it without paying or tendering payment to the person taking it up and keeping it. — (Ed. Law Bulletin.)</p>

<p>1. The act of April 13, 1893, as amended April 24, 1893 (90 Ohio Laws, 263, 265), is valid and binding, and is not in contravention of sec. 1, article 13, or of see. 26, article 2 of the constitution of the state, or of any other constitutional provision.</p> <p>2. Such law gave to the cities of the first class the right to decide as to what contiguous municipal corporations they desired to have annexed to it on any one proceeding; and the question whether it should be done was to be submitted as one proposition to the electors of all the municipalities affected (in this case six), and if it received an affirmative vote of a majority of those voting on the question the proposition would be carried.</p> <p>3. The proceedings in this case were not in conformity with the law. The statute gave to cities of the first grade of the first class the right to annex continguous corporations,” upon the terms and conditions hereinafter recited.” The first of these conditions was the passage of an ordinance by the board of legislation declaring its intention to annex the corporations described therein. The second, that such ordinance be published once in a week for four consecutive weeks in two newspapers, published and of general circulation in the county. This publication having been made only in two newspapers, one of them printed in the English and the other in the German language, was not a substantial compliance with this provision and condition, and did not authorize the steps subsequently taken. The provision was mandatory, and not merely directory.</p>

On the demurrer to the petition. The substantial allegations of the petition are that the defendants Cassidy, McDonald and Bigger are the County Commissioners of Franklin county, and the defendant, The Etna Construction Company, a corporation organized under the laws of New Jersey, and doing business at Columbus, Ohio. The plaintiff is the owner in fee'of lauds described abutting on St. Clair avenue.

<p>1, A judgment rendered against the individual members of a partnership upon an obligation executed by them in their individual names, for (he use and benefit of the firm, is a partnership liability.</p> <p>2. That a judgment upon a firm debt was rendered against the members of the firm does not affect the equitable right to have the partnership property subjected to its payment. Equity does not regard the form of the judgment, but the substance of the debt,</p>

<p>Appeal from the Court of Common Pleas of Lucas County.</p>

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

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

<p>1. All solvent stockholders of an insolvent corporation within the jurisdiction of the court, are necessary parties in determining the liability of stockholders, and must all be brought in before a final adjudication can be made.</p> <p>2. A plaintiff who negligently fails to make solvent stockholders within the jurisdiction, parties until right of action against them is barred, will not be permitted to increase the assessment against solvent stockholders duly served, by reason of such deficiency ; hut all solvent stockholders within the jurisdiction, whether served or not, will be treated as in court for the purpose of the assessment, and the loss must fall upon the plaintiff and the other creditors of the corporation.</p> <p>3. A corporation cannot subscribe to the capital stock of another corporation and thus aid in the formation of a new corporation ; but if not prohibited by its charter, it may invest in, hold or own stock in another corporation, and will be liable for assessments thereon, the same as an individual holder.</p>

<p>1. It is reasonable that a railroad company should have some rule as to when freight should be removed from its cars; and forty-eight hours would seem to be a reasonable time within which to make the removal.</p> <p>2. An express contract, made between a shipper of freight and a railroad company, by the terms of which the shipper agrees to remove the freight within forty-eight hours after notice of its arrival at its destination, or pay a reasonable compensation for the detention of the cars, is not against public policy, and in the absence of fraud, both parties are bound by its terms.</p> <p>3. A shipper who signs such a contract under which freight is received by a common carrier, is bound by its terms, although the contract was not read by him, and he failed to note its contents.</p> <p>4. The fact that important conditions of the contract are written or printed after the signature, and on an opposite page, does not vary the rule where there is an express reference to such conditions on the face of the contract above the signature.</p>

<p>1. The term of office of a county auditor elected at the November election, 1893, does not commence until the third Monday of October next after his election as provided for by the act of May 24, 1894 (91 Ohio Laws, 398).</p> <p>2. The legislature is without power to create a vacancy in the office of county auditor, and to fill it by extending the term of the incumbent beyond a period of three years. The second section of the act above named is invalid.</p> <p>3. The attempt of the legislature to fill the vacancy, does not invalidate the first section of the act which fixes the time at which the term of county auditors shall commence.</p>

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

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

In this case, in the court below, a petition was filed January 16, 1893, by the defendant in error against the plaintiff in error, and T. A. Ashworth, sheriff of Miami county, alleging in substance that the plaintiff in error on November 23, 1892, recovered a judgment in the Court of Common Pleas of Marion County, Ohio, against the defendant in error upon a promissory note with a warrant of attorney thereto, issued execution thereon to the sheriff of Miami county, who had…

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

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

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

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

The facts alleged in the petition, and admitted in the answer, are, that the plaintiff is a resident and taxpayer in the city of Columbus; that said city is a city of the first grade and second class, and the other defendants are the members of the board of public works of said city, the commissioners of Franklin county, the auditor of said county, and the members of the‘.‘ armory and market building commission in said city.

<p>1. A riparian owner of land has no right to impede the natural flow of the water by filling such portion of his land as is covered by the flowing waters of the stream at any stage which may be reasonably anticipated.</p> <p>2. A municipal corporation owning levees which would be injured by such interference with the natural flow of the water is entitled to an injunction to prevent it.</p>

<p>1. Section 2166, Rev. Stat., is not in contravention of section 6, Article VIII of the Constitution of Ohio.</p> <p>2. The council of a municipality may enter into a contract with an association organized for charitable purposes, within the corporation, for the management of a hospital already erected for the sick and disabled, to provide medical and surgical aid and nursing for sick and disabled persons, free of expense to those who are unable to pay, and at cost to those who are able to pay.</p> <p>3. The fact that the municipality is not represented by one or more of the board of trustees, and that it has no interest in the grounds or buildings except as lessee for a term of ninety-nine years of one building situated on the real estate, suitably arranged and prepared with free wards, does not preclude the council from entering into the said contract.</p>

<p>Error to the Court of Common Fleas of Belmont County.</p>

On application for temporary injunction. The City of Cleveland, by its Director of Public Works, wishing to purchase cast iron water-pipe exceeding $5,000.00 in value, on the 19th day of January, 1894, advertised for sealed proposals to be received February 16, 1894, “ for furnishing and delivering such cast-iron water-pipe and special castings as may be required by the water works division of the department of Public Works of the City of Cleveland.” In the advertisement…

<p>Plaintiff brought suit in foreign attachment in the Court of Common Pleas of Cuyahoga Counnty against defendant, a corporation incorporated under the laws of the state of West Virginia, but having its factory, office and business in Jefferson county in this state, where also its officers were resident. He caused a debtor of the defendant, resident in Cuyahoga county, to be garnished, and summons to be served in Jeferson county on the corporation by service upon its officers personally. Held, the Court of Common Pleas of Cuyahoga County had jurisdiction of the action.</p> <p>Held, The mere request made by plaintiff to the garnishee to buy of defendant the property which was the subject of the debt garnished, was not such a fraud as justified the setting aside of the attachment and service of summons.</p>

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

<p>Will of John Bashore, of Allen County, Ohio — Its legal construction.</p>

<p>1. The City of Toledo brought an action to recover a personal judgment against certain lot owners, for the amount of certain special assessments for street improvements levied upon their lots, and to subject said lots to their payment, alleging that said persons owned said lots when and ever since said assessments were made, and that the lien of the city was superior to any lien of a certain mortgagee of said lots who was also made a defendant. The mortgagee, by cross-petition, set up his mortgage, but controverted none of the averments of the petition.</p> <p>2. The lot owners suffered a default as to the cross-petition, and tendered no issue to the city as to their ownership of the lots, but sought to defeat the assessment on other grounds.</p> <p>3. A portion of the assessments were abated, and for the residue, a personal judgment against the lot owners was rendered, and the lots were ordered sold.</p> <p>4. The lot owners sought to appeal from the judgment and decree in favor of the city, to the circuit court.</p> <p>Meld, on motion to dismiss the appeal, that the appeal would not lie.</p>

<p>Constitutionality of laws requiring county commissioners or trustees of townships to construct public improvements and assess the cost thereof on abutting property, and of the act of April 27, 1893. 90 Ohio Laws, 251.</p>

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

<p>1. In the trial of an action for damages for personal injuries through the negligence of defendant, repairs or changes made after the accident by the defendant are not to be construed as an admission by the defendant of prior negligence, and testimony as to such repairs or changes is incompetent to prove prior negligence.</p> <p>2. An error by the trial court in the admission of incompetent testimony is cured by the court finally, in the charge to the jury, withdrawing such testimony, although such withdrawal is based on the facts of the case, and not on the ground that such testimony was of itself incompetent. — (Ed. Bulletin.)</p>