Volume 81 — Ohio State Reports, New Series

<p>Mortgage clause in insurance policy making loss payable to mortgagee — Not an assignment of the policy to mortgagee — Mortgagee of policy bound by award of appraisers, when.</p> <p>A “mortgage clause” attached to a fire insurance policy at the time the same is executed, which clause makes the loss, if any, under the policy, payable to the mortgagee as his interest may appear, is not an assignment of the policy to such mortgagee, and, in the absence of fraud or collusion, he is bound by the award of appraisers provided for and required by the terms of the policy in the event of a disagreement between the insured and the insurance company as to the amount of the loss, although the mortgagee was not a party to and had no notice of the appraisement and award.</p>

<p>Error to the Circuit Court of' Hamilton county.</p> <p>The city solicitor brought suit in the court • of common pleas against the plaintiffs in error, the clerk of the city, the auditor of the city and its board of park commissioners, to enjoin the publication of an ordinance providing for the issuance of bonds of the city and also to enjoin the issuance of the bonds, because of a want of compliance with the statute in the steps taken to authorize the issuance of the bonds. The allegations of the petition, in substance, were that on the 30th of December, 1908, the board of park commissioners passed a resolution declaring it necessary to issue bonds in the sum of one hundred and twenty-five thousand dollars for the purpose of carrying into effect the powers conferred upon the board by law, and on the same day the board transmitted said resolution to the city council. On the 25th of February, 1909, the commission instructed its secretary to have prepared, and submitted to council for action, an ordinance authorizing an additional bond issue of fifteen thousand dollars to defray the costs of erecting a public shelter and comfort station in Eden Park, and equipping the same. On the 19th of March, 1909, the board of park commissioners transmitted to council a communication in which they requested that council submit to a vote of the people, at a special election to be held for that purpose, the question of issuing one million dollars in bonds for the use of the board of park commissioners. On March 22, 1909, the finance committee of the council requested the board to state with particularity the purpose for which said bonds were desired, and on the 25th of March, 1909, the park commissioners sent to said' committee a communication complying in general terms with said request. On the 29th of March, 1909, the council of the city of Cincinnati passed a resolution declaring it necessary to issue bonds in the sum of one million dollars to raise money for purchasing and condemning the necessary land for park and boulevard purposes and for improving the same. In said resolution it was recited that said issue, together with other indebtedness incurred by the city, would exceed four per cent, of the total value* of all property in the said city as listed and assessed for taxation, and, therefore, they provided for an election to be held on the 11th day of May, 1909, at which the qualified electors of said city should vote upon the authorization of said issue. The petition alleges that, in fact, said contemplated issue would, in connection with other indebtedness of the city, exceed four per cent, of all the property in the city of Cincinnati as listed and assessed for taxation, but would not cause said indebtedness to exceed eight per cent. Said election was held pursuant to the resolution of the council, and at said election a majority of those voting voted in favor of authorizing the issue of the bonds, but the proposition did not receive the votes of two-thirds of the electors voting at said election. The petition further alleges, that upon the assumption that a favoring vote of a mere majority was sufficient to authorize an issuance of the bonds, the original defendants were about to proceed to issue the bonds.</p> <p>A demurrer to this petition was filed in the court of common pleas. The demurrer was overruled, and the defendants not desiring to plead further, a perpetual injunction was granted in accordance with the prayer of the petition. This judgment of the court of common pleas was, on petition in error, affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Summit county.</p> <p>It appears from the articles of incorporation and the amendments thereto that the plaintiff in error, The East Ohio Gas Company, was incorporated for the purpose of producing, purchasing and acquiring natural gas and transporting the same to certain towns and cities named therein, the defendant in error being one, and, “to other cities, towns and places in said counties.” It was provided in the articles of incorporation, as amended, that the main line of the said gas company should begin at points on the Ohio river in Belmont and Monroe counties and run thence through Belmont, Harrison, Tuscarawas, Stark, Summit and Cuyahoga counties to the city of Cleveland. Under its franchise to be a corporation. for such purpose, the plaintiff in error applied to the council of the city of Akron for its consent that the plaintiff in error should enter said city and lay down its mains and, pipes in the streets, lanes, alleys and public grounds thereof and connect with service pipes ff> the public buildings, street lamps, and private consumers. Consent therefor was given to the plaintiff in error by ordinance enacted by the council of the city of Akron on the 26th day of September, 1898, and the condition was attached, among others, that for the first five years the gas company should charge not exceeding twenty-five cents per thousand feet of gas, and for the next five years, not exceeding thirty cents per thousand feet, and it was provided therein that, “the council of said city of Akron shall not during the period of ten years from and after the passage of this ordinance pass any ordinance fixing or attempting to fix the rates at which gas shall be supplied at any lower price than these set forth.” The said ordinance was entirely silent as to the length of time during which the gas company might exercise the privilege thus granted. After the expiration of ten years from September 26, T898, the council of the city of Akron passed another ordinance fixing the price of gas to be furnished by the said . gas company at twenty cents a thousand feet and providing that, “the said company, its receivers, successors and assigns, shall not for the period of ten years from and after the taking effect of this ordinance charge .and receive for all gas so furnished, sold and delivered, a sum exceeding the rates hereinbefore set forth.” Meantime the said city council had granted to another gas company the privilege of laying pipes within its streets and furnishing gas to consumers. The plaintiff in error declined to accept the terms established in this second ordinance and signified its intention of discontinuing its business in the city of Akron and wholly withdrawing therefrom. Whereupon the city of Akron filed in the court of common pleas of Summit county its petition praying for an injunction against the gas company restraining it from “shutting off or withholding any natural gas from the said city, its buildings, streets, and other places named in the ordinance, and from any of its inhabitants or persons doing business therein, and their several buildings, or places of business or abode, from ceasing in any manner to supply and serve its said customers and patrons with natural gas, as they heretofore and hitherto have been served and supplied and from hindering or in any way interfering with any of the persons entitled .to such service as aforesaid from the full and unobstructed enjoyment and benefit thereof.” Issues were made up by the answer to this petition and reply thereto. On the hearing in the court' of common pleas the gas company was perpetually enjoined as prayed in the petition. The circuit court on appeal made a similar order against the gas company and the case is now brought here for review on oetition in error.</p>

<p>Error to the Circuit Court of Ashtabula county.</p> <p>The controversy out of which this proceeding grows originated in the probate court of Ashtabula by the filing in that court, January 3, 1907, of an application by A. C. Tombes, administrator of C. D. Ferguson, deceased, praying an order as to a monument as hereinafter stated. It was shown by the application that the estate amounted to fifteen thousand dollars and more; that the widow of the deceased has applied to the administrator to provide a tombstone or monument, the same to be paid for from the funds of the estate, but the heir-at-law has refused to consent to such expenditure. Three hundred dollars was suggested as a reasonable ' amount for the purpose, and the application asked the court to determine the maximum amount of the funds to be so expended and to direct the administrator to erect such monument at a cost not exceeding such amount and carry the same into his account to be filed with the court.</p> <p>After notice to the heir-at-law the matter was, on January 8, 1907, heard by the court on a demurrer of the heir-at-law to the application. The demurrer was overruled, and January 22, 1907, a hearing was had upon evidence. Upon consideration the court found the sum of three hundred dollars a reasonable amount to be expended and ordered that in case the widow and next of kin failed to erect a suitable monument by July 7, 1907, the administrator shall erect such monument at the grave of deceased, the cost not to exceed three hundred dollars and charge the expense so incurred to the estate.</p> <p>From this finding and order error was prosecuted by the heir-at-law to the court of common pleas, by which court the finding and judgment of the probate court was reversed. From this judgment of reversal the administrator prosecuted error to the circuit court which court affirmed the judgment of the common pleas. The administrator seeks in this court a reversal of the judgment of the circuit and common pleas and an affirmance of the judgment of the probate court.-</p>

<p>Bond issue by municipality — Section 2835, Revised Statutes — Bond issue for equipping buildings of fire department — For apparatus other than fire engines — Interpretation of Section 2835-27, Revised Statutes — Power of municipal corporation to appropriate money for specific purpose — Requirement of law that money be in treasury before appropriation — Section 1536-205, Revised Statutes — Does not apply to appropriation from sale of bonds, when.</p> <p>1. A municipal corporation may, under Section 2835, Revised Statutes, issue its bonds for the purpose of equipping buildings used by its fire department with apparatus other than, or in addition to fire engines. The special provisions of paragraph 27 do not govern the general provisions of paragraph 2 of that section.</p> <p>2. The council of a municipal corporation may, by ordinance, appropriate money and authorize the directors of public safety to enter into contracts for an authorized purpose, and in such case the particular contract made by the directors to effect that purpose, if within the appropriation and the authority, does not have to be approved by council.</p> <p>3. Section 1536-205, Revised Statutes, providing that no contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or other order for the expenditure of money, be passed by the council or by any board or officer of the municipal corporation, unless the auditor of the corporation shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose, does not apply to an ordinance appropriating the money obtained by council, from a sale of bonds made by it, to the purpose for which the bonds were sold.</p>

<p>Appointing power of governor — Act of April 2, 1906 (98 O. L., 342), creating railroad commission — Common law rule forbidding appointing officer — To forestall appointing rights of his successor — Stahites to be construed with reference to rules of common law, when.</p> <p>1. The well settled rule of the common law forbids that an officer clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term and power to appoint have expired.</p> <p>2. This established rule of the common law is neither abrogated nor modified by the provisions of Section 1 of the act of the General Assembly of the State of Ohio passed April 2, 1906 (98 O. L., 342), creating a railroad commission, and requiring the governor to appoint thereto “in January, 1909, and biennially thereafter, one commissioner for the term of six years from the first Monday in February of such year.”</p> <p>3. Statutes are to be read and construed in the light of and with reference to the rules and principles of the' common law in force at the time of their enactment, and in giving construction ' to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.</p>

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

<p>Error to the Circuit Court of Gallia county.</p> <p>The defendant in error, as prosecuting attorney of Gallia county, brought suit in the court of common pleas to enjoin the auditor from issuing, and the treasurer from paying, warrants in favor of the three commissioners of the county in payment of bills which they had allowed themselves for services as turnpike directors. The substantial allegations of the petition showed the election and qualification of the officers named to their several positions, the allowance by the commissioners of certain designated bills in their own favor for services as turnpike directors, and that, without warrant of law, such bills were about to be discharged by warrants drawn by the auditor and paid by the treasurer.</p> <p>To this petition the auditor and treasurer demurred, in the court of common pleas. Their demurrer was sustained and the plaintiff not desiring to plead further, the petition was dismissed.</p> <p>The prosecuting attorney prosecuted a petition in error to the circuit court where the judgment of the court of common pleas was reversed, and the defendants not desiring to plead further, and the circuit court proceeding to render the judgment which the court of common pleas should have rendered, the issuing and paying of' the warrants were perpetually enjoined.</p>

<p>Suit on promissory note — Defense of want of consideration — > Btirden of proof on plaintiff — Evidence.</p> <p>Where in a suit upon a promissory note the defense is that the note was given or obtained without a valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced on the trial. (Klunk v. The Hocking Valley Railway Co., 74 Ohio St., 125, approved and followed. Dalrymple, Admr., v. Wykcr, Admr., 60 Ohio St., 108, distinguished.)</p>

<p>Error to the Circuit Court of Darke county.</p> <p>At the January term, 1908, of the common pleas of Darke, an indictment was returned by the grand jury against the defendant in error, Oliver H. Toney, of which a copy follows:</p> <p>“The State of Ohio, Darke county, ss:</p> <p>“In the court of common pleas, of Darke county, Ohio, of the term of January in the year of our Lord one thousand nine hundred and eight.</p> <p>“The jurors of the grand jury of the county of Darke and State of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present: That O. H. Toney, late of said county, on or about the 22d day of November, in the year of our Lord one thousand nine hundred and six, at the county of Darke aforesaid, unlawfully did falsely pretend,, with intent to defraud, to one Emily J. Barcalow Henizer, that he, the said O. H. Toney, and William Smith were the owners of and had a right to convey free of all incumbrances, the following described real estate, to-wit: Being the east half of the northwest quarter of section seventeen (17), township twenty-five (25), range four (4) east, in Oscoda county, state of Michigan, containing eighty (80) acres of land, more or less; and that said real estate was free and unincumbered; and that a certain abstract of the title of said real estate purporting to have been made and certified to by one James A. Browning, abstracter and attorney of Oscoda county, Michigan, and purporting to show a clear title to the lands aforesaid in said William Smith was true and genuine, by which false pretenses the said O. H. Toney then and there unlawfully did procure from the said Emily J. Barcalow Henizer a deed of general warranty for the following described real estate, situate in the county of Darke, in the state of Ohio, and in the city of Greenville, and being lot No. 1165 in Anderson, Riffle & Hart’s Addition to said city of Greenville, Darke county, Ohio, and being of the value of one thousand dollars ($1,000) ; whereas in truth and in fact, the said Oliver PL Toney and William Smith were not the owners of and had not the right to convey free of all encumbrance the above described real estate; and whereas in truth and in fact the said real estate was not free and unincumbered; and whereas the abstract of title which was presented to the said Emily J. Barcalow Henizer purporting to show a clear title to the said lands aforesaid, was not true and genuine, but was false, forged and counterfeited; and the said O. H. Toney at the time he so falsely pretended as aforesaid, well knew the said false pretenses to be false.</p> <p>“Marion Murphy,</p> <p> “Foreman of Grand Jury.” </p> <p>To this indictment a demurrer was interposed by the defendant.' The same being overruled, a trial was had at the June term, 1908, which resulted in a verdict of guilty, the jury finding the value of the property obtained at the sum of seven hundred dollars. Motion for a new trial being overruled sentence was imposed of confinement in the penitentiary of eighteen months, and costs were adjudged against defendant. On error to the circuit court that judgment and sentence were reversed on the ground that the court of common pleas erred in overruling the demurrer, and defendant was ordered discharged. The state seeks a reversal of that judgment.</p>

<p>Chattel mortgage and salary loan brokers — May be licensed, when— Ordinance requires, detailed record of loans — Not violative of Section 14 of-Bill of Rights — Not unreasonable — Section 1536-100, Revised Statutes.</p> <p>1. The state may, in the exercise of the police power, license and regulate chattel mortgage and salary loan brokers; and it may-delegate authority to do so to municipal corporations.</p> <p>2. An ordinance under the power conferred by Section 1536-100, Revised Statutes, to regulate and license chattel mortgage and salary loan brokers, requiring every person engaged in such business to file with the auditor of the city, weekly, a detailed record of every loan made during the week preceding, to remain there as a permanent record open to the inspection of the • mayor and chief of police, is not violative of Section 14 of the Bill of Rights, which provides, “The right of the people to be secure in their persons, houses, papers, and possessions against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized,” and is not unreasonable.</p>

<p>Power of municipal corporations to license — Business of loaning on chattel mortgages — Section 1536-100, Revised Statutes, construed.</p> <p>Section 1536-100, Revised Statutes, authorizing municipal corporations to license and regulate chattel mortgage and salary loan brokers, does not authorize the exaction of a license from persons engaged, otherwise than as brokers, in the business of loaning money upon loans secured by mortgages on personal property.</p>

<p>Village school district — Vote of electors not necessary to create, when — Section 3888, Revised StaUites, amended — Act of April 2, 1906.</p> <p>By force of the provisions of Section 3888, Revised Statutes, as amended April 2, 1906, and in effect April 16, 1906 (98 O. L., 217), each incorporated village then existing — April 16, 1906— or since created, “together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars,” constitutes and is a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.</p>

<p>Error to the Circuit Court of Athens county.</p> <p>The plaintiff, Hibbard, as surveyor, brought suit against the defendants, Biddle, Wolf and Hill, as members of the board of commissioners of Athens county and as members of the board ' of turnpike directors of Athens county, and against Downey and Angel as partners, to enjoin the execution of a contract to be made by said commissioners and ‘ directors with said Downey and Angel for the improvement of a turnpike, and to enjoin the expenditure of money in pursuance of such contract. The substantial allegations of the petition were, that the plaintiff was the duly elected and qualified surveyor of Athens county; that the three first named defendants were its commissioners, and acting as the board of turnpike directors for the county, and that they had agreed with Downey and Angel for the repair of a road in said county by adding lime and sandstone to said road, and to drain the same in a workmanlike manner in consideration of prices agreed upon by them; that this was done without any plans, specifications, details, estimates of costs or form of contract, and that the said defendants had not requested the plaintiff to prepare such plans, specifications, details, etc., and that they had refused to allow or approve any claim which he might make for services if he should prepare such plans, specifications and estimates. The circuit court sustained a demurrer to this petition and dismissed the petition, adjudging the costs of the suit against the plaintiff.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>On or about the 8th day of November, 1888, John H. Doyle, an engineer in the employ of The Baltimore & Ohio Railroad Company, was' killed in a collision. His widow, Mary Doyle, was appointed administratrix of his estate and she brought suit against said company to recover damages for wrongfully causing the death, of Doyle. His sole heir was the widow, Mary Doyle, they having no children.</p> <p>The case was tried in the court of common pleas and the administratrix recovered. The railroad company prosecuted error to the circuit court, and that court reversed the judgment of the court of common pleas on the ground that the verdict was not sustained by, but was manifestly against the weight of the evidence; the court holding that the negligence which caused the death of Doyle was that of a telegraph operator who was a fellow-servant of Doyle.</p> <p>To this .judgment of reversal, the administratrix prosecuted error in this court, to obtain reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.</p> <p>The petition in error was filed in this court on the 6th day of April, 1896, and while the case was pending here, Mary Doyle, widow and admin7 istratrix, died, and on motion of counsel, this court entered an order of revivor of the action in favor of James M. Ottinger, as administrator de bonis non of John H. Doyle, deceased. This order of revivor seems to have been formally made, but without contest, on June 22, 1897.</p> <p>Thereafter the cause was heard in this court on the petition ,in error, and the judgment of the circuit court was affirmed, and the case was remanded to the court of common pleas for further proceedings according to law. After the case again reached the court of common pleas, the railroad company obtained leave to file a supplemental answer, which was done, and that answer is:</p> <p>“The defendant, The Baltimore & Ohio Railroad Company, by way of supplemental answer to the original answer filed herein, avers that since the reversal of the judgment in favor of the plaintiff herein, heretofore réndered by this court, and while there was no judgment in favor of the plaintiff herein, the said Mary Doyle, who was the widow and sole heir at law and sole next of kin of the said John H. Doyle, deceased, died, leaving no heirs or next of kin entitled to any benefits of this action, and that there is now no statutory beneficiary entitled to receive any of the proceeds of this action. Wherefore this defendant asks that this cause may be dismissed and that it may go hence without day and recover its costs herein.”</p> <p>To this supplemental answer the following reply was filed: “The plaintiff, for reply to the supplemental answer of.the defendant, admits that since the reversal of the judgment in favor of the plaintiff herein, and while there was no judgment in fkvor of the plaintiff, the said Mary Doyle, who was the widow of the said intestate, died, but the plaintiff denies all and singular the other allegations of said supplemental answer. The predicate of this denial is the fact, that there was left surviving said Mary Doyle, her mother, her sole heir and next of kin, who is still living, and several collateral heirs and next of kin of said John H. Doyle, who are still living. Wherefore plaintiff asks judgment as in the petition.”</p> <p>To this reply the railroad company demurred and the court of common pleas sustained the demurrer. The plaintiff below not desiring to further plead, final judgment was rendered in favor of the defendant. On error, this judgment was affirmed by the circuit court.</p> <p>Error is prosecuted in this court to reverse both judgments.</p>

<p>Error to the Circuit Court of Knox county.</p> <p>The record to be reviewed was made in the circuit court to which the cause had been appealed from the court of common pleas. Franklin Quick brought suit for. the partition of three tracts of land lying in Knox county, one of forty-one acres, one of twenty-five acres and one of fifteen acres. The parties were the five children and heirs at law of James and Lucina Quick, and the devisees of said Luc-ina. James had died intestate before the death of his wife, and at the time of his death he was seized in fee of the forty-one acre tract and the undivided one-half of the other tracts. Later Lucina had died testate and seized of the remaining half of the twenty-five acre tract and the fifteen acre tract. By her will she devised the twenty-five acre tract to her daughter Caroline Bebout "for life, with remainder in fee to the children of Caroline, and the terms of the devise embraced the undivided half of said tract which the testatrix did not, as well as that which she did, own. By the residuary clause she devised her half of the fifteen acre tract to -her four remaining children, not describing the tract, but devising it as “the rest of my real estate,” the devisees thereof being her children, Benjamin, James, Frank and Sarah. In the original petition it was claimed on behalf of the four children named in the residuary clause, that they were entitled each to one-fifth of the forty-one acre tract, and of the undivided half of the twenty-five acre tract which had descended to them on the death of their father, notwithstanding their mother’s attempt to devise it to Caroline, and also that they were each entitled to one-fourth' of their mother’s half of the fifteen acre tract which, by the residuary clause, she had devised to them excluding Caroline. Afterwards the four residuary devisees' in open court repudiated the will and disclaimed all interest in- the estate of Lucina as • legatees or devisees, but claimed that by that act of repudiation, their mother’s half of the fifteen acre tract became intestate property, and that they became entitled, under the laws of descent, each to one-fifth thereof as heirs at law of the testatrix; and, by leave of pourt, an amended petition was filed in accordance with that view. The plaintiff in error, Caroline, claimed an estate in fee in one-fifth of the forty-one acre tract and in one-tenth each of the twenty-five and fifteen acre tracts. She also claimed a life estate, under the will of her mother, in one-half of the twenty-five acre tract, and one-half of the fifteen acre tract. Upon this state of facts conclusively established by the record, the circuit court decreed to Caroline in fee one-fifth of the forty-one acre tract and one-fifth of the fifteen acre tract, and an estate for life, with the remainder in fee to her children, in one-half of the twenty-five acre tract. It also decreed to each of the residuary devisees in fee one-fifth of the forty-one acre tract, one-tenth of the twenty-five acre tract and one-fifth of the fifteen acre tract. The remaining one-tenth of the twenty-five acre tract does not seem to be included in the decree..</p>

<p>Error to the Circuit Court of Columbiana county.</p> <p>The defendant in error sued the plaintiff in error to recover damages for an alleged unlawful, wrongful and forcible expulsion from a street car belonging to and operated by the plaintiff in error. The plaintiff in error in its answer denied all the allegations contained in the petition, except that it was a corporation and engaged as a common carrier of passengers, and that the plaintiff was ejected from a car belonging to said company; and it alleged as follows: “The defendant says that the plaintiff was so ejected from said car for being disorderly and for using profane language in said car; that plaintiff was requested and warned by the employes of defendant in charge of said car, to desist from said disorderly conduct and to refrain from using said profane language; but plaintiff refused' and failed "so to desist and refrain, and the defendant's employes were thereupon obliged to and did eject the plaintiff from said car, but without violence and not in the manner set forth in the petition.” In reply the plaintiff below denied these allegations contained in the answer. On the trial of the issues, the plaintiff gave evidence tending to sustain the claims made in his petition and the defendant gave evidence tending "to support the foregoing allegations contained in its answer. The testimony tended to show that the plaintiff and his two companions were noisy and hilarious, perhaps to the extent of using coarse, profane and indecent language, to the annoyance of some of thy other passengers; and that the conductor' had at least once admonished them; that there were several white women and three colored women in the car, the 'latter sitting just in front of the plaintiff and his companions ; that something occurred between the colored women and the plaintiff and his company, which was not understood by the other passengers; that the colored women got up and went to the rear exit of the car and in doing so passed the plaintiff and his companions, and some words passed between them, which were not understood by the witnesses,, owing to the noise; and that as the women came out and got off the car, they said to the conductor in the hearing of witnesses, but not in the hearing of the plaintiff and his companions, “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” “If we can’t ride without being insulted we will get off,” which they did do; that thereafter the conductor went to the men and said, “I have told you twice now. You will have to cut it out or get off,” to which one of them replied, “God damn you, get back in the back end where you belong and tend to your own business;” and that thereupon the conductor stopped the car, tendered the men their fare, which they refused, arid with the assistance of the motorman ejected the men with no more force than was necessary; and that in .the case of the plaintiff no force was used except to take him by the arm and lead him out.</p> <p>The court charged the jury, in part, as follows: “The court admitted in evidence the statement of a witness as to what was said by some colored women in leaving the car. At that time the court said in your presence that that' evidence would not be proper or competent for your consideration unless it was said in the presence and hearing of the plaintiff. The plaintiff and- one or two other witnesses deny that they heard any such statement as was made by these colored women. The court instructs you that before you should consider what witnesses say they may have said in leaving the car you should determine whether or not it was said by them loud enough to be heard by the plaintiff in this case, for if it was not said in his hearing, then that evidence would be entirely incompetent in this case; and if you should find from all the evidence that the plaintiff did not, or could not have heard this language or this statement by these colored women who left the car, then I instruct you to entirely disregard such testimony. If, however, you should find that it was spoken in a way that the plaintiff could have heard it, or did hear it, then the court instructs you that you would have a right to consider it along with the other evidence in the case in determining the issue which has been submitted to you. * * * You should also, if you should determine that this ejectment was not justified, and should further determine that the employes who ejected him acted with actual malice and ill-will, and with a deliberate intention of insulting the passenger in ejecting him, I say, if you should so find, then you would be entitled, not only to allow him compensatory damages, but should also allow him an additional amount by way of punitive damages. That is, as a punishment for this defendant for having in its service employes who would thus disregard the rights of others. This is a matter, however, which you are not called upon to determine unless you should, as I say, find that this ejectment was done not only without justification, but in a malicious and insulting manner. Otherwise you should only allow such an amount as would fairly compensate him in the respects to which I have called your attention. And as a matter of compensation you would have a right to allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company.”</p> <p>There was a verdict and judgment in favor of the plaintiff in the court of common pleas, and this judgment was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>The relator in the court below is The Cleveland Trinidad Paving- Company. The defendant is the Board of Public Service of the City of Columbus, Ohio. The relator’s action was in mandamus to compel the execution by defendant of a paving contract with relator. In both courts below the case was determined upon a demurrer to the petition, which being sustained and relator not desiring to further plead, judgment was entered for defendant.</p> <p>In substance the averments of the petition are: On August 31, 1906, the council of the city of Columbus adopted a resolution declaring the necessity of improving Third avenue from High street to Dennison avenue, and on October 2, 1906, said council passed an ordinance determining to proceed with the improvement and directing the Board of Public Service to advertise for bids and enter into a contract for the grading and paving of Third avenue with the lowest and best bidder therefor according to law. The Board duly advertised for bids. The advertisement recited, among other things, that each bid should contain the full name of every person interested in the same, and should be accompanied by a certified bank check for five hundred dollars, or a bond for like amount conditioned that if the bid should be accepted the contract should be entered into within five days after notification of acceptance from the board. On January 29, 1907, relator duly complied with all the requirements of the advertisement. Relator was the lowest and best bidder for the improvement, and said Board, on February 16, 1907, upon canvassing the bids, by resolution duly adopted, found and decided that the bid of relator was the lowest and best bid, and ordered that a contract he entered into with relator for the improvement on relator giving a satisfactory bond in an amount required within five days from that date, and the clerk was ordered to transmit a copy of the resolution to relator, but defendant did not cause said clerk to transmit a copy of the resolution to relator and did not give to relator any notice, that relator’s bid was accepted, and, on April 10, 1907, defendant, by resolution then adopted, wrongfully and unlawfully set aside said award of said contract with relator, and ordered that the work be again advertised for bids. Defendant did not at any time notify relator that relator’s bid had been accepted and that relator had been awarded the contract, and relator had no information that said contract had been awarded' to it until shortly prior to said date; whereupon relator demanded that defendant execute a contract with relator, offering to give a proper bond to the satisfaction of defendant, and to enter into such contract. But defendant refused and still refuses to perform its part of said contract, and to perform its duty in the premises according to law, and will not permit relator to make said improvement, although relator has been at all times and now is, ready, willing and able to perform its part of said contract, and herewith' tenders its bond in the proper sum therefor.</p> <p>The prayer is that a writ of mandamus issue commanding defendant to enter into a contract with relator for the improvement, and to permit relator to enter. upon the performance of said contract.</p>

<p>Order of descent of ancestral real estate — Section 4158, Revised Statutes — Rights of brothers and sisters of half blood of ancestor — Interpretation of statutes.</p> <p>The half-brothers and haif-sisters of the ancestor are included in the words, “brothers and sisters of such ancestors,” in the fifth subdivision of Section 4158, Revised Statutes, prescribing the order of descent of ancestral real estate. (Cliver v. Sanders, 8 Ohio St., 501, approved and followed.)</p>

<p>Motion for leave to file petition in error to the Circuit Court of Hocking county.</p> <p>At the October term, 1908, of the court of common pleas of Hocking county, Francis Boyd was indicted, under favor of the provisions of Section 6816, Revised Statutes, for the crime of rape, alleged to have been committed by him upon the person of one P. S. with her consent, on the 10th day of August, 1908, she the said P. S. then and there being a female under the age of sixteen years, to-wit: of the age of thirteen years. Thereafter, and at the same term of said court of common pleas, said Francis Boyd .was tried and convicted of the offense charged against him in and by said indictment. This judgment of conviction was affirmed by the circuit court and said Francis Boyd now asks that leave be granted him to file a petition in error in this court to reverse the judgment of said circuit court.</p>

<p>Error to the Circuit Court of Trumbull county.</p> <p>The plaintiff in error was plaintiff in the court of common pleas, where she brought her action to recover of the city of Niles the sum of $651.71, and interest thereon, for publication of certain ordinances, resolutions, notices, etc.</p> <p>In her last amended petition she avers that the city of Niles is a municipal corporation in.Ohio and that “she, the plaintiff, is the publisher of The Independent, a newspaper of general circulation, published in the city of Niles, Ohio, and distributed to its subscribers and patrons once each week; that it is a publication Democratic in politics, and is the onlv newspaper Democratic in politics published in said city. That on or about the 8th day of September, A. D. 1904, at the request of said city, by its auditor and clerk of council, and approved by its city solicitor, this plaintiff began the publication in said newspaper for and on behalf of said city certain ordinances, resolutions and legal notices furnished to her by and on behalf of said city, and ¿s were required by law to be published in two newspapers of opposite politics within said city; that during all the time since said date, she has continued to publish all such ordinances, resolutions and legal notices duly authorized by said city and so furnished her by said defendant city, in The Independent, up to and including February 16, 1906. An itemized statement of-her said account is hereto attached marked ‘A’ and is made a part of her said petition, showing the date of publication, times published, and whether the publication was an ordinance, resolution or legal notice, the number of squares in each publication and the price charged for each publication.” She avers there is due her from the city $651.71, which it refuses to pav although requested to do so, and for that sum with interest she prays judgment.</p> <p>The city answered, and admits its corporate capacity and that plaintiff is the publisher of The Independent, and that she has attached an exhibit to her petition marked “Exhibit A,” and that payment of her account has been refused, and denies each and every other allegation in the amended petition.</p> <p>The case was tried to a jury on the issues thus made up, and at the close of all the evidence introduced, the court directed the jury to return a verdict for the city, which was done. The plaintiff excepted. A bill of exceptions was prepared, containing the evidence introduced, including ordinances, resolutions and legal notices, alleged to have been published. This bill was allowed and signed, and with a petition in error, was filed in the circuit court where the judgment of the court of common pleas was affirmed. Error is prosecuted here to reverse both judgments.</p>

<p>Default judgment in favor of plaintiff — Before justice of peace— Action appealed to common pleas court — Cannot be appealed to circuit court, when — Section 5226, Revised Statutes — Rule of appeals — Jurisdiction of common pleas court.</p> <p>A judgment having been rendered by -default in favor of the plaintiff in an action before a justice of the peace to recover on account of the breach of written contract, and the action having been appealed to the court of common pleas and there determined, the cause cannot be appealed to the circuit court .for a trial de novo- under Section 5226, Revised Statutes, which authorizes such appeal only in an action within the original jurisdiction of the court of common pleas, although the only defense made in the court of common pleas was that of a mutual mistake in the instrument upon which the plaintiff counted.</p>

<p>Error to the Circuit Court of Tuscarawas county.</p> <p>.The defendant in error, Martha A. Gilbow, instituted this action against Charles E. Holden and the plaintiff in error, The Incorporated Village of Mineral City, to recover damages alleged to have accrued to her by reason of negligence by the defendants in permitting a pit, alleged to be six or seven feet in depth, along the sidewalk on High street in said village, to go without barriers, lights or warnings, whereby the plaintiff, on a dark evening, when an arc light maintained by the village was not lighted, fell into the pit and was permanently injured. The village demurred to the amended petition on the ground of misjoinder of parties defendant; and both defendants demurred on the ground that the facts stated did not constitute a cause of action against the defendant demurring. The court of common pleas overruled the demurrers; and the defendants filed separate answers and made separate defenses on the trial. There was a verdict and judgment against the defendants jointly. In the circuit court the judgment was reversed as to Holden bn the ground that the same was “contrary to law” and “contrary to all the evidence” as to him; likewise on the ground of error in refusing to charge as requested, by Holden and of error in the charge as given, to the prejudice of Holden; but the circuit court finding that the amount of the verdict and judgment was excessive, required a remittitur of part thereof, and thereupon with consent of the plaintiff affirmed the judgment for the balance as against the village. In this pro■ceeding the village seeks to reverse the judgment against it, and, if that cannot be done, to reverse the judgment of reversal as to Holden. • The plaintiff below, defendant in error here, files a cross-petition asking for a reversal of the judgment by the circuit court in favor of Holden.</p>

<p>Levy upon order of attachment on real property — Duty of levying officer under Section 5537, Revised Statutes — Description of property reqtiircd by Section 5528, Revised Statutes.</p> <p>1. Section 5537, Revised Statutes, which provides that “The officer shall return upon every order of attachment what he has done under it, and the return must show the property attached,” makes it necessary that the return shall show all the essential things the officer has done in the execution of the writ, and shall so describe the property as to identify it.</p> <p>2. The provisions of Section 5528, Revised Statutes, which make it the duty of the officer who undertakes to levy the order of attachment on real property to leave with the occupant thereof, or if there is no occupant in a conspicuous place thereon, a copy of the order, are mandatory requirements, and a return which fails to show compliance with these requirements, and fails to so describe the property as to identify it, is insufficient to give to the court out of which the writ issued dominion over the property.</p> <p>3. A statement intended as a description which merely describes the property as “Building and land $800.00, lot about 25 ft. by 75 ft.,” does not show compliance with the requirement of statute that “the return must show the property attached.”</p>

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

<p>Error to the Circuit Court of Hocking county.</p> <p>On June 5, 1893, Robert Masters duly executed his last will and testament of which the following is a copy:</p> <p>“In the name of the Benevolent Father of all, I, Robert Masters of Murray City, Hocking county, Ohio, do make and publish this my last will and testament.</p> <p>“Item 1st: — I give and devise to my beloved wife, Mary Masters, in lieu of her dower the following real estate, to-wit: Being inlots number one, two, three, four, five and twelve in Murray City, Hocking county, Ohio, with all appurtenances thereto, also a lot recently purchased from James Watkins, being and lying on the west end of Lot No. 13, now owned by Dr. J. Trimmer and joining my Lot No. 1 on the north side, during life, and all the stock, moneys, household goods, furniture, provisions, and other goods, and chattels which may be thereon at the time of my decease, during her natural life as aforesaid; she however selling so much thereof as may be sufficient to pay my just debts; at the death of my said wife the real estate aforesaid, I give and devise to my children and their heirs; I give and devise to Lucy Babbs or Lucy Masters, the child I am raising and apprenticed to me by its mother, Margaret Babbs, the organ I now own, also five hundred dollars ($500.00) in money, the same to be paid her out of the lands and chattels aforesaid.</p> <p>“Item 2d: — I do hereby nominate and appoint, without bond, my beloved wife, guardian of the above named Lucy Babbs and known as Lucy Masters, until the said Lucy Babbs or Lucy Masters arrives at the age of eighteen years or intermarries.</p> <p>“Item 3d: — I do hereby nominate and appoint my wife executrix without bond of this my last will and testament hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper the debts and claims due me; I do also authorize and empower her, if it shall become necessary in order to pay my debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as she may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge and déliver in fee simple. I desire that no appraisement and no sale of my personal property be made, and that the court of probate direct the omission of the same in pursuance of statute.</p> <p>“In testimony hereof, I have hereunto set my hand and seal, this 5th day of June, A. D. 1893.</p> <p>“Robert Masters. [Seal.]</p> <p>“Signed and acknowledged by said Robert Masters, as his last will and testament in our presence and signed by us in his presence.</p> <p>“A. M. Shrader,</p> <p>“Eloid Si-irader,</p> <p>“A. J. Shrader."</p> <p>The testator, Robert Masters, died July 13, 1902, leaving surviving him Mary Masters his widow, and Daniel Masters, Frances Spencer and Anna B. Thomas, his next of kin and only heirs at law. On July 30, 1902, the will of said Robert Masters was duly admitted tc probate by the probate court of Hocking county and Mary Masters, his widow, was appointed executrix thereof. Prior to his death, but after the making and execution of his will, Robert Masters sold and conve3^ed lot number twelve, which hy item first of said will he had devised to ’his wife, Mary Masters, for and during her natural life. Thereafter the testator Robert Masters acquired by purchase, and at the time of his death owned and was seized of, the following described parcels of real estate: Being ten feet off of the north side of lot number fifteen of Watkins’ addition to the village of Murray City, Hocking county, Ohio. Also that strip of land lying between the west boundary of said ten feet off of said lot number fifteen and the stream known as Snowforlc, and extending from said west boundary of said ten feet to the stream, said strip being in Flocking county, Ohio. Also twenty feet off of the south side of lot number sixteen of Watkins’ addition to the village of Murray City, Flocking county, Ohio. Also that strip of land lying between the west boundary of. said twenty feet off of the south side of said lot number sixteen and the stream known as Snowfork and extending from said west boundary of said twenty feet to the said stream, said strip being in Hocking county, Ohio. Mary Masters having formally elected to take under the will of her deceased husband, claimed, as devisee, a life estate in the premises last above described, and in her lifetime collected and appropriated to her own use rents and profits arising therefrom to the amount of $651.00. Mary Masters died February 7, 1905, and subsequently plaintiff in error; O. W. FI. Wright, was duly appointed administrator of her estate. On July 14, 1906, the defendants in error herein brought suit in the court of common pleas of Flocking county against said O. W. H. Wright as administrator of said Mary Masters,. to recover said sum of six hundred and fifty-one dollars so received and collected. by her as rental from said after-acquired property. In said action Frances Spencer refusing to join as plaintiff was made a defendant. By way of answer to the petition of plaintiffs in said action the administrator pleaded three several defenses: First, that Robert Masters did not die intestate as to the property described in plaintiffs’ petition, but that under and by the provisions of his will said property passed to, and became the property of, Mary Masters for and during her natural life. The second defense was. a plea of estoppel. The third defense went out on demurrer and is not here involved. Plaintiffs replying to the second defense denied specifically the several matters relied upon as creating an estoppel so far as the same were pertinent and well pleaded. The trial in the court of common pleas resulted in a verdict and judgment in favor of the defendant O. W. IT. Wright, administrator. This judgment was reversed by the circuit court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Williams county.</p> <p>The defendant in error, by petition in the court of common pleas, complained of the proceedings of the plaintiffs in error, because they were about to construct a certain township ditch partly located in the village of Pioneer, in Williams county, and were about to assess part of the cost and expense of construction on his several lots in said village of which village he is a resident and taxpayer. In his petition for an injunction against said trustees, the lot-owner copies the petition for the ditch and the names of the several petitioners, eight in number,. in which is a full description of the termini and route, and it is then alleged that Charles G. Palmer, one of the petitioners, is the owner of the land on which the ditch commences, being the east half of the northwest quarter of section 20; that on this land is a low tract of about ten acres, and a small portion of the north end of the east half of the east half of the southwest quarter of said section owned by L. A. Beard, consisting of about five acres, which could be benefited by the proposed ditch, and that there are no other lands to be reclaimed for agricultural purposes, or that in any wise need surface drainage, and that plaintiff’s property already has adequate and sufficient drainage.</p> <p>The plaintiff further states, that .substantially along the line of the proposed ditch is township ditch No. 12, which extends across the low part of the lands of the plaintiff, following a natural watercourse, and from thence across the lands of J. D. Weigle and into the lands of said Palmer, the same being a tile ditch, adequate in capacity to properly drain lands of the plaintiff, and other lands affected thereby; and that this old ditch is ample to drain the lands of Palmer, Beard and Weigle.</p> <p>The further allegation is made by the plaintiff below, that while old ditch No. 12 is adequate to drain lots and land affected thereby, the trustees are attempting to entertain jurisdiction over the proposed improvement, in causing the construction of a tiled ditch of much greater depth and capacity, not for the purpose of reclaiming lands and providing for surface drainage, but to provide cellar drainage for lots and lands in said village, and that it departs from the natural watercourse at Mill street and runs along a public alley through high grounds, where there is no natural watercourse, to center of Lynn street, many rods from the natural watercourse and on high grounds where the ditch will be a great depth, for purposes of cellar drainage, et cetera.</p> <p>It is also alleged that the trustees, under pre•tense of a township ditch, have invaded the village and threatened to assess the lot-owners abutting on the ditch for the purpose of providing a sewer for said village, greatly enhancing the cost for the improvement, so that said lots will be assessed $133.50 for the construction and $14.05 costs of location, et cetera, which assessment will be oppressive and far in excess of benefits; and that the trustees are without jurisdiction in the premises, and other allegations are made in reference to the intentions of the trustees of an illeg'al character, which will inflict injury upon the said lot-owners, and an injunction is prayed for, restraining the trustees from further proceedings with said ditch and from making the proposed assessments. The foregoing is the substance of the '¡Detition.</p> <p>The trustees filed the following answer:</p> <p>“The defendants admit that they are the trustees of Madison township, that plaintiff is the owner of the lands, and that the village of Pioneer is a municipal corporation, as averred in the petition.</p> <p>•“They admit that a petition was filed with them as the board of trustees of said township, as in said petition averred, and that thereafter such proceedings were had upon said petition, and relating thereto, that said board heard and determined said petition and found that the ditch therein prayed for was necessary, and that the same will be conducive to the public health, convenience, and general welfare, and did proceed to locate and establish the same in substantial conformity with the route described in the said petition.</p> <p>“And that said trustees took to their assistance an engineer to locate, level and measure the course, of said ditch and for such other assistance as they might need according to law.</p> <p>“The defendants aver that the lands mentioned in the petition, both within and without said village, are in need of drainage, that said ditch is necessary and that its construction will be conducive to the public health, convenience and general welfare, and that it is necessary, in order that said lands lying outside of said village may be drained, that a ditch must pass substantially as located in said proceeding through and across said village to-reach a sufficient outlet.</p> <p>“The defendants admit that said proposed ditch follows the line of township ditch No. 12, .in part, and aver that the remainder thereof is located as near thereto as in the opinion of the said trustees would best answer the purposes of said ditch.</p> <p>“The defendants further aver that prior to the granting of said petition, the owners of lands within the municipal corporation of Pioneer, which are affected by this ditch, applied to the council of said village and requested of said council that it provide for the construction of necessary drainage within said corporation for said lands, and that said council refused so to do and said council requested said defendant trustees to assume jurisdiction over the matter of said drainage, and requested said trustees to locate and establish, and cause to be constructed, the said ditch in said petition described, and these defendants aver that said council by resolution duly passed and recorded on 'its journal, granted to said defendant trustees, prior to the location of said ditch, the right to use all of the streets and alleys within said village through which said ditch was thereafter located.</p> <p>“Said defendants aver that prior to the action of said board of trustees complained of in said petition, the board of commissioners of Williams county, Ohio, in a proceeding had in reference to the location and construction of a ditch, whereby it was proposed to drain said lands with said village, refused to grant a petition therefor.</p> <p>“That at the hearing of said petition 'certain persons owning lands through which said ditch will pass, made requests in writing to the said trustees for a tile ditch through their lands and the said trustees did deem the same practicable, and equally beneficial, and did grant their request and. did order that all of said ditch be tiled, and did specify the size of the tile to be used, and the depth that they shall be placed under the ground according to law, and did apportion all expenses incurred according to benefits derived as provided by the laws of Ohio in that behalf.</p> <p>“The defendant board denies all of the averments of the petition not herein specifically admitted to be true.</p> <p>“Wherefore this defendant board prays that the petition of the plaintiff may be dismissed, that it go hence without day and recover costs herein expended.”</p> <p>The plaintiff demurred to the answer on the ground “that the facts stated and averments contained in the said answer do not constitute a defense to the said petition of the plaintiff, and that said answer does not show that the said defendants have jurisdiction in law as a board of township trustees to construct a ditch as set forth in the pleadings.”</p> <p>The circuit court, on appeal, sustained the demurrer, and found for the plaintiff as prayed for in his petition and decreed accordingly.</p> <p>Error is prosecuted in this court to reverse the judgment of the circuit court.</p>

Mrs. Stoecklein brought suit in the court of common pleas against the village of Oakwood alleging that she is the owner of a lot located at the southwest corner of South avenue and Oakwood avenue in said village, its dimensions being 66.36 feet on South avenue and 133.20 feet on Oakwood avenue; that on July 20, 1908, the council of said village passed a resolution declaring it necessary to improve Oakwood avenue by paving with bricks along the lot of the plaintiff, the…

<p>Resident of "dry” territory — May go into "ivet" county and purchase intoxicating liquors — And bring same into resident territory — Or may make purchase by another — Interpretation of Act of March 5, 1908 (99 O. L., 35).</p> <p>It is not a violation of the act entitled, “A11 act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties” (99 O. L., 35), for one who lives in a county in which the traffic in intoxicating liquors is prohibited under the provisions of the said act, to go into a county where such traffic is not prohibited and purchase intoxicating liquor in any quantity for his own use, and bring the same into the county where he lives to be used therein by him as a beverage; and such a person may, under said statute, not only himself purchase intoxicating liquor as, and for the specific purpose, aforesaid, but he may also do so by another, whom he has constituted his agent for that purpose.</p>

<p>Workhouse imprisonment — Bill of exceptions presents notice given to opposite counsel, when — Objection to jurisdiction — Not entertained, when — Construction of act regulating traffic in intoxicants — pp Ohio Laws, 35.</p> <p>1. The ruling in Lemmon v. State, 77 Ohio St., 427, does not apply to counties which do not contain a workhouse.</p> <p>2. A bill of exceptions certified to contain all of the evidence which was offered and given on the trial, and found to be true and allowed and signed as a part of the record, by the trial judge, is in the record. The presumption is that notice was given to opposite counsel, and that all preliminary steps were complied with, although the record is silent as to those matters.</p> <p>3. Objections which do not affect jurisdiction of the subject-matter, and which were not made in the intermediate court of appellate jurisdiction, will not be entertained in this court.</p> <p>4. The construction of the act entitled “An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local ojption in counties” (99 O. L., 35), which was adopted in State v. Lynch, ante, 336, is followed in this case.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>At the April term, 1907, of the court of common pleas of Franklin, a judgment was entered as by confession, upon a cognovit note on the face of which appeared the names of The Ohio Dredging Company, a corporation, and others with the plaintiff in error, C. E. Richards, against said parties and in favor of the The Market Exchange Bank Company, defendant in error here, for $5,017, and costs. Later in the term Richards, here plaintiff in error, made application to the court to suspend the judgment and for leave to file answer. The answer tendered set up as de-. fense that he, the defendant, was surety only on the note, The Ohio Dredging Company being the principal, all of which was known to plaintiff, and that the plaintiff had, without the knowledge or consent of answering defendant, for a valuable consideration, extended the time of payment of the note. But the court, on consideration, refused to suspend the judgment and refused to allow defendant to file said proposed answer upon the ground and for the reason only that it did not and does not state a defense. A motion for new trial was then interposed which was also overruled. On error to the circuit court the judgment was affirmed. Richards seeks a reversal of both judgments.</p>

On October 27, 1906, Etta Kline commenced an action in the court of common pleas of Pickaway county against the plaintiff in error, Harriet Dungan and others, asking for the partition of certain real estate in her petition described. Thereafter, to-wit: on November 22, 1906, Adolph G. Wilson also brought suit in said court of common pleas against said Plarriet Dungan and others, asking partition of the same lands. On motion these cases were consolidated and tried as one case.

<p>Suits before justice against railroad company — Section 6478, Revised •Statutes — Does not apply to attachment proceedings, when— Justice has jurisdiction in levy, when — Section 64^6, Revised Statutes — Publication of notice.</p> <p>Section 6478, Revised Statutes, does not apply to proceedings in attachment before a justice of the peace, and a justice of the peace may acquire jurisdiction in attachment against a foreign railroad corporation by levy, and publication of notice as provided ,in Section- 6496, Revised Statutes.</p>

Exceptions to the decision of the Court of Common Pleas of Allen county.

<p>Transcript of private interview with one — Later a witness in indictment proceedings — Transcript delivered to prosecuting attorney for his use in trial — Error for court to order prosectitor — To deliver transcript to defendant or his counsel — One charged with crime — Not entitled to minutes of evidence before grand jury.</p> <p>1. Where a person conducts a private interview with one who after-wards is called and examined as a witness before the grand jury, which found an indictment against the defendant concerning some matters disclosed in said interview, which interview was stenographically taken, written out -and subsequently delivered to the prosecuting attorney for his use, and on the trial the person interviewed is called, and testified for the state in support of the indictment, it is error for the court, on request of defendant, to order the prosecuting attorney to deliver the transcript of said interview to defendant or his counsel, or to order the prosecuting attorney to allow either of them an inspection of the same.</p> <p>2. A person charged with crime is not entitled, ,before, or at the time of trial, to the minutes of the evidence taken before the grand jury, on which the indictment was found against him, nor to an inspection of a transcript of such evidence, and it is error for the court to order the prosecuting attorney to deliver said minutes, or a transcript of said evidence so taken, to the defendant or his counsel, or to order the prosecuting attorney to permit either of them to make an inspection thereof.</p>

Montgomery brought suit in the court of common pleas against The Maumee Valley Railways & Light Company and The Toledo Urban & Interurban Railway Company to recover on account of personal injuries sustained by him while a passenger on a car owned by The Maumee Valley Company, the injury being occasioned by a collision between two electric cars, one owned and operated by each of the companies, upon a track owned by The Maumee Company and used by both companies in the…

The plaintiff in error in his petition, as amended in the court of common .pleas, averred that on or about the 28th day of September, 1899, one Charles D. Cavanaugh had a life estate under the will of his father Charles Cavanaugh in certain real estate situated in Cuyahoga county and described in the petition; that on or about the said date Charles D. Cavanaugh employed the defendant to prepare and deliver to him an abstract of the title to said real estate and of the…

Court of. Guernsey county. The action below originated in the presentation of a claim by the plaintiff in error, T. M. Thurlow, .as sheriff of Noble county, to the defendants in error as County Commissioners of Guernsey county. The claim was rejected and an appeal taken by the sheriff to the common pleas, where, upon trial, a judgment was rendered in favor of the plaintiff. Upon error to the circuit court that judgment was reversed.

Suit was brought by defendant in error George Phillips, before a justice of the peace of Montgomery township, Wood county, Ohio, against The Flocking Valley Railway Company and The Toledo, Fostoria & Findlay Railway Company as defendants, to recover the value of a steer which was killed by the latter company on its private right of way.

The defendant in error, Ella J. Mason, sued the plaintiff in error to recover damages for personal injuries sustained by her in alighting from a street car, operated by plaintiff in error, on which she was a passenger. She avers that she was seriously and permanently injured and prays for ten thousand dollars as damages. The defendant admits that she was a passenger, and that she was, to some extent, injured.

The parties are corporations and rivals in the conduct of department stores in the city of Cleveland. The Bailey Company brought suit in the court of common pleas to enjoin The May Company from further proceeding in a course of unlawful competition by interfering with its contractual rights and property in trading stamps, and unlawfully and fraudulently diverting business.

<p>Tax on liquor business — Section 4364-9, Revised Statutes — Applies to malt liquors non-intoxicating.</p> <p>Section 4364-9, Revised Statutes, (98 O. L., 100), in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or non-intoxicating.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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