Volume 84 — Ohio State Reports, New Series

This action was brought in the court. of common pleas by the persons now plaintiffs in error, against the Equitable Life Insurance Company of Iowa, Emma C. Baldinger and Frederick D. Bal* dinger, a minor.

The action in the court below was founded on two supersedeas bonds, given by the plaintiffs in error, in a suit between the same parties and others. One when the cause was taken on error from the superior court of Cincinnati at special term to the general term of that court and the other when the cause was taken on error to this court.

The parties to this case are corporations doing business in the village of Barberton, Summit county, Ohio, the plaintiff in error being engaged in mercantile business, and the defendant in error engaged in a general banking business.

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

Raymond,deceased, of a certain described tract of land, one hundred and thirty-eight acres, and also of a certain described' tract of land, thirty-three acres; and alleging that the defendant, Charles Butts, claims to be the owner in fee simple of the one undivided half of said lands; and praying that she may be adjudged to be the owner in fee simple of said lands freed ■ from all claims of an estate or interest therein of the defendant, and for all proper relief.

At the April term, 1910, of the court of common pleas of Cuyahoga, the defendant in error, Grasuldo Sappienza, with four others, was indicted for the crime of robbery. A plea of not guilty having been entered by the defendant he was put upon trial June 27, 1910, and convicted of robbery as charged in the indictment. Motion for new trial having been overruled, the defendant was sentenced to the penitentiary for fifteen years, and ordered to pay the costs.

On the first day of July, 1905, the defendant in error filed her petition in the common pleas court of Mahoning county, seeking to recover a judgment for damages against the plaintiff in error, The Youngstown Park & Falls Street Railway Company, to which petition this plaintiff in error filed a demurrer, which demurrer was sustained.

The Mills-Carleton Company brought suit in the common pleas court of Cuyahoga county against George Huberty on an account for lumber and building material which it claimed to have sold and delivered to Huberty. A second cause of action is contained in the petition, in which plaintiff sets up a mechanic’s lien on certain real estate belonging to Huberty to secure the account referred to.

On the 29th day of March, 1910, the plaintiff in error filed in the circuit court of Jackson county the following petition in quo warranto against defendant in error.- “For cause of action plaintiff says: That at all the times hereinafter mentioned he was and is a resident of, citizen of, and qualified voter in Coal township, Jackson county, Ohio, and was at all times duly qualified to be voted for for any of the various township offices and was and is duly qualified to hold…

Érror to the Circuit Court of Cuyahoga county. On June 16, 1906, the Wallace / Company brought suit in the court of common pleas against the plaintiffs in error for the specific performance of a contract whereby it was alleged that J. Harris had on June 1, 1901, agreed — imputing for brevity of statement to both parties the consequences of the acts and omissions of their respective predecessors in right and title — to transfer and assign to it all the improvements in gas…

The plaintiff commenced her action against the defendant in the court of common pleas, and subsequently filed an amended petition of which the material averments are as follows: “That. at the time of the commission of the grievances hereinafter mentioned, she the said Nora Oberlin was and now is an unmarried female. ■ “She further says that along about the spring of 1905, as nearly as she. can remember the last of April or the first of May, of the said year, that the said…

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The action below was by the defendant in error, Olga Nethersole, against the plaintiff in error, The Cleveland Leader Printing Company,.in libel, commenced and tried in the court of common pleas of Cuyahoga. The plaintiff below is an actress and a producer of plays upon the stage; the defendant below is the publisher of a daily newspaper called “The Cleveland Leader,” published in the city of Cleveland and of extensive circulation in that city and throughout surrounding territory. The alleged libel was published in the Sunday edition of the paper of date March 25, 1906. During the preceding week Miss Nethersole had produced in the opera house in Cleveland four plays known respectively as “Camille,” “Carmen,” “The Labyrinth,” and “Sappho,” appearing herself in one of the leading parts in each. The publication embraced certain criticisms of the theater generally, and of the above named plays in particular. The whole article here follows:</p> <p>“The regulation clerical Boanerges who thunders against the stage has no personal knowledge of the truth of his charges. He frankly admits that he has never stepped foot within a theater;. He speciously claims that his ignorance is inspired; that he can sniff the carrion odor from afar.</p> <p>“It has always seemed to me that such a fellow purposely kept his eyes shut tight that he might open his mouth the wider. With no bars up, he could range the whole universe of misrepresentations and invective. When such a one does strike a truth or half-truth, the bias, the illogic of the rest blunts his effects. He cries ‘Wolf!’ too often and too stentoriously.</p> <p>■ “There are clergymen, however, who look at the question honestly. They examine and analyze. They see before they shout. One can respect their sincerity if he cannot approve all their findings. And it often happens that they say things that are true and needed.</p> <p>“Of this class is the Rev. Dr. Reuben A. Torrey, the evangelist, who set all England aflame a few months ago and is now stirring up Philadelphia. That town is ripe for a revival. The quickening of the public conscience in regard to political iniquity has attuned it to individual awakening on its religious and moral side.</p> <p>“In his daily addresses, Dr. Torrey has not let the theater pass unscathed, but his terms have been so moderate, so free from sensationalism, so devoid of the rant and bluster and bombast of the evangelist of the familiar type, that they inspired the dramatic critic of the Philadelphia Evening Telegram to seek Dr. Torrey out and have a heart-to-heart talk with him.</p> <p>“In his talk Dr. Torrey was perfectly uncompromising upon the question of the theater, and equally temperate. He condemned, but did it moderately.</p> <p>“He gave his views as follows: 'My position is that the theater is a safe place for the Christian to stay away from. I do not speak from, hearsay or from theory, but from knowledge, d formerly attended the theater, and know it.</p> <p>. “ T want to be understood as not for a moment declaring that all actors are impure and immoral, and I think that Clement Scott went too far. But take the life of most of them. They seem to think ■that they are exempt from all the canons’ of.morality, and put their belief' into practice.</p> <p>“ ‘Most plays are directed at the domestic relation,' and are subversive of and insidiously attack the domestic state. Theoretically, the theater can be made an educational influence and a force for good in the life of a people, but in practice it cannot.</p> <p>“ ‘My observation is that the morals of the stage are worse now than they ever were, and I know what I speak of. I know a young woman, pure and good who went on the stage. I went abroad, and when I returned I found that she was playing parts calling for men’s attire.</p> <p>“ T have frequently received letters from actors drawing my attention to the many noble men and women of the stage, but in each instance these men and women were dead.</p> <p>“ ‘Once in London I met the greatest’ actor in Europe, and we had a long talk upon this very question, and when we had finished I' was more satisfied than ever of the impossibility of the stage¡</p> <p>“ ‘There is nothing for a Christian to do but to stay -away from the theater. Its atmosphere is bad, and it raises questions in the minds of young people that are unnecessarily dangerous. ’ I believe in- relaxation and amusement' for people, but not those of the theater. In my congregations I have had theatergoers and- non-theatergoers, and the latter always enjoyed life more quietly and peace: ably than the former.’’</p> <p>.“There is food for thought in much .'that Dr. T.orrey sa-ys.' Indeed,, if I. am not mistaken, much of the criticism he makes has been in our minds also, and no one can accuse us of antagonism to the stage. . In fact, our love for it makes us its sternest critics at times.</p> <p>“We can pass over without much comment his remarks', on the unwholesome atmosphere of the stage and its pernicious effects on the youthful mind. All it needs is the qualification ‘sometimes.’ One of those times was last week, when the whole Nethersolian repertory failed to provide a helpful situation or one that was not tarred with suggestiveness. All the plays left nasty tastes in .the memory. As I recall them, ‘The Labyrinth’ was the worst of the lot. Cleveland received it frigidly, as is the American way when displeased or disgusted, but when it was produced in London it .was hissed so soundly that Miss Nethersole had hysterics.</p> <p>“We can guard against these brazen, fleshly plays, however. The honest-minded writer about the stage will point out their dangers. The greater evil lies in the subtle undermining of the character which follow upon laughing attacks made upon domestic life.</p> <p>“If you have witnessed any of the farces that have been popular in the past score of years, you will recall that they have all been variants of one theme. And that was the hood-winking of a wife by a larky husband.</p> <p>“The changes that have been rung on this one idea show greater ingenuity than morality on the part of the dramatists. They have only put the husband in a single situation — an entanglement, more or less- serious, with a woman — but they have found a thousand and one ways of extricating him from it.</p> <p>“The danger of such plays lies in the way that the audience receives them quite as much as that in which they are presented! The complications are always so humorous that they convulse the auditor. And when you laugh at an evil you condone it.</p> <p>“I am not a prude and I don’t wish to be a preacher, but there is a great danger here, and a growing one. The whole social situation doesn’t make, as it should, for the sanctity of married life and its preservation. .The follies of the world have too great a grip upon both husband and wife. They do not trot in double harness as smoothly as they did; they do not try to get each other’s gait, as was once the case.</p> <p>“Under such conditions is it a positive evil to have the stage make mock of marital misdemeanors with all of its misplaced eloquence and ingenuity. It is like touching torch to tow in some cases. In all it is destructive.</p> <p>“The danger, too, does not lie alone in the way the masculine mind grasps its opportunity and improves upon it. There is also a perversive feminine education. It teaches the wife that what is ■sauce for the goose is also sauce for the gander. And it puts before the young girls who are contemplating marriage — which means them all, for there is none predestined to spinsterhood — a false and unwholesome idea of the world. ■ It makes them suspicious. It breeds a distrust that may, in turn, breed something worse.</p> <p>“Now, • the-average. woman doesn’t believe in man. It is part of her creed to hold him as wicked or "full-of potential wickedness. If she' is a domestic body, loyal to her own fireside, she will .exclude her own male relatives, but -the rest of the ■world is-, tarred with a big black stick. When the .stage emphasizes this belief or this disbelief, rather, when it shows man as errant in his love and .chortling over it, then it. demands the denunciation .of' the laymen and the scourging of the clergy far more than in its open,, flagrant fleshliness.</p> <p>“The church can do much for the purity of the stage by treating it truthfully and temperately. If it froths ■ at the mouth at evils which do not .exist, it will nullify the good it might accomplish when if scores those-that are obvious.</p> <p>“Let the next clergyman who wishes to de: ,-noünce the theater.'speak from knowledge and let him spealc moderately. Let him select one of these farces which -.turn man’s deceit and woman’s righteous, indignation into merriment. Then let him go up in his pulpit and reason out the matter with -his people.'</p> <p>“And -when he has done that he has only performed half his duty. Let. him visit the theater again, ,and this time .select a play — and-there are many of them — which teaches sound morality; which has the call to better life and thoughts tc those who see it; which stirs them like a trumpet blast to duty; and which makes them fierce and denunciatory toward brazen evil and compassionate toward, that which .is the result of ignorance and environment and. heredity, and which, moreover, is sought to be overcome by its victim.</p> <p>“With this better knowledge let him mount to his pulpit again and relate his experiences and his impressions.</p> <p>“Then, as men are. free agents and he but a monitor and not a master, let him place upon his people the burden of right choosing.</p> <p>“Such a man would have a following that would fill his church and his contribution box and he would work inestimable good.</p> <p>“Who will be the first man of the cloth to try?</p> <p>“Sage.”</p> <p>The plaintiffs petition contained apt innuendos and averments common to petitions in libel respecting the falseness of the article, of its libelous character, of malice on the part of the publisher in publishing it; that it has caused plaintiff great mental distress, and she has been greatly damaged in her good name, and brought into public shame and that her business as manageress and actress has been injured and she has sustained great loss thereby. The answer contained denials of these averments and alleged that the publication was made in defendant’s capacity as a public journalist, that the same was a fair, impartial criticism, and that the publication was privileged. The petition also contained an averment of special dam: age, but the evidence of plaintiff failed to support that claim. Hence the question was, and was stated by the trial judge to be, whether or not the article contained words which of themselves aré actionable per se, and would warrant a verdict for plaintiff without proof of special damage. Counsel for defendant contended for the.negative of this proposition, and, standing on that claim, presented at the conclusion of all the evidence a motion asking the court to arrest the case from the jury and direct a verdict for the defendant; which motion was overruled. Proceeding thereupon to instruct the jury the court eliminated from their consideration as respecting words libelous per se-all of the article save that part which related to the play called “The Labyrinth,” and with respect to that part charged the jury as follows:</p> <p>. “I therefore say to you that the publication tc the effect that the production of 'The Labyrinth’ as presented by Miss Nethersole in Cleveland, was received frigidly, and when it was produced in London, it was hissed so.soundly that Miss Nethersole had hysterics, must be deemed to be libelous as affecting thé plaintiff in her business and profession, and she is entitled to recover a verdict in this case.”</p> <p>A verdict for plaintiff in the sum of twenty-five hundred dollars followed, and judgment was rendered thereon. On error in the circuit court that judgment was affirmed. The Printing Company asks a reversal of both judgments.</p>

<p>Authority for action in quo warranto — Given only by section 12303, General Code — Legality of exercise of mere function — Cannot be inquired into, when — Sections 1539, 1540 and 1683, General Code — Do not constitute a supervising judge — An officer holding a separate office, when.</p> <p>1. The authority, and the only authority for bringing an action in quo warranto in this state, is given by section 12303 of the General Code. That section provides that quo warranto may be brought in the name of the state against a person who usurps, intrudes upon, or unlawfully holds or exercises, a public office, or a franchise, within this state.</p> <p>2. The legality of the exercise of a mere function alleged to be erroneously exercised by one who, it is claimed, is a public officer, can not be inquired into by a proceeding in quo warranto.</p> <p>3. Neither section 1539, 1540, nor 1687, of the General Code, nor all taken together, constitute the judge therein designated as supervising judge, an officer holding an office separate and distinct from his office as judge of the court of common pleas. Such designation is mere descriptio personae. And there being no such public office as supervising judge, there can be'no intrusion by anyone into such alleged office. Hence, quo warranto will not lie to oust such alleged intruder. This court, therefore, has no jurisdiction of the action sought to be brought.</p>

Mollie Fowler was married to Karl Koch on the 8th day of March, 1898, and was divorced from him on the 15th day of September, 1904. No entry of the decree of divorce was put upon the records of the court until some two years later, when a decree nunc pro tunc was entered. Sometime later she married a man named Jaycox, but the evidence does not disclose the date of this marriage.

Exceptions to the Court of Common Pleas of Allen county. At the January term, 1910, of the common pleas court of Allen county, an indictment was returned by the grand jury against the defendant Henry Van Gunten for misconduct in office, he being the sheriff of the county.

Exceptions to the Court of Common Pleas of Allen county. At the January term, 1910, of the court of common pleas of Allen county, the grand jury returned an indictment against the defendant Henry Van Gunten for presenting false and fraudulent bills.

The plaintiff in error was defendant in the court of common pleas in an action brought against it by the defendant in error, the Memphis National Bank, in which action the issues were joined by the petition, answer and reply.

In January, 1905, H. O. Briggs, who was .engaged in the lumber business at Youngstown, became financially embarrassed when he entered into an arrangement with the plaintiffs in error, who were his creditors, to place his business in their charge with the' view to so conducting the business and managing his assets as to discharge his obligations with the proceeds thereof.

<p>Exceptions to the Common Pleas Court of Ross county.</p> <p>The facts are stated in the opinion.</p>

The action below was by' Dan. B. O’Connell, defendant in error, against the Pennsylvania Company, plaintiff in error, instituted January 26, 1906, in the court of common pleas of Seneca county, to recover one hundred and fifty dollars as penalty for an alleged overcharge in selling at Sandusky, Erie county, a ticket entitling the purchaser to ride upon a train -of the Company from Sandusky, Erie county, to Tiffin, in Seneca county, the Company at that time, May 4, 1905,…

■ On the second day of August, 1900, William H. Crawford was appointed by the probate court of Lawrence county, Ohio, administrator, with the will annexed, of the estate of Elizabeth Mueller, deceased, gave bond and entered upon his duties as such. In the process of the settlement of the estate he filed five several accounts, the last or final account being filed on November 15, 1904.

<p>Error to the Circuit Court of Miami county.</p> <p>At the October term, 1909, of the court of common pleas of Miami county, an indictment ■ was returned against William S. Coblentz, in which he was charged with the offense of unlawfully; and by false pretenses, procuring the signature of one Ira M. Albaugh,’ as maker, to a promissory note of the value of five thousand dollars. On the trial of the case. in common pleas at the close of the testimony offered by the state, the defendant moved the court to direct a verdict in his favor on the ground that no case had been made out by the state, and that the indictment did not charge a crime under the law. The court overruled this motion. The defendant was convicted and sentenced and this judgment was affirmed by the circuit court.’ Error is prosecuted here ’to reverse the judgments below. Other alleged errors are noticed in the opinion.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>At the September term of the court of common pleas Franklin county for the year 1909, the grand jury presented an indictment against the plaintiff in error charging, “that A. W. Kilbourne, late of said county, on or about the twenty-sixth day of July, in tlie year of bur Lord one thousand nine hundred and nine, within the county of Franklin aforesaid, unlawfully did buy certain journal brasses necessary in the use and operation of certain railroad cars, which said journal brasses had been theretofore unlawfully and without proper authority removed from said certain railroad cars, which said railroad cars and brasses were then and there the property of The Hocking Valley Railroad Company, a corporation, and which said removal of said journal brasses from- said certain railroad cars might have endangered life, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Ohio.”</p> <p>The accused was taken into custody to answer said indictment, which was first done by filing a demurrer to the indictment, one ground of which is that the statute alleged to have been violated is unconstitutional; and on the further ground that such statute is in conflict with -Sections 6856 and 6858, Revised Statutes.</p> <p>The demurrer was overruled, a plea of not guilty entered, and the case tried to a jury, resulting in a verdict of guilty in the following words: “We, the jury in this case, find the defendant A. W. Kilbourne, guilty .of unlawfully buying certain journal brasses as he stands charged in the indictment with recommendation of mercy.</p> <p>“A. L. Henderson,</p> <p> “Foreman.” </p> <p>A motion for new trial was overruled and the accused sentenced to pay the costs of prosecution and be imprisoned in the Columbus workhouse and kept at hard labor for the term of ninety days.</p> <p>On error, this judgment was affirmed by the circuit court.</p> <p>Error is prosecuted here to reverse both judgments.</p>

<p>Competent for railroad companies — In contracts facilitating movement of trains — To incur liabilities for injuries to employes— Contracts can not be extended beyond terms, when.</p> <p>While it is competent for railroad companies, in contracts to facilitate the movements of trains in the conditions which obtain at crowded terminals, to incur liabilities for injuries to the employes of other companies resulting from the negligence of their own employes, such contracts may not, by construction, be extended to movements of trains beyond the scope of their terms.</p>

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

<p>Jurisdiction of courts of common pleas — Fixed by statute under section four of article IV, of constitution — General Assembly may determine venue of civil actions — Validity of section 33 of act of May 11, 1908 — To regulate registration, etc., of automobiles — Actions resulting from negligence of owners — Summons may issue from resident county of party injured — To resident county of party defendant.</p> <p>1. The jurisdiction of the courts of common pleas of the state is, by force of section four of article IV of the constitution, fixed by statute.</p> <p>2. In the exercise of the power of the general assembly to confer jurisdiction on such courts, it is within the competency of that • body to fix and determine the venue of civil actions. And so long as, by the exercise of that power, no party is deprived of any constitutional right, the'courts will not interfere with the will of the general assembly as thus expressed.</p> <p>3. Section 33 of the act of May 11, 1908 (99 O. L., 538), entitled: “An act to provide for the registration, identification and regulation of motor vehicles,” which provides that actions for injury to person or property caused by the negligence of the owner of any automobile, may be brought by the party injured against such owner in the county where such injured party resides, and that summons may issue to the sheriff of any county within the state wherein the defendant resides, to be served as in other civil actions, is a constitutional and valid exercise of legislative power. -</p>

<p>Forged instrument not merely voidable — But absolutely void — Estoppel to deny signature — May apply to one whose name is forged, when.</p> <p>A forged instrument is not merely voidable, but absolutely void, and there can be no ratification of a forgery that will make the instrument valid.</p> <p>2. One may by conduct, statements, or silence estop himself from claiming that his signature is a forgery, but before he can be estopped by mere silence, facts must be alleged and proven showing a duty and opportunity to speak, that he knew or had reason to believe, that the holder of the forged instrument would rely on his silence, and that the holder in fact did rely on his silence and was in fact injured thereby.</p>

<p>Expulsion of infant passenger — By conductor from railway train— For alleged failure to pay fare — Company liable for error of judgment by conductor — Question of legal nature of coin tendered — Redemption of coin by government — Fright and terror proper elements of damage, when.</p> <p>1. The power of a railway company to expel from its cars persons who refuse to pay the legal fare is vested in the conductor in charge of such cars. But if the conductor wrongfully expels • one who is entitled to the rights of a passenger, the company is liable to such person in damages, even though such expulsion is doné through an error of judgment on the part of the conductor in charge.</p> <p>2. A coin issued by authority of law to circulate as money is not deprived of its legal tender^ quality, merely by being worn in the process of circulation nor when bruised or cracked, so long as it is not appreciably diminished in weight and retains the evidence of its being genuine coinage. And when a passenger . on a car of a common carrier tenders such a coin in payment of his fare which is refused, and the passenger ejected, he may maintain an action for damages against the company, even though the conductor in good faith believed the coin not to be legal tender. In such case the passenger is not required fo tender other money in payment of his fare.</p> <p>3. The rules of the United States Treasury Department in regard to the redemption of coins authorized by statute relate simply to redemption and do not affect the question of legal tender.</p> <p>.4. In an action by an infant of tender years for wrongful ejectment from a railway car or train, which wrongful ejectment was wilful and intentional, fright and terror are proper elements of damage if such ejectment was under circumstances which would naturally cause fright and terror to the infant.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>Error to the Circuit Court of Darke county.</p> <p>The facts in'each case are stated in the opinion.</p>

<p>Constitutional provisions requiring that laws — Regulating property rights — Shall operate generally — Extend to rules of evidence, when — Invalidity of Btdk Sale Act of April 30, 1908.</p> <p>1. The provisions of the constitution which require that laws regulating rights in property shall operate generally and equally extend to statutes which prescribe the presumptions and rules of evidence by which those rights are enforced.</p> <p>2. The act of April 30, 1908 (99 O’. L., 241), to render presumptively fraudulent sales in bulk of stocks of merchandise unless the seller shall, not less than seven days before the transfer, file with the recorder of the county a notice of his intention to make such sale, is repugnant to the first article of the constitution, and therefore void. (Miller v. Crawford et al., 70 Ohio St., 207, approved and followed.)</p>

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

<p>Error to the Circuit Court of Clark county.</p> <p>On the second day of April, 1910, Harry Boswell filed with the probate judge of Clark county, Ohio, an affidavit charging the plaintiff in error with contributing to the delinquency of S — , a female minor child, a portion of which affidavit omitting names, reads as follows:</p> <p>“That one F — ■, late of said county, on or about the first day of March, 1909, and at divers other days and times between said day and the first day of' April, 1910, at the city of Springfield, county of Clark and state of Ohio, did unlawfully aid, abet, induce, cause, encourage and contribute to the delinquency of S — , a female minor child as aforesaid, in this, to-wit, that the said F— did then and there'unlawfully and knowingly aid, abet, procure, cause and encourage the said S— to associate with vicious and immoral persons, one of said vicious and immoral persons then and there being said F — , and the said F— did then and there have unlawful sexual intercourse with the said S — ; that the said F— did then and there unlawfully aid, abet, procure, cause, contribute and encourage the said S— -to have certain indecent, immoral and lascivious relations with the said F — -, and that the said F— did then and there unlawfully aid, abet, procure, cause, contribute and encourage the said S— to be then and there and thereby guilty of immoral conduct, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”</p> <p>To this affidavit the plaintiff in error filed a motion to quash, which motion was overruled and a plea of not guilty entered. A jury was waived and the cause tried to the court resulting in a finding of guilty and the plaintiff in error was sentenced to pay a fine of one thousand dollars and to be imprisoned in the Xenia workhouse for one year and to -further stand committed until said fine and costs are paid. Error was prosecuted to the circuit court of Clark county, which court affirmed the judgment of the probate court, and this proceeding in error is now prosecuted in this court to reverse the judgment of the probate court and the judgment of the circuit court affirming the same.</p>

<p>, Error to the Circuit Court of Allen county.</p> <p>The amended petition of the plaintiff in the court of common pleas in this cause is as follows:</p> <p>“Now comes the plaintiff, and for his cause of action avers:</p> <p>“That the defendant, The American National Bank of Lima, Ohio, is a corporation, duly organized under the laws of the United States of America, and, on the 24th day of December, 1898, it was engaged in the business of conducting a bank, under the national banking laws of the United States of America, at the city of Lima, in the county of Allen and state of Ohio.</p> <p>“That at said date of December 24, 1898, Joseph Goldsmith was president; this plaintiff, Nathan L. Michael, was vice-president and Gus Kalb was the cashier of said bank; and said'cashier at the close of business on said 24th day of December, 1898, had in his custody, of the moneys deposited in said bank and for which said bank was responsible as custodian aforesaid, the sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars.</p> <p>“That at the close of business on the said 24th day of December, 1898, said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was deposited and locked in a safe inside of the vault in the room where defendant conducted its banking business, and said vault was provided with an outer steel door three, inches in thickness, with a combination lock to which was attached a time-lock. And said time-lock was properly wound and set, and said vault door closed and bolted, and the combination thereon was distributed, and said appliances for the safe-keeping' of said money were properly used and said vault door securely locked by the. cashier, Gus Kalb.</p> <p>“That on the 26th day of August, 1899, the-defendant, The American National Bank of Lima, Ohio, filed its petition in the court of common pleas of Allen county, Ohio, in case No. 10050 of said court, making Gus Kalb and this plaintiff defendants in an action for money had and received, and praying for a judgment against said Gus Kalb and this plaintiff for the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, with interest from the 27th day of December, 1898; that thereafter, to-wit, on December 4, 1899, this plaintiff filed his amended separate answer in which he averred as a defense that between the dates- of December 24 and December 27, 1898, the vaults of said The American National Bank of Lima, Ohio, were-entered and robbed, and the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was stolen and carried away by some person or persons unknown to Nathan L. Michael, one of the defendants in said cause No. 10050, a$d without his neglect or default.</p> <p>“That thereafter on the 4th day of December, 1899, the said, The American National Bank of Lima, Ohio, plaintiff in said cause No. 10050, filed its reply to the amended answer of Nathan L. Michael in said cause, and denied the allegations of the amended answer, of Nathan L. Michael filed in said cause No. 10050.</p> <p>“That said averment of plaintiff in his answer, as defendant in said cause No. 10050 and the denial of said averment by The American National Bank of Lima, Ohio, as plaintiff in said cause, made up a material issue of fact, and that said cause was tried to a jury on the issue thus made up; and on December 12, 1899, said jury rendered a verdict on behalf of the defendant, The American National Bank of Lima, Ohio, as .plaintiff in said action, against the defendants Gus Kalb and Nathan L. Michael, in the sum of nineteen thousand sixty-nine and 4-100 ($19,069.0.4) dollars.</p> <p>“That within three days after the rendition of said verdict, each of said defendants filed his separate motion for a new trial, which was overruled by the court of common pleas, and a bill of exceptions was prepared, allowed, signed, sealed and made a part of the record in said cause, but not spread upon the journal; and each of said defendants thereafter filed his petition-in-error in the circuit court of Allen county, Ohio, praying for the setting aside of said verdict and for a new trial, but the judgment of the court of common pleas was duly affirmed.</p> <p>“That thereafter each of said defendants, within the time allowed by law,, prosecuted error in the supreme court of Ohio, to the affirmance of said judgment by the circuit court of Allen county, Ohio, and said cause was fully reviewed by the supreme court of Ohio, and by it, the said judgments of the lower courts were affirmed and a mandate was directed and issued on October 23, 1901, to the clerk of the court of common pleas for Allen county, Ohio, commanding him to carry into effect the judgment and orders of said court of common pleas.</p> <p>“That by reason thereof, on the 25th day of October, 1901, this plaintiff, as a defendant in said cause No. 10050 aforesaid, was compelled to pay to the defendant, The American National Bank of Lima, Ohio, as plaintiff in said cause, and did pay to the clerk of the courts for Allen county, Ohio, the one-half (J4) of said judgment, interest and costs, amounting to the sum of ten thousand, eight hundred eighty-six and 74-100 ($10,886.74) dollars.</p> <p>“That the defendant, Gus Kalb, was a co-defendant of this plaintiff in said cause No. 10050 of the Allen county common pleas court, in which cause, The American National Bank of Lima, Ohio, recovered the verdict and judgment heretofore mentioned; that the consent of said ■Gus Kalb to be joined as plaintiff herein cannot be obtained, and that by reason thereof, the said Gus Kalb is made a defendant in this action.</p> <p>“That between the date of closing and locking said vault on the 24th day of December, 1898, aforesaid, and the 27th day of December, 1898, the aforementioned appliances for the safe-keeping of said sum of eighteen thousand two hundred fifty-three and 72-100 ($18,253.72) dollars were tampered with and rendered useless by a thief in the person of one at the time of action heretofore mentioned and for a long time thereafter unknown to this plaintiff, and said sum was taken, stolen and carried away bv said thief, whom the plaintiff avers to be one Eliiah Bowsher.</p> <p>“That the plaintiff at the time of said action in cause No. 10050, aforesaid, had no knowledge and no means of knowing the connection of Elijah Bowsher with the theft from said bank of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, and that he had no knowledge of the same until the fall of the year 1905.</p> <p>“That said Elijah Bowsher at the September term of the court of common pleas for Allen county, Ohio, in the year of 1905,. was indicted by the grand jury of said county for the larceny of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars of the moneys and property of The American National Bank of Lima, Ohio, so by him stolen and carried away and was convicted and sentenced for said crime to the Ohio Penitentiary for a period of seven years.</p> <p>“Plaintiff further avers that owing to the lapse of time between the time of the trial of said action in said cause No. 10050, and the time of the discovery and disclosure of the fact that the theft heretofore referred to was committed by said Elijah Bowsher, plaintiff is without adequate remedy at law.</p> <p>“Wherefore, plaintiff prays that said verdict in said cause No. 10050 of Allen county, Ohio, common pleas court, entitled The American National Bank of Lima, Ohio, plaintiff, vs. Gus Kalb, and Nathan L. Michael, defendants, may be set aside and a new trial of said cause awarded; and that plaintiff may have any other and further orders necessary to have adequate relief In equity.”</p> <p>A demurrer was filed by the defendants to this amended petition, which was sustained by the common pleas court, and the plaintiff not desiring to plead further, judgment was entered dismissing the petition at the costs of the plaintiff. On error proceedings in the circuit court _ of Allen county this judgment was affirmed and the action here is to reverse the judgments of the courts below.</p>

<p>Error to the Circuit Court of Morrow county.</p> <p>On the 17th day of April, 1909, the defendant in error filed his petition against Satira M.. Levering et al., asking partition of certain real estate, part of which is situated in Knox county and part in Morrow county.</p> <p>After the defendants were brought in, the petition was amended by making the plaintiff in error party defendant, and also alleging that the plaintiff, Victor E. Brown, while a minor eighteen years of age, had joined some of the defendants in executing deeds, by the terms of which he had conveyed his interest in said lands to the grantors of some of said defendants, which deeds, made during his minority, he prayed to have cancelled by decree of the court and that partition be ordered as originally prayed for.</p> <p>The defendants set up, in two forms, the statute of limitations as a bar to the action.</p> <p>The reply denied the facts alleged to constitute the statutory bar.</p> <p>The case having reached the circuit court on appeal, that court found the following facts, in which the entire case is developed.</p> <p>“That Joseph Levering died intestate in the year 1871, seized of the lands in the amended petition described, leaving Shannon Levering, Charles Levering, Edward Levering, Calvin Levering and Lurana Levering Brown his only children and only heirs at law.</p> <p>“In the year 1872, the said Edward Levering and Calvin Levering, being in possession of said real estate as tenants in common, purchased the shares of said Shannon Levering and Charles Levering, and continued in possession as co-tenants with said Lurana Levering Brown until her death; that she died in the year 1885, leaving Edmond W. Brown, her husband, and two chil-dren, Victor E. Brown, the plaintiff, and Lillie B. Hill, her- only heirs at law; that on the 12th day of March, 1888, the said Edmond W. Brown, Victor E. Brown, and Lillie B. Hill, by two deeds executed in due -form, conveyed their interest in said lands to Edward and Calvin Levering; that said Victor E. Brown at the date of the execution of said deeds was. a minor eighteen years of age and received no consideration for said conveyance; that he attained his majority on the 24th day of October, 1890;- that said .deeds were not filed for record until the year 1909, and when they were so filed for record he had no knowledge of their existence or recollection of having signed the same; that he filed his petition in this action on the 17th day of April, 1909, within twenty-one years after he arrived at the age of majority, but more than twenty-one years after said deeds had been executed by him; that said Edmond W. Brown died prior to the commencement of this suit; that said Edward and Calvin Levering continued in possession and exercised control over said lands by living upon, farming and keeping the same in repair, and paying the taxes thereon .until the death of said Edward Levering; that he died intestate in the year 1893, without issue, leaving Satira M. Levering, his widow, and said Shannon Levering, Charles Levering, Calvin Levering, Victor E. Brown and Lillie B. Hill his only heirs at law.</p> <p>“That in the year 1896 said Calvin Levering intermarried with said Satira M. Levering, widow of said Edward .M. Levering, deceased, and died in the year 1904 intestate and without issue, leaving said Satira M. Levering his widow, and the said Lillie B. Hill, Victor E. Brown, Milton Levering and Homer Levering his only heirs at law.</p> <p>“The said plaintiff, Victor E. Brown, lived within one and a half miles of said lands from the time of his mother’s death until the commencement of this suit, and frequently visited at the Levering home and was on friendly terms with all of them and frequently assisted said Satira M. Levering upon her request in the management of said lands by his counsel and advice. That said Victor E. Brown made no demand or effort to assert his rights as to the ownership of said lands, or of any interest in them until the commencement of this suit, April 17, 1909.”</p> <p>As conclusion of law, the court found “that the possession of said Edward and Calvin Levering during their lifetime was not adverse to plaintiff, and that said J. W. Lanning has not held the same by adverse possession a sufficient length of time to perfect his title against the said plaintiff; that this action is not barred by the statute of limitations; that said Victor E. Brown never ratified his said deeds; that he disaffirmed the same by the bringing of this action and is entitled to have the same set aside and to have partition as prayed for.” The court ordered partition to be made, setting off to Victor E. Brown one-tenth part and in addition thereto found that he has an estate of seven-eighths subject to life estate of Sátira M. Levering.</p> <p>The defendants excepted and prosecute error in this court to reverse the judgment entered on said findings of fact.</p>

<p>Unconstitutionality of act of legislature — Party not estopped to assert, when — County officer pays fees into treasury — Fees not paid before salary act adjudged unconstitutional — May be retained.</p> <p>1. A party may assert that an unconstitutional act of the general assembly is a nullity, unless his conduct with reference to the subject of the act has been such that to permit the assertion would place his adversary in a less favorable position than he would have occupied if the act had not been passed.</p> <p>2. A county officer who pays into the treasury of 'the county the fees of his office in excess of the salary affixed thereto by an unconstitutional act, may, after the act is adjudged to be unconstitutional, receive and retain fees accruing before, but not paid until after, such adjudication.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The plaintiff in error was plaintiff in the court of common pleas in which he filed his petition alleging that the defendants had published in a newspaper owned and controlled by them, viz., The Cleveland News, a libelous statement which was in substance that warrants for the arrest of the plaintiff on the charge of perjury together with warrants for other persons for other felonious crimes had been sworn out before a justice of the peace by one L. A. Damschroeder. It was further stated in said article that Damschroeder asserts that the plaintiff committed perjury in swearing to the affidavit by which suit was brought, etc. The plaintiff’s petition further alleged that he is an attorney qualified to practice in the courts and that he is the person referred to in this article and that so far as it refers to the plaintiff the language complained of is viciously false and untrue and is calculated to injure the plaintiff in his reputation as a man, as a citizen, and in the practice of his profession and to bring him into public scandal, infamy and disgrace. He charges that he has been disgraced and humiliated and his business has been injured thereby, for all of which he claims damages.</p> <p>The defendants made a joint answer setting up three defenses. The first defense after admitting the formal allegations of the petition and the publication of the article complained of, denies all and singular the averments of fact in said amended petition contained saving and excepting the averments hereinbefore expressly admitted to be true. In their second defense the defendants set forth a certain affidavit made by one Lawrence A. Damschroeder charging the plaintiff with perjury and setting forth a warrant alleged to have been issued by the justice of the peace with whom said affidavit was filed. And they further say that they thereupon caused the publication complained of to be made and that the same is a fair and accurate-report of the said proceedings had before the said justice of the peace. Further answering, the defendants say that they made said publication in good faith, relying on the said affidavit and warrant and said proceedings before the said justice of the peace, and they deny that in making said publication they were actuated by any malice whatsoever toward the plaintiff. For their third defense the defendants say that a reporter representing the defendant, The Meridian Printing Company, went to the office of the justice of the peace referred to in said publication and made in-’ quiry as to whether or not a warrant had in fact been issued for the arrest of the plaintiff. That the said justice informed the reporter that the warrant had been issued and that the reporter thereupon requested to see the files in said case and the same were exhibited to him and examined by him and he found in the file envelope an affidavit charging the plaintiff with perjury and otherwise making charges against him as set forth in. said publication. That the reporter also found in said file envelope a warrant for the arrest of the plaintiff duly signed by the justice of the peace, and that thereupon acting upon such examination and information he prepared the publication complained of which the defendants thereupon caused to be published. • Defendants further alleged that at the time of the publication they believed and had reasonable grounds to believe that the statements contained in said publication were true; that they made the same in good faith and believed it to be by reason of the aforesaid inquiries a fair and accurate report of the proceedings had before the said justice of the peace. They further say as a part of said third defense that thereafter the plaintiff demanded that the defendants make retraction of the matter contained in said publication so far as it related to him the said plaintiff and that in response to this demand for a retraction and acting on information from the plaintiff and statements made by him without further investigation and solely with desire to set right a possible wrong which they may have done the plaintiff they promptly published a full and complete retraction of the same in as public a manner and as conspicuous a place as that in which they had made the original publication. A copy of this retraction is given. And they deny further that in making the said publication they were actuated by any malice whatever toward the plaintiff.</p> <p>Demurrers to each one óf the separate defenses filed by the plaintiff were overruled by the common pleas court. The plaintiff not desiring to plead further final judgment was entered for the defendants. To this judgment the plaintiff filed his petition in error in the circuit court which affirmed the judgment of the court of common pleas and this proceeding in error is prosecuted to reverse the judgment of both the lower courts.</p>

The controversy out of which the present proceeding in error arises was commenced in the court of a justice of the peace of Hamilton county, by the defendant in error against the plaintiff in error, and thence appealed to the court of common pleas of that county.

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

<p>Error to Circuit Court of Ottawa, county.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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