Volume 9 — Ohio Circuit Court Reports

L. J. Harshman and S. D. Harshman, executors of the last will of Mary Harshman, deceased, included in the inventory of the assets of the estate of said decedent a promissory note of $500, executed by said S. D. Harshman to said testatrix in her life-time. At the time of his appointment as one of the executors, S. D. Harshman was, and thereafter continued to be, insolvent.

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

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

<p>1. The failure of the auditor to apportion the state common school fund according to law, does not authorize a township board of education to treat it as a contingent fund, and disburse it according to their discretion.</p> <p>2. The. auditor must apportion the state common school fund to the several districts, sub-districts, joint-sub-districts and fractions of districts according to the enumeration of youth of school age in each as required by section 3964, Revised Statutes, and because there are other funds belonging to sub-districts which he is unable to apportion, affords no excuse for a failure to comply with the plain letter of the statute.</p> <p>8. Where there has been no such legal distribution, but the township treasurer held $1,255.50 of the state common school fund with other funds, together amounting to $3,339.32, at his September settlement, 1892; the fact that the board of education is indebted over $4,000 for school houses erected, affords no defense to the payment of an order for $50.00 for services as teacher in a sub-district for the school year preceding said settlemeat, the enumeration of youth therein being one fourth of the enumeration of the township, and the contingent fund set apart to pay teachers for the sub-district having been exhausted for said year.</p>

On the 29th of March, 1894, the administrators, with the will annexed of James Emmitt, deceased, filed their petition in the Court of Common Pleas of Pike County, for authority to sell the real estate situate in Pike county, and of which Emmitt died seized, containing the usual averments in such cases essential to their right to an order to sell real estate, viz: The description of the realty, amount of debts, amount of persona] property of the estate, and the insufficiency…

<p>In Quo Warranto. •</p>

<p>1. “ A non-professional witness, who has had opportunities to observe a sick or injured person, may give in evidence his opinion of the condition of such person in respect to being weak and helpless or not, and of the degree of suffering he endured, provided such opinion is founded on his own observation of the person to whom his evidence relates, and is limited to the time that the person was under the observation of the witness.” Village of Shelby v. Clagett 46 Ohio St. 549</p> <p>2. In an action against a railroad company to recover for injuries received in a collision at the crossing of a highway by its tracks, it is error to permit the plaintiff-to prove, that other persons had been injured by passing trains at the same crossing, before the injury to plaintiff.</p> <p>3. A view of the premises under section 5191 of theBevised Statutes, is for the purpose only of enabling the jury to better understand and apply the testimony adduced upon the trial, and it is error to charge, that they should consider the knowledge .derived from such view in determining the issues.</p> <p>4. The plaintiff in his petition states that before he attempted to cross the tracks of the defendant, he stopped and looked for approaching trains, and on the trial testified that he stopped and looked, and offered the testimony of other. persons tending to prove that he stopped. The defendant offered testimony of witnesses tending to prove that plaintiff, without any halt or stop, drove rapidly upon the tracks. The court in the charge said: “He was not required in approaching the crossing to stop, unless, he had heard the whistle, the rumbling of the cars, the ringing of the bell, or something to indicate that the train was approaching. In Ohio a man is not required to stop when he comes to a crossing unless there is something which would indicate to an ordinarily cautious man, that there might be a train approaching. Held, The charge if not erroneous, when applied to the facts is at least misleading.</p> <p>■5. There is no rule of law requiring a railroad company to erect gates, or keed a flagman at the crossing of a highway by its tracks outside of a city or village. The company has the right to run its trains carefully and prudently on its tracks, so as not in the exercise of its own rtght, to injure others in the prudent exercise of their rights.</p>

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

<p>On motion to modify and vacate order of disbarment.</p>

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

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

<p>1. Where the United States Supreme Court has construed a United States statute, it is the duty of a state court to follow that construction.</p> <p>2. The phrase “Moneyed Capital” found in section 5219, United States statutes, includes many kinds of property called “credits,” in section 2730 Ohio Statutes.</p> <p>3. The phrase, “greater rate,” in said section 5219, refers to, and includes both the rate of percentage of taxation, and the mode of determining the amount or value of the property to be taxed.</p> <p>4. The only power a state has to tax national bank stock is derived from the act of congress granting such power: Section 5219, United States Statutes. A state cannot exercise that power in a mode prohibited in that section.</p> <p>5. Where a tax is levied on national bank stock when the owner of the same at the time had “bona fide debts” amounting to more than his “credits” and his national bank stock taken together, and where he applied to the proper officer and board to have such “bona fide debts” taken from his national bank stock; and “credits” by the state statute are many of them moneyed capital taxable only so far as' they exceed the Iona fide debts of the owner of them, such tax is illegal and voidable, and the county treasurer will be restrained by the court from collecting the same.</p>

<p>• 1. W. and McC., owners of oil and gas lands, by a lease granting the right to operate for and produce petroleum oil and gas, and L., owner of adjoining oil and gas lands, by a similar lease, for the purpose of operating their respective leases amicably, to preserve the rights of each •with respect to the dividing line, and to avoid increased expense and probable loss and damage, mutually agreed and promised, orally, not to drill or construct any oil or gas wells, on either of said leasehold estates within two hundred feet of the said division line .• Held, the promise of one was a sufficient consideration for the promise of the other the consideration passing was both valuable and good, and the agreement was not void for want of consideration.</p> <p>2. Such oral agreement was not for land or interest in land, but was merely an agreement settling and fixing upon the best method of operating the said leases, and was not void by the provisions of section 4199, Revised Statutes.</p> <p>3. An action at law, for breach of such negative contract, does not afford the aggrieved party an adequate remedy. Injunction is the proper remedy.</p>

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

<p>A devise to a son “ and his heirs to the third generation,” is an entailment within the meaning of section 4200, Revised Statutes. Under the provisions of that section, the son takes a life estate, and his heirs an absolute estate in fee-simple.</p>

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

<p>Where the owner of goods puts them into the possession and control of another, as his agent, with power to sell them, and such agent is apparently the real owner thereof, and contracts to sell them to a third person, the purchase price to be paid partly in cash, and which is at once paid, and the residue thereof to be paid by the cancellation of a debt, which the purchaser held against the agent personally, which is done, the purchaser fully lelieving, and having reasonable ground to believe that the person with whom he dealt was the absolute owner of the goods, and had full power to sell the same, and the property is delivered to him, such sale as between the purchaser and the principal is valid, and the title to the property passed to the purchaser, and the principle can not rightfully repudiate such arrangement, and maintain an action against the purchaser for the unlawful conversion of the property.</p>

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

<p>1. After conditional judgment in favor of plaintiff in error, under 66 Ohio Laws, §537, p. 240, (Revised Statutes 2260), in appropriation proceedings against the city of Cleveland, the plaintiff conveyed the lands in fee simple. Thereafter, and after the expiration of the six months provided for in that statute, and without any new appropriation contract, the city took possession of the land, but did not pay therefor.</p> <p>Held, the right of the vendor to receive the damages under the conditional judgment had ended, and the right of action for damages for the taking of the land had accrued to the vendee.</p>

<p>In a proceeding to appropriate private property for street purposes, the value of the property is to be taken at the time of the trial, and not at the date of the condemnation ordinance.</p>

<p>1. The owner of certain real estate leased the same to a hotel company for a term of ten years at a specified annual rental, payable in equal monthly installments, and by the terms of such lease, which was duly • executed by the parties, the rents due and to become due were to be the first lien on said leased premises. After the executing and recording of this lease, the Hotel Company made a contract with Young & Son to erect a building on said premises at a certain price, and such building was erected, but the whole of the contract price was not paid, and Young & Son took a mechanic’s lien thereon for the balance due. After the execution of such lease, the owner of the fee, and the lessor transferred the fee and his interest in said ¡lease to Gordon. Young & Son filed their petition against the Hotel Company to foreclose their mechanic’s lien, making Gordon a party, who filed his answer, setting up his claim under the lease for a large sum due as rent, taxes paid, etc. The leasehold, with the improvements thereon, was sold under the decree of the court, and purchased by Gordon, and after the payment of costs in the case, the residue of the purchase-money was not sufficient to pay the amount due Gordon for the rent which had accrued under said lease.</p> <p>Held, That the claim of Gordon for such rents, under the terms of said lease, was a prior and better claim' than that of Young & Son under their mechanic’s lien. That section 31846, Revised Statutes, does make the lien of Young & Son better than that of the lessor or his assignee, Gordon.</p>

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

Mandamus. This cause is submitted on demurrer to a petition which alleges, in substance, the facts which show tbe relator’s right to sue, the due appointment of registrars of elections prior to the election of November 6, 1894, the registration of the defendant Mrs. Earnhart with a view to voting at the election to be held in April, 1895, for school director or member of the board of education ; that she will so vote unless her name be stricken from said registration list;…

Hammock brought an action before J. C. Gallagher, a justice of the peace, against Charles H. Moore & Co., to recover the sum of $234.60, with interest, and caused process in garnishment to issue against the Commercial National Bank of Columbus, requiring it to appear and answer concerning moneys, etc., of said Charles H. Moore & Co., alleged to be in its hands.

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

<p>S. devised the use of a farm to a married daughter for her life, with remain-der in fee to “her heirs.” The daughter died, leaving her husband surviving, but without living issue. In other items of the will the testator bounded other lands devised to other of his children by lands described as belonging to the “heirs” of certain named persons. The husband of the daughter was not named or referred to in the will.</p> <p> Held : </p> <p>1. That, in order to show the testator used the word “heirs” in such devise of the remainder in the sense of “children,” it was competent to prove that the heirs of such-named persons, in each instance, were the children of such persons, and that such persons, and their said children, had been long known to the testator, and had owned respectively such adjoining lands for many years prior to his death, to his knowledge.</p> <p>2. Under such circumstances, it is to be presumed that the cestator used the word heirs in the devise of the remainder in fee in the sense of “children,” and intended to exclude the son-in-law; that the devise of the remainder had failed, and the estate passed to the heirs of the testator.</p>

<p>Under the circumstances set forth in thejjagreed statement’of facts"in this case, the auditor of Hamilton county, Ohio, after the completion of the decennial appraisement of 1890, to-wit, on the 31st day of October, 1891, and after the completion of the duplicate of 1891, under such appraisement, was not authorized to place thereon against the lots of the plaintiff company, an additional valuation of $20,000, and to assess on such additional valuation the taxes which would have been chargeable upon such sum, for the years 1889 and 1890, had it been upon the duplicate for those years, on the claim made by such auditor, that on August 30, 1889, an addition had been made to the valuation of said lots of the sum of $20,000, by the board of equalization of such city, “on account of inequality in valuation,” and that said board, sitting as a board of revision, on December 20, 1889, had improperly taken the sum of $20,000, from the valuation of said lands “on account of excessive valuation.” By the provisions of the statutes of the state, particularly by sections 1040 and 2803, Revised Statutes, such additions to the duplicate of the current year, and the charge of omitted taxes thereon, can only be made as far back as the last decennial appraisement of real estate ; but if in the meantime such lots or lands have changed ownership, only the taxes chargeable since the last change of ownership can be so charged.</p>

<p>1. The official terms of county recorders, elected prior to the amendment of section 1137, Revised Statutes (91 O. Tj. 80), expires on the day preceding the first Monday of January.</p> <p>2. In contemplation of law there can be no vacancy in an office so long as there is a person in possession of the office legally qualified to perform its duties.</p> <p>3. The expiration of the term of office of a county recorder on the day preceding the first Monday in January, 1895, caused a vacancy in said office, by reason of the postponement, by the amendment aforesaid, of the commencement of the term of his successor; which vacancy the board of county commissioners, then iu office, had authority to fill by the appointment of a suitable person to hold said office during the interim.</p> <p>4. Whether an appointment by such board to fill an anticipated vacancy would be valid in any case, it is not so when the constituency of the appointing board is not to continue unchanged until after such vacancy has actually occurred.</p>

On the 20th of February, 1894, Pope gave notice to Mone who was his tenant, to quit the premises “on or before the 15th day of March, 1894.” On March 12, 1894, he gave him notice to quit “ within three days after the service of the notice.” On the 16th day of March he filed his complaint against him, and on the 26th day of March he recovered a verdict with an order of the justice for the possession of the premises.

<p>Injury to passenger by car jumping track at sharp curve — Presumption of negligence against it. it. Oo. — Where no negligence of the passenger appears, and there is no explanation for the escape of the car from the track, and nothing is shown that it was unavoidable, notwithstanding a high degree of care and skill on the part of the R. R. Company, then the jury is authorized to presume that there was some negligence on the part of the company.</p> <p>Excessive verdict. — A verdict will not be set aside for excessiveness, unless clearly shown to be excessive from prejudice or passion.</p>

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

<p>An independent action may be brought for damages for taking and converting goods, taken by the constable uuder a writ of replevin and turned over to the plaintiff in the replevin suit and by him kept and converted to his own use, such articles not being described nor comprehended in the affidavit for the writ. — (Ed. Bulletin.)</p>

<p>1. Section 32 of the act passed February 28, 1888, 85 Ohio Laws, 34, (Smith & Bendict’s Revised Statutes, sections 8223-100), is not in contravention of section 26, article 2, of the constitution of the state, which provides that “ all laws of a general nature shall have a uniform operation throughout the state,” but it is a legal and valid exercise of the legislative power.</p> <p>2. Section 61 of said act (section 8223-130, S. & B. Stat.), is in violation of section 5, article 1, of the constitution, which provides that “the right of trial by jury shall be inviolate,” and of section 1, article 14, of the amendments of the constitution of the United States, which provides that “ no person shall be deprived of property without due process of law.”</p>

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

Some years prior to 1887, certain fifty-four acres of land in Sandusky county, Ohio, descended to Harry W. King from his father, who died intestate, subject to the dower right therein of Mary C. King, widow of said intestate. The south twenty-nine acres of the tract was assigned to said widow as her dower.

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

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

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

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

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

<p>1. The sureties upon an administrator’s bond are liable for the debt of the administrator, due the decedent, regardless of the solvency or insolvency of said administrator.</p> <p>2. When the debt, due from the administrator to the decedent, is determined by the probate court, upon the hearing of the final account of the administrator, such determination is final unless, an appeal is taken or error prosecuted. Such determination, in the absence of fraud or collusion, binds the sureties upon the administrator’s bond.</p> <p>.3. An active business man, in good credit, carrying on an extensive business; having a large amount of property, and able to and did borrow money, at the lime, is not insolvent in a legal sense,— although the future may develop, that at the time, his liabilities exceeded his assets.</p>

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

<p>A board of county commissioners is not liable in damages for breach of a contract for ditch improvement, taken by the engineer under the provisions of section 4476 of Revised Statutes of Ohio.</p>

<p>Error to the Court of Common Pleas of Fulton County,</p> <p>A. W. Eckert, for plaintiff in error.</p> <p>H. H. Ham, for defendant in error.</p>

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

<p>In a proceeding in bastardy a compromise was made by the parties and carried into effect, and a bond given in accordance with the provisions of section 5617, Revised Statutes, ten months after the date of the compromise, but before the accused was discharged from custody. Held, the compromise and bond was a bar to a second proceeding in bastardy, for the same cause.</p>

<p>The owner of a corner lot, which is vacant and unimproved, and which fronts fifty feet on one street and abuts lengthwise one hundred and fifty feet on another street, who signs a petition for the improvement of the latter street, and asking that the cost thereof be assessed upon the abutting property, but which petition does not purport especially to give the length of the lot on said side street, is not estopped to claim the benefit of the doctrine of the Haviland case, and particularly is this the case, when it appears that the city authorities did not rely on any representations made by the signers of the petition as to their ownership or frontage, but had a full examination made as to these matters by their own engineer, and relied on his report.</p>

<p>1. Where a plaintiff commenced an action to set aside a conveyance as fraudulent against the creditors of the vendor, and publishes, in conformity with section 6344, Revised Statutes, a notice to the other creditors, of such suit, and some of such creditors came in by cross-petition setting up their claims, and gave the security required by the section, and others of said creditors did not, and on the trial of the case in the circuit court, to which it had been appealed, leave was given the plaintiff to file an amended petition, setting up that the grantee by reason of the facts alleged became the trustee for all of the creditors of. the grantor, (no notice of which was ever published), and which contention was finally sustained ; does this give the plaintiff and those joining with him and giving bond, preference in the distribution of the fund produced. Quere: We incline to the opinion that it does not,' but it is not necessary notv to decide the question.</p> <p>2. The Supreme Court, by the final judgment rendered in the case, having held that such transaction made the grantee a trustee of the property mortgaged for the equal benefit of all the creditors, of the grantor in proportion to the amount of their respective claims, distribution must be made among them in accordance therewith.</p>

<p>1. Where a general demurrer is filed to an answer of one of two or more defendants, and is overruled by the court, and it appears from the record that the party filing such demurrer thereupon excepted, but declined further to proceed against such defendant, this was a virtual dismissal of the action by the plaintiff against süch defendant, and such plaintiff thereafter can not complain of the action of the court in overruling the demurrer, or dismissing the action as against such defendant.</p> <p>2. In an action to recover damages against a defendant for injuries received by the plaintiff, from falling, without fault on his part, over a structure erected and maintained by the defendant on the sidewalk of one of the streets of the city, as was claimed, in a negligent and careless manner, which negligence was denied by the defendant, it was error for the court to charge the jury “that if the obstruction was erected in a method ordinarily used in such structures, keeping in mind the use of the streets by passengers, then it was constructed in a proper manner, and the defendants were not negligent.”</p> <p>3. Evidence, however, showing that such structure was erected and maintained in the ordinary manner, is admissable. It may raise a strong presumption that there was no negligence in the matter, but it is not conclusive.</p> <p>4. A charge given to the'jury that it was incumbent upon the plaintiff to show to the satisfaction of the jury that the negligence he complains of was the negligence of the defendants, and that he did not contribute to the injury, and was without fault on his part, was erroneous.</p>

<p>Distribution of costs. commissions and attorney's fees in assignment for benefit of creditors among lienholders and general creditors.</p>

<p>1. A nuisance is anything which unlawfully and tortiously does hurt, or causes inconvenience, discomfort, or damage to another.</p> <p>2. A private nuisance may be created by casting either smoke, soot, or gases upon the property of another to his physical discomfort or injury -while in lawful possession thereof, or to the substantial injury of vegetation, trees, or buildings thereon.</p> <p>3. If the injury be to, the property of another, not occupied by the complainant, he will then be remitted to his action at law for damages; but if the injury be to one’s home, and is a substantial physical discomfort, or it seriously affects one’s health, then he is entitled to a perpetual injunction against the continuance of such injury, unless the complainant by his laches or fraud should be estopped.</p> <p>4. If the trial court is clearly satisfied that the injury is continuous, and grievous, and substantially affects the ordinary physical comfort and health of such occupying owner, then perpetual relief in equity should be given, without the intervention of a trial by jury, although the nuisance may be caused by a useful business — otherwise conveniently located.</p>

<p>Injury to employe of street railway company — Defective appliances— Unsafe hame-string for driving horse.</p>

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

<p>Comer lot assessment — JSsloppel — Owner not estopped to claim benefit of Haviland case by having permitted improvement to go on under an ordinance assessing him on the whole length of lot as abutting on street without objecting.</p>

Charles Maier, fifteen years old, was injured by having his foot run over by a street car while in the employ of the street car company, driving a horse attached to a street car, over Erie street bridge in Toledo, and recovered judgment in the court of common pleas against the street car company, for $-, damages for his injury, two former trials having resulted in a disagreement of the jury.

<p>Section 4786, of the Revised Statutes, as amended May-1, 1894, (91 O. L., 190), fixing the bounds or taxing limits of “one mile assessment pikes,” is a law of a general nature, within the meaning of article 2, section 26 of the constitution, and in so far as the second exception in said enactment prescribes a plan or system of bounds or taxing limits in respect to such pikes for counties containing a city of the first grade, second class, different from that provided for other counties of the state, it contravenes said constitutional mandate.</p>

<p>Injury to JR. JR. employe — Day laborer in JR. JR. yard injured — Facts constituting contributory negligence.</p>

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

<p>Where evidence clearly shows negligence on the part of the defendant, hut not clearly contributory negligence of plaintiff it is error to take the case from the jury.</p>

<p>1. In a civil action for the recovery of money, the plaintiff may, on the ground that the defendant is a non-resident of the county, have an attachment against the property of a defendant partnership which partnership was formed for the purpose of doing business and has a place of business in this state, when such partnership and all its members, are non-residents of the county.</p> <p>2. In an attachment against the property of such non-resident partnership, it may be sued in its company name, and if summons cannot be had upon it within the county, and property of defendant has been taken under the order of attachment, service of process may be had and jurisdiction acquired under the provisions of section 6496, Revised Statutes</p> <p>3. Where, in such case, a defendant company, on the day fixed for trial in the published notice, appears, announces its readiness to proceed, demands a jury to try the issues, and aids in selecting the jury, the defendant thereby enters its appearance to the action.</p>

<p>A way for agricultural purposes, created by adverse use, may be subjected to a light swinging gate, reasonably established for the convenience of the owner of the servient estate.</p>

<p>Liability for death of passenger in a collision al a steam and street railway crossing. Failure of the steam railway to lower the safety gates does not relieve the street railway company from the duty of sending a man ahead to see if the crossing can be safely made, as required in 88 Ohio Laws, page 581.</p>

<p>1. A petition alleging, in substance, that the City of Toledo had built a sewer across a certain tract of land belonging to S., and that in doing so, had so carelessly performed the work that the sewer had broken in; that the plaintiff had been employed by S., or taken contract under S., to cut grass upon said land, and while in the performance of that duty it became necessary to cross said land, and that while plaintiff was doing so her team fell into the hole and sustained injuries, etc.</p> <p>Held; Such petition states a good cause of action against the city, and is not within the rule laid down in Burdick v. Cheadle, 26 Ohio St. 393.</p>

<p>A contract for the employment of janitors made by a board of county commissioners, for a period of time extending beyond the time when a change is certain to occur in the persons composing the board, unless made in good faith, in the interest of the public and for a time reasonable under the circumstances, is against public policy, and void.</p>

<p>An assignee in trust for the benefit of creditors, to whom has been assigned personal property which is under attachment, can maintain a suit, in his own name, on the attachment bond after the attachment has been discharged, when the property has been sold by order of court pending proceedings to discharge the attachment.</p>

<p>■ The plaintiff in error seeking to reverse a judgment of court of the common pleas in a prosecution for a misdemeanor should attach a transcript of the complete record to his petition in error, and if he fails to do so the petition in error will be dismissed.</p>

<p>1. An employe, hired for a fixed time, may be dismissed by his employer before the expiration of the time, for unreasonable and willful disobedience, or for habitual or gross neglect of duty, and the employer will not be liable for any part.’of his wages. Thus a man, hired for a year, at $2,000.00 a year, payable in monthly installments of $166.66, was dismissed for gross disobedience to orders and irregularities during the year, in the middle of a month. Held, he could not recover for the part of the month which he served before his dismissal, and the court doubts whether he could recover installments of wages for any prior month that may remain unpaid.</p> <p>2. A general exception to the refusal of the court to give all of the several instructions requested by a party, will not raise the question of the correctness of each of the charges requested, unless all were correct.</p> <p>3. The court doubt the correctness of a charge, that if the employe was discharged without reasonable cause, he was entitled to retain in his hands any money he might have collected until his claim for damages was paid.</p> <p>4. Where such employe, on entering in the employment, loaned to the employer $1,000 00 for a definite period, the employer is not bound to return such loan before such period expires, on wrongfully dismissing such employe, nor is such employe entitled to retain any money collected-for his employer until such loan is repaid. — (Ed. Bulletin).</p>

<p>1, The rule in negligence cases that “if the plaintifl’s own testimony in support of his cause of action, raises the presumption of contributory negligence on his part, the burden rests upon him (o remove that presumption,” means nothing less or other than that the burden of proof is cast upon the plaintiff to show the exercise of ordinary care on his part; and thereafter such burden cannot be made to shift on to the defendant.</p> <p>2. It is not the duty ordinarily of a railroad company to give notice to passengers who are to alight from its oars at a station where the train has stopped, before putting such train in motion, that it is about to start such train. Circumstances may arise which would create such duty, and require such notice, but tbe jury must he first required to find the existence of such circumstances before they can be allowed to find that the failure to give such notice was negligence on part of such company.</p>

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

<p>In an action for personal injuries, where there is evidence tending to prove negligence of one party or the other, the case should be submitted to the jury. The time for the judge of the trial court to act is when the case come» before him on a motion for a new trial; then if the verdict is not sustained by sufficient evidence it is the duty of the court to set it aside.</p>

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

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

<p>1. The power of expulsion from membership and the forfeiture of beneficial interests in a beneficial society, incorporated, under section 3630, Revised Statutes, and exercising the functions of a life and accident insurance company, and holding property to which its members have contributed by assessments, can not be exercised by a committee or subordinate branch of such society, except upon clear and express authority, fairly and reasonably exercised.</p> <p>2. An expulsion by such committee or subordinate branch, effected by oppression or arbitrary means, or without such clear and express authority, is invalid : And mandamus is an appropriate remedy to compel the restoration to membership of a member so expelled.</p>

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

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

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

<p>Libel— What evidence admissible to show malice and effect of injury — Express and implied malice defined — Libelous answer as evidence of malice. — A second publication of a libel is competent evidence to show malicious intent.</p> <p>Where an answer, filed in a libel suit, which was a plea of justification as broad as the libel itself, was on file in court and allowed to remain there for over a year, and permission is then given to withdraw it, the withdrawal would not destroy its competency as evidence as a republication of the libel and as tending to prove malice.</p> <p>In a libel 'suit plaintiff may introduce evidence to prove the falsity of defamatory matter, for the purpose of showing malice or of enhancing his damages.</p> <p>It is proper, in a libel or slander suit, for the plaintiff to show her social relations, to enable the jury to determine the nature and extent of the injury. Social relations and social standing are substantially the same thing.— (Ed. Bulletin.)</p>

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

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

<p>Sill of exceptions — Time within which to be presented to court under statute o/1892. —Under sec. 5298, Rev. Stat. as amended March 22, 1392, (89 Ohio Laws, 124), bills of exceptions must be presented to the court for allowance not more than fifty days from the date of the overruling of a motion for anew trial, and under sec. 5302, the bill must be submitted to opposite counsel for examination not less than ten days before the expiration of said fifty days, unless such opposite counsel consent to the using of a part of- the ten days for the examination of the bill. A bill of exceptions therefore, presented to the court forty-two days after the overruling of the motion for a new trial, without it appearing that the opposite counsel consented to the use of two days of the ten provided for him to examine the bill, is not presented within the time prescribed by the statute.</p> <p>Wheat stored in warehouse with right to warehousemen to buy at market price— Sight of property passes — Plaintiff deposited with a firm of warehouse-men wheat, receiving the following receipt: “New London, Ohio, August 18, 1891. Received in store from A. Gibb, 403 45-60 bushels of wheat, which we store at } cents per bushel per month, and we are to have at the market price when called for, unless we prefer to furnish the grain. Subject to the order of A. Gibb, on the surrender of this receipt and the payment of charges. To be kept insured by us. No. 66. Dean & Lilly.” Said warehousemen kept the wheat in store for plaintiff, subject to his order, for some time, until a receiver was appointed for said firm of warehousemen. Plaintiff afterwards called on said receiver for his wheat, which the receiver refused to deliver. Held, following Chase v. Washburn, 1 Ohio St. 244, that where a warehouseman receives wheat, and by the consent of the Owner, or in accordance with the custom of trade, mixes the wheat in his warehouse, and with the understanding that he is to retain or ship the same for sale on his own account, at pleasure, and, on presentation of the warehouse receipt, is either to pay the market price thereof in money, or re-deliver the wheat, or other wheat in place of it, the transaction is not a bailment, but a sale, and the property passes to the depositary.</p> <p>"While by the receipt set out above, the warehousemen did not assume a direct obligation to purchase the wheat, yet it secured them on option toldo so, for which a consideration was paid in the transaction itself, and which courts will maintain and enforce.</p>

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

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

<p>Fellow-servant — Injury through negligence of — Liability of Master — What will not constitute foreman.</p> <p>1. In a suit by an employe for damages, against the employer for injuries received in the employment, where the averments of the petition and the evidence show that the injury was the result of negligence on the part of another employe, and it does not appear from the evidence that such other employe occupied the position of superiority to the plaintiff, it is proper for the court to charge the jury as matter of law, that plaintiff and such other employe were fellow-servants, and that the only servants for whose negligence defendant would be liable are such as were by defendant placed in authority over the plaintiff with power to control and direct him in his work.</p> <p>2. The fact that such fellow-employe was older than the others, and that the others were in a measure looking up to him, does not constitute him a foreman of the parties, and it is proper for the court to so instruct the jury.</p>

<p>1. Whether, when a direct and explicit denial of each and every allegation of a petition is made in the answer of a defendant, the court, on a motion filed by the plaintiff to strike such answer from the files as false and a sham, may hear evidence on this point, and if satisfied that such is the fact, may properly order such answer stricken from the files on this ground, qucere. We incline to the opinion that sUch practice is not proper, and that the defendant in such case is entitled to a trial on the issues raised hy the pleadings, hy a jury, if it is a case in which a trial by jury is demandable ; and if not, hy the court.</p> <p>2. But if it appears from the answer itself, that the apparently specific denials are designedly evasive or equivocal so as to be literally and technically true, but really false, the court, on motion made therefor, may properly strike it from the files, and put the defendant on terms if he asks to file a new answer.</p> <p>3. Where a judgment is rendered in favor of the indorsee of a promissory note against the maker thereof, and the payee as indorser thereof, and a petition in error is filed hy the maker of said note, against the plaintiff below, to reverse such judgment, the payee and indorsee not having been made a party thereto, and never having been served with process, and not having entered an appearance thereto, and more than one year having now elapsed since the rendition of the judgment sought to he reversed, the petition in error in such case should be stricken from the docket.</p>

<p>1. When on the trial plaintiff asks leave to amend his petition, which is refused, and the bill of exceptions does not show the proposed amendment, the presumption is that the court properly refused leave to amend.</p> <p>2. Where there is a variance between the allegations in the petition and the proof, it is not error to refuse leave to amend and to direct a verdict for the plaintiff, if the facts proved do not show a cause of action.</p> <p>3. The owner of unenclosed land is not liable for the loss of cattle occasioned by their straying thereon and eating of a poisonous substance there deposited as an incident of the ordinary operation of such owner’s lawful business.</p> <p>4. The fact that lands are unenclosed, is not of itself sufficient to bring them within the meaning of the word “common” in the sense in which it is used in section sixly-nine hundred and fifty-eight, of the Bevised Statutes.</p>

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

<p>1. Building in course of construction destroyed by tornado — Loss of contractor — Rights of sub-contractor against owner. — If one is employed to construct an entire building, and continues in possession and ownership of the building until constructed, if destroyed by accident, the destruction js of the contractor’s property, and not that of the owner of the land. But if one is employed to make repairs upon the property of another, or to do only a portion of the work upon a building- in course of construction, and the building, while in course of construction or repair, is destroyed, the property of the owner of the building is destroyed, and the owner must bear the loss.</p> <p>2. When work is done under a contract, on a chattel or building which is not wholly the property of the contractor, or for which he is not wholly accountable, and the chattel or building is destroyed before the completion of the contract, by an inevitable accident, the contractor may recover pro tanto for the work done prior to the destruction of the chattel or building. When work is to be done under a contract upon a building in existence, or to be built by another, it is an implied condition of the contract that the building shall continue in existence, and its destruction without fault of either of the parties, will excuse performance of the contract, and a right- of action accrues to the contractor for the work done.</p>

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

<p>Question of Pleading. — The defendant having failed to set out in a demurrer filed by him that he objected to the petition for that there was a misjoinder of causes of action, is held to have waived the objection, and the demurrer is held to be a general one that the petition did not state facts sufficient to constitute a cause of action.</p>

<p>H. F. P., a resident of Ohio, died October 27, 1891, leaving a last will and testament and three codicils, executed less than ayearbeforehisdeath. He devised and bequeathed to his widow one-half of the net income of his real estate in Ohio, for her life, and the other half he devised and bequeathed to his only issue, an unmarried daughter, for her life. The remainder in said real estate he devised and bequeathed to the Ohio State Uuiversity in fee, an educational institution belonging to the state of Ohio. If his daughter died before his wife, her one-half of •the net rents are to go to the said University, so long as his wife lived. If said charitable devise and bequest should fail, or be held void for any cause, then said remainder was to go in fee simple to his brother’s children. In a codicil, he said his object and intention by the devise and bequest to his brother’s children was, in case he died within a year from the date of his will, and the consequent failure of the devise and bequest to the University, said children should take, but not that they should have the property in any other event. He then authorized and empowered his only daughter and issue to ratify and confirm the devise and bequest to the University, in case of his death within a year, and requested her to do so. About forty days after his death, the daughter, by an instrument duly executed, confirmed said devise in so far as she was able. The daughter died intestate, unmarried and without issue, August 4, 1893. Said will further provided if the devise and bequest to the University should be held void for any other reason than his death within a year, then he gave the property to the state of Ohio. “ I have no doubt, in that event, that the legislature would donate said prODerty to said University.”. Held :</p> <p>I. Said devise and bequest to the University, was void and never took effect.</p> <p>2. Said testator had not the power to devise and bequeath said property to said University in a will executed within a year of his death, nor had said University the power to take said property under said will.</p> <p>3. Said devise and bequest to the University was in contravention of section 5915, and section 20, of the Revised Statutes, and it failed, forthe reason that said testator died within the year.</p> <p>4. The authority given his only daughter to ratify and confirm said devise and bequest to the University was a naked power, and equally within the condemnation of the statute. He could not authorize her to make valid his invalid devise and bequest, nor could he evade the plain meaning and intent of the statute by such an artifice.</p> <p>5. The attempt of the daughter to ratify and confirm the invalid devise and bequest to the University, did not have,the effect to revoke the devise to his brother’s children ; it did not amount to a compliance with his request: it only confirmed its infirmity.</p> <p>6. The power to make wills is not an inherent right, but is governed entirely by statutory law. It may be regulated, limited or taken away entirely by the legislature.</p> <p>7. The reason of the limitation placed upon the power of the testators, under section 5915, to devise or bequeath their property to religious, benevolent, educational, or charitable purposes, only in wills-executed more than a year before their death, was founded upon a broad public policy ; it was for the protection of the testators against the importunities of designing persons, and against themselves, as well as for the protection of their families, and the interest of the state.</p>

<p>1. An intention to dedicate, and an acceptance of the dedication by the municipality, are essential elements in the establishment of a public street in a municipal corporation.</p> <p>2. Where a public street has been established, surveyed, opened and improved as such according to the true width and established lines thereof, and the public, without intention to acquire an increased width for such street, use for a walk a strip outside of one of the unmarked lines of said street, without objection from the owner of the land so used, but without any manifest intention on his part to dedicate such strip for a street, the use by the public will be referred to their right in and to the established? street according to' its true lines, and will not vest in the publie any title to such strip, although such use may continue for a period of twenty-one years or longer.</p> <p>3. The inhabitants of a municipal corporation can not, by merely traveling across uninclosed land adjoining an open street, for any period of time, without objection from the owner of such land, impose upon the land so used the easement of a street, or upon the corporate authorities the burden of its maintenance as a street.</p>

<p>1. Where, after the giving by the court of a charge to the jury, an exception was taken to the failure of the court to charge as to certain matters, but it appears that no request was made that it be done, an assignment of error as to this will not avail the party excepting. And where no exceptions were taken at the time to any part of the charge as given, and no bill of exceptions was taken containing all of the evidence offered at the trial, the judgment should not be reversed for any error appearing in such charge not excepted to. This should only be done, where from a consideration of such charge and the evidence in the case, it is manifest to the reviewing court that such charge as given was erroneous and prejudicial to’the party, and that injustice was done in the case.</p> <p>2. The doctrine of imputed negligence does not exist in this state, and the action of the trial court in refusing to give the special charge No. 2, asked for by the plaintiff below, and hereinafter set out in full, was erroneous and prejudicial to him.</p> <p>3. Special charge No, 3, as asked for by plaintiff below, was good law and applicable to the case, and the trial court was not justified in refusing to give it to the jury on the ground that there was no evidence tending to show that the plaintiff’s intestate was lawfully riding on the dray at the time he was killed.</p> <p>4. The care and prudence which are required to be used and exercised in a given case, where ordinary care is required, is that of persons of ordinary prudence, in like circumstances.</p> <p>5. The court erred in giving to the jury the 5th special charge asked by the defendant company.</p>

<p>1. Courts will take notice of whatever ought to be generally known within the limits of their jurisdiction.</p> <p>2. In construing a contract, effect should be given to all its language.</p> <p>3. A grant — convoying all the gas or oil under certain premises — with an exception and reservation to the grantee of a certain part of the minerals produced, and containing a clause: “All wells to be drilled on said land are to be drilled within three years, ’ ’ and limiting the grant to a term of years, is a lease.</p> <p>4. Such lease is governed and eontroled by rules of law, applicable to leases of land for general tillage.</p> <p>5. The clause “All wells to be drilled on said land are to be drilled within three years, ’ ’ after the expiration of three years, it is a mutual covenant; before the expiration of three years, it is a covenant obligatory alone upon the lessee.</p> <p>6. The lessee’s covenant must be performed honestly, fairly, reasonably and in good faith.</p> <p>7. Equity will grant relief at the instance of the lessor for a violation of the provisions of the lease.</p> <p>The Ohio Oil Company v. Thos. C. Kelley et al.</p>

<p>1. The statutes of Ohio authorize a municipal corporation to require a R. R, Co. operating a railroad within its limits, to light its tracks at street intersections, and, on proper notice of such requirement, if the railroad .fail to do so within twenty days, the municipality may procure the lighting to bo done, pay the bill therefor, and sue the railroad company for the expense.</p> <p>2. The statute does not require the municipality to erect lamps and itself furnish the light in such case, but it may employ others to do the lighting.</p> <p>3. The statute does not prescribe the kind of light to be used, and is not violated if electric lights are required by the municipal corporation.</p>

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

<p>Error to the Court of Common Pleas of Mahoning Comity.</p>

<p>In 1886, six joint owners of an entire tract of land, leased the same for a term of five years, (for oil and gas purposes only) and as much longer as oil or gas should be found in paying quantities, at a yearly rental of 8100.00 for each gas producing well. During the term, D. purchased and became the sole owner of about 190 acres of said tract. Nine gas producing wells were drilled on the entire tract, two of which are on the land purchased by D., one of which was exhausted and abandoned in 1892, and the other was worthless when suit was commenced. The rental was paid to D. — from the time she became the owner — on the one until it was abandoned, and the other until April, 1893, and it was tendered to her each year thereafter and refused.</p> <p>Held: That where the lessee knew of and admitted the separate ownership of D., and recognized and ratified the same by payment and tender of payment to her of rentals for the two wells on her separate tract; and further, where at the beginning of the action, gas is no longer found on the same in paying quantities, the lease by its terms, as to D.’s lands, has expired. Injunction refused.</p>

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

Mandamus. Tooker contemplated the erection of a building iix the city ■ of Cincinnati and the plans showed a bay window projecting •out into the street some three feet. The building inspector •declined to give liim a permit, for tlie reason that the window would be an obstruction, and Tooker thereupon brought an action in mandamus to compel him to issue the permit-.

Tlie contracts in question in this case are four in number, and are exactly alike, save in dates, names of lessors, and descriptions of lands; and with tliese exceptions are like tlie one following: ‘'Agreement, made and entered iuto this 15th day of April, A. D.. 1861,by and between Mary I. Talbott, John, diaries, and Ebb Talbott, of tlie Comity of Monroe, and State of Oliio, party of the first part, and James C. Teiment, of Bradford. Pa., party of tlie second part.

<p>When in a proceeding to locate a ditch, the auditor finds in summing-up the various items which the commmissioners had authorized to be levied as part of the cost of establishing such ditch, that the sum total is larger than the levy authorized, he has no authority to add the excess of cost found to the levy as authorized and place such increased levy on the tax duplicate, and such an assessment would be enjoined and set aside.</p> <p>But the curative provisions of secs. 4490 and 4491, Rev. Stat., will apply to such a case, and where it appears that the county commissioners intended to assess the entire cost of establishing the ditch upon the land owners, and by an error the record fails to show that the whole of that cost should be assessed on them, the court may order on the final hearing, that the entire levy as corrected shall remain on the tax duplicate.</p>

<p>1. In an action brought under the statute to recover the gross amount of taxes, interest and penalties as assessed on the tax duplicate against certain real estate, a part of which amount is admitted to be valid, the defendant must specifically set forth in his answer what amount he claims to be illegal, and the facts constituting such illegality, or the answer will constitute no defense to any part of the sum sued for.</p> <p>2. A levy made pursuant to a valid statute authorizing it for a special purpose is legal, although by such special levy the total rate of taxation exceeds the maximum amount fixed by a general statute.</p> <p>3. An assessment under sec. 2310-2314 is not illegal, because the city had already made a general levy for street cleaning purposes. A special levy under the sections named does not relieve the property of the district accepting these provisions from general city taxation.</p>

<p>Attorney’s fees where the attorney dies before completing work he had undertaken to do for a specified sum.</p> <p>If the fee had been paid in advance, the client may recover the unearned portion of the fee.</p>

<p>1. The judgment of a trial court will not be reversed upon the claim that one of the jurors was disqualified by reason of deafness, unless the evidence in support of such disqualification is clear. And espéeially where such juror was orally examined upon the motion for new trial by the judge who overruled the. motion.</p> <p>2. Where the natural inference to be drawn from the misconduct of a juror is prejudicial to the party complaining, prejudice will be presumed in the absence of a showing to the contrary.</p> <p>3. Before a new trial will be granted for the misconduct of a juror, such misconduct should be clearly shown.</p>

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

<p>When the debtor of a deceased person is appointed administrator, the debt should be included in the inventory, and becomes assets in the hands of the administrator, for which he is accountable as such; but, on exception to his final account, claiming that he has omitted to charge himself with the amount of sych debt as so __much money in his hands, if it appear to the court that he was insolvent at the time of his appointment, and has continued so during the whole period of his administratorship, he should not be held accountable for the amount of such debt.</p>

<p>Sec. 3085, Rev. Stat., passed March 28, 1894, Ohio U. 91, page 100, is in violation of sec. 5, art. 9; sec. 7, art. 10; sec. 2, art. 2, of the Constitution, and is therefore void.</p>

<p>1. The defendant was charged with cutting timber upon land without leave. Upon the trial the prosecutor offered to prove that prior to the alleged acts set out in the indictment the prisoner had agreed before the probate court, that he would not go upon the land to cut timber. The court of common pleas permitted the evidence to be given. Held, that this was not error.</p> <p>2. The counsel for the defendant, upon the trial of this ease, sharply attacked the motives of the prosecutor in carrying on the suit. The prosecutor, in arguing to the jury, said the indictment had been returned by as good a grand jury as ever sat in the conuty, and pointing to the name of the foreman on the back of the indictment, said he was a good citizen, etc. Held, that this was no ground for reversing the judgment in the case.</p>

<p>Upon the trial of an action brought by a woman to recover damages for an indecent assault, alleged to have been committed upon her by the defendant, evidence offered by him tending to show that he was, at the date of the alleged, assault, a man of good general character, is not admissible; nor is it competent in such action for the defendant to show that at the time of such alleged assault the general reputation of the plaintiff for chastity was bad.</p>

<p>C. and others made an assignment of certain real estate to S. for the benefit of their creditors, which deed was filed by S. in the probate court, and thereupon S., with L. and others executed in said court a bond for the faithful performance of his duties by such assignee, who thereupon entered upon the execution of his duties under said trust. Afterwards the same assignors executed to said S. two other deeds for other parcels of real estate on the ■ same trusts, which deeds were also filed in said court, but no bond was given or required of said assignee, for the faithful performance of his duties under the same; and from that time forward the matter was dealt with in the probate court, as if a single trust was being administered, and orders made for the sale of the real estate, conveyed by the second and third deed as if all had been conveyed by the first deed. An account was afterwards filed by the assignee, and he thereby purported to charge himself with all the moneys received from the sale of the real estate conveyed by the three deeds and to credit himself with all payments claimed to have been made by him. Exceptions were filed to this account by the assignors, and on the hearing the probate court found thai there was a certain sum in the hands qf the assignee due to the assignors, which sum he was ordered to pay to them: The as signee having failed to do this, an action was commenced in the Superior Court by the assignors against the obligors on the bond to recover the amount found by the court to bo due to the said assignors. On these facts appearing, the court gave judgment for the defendants.</p> <p>Held: That even if it appeared that the throe trusts were consolidated with the consent of the assignors, (which does not satisfactorily appear,) the judgment rendered in the probate court, (which remains in full force and effect), in the absence of fraud or col lusion in the obtaining of the same, is conclusive and binding on the assignee and his sureties, and the judgment of the Superior Court should be reversed.</p>

The original petition was filed in the court of common pleas of that county on the first day of April, 1895, at which time the probate judge allowed a temporary injunction in accordance with the prayer of the petition. On the fourth day of April an amended petition was filed, to which an answer was afterwards filed, and also a motion to dissolve the temporary injunction.

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

<p> It is not error where the defendant in a criminal case fails to take the stand and testify, to charge the jury that such failure raises no presumption of guilt against him. </p>

<p> Method of procedure where an attempt is made to elect a director, and it is denied that there is a vacancy in the board. </p>

<p>Action for services as house-keeper. — In a petition asking compensation for services as a housekeeper, an averment of services rendered for another inmate of defendant’s household is not improper, and evidence as to this fact is competent.</p> <p>Condition of house and premises as affecting value of services.— It is competent as affecting the value of the services rendered to show miserable condition and bad accommodations of 'house.-</p> <p>Defendant’s declaration as to compensation-intended to be made by him. — Evidence of declarations of defendant as to the compen» sation he intended to give her, is admissible to show value of services.</p> <p>Excessive verdict. — The verdict under the facts of the case not held excessive.</p>

<p>1. To entitle one street rrilway company to an injunction to prevent the operation of another company’s cars over tracks in the street in which it has appropriated a right of use, it must appear not only that the plaintiff was not made a party to the appropriation proceedings, but also that it has a real and abiding interest in the tracks.</p> <p>2. The mere crossing over a street railway track by the cars of another company will not authorize an injunction to stop such crossing. Such crossing is a burden incident to the right to operate a street railway in a pulbic street.</p> <p>3. Where a street railway company transfers its railway property to another company to be operated, and the latter company rebu ilds the tracks, so that it becomes the practical owner of them, a court of equity will not enjoin the operation of the cars of a third company over such tracks, the right to use the tracks having been obtained under appropriation proceedings duly brought against the company so in possession.</p>

<p>Nuisance — Easement—Drain crossing properly which has been subdivided and sold to different parties since drain was laid — Rights of subsequent purchasers.</p>

<p>Aation by employe against employer for damages for injury by operating a machine, charged not to be supplied with sufficient appliances to be worked with safety — What evidence admissible. — In the trial of such a case, two classes of evidence are admissible; that which relates to the fact, and that which is given by men having special experience in questions of science, or skill with regard to subjects about which men’ of ordinary observation would be expected to have but little, if any, knowledge. Witnesses can not be permitted to testify as to the state of another man’s mind, or as to the state of his knowledge</p> <p>Duty of employer in furnishing machinery. — An employer is not bound to furnish the latest appliances or the newest approved style of machinery, but he must use ordinary care to select machinery that is fit and safe for the purpose to be accomplished.</p> <p>Duty of e’mployer to give instructions to employe about to work on dangerous machinery. — The duty of an employer to give instructions to one about to work on dangerous machinery exists only when there are dangers in the employment of which he has or ought to have knowledge, and which he has reason to believe his employe does not know and will not discover in time to protect himself from injury. In the early cases the doctrine was applied in favor of boys. In favor of adults it should bo applied with great caution. Where the elements of the danger are obvious to a person of average intelligence, using due care, it would be unreasonable to require an employer to warn his employe to avoid dangers which ordinary prudence ought to make him avoid without warning.</p>

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

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

<p>1. Affirmative testimony of move weight than negative testimony.— Affirmative "testimony is entitled to more weight than that which states that the witness did not see or did not hear.</p> <p>2. Street car colliding with wagon on track — Excessive, speed. — This wagon was in"plain sight of the motorman on the car. He came up this grade'towards this bridge at a speed which, from his own story, was so rapid that when he saw that the wagon was not going to get out of the track he could not stop the car in time to avoid a collision. We think it is^ a fair question to submit to the jury, whether the railroad company through its mortorman was negligent]when he did not stop the car under these circumstances in time to avoid a collision with a vehicle in plain sight in front of it.</p> <p>3. Excessive verdict — S2,9v0—Facts.—Facts under which a verdict for $2,950 will not be held excessive.</p>

<p>Section 3184 of the Revised Statutes of Ohio, as amended on the 13th day of April, 1894, and found in Vol. 91, page 135, of the Ohio Laws, known as the Mechanic’s Lien Law, is in violation of section 1 and 2 of the Bill of Rights. Hence, is unconstitutional and void.</p>

<p>1. A general manager of a corporation engaged in the business of wholesaling food supplies, having the supervision, direction and control of its business, who, in conducting said business, keeps in stock and sells, through traveling salesmen employed for the purpose, an adulterated article of food, is a principal offender in violating the provisions of the statute prohibiting the manufacture and sale of impure and adulterated articles of food, and may be prosecuted for such offense in any county of the state where a sale is made.</p> <p>2. Under the jjrovisions of said statute, guilty knowledge of adulteration is not essential. Vendors of foods are charged with knowledge of their purity and in prosecutions for sales of adulterated foods ignorance of the fact of adulteration is" not a defense.</p>

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