Volume 9 — Ohio Circuit Decisions

<p>CREDITORS.</p> <p>Judgment Note by Insolvent Corporation Preferring Creditors — Transfer of Accounts — Not Unlawful, when.</p> <p>It is neither unlawful nor wrongful for a foreign corporation, although insolvent and in the hands of a receiver, to make and deliver to a creditor residing in this state, a judgment note with intent that judgment thereon shall he taken in another state, and property there situated appropriated to its payment in accordance with the laws of the state where the property is found. Nor does the assignment by a foreign corporation to a creditor residing in this state, of the accounts which it has and owns, and which has its situs in the home of the corporation, fall within sec. 6344, Rev. Stat., or within Rouse v. Bank, 46 O. S., 493.</p>

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

<p>NEGLIGENCE.</p> <p>1. Brakeman Empdoyed on a Certain Run for Two Years Presumed to-Know Dangers Incident to Passing Under Bridge.</p> <p>A brakeman who has been employed on freight train on a certain run for a period of two years and obliged, each day, to set the brakes on such trains,, , which were frequently made up of cars varying in height, in the vicinity of a certain bridge, not high enough to permit a man to stand erect upon some of' the cars, must be presumed to have been cognizant of the danger incident to. such service.</p> <p>2. Raidway Company not Bound to make Measurements to Ascertain if Men Coudd Pass Under the Bridge.</p> <p>An instruction' that the railway company was in duty bound to ascertain whether the cars in its trains would permit of a safe passage for brakemen. under a bridge, before running its trains, imposes upon the railway^company-the duty of making actual measurements to ascertain the intervening space and to determine whether the tallest man in their employ could pass in art erect posture in safety under the bridge and is erroneous.</p> <p>3. Whether Deceased was Knocked or Sdipped off the Train, not a Question for Medicad Expert.</p> <p>A question as to the manner in which deceased met his death, that is. whether he was knocked off the train or slipped off, is not a question for a, medical expert to answer.</p>

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

<p>NEGLIGENCE.</p> <p>1. Brakeman not Required to Inspect Appliances where Inspectors are Provided.</p> <p>It cannot be expected, even under rules or contract requiring employees to inspect appliances and promptly report defects, that the brakeman of a ' train made up in a yard where inspectors are provided, should be required to make a careful investigation of the train upon which he is about to be sent out.</p> <p>■ 2. Inspectors are Fellow Servants oe Brakemen but Company not Excused for Negligence, When.</p> <p>And although such inspectors are fellow servants of the brakemen, if it appears that the time allowed for an inspection of the train was too short to permit an inspection of the brakes, and that the superior officers were aware of the manner in which such inspection was made, and took no steps to reform the method, the company is not excused.</p> <p>3. Proof that use of Hand Brake was Result of Defect in Steam Brake Excluded.</p> <p>Testimony tending to prove that the use of a hand brake was the result of the steam brake being out of order, is incompetent as the defect in the steambrake did not contribute to the injury.</p>

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

<p>RAILROAD COMPANIES.</p> <p>Amount op Liability por Taking Property or Changing Grade not Limited by Liability op Municipality,</p> <p>A railroad company should not be permitted to shelter itself from a liability to compensate a private property owner for damages which he has sustained,, by reason of the acts of the railway company in taking property or changing the grade of a street, upon the theory that a city would not be -liable to the extent which a private corporation might ordinarily be liable, or so limiting the amount of the recovery.</p>

<p>INJUNCTION.</p> <p>■Circuit Court has no Jurisdiction or Power to Control Publication of Legal Notice by Injunction or Mandamus.</p> <p>The circuit court has no original jurisdiction to grant an order directing the sheriff to publish a notice of sale in any particular newspaper, or to prevent him from publishing it in any paper he may have selected. Such an order, though applied for as a mandamus, would amount to an injunction, over which the circuit court, as stated, has no jurisdiction. If any court has authority to co-trol the publication of such matters it is the common pleas, from which the order of sale is issued.</p>

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

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

<p>Error to the Court of Common Pleas of Eucas county.</p>

<p>PROMISSORY NOTES.</p> <p>1. Attempted Alteration oe a Note, to make it Negotiable, does not Invalidate, When.</p> <p>An attempted alteration of a non-negotiable note by insertion of the words “or Oder" thus clumsily done, and inserted in the wrong place, does not make the instrument negotiable, and is not, therefore, such an alteration as renders the note invalid.</p> <p>2. And when Enforced Between Original Parties is as ie no Attempt to Alter had been Made.</p> <p>And where such note, never having been negotiated, is sought to be enforced between the original parties, it is as if there had never been any attempt to change it.</p>

<p>BUILDING AND LOAN COMPANIES.</p> <p>1. Borrowing Members may make Reasonabee Compromise as to Their Diabieity ip it does not Amount to Inequaeity or Fraud on Others.</p> <p>A borrowing member or a non-borrowing member of a building and loan company may make any reasonable compromise as to his liability, either us a borrower or as a subscriber to the stock of the corporation, but the right as declared by the Ohio Supreme Court 'does not permit him to do that which would be a gross inequality to or a fraud on his co-members.</p> <p>2. Rule that Inability oe Borrowing Members is Measured by Right to Share in Profits — Unequal and Fraudulent.</p> <p>A rule that the liability of borrowing members of a building and loan association to contribute in payment of its debts is measured by their right to share in the profits of the concern, and that they can be assessed for losses no further than the amount standing to their credit in the current year which witnesses their assessments, amounts to gross inequality and fraud and is inimical to the law of Ohio governing building and Joan companies.</p> <p>3. Basis of Assessment is Dues and Babnings Standing to Credit of Stock.</p> <p>The proper basis of assessment, to pay debts of an insolvent building and loan company, both in the case of borrower and non-borrower, is the dues and earnings wh ch should stand to the credit of his stock.</p>

<p>ASSESSMENTS.</p> <p>1. Under Sec. 2271, Rev. Stat., Council has Power to Assess Property Within Assessment District Whether Abutting or Not.</p> <p>Under sec. 2271, Rev. Stat., requiring assessments to be made by the front foot on abutting lots or lands to the ordinary depth of lots in the vicinity, the village of Norwood, in Hamilton county, has power to determine what property shall be assessed for expenses of an improvement in proceedings to straighten and widen a street, and having provided that assessment should be to the depth of Í50 feet, has power to assess all land within the district whether it abuts or does not abut upon the improvement.</p> <p>2. Error in Assessment Ordinance does not Invalidate Improvement Ordinance.</p> <p>The fact that the council in mapping out the assessing district did not take into consideration the fact that three persons owned certain property, but proceeded in making out the assessment as though one person owned it, does not affect the improvement ordinance. It is a mere irregularity that may be corrected in the assessing ordinance.</p> <p>3. Same — As to Assessment in Name oe One Property Belonging to Another.</p> <p>The fact that property assessed in the name of one person belongs to another comes within the rule last above stated and can be corrected.</p>

<p>NEGLIGENCE — VERDICTS—EVIDENCE.</p> <p>1. Pleading — Stating two Causes oe Injury as Combined — Case Proceeding upon One.</p> <p>A petition alleging negligence of a railway company in the construction and maintenance of a railway crossing, and in the action of the conductor of a freight train in moving the cars, over said crossing, while plaintiff, a brakeman, was engaged in uncoupling them, asserting that both together, as one series of facts, conspired to the accident, assert nothing repugnant or contradictory. And where the special findings of the jury take the allegations as to the defective crossing out of the case, the petition still alleges negligence which will support the action.</p> <p>2. Finding that Injury was from Combined Negligence of Superior and Fellow-Servant with Verdict for Plaintiff, Sustained.</p> <p>A verdict, in an action against a railway company for personal injuries, finding that plaintiff, a brakeman, was injured through the combined negligence of the conductor, a superior, and the engineer, a fellow-servant, is not contrary to law, where the evidence shows that the engineer simply acted in obedience to the direction of the conductor, and is not inconsistent with a general verdict for the plaintiff.</p> <p>3. Verdict which was not against the Weight of Evidence.</p> <p>A verdict for plaintiff, in such action, where the conductor of a freight train admits that he gave a “kick signal,” when he received from the brakeman engaged in uncoupling cars, only a “slack signal,” which testimony is corroborated by that of the plaintiff, the brakeman who was injured, and only controverted by the engineer who testifies that the brakeman, and not the con- ■ ductor, gave the “kick signal,” is not against the weight of the evidence.</p> <p>4. Evidence, Opinion of Experts — Error to Permit Witnesses to State How Certain Matters affect issues.</p> <p>The opinion of men who have had experience and have knowledge of the handling and the running and movement of trains, and of the duties of those employed in such work, may be given to the jury, where the case involves the duty, under certain circumstances, of one who is in control of trains or assisting in the duties that go with its management. But it is error to permit such witnesses to be called upon or to give opinions as to what relation certain facts bear to the controversy between the parties, and how they affect the issues on trial to the jury.</p> <p>5. Circuit Court Declines to Consider Excessiveness oe Verdict as Ground eor Reversal.</p> <p>In an action for personal injuries the circuit court declines to consider an assignment of error that a verdict for $15,000 was excfessive as one of the grounds for reversal, inasmuch as a remittitur would, in any event, equalize the recovery to the injury sustained.</p>

<p>COMMISSIONERS’ REPORTS.</p> <p>1. Act Supplementing Sec. 917, Rev. Stat., Providing eor Publication in Printed Folders Repealed by the Daw of 1896.</p> <p>The supplement to sec. 917, Rev. Stat., 91 O. D., 376, providing that, in counties having a population of not less than 21,720 and not more than 21,730, the report of the county commissioners shall be printed on folding circulars, is no longer in .force, having been repealed by implication by the act of May 17, 1896, 92 O. D., 188, which is now the whole law regulating the publication of the commissioners’ report.</p> <p>2, Said Supplemental Section was in Conflict with Sec. 26, Art. 2 of the Constitution.</p> <p>The court is also of the opinion that the supplemental section above referred to was in conflict with sec. 26, art. 2 of the constitution, which requires that all laws of a general nature shall have uniform operation throughout the state.</p>

<p>TAXATION.</p> <p>1. Board of Equalization may Change Valuation of Property any One Year in the Ten — Change must be upon Changed Condition of Property.</p> <p>The annual board of equalization has the power to change the valuation in any one year of the ten and is not confined to the decennial appraisement. Such power, however, is not an arbitrary one, and when a change is made it must he upon a changed condition of the property.</p> <p>2. Property Owner has Burden oe Proving Condition oe Property has not Changed.</p> <p>Where a change in valuation is made by such board the burden of proving that the condition of the property has not changed since the last appraisement is upon the property owner.</p> <p>3. Where Changed Conditions are Shown, Change in Valuation is within Discretion oe Board.</p> <p>Where changed conditions are shown,' the change in valuation is within the discretion of the board and cannot be collaterally attacked.</p> <p>4. Where Conditions are not Changed Former Appraisement is to be Taken.</p> <p>In the event of a showing that the condition of the property has not changed, the prior appraisement is to be taken as the true and ascertained value of the property.</p> <p>5. Auditor oe State may Correct Clerical Errors but can only Correct Fundamental Errors on Appeal from Board of Revision.</p> <p>Neither sec. 2800 nor sec. 167, Rev. Stat., vests in the auditor of state original, arbitrary and unrestricted power to change the valuation of property. He has original power to correct whatare known as clerical errors, but his only authority to correct a fundamental error in the valuation of property is upon appeal from the action of the board of revision, under sec. 2805, Rev. Stat. •</p> <p>O. County Auditor may Add to' Duplicate Reduced by State Auditor’s Mistake.</p> <p>A county auditor is authorized to add to the duplicate the reduction which has been ordered by mistake of law by the state auditor.</p>

<p>Krror to the Court of Common Pleaá of Clermont county.</p>

<p>STOPPAGE IN TRANSITU.</p> <p>1. Stoppage in Transitu — When Right to Appeies.</p> <p>The general rule is, that the vendor of goods on credit, may exercise the right of stoppage in transitu on the insolvency of the vendee at any time before there is an actual or constructive delivery of the goods to the vendee.</p> <p>2. Same — Exception—Sate to Bona Fide Purchaser.</p> <p>An exception to this rule is, when, during the transit the vendee transfers the bill of lading to a bona fide purchaser for value. By such transfer the right of stoppage is terminated.</p> <p>3. Same — Sate eor Pre-existing Debt.</p> <p>When, before the delivery of the goods to the vendee or his agent, he sells them to the carrier in payment of a pre-exist'ing debt, the carrier is not a bona fide purchaser for value, and the right of stoppage in transitu still remains in the vendor.</p>

<p>DOWER.</p> <p>1. Forfeited Rand Sate Divests Wife or Widow of Dower.</p> <p>Under the statutes of Ohio, where land has been duly forfeited to the state for the non-payment of the tax, interest and penalty thereon, and is afterwards legally sold at the sale of forfeited lands during the life of the owner, such sale operates to divest the widow of the owner thereof at the time such sale, of any dower right she might haye had therein, inchoate, or perfect, and the purchaser at such sale takes it free from any such right of the widow.</p> <p>2. Subsequent Purchase of Same by Heirs does not Reinvest Widow with Dower.</p> <p>A subsequent purchase of such real estate from the purchaser at such tax sale (as distinguished from a redemption thereof), by the heirs at law of the person who owned the same at the time of the sale thereof for taxes, does not operate to reinvest the widow of such owner with the dower interest therein which she had before lost, by reason of such tax sale.</p>

The defendant answered alleging that since the beginning of the action he and complainant were married and are now husband and wife. A demurrer to the answer- was overruled. The complainant by reply admitted the marriage but alleged that the defendant refused to acknowledge that he was the father of the child, and denied that he was its father, and that he had abandoned the mother and child immediately upon marriage and gone to another state where he now resides.

<p>GAS AND OIL LEASE — ERROR—RELEASE.</p> <p>1. Rule as to Preserving Error.</p> <p>In an action on a gas and oil lease in which plaintiff, in rebuttal, seeks to introduce testimony regarding a certain custom, which is objected to and sustained by the court over plaintiff’s exception : Held,, that the same rules as to preserving an error apply to evidence given in rebuttal as in evidence given in chief,'and, therefore, plaintiff should have offered to show what he expected to prove by such witness, and failing to do so the court will not regard it as prejudicial what that custom was or was not, that was offered to be shown.</p> <p>2. Execution oe a Release.</p> <p>Where plaintiffs executed a gas and oil lease to defendants, which by one of its terms stipulated that the defendants were to pay plaintiffs 5100.00 for each additional location of a well, after the first well, and subsequently defendants agreed to drill three additional wells within one year from the completion of the third well mentioned in the lease, in consideration that plaintiffs had agreed and did relinquish all “location money” stipulated in the lease : Held. that this release was an absolute release of the “location money” and that it constituted a new contract founded upon a sufficient consideration.</p> <p>3. Right to Recover eor Value of Oil Used in Operating Oil Wells.</p> <p>Where the provisions of a gas and oil lease provide that plaintiffs are to receive one-sixth of all the oil produced : Held, that in an action for the recovery of the value of the oil used by defendants in operating the wells, plaintiffs would be entitled to recover for only one-sixth of the gross amount of the oil used by defendants.</p>

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

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

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

<p>DEDICATION.</p> <p>Use oe Alley, Opened eor Private Use, eor 21 Years Under a- Common Law Dedication. "</p> <p>Tbe use of land for an alley, opened by the owner of property for his private use, and for his tenants, for a period of 21 years, does not constitute a common law dedication, although other persons were permitted to use the alley and although purchasers of property were induced to believe the owner had dedicated the alley. He is not, therefore, estopped from closing it up.</p>

<p>Appeal from the Court of Common Pleas of Rucas county.</p>

<p>Appeal from the Court of Common Pleas of Tucas county.</p>

<p>“BLACKLISTING” RAILWAY EMPLOYEES.</p> <p>1. Duty of Railroad Company to give a “Clearance” to Discharged Employee, and Effect of Refusal to do so.</p> <p>Where railroad companies mutually agree that they will not employ any workingmen who may have been discharged from or may have quit the service of any of the companies, parties to such agreement, unless the applicant shall present a consent from the parties for whom he last worked, or a “clearance” showing that he did not engage in a certain strike, it becomes the duty of a company, party to such agreement, upon the discharge of an employee who did not engage in such strike, upon his application therefor, to furnish to him evidence of its consent to his employment by such other company, or a “clearance” card showing that he did not engage in such strike; and a failure to do so, whereby such person is prevented from obtaining employment with such other company, constitutes an actionable wrong, and compensatory damage maybe recovered therefor; and if such'consent or letter shall be withheld maliciously, exemplary damages may be awarded.</p> <p>2. Withholding Clearance Card, Amounts to Proscription of Employee.</p> <p>Such agreement amounts to a proscription of all workingmen who do not hold such evidence of consent, or such clearance card, and the refusal of a company to give a consent or a card amounts to a declaration to the other companies to which any man may apply for employment, that he is one of the proscribed class.</p> <p>3. When Refusal to give “Clearance” card, Amounts to a False Representation.</p> <p>Where the arrangement between the companies is such that failing to give evidence of consent or .a clearance,card, amounts to a representation that the person to whom it is refused belongs to a class not to be employed, whereas in fact, such person does not belong to that class, the representation is false, wrongful and actionable.</p> <p>4. Such Refusal is Actionable, if Prevents Person Prom Obtaining Employment.</p> <p>The wrong is similar in nature to slander of one respecting his avocation or calling. Such false representation need not, however, amount to slanderous utterances. It is sufficient if their effect is to prevent a person from obtaining employment.</p>

<p>WAIVER.</p> <p>Court Refuses to Disturb Verdict When a Party May Have a Second Chance to Set Up a Harsh Defense.</p> <p>The doctrine of waiver is a harsh ona and will not be applied, nor will a judgment, as against the weight of evidence, be disturbed, unless manifestly wrong, in order to give a party a second chance to set up a harsh and unconscionable defense.</p>

<p>BOARD OF EQUALIZATION.</p> <p>1. Board op Equalization may act upon its own Motion, Without Complaint.</p> <p>Complaint is not a condition precedent to action by the board of equalization in making additions to tax valuations. It may act upon complaint or upon its own motion from knowledge.</p> <p>2. Conditional Action op such Board, when not void.</p> <p>Action by such board conditioned upon expected ruling of the Supreme Court relative to prior action of the board is irregular, but, when not prejudicial to owner, is not void.</p> <p>3. Absence op one member does not Render Action Void.</p> <p>Such board being a permanent one the absence of one member when additions are made, does not render the action void.</p>

<p>APPEAL.</p> <p>1. Priority of Liens — True Date of Decree is Date of its Entry Upon THE JOURNAE.</p> <p>Where, in an action by an administrator to sell real estate, in which several lien holders are made parties, and there is a contest'as to priorities, and the matter is submitted and taken under advisement by the probate court, until a certain day, when the priority of liens is orally announced, without an accurate or exactfinding of amounts, and the court directs counsel to prepare an entry showing amounts, and a full finding and decree, which is done, and . entered upon the journal, the true date ot such finding and decree is the date of its entry upon the journal and a party thereto may perfect his appeal within the statutory time thereafter. Mandamus to compel probate judge to enter such finding and decree as of date when priorities were orally announced refused.</p>

<p>Motion to dismiss the appeal of the trustee from a judgment by the Superior Court.</p>

<p>TAXATION.</p> <p>1. Addition to Tax Valuations can not be Made without Notice Except for New Structures.</p> <p>Additions to tne taxable valuation of property can not be made without notice to the parties except in the case of new structures. Sec. 2807 Rev. Stat.</p> <p>2. Changes within Original Limits of the Building — Not New Structures.</p> <p>Add tions to the height or depth of a building, or changes within th^ original limits of the building, are merely alterations and do not constitute new structures within Sec. 2753 Rev. Stat.</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>APPEAL BONDS.</p> <p>1. Object and Purpose of Codes of Civil Procedure.</p> <p>It is the object and purpose of the codes of civil procedure, both in justices courts, and courts of superior jurisdiction, to allow amendments of pleadings, process or proceedings to be made in furtherance of justice and all technical mistakes to be thus corrected.</p> <p>2. Action Against Two Defendants. — Error in Appeal Bond. — Amendment Allowed.</p> <p>Under sec. 6595, Rev. Stat., where, in an action before a justice of the peace, against two defendants, as principal and surety, it was the intention of plaintiff, in appealing, to appeal the whole case, but, by mistake, the bond as given recites only that plaintiff appeals from the judgment against the principal, and is insufficient in form to appeal the whole case, the appellate court, into which, by virtue of the statute, it has been certified, has full power to allow a new undertaking to be filed to correct the mistake.</p>

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

This is a suit on the part of owners of property abutting on Michigan avenue, Hyde Park, to enjoin the collection of a cement sidewalk assessment.

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

<p>CLASSIFICATION OF CITIES.</p> <p>City of Newark is of the Third Grade, Second Class.</p> <p>Under the .acts of February 6th and March 13, 1894, and the admitted fact that the city of Newark, Ohio, by the census of 1890, had a population of between ten and twenty thousand, said place became a city of t e third grade, second class.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>City Liable for Injuries Resulting from Leaving Bridge, being Swept away, Unguarded, Though it is the Duty of County Commissioners to Build it.</p> <p>Although it is the duty of the county commissioners to build bridges on state or county roads, or any of those denominated in the statutes, passing through a city not entitled to a portion of the bridge fund of the county, and forming part of a street (There is uo direct authority anywhere that county commissioners have the right to build bridges on streets simply as such) the city is not thereby absolved from the duty, imposed by statute, to keep its streets, including bridges, open, in repair and free from nuisance. And for injuries resulting from a failure so to do, or to properly guard dangers when bridge is swept away, the city is liable.</p>

<p>Error to the Court of Common Pleas of Darke county.</p>

<p>DEBTORS AND CREDITORS.</p> <p>1. When Conveyance of Property to One Creditor does not Create a Trust for ALL.</p> <p>A creditor who receives a conveyance of property from his debtor, in satisfaction of the indebtedness and in consideration of the creditor’s agreeing to assume payment of certain other creditors, becomes a purchaser, not a trustee for the benefit of general creditors under sec. 6343, Rev. Stat.</p> <p>2. But Transaction Amounting to Assignment is for all under sec. 6033 Rev. Stat.</p> <p>But a transaction amounting to an assignment by an insolvent debtor of property to a creditor for himself and in trust for another creditor, becomes an assignment in trust for all creditors of insolvent, under 6033, Rev. Stat.</p>

<p>[Second branch of the case.]</p>

This is the case where an electric car was obstructed and stopped on the C., H. & D. tracks at Brighton, by the balking directly in front of it of a team of horses, which belonged to the street railway company and were hitched to a wagon. Before the horses could be gotten out of the way so as to permit the car to be moved, a train came round the curve and crashed into the street car Schroder was a passenger on the car, and sued both companies for $5,()U0 for injuiies.

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

<p>COUNTY COMMISSIONERS.</p> <p>1. County Commissioners have no Jurisdiction Outside the County.</p> <p>County commissioners of one county have no authority or jurisdiction to construct a ditch or outlet in another or adjoining county.</p> <p>2. Neither Waiver nor Consent will Confer Jurisdiction of Subject Matter.</p> <p>A party may, by waiver or consent, confer jurisdiction of his person upon a court or a board, but nether consent nor waiver will confer jurisdiction of the subject-matter of the suit or proceeding.</p> <p>3. Waiver — Consent—Confer no Jurisdiction upon Commissioners Outside the County.</p> <p>Therefore, the mere waiver or entering appearance by a property owner in one county would confer no jurisdiction upon the commissioners of another or an adjoining county to construct a ditch or outlet upon his lands.</p>

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

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

<p>INSURANCE — FIRE.</p> <p>1. Not Always Necessary to Reeom Ambiguous Contract in Equity before Suit at Law can be Maintained.</p> <p>It is not always necessary to stand upon the strict letter of a contract with an insurance company; and where there is some doubt.and ambiguity in its construction, to go into a court of equity ask for a reformation of the contract before an action can be maintained.</p> <p>2. Oral Testimony may be Admitted to Explain Meaning of Contract.</p> <p>The language of a policy cannot be changde by parol evidence but parol or verbal testimony is admissible to aid the court or jury in ascertaining in what sense certain words were actually used.</p>

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

<p>EMINENT DOMAIN.</p> <p>Error, does not Die to Jurisdictional Facts Until Final Order Awarding Property is Made.</p> <p>An order made by a probate court, in proceedings to appropriate prbperty, determining jurisdictional-facts, the existence of a corporation, its right to make the appropriation, its inability to agree with the owner and the necessity for the appropriation, is within sec. 6437 Rev. Stat., and subject to review upon error. But there can be no petition in error filed for the reversal of any of these proceedings until a final order has been made awarding possesion of the property. And this is true notwithstanding the fact that upon such final order, the appropriating company will be permitted to immediately take possession of the property.</p>

<p>BOUNDARY LINE — EJECTMENT.</p> <p>Action Barred After Lapse of Twenty-One Years.</p> <p>Where adjoining proprietors have agreed upon a division line between tbeir respective lots and have settled upon and occupied up to it, for a period .of more than twenty-one years, it is then too late for either party to claim an action to recover up to the true line, or division line of the lot; such action being barred by the statute of limitations.</p>

<p>PETITION IN ERROR.</p> <p>Time for Filing Runs from Date of Judgment.</p> <p>The time within which a petition in error may be filed begins to run from the date of the rendition and entry of the judgment, notwithstanding the trial A court on a subsequent date overruled a motion for a new trial and made separate findings of fact and conclusions of law.</p>

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

The plaintiff in error in this case asks that the judgment of the common pleas court in favor of the defendant in error be reversed for error in refusing a change of venue to an adjoining county, pursuant to the provisions of sec. 5033, Rev. Stat. At the first trial of the case in the common pleas there was an instructed verdict for the defendant. Error was prosecuted, and the circuit court reversed the common pleas, and the Supreme Court affirmed the circuit court.

The City Hall Bank obtained a magistrate’s judgment against E. E. Evans & Co. for $288.40 and costs, and made a levy thereunder upon machinery in the defendant’s factory previous to the making of the assignment.

<p>BILLS OF EXCEPTIONS.</p> <p>Jurisdiction over Bill of Exceptions Lost by Delay in Presenting.</p> <p>A trial judge has no jurisdiction to consider or sign a bill of exceptions presented on the forty-sixth day after the overruling of a motion lor a new trial.</p>

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

<p>WILLS.</p> <p>1. Evidence — Former Will Competent to Show Radical Changes or Undue Influence.</p> <p>In an action to set aside a will on the ground of testator’s mental incapacity, and on the ground of undue influence by a son with whom testator resided, a former will is competent evidence to show not only a radical change of mind within a brief period but to support the charge of undue influence.</p> <p>2. Evidence Admissible to Meet the Effect of such Testimony.</p> <p>To meet the effect of such evidence it is competent for defendants to show the disposition made by the mother of her property, especially as to the son with whom testator resided, and who is charged with undue influence over him, she having revoked a will in his favor prior to the making of the one by the father, in controversy, as a motive might thus be found for the difference between the father’s former and latter wills.</p> <p>S. Evidence of Facts Subsequent to Making of Will in Controversy Incompetent.</p> <p>Evidence of a division by the mother of her property subsequent to the making of the will in controversy is incompetent, whether given on the part of the plaintiff, or as defensive or under the guise of “further cross examination,” and its admission is prejudicial error.</p> <p>4. Photograph Incompetent as Tendency to Prove Testamentary Capacity.</p> <p>A photograph of testator, in such an action, even if shown to be a perfect likeness, is not competent evidence, as tending to prove his testamentary capacity, and its admission is prejudicial error.</p>

<p>NEGLIGENCE.</p> <p>1. Duty of Railway Companies and Individuals at Highway Crossings.</p> <p>A railway company is not bound to bring its train to a stop, or to slacken its speed, wben a person is seen crossing or about to cross the railroad track, at its intersection with a highway, but may presume that the traveler will take all proper precautions to avoid injury. And it is the duty of the traveler to look out and ascertain whether a train is coming, and if it is, and there be danger in crossing, he must wait until the train passes,</p> <p>2. Failure to Place Sign at Railroad Crossing an Element of Negligence.</p> <p>Section 3333, Rev. Stat., requires railroad companies to place at railroad and highway crossings a sign, indicating that there is a crossing there. But unless plaintiff avers as a ground of negligence that the sign was omitted, he cannot insist upon it as a substantive cause of action. Evidence that there was no sign may, however, be received as bearing upon the question of contributory negligence, on the part of the plaintiff.</p> <p>3. Traveler not Excused for Failure to Look and Disten By Partial Obstruction of View of Crossings.</p> <p>A person approaching a known railroad crossing is not excused for his failure to stop and listen by the fact that his view of the crossing or an approaching train was or would be partially obstructed. It makes it his neglect to do so greater.</p> <p>4. Negligence of Father, Deceased, Contributing to his Death, not Negligence of Daughter Driving with Him at Time of the Accident.</p> <p>A charge to the jury, in an action for damages for wrongful death, that if the father, who was driving the team, was guilty of negligence in attempting to-cross a railroad track in advance of an approaching train, which contributed to his death, such negligence would bind his daughter, the plaintiff, who was traveling with him, is clearly in conflict with the rule laid down in R. R. Co. v. Manning, 30 O. S., 415; Transfer Co. v. Kelley, 36 O. S., 88; It R. Co, v. Edie, 43 O. S., 91 ; Davis v. Garnieri, 45 O, S., 47.</p> <p>5. Sufficiency of Allegation to Remit Proof of Negligence.</p> <p>Court has doubt whether the allegation that “the railroad company negligently and carelessly operated and handled its said locomotive and cars” is such an allegation as would permit the reception of proof under it.</p>

<p>SPECIFIC PERFORMANCE..</p> <p>1. Part Performance of Verbar Contract to Convey Rand — Specific Performance Decreed.</p> <p>Under a verbal contract between father and son, whereby the former purchased a farm near his own, agreeing that they should work together upon the two places and from the proceeds of both pay for the new farm, the son to have possession of the new place, and to pay the taxes, and when the farm was paid for should continue to have occupation and proceeds thereof, upon payment of taxes, until his father’s death, when the place should.become his own, the son, having faithfully performed his part of the contract until the farm was substantially paid for, is entitled to a specific performance of said contract, and is also entitled to a judgment for the rental value of the premises from the time the father repudiated the contract and took possession of the farm.</p> <p>2. Surrendering Possession in Ignorance of Rights does not Forfeit Interest.</p> <p>The son, having surrendered, in ignorance of his rights, possession of the farm under his fathers express direction, after having performed his part of the contract and being ready and willing to complete it, did not thereby forfeit his interest in the property,</p>

<p>MANDAMUS.</p> <p>Refusal of Final Process by Inferior Tribunal, upon Motion, Remedy Lies in Error not Mandamus.</p> <p>Where an inferior, citing as a court, refuses, as upon motion for the final process of the court, to carry into effect the judgment upon the journal, the remedy is by petition in error tó the higher courts and not by mandamus.</p>

The plaintiff and the testate of the defendant in error were respectively U. S. Inspector of Hulls of steam vessels and U. S., Inspector of Boilers of steam vessels for the district of Cincinnati from January 1880, till May 24, 1894, at the same annual salaries; and defendant being in bad health, requesting plaintiff to assist him, and plaintiff, during the entire period, did perform the greater part of the work connected with plaintiffs office.

<p>ASSESSMENT OF SCHOOL PROPERTY.</p> <p>1. Assessment by Front Foot must Include all Abutting Property.</p> <p>When property is to be assessed by the front foot, or by a special assessment, the statute intends that it shall include all property abutting on the street.</p> <p>2. School Property not Exempt from Assessment.</p> <p>Property of the board of education is not exempt from special assessments for sewers and sidewalks.</p> <p>3. Judgment Therefore May be Enforced by Mandamus.</p> <p>And for such a lien the plaintiff would be entitled to a judgment, which might be enforced by mandamus.</p>

<p>RAILWAY LEASES.</p> <p>Consolidated Lease not a Sale — Preference of Lessors.</p> <p>Where the'co.urt appoints receivers of the property of a railroad company, and directs them to join the company'in the execution of alease, consolidating former leases of rolling stock, the terms of which have not yet expired, the purpose aud provisions of which consolidated lease are to provide a lower monthly rental and extend the period of the leases — but leaving the title to the rolling stock in the lessors, with conditions of forfeiture for non-payment of the rentals and other breaches of the covenants, such consolidated lease is not a sale of the rolling stock to the receivers, and the lessors are entitled to prelerence over the bonded indebtedness of the railroad company, only for the rentals which accrue after execution of such consolidated léase aud during the existence ol the receivership.</p>

<p>DISBARMENT OF ATTORNEY — JURISDICTION.</p> <p>1. The Circuit and Common Pleas Courts Have Jurisdiction in Disbarment Proceedings.</p> <p>The mere fact that the statute now confines the admission of attorneys to the bar in the Supreme Court and places the matter entirely within its jurisdiction, does not take away the jurisdiction conferred upon the circuit and common pleas courts by sec. 563, Rev. Stat., which section gives those courts jurisdiction to suspend or remove any attorney-at-law from office, for certain specified causes.</p> <p>2. Causes eor which an Attorney may be Removed are not Separate and Distinct.</p> <p>The causes enumerated in sec. 663, Rev. Stat., for which an attorney-at-law may be removed are not to be considered as separate and distinct causes; and, therefore, a conviction of crime involving moral turpitude, or unprofessional conduct involving moral turpitude, are not two distinct grounds. In one, there has been a conviction; in the other, unprofessional conduct may be conduct that involves a crime although the party has not been convicted of that crime.</p> <p>. Member of Bar, Though at Time Holding the Office of Judge of the Common Pleas Court, may be Disbarred.</p> <p>In disbarment proceedings, the circuit court has jurisdiction to try an attorney-at-law, although at the time of such trial and the time of such proceeding, that attorney may be holding the office of commou pleas judge and may not be authorized at that time to practice his profession.</p> <p>. Validity of Specifications against an Attorney when such Attorney was at the Time Specified Acting as a Judge.</p> <p>Where a judge undertakes to exercise the duties of a judge clearly against a provision of the statute of the state that he shall not exercise, whete by the statute of the state he has no right to exercise such duties, his acts are entirely void, he having acted simply as an individual; and where the specifications in disbarment proceeding against such judge, charge that he did such acts purely and simply to further his desires and wishes and purposes as an attorney and not as a judge, such specifications are good as against a demurrer interposed against the same.</p>

<p>Appeal from the Court of Common Pleas of Erie county.</p>

<p>CONSTITUTIONAL LAW — ELECTION LAWS.</p> <p>1. Special or Local Law Defined.</p> <p>A law which applies only to an individual, or to a number of individuals selected out of a class to which they belong, is a special or local law.</p> <p>2. General Law Defined.</p> <p>A general law is one which relates to or binds all within the jurisdiction of the law making power, limited as that power may be by its territorial operation or by constitutional restraint, a law is not general in any correct sense of the term, but is special, where it is suspended in one locality, where exists a procer subject-matter on which to operate, but is in full force in another locality of exactly the same kind.</p> <p>3.’All Daws Pertaining to Elections must be oe a General Nature.</p> <p>The subject of elections is one of general interest throughout the state, and all laws pertaining to the same must be of a general nature having uniform operation throughout the state.</p> <p>4.. Section 29263, as Amended, 92 O. D., 166, is Unconstitutional.</p> <p>•Section 29263, as amended in 1896, (92 O. D., 166), and which provides that, “In all such cities of the first and second class, except Mansfield and cities of the fourth grade in the first class, a ‘board of election,’ to consist of four electors of such city,” etc., is local in its operation and its application, not having a uniform operation, but does by its terms exclude two cities of the state from its operation, and, therefore, it is unconstitutional and. affords the members constituting, the .“board of election” of the city of Cleveland, no warrant of law for usurping the office that they hold.</p> <p>5. Section 29263, as Amended; being Declared Unconstitutional, Deaves the Act of 1890 (87 O. D., 359), as the Daw Governing Elections.</p> <p>It is not reasonable to conclude that the state legislature meant to repeal all laws regulating elections in this state, and this being true there was no intent to repeal the law of 1890, (87 O. D.,359), by the law of 1896, (92 O. D., 166), for any other purpose than to give effect and operation to the iatter law, and the law of 1896 being unconstitutional, the legislature must have intended that if that act should prove to be unconstitutional, then the law of 1890 should remain in full force and effect; this intent existed, and the purpose of putting in the repealing clause being as above stated, it follows that the repealing clause falls within the law itself, and the act of 1890 remains and has remained >up to this time as the law governing elections.</p> <p>6. Status of “Board of Election” Created Under the Daw of 1896, (92 O. D., 166)..</p> <p>. The members constituting the “board of election” of the city of Cleveland under the law of 1896, (92 O. D-, 166), cannot be ousted from their office, notwithstanding that the law of 1896, is declared unconstitutional, unless the law of 1890, (87 O. D., 359), is also unconstitutional; and, if the court after a careful examination of that law hold that it is unconstitutional, and, so far as the above board are performing the duties of the board pertaining to the city of Cleveland, constitutes warrant of law for such acts; but such board have no warrant of law for usurping any authority over the election precincts of the county lying and being outside of the city.</p> <p>7. Application of the Statute of Dimitations.</p> <p>In a proceeding to oust the members of a “board of election” created under the law of 1896, there was until that time no unlawful usurpation of such office, and that unlawful usurpation arose from the passage of the law of 1896, and the laws extending the authority of the law over the entire county. These laws were passed at such a time that the cause of action set up in the petition in which it is sought to oust these members arose within the three years preceding the filing of the petition, and this being true, the statute of limitations has no place in the case as, a defense to the proceeding, and, therefore, a demurrer filed against such a defense will be sustained.</p>

<p>DISBARMENT OF ATTORNEY.</p> <p>1. An Act may Amount to Misconduct -in the Office of an attorney Without Amounting to. a Crime.</p> <p>An act maj- amount to misconduct in the office of attorney without amounting to a crime; therefore it is not necessary to show that what the defendant has done amounts to blackmail.</p> <p>2. No Precise Words are Needed to Convey a Threat.</p> <p>No precise words are needed to convey a threat. It may be done by innuendo or suggestion, and to ascertain whether language conveys a threat, it must be taken with the circumstances under which it was spoken and the relation between the parties are to be considered, and then if it can be found that the purport and natural effect of the language amounts to a threat, the mere form of the words is unimportant. Any language which conveys with suf: ficieut clearness to be understood, the proposition that a charge will be made, is enough.</p> <p>3. Belief in Guilt of Party Threatened with Exposure is Immaterial, When.</p> <p>Belief in the guilt of the party threatened with exposure does not exempt from the threat made if the intent is to extort'more than is due, or something that the party has no right to, or more than he has a right to have, for the purpose of gain, or for the purpose of making the party, from whom the payment is made, to suffer; in such case the belief that the crime charged is true is immaterial.</p> <p>4. Facts Shown by Evidence.</p> <p>The evidence in the case shows the following facts: That Burke and Delleubaugh acted jointly and together as attorneys for Mrs. .Manning throughout as charged. That there isnothing to show that “JaneDoe” had; done anything to wrong Mrs. Manning of the affections of her husband, nor that’the parties up to the time of the settlement had ascertained such to be the fact. That the object' in demanding the money was not to obtain compensation for a just claim, but to get as much as possible under the threat of exposure and a promise of protection if payment was made. That “Jane Doe” paid the money to shield herself from an open scandal. That the divorce was granted without sufficient evidence. That Burke drew the entry presented to the Clerk by Dellenbaugh, ánd that Burke was cognizant of what Dellenbaugh did in order to get it upon record. That this transaction was one intended to carry out a private agreement of the parties and that -in doing this they were willing to and pervert and use for this unlawful purpose the courts of the state of Ohio. ’ '</p>

<p>TITLE-DEEDS.</p> <p>1. Deed of Authority to Use Canal Lands for Street Purposes — Easement.</p> <p>In 1868 the state of Ohio granted to the city of Toledo authority to use certain canal lands for street purposes, the title to the land remaining in the state until 1871. Held, that the deed of 1868 simply vested an easement in the city and all other rights in the land remained in the state until the deed of 1871.</p> <p>2. Owner of Easement may Maintain Ejectment against Parties Wrongfully on Land.</p> <p>That the city, however, might have maintained an action of ejectment for the purpose of evicting those who were wrongfully upon the land, although the state still retained the fee and could maintain an action to adjudicate the title until 1871.</p> <p>3. Deed of Land for Highway, Followed by Absolute Deed, Merges Basement without Obligations to Public.</p> <p>By the absolute deed of 1871 the easement which the city acquired in 1868 was merged in the full title and the <nty took the land without any obligation imposed upon it so far as the public was concerned.</p> <p>4. Construction of Deed of Canal Lands.</p> <p>Under a deed conveying ‘ whatever interest remains to the state in the bed of the canal is hereby relinquished and transfered to the city of Toledo ” conveys the whole canal and not merely so much as lies between highwater mark, between the banks of the canal.</p>

<p>FIRE INSURANCE.</p> <p>1. Removal of Goods with Consent of Company’s Agent does not Render the Policy Void.</p> <p>Where an insurance company insures the personal property of another, and the policy contains a clause, which in substance provides, that, “if any change takes place in the title, interest, location or possession of the property,” that the “policy shall become void, unless consent in writing is endorsed by the company hereon,” and the assured afterwards with the consent ol the agent of such company removes the property described in such policy to another location, to which the agent assented and gave the assured to understand by his language that the policy would he continued in force and that the property would he covered by the policy in its new location, so that it was in lact covered by this policy : Held, that the fact that in the progress of removing the property to the new location, it was for a day or more kept at some other location, would not have the effect to prevent a recovery on this policy, the loss having occured at the location to which the agent assented to the removal of the property ; and further, that the agent who had the authority to issue the policy and take the premium, might waive the provision in the policy, so that the company was bound notwithstanding the clause iu such policy.</p> <p>2. Proof of Loss not Necessary when the Company Denies all Liability.</p> <p>If an insurance company deny all liability, the proofs of loss are dispensed with, when the company had notice of the fire and declares that in no event will it pay, there is no necessity of proofs of loss ; and where it is shown that proofs of loss were prepared and sent by mail, there is no error in allowing recovery because of failure of the company to receive the proofs of loss. It was sufficient to mail them and a denial of all liability is sufficient to relieve one from proofs of loss.</p>

<p>JURY — FEES.</p> <p>Compensation oe Jury in Proceedings under Sec. 3718a, Rev. Stat.</p> <p>In a prosecution before a justice of the peace under sec. 3718a, Rev. Slat., to prevent the adulteration of food, etc.', the jury therein provided for are entitled to a compensation of two dollars per day.</p>

<p>INSOLVENT CORPORATIONS — PREFERENCES.</p> <p>1. Payment oe Subscriptions to Capital Stock.</p> <p>Where, prior to the organization of a corporation, the persons afterwards composing such corporation had been prosecuting the business under a partnership agreement until the terms of such agreement expired, at which timé they incorporated themselves, and the subscription to the capital stock of such corporation was paid by the transfer of all the partnership assets to such corporation and such corporation assumed all the liabilities of the partnership ; it being shown that the partnership was insolvent at that time, and that in the transfer made, there was nothing actually transferred to the corporation. Held, that nothing whatever that should be counted as a payment of the stock subscriptions was transferred by the partnership to the corporation, and, therefore, the subscribers to such stock are still liable to pay, for the bene fit of the creditors to the receiver of the corporation, their subscriptions to the . stock made, the same to be distributed to the creditors of the corporation pro rata.</p> <p>2.-«When Creditor oe an Insolvent Corporation is Entitled to Enforce His Claim.</p> <p>Where a creditor of a corporation, while such corporation was in possession of ■its property and apparently so far as known to outsiders was engaged in the prosecution of its business, advanced to and for such corporation at the time he received the latters note, the full sum for which he took' such note, such transaction is not illegal, and such creditor holds his note by good title, and he may lawfully enforce his claim against the corporation by any remedy provided by law.</p> <p>3. Directors of an Insolvent Corporation are Trustees of the Creditors of the Corporation.</p> <p>The directors.of a corporation are trustees for the stockholders, and, therefore when the corporation becomes insolvent and the stockholders have no longer a substantial interest in the property of the corporation, the directors should be regarded as trustees of the creditors to whom the property of the corporation must go, and they cannot violate that trust by transferring the assets of the corporation to themselves or to relieve 'themselves from collateral liability.</p> <p>4. An Insolvent Corporation Cannot ' Secure its Directors on Debts</p> <p>UPON WHICH THEY ARE COLLATERALLY UlABLE.</p> <p>An insolvent corporation with no' expectation of continuing its business cannot rightfully secure or pay debts to its directors nor debts upon which such directors are collaterally liable, and thus relieve such director from his collateral liability.</p> <p>6. Right oe Attaching Creditor, as Against The General Creditors oe an Insolvent Corporation.</p> <p>Where a creditor of a corporation commences an attachment proceeding and levies upon the book accounts of such corporation, and such levy is made before a receiver is appointed to take charge of such corporation, such attaching creditor obtains a lien and a preference by virtue of his attachment.</p>

<p>DISBARMENT OF ATTORNEY.</p> <p>1. Nature of Disbarrment Proceedings.</p> <p>Disbarment proceedings are more in analogy with criminal proceedings than a civil action and the defendant will be given the benefit of any real' uncertainty as to the evidence.</p> <p>2. Consideration oe Evidence in Such Proceedings.</p> <p>In such proceedings where the evidence in regard to certain specifications is not deemed sufficiently clear to warrant a finding of guilty such evidence may be taken into consideration in determining the penalty imposed by virtue of a finding of guilty under another specification where there is a discretion as to the kind of penalty to be inflicted.</p> <p>8. Remedy eor Misconduct oe Defendant while Assuming to Act as Judge.</p> <p>The remedy for any misconduct or wrong done while the defendant was acting or assuming to act in his capacity as a judge is in another tribunal and cannot be adjudicated in this proceeding.</p> <p>4. Evidence as to Extortion oe Money as Charged in First Specification.</p> <p>The evidence given in respect to the first specification does not warrant the court in finding the defendant guilty of complicity in the extortion of money as charged.</p> <p>5. Evidence as to Manning Divorce Case.</p> <p>The evidence shows that in the tidal of the Manning divorce case the defendant acted or assumed to act in his official capacity.</p> <p>6. Evidence as to Indorsement of Decree.</p> <p>The evidence shows that the defendant after the expiration of his term of office and while a practicing attorney prepared a decree which he indorsed “O. K. Dellenbaugh, Judge,” and by falsely stating that it was the original entry prepared and indorsed while he was judge procured the clerk to enter said decree upon the journals of the court.</p> <p>7. Evidence as to Hearíng and Granting of Divorce in the Manning Case.</p> <p>The evidence shows that the defendant acted corruptly in hearing and granting the divorce and in procuring the decree to be entered of record, and show no circumstance of exoneration in regard to the offense of which he has been convicted.</p>

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

A resolution was passed by the Norwood council in 1891, without petition from abutting owners, for improvement of Williams avenue. At that time W. M. Fridman owned a lot abutting 111 feet on Williams avenue and 214 feet on Flsmere avenue. The Fridman tract was subsequently subdivided into four lots fronting on Flsmere avenue, which were all sold to different parties.

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

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Administrators ¡of Assignee of Leasehold not Personally Liable for Rents.</p> <p>The administrator of the assignee of a perpetual leasehold is not personally liable to the owners of the fee for payment of the rents and taxes covenanted in the lease.</p>

The defendant in error, a stonemason in the employ of the plaintiffs in error, recovered a verdict below on account of injuries from being struck by the lever of a hoisting machine, which gave way with a load upon it causing the lever to fly back with, great force.

In this old case the stock holders entered into an agreement with all the creditors save one, whereby they paid a certain amount to the creditors in full satisfaction of the claim against them on account of their statutory liability.

<p>PARTIES — PRACTICE.</p> <p>Party Fairing to Make any Effort to be made a Party Defendant tirr After Judgment wirr not be Aided by the Court.</p> <p>Where a company stands by with full knowledge of the character of a cause in litigation, and does not ask to be made a party defendant until after the rendering of an adverse judgment, it will not thereafter be aided by the court in getting into the case.</p>

<p>STOCKHOLDER’S LIABILITY.</p> <p>1. Action to Enforce is Joint, and all Creditors and Stockholders Should be Kept Together.</p> <p>In an action brought by a creditor to subject the stockholders of an insolvent corporation to the payment of their statutory liability, where all the creditors hut one the plaintiff, have made a compromise agreement with the stockholders, that they accept a certain percentage of their claims, in full settle- ' ment, notwithstanding that after paying the agreed percentage, the balance of the statutory liability of the stockholders is sufficient to pay the claim of the plaintiff in full, this claim will be treated as though every other creditor was in the suit, uncomprotnised, and the decree made upon the basis of the joint interest of all the creditors and stockholders.</p> <p>2. Compromise Agreement not to Increase Amount, Creditor not Accepting it may Recover.</p> <p>The fact that one creditor agrees to take less than his claim cannot increase the amount another can claim in such an action, and hence, the plaintiff can recover only such a percentage of his claim, as the total of all the claims bears to the total solvent statutory liability.</p> <p>3. Stockholders w,ho are Delinquent Required to First Average with Those Who Have Paid.</p> <p>Where there are three classes of stockholders, one having paid nothing upon their stock, another 40 percent, and another 75 percent, to arrive at the liability of each and not affect their rights under the compromise agreement those solvent stockholders, who have paid nothing will be first required to pay until they have paid the average amount per share paid by the other two classes.</p> <p>4. Decree May Provide Additional Collection, to make up for those Unable to Pay.</p> <p>All the stockholders are sureties for the payment of the creditors claim, and provision ’may be made in the decree, that if there are any from whom the liability cannot be collected the amount they should have paid may be collected of the other solvent stockholders.</p>

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

<p>Error to the Court of Common Pleas of Kicking county.</p>

■ The plaintiffs brought suit for $750 against the Carter-Crume Company, and garnished funds in the hands of Diem & Wing, the attachment being secured on the ground that the defendant company was a foreign corporation and a non-resident of the state. At the trial below Judge Sayler dissolved the attachment.

<p>EVIDENCE — NEGLIGENCE.</p> <p>1. Error to Exclude Contradictory Statements or Witnesses.</p> <p>It is error to exclude statements of a witness which are contradictory to his previous testimony, when such statements carry with them an affirmance of facts.</p> <p>2. Injured Person must use Care in Selection or a Physician.</p> <p>A person injured through the fault of another is bound to use only ordinary care in the choice of a physician.</p> <p>3. Person Bitten by Dog may Testify as to Mental Suffering.</p> <p>One bitten by dogs may testify as to mental suffering through fear of hydrophobia and lockjaw ,‘oand instruction to the jury that recovery may be had on this account does not cure the error in excluding the evidence.</p>

<p>LIABILITY OF RAILROAD AS WAREHOUSEMAN.</p> <p>1. Delivery to Freight Depot of Goods to be Crated, Creates Liability on Railroad Company, if accepted.</p> <p>Where a carter.conveys goods designed for shipment, to the freight depot of a railroad company and deposits them on the platform of such depot, where such goods are customarily delivered to and received by such company for shipment, and notifies the proper shipping agent of such company ot the presence of such goods on the platform, and that they are to be shipped to a certain station on such railroad after one of the articles has been properly crated, and that a person will come and crate such article during the day, and the agent of the company expresses his assent to what is said and proposed, Held, this amounts to the delivery of such goods to the railroad company and its acceptance of the custody thereof as warehouseman.</p> <p>. 2. Proof Tending to show Negeigence Which Shooed have gone to Jury.</p> <p>The plaintiff upon the trial having introduced evidence tending to establish the facts above recited, and also tending to show that later on the same day such goods were removed by some person and means and to some place unknown to her, and that upon demand said company (ailed to restore said goods to her the court, on motion of the defendant, ruled that the plaintiff had failed to make out a case, and directed the jury to return a verdict for the defendant. Held, error, While it devolved upon the plaintiff to show that the defendant had been guilty of negligence in that it had failed to exercise due care in the premises whereby the goods had been lost, the facts above recited furnished some evidence of such negligence, and the case should have been submitted to the jury.</p>

<p>CURTESY.</p> <p>Husband not Entitled to Curtesy in Wife’s Lands Subject to a Life Tenancy.</p> <p>In 1S53 the prerequisite of curtesy, birth of issue, was eliminated by statute, and the estate -was enlarged to lands in which the wife had a right oí present possession in the freehold, but such legislation did not abolish common law curtesy. It did not establish a statutory curtesy, but regulated and enlarged common law curtesy, down to 1887, when the estate was abolished in favor of dower for the husband. Such seisin in the land as gave the wife a right to immediate possession continued to be necessary ; hence, where the wife died in 1883, having an interest in remainder in certain lands in possession of a life tenant who died in 1894, the husband is not entitled to an interest in such lands.</p>

<p>TRUSTS.</p> <p>Money Furnished after Purchase of Tand Creates no Trust therein in favor of Party Furnishing.</p> <p>One who had mortgaged land subsequently conveyed it by deed of warranty. After foreclosure, one of the.heirs of evicted granter purchased the land, and there secured irom the mortgagor a consideration for the breach of warranty. It was held,</p> <p>1. That the covenant against incumbrances run with the land, and was not an asset of the estate of the grantee, but went to his devisee or heir, and when the breach occurred would enure to the benefit of the granter who would then have the right. »</p> <p>% It is one of the requisites of the creation of a trust in this way that the investment should be made contemporaneous with the purchase; hence, the receipt of setlement money by the heir, and its subsequent use by him, in paying the purchase price of the land, did not result in a trust for the benefit of other heirs of the estate.</p> <p>3. The remedy for the other heirs is by suit at law for their proportion. But the relation created was not a trust of such a class as is peculiarly cognizable by courts of equity, and granted immunit}* from the statutes of limitations, and an action at law is barred.</p>

<p>CONTRACTS.</p> <p>Scrapers are Materials Used'in the Construction oe a Work.</p> <p>When an agreement is made to fill a sewer front, and a bond given that tbe contractor shall pay for all labor and “ materials,” in the prosecution of the work, scrapers purchased for use in the performance of the contract, are not materials with the meaning of the bond, as they are not such as go into the construction of the work.</p>

<p>ELECTIONS.</p> <p>1. Filing Nomination Papers is Mandatory.</p> <p>The requirement of sec. 9 of the election laws of Ohio (93 Ohio Laws, 189) that in cities where the voters- are registered, the nomination of city officers shall he filed with the city board of elections not less than fifteen (15) days previous to the day of election, is not mandatory.</p> <p>2. Where only Objection to Belated Certificate is the Time it was Done, Deemed to have been Filed in Time.</p> <p>Where it appears that such certificate has been filed in ample time in which to advertise for bids and print the ballots, and no objection is made otherwise, except as to the precise time in which it was done, and that the non-observance in this regard could not affect the result of the election, its fairness or honesty, such certificate so filed will be deemed to be filed in time, notwithstanding the requirement of the statute is mandatory in form.</p> <p>3. Transmission oe Original Certificate Complies with the Law.</p> <p>That the duty imposed by sec. 13 (93 Ohio Laws, 190), relative to the transmission of certified copies of certificates of nomination is legally performed when such board has duly certified the original certificate instead of copy thereof as provided by this section.</p>

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

<p>LEASES.</p> <p>1. Specific Performance of the Renewal of a Lease Made by Correspondence.</p> <p>Where plaintiff leased of defendant property for a period of five years, the contract containing a provision for the privilege of five years mote at the same rates, and the lessee elects 1o take it for the additional period, and subsequent correspondence between them shows a proposition for an additional term of ten years from the expiration of the five years, upon the same rates as contained in the existing lease, which was accepted, it was held that the word “rates” meant upon the same terms and conditions as were applicable to the former lease, unless modified by the parties, and hence the contract could not be considered as indefinite and indeterminate. There was an agreement that defendant should execute a lease, plaintiff was entitled to a decree for its specific performance.</p> <p>2. No Damages for Failure of Lessor to Execute a Lease, where Lessee has Possession.</p> <p>The lessee could have brought an action at any time after the contract for the renewal of the existing lease was made, to compel its execution. If he waits until the new lease is to take effect, he cannot then recover damages on the ground that not having a written lease to rely upon he is thereby prevented from contracting with other tenants to take part of the premises. Especially is this so if the lessor had given him possession of the entire premises.</p>

Heard on Error. A stolen one hundred dollar bill was used by the thief in payment to the Pennsylvania Railway Company of a freight bill of four dollars, the remaining ninety-six dollars being handed back to the thief in change.

<p>CONTRACTS.</p> <p>Contracts in Restraint oe Marriage are Void.</p> <p>Where a person enters the employ of another under a contract in which such person agrees to take care of the latter during his lifetime, and further agrees to refrain from marriage during her lifetime, in consideration that the latter would provide for the former while she lived with him and at the time of his death: Held, that the element in the contract providing that the former should refrain from marriage during her lifetime made it a void contract as against public policy, and, therefore, there can be no recovery upon . such contract.</p>

<p>VENDOR’S LIENS.</p> <p>Sale of Right of Way— Agreement to Take Capital Stock which Becomes of no Value — Vendor’s Lien Sustained.</p> <p>A entered into a written agreement with a railroad company whereby the latter was permitted to locate and construct its railway upon his land, in consideration of 5200 per acre, payable in capital stock ot the company, which capital stock, it was agreed, should be worth par at the end of two years or the land should be paid tor in cash. Subsequently A deeded the land to the railroad company. At the end of two years the.stock was ot no value. A then tendered the stock and demanded cash, which was refused. He then brought suit to enforce a vendor’s lien. Held, that A is entitled to a vendor’s lien, not only against the original railroad company but against subsequent purchaser or purchasers at foreclosure sale, to which he was not made party.</p>

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

<p>GAMBLING.</p> <p>1. An Action to Recover a Billiard Bill is Maintainable.</p> <p>Where the owner and proprietor of a billiard and pool table seeks to recover for an account incurred by one who has been the loser of a certain number of games, such games being played under an arrangement, well known by all concerned, that the loser was to pay for all games played and lost b'y him : Held, that such action is not brought for money won or lost at any “game” in such sense as that word is used in sec. 4269, Rev. Stat., and, therefore, the provisions of that section are not available to the defendant as a defense to such action.</p> <p>2. What Constitutes Gaming, Winning or Rosing Money.</p> <p>It is not gaming and not winning or losing money where there is an arrange ment wtiereby one party shall pay, if losing.</p> <p>3. Keeping op a Bieeiard Tabee is not an Offense under Sec. 6934, Rev. Stat. when.</p> <p>The keeping of a billiard table where the loser is simply to pay for the game, is not an offense under sec. 6934, Rev. Stat , but if bueh table is kept and used for gambling, it is an offense under that statute.</p>

<p>Error to the Court of Common Pleas of Eucas county.</p>

<p>LIFE INSURANCE.</p> <p>1. Policy and Guaranty for A Paid-up Policy to be Construed Together.</p> <p>A guaranty on a policy, that a paid up policy will be issued for an equitable sum, in case premiums become delinquent is not a separate contract, but the whole is one contract, and must be construed togetlfer.</p> <p>2. Demand of Soliciting Agent does not Comply with Policy.</p> <p>Where a policy contains a stipulation. that the company will give a paid-up policy for an equitable sum, il demanded and the policy properly receipted is surrendered while the policy is still alive, a demand of the soliciting agent for such a policy, the policy not being surrendered receipted, as required, is not sufficient.</p> <p>3. Agent Cannot Waive Stipulations of Policy.</p> <p>After the policy has lapsed for the non-payment of premiums, it being provided therein that agents are not authorized to waive forfeitures, such provision is notice to the party that the agent has no such authority, and no recover of a paid-up policy can be had.</p> <p>4. Wife Should have Surrendered Policy Despite Contingency of further Children.</p> <p>The policy was made payable to the widow if she survived the husband, or in case of her death to the children or their guadiau, but the fact that at the time of the surrender and demaud for a paid-up policy, the assured was alive and it was not known whom the children or heirs would be, did not excuse the wife from receipting the policy and making the surrender required by its terms, the contingency of children having interests not having arisen, she being the sole beneficiary, and no defense could have been made that it was not a proper surrender.</p> <p>5. Guardians Duty to have Receipted the Policy.</p> <p>At the time the policy was surrendered and a paid-up policy demanded, the guardian oí the children should have receipted the'Surrendered policy.</p>

<p>CARRIERS — BAGGAGE.</p> <p>1. Jury may Consider Circumstantial Evidence in Determining whether Baggage Master had Knowledge of Contents of Package.</p> <p>In determining whether a baggage master has actual knowledge of the contents of a package shipped as baggage, the jury are not precluded from considering circumstantial evidence.</p> <p>2. Liability of Railroad Company when Merchandise is Shipped as Baggage.</p> <p>A railroad company accepting as baggage, trunks containing merchandise, without knowledge of their contents, is liable as bailee for gross negligence.</p>

<p>EVIDENCE — NEGLIGENCE—INDEPENDENT CONTRACTOR.</p> <p>1. A Party may Testify to his Motives and to his Intentions.</p> <p>A party whose motives or intentions are called in question, and made an issue in the case, may testify to his motives and to his intentions.</p> <p>2. Circumstances under which a Person is Excused from the Charge of Contributory Negligence for Using Defective Machinery.</p> <p>One is excused from the charge of contributory negligence on account of his use of machinery that he knows is defective or out of repair, upon his showing that he complained of its defects to the person authorized to .repair it, and who promised to repair it, and with that express promise to repair it, he may continue in the work a rea onable length of time thereafter; that is such a period of time after the promise as would be reasonably allowed for its performance, or indeed, within any period which would not preclude all reasonable expectation that the promise might be kept. .</p> <p>8. Circumstances under which a Contractor doing Work by the Piece is not to be Regarded as an Independent Contractor.</p> <p>One who contracts with a company to do all of its work of a certain kind at so much per piece and is to furnish his own labor lor that purpose, the company to furnish room, machinery and power, and reserves to itself the right of control over its machinery and expressly contracts that it will keep it in repair and employs such contractor for that purpose, so that he is by express contract the representative of the company to keep this machinery in repair: Held, that he is not an independent contractor as would relieve the company form liability' lor its negligence in failing to repair the machinery upon which an employee of such contractor was working and thereby injured.</p>

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

<p>APPEALS.</p> <p>Appeal from a Proceeding in Aid of Execution.</p> <p>An appeal may be taken at the close of the examination before the justice in a proceeding in aid of execution in which the third person alleged to have in his hands certain money belonging to the judgment debtor is ordered to pay over such money to the judgment creditor.</p>

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

<p>DEFECTIVE SIDEWALKS — PROOF.</p> <p>1. Defect must have Existed Such a Time that Authorities Could have Repaired it.</p> <p>To render the city liable by constructive notice of a defect in sidewalk, which results in an injury to one walking over it, it must be shown that the defect had existed for such a length of time that the city authorities would, by'the exercise of ordinary care, have known of its existence and could have repaired it.</p> <p>2. City must be Guilty oe Negligence, Actual or Constructive.</p> <p>As a basis for recovery in such a case the jury must first find that the city was guilty of negligence, either in not ascertaining the defect, or in not repairing it after'having acquired knowledge of the defect, actual or constructive.</p> <p>3. Pedestrian Need not go &side, Unless Reason to Apprehend Danger.</p> <p>One cannot be charged with negligence in not taking to the street or to the opposite sidewalk, unless he had reason to apprehend danger at the place where the defect existed.</p> <p>4. Burden oe Proof .to Remove Presumption of Negligence Raised by Plaintiff’s Proof.</p> <p>If the testimony of the plaintiff raises a presumption of contributory aeglt gence, the burden is upon him to remove this presumption.</p>

<p>CONTRACT — EVIDENCE.</p> <p>1. Parties to a Written Contract Cannot Testify as to their Understanding of IT.</p> <p>Iti an action based upon a written contract, it is incompetent for the parties to such contract to testify as to what was their understanding of it; and it is especially incompetent to allow them to testify to an understanding which clearly contradicts the_plain terms of such contract, and, therefore, it is error to admit such testimony.</p> <p>2. A Stipulation to Transfer Stock, Imports that the Stock is of Some Value.</p> <p>A stipulation or agreement to transfer the stock of a corporation, whether solvent or insolvent, imports that the stock is of some value, and for the purpose of making a binding contract'it is not important how valuable.</p> <p>3. Interpretation of Contract as to Time of Payment.</p> <p>Where ihe owner and holder of stock in a corporation agrees to transfer such stock to a person designated by the buyer, and the latter agrees to pay for the same in installments “at his option as to time” after a date on which such installments begin to draw interest, means that such installments are to be paid within a reasonable time after the date named when such installments begin to draw interest.</p> <p>4. Question of Reasonable Time — by Whom Decided.</p> <p>Whether the question as to what is a reasonable time is to be ascertained by the jury or as in this case, by the court, from the facts, or whether it is a question óf law, depends upon the nature of the transaction involved in the contract.</p> <p>5. Plaintiff was Entitled to Recover.</p> <p>The plaintiff in this case was entitled to recover upon this contract when he proved that he had transferred the stock to the defendant, regardless of whether the stock was valuable or not, and regardless of whether it was understood or agreed orally that payment should be made when the company was making money and this evidence admitted, tended to vary the terms of the contract sued upon.</p>

<p>HABEAS CORPUS.</p> <p>Habeas Corpus will not Lie for Purposes of Re-Trial.</p> <p>A judge having jurisdiction to issue the writ of habeas corpus, cannot issue it at his own will and thereby review with new testimony, the decision of the judge before whom a warrant in an extradition proceeding is returned and the parties therein named held in custody for the agents of the state from which they are fugitives from justice.</p>

<p>MARRIED WOMAN.</p> <p>Lien upon the Separate Estate of a Married Woman — How acquired.</p> <p>A married woman can be sued on all contracts that she may rightlully make, exactly the same as if she were unmarried; that is the only way she can be sued, and the only way a lien on her separate estate, can be acquired .is to have a personal judgment for money, unless there is by contract a specific lien upon her real or personal property; and, therefore, where the petition does not ask for a personal judgment, and no personal judgment is rendered, no lien is acquired upon her separate estate.</p>

<p>Brror to the Court of Common Pleas of Sandusky county.</p>

<p>GARNISHMENT.</p> <p>Executor May be Garnished on 'Account oe Debt oe a Legatee.</p> <p>Where it is reasonably certain that the condition of an estate is such that a bequest will be paid, an administrator, or executor, may be garnisheed by a creditor of a distributee or legatee, who will, upon settlement of the decedents estate, be entitled to receive some part of the funds in the hands of such executor or administrator.</p>

<p>CONTESTS OF WILLS.</p> <p>1. Petition Sufficiently Challenging Will not Demurrable.</p> <p>As tlie only issue that can be submitted to the jury in an action to set aside a will is, whether the writing produced by the proponents is the last will of the testatrix, and the issue cannot be varied by the averments of the pleadings, if the petition sufficiently directs the attention of the court to the fact that the validity of the will is challenged, and that the proper parties are before it, the court is to submit that ] hase of the litigation to the jury. No matter what other causes of action may be asserted in the petition, or what other parties are drawn into the controversy by the pleading, and it is not error to overrule a demurrer to the petition raising the questions of its sufficiency, and of misjoinder.</p> <p>2. Facts as to Mental Condition of Testator may be Remote as to Time AND NOT AS TO THE ISSUE.</p> <p>The condition of the testator, at a time previous to making the will, when so followed by other manifestations of mental disturbance as to reflect some, light upon the condition of her mind at the time the will was signed, is admissible in evidence, whether such condition was at a long or short time previous thereto.</p>

This suit was brought before a justice of the peace by Salmon as receiver, and afterward appealed to the court of common pleas.

<p>Appear from the Court of Common Pleas of Clermont county.</p>

The two cases have similar facts, and were submitted, considered, and disposed of together. The plaintiffs in error were plaintiffs below. The C. C. C. & St. L. Ry. Co. was defendant there and here. The action by both plaintiffs, was to recover a penalty for overcharging, in the matter of fare charged the plaintiffs as passengers on defendant’s railway, under the provisions oí sec. 3374 and 3376, Rev. Stat.

<p>FORECLOSURE OF MORTGAGE.</p> <p>1. No Personal Judgment Unless Personal Liability.</p> <p>In an action brought to loreclose a mortgage, there can be no personal judgment against the mortgagor for the amount of the debt secured by the mortgage, or any part thereof, unless the mortgagor is personally liable for such debt or for some part of it. If a person executes a mortgage to secure a debt for which he has not made himself liable, the mortgagee, so far as the mortgagor is concerned, can look only to the property so mortgaged.</p> <p>2. But Presumption of Personal Liability Arises where Plead, and not Answered.</p> <p>But where a petition alleges that a balance is due, and asks a judgment therefor, and a foreclosure, and default is made, and the court finds the amount due, and orders its payment, if the debt is not paid by the sale of the land, the court is authorized to order the defendant to pay the balance and award execution therefor.</p>

<p>JURISDICTION OVER JOINT DEFENDANTS.</p> <p>1. Joinder of a Resident and Non-Resident Defendants, Gives no Jurisdiction when no'Joint Liability is Shown.</p> <p>Jurisdiction over a non-resident defendant cannot be obtained by averring a joint liability with a resident of the county in which the suit is brought; and where the evidence showed- that the plaintiff had no right to thus obtain jurisdiction over the person of such non-resident, the action should be dismissed.</p> <p>2. Pleadings may be Changed to Interpose Defense of Improper Joinder.</p> <p>If such non-resident defendaut has interposed a general denial, instead of pleading the improper joinder and service, he will be allowed, after the evidence is received, to interpose such an answer, and the case will be dismissed.</p>

<p>BILL OF EXCEPTIONS — RAILWAYS.</p> <p>3. Bill of Exceptions is Premature if Filed Before Decision on Motion for New Trial.</p> <p>Until after a decision upon the motion for a new trial is given, the matter has not been finally determined and no error exists. Hence a bill of exceptions cannot be taken until the motion is disposed of, and if filed that time saves no question in the case. The action of the court is not to be challenged, until after it has acted.</p> <p>2.;In Absence of Bill of Exceptions, Presumption is that Evidence Supported the Issues and Charge.</p> <p>Where the charge of the court fully covers the issues of the case, and correctly gives the law applicable to the controversy as presented by the pleadings, but there being no bill of exceptions present ng the evidence for review, in the absence of something in the record to the contrary appearing, the court will presume that there was evidence which supported the issues on behalf of plaintiff and to which the charge of the court was responsive.</p> <p>3. Company Liable for Fault of its Agents in ejecting a Passenger Regardless of how He Became on the Train.</p> <p>A plaintiff who has been wrongfully-ejected from a railway train, in the absence of excessive force in expelling hiui, is not limited has a remedy in tort, regardless of the contract with the railway company. But when there is the further element of excessive force and wanton assault, the action is maintainable whether the plaintiff was in the car rightfully or wrongful!)'.</p>

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

<p>TAXATION.</p> <p>1. Scrip Certificates Issued by a Corporation are not Taxabde.</p> <p>Where scrip certificates are issued by a corporation instead of shares of stock, for portions of the net earnings of the company which have been used by it in enlarging its plant, and it appears by the resolution of the directors authorizing the issuance of such scrip that there was no promise to pay the dividend in money, except upon a condition which never arose, such scrip cannot be called certificates of indebtedness, and, therefore, cannot be in the nature of a bond of the company ; and, if a bond at all, it is only for future stock, and, as such, it is not within the statute, enumerated as taxable property.</p> <p>2. What Amounts to a Fadse Return Under Sec. 2781, Rev. Stat.</p> <p>In order that a return be false under sec. 2781, Rev. Stat., it must appear that one making the return, either designed to mislead or deceive the assessor or that he at least was guilty of culpable negligence ; and] therefore, a person having an honest belief founded upon good and sufficient (legal) authority thatcertain property is not taxable, and for that reason fails to return such property, he is not guilty of making a false return or evading a return under the provisions of sec. 2781, Rev. Stat.</p>

<p>SLANDER.</p> <p>1. What Words are Slanderous per se.</p> <p>In an action for slander wherein it is alleged: “In place of trying to track around here you had better been to home tracking the man that burned your house and you would track him in your own door. You know you burned it. You took the money and built a barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money and had taken the insurance money and built his barn; such words are action able perse.</p> <p>2. What may be Shown under a General Denial.</p> <p>The defendant in view of mitigating damages may give evidence of a general report iu circulation prior to the publication complained of that the plaintiff was guilty of the charge then imputed to him. This is relevant only to rebut the presumption of malice and thereby mitigate damages, and the fact that it tends to prove the truth of the charge is no ground for its exclusion</p>

<p>Appear from Common Pleas.</p>

<p>ACTIONS — PARTIES.</p> <p>1. Application to set Aside Entry oe Dismissal under Sec. 5554, Rev. Stats, 'a Cumlative Remedy.</p> <p>Where an action prosecuted by one person in behalf of himself and others is irregularly or fraudulently dismissed, an application, under sec. 5354, Rev, Stat., to set aside the entry of dismissal, is a cumlative remedy and does not exclude or limit the right of a party to impeach the judgment or enjoin its its collection for fraud.</p> <p>2. Consideration for Agreement to Prosecute an Action for Several Parties in Interest.</p> <p>Payment of insurance on property destroyed by fire, through alleged negligence of railroad company, the value of which exceeds the amounts of the insurance, where there is a question as to whether a rail, road company is liable for the whole loss, is a sufficient consideration to support an agreement, on the'part of the assured, to prosecute, in his own name for himself and for the insurance companies, an action against the railroad company.</p> <p>3. Trustee — Settlement by is Settlement oe the Whole Suit.</p> <p>Such person stands in the relation of trustee to the insurance companies aud he cannot settle his own interests and leave the interests of the insurance companies to be prosecuted by them. Whatever action he takes he takes for the benefit of all and in making a settlement he settles the whole suit.</p> <p>4. Right oe Action Based on Irregular or Fraudulent Dismissal.</p> <p>Therefore, a petition setting forth the bringing of such action, by such trustee, under such an agreement, and the subsequent aud fraudulent dismissal, without the knowledge or consent of the insurance companies, and after the time when their rights of action against the railroad company are barred by the statute of limitations, states a good cause of action against such trustee.</p>

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

<p>Error to the Court of Common Pleas of Warren county.</p>

<p>Error to the Court of Common Pleas of Eorain county.</p>

<p>MUNICIPAL BONDS — INJUNCTION.</p> <p>1. Municipality cannot Increase its Indebtedness by Refunding Bonds.</p> <p>Where a municipalitj- cannot increase its indebtedness by issuing refunding bonds, by reason of the limitation contained in sec. 2701, Rev. Stat,, it cannot, by a separate resolution, create, originate or establish an indebtedness, which added to the refunding bonds would increase the original debt, and an injunction will be granted restraining the issue of bonds for such purpose, and the collection of taxes to pay such indebtedness.</p> <p>2. Bona Fide Purchaser — Effect of Temporary Injunction.</p> <p>Where an ordinance is passed authorizing the issue of such bonds oil a certain day, and before that day has arrived, and before the ten days required for the publication of the ordinance has expired, a temporary injunction is issued, restraining the issue of such bonds;'Held, that one who purchased such bonds cannot claim the privileges of a bona Jide purchaser.</p> <p>3. What Amounts to an Increase of Indebtedness — How Determined. _</p> <p>_ Where a municipality, in pursuance of a special act of the legislature, issues bonds for the purpose of building waterworks, and those bonds are sold at a premium, and before their maturity they are exchanged for other bonds of the same face value for a longer term and at a lower rate of interest, issued under an ordinance, entitled: “An ordinance for the purpose of refunding and extending the indebtedness of said municipality,” and at a later date another ordinance was passed, entitled: “An ordinance to provide for the issue of bonds to raise money to pay the indebtedness of this village, arising from the refunding and exchange of the waterworks bonds of said village;” and by a recital contained therein, it appears that the money was to be used to pay the purchasers of the waterworks bonds, the difference between the amount paid for them and the face value of the refunding bonds. Held, that the court will be bound by these recitals and declare the bonds illegal, as increasing the indebtedness of the village; nor will they question the legality of th'e first bond-issues and declare the indebtedness of the city to have been for the money received, when the legality of those bonds had never before been called in question.</p>

<p>Appear from the Common Pleas Court of Hancock county.</p>

<p>Mandamus.</p> <p>Heard on Demurrer to Petition.</p>

IÍrror to the Court of Common Pleas of Hamilton county. The claims sued on in the series of cases to which the above belongs aggregate about $27,000, and represent balances- remaining'unpaid on contracts for building the St. Nicholas Hotel annex.

<p>Error to the Court of Commou Pleas of Lorain county.</p>

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

<p>SUMMONS.</p> <p>Service of Summons by Delivering the Original Writ.</p> <p>Where the sheriff or his deputy makes a personal service, by delivering to the defendant the original writ of summons, and makes a return of such service upon a duplicate of the original summons issued by the clerk, constitutes a valid service.</p>

<p>ERROR — PRACTICE.</p> <p>Review of Evidence Before Trial Court — How Accomplished.</p> <p>Where the court of common pleas sets aside the settlement of a cause of action pending in such court, upon affidavits and parol testimony: Held, that in order to bring the evidence before the circuit court for review, it is necessary that a motion for a new trial should have been made and overruled in the court below, and thereupon a bill of exceptions taken, containing all the evidence.</p>

<p>Error to the Court of Common Pleas of Clinton county.</p>

<p>NEGLIGENCE.</p> <p>1. Opinion of Non Expert Witness Competent as to Speed of a Train.</p> <p>A non-professional witness wlio lias observed a moving train may give in evidence bis opinion of its rate of speed although he may have no practical knowledge as to the running or management of trains. The opinion involves, time, space and motion only.</p> <p>2. Opinions of Non Experts Based on Matters of Common Observation.</p> <p>In cases where it is not practicable, (because the fact to be established must be derived from a series of instances passing under the observation of the witness), to place before the jury all the primary facts upon which matters lying within the common observation of men are founded, non-experts may state their opinions from such observed facts, when such opinions involve conclusions material and pertinent to.the issues.</p> <p>3. Contributory Negligence Generally a Mixed Question of Law and Fact.</p> <p>In an action for damages for alleged negligence, the question of negligence on the part of the defendant or of contributory negligence on the part of the plaintiff, is generally a mixed question of law and lact, to be decided by the jury, under proper instructions from the court.</p> <p>4. A Question of Law when no Rational Inference but Negligence. _</p> <p>_ But if all the material facts, touching the alleged negligence, be undisputed or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of negligence becomes a matter of law merely, and the court should so charge the jury.</p> <p>5. When Motion for Judgment on Special Findings Should be Refused-</p> <p>Touching the question of contributory negligence, in order that the special findings of a jury should control the general verdict to the contrary, such findings should be conclusive and admit of no rational inference but that of negligence, thus making it a question of law merely,</p>

<p>Error to the Coart of Common Pleas of Lucas county.</p>

<p>Hrror to tbe Court of Common Pleas of Lucas county.</p>

<p>Error to the Court of Common Pleas of Eucas county.</p>

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

<p>WILLS — WORKS.</p> <p>1. Meaning of the Phrase, "or the Use Thereof” as Used in a Wide.</p> <p>Where the testator in his will gives to his son all his real estate, “or the use thereof as hereinafter pointed out,” Held, that the words, “or the use thereof,” means, “or else the use thereof,” rather than, “or rather the use thereof.”</p> <p>2. Word “Heirs” Being Used in the Sense of “Issue,” Effect.</p> <p>Where the testator in bis will, provides that “if my son John shall have an heir of his own body, then all title ® •* * shall vest in him" Held, that the word "him" refers to '“John” and not to the "heir." The word “heir” being used in the sense of “issue.”</p> <p>3. Meaning of Word Estate.</p> <p>The word “estate” is construed to mean “property” than “interest.”</p>

<p>Error to the Court of Common Pleas of Picking county.</p>

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

<p>EJECTMENT — MUNICIPAL CORPORATION.</p> <p>1. Ejectment to Recover a Part of a Street in a Municipality.</p> <p>Ill ail action ol ej’-ctment to re.cover a part o< a street in a municipality, which the city was at the time grading: Held, that where a piece of laud is platted, and streels located thereon, the purchasers of lots abutting on such streets, acquire a right to the full and undisturbed use of such streets, and have the right to improve them, and may avail themselves of the agency of the city lor this purpose.,</p> <p>2. Question ok Estoppel</p> <p>Whether or not the city is estopped by a former proceeding from claiming any interest in the street, such'fact is not available against the abutting owner.</p>

<p>FORCIBLE ENTRY AND DETAINER.</p> <p>1. Collateral Attack as to the Constitutionality oe an Act, not Allowed.</p> <p>In a proceeding of forcible entry and detainer before a city judge, acting as such under a statute creating such office, the defendant cannot questionthe constitutionality of such act, as such judge is acting under a color of title, and hence, being a de facto officer, his authority cannot be questioned except by qtio warranto at the suit of commonwealth,.</p> <p>2. Tenant Cannot Question Landlord’s Title.</p> <p>In a proceeding of forcible entry and detainer, the defendant has no right to question the title of the landlord, unless it is shown that he had parted with his title after beginning of the suit, or something of that sort.</p>

<p>VERDICT.</p> <p>Verdict Dual in Form, Being a Mere Irregularity is not Prejudicial.</p> <p>Where the jury return a verdict dual in form, being a finding for plaintiff on the cause of action stated in the petition, and a finding for defendant on the cause of action stated in the answer and cross-petition ; such verdict is not inconsistent, and the court is authorized to subtract the findings and enter judgment for the difference.</p>

<p>CORPORATIONS.</p> <p>Statutory Liability Continues until Transfer op Stock on Books of Company is MADE.</p> <p>Where a stockholder makes a written contract for the sale of his stock, he remains liable as owner thereof to an assessment under the statute tor debts contracted prior to the entry of the transfer of such stock on the books of the company.</p>

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

<p>Error to the Court of Common Pleas of Eucas county.</p>

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

<p>RELIGIOUS SOCIETY.</p> <p>1. Conveyance of Real Estate by Trustees of a Religious Corporation.</p> <p>Where the trustees of a religious corporation or association organized under sec. 3241, Rev. Stat., convey its real property without having first obtained the consent and authority of the members of such association, and without having obtained any authority from a court for that purpose, renders such transaction illegal and void.</p> <p>2. ACT of March 17, 1898, 93 O. L., 462, is Unconstitutional and Void.</p> <p>What the constitution forbids, the legislature may not do, and it has no more power to give away the property of a citizen, than it has to authorize its appropriation without compensation; and, therefore, the act of the legislature passed March 17, 1898, 93 O. L., 462, which authorized “the trustees ot the South Kenton Sunday School Assn., etc., to convey by deed the real estate now held by them,” etc., is unconstitutional, and the deed made thereunder is void and of no eflect to transfer title.</p>

<p>Rrror to the Court of Common Pleas of Ricking county.</p>

<p>Frror to the Court of Common Pleas of Butler county.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Incidental Powers oe Gas Trustees in Management oe Gas Works owned by the City.</p> <p>Where a city has been authorized by law to purchase and construct a gas plant, to the end that the inhabitants might be provided with light and fuel, the things necessary to accomplish in a safe and reasonable manner the object for which the plant had been acquired, and to preserve the property so constructed from destruction and impairment to a degree not amounting to an extension or rebuilding in whole or in part, are incidental to and go with, and continue with the power to construct and acquire and own as a current necessity.</p> <p>2. Power oe Trustees to Employ such Service as is Necessary to Carry on ' the Business oe the Plant.</p> <p>The trustees of gas works owned by the city have authority to employ such service as is necessary to carry on the business of the plant, and to preserve it and make its operation sale to' life and property; all this lies within the radius of the use and purpose of the plant, and appears to be in contemplation of the law which empowers its construction as incident to its establishment and control.</p> <p>3. Payment oe Current Expense Incurred in Operating such Plant. _</p> <p>_ The current expenses incurred in operating a gas plant owned by the city, are to be paid out of the income, and it is not necessary that each item of such expenses should be anticipated by a certificate of the city clerk, as is provided for in sec. 2702, Rev. Stat., in order to authorize and make lawful the payment of such expenses.</p> <p>4. A Member oe the Board oe Gas Trustees cannot deal with the Board.</p> <p>When a municipality is allowed to embark in a business enterprise such as operating a gas plant to furnish its inhabitants with light and fuel, and to carry on the business of buying and selling gas, those who conduct the business and control it, may not directly or indirectly, both buy for it and sell to it, either materials or labor.</p> <p>5. A Retired ' Officer cannot be Employed by such Board within one Year after Expiration of His Term of Office.</p> <p>An officer of a municipal corporation wko has retired from the office to which he has been selected or appointed, may not be interested either directly or indirectly in any work or service for said corporation until the expiration of one year after his retirement from office, as provided for in sec. 6976, Rev. Stat. He may not direct or control its future policies while in office, and then upon retirement stand ready to acquire as an individual the harvest which he has hoarded as a public officer.</p> <p>6. Trustees of the Gas Works are Public Officers.</p> <p>The trustees of the gas works of a city are public officers, and the nature of their duties make them officers of the corporation, and as such are subjected to the provisions of secs. 1545-97 and 6976, Rev. Stat.</p>

<p>Appeal from the Court of Common Pleas of Crawford county.</p>

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

<p>Error to the Court of Common Pleas of Defiance county.</p>

<p>Error to the Court of Common Pleas of Allen county.</p>

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

<p>CORPORATIONS.</p> <p>1. What Wiee Amount to a Purchase by a Corporation of its Stock.</p> <p>Where a board of directors of a corporation, by resolution authorize the pur- . chase of its stock held by two of its officers, such purchase to be made by one of the directors as trustee for the company and the same to be paid for with notes of the company, the company to pay such notes as they mature, holding said trustee harmless and retaining the stock when the notes are paid, constitutes a purchase by the company of its own stock.</p> <p>2; A Corporation Cannot Deae in its Own Stock.</p> <p>Where a corporation purchases its own stock from two of its officers, for the reason and in consideration of their proposed retirement: Held, that this does not constitute a valid reason for the company to buy in its own stock; and, therefore, such purchase not being lawful, but void, the parties who attempted to sell their stock did not cease to be stockholders in said company.</p>

<p>UNIFORM OPERATION OF LAWS.</p> <p>1. General Daws Need not have Uniform Operation as to Manner in which Power of State Shall be Exercised in Different Portions of the State.</p> <p>The act of March 30, 1893, 90 O. D., 238, providing “that in cities of the first grade of the first class the board -oí administration of any such city shall have authority to cause any alley of said city that is twenty feet or less in width to be improved with such material as said board shall deem best” iá not unconstitutional for the reason that such alleys are to be built by a particular board in said cities and alleys of a different width are to be built by another board. The fact that the subject-matter is oí a general nature does not require that the law shall have a uniform operation throughout the state as to the manner in which the powers of the state shall be exercised in the different portions of the state. This relates to the acts to be performed by the corporation in the exercise of its sovereignty, and if in doing it the citizen is not directly injured he cannot complain.</p> <p>Z- Daw Imposing Bordens on Property Owners in One Part of the Stats not Imposed Elsewhere is Unconstitutional.</p> <p>The seventh section of said act, however, provides that the entire cost of the improvement, except two per cent, and the intersections, shall be assessed on the lots and lands bounding and abutting on the improvement, whereas, in any other portion of the state, under sec. 2293 Rev. Stat., tfie property owner would have to pay only one half the Gost o.f the improvement. The statute, therefore, imposes a burden on owners of real property situated in cities of the first grade ot the first class not imposed on owners of real property situated in other parts of the state and is unconstitutional in so far as it applies to twenty foot alleys which have been previously improved and where no change of grade is made.</p>

<p>Error to Court of Common Pleas.</p>

<p>CONTRACT OF GUARANTY.</p> <p>Action upon a Contract or Guaranty.</p> <p>Where a bicycle dealer enters into a written contract with a manufacturer of bicycle parts, in which the latter agrees to furnish the former 3,000 bicycle pedals, to be delivered during a certain specified season, and, subsequently a guaranty is executed by a third party, guaranteeing to such manufacturer the payment of the price and value of any bicycle parts and materials and other merchandise furnished such dealer during the season specified in the contract, and an action is afterwards brought upon such guaranty, and it appears that materials were furnished not covered by the contract for pedals, such guarantor is bound on his written guaranty for goods furnished during the time specified in his contract out, rhat were not covered by the contract for pedals.</p>

<p>Error to the Court of Common Pleas of Eucas county.</p>

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

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

<p>LIMITATIONS — CONTRACTS—EVIDENCE.</p> <p>1. Limitation in an Action on a Contract that is only Partly in Writing.</p> <p>An action upon a contract that is only partly in writing, there being unilateral terms or promises upon the one side that are not reduced to writing, is governed by sec. 4980, Rev. Stat., which limits the commencement of an action upon a contract in writing to fifteen years.</p> <p>2. Parol Evidence is Admissible to show other Terms not Inconsistent with those in the Contract.</p> <p>Where it is evident from the written instrument that only a part of the terms are expressed, parol evidence is admissible to show other terms not inconsistent with those expressed.</p> <p>3. Burden oe Proof in Showing Consideration.</p> <p>In an action upon a contract which upon its face expresses no consideration it is necessary for plaintiff to allege and prove a consideration, and on this issue the burden of (Iroof is on the plaintiff from the beginning to the end of the inquiry.</p>

<p>HABEAS CORPUS.</p> <p>1. Res Adjodicata not a Good Plea.</p> <p>An answer to a. writ of habeas corpits alleging that an application for a writ had previously been made to another court, setting out the same state of facts as ground for the writ, and that the writ had been refused by that court, does not amount to a good plea in bar, nor does it afford the court just grounds for refusing to act,</p> <p>2. Imprisonment for Costs in a Criminal Prosecution,</p> <p>Judgment for costs following conviction in a criminal prosecution, only becomes a part of the sentence when there has been a fine imposed, and when the judgment is entered that defendant be imprisoned for a certain term and pay the costs of the prosecution for which execution is issued, but no fine is imposed, an execution for the body of the defendant is unauthorized, sud imprisonment under such judgment, or under an execution issued thereon, is illegal, and habeas corpus will lie.</p>

<p>APPEALS — CONSTITUTIONAL LAW.</p> <p>1. Acts Relating to the Jurisdiction of the Court of Common Pleas are of a General Nature.</p> <p>All acts and provisions relating to the jurisdiction of the court of common pleas, are acts of a general nature and must have a uniform operation throughout the state.</p> <p>2. Validity of Act of April 25, 1898, (93 O. L., 322), Relating to the Appeal of a Case to the Common Pleas.</p> <p>The legislature has no power to affix to the right to appeal to the court of common pleas of Lucas county, or from any township in that county, any diffierent conditions of appeal from those prevailing in the whole state; and, therefore, that part of the act of April 25,1898, (93 O. L., 322), which provides that in order to appeal a case to the common pleas, it is nece'ssary for the appellant to pay all the costs that were adjudged against hkn in the city court, is invalid and failing to pay such costs the court of common pleas is not justified in dismissing his appeal.</p>

<p>NEGLIGENCE — CHARGE TO JURY,</p> <p>'l. Question of Fact upon which Jury are Entiteed to draw Inferences, not Reviewabee.</p> <p>In an action for damages for death caused by negligence, which appears to be peculiarly a question of fact upon which the jury are entitled to draw inferences of negligence of either of the parties: Held, that whichever wav the jury decide it, a reviewing court is not authorized to disturb their verdict, finding that the defendant was negligent and that the decedent was not negligent in any manner contributing to his injury.</p> <p>2. Comment of Court in Refusing to Give Defendant’s Requests.</p> <p>Where defendant’s counsel submits to the court certain requests to be given to the jury, and the court gives a part of such requests, and then said that all of the other i equcsts were refused because they did not conform to his views of the law; such comment is not prejudicial lo the defendant and does not amount to anything.</p> <p>3. Not Error in Refusing to give Request which Limits the Jury to too Smaee a Number of Facts.</p> <p>It is not error for a court to refuse a requast which limits the right of the jury to pass upon the evidence in the case to too small a number of facts.</p>

<p>INSOLVENT DEBTORS.</p> <p>1. Failure of Creditors to Present their Claims to The Assignee within ' The Time Limited by Statute.</p> <p>A failure of the creditors to present-their claims to the assignee within six months after publication of notice of appointment of such assignee, is a bar to such claims unless there are funds available in the hands of the assignee^</p> <p>2. Discharge of Assignee — Retention of Funds After Discharge.</p> <p>Where an assignee has been discharged, he cannot retain funds of the assignor in his hands, on the ground that they will be necessary to pay claims which may be presented by creditors who have failed to present their claims within six months after publication of notice as required by statute.</p> <p>3. Evidence as to Ownership of Certain BoSids Delivered by Assignor to the Assignee.</p> <p>The mere fact that certain bonds were delivered to the assignee for the purpose of paying a debt of the assignor, is not evidence sufficient to show that the assignor was the owner of such bonds.</p>

<p>DOWER.</p> <p>3. Character, of Wife’s Dower Interest.</p> <p>The wife’s dower interest remains under sec. 4188 as before that act was passed, and that of the husband is of the same quality and character.</p> <p>%. Character of Such Interest After Decease of Wife and Before Assignment.</p> <p>After decease of wife and before assignment, it is not such an “ estate ” as is properly She subject of the Hen of a judgment against the husband or subject to levy upou execution ; but it is such an interest as may be subjected to the payment of such judgment by proceedings in equity.</p> <p>3. action to Set Aside a Release of Such Dower Interest.</p> <p>In an action to set aside a release of such dower interest, when it clearly appears in the evidence and is not disputed that it was voluntarily released to the children, while the debt was in existence, the burden of showing the solvency of.the debtor at that time is upon the children.</p>

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

<p>DITCH ASSESSMENTS.</p> <p>1. Injunction may be Allowed to Prevent Gross Insustice in Ditch Assessment.</p> <p>Under sec. 4491, Rev. Stat., an action may be maintained to enjoin tbe collection of an assessment, to pay the cost of locating and constructing a ditch improvement, on the single ground of gross injustice in the apportionment.</p> <p>2. Injunction Denied where it is Simply a Question of Unequal Apportionment.</p> <p>An apportionment somewhat unequal, perhaps believed to be somewhat unjust, viewed alone in the light of relative benefits to be derived, would not bring the case within the statute referred to. In such case the situation would be that of an unequal and not entirely equitable apportionment, in which the party aggrieved would have an adequate remedy at law and would be denied the extraordinary remedy of injunction.</p> <p>3. Evidence Bearing on the Question of Gross Injustice.</p> <p>Evidence tending to show that this party complaining wrongfully erected constructions and destroyed natural drainage, thus creating necessity for better drainage, and increasing the cost of securing it, is competent as bearing on the question of gross injustice in the apportionment.</p> <p>4. Not Gross Injustice that such Party should bear a Large Share of' the Cost of Improvement.</p> <p>And where the foregoing facts appear it is not in the nature of a gross injustice that such person, in a strictly regular and lawful proceeding, should bear a large share of the expense necessarily incurred in removing the obstructions and in providing proper and sufficient drainage.</p>

<p>EVIDENCE — PLEDGE.</p> <p>1. Oral Declarations not Admissible to Show Purposes of Ambiguous Written Instrument.</p> <p>Oral declarations of the parties to a written instrument made on or before tha execution of the same, are not admissible in evidence to show an intention or purpose not therein expressed, although the ambiguity in the instrument may make the purposes or intentions oí the parties uncertain.</p> <p>2. Nor to put Court in Possession of Facts which will aid in Construing such Instrument.</p> <p>Nor is such evidence admissible on the ground that it will put the court in possession of facts which will aid it in the construction of the written instrument, in the absence of allegations warranting the interposition of a court of equity on some of the well established grounds upon which courts go behind written instruments.</p> <p>3. Oral Evidence Admitted to show Nature of Transaction Evidenced by Written Agreement.</p> <p>Where a transaction affecting title to property evidenced by a written instrument is under investigation in a court of equity, and the question to be determined is whether an unconditional conveyance of the title or a mortgage or pledge to secure a loan was intended, evidence of oral agreements and conversations of the parties prior to and contemporaneous with the execution of the instrument will be admitted for the purpose of determining the true character of the transaction. Parker, J., dissenting from this ruling on the ground that where the instrument is accompanied by a writing, which has no mark of incompleteness, but seems to give a full record of the transaction and the terms upon which the property conveyed in the nstrument should be held by the transferee or redeemed by the transferer — oral evidence should not be admitted tending to show a different intent than that expressed therein.</p> <p>4. Relations of the Parties, Contemporaneous and Subsequent Acts Admissible.</p> <p>Evidence relating to the relations of the and their contemporaneous acts, as distinguished from their utterances, and as to all subsequent acts and admissions, is competent.</p> <p>5. It is not Essential that there Should be a Promise to Repay.</p> <p>It is not necessary to constitute a pledge out of what appears, on its face, to be an absolute transfer of property, than there should be an express promise to repay: when the relation of lender .and borrower exists the law implies a promise to pay.</p> <p>6. Facts under which Transfer of Stock Held to be a Mere Pledge.</p> <p>C. executed blank assignments of certificates of stock to I.; the name of transferee, and dates of transfer, were never inserted and no transfer was made on the books of the company issuing the stock. The transfer was accompanied by a written instrument in which C., after transferring the stock to I., guaranteed that he should receive at least 6 per cent, per annum on it and stated that I. agreed to allow C. the option of redeeming the stock when he could do so. I. exercised none of the rights of ownership in relation to the stock and C. continued to vote it without consulting him. Held, the transaction amounted to a pledge rather than a conditional sale of the stock.</p>

<p>JURY FEES IN PURE FOOD CASES.</p> <p>Payment of Jdry Fees in Proceedings under Sec. 3718a, Rev. Stat.</p> <p>The payment lof jury fees in a proceeding before a justice of the peace under sec. 3718a, Rev. Stat., are to be made upon a warrant issued by the county auditor upon the county treasurer, and such warrant is to be issued when the justice certifies to the auditor the amount to which each juror is entitled.</p>

<p>NEGLIGENCE. — ERROR—DAMAGES.</p> <p>1. Failure to Provide Means oe Giving Employee Notice oe Running oe Trains Negligence.</p> <p>Failure of a railway company to provide reliable means of conveying notice to one of its switchmen that a regular eastbound train will pass over a westbound track, when his duties require him to pass upon and along such track, is negligence.</p> <p>2. Proximate Cause.</p> <p>When such employee is, while in performance of his duties and without contributory negligence on his part, run over and killed by such eastbound train, the failure to give notice is the proximate cause of the injury.</p> <p>3. Custom to be Considered in Determining whether or not Employee was Negligent.</p> <p>When it has been the custom of the company to notify the employee whenever trains were to be run on the track other than the one usually used, he has a right to rely upon such custom, and this will be considered in determining whether or not he was negligent in walking upon the track.</p> <p>4. Walking on Tracks of Railway not per se Negligence.</p> <p>When it was decedent’s duty to go to and fro between the target and switch stand and it would be dangerous to walk elsewhere it cannot be said as a matter of law that he was negligent in walking between the tracks.</p> <p>5. Failure of Court to Charge or Refuse to Charge as Requested before Argument may not be Error for which Judgment will be Reversed.</p> <p>Where counsel before argument requests court to charge or refuse to charge certain pertinent propositions of law which the court does not do because he did not understand the request, .the judgment will not be reversed if the same points were substantially covered in the charge given.</p> <p>6. No Fixed Rule for Computing Damages for Wrongful Death.</p> <p>They are not warranted in using any set of mortality tables or any other fixed rules in determing whether or not a verdict is excessive.</p> <p>7. When Verdict to be set Aside as Excessive.</p> <p>Verdict should not be set aside simply because it is excessive in the mind of the court, but only when the excess is shocking to a sound judgment and a sense of fairness to the defendant.</p>

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

<p>STREET RAILWAYS.</p> <p>Where a street railway company contracts with another street railway company to-permit the cars of such other company to run over its track, such, other company cannot, under such contract, run the cars of a third connecting company over the tracks of such first company.</p>

<p>Error to the Court of Common Pleas of Hamilton county.</p> <p>Robert Ramsey, for plaintiff in error.</p> <p>Gorman & Thompson, contra.</p>

<p>STREET RAILWAYS.</p> <p>1. Validation of Invalid Ordinances by Subsequent Legislation.</p> <p>The legislature may by a subsequent law validate acts and contracts made ultra vires by municipal corporations, if the defect sought to be removed or made harmless be something which the legislature by a prior law might have authorized or made immaterial.</p> <p>2. Principle of Estoppel by a Subsequent Judgment.</p> <p>Where a party has obtained a judgment or decree in his favor, and afterwards becomes a party to another action in which such prior judgment or decree was or could have been pleaded as a bar to the second action, but either fails to make the plea or, making it, the plea was overruled for any reason, and a contrary judgment or decree is entered in the second case, the latter judgment will govern and the former judgment will be in effect annulled.</p> <p>3. Right of Purchaser to Look to Decree of Court as his Source of Title.</p> <p>A purchaser of a line of street railway under a decree of a United States court in foreclosure, holding that a previous decision of the state Supreme Court is not conclusive as to the corporate capacity of the defendant mortgagor to acquire the line of railway, has a right to look to such decree as a source of title, and will take a good title to the right of way and franchise of the mortgagor therein held to be valid.</p> <p>4. Subrogation of Purchaser to Rights of Original Lienholder.</p> <p>The purchaser at a sale made for the enforcement of a mortgage or other lien is subrogated to the rights of the original lienholder even though the proceedings were invalid and his purchase avoided.</p> <p>5. Injunction against Threatened Summary Abatement of Tracks as a Nuisance.</p> <p>A village or municipality which was not a party to the suit in the United States court can abate said railway as a nuisance in its streets, if at all, only by due process of law; and threats of tearing up the tracks by the municipality give the railway company a right of action against the village by injunction.</p> <p>6. Municipality Estopped by Inducing Construction of Railway.</p> <p>Where a village, through its council, invited and induced a street railway company to enter its corporate limits and occupy its streets with tracks for the purpose of operating a street railway, and the company thereupon built and equipped a railway in its streets, and made large expenditures ir so doing, the village cannot thereafter repudiate the action of its council on the ground their proceedings were irregular.</p>

<p>Frror to the' Court of' Common Pleas of Hamilton county.</p>

<p>INDEMNITY AGAINST UNCOLLECTIBJLE DEBTS.</p> <p>A Contract of Indemnity for Uncollectible Debts a Contract of Insurance.</p> <p>A contract of indemnity against losses arising from uncontrollable debts is a contract of insurance, and ambiguities will be construed in favor of the insured.</p>

<p>TAXATION.</p> <p>Construction of Sec. 1095, Rev. Stat. — Collection of Taxes by Distress.</p> <p>Under sec. 1095, Rev. Stat., which authorizes a distraint for taxes, the county treasurer is not authorized to take possession of á vessel owned jointly by several owners, and holdisuch vessel so that he could sell it under the statute, and thus collect the taxes levied upon the part of one of such joint owners.</p>

<p>Heard on Error.</p>

<p>TOWNSHIP TRUSTEES — PLEADING.</p> <p>Mandamus to Compel Township Trustees to Submit the Question oe Whether a Certain Part oe a Township Should Be Incorporated.</p> <p>In a petition in mandamus against township trustees, which alleges that a petition was filed with such trustees to submit the question of incorporating, as a village, a part of the township ; the answer alleged that the map filed with the petition to the trustees, (as required by statute), was not accurate, also that the sole reason why the petition had not been considered by the trustees was lack of time on their part: Held, that such answer was good as against a demurrer.</p>

<p>Error to the Court of Common Pleas of Erie county.</p>

<p>JURISDICTION.</p> <p>Action for Burning Fences, Etc., not Within Jurisdiction of Justice.</p> <p>An action against a railroad company for damages for burning fences, grass, etc., is not an action of trespass to realty, but is an action involving the title to or possession of real estate and not within the jurisdiction of a justice of the peace.</p>

<p>SPECIFIC PERFORMANCE OF CONTRACTS.</p> <p>1. To have Specific Performance, the Contract must be Definite.</p> <p>If a contract is so indefinite that the court cannot determine the terms of that contract from the contract itself or some writing it refers to, if it refers to land, then the court cannot specifically enforce the contract.</p> <p>2. Court Cannot Name a Time when a Nortgage is to Mature._</p> <p>Where the parties to a mortgage have not fixed a specified time for its maturity, the court cannot name a time when the mortgage is to mature.</p> <p>3. INDEEINITENESS OB CONTRACT NOT TO BE SUPPLIED BY COURT, WHEN—</p> <p>' Where a contract made for the exchange of property is so indefinite in regard to the time when a mortgage therein named should be made to mature, such contract leaves something to be determined by the parties, and is entirely outside the knowledge of the court, and being outside the knowledge of the court, the latter cannot say when that mortgage shall mature; and, therefore, the court cannot make a contract for the parties, nor can it add one essential or important element to the contract that is already made.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>1. Hearsay Evidence.</p> <p>In action against the owner of a runaway horse evidence of a third person that one of defendants employees, in defendants absence, said the horse had run away before and “ the boss knew it ” is incompetent.</p>

<p>FIREMEN’S PENSIONS.</p> <p>1. Person Acting as Temporary Substitute for Fireman not Entitled to Mandamus to be Placed on Pension List or for Injuries Sustained.</p> <p>A person injured while serving as a substitute for another fireman temporarily absent from his post of duty, is not entitled to a writ of mandamus requiring trustees of the Firemen’s Pension Fund to place him on the pension list on account of such injuries.</p> <p>2. Law of 1889 Applies Only to Regularly Appointed Substitutes.</p> <p>The law of 1889, 86 O. L., 149, must be construed with reference to the rules of the board of fire commissioners, and when so construed applies only to substitutes regularly appointed under such rules.</p> <p>8. Person Appointed for Temporary Duty is not such a Substitute. •</p> <p>A person appointed for temporary duty is not a regularly appointed substitute member of the fire department, and is not, therelore, entitled to the benefits of the law in question.</p>

<p>GAMBLING CONTRACTS.</p> <p>1. Note for Money Furnished for Gambling Purposes Void, Whether Money is Lost or Not.</p> <p>A promissory note for money furnished for gambling purposes is void, whether the money was lost at the time of giving the note or not.</p> <p>2. Trial Court Should Grant New Tral When it Appears Money was ' not in Possession of Maker when Note was Given.</p> <p>It is error for a trial court to refuse a new trial when the evidence shows that the money involved was furnished for gambling purposes and was not in the possession of the maker when the note was given.</p>

<p>MARRIAGE.</p> <p>1. Evidence Establishing Common Raw Marriage.</p> <p>Evidence of cohabitation, recognition of children and the holding out of a woman as one’s wife is competent to establish a common law marriage.</p> <p>2. Such Marriage May be Made Basis eor Conviction on Charge oe Bigamy.</p> <p>Such a marriage is valid in Ohio and may be made the basis for a conviction on the charge of bigamy.</p> <p>8. A Marriage eor one Purpose is a Marriage eor all Purposes.</p> <p>There cannot be a marriage for one purpose that is not a marriage for all purposes of such contract.</p>

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

<p>SEWER ASSESSMENTS.</p> <p>Statute as to Limitation oe Lots to be Assessed Should be More Explicit.</p> <p>The statute, relative to the exemption or limitation of lots to be assessed for sewers, on account of local drainage, should be made more explicit; as it now stands, whether a lot needs drainage or has drainage, must be largely a question of opinion, not regulated by any fixed standard.</p>

<p>HALF-HOLIDAY LAW.</p> <p>’The Saturday Hale-Holiday Daw is Unconstitutional.</p> <p>The Saturday half-holiday law, 92 O. D-, 208, applicable only to cities having a a population of 50,000, or over, is one on a general subject, and as there is no ground whatever upon which the legislature can make that classification the law is unconstitutional.</p>

<p>OIL WELL TAXATION.</p> <p>Oil Taxes Shall be Distributed to all Parts of County Pro Rata.</p> <p>The law providing that all taxes collected from oil, not to exceed $2,500, shall be returned to the township wherein said wells are located, and devoted to road purposes, is unconstitutional. Such taxes should be distributed to all parts of the county pro rata.</p>

<p>FOREIGN CORPORATIONS — TAXATON.</p> <p>Shares of Stock of Foreign Corporations Paying Taxes on Capital Stock are Exempt.</p> <p>A foreign corporation having its principal place of business, its business and its property within the state and subject to taxation, the shares of stock in such corporation are exempt from taxation.</p>

<p>TENDER — APPEALS.</p> <p>Valid Tender in Common Pleas in Case Appealed from Justice Court Where Tender Was made Before Suit but not Made Good Until after Trial.</p> <p>A valid teuder in the common pleas court, in a case appealed from justice court, where a tender was made before suit was brought before the justice, but not made good previous to the trial, must include not only the interest due on the claim but also the costs before the justice.</p>

<p>CONVEYANCES.</p> <p>Construction or Uncertain Deed.</p> <p>Where the meaning of a deed, as to a portion of the property conveyed, is uncertain, it may be found and formed in the construction placed upon it, at the time of the execution and for many years afterward, by the parties to it.</p>

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

<p>NEGLIGENCE — EVIDENCE.</p> <p>1. Negligence — Burden of Proof.</p> <p>Where the evidence tends to show that the motorman of a car running at the rate oí four miles an hour that could be stopped within ten or fifteen feet, sees a child three and a half years of age at a point of danger, fifty feet in front of him, and permits the car to run over and kill the child, it is error to direct a verdict for the defendant street railway company.</p> <p>2. Scintilla Rule Upheld.</p> <p>This court firmly believes in the well settled' rule that where there is evidence tending to establish plaintiff’s case, it is for the jury to decide in the first instance; judges have power enough without encroaching upon that of the jury.</p> <p>3. Measurements Competent, When.</p> <p>It is competent to introduce measurements made after the occurrence, if the witness is sure of the locations.</p>

<p>Error to the Court of Common Pleas of Defiance county.</p>

<p>PARTNERSHIPS — NEGLIGENCE.</p> <p>1. Employment of Coachman by Three Separate Families Does not Constitute Partnership.</p> <p>The employment of a coachman by three parties, to serve whichever family should call on him, each maintaining a separate turnout and each paying one third of the coachman’s wages, does not of itself constitute a partnership between the employers, rendering all liable for the coachman’s negligent acts</p> <p>2. Employer Controlling Horses and Driver Alone Responsible for Coachman’s Negligence.</p> <p>For an injury resulting from the negligence of such coachman the employer whom he is serving at the time, and who has complete control over horses and driver, is alone responsible.</p> <p>3. Violation of City Ordinance not of Itself Negligence.</p> <p>The violation of a city ordinance, in driving or causing a carriage to be driven around the corner of a street faster than a walk, is not of itself negligence, or, independent of any other facts, conclusive on that question.</p>

<p>CONVEYANCES — EASEMENTS—CO-TENANTS.</p> <p>1. Deed Executed but not Delivered in any Way Conveys no Rights or Title.</p> <p>A deed executed by a lather to some of his children for ground to be used by them as a roadway, as against another of his children, which was never delivered by him to them, nor by any person authorized by him to do so, nor as an escrow to aiw person to be delivered to them in any contingency, but which was simply found in the possession of another person several years after the death of the grantor, conveys no title or rights.</p> <p>2. Co-Tenants — One Wrongfully Kept out of Possession. Ejectment or Trespass.</p> <p>One or more co-tenants cannot enjoin another co-tenant from the use of part of the land where all are entitled to possession of it, and if one wrongfully keeps his co-tenant out of possession, ejectment or trespass will lie.</p> <p>3. Injunction not a Proper Remedy.</p> <p>Injunction is not the proper remedy in such cases, for the reason that the law, as above stated, provides an adequate remedy.</p> <p>4. Injunction Lies for Interference of Easement.</p> <p>But where the parties have simply an easement, such as a right of way, on the property, an unlawful interference with it may be enjoined.</p> <p>5. Easement by Contract not in Writing and by Taking Possession.</p> <p>Where parties claim an easement or a right of way by contract not in writing and taking possession, they are limited to the extent of the easement or width of the way so taken possession of and accepted.</p>

„ This is an action brought by a property owner to enjoin lite auditor from offering his property at forfeited sale on the second Monday in April, 1898; the case was tried on an agreed statement of facts.