text:
    MOTION FOR NEW TRIAL AND APPEAL IN ATTACHMENT.
    [Circuit Court of Cuyahoga County.]
    J. B. Cecil et al v. John Grant et al.
    Decided February 20, 1905.

      Attachment — Motion for a New Trial — Does not Extend Time for Filing Bill of Exceptions — Appeal of Motion to Dissolve Attachment — Constitutionality of Section 6494.
    1. There is no provision of law authorizing the filing of a motion for a new .trial, after a ruling on a motion to dissolve an attachment; hence the filing of such motion for a new trial is a nullity and does not operate to extend the time within which a bill of exceptions to such ruling may be file’d.
    2. That part of Section 6494, Revised1 Statutes, which authorizes the defendant in attachment to appeal his motion to dissolve the attachment .to the common pleas court, when the same is overruled by the justice of the peace, is no.t void because the right of appeal is not given the plaintiff in attachment, when such motion is sustained by the justice.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the court of common pleas.
   Plaintiffs brought 'their action against defendants before a justice of the peace, to recover on a claim alleged to be for necessaries. An order of attachment was issued in the case on the affidavit of plaintiffs that the claim was for necessaries contracted for since April 26, 1898. Thereupon defendants moved the justice to discharge the attachment on the ground that the facts stated in the affidavit were not true and that the property sought to be attached was exempt from execution and attachment. This motion was overruled and thereupon defendants appealed it to the common pleas court.

In the common pleas court plaintiffs first filed a motion to dismiss the appeal on the ground that the statute under which the appeal was attempted is unconstitutional and void. This motion was overruled. As to the subsequent proceedings in the common pleas court it is necessary to notice the dates.

On August 17, 1904, motion to discharge the attachment heard and granted as to ninety per cent, of the fund held by the garnishee; plaintiffs except; judgment against plaintiffs for costs.

August 20, 1904, motion by plaintiffs for new trial filed.

August 20, 1904, petition in error to circuit court filed.

December 16, 1904, motion for new trial overruled; plaintiff excepts.

January 16, 1905, bill of exceptions filed.

It will be noticed that the bill of exceptions was filed more than forty days after the motion to discharge the attachment was granted, but within forty days of the overruling of the motion for a new trial.

The case being brought into this court by petition in error properly filed, defendant in error has moved to strike the bill of exceptions from the files. It is conceded that this motion should be granted, unless, by the filing of a motion for new trial and delay in ruling thereon, the time within which the bill of exceptions should be filed was extended beyond forty days from the order complained of.

It is further conceded that no motion for a new trial is necessary to authorize this court to review a judgment of the common pleas court upon a motion to dissolve an attachment, although the weight of the evidence is involved. Stone v. Bank, 8 C. C., 636.

But plaintiffs in error contend that although such motion is unnecessary, having filed a motion for a new trial in the common pleas court, the time limited for the filing of a bill of exceptions begins to run from the overruling of such motion, and cites in support of his contention the case of Cincinnati Street Railway Company v. Wright, 54 O. S., 181, where it is said, by Bradbury, J., on page 188:

“Counsel contend that because a motion for a new trial is not necessary to preserve the right to review a charge of the court, the time within which a bill of exceptions should be taken for that purpose begins to run from the day the charge was given. This contention would be sound in a case where a motion for a new trial was not made, and the party excepting chose to rely upon the exceptions during the course of the trial. The choice, however, is with him. ’ ’

The court thereupon goes on to point out that “misdirection by the court to the jury” was at that time a ground of-error which by the. specific language of .the statute (Section 5301) might be included in a motion for a new trial, and thereby distinguishes that case from the case at bar.

As pointed out in the decision of this court heretofore referred to (8 C. C., 636, 639) the first clause of Section 5305 defining the causes for which new trials may be granted reads: “A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, a report of a referee or master or a decision by a court,” and the issue of fact referred to must be one wising on the pleadings, as defined in Section 5128; and no such issue arises upon a motion to dissolve an attachment. Hence not only is a motion for a new trial unnecessary, after a ruling on a motion to dissolve an attachment, but there is no provision of law authorizing one.

We therefore hold that the filing of the motion for a new trial after the granting of the motion to dissolve 'the attachment was a nullity and did not operate to extend the time within which a bill of exceptions should be filed, and the motion to strike the bills of exceptions from the files is granted. In this conclusion we are sustained by the opinion delivered by Judge Hull, of the sixth circuit, in the case of Thomas v. Mangus, 25 C. C., 649.

The only error complained of, shown by the record and not requiring a bill of exceptions to exhibit it, is the overruling of the motion to dismiss the appeal on the ground that the statute authorizing the appeal is unconstitutional. It is pointed out that said statute (Section 6494) provides that the defendant only, shall have the right to appeal from the decision of the justice on a motion before him to dissolve an attachment. It is admitted that the plaintiff has his remedy by proceedings in error, if the justice erroneously grants the motion to dissolve, but it is said that if the defendant has a summary remedy by appeal, in event the motion is decided against him, the plaintiff should have a like summary remedy when the motion is decided in favor of the defendant.

Smith & Taft, for plaintiffs in error.

Pinney & Warner, for defendants in error.

What specific article of the Constitution is thus violated is not pointed out, but counsel has intimated that in some way Section 1, Article I of the Bill of Rights is violated. That by the statute referred to classes of citizens, to-wit, defendants in attachment cases, have certain rights, privileges and remedies, which are denied to other classes of citizens, to-wit, plaintiffs in attachment cases.

We apprehend, however, that no classes of citizens are thus created or favored; rather, the Legislature has seen fit to regulate, according to a plan of its own, the various methods by which the rulings of justices of the peace in a certain class of cases and in certain contingencies may be reviewed. As the right to have any judgment or order reviewed, either on error or by appeal, is wholly a statutory right, there can be no constitutional objection to the method provided therefor in attachment cases, by the statute under consideration.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CONVEYANCE OF GARBAGE THROUGH THE STREETS.
    [Circuit Court of Hamilton County.]
    David Bauer v. James Casey.

    Decided, January 27, 1904.

      Garbage — Ordinance Defining — And Delating to Conveyance of Through the ¡streets — Forfeiture of Articles Condemned — Police Power— Constitutional Law.

    A municipal ordinance defining garbage as in this case, and forbidding ifts removal tbrougb the streets by others than the city contractor, or the placing of it upon private property, contravenes ■the Fourteenth Amendment of the Constitution of the United States, and is void.
    Giffen, J.; Jelke, J., and Swing, J., concur.

       Dismissed .in the Supreme Court, by consent, June 21, 1904. _

   The original petition in this..case was an application in the court of insolvency for a writ of habeas corpus, the plaintiff in error having been convicted under an ordinance of the city of Cincinnati, and it being alleged as a ground for the issuance of the writ that the ordinance contravened the Fourteenth Amendment of the Constitution of the United States and was therefore void. The court held the ordinance was valid and remanded the prisoner to the custody of the chief of police and that judgment was affirmed by the common pleas court. By this proceeding it is sought to reverse the judgment of the common pleas. The ordinance under which the conviction was held provides “that no other person or party except the city contractor or its agents shall carry, convey, or transport through the streets, alleys, or public places of the city of Cincinnati, any garbage, dead animals, fish and refuse animal and vegetable matter found within the city limits.”

Section 2 of the ordinance provides that “the word ‘garbage’ shall be held to include all refuse of animal and vegetable matter which had been used for food for man, and all refuse animal and vegetable matter which was intended to be so used, and includes condemned food.”

The affidavit charges that the plaintiff in error “did unlawfully convey through the streets of the said city of Cincinnati, to-wit, Elm street, Plum street and George street, certain garbage; he, the said David Bauer, not being then and there the city contractor for the collection and removal of such garbage, nor the agent of said contractor. ’ ’

The first two clauses of Section 2 may perhaps be limited to such animal and vegetable matter as the owner himself had refused and abandoned. It certainly means that much and perhaps more. When, therefore, the board of legislation added the words “and includes condemned 'food,” they intended to include in the definition of garbage food other than that which the owner'himself had abandoned, and that the meaning of such word was food that had been pronounced unfit for use by official authority. The word “condemned” is an apt and appropriate word to express that idea. One of the chief definitions of the word “condemned” given in the Standard dictionary is “to pronounce unfit for use, commonly by official action, as the health officer condemned spoiled meat.” And, besides in Section 4277, Revised Statutes, it is provided that an inspector of butter, lard, pork, beef, fish and other products may be appointed by the probate judge of the county, and under Section 4323, Revised Statutes, it is provided that “When the inspector condemns any of the articles in this chapter enumerated, he shall forthwith, on demand, deliver to the owner thereof, or his agent, a certificate, distinctly setting forth a time, place and cause of - such condemnation, and when any of such articles have been inspected and declared of good quality and merchantable, he shall, on demand as aforesaid, deliver a certificate thereof, for the benefit of the owner thereof.”

Nor is there any provision in this chapter for a forfeiture of the articles inspected except Section 4322, Revised Statutes, which provides for the forfeiture of one-half. the contents of any hogshead, cask, box, or barrel of meat, butter, lard or any other packed article, the tare of which is undermarked. Although condemned by the. inspector, it still remains the property of the owner, and has a commercial- value for purposes other than food; and being still the property of the owner, he has the right to make such disposition of it as he may see fit, provided it does not affect the public health or welfare.

A quarter of beef may be condemned as food by the inspector and so branded according to the provision of the statute, and yet have a value for certain purposes to which the owner is entitled to apply it, and if disposed of within a reasonable time can have no effect upon the health of the community.

The case relied on by the defendant in error, of State v. Orr, 68 Conn., 110 (35 Atl. Rep., 770), is unlike this case, in that the definition of garbage and offal, under the ordinance there considered, was declared to be only “such refuse matter as accumulated in the preparation of food for the table,” and in the second paragraph of the syllabus “that the term ‘refuse matter’ as employed in the ordinance, embraced only such matter as was either in fact noxious, or as had been refused and abandoned by its owner as worthless.”

If the term “garbage” in the case before us was defined as in that case, then we could not hold otherwise than did the court in that case, and we would be inclined to go further and adopt the last proposition of the- syllabus in that case, to-wit: “That any occupation comes within the range of the -police power, which is such as to be naturally liable to create a nuisance unless subjected to special regulation; whether it be so conducted as in fact to create a nuisance or not.”

“Condemned food” which has not been abandoned by the owner and has a commercial value is- not liable to- create a nuisance, as its very value is an inducement to the owner to apply it to such uses as will develop its real value from which he may realize.

The provision that no person may convey through the streets of the city any dead animals or fish without regard to the cause of death or the purpose for which they are intended 'to be used is open to the same objection.

Rulison & Heintz, for plaintiff.

Conner & Walker and Scoll Holmes, for defendant.

If we eliminate the definition of garbage contained in Section 2 of the ordinance and that part of Section 3 pertaining to removal of dead animals and fish, and that part of Section 4 which prohibits any person from placing refuse animal and vegetable matter upon any private property whether owned by such person or not, we would destroy the substance of the ordinance, and earn not say that the board of legislation, with these parts eliminated, would have passed the ordinance; in fact, we think it most probable that it would not have passed it.

We conclude, therefore, that the ordinance under which the plaintiff in error was convicted is void and of no effect, the judgment of the court of common pleas be reversed, and tlje prisoner be discharged.


text:
    PROCEEDINGS IN ATTACHMENT.
    [Circuit Court of Cuyahoga County.]
    W. A. Hare v. W. Cook and M. Herig.
    Decided, February 21, 1905.

      Attachment — The Affidavit — No Presumption that a Claim for Rent is a Claim for Necessaries — “Defendant” may he Read in the Plural — Motion to Dissolve — Section 6494 not Unconstitutional— Grounds for Dissolving Attachment must he Set Out in Motion.

    1. The statement of an affidavit in' attachment that the claim sued on is for rent, does not afford ground for the presumption that the claim is for necessaries.
    2. Where the suit is against two defendants, based upon the allegation that said “defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors,” it is immaterial that the affidavit does not disclose which of the defendants is about to perpetrate the fraud.
    3. The provision of Section 6494, authorizing an appeal by the defendant from the decision of a justice of the- peace upon motion, when no appeal is allowed to the plaintiff in case the motion shall be decided against him, is not unconstitutional.
    4. The grounds for the dissolution of the attachment must be specified in the motion to dissolve.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to tbe court of common- pleas.
   Suit was brought by Hare -against Cook before a justice of the peace, and upon an affidavit filed by Hare an order of attachment was issued. The grounds stated in the affidavit for the attachment are—

“That the defendants are justly indebted to the plaintiff in the sum of $24 for rent; that said claim is just and lawful; that he believes said plaintiff ought to recover thereon the amount of $24, and that the property about to be attached is not exempt from execution; that the claim on which judgment is sought was contracted for since April 26, 1898, and that said defendant is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.”

It will be noticed that the only statutory ground stated in the affidavit for the attachment is that the defendant “is about to convert his property, or part thereof, into money for the purpose of placing it beyond the reach of his creditors.”

In passing, it may be said that there are two defendants, and that the affidavit does not disclose that the two defendants are about to perpetrate this fraud, nor which of the two it is who 'is about to do so. However, probably this is not material. It may be assumed that the language is to be treated as though in the plural, charging the defendants with the fraudulent purpose.

If it be urged that because the statute allows an attachment under certain circumstances for necessaries-, and that this affidavit states that this claim is for rent, that therefore it is to be assumed that it is for necessaries, it is sufficient to say that the fact that one is indebted for rent falls far short of showing that one is indebted for necessaries. Rent may be for a saloon, for a store, for a hotel, and for so many other things .that would not be held to be necessaries, that we can not assume that one is indebted for necessaries simply because he is indebted for rent.

The attachment having been allowed by the justice, a motion was made for its dissolution, which was in these words, after entitling the case:

“Now comes W. Cook, one of the defendants in the above action, and, appearing for the purpose of this motion only, moves the court to dismiss the attachment granted in the above action for the following reasons, to-wit: First, that the claim on -which said attachment is based is not one for necessaries. Second, that an unlawful joinder of parties defendant has been made in the above action. ’ ’

The defendant, Cook, filed an affidavit in support of this motion. With the evidence of these two affidavits before him, the justice overruled the motion, whereupon the defendants appealed from the decision of the justice upon this motion. Under favor of Section 6494, Revised Statutes, the language of the section referring to this matter reads, speaking of the motion to dissolve the attachment:

“ * * * which, if overruled, may be appealed by the defendant to the court of common pleas if in session, or to a judge thereof in vacation, by giving notice to that effect to the justice of the peace, but no bond shall be required. Upon such notice of appeal being given, the justice of the peace shall forthwith transmit to the court of common pleas all the original papers; and thereupon, within three days from such notice of appeal, or upon such further time as may be for good cause allowed, said court or judge shall hear and determine said motion in the same manner as it was originally brought in said court of common pleas, and upon the final' hearing said court shall forthwith transmit the judgment with said original papers to said justice of the peace, which judgment shall be entered upon the docket of said justice of the peace as the final determination of said motion,” etc.

The question of whether this statute authorizing an appeal by the defendant from the decision of the justice of the peace upon the motion, when no appeal is allowed to the plaintiff in case the motion shall be decided against him, is constitutional, was suggested in this case. We have determined that question in another case (Cecil v. Grant, 6 C. C.—N. S., —), holding that no provision of the Constitution is violated by the statute. Nothing more on that subject need be said here.

Upon the hearing in the court of common pleas the defendant, Cook, was permitted to introduce an affidavit in these words:

“W. Cook, the defendant in the above entitled action, being first duly sworn, deposes and says that he is not about to convert his property nor any part thereof into money for the purpose of placing it beyond the reach of his creditors.”

To the introduction of this affidavit objection was made and overruled by the court, and exception is taken to this ruling. It will be noticed that nothing in this affidavit tends to support either of the claims made in the motion. Those claims, as already quoted, are: “First, that the claim on which said attachment is based is not for necessaries. Second, that an improper joinder of parties defendant has been made in the above action.

It was the decision made by the justice of the peace upon this motion that was appealed from. It was that motion which the court of common pleas was, because of the appeal, required to hear and determine. Evidence bearing upon that motion was admissible. No other evidence was admissible. Unless, therefore, it can be said that the motion to dissolve the attachment which was made before the justice is to be treated as a motion without specifying any ground, the court erred in admitting this affidavit. One of the provisions of Section 6494, Revised Statutes, is that “In any ease the defendant may make a motion before the justice of the peace to dissolve the attachment. ’ ’ Nothing is here said as to whether ground for such dissolution is to be set out in the motion, but it is believed that such has been the universal practice, and that such grounds must be stated in the "motion.

In Swan's Treatise, 20th Ed., page 442 and following, the nature of the dissolution of attachment by motion is treated of, and the form of notice to be given to the plaintiff in such ease is given on page 443, being form No. 198. This form of notice reads:

“In the ease of attachment of A B against C D pending before G II, justice of the peace, I shall make a motion on the -— day of--, at 10 o’clock a. m., or as soon thereafter as I can be heard, to discharge the attachment * * * and on the following grounds:- [Here state the grounds.]”

The form of docket entry, being form 199, on page 445, has these words:

“I thereupon heard said motion and do find [here affirm or negative the grounds of the motion stated in the notice according to the proofs, etc.] ”

In the case of Remington v. Harrington, 8 Ohio, 508, the first head note reads:

“In motions for a new trial, points not stated in the motion are not open for discussion in the court in bmc.”

On page 508 this language is used by Judge Wood in the opinion:

“Two questions arise in this case for decision. First — was the testimony offered by the plaintiff, objected to by the defendant, and admitted by the court, proper for the consideration of the jury 2 *. * * The first point is not embraced in the motion, and to the points there made, the discussions of counsel should, in ordinary cases, be confined, because they are the only notice to the opposite-party of the questions to be raised, and constitute the substratum on which the opinion of the court rests. ’ ’

In the case of Everett, Weddell & Co. v. Sumner, 32 O. S., 562, the first paragraph of the syllabus reads:

“The findings of a court or of a jury, upon issue of fact, are not subject, to review on proceedings in error, except where it appears from the record that a motion for a new trial was. made on the ground that the verdict is against the evidence, and that such motion has been overruled. ’ ’

While these cases are not directly in point, the reason for the ruling on a motion for a new trial applies with equal force to the motion under consideration here. The plaintiff had notice that a motion for the dissolution of the attachment would be heard upon the grounds stated in that motion. Proper care on his part would require of him to prepare to meet the grounds stated in the motion, and would not require of him to be prepared to meet any other grounds.

In Rogers v. Pruschansky, 3 C. C.—N. S., 366, after an appeal had been taken to the court of common pleas upon the overruling of the motion to discharge an attachment, a new motion was filed setting out a ground for such dissolution other than was set out in the motion already on file, and the court held that such new motion could not be filed.

On page 367 this language is used in the opinion:

“But clearly the court in this case had no authority to entertain the filing of a new motion, or consider anything but the motion filed before the justice of the peace, because at least this court has heretofore held, in another case, that this amended Section 6494, Revised Statutes, was intended not to give jurisdiction by appeal to the court of common pleas of the entire ease, but simply for the purpose of determining the motion for the discharge of the attachment, and, having done so, to certify the case back to the justice of the peace.” .

Miller & Linder, for plaintiff in error.

J. L. Dowling, for defendants in error.

The reasoning which would prevent a new motion- from being filed in the court of common pleas because of the fact that it set up a new ground for the discharge of the attachment, would apply equally to prevent the introduction of evidence upon the hearing of the motion already filed, which evidence did not tend to sustain the grounds set out in such motion.

We hold, therefore, that in permitting the introduction of the affidavit filed in the court of common pleas there was error to the prejudice of the plaintiff in error, and for that reason the judgment of the court of common pleas is reversed.


text:
    COVENANTS OF WARRANTY.
    [Circuit Court of Hamilton County.]
    The Fountain Square Theatre Company v. Elizabeth C. Pendery.

    Decided, April 1, 1905.

      Deed — Covenants of Warranty — Refer to the Right and Title of Grantor — And not to the Lands Described — Incumbrances—Unpaid Taxes.

    A covenant of warranty is limited to the interest of the grantor in the land conveyed at the time of the conveyance, and if the property is burdened! with an incumbrance, or with unpaid .taxes which become a lien by operation -of 1-aw, the grantee takes it subject thereto.
    Giffen, J.; Jelke, J., and Swing, J., concur.

       Affirming Fountain Square Theater Co. v. Pendery, 3 N. P.—N. S., 41.

   The original cause of action was founded upon a covenant of a special warranty in -a deed of certain -real estate, which by the granting -clause conveyed “all the right, title and interest” of the plaintiff, with a covenant, “that said premises are free and clear from all incumbrances whatsoever by, from, through or under the said grantor and that she will forever warrant and defend the same with the appurtenances unto the said the Fountain Square Theatre Company, its successors and assigns, against the lawful claims of all persons claiming by, from, through or under the grantor herein. ’'

The alleged breach of the covenant consisted in a failure to pay the taxes amounting to $556.16, which became a lien while the grantor was the owner of the premises and were a subsisting lien at the time the deed was executed and delivered.

It must be conceded that a grant of all the right, title and interest conveys -only such interest as the grantor has at the time of the conveyance. In this case, it was an estate in fee simple, subject, however, to the lien of the state for taxes, but it is claimed that the covenant related not to the right, title and interest, but to the land itself, and therefore made the grantor liable for any subsisting incumbrance. This position is supported by the case of Funk v. Creswell et ux, 5 Iowa, page 62, in which the following proposition is announced:

“Where a party conveys all his right, title and interest in the lands described in the deed and covenants to warrant and defend the premises1 against all lawful claims arising under him, the covenant refers to the lands described and not to the right and title of the grantor.”

There is much force also in the suggestion contained in the case of Lull et al v. Stone, 37 Ill., 224, at page 228, to-wit:

“It is difficult to see, if this be the true construction of such deeds, with what view the covenants were inserted, unless to deceive the grantee with the idea that he was getting covenants, upon which he could safely repose for the security of his title, but which a narrow and technical construction would render utterly nugatory, on the day of trial. ’ ’

It may be said in answer, however, that such covenant would protect the grantee against a warranty deed or a mortgage executed subsequently by the grantor and recorded prior to the first deed, and it is- probable that such acts as these, which would be a fraud upon the grantee, the covenant is intended to cover. In the ease of White v. Brocaw, 14 O. S., 339, the second proposition of the syllabus is as follows:

“Where in a deed, in the ordinary form of bargain, sale and release, and which purports only to convey to the grantees ‘all the estate, right, title, interest, claim and demand, both in law and1 equity,’ of the grantors, ‘of, in and to the said premises, and every part thereof,’ containing no recital or oilier description whatever, of any particular interest owned or possessed by the grantors, or intended to be conveyed, a covenant is inserted by which the grantors agree to ‘warrant and forever defend the said premises against all'persons claiming or to claim, by, from or under them, their heirs or assigns,’ such covenant is only eo-extensive with the grant, and binds only the vested interests of the grantors in the property at the time, and does not extend to an after-acquired title.”

In that case, the grantors agreed to warrant and forever defend the said premises and not the right, title and interest, and although the case of Funk v. Creswell et ux above referred to had then been decided, it was not followed by our Supreme Court, but it relied, among others; upon the case of Blanchard v. Brooks, 12 Pickering, 47, in which it is said, at 67:

“The grant in the deed is of all his right, title and interest in the land, and not of the land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was all his right, title and interest. It was equivalent to a warranty of the estate he then held or was seized of, and must be confined to estate vested. A conveyance of all the right, title and interest in lands, is certainly sufficient to pass the land it-self, if the party conveying has an estate therein at the time of the conveyance.; but it passes no estate which is not then possessed by the party.”

A ease nearer in point upon the precise question before us is that of Hoxie et al v. Finney, 82 Mass., p. 332, the syllabus of which is as follows:

“In a deed of all the grantor’s ‘right and title to one undivided third part of’ land bounded and described, covenants that he is seized in fee of the granted premises, that they are free from all incumbrances; and that he will warrant them to the grantee against the lawful cl-aims of all persons, are limited in effect by the description of the subject granted; and are not broken by an eviction of the grantee under an incumbrance previously created by the grantor. ’ ’

D. D. Woodmansee, for plaintiff in error.

Frank H. Eunkel, for defendant in error.

The purport of these decisions is that the covenant of warranty must be limited to the. interest of the grantor in the property at the time of the eonveyanee, and if the property is burdened with an incumbrance, the grantee takes it subject thereto.

In this case, the taxes became a lien by operation of law, and> the amount thereof could be easily ascertained from the records in the auditor’s office, and no deception or hardship was imposed upon the grantee.

We are of opinion, therefore, that the petition did not state a good cause of action, and the court of common pleas properly sustained the demurrer thereto.


text:
    COMMITMENTS OF FEEBLE MINDED YOUTH.
    [Circuit Court of Franklin County.]
    Gustavus Doren et al v. Joseph Fleming.
    Decided March 25, 1905.

      State Institutions — Courts mil not Prescribe Rules for Government of, Unless — Commitment of a Feeble Minded Youth — No Liability Created Thereby, When — Error Proceedings.

    1. A defendant who, upon the overruling of his motion to withdraw the case from the jury and dismiss the action, elects to proceed with his testimony and not rely upon the claim that the plaintiff failed to prove his case, can not thereafter in error proceedings raise the question of error in the overruling of his motion.
    2. Courts will not assume authority to prescribe rules for the government of state institutions. Such authority arises only when it is shown that a rule or rules in force ar.e unreasonable and subversive of.the purpose for which such institutions ar.e established and maintained by the state.
    3. The rules called in question in the present case are not of such a character, and the manner in which the plaintiff below was committed to and retained- in the Institution for the Education of Feeble Minded Youth created no liability for damages to him on the part of those participating therein.

      Sullivan, J.; Wilson, J., and Dustin, J., concur.
   Joseph Fleming, the defendant in error, on the 16th of July, 1904, recovered a judgment in. the court below against plaintiffs in error for the sum of $412.50, together with costs of suit. The suit was for damages and the trial was to- a jury. Plaintiff’s motion for a new trial was overruled and a judgment entered up on the record against plaintiffs in error for the amount above stated. A bill of exceptions was taken by plaintiffs in error containing all the testimony submitted to the jury and is filed here, together with the transcript and original papers. Plaintiffs in1 error complain that said judgment is erroneous, and therefore ask that the same may be reversed for errors set forth- in their petition and apparent upon the record.

Plaintiffs claim first that it is apparent from the record that the court erred in overruling their motion, made at the conclusion of the testimony of plaintiff below, to withdraw the case from the jury and dismiss the action. This question can not be considered by this court for the reason that the defendants 'below, after this motion was overreuled, elected to proceed with their testimony and not rely upon their claim that plaintiff below had failed to prove- his ease.

The other grounds of error assigned are: First, that the judgment is against the weight of the evidence and not sustained by it; second, that the- judgment is contrary to law; third, that the court below erred in overruling plaintiff’s motion for a new trial. The grounds of the motion for a new trial are the same as above stated.

Though separately stated, there is but really one ground of error set forth in plaintiff’s petition, and that is that the verdict is manifestly against the weight of-the evidence, and if this be true, then the- verdict would be contrary to law. Hence the so.le question here — is the verdict of the jury supported by the weight of the evidence or any evidence? It nowhere appears from the evidence that any of the plaintiffs in error aside from Gustavus Doren had anything to do with or were engaged in any way in bringing Fleming to the institution, in October, 1892, or that they in -any way restrained Fleming while there, and yet the .verdict is a joint one, covering the entire period that Fleming was at the institution. This is not averred as error, and it is perfectly apparent from the evidence, if they are liable at all, it would be only for return of Fleming to the institution August 10, 1902.

Coming now to the consideration of the evidence, set forth in the bill, we find there is not a scintilla of evidence tending to prove that the superintendent of the institution, Gustavus Doren, was actuated by any improper motive in receiving Joseph Fleming into the institution, or that it was done with any hope or expectation of any personal benefit to himself, and further there is not a scintilla of evidence that said superintendent received any personal benefit from any labor or anything done by Joseph during the entire period he was at the institution. If the proceedings taken for the admission of Joseph were irregular, the evidence show® that they were not inaugurated by the superintendent, and the part taken by him, as shown by the evidence, was necessary- and with the view to discharge his duty and for the benefit of the patient.

The undisputed evidence shows substantially the- following state of factsi:

Joseph was without a home. He had been driven from the home where he had lived for some seven years. His relatives, residents of Columbus, one being the sister of his father, with full knowledge of his situation and condition, did not want to furnish him a home, so they, together with the priest superintendent of the parochial school Joseph had attended up to that time, held a conference at which they determined from their knowledge of Joseph’s situation and mental condition that he was a proper subject and entitled to enter the State Institution for the Feeble Minded. The relatives of Joseph, or at least one of them, took steps to have him entered there. They stated that Joseph was fourteen years of age or thereabouts. The statute does not provide that the applicant should be first examined as to .his or her mental condition, but authorizes the trustees to prescribe and publish instructions and forms for the admission of pupils, and may include such interrogatories as they may think necessary or useful to have answered. The trustees in pursuance of this authority did formuíate and publish rules for the admission of applicants and authorized the superintendent to submit such interrogatories as he thought should be answered by the parents, guardians, etc., of the applicant. The rules provide that applicants may be admitted by the superintendent with the advice and counsel of the executive committee. Section 671 of the Revised Statutes provides who may be admitted. Any person of the class therein named is entitled to admission. The Legislature, for wise reasons no doubt, left with the trustees the authority to say what proceeding should be taken to enable them to determine whether an applicant was of the class named in Section 671, supra. Interrogatories were propounded by the superintendent to be answered by the persons presenting the applicant for admission. Nos. 7, 11, 12 and 26 relate directly to symptoms that would be a subject of inquiry, if an examination by some authority outside of the institution was required. These were propounded to the relatives presenting Joseph for admission by the superintendent. In addition to this the superintendent testifies that he made an examination as to Fleming’s mental condition the day he was brought to the institution. True, Fleming denies this, but no other witness corroborates Fleming. The superintendent states that he found Fleming came within the class named in Section 671 and hence entitled, to admission. Upon this matter he is corroborated by such a number of respectable and unimpeached witnesses that there can be no doubt as to the fact. The relatives who made the application were the nearest friends of Joseph, and those who are still living do not deny, but admit, that they applied to have Joseph admitted. Neither do they deny their answers to the several interrogatories submitted to them. Hence, it is wholly immaterial whether they did or did not sign them. It was left to the superintendent as to what interrogatories should be answered by parents.

In conclusion upon this point we are clearly of the opinion that Joseph was a proper subject to be admitted to the institution, and that he was not unlawfully deprived of his liberty thereby. Joseph testifies that he knew he could not be discharged from the institution, except upon the application or order of those who placed him there, if living. He wrote his uncle and aunt, who, in connection with Ryan, now dead, procured his admission-, to take him out, but they refused and said to the superintendent that the institution was the better place for him. The superintendent in person solicited the uncle to take him out and give -him work. The uncle admits this and that he refused to do so. The rule that those admitted should be entirely subject to the direction of the parents, and discharged therefrom upon their order or direction, we -are of the opinion is a very salutary one. "Were it otherwise anyone at his or her pleasure upon their own volition- might leave and ramble anywhere and everywhere without the needed care and supervision of anyone. When Joseph left the institution July 27, 1902, it was without any order from those instrumental in placing him there, and it was the duty of the superintendent to have him returned to the institution, as much so as it would be his duty to return a youth of tender years. The rules must be uniform, otherwise the efficiency of the institution would be destroyed. We are therefore of the opinion that the superintendent acted within the scope of his authority, and the return of Fleming was not a legal wrong. Courts will not and do not assume the authority to prescribe rules for the government of institutions -of this character. Their authority to interfere arises only when it is shown that a rule or rules are unreasonable and subversive of the purposes for which such institutions are established and maintained by the state.

We are of the opinion that the rule observed by the authorities of the institution- and enforced against Joseph when returned to the institution- upon August 10, 1902, is not an unreasonable one. Joseph’s own testimony is, we- think, entitled to but little credit. In support of this view we regard it necessary to only call attention to his testimony respecting his statement to Powell relative to a contract with the Press Post, and his denial of such contract, and that he- simply told the falsehood to get clear of his inquisitor. The admitted falsehood he told the party who accosted him one evening after dark within the enclosure -of the grounds of the institution, and the statement on the stand that he had been put in the care of the conductor when he came from Minneapolis here, and immediately after admitted he was placed in the care of an uncle from Minneapolis to Chicago and from there to Columbus in the care of a cousin of his mother’s. In face of the testimony of the nurse, Frank Goehlhart, not denied by Fleming, Fleming’s statement of the treatment he received while kept on the third floor we think is not correct. He is contradicted not only by witnesses of the defendants, as to the time he was kept in the room on the third floor, but also by George Hill, his own witness, who testifies he was there but two weeks, corroborating defendants’ witnesses upon this point.

Smith Bennett, for plaintiff in error.

Upon the whole record we think that the verdict in this case is not only' against the weight of the evidence, but that there is no evidence to support it, and the judgment, therefore, will be reversed. Cause remanded at the costs of defendant in error.


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    APPLICATION OF THE FELLOW-SERVANT ACT.
    [Circuit Court of Hamilton County.]
    The Charles Boldt Glass Co. v. George Harris.
    Decided, February 7, 1905.

      Negligence — The Fellow-Servant Buie — Applied as Between Bricklayers and a Common Laborer — Uncertainty as to Whose Act Caused the Injury.

    1. Bricklayers are fellow-servants -of a common laborer over wkom they have no further control than to signal when he shall send ’ them brick or mortar.
    2. But were this not true, a common laborer could- not recover from h-i-s employer for an injury resulting from being struck ’ by a brick which fell from a high -scaffold-, unless it should- appear that th-e brick was dislodged by a bricklayer, and not by his helper.

      Swing, J.; Jelke, J., and Giffen, J., concur.
   Harris brought an action in the Court of Common Pleas of Hamilton County against the glass company for damages for injuries received while working for said company. The negligence alleged in the petition was the negligent construction of a platform and the negligent conduct of the bricklayers working thereon. By this negligence it is alleged a brick was thrown down the shaft or chimney which struck the plaintiff, Harris, on the head producing a great injury to him. A verdict and judgment was rendered in favor of the plaintiff and the action in this court is to reverse this judgment.

The undisputed facts are: That the glass company was building a brick stack; at the top of the stack, some sixty feet from the ground, one or two bricklayers and a helper were working. Harris was what witnesses call a “common laborer.” He was ordered by the superintendent of the company to “attend them masons with mortar and brick just as they called for it.” His duty under this command was to. wheel brick and' mortar to an arch-way of the stack, and attach a hook to buckets of mortar or brick whichever was called for by the parties working at the top of the stack. This hook was attached to a rope, which by means of a horse an'd pulleys, hoisted the brick and mortar to the top of the stack where it was detached by the helper, who in turn handed it to the bricklayers, who worked on a platform just above the platform on which the helper stood.

The only authority that the bricklayers or helper had over Harris, or at least in this case exercised over him, was to direct the time at which either brick or mortar was to be hooked to the rope to be sent up. Under this state of facts, Harris and those working at the top of the stack were fellow-servants. 33 O. S., 196; 37 O. S., 665; 70 O. S., 170.

The petition alleged that Harris was struck by a brick, which was thrown from the platform. The evidence fails to show what Harris was struck with. That he was struck with something and that his head was cut and that he was quite seriously injured is shown; 'but what it was that hit him is not shown, and that would probably be immaterial if it were shown that the injury was caused by the negligence of defendant. But what set the substance in motion that hit Harris is not shown. The evidence clearly shows the presence of two men working at the top of the stack, Whitaker, a bricklayer, and Davis, a helper. It further tends to show the presence of another, McCoy, a bricklayer, although McCoy says himself that he was not there at the time; but whether he was or not, we think it may be assumed that one of these parties set the object in motion which hit Harris. But we are unable to see any reason to conclude which one of these set the object in motion. There is absolutely no evidence on this matter, except Whitaker testified that he did not, and to the same effect was McCoy’s, and Davis died before the day of trial. So that it must be pure conjecture for the jury to say that Whitaker or McCoy caused it, rather than Davis. Davis was a helper and it is admitted was a fellow-servant of Harris, and if he did it, Harris could not recover.

Jones & James and G. B. Groesbeck, for plaintiff in error.

Seneca Behmyer, for defendant in error.

While the petition alleges negligence in the construction of the platform, there is no proof to substantiate this allegation, and no proof that the object was set in motion by reason of anything pertaining to the platform.

In our opinion, the judgment is contrary to law, and is not sustained by sufficient evidence, and should therefore be reversed.


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    THE STOCKHOLDERS’ LIABILITY ACT UNCONSTITUTIONAL.
    [Circuit Court of Mahoning County.]
    Swift & Company v. The Youngstown Baking Company et al.
    Decided, March, 1905.

      Constitutional Law — Liability of ■Stockholder Attaches, When — Acts of April 29, 1902, and April 25, 1904, Unconstitutional.

    The act of the General Assembly of April 29, 1902, amending and repealing Section 3258 of the Revised' Statutes fixing the liability of stockholders of a corporation, so far as it amends and repeals ■original Section 3258, is in violation of Section 3 of Article XIII of the Constitution of the state.
    Cook, J.; Laubie, J., concurs; Burrows, J., dissents.
    Appeal from Common Pleas Court of Mahoning County.
   This is an action to enforce the statutory liability of a stockholder of The Youngstown Baking Company, ¡a corporation duly organized under the laws of the state of Ohio.

All the liabilities claimed upon arose between the 1st day of January, 1903, and May 2, 1903, and the principal question and really the only one that is important is: Is David M. Ramsey, as such stockholder, liable upon such claims in his individual capacity?

It is claimed that under the act of the General Assembly passed April 29, 1902, 95 O. L., page 312, he is not.

It will be observed that all the liabilities of this company arose subsequent to the passage of this act and that, by the terms of said act, the stockholder is not liable until the corporation becomes unable to pay the claims against it. The provision of the statute is as follows:

“Section 3258. The stockholders of a corporation who are the holders of its shares at a time when its debts and liabilities are enforceable against them, shall be deemed and held liable, equally and ratably, and not one for another, in addition to their stock, in an amount equal to the stock by them so held, to the creditors of the corporation, to secure the payment of such debts and liabilities; and no stockholder who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock properly witnessed or tendered for transfer on the books of the company prior to the time when such debts -and liabilities are so enforceable, shall be held to pay any portion thereof.”

David M. Ramsey became a stockholder in said corporation, holding a certificate for the same in the sum of fifteen hundred dollars. During the time he was such stockholder debts were contracted by the corporation in a considerable amount, but before such debts became enforceable against the stockholders by reason of the inability of the corporation to pay the claims against it, he sold his stock bona fide for the full consideration of fifteen hundred dollars, and the transfer of his stock was regularly made upon the books of the company to a party that is unable by reason of insolvency to pay the assessment made against him.

The attorneys for Ramsey deny his liability under the provisions of,this statute, while the attorneys of Swift & Company claim this statute is unconstitutional for the reason that it violates Section 3, Article XIII, of the Constitution, and is therefore wholly inoperative.

It is conceded that the Supreme Court has distinctly decided in two cases under the statutes that preceded the act of April 29, 1902, that the stockholder became liable at least as guarantor or surety from the date that the debt was contracted, and that a subsequent sale and transfer of his stock, although made bona, fiedely, did not release him (William Brown v. William J. Hitchcock, 36 O. S., 678; Harpold v. Staboit, 46 O. S., 397).

It will be observed by reference to these cases that the court passed upon both the constitutional provision and the statute and it is claimed that the decisions were really based upon the provisions of the statute, and that it is fully within the power of the General Assembly to change the provisions of the statute.

The majority of the court is of opinion that these cases distinctly decide that, by the provision of Section 3 of Article XIII of the Constitution, by its terms, independent of the statute, the liability of the stockholder attaches at the time the liability is incurred by the corporation, and that that is the settled law of this state under the Constitution as construed by the Supreme Court, and, therefore, the act of April 29, 1902, is in violation of the Constitution of the state and wholly inoperative. The same holding should be made as to the act of April 25, 1904 (97 O. L., 390).

W. W. Zimmerman, for plaintiff.

G. A. Manchester, for David M. Ramsey.

Finding and decree in favor of plaintiff against the defendant, David M. Ramsey.


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    IDENTICAL ACTS PRESCRIBING DIFFERENT PENALTIES.
    [Circuit Court of Lorain County.]
    Roswell Derby, Jr., v. The State of Ohio.
    Decided, November, 1902.

      Courts of Review — May Determine which of Two Acts is in Force— Where Identical Except as to Penalty — Method of Determination —Better Dismiss One Found Guilty — Than to Enforce an Unauthorised Sentence — Fish and Game Regulations — Criminal Law.

    1. Where an annual volume of laws contains two acts, identical except as to the penalty imposed, and both signed on the same day, it is 'competent for a reviewing court, having before it the case of an accused person sentenced under one of these acts, to determine whether the act under which sentence was pronounced was the one actually in force.
    2. In determining such a question, resort will first be had to the journals of the two houses of the General Assembly, and failing to thus establish which act was the last to be signed, the one which appears last in the printed volume, and to which the compiler of that volume has given- the highest number, will be presumed to be the latest expression of the law-making power on that subject.
    3. To permit one who has been convicted of an offense against the laws of the state to go scot free, is a much less serious matter than to attempt .to carry into effect a sentence wholly unauthorized by law; and where it eppears that the sentence imposed is without authority of law, the accused will be discharged, notwithstanding the time within which the sentence might be corrected has long passed.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
   The plaintiff in error was arrested and brought before a justice of the peace upon the charge of having on June 8, 1901, in the county of Lorain and state of Ohio, “unlawfully, knowingly, purposely and willfully caught certain fish by means of and with a certain device called a seine.”

This is in violation of the statutes of Ohio. The affidavit making the charge has all the negative averments and all other averments sufficient to describe the offense under the statute.

Thereafter, on December 26, 1901, the case came on for trial before the justice and a jury. The trial was not completed until December 27. The result was a verdict of guilty against the defendant. Motion for a new trial was filed and overruled, and judgment entered upon the verdict, and on January 4, 1.902, the court pronounced sentence that “R. Derby, Jr., the defendant, pay a fine of $100, and in case of neglect or refusal to pay said fine, be imprisoned in the workhouse for the full period of thirty days, or until the amount of said fine be paid or secured to be paid, or he be otherwise legally discharged, and that he pay the cost of the prosecution.” To which sentence the defendant excepted.

To reverse this judgment and sentence of the justice there was filed in the court of common pleas a petition in error, together with a transcript of the docket entries made by the justice, the original papers, and what purports to be a bill of exceptions. This bill of exceptions does not set out all the evidence adduced before the justice, so that there was presented to the court of common pleas no question as to whether the facts warranted the conviction. Upon hearing in the last-named court the judgment of the justice was affirmed.

The proceeding in this court is brought for the purpose of reversing the judgment of affirmance and the judgment of the justice.

Among the errors complained of is the sentence which was pronounced by the justice, which was, that the plaintiff in error pay a fine of $100. It is urged on behalf of the plaintiff in error that this sentence was not authorized by any statute of the state in force at the time the sentence was pronounced. This necessitates an examination of the statutes. In 94 O. L., 321, appears a statute passed as an amendment to Section 6968, Revised Statutes. This statute is attested by the speaker of the House of Representatives and the president of the Senate, and after such signatures there appears in the printed volume the words “Passed April 16, 1900,” and also the figures and letter following, “206 G.” On page 349 of the same volume appears .a statute passed as an amendment to the same section. This is also attested by the signatures of the speaker of the House of Representatives and the president of the Senate, and after such signatures appear the words “Passed April 16, 1900,” and the figures and letter “226 G. ” By the statute first mentioned the fine for the offense, of which the plaintiff in error was convicted, is fixed at not less than $25 nor more than $100. The other statute fixes the fine. for the same offense at not less than $25 nor more than $50.

It is manifest that both these statutes can not be in force at one and the same time; for the maximum fine for an offense can not be at the same time fifty dollars and one hundred dollars. Under the rule that statutes take effect from the date at which they are signed by the presiding officers of the two houses of the Legislature, it would appear from what has already been quoted that each of these two statutes took effect on April 16, 1900, and though it is admitted on the part of the defendant in error that both can not have' been operative at the same time, yet it is said that the justice might have ascertained by evidence which one of the statutes was as a matter of fact last passed by the Legislature, because it is said that the one last passed must be the one in force.

It is further urged that since the evidence upon which the justice acted in determining which of these statutes was last passed' is not before this court, we must presume that he did take evidence, and that the evidence was such as to justify the finding that the statute fixing the maximum fine at $100 was last passed. This is urged strenuously, and our attention is called from a written communication from the attorney-general of the state, in which this argument is used. However plausible the argument, it is manifestly unsound. It overlooks the proposition that courts must take judicial notice of the statutes of their own state in force at the time. It must be conceded that the reading of the two statutes does not disclose which was last passed, and that, therefore, some evidence outside of the reading must be had; and it is said that a reviewing court is not to take evidence to determine a fact which the lower court must have determined, but must presume that the evidence adduced in the lower court Avas such as to justify the conclusion at which it arrived. If this is so, it follows that whenever by reason of the bungling manner in which the Legislature has done its work, or the bungling manner in which the printer of the volume of the statutes has done his work, leaves it uncertain what statute was last passed, a rcvieAving court is left without poAver to determine that question, if it has been determined by the court which is being reviewed, and the evidence upon which the lower court acted is not before the reviewing court. Is it possible that the reviewing court is not bound to determine what the statute is on a given subject because, on account of some blunder, the printed volume of the statutes does not distinctly show what statute is in force?

The statute found in 94 O. L., 321, is designated, “House Bill 96,” and that found on page 349 is designated, “Senate Bill 216,” and hereafter in this opinion the former will be spoken of as “Bill 96” and the latter as “Bill 216.”

Suppose that by reason of the carelessness of the printer the date at which each of these bills was passed was so indistinctly printed that one could not by looking at the bills as printed, determine the date, and the lower court determines upon some evidence, no matter what, that the date appearing on Bill 96 is April 18, and that the date appearing on Bill 216 is April 15, and so holds that Bill 96 was the one last passed. The evidence upon Avhich this decision was made is not brought before the reviewing court, but the plaintiff in error offers to show that the date of Bill 96 is April 15, and the date of Bill 216 is April 18, is it possible that the reviewing court would decline to examine such evidence? Although the courts are bound to take judicial notice of the statutes of the state in force, they do not instinctively know what statutes are in force, but must ascertain by evidence; ordinarily the evidence is the printed volume of the statutes, but where such printed volumes leave the question in doubt, it is clear some other evidence must be resorted to.

If this proposition is not sound, then if the penalty provided in Bill 96 were imprisonment in the county jail for not less than ten nor more than thirty days without any fine whatever, and a conviction was had before a justice of the peace, and sentence of imprisonment pronounced against the prisoner, and the case came' by proper proceedings in error before a reviewing court, the court would be bound to presume that the lower court had acted upon sufficient evidence, and the judgment and sentence would be affirmed.

Or, suppose that the penalty provided in Bill 216 was a fine of not less than $25 nor more than $100, without any imprisonment, and a conviction was had before a justice, and the sentence pronounced that the prisoner pay a fine of $50, the reviewing court would be bound to hold that the lower court had acted upon sufficient evidence as to what statute was in force, and so both sentences would be affirmed by the reviewing court.

These two eases might both happen in the same county and on the same day, and we should have the absurd position of a reviewing court affirming a sentence of imprisonment in the one case, where, if one statute were in force, there could be no imprisonment, and affirming another judgment where a fine was imposed, and where, if the other statute were in force, there could be no fine.

In the case of Iowa v. Clare, 5 Ia., 509, it was held that the appellate court will inform itself and take cognizance of the true reading of a statute by referring to the original act on file in the office of the secretary of state.

A examination of this case shows a distinct holding by the Supreme Court that the reviewing court will examine for itself the question of what statute is to govern the particular case, and that 'without reference to what examination was made or evidence relied upon by the trial court. This case is cited with approval in Koehler v. Hill, 14 N. W. Rep., 738; 15 N. W. Rep., 609.

It seems clear that the reviewing court can not escape the responsibility of determining what statute was in force at the time the sentence was pronounced, and the question follows: How shall that be ascertained in a case, where, by reason of the blundering of the Legislature, the statutes appear to have both been passed at the same time?

No case has been found in Ohio where this question has been raised in a proceeding in error; but it is settled that where it becomes necessáry by some means other than by the'authorized printed volume of the statutes to ascertain at what date a statute takes effect, resort may be had to the journals of the two houses of the General Assembly.

In the case of State v. Mayor of Perrysburgh, 14 Ohio St., 472, the Supreme Court holds that resort may be had to the journals of the two houses of the General Assembly to determine at what date statutes passed the two houses. In that case it became material because a statute provided in these words: “This act shall take effect from and after the fifteenth day of May next.”

This statute was passed in 1852, and was signed by the presiding officers of the two houses on May 3 of that year, and the question was, did it take effect on May 15, 1852, or May 15, 1853 ? If it was passed on May 3, 1852, and was to take effect on the fifteenth day of the next May, then the date of taking effect would clearly be May 15, 1853. But it was urged that it was actually passed in April, 1852, in which case the fifteenth day of May next would be the fifteenth day of May, 1852. For the purpose of determining this question the Supreme Court looked to the journals of the two houses and found that the statute was actually passed on April 28, 1852, and so held that it took effect on May 15, 1852.

An examination of the journals of the two houses of the Seventy-fourth General Assembly of Ohio discloses this state of facts: Bill 96 was introduced in the House and passed its first reading on January 15, 1900 (House Journal, page 54); it passed its second reading and was referred to the committee on fish culture and game on January 16, 1900 (House Journal, page 58); this committee reported the bill back to the House and recommended its passage on March 8, 1900 (House Journal, page 417); it passed its third reading; was referred to a special committee of one for amendment; the amendment at once reported, and the bill passed the House on March 27, 1900 (House Journal, page 614), and on April 12 it was passed by the Senate without amendment (Senate Journal, page 681).

• Bill 216 was introduced and read the first .time in the Senate March 1, 1900 (Senate Journal, page 252); it passed its second reading and was referred to the committee on fish culture and game on March 2, 1900 (Senate Journal, page 258) ; it was reported back by the committee, with several amendments, which were at once agreed to, on March 16, 1900 (Senate Journal, 354); it was read the third time; amended and passed the Senate on March 21, 1900 (Senate Journal, page 388). The bill then went to the House, and on April 14, 1900, the bill with certain amendments introduced in the House was passed by the House (House Journal, page 984). On the same day the Senate received a message from the House as to its action, and the Senate concurred in the amendments made in the House, and finally passed the bill as amended (Senate Journal, page 772).

It will be seen that the last action of the House on Bill 96 was March 27, and that the last action of the Senate on the same bill was April 12; that the last action of the House on Bill 216 was April 14, and the last action of the Senate on this bill was on the same date. It follows that Bill 216 was the last expression of the Legislature on the matter under consideration, and was, therefore, at the time the sentence complained of in this action was pronounced, the law of the state on that subject.

So far as the signing of these bills is concerned, House Journal 1021 shows that Bill 96 was signed by the speaker in the presence of the House on April 16, and that- later on, on the same day, Bill 216 was so signed by the speaker (House Journal, 1031). On the same day the president of the Senate signed Bill 216 in the presence of the Senate (Senate Journal, 819), and later on, on the same day, signed Bill 96 (Senate Journal, 823). So that we get no aid from the actual time of the signing of the bills, for as to one of the presiding officers Bill 96 was signed last, and as to the other, Bill 216 was signed last.

That whoever prepared these bills for publication understood that they took effect in the order in which it is found by this opinion they did take effect, is made probable both from the fact that Bill 96 is printed earlier in the volume, to-wit, 94 O. L., at page 321, the other being printed at page 349, and also by the figures and letters printed with each bill as hereinbefore quoted, Bill 96 being designated as “General Law 206,” and Bill 216 being designated as “General Law 226.” From what has been said it follows that the sentence pronounced against the plaintiff in error was not authorized by the statutes of the state at the time it was pronounced, and that the judgment of the court of common- pleas, affirming such sentence, and the judgment of the justice in pronouncing such sentence should be reversed, and as the time has long since passed for the pronouncing of sentence by the justice, and h'is jurisdiction to pronounce sentence is lost, it follows that the plaintiff in error must be discharged.

If it be said that this results in permitting one who has violated a criminal statute of the state to go scot free, and that 'this ought not to be, the answer is that it is better that one so violating the law shall go unpunished than that the courts pronounce and carry into effect a sentence wholly unauthorized by law. Respect for the law will not be encouraged or strengthened by undertaking to administer as law that which is in violation of law. Fortunately the present Legislature, probably having discovered the difficulty which has arisen in this case, or in any event, having discovered the inconsistency of the two statutes, has repealed them both and substituted another in their stead.


text:
    BENEFITS FROM STREET IMPROVEMENT.
    [Circuit Court of Franklin County.]
    John L. Waldschmidt et al v. Willis G. Bowland, Treasurer.
    Decided, March 25, 1905.

      Street — Difficulty of Fining Benefits from Improvement of — Judgment of Experts — Estoppel as to Grantees — Seeking to Escape Assessment.

      1. In fixing the market value of property, and its enhancement in value from a street improvement, greater weight attaches to the opinions of experts who base their judgment upon actual sales, ■than- to the opinio,nis of residents who ,h,ave purchased property in the neighborhood’ for permanent homes, and give little consideration to i-ts market value as it may he affected from time to time by various causes.
    2. Estoppel arises against a grantee seeking ,to escape payment of a street assessment, where it clearly appears that the assumption of that particular assessment by him constituted part of the purchase price.
    3. Estoppel also arises as to a grantee who purchased after the resolution declaring the necessity of the improvement and the ordinance ordering the improvement were passed, hut before the passage of the ordinance assessing the property.
    4. But where the provision’s in a deed as to payment of a street assessment does not specify any particular assessment for the improvement of any particular street, estoppel does not arise against resistance by the grantee of collection of an assessment.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
   That the abutting property is specially benefited by a street improvement of the character made upon this street, there is certainly no question. The exact extent of such special benefit is frequently difficult of definite proof.

The present ease is no exception to this rule. It is, as in this ease, so often- a matter qf opinion, as to make it most difficult, at least for the courts, to determine to an absolute certainty the benefits conferred. In this case, with but two exceptions, all the witnesses called by plaintiffs here testified that the abut-, ting property was worth no more after than before the improvement. The majority of those so testifying are owners and occupiers of abutting property, and liable for the assessments. The testimony of nearly all the witnesses called is to the effect that the property along this street is owned and occupied by persons who purchased the property for permanent homes, and not for speculation or sale, and hence the opinions expressed as to the market value before and after the improvement had for their basis only two or three sales of property on this street. We think it may be safely assumed that one who purchases for and occupies property as a permanent home gives to the market value of his property as it may be affected by various causes from time to time no consideration. It is not for sale and was not purchased for sale and hence what its market price may be gives him little or no concern. This can not be said to be the ease with those who purchase to sell, or would sell if they could realize a profit. Neither can it be said of those persons who make it a business to negotiate both sales and purchases, and who necessarily must be informed as to the various causes affecting the market value of real estate. The opinions of such persons, however, are to be viewed in the light of actual sales, when a sufficient number have been made to indicate .with a degree of certainly at least the market value. In this case we have the witnesses for plaintiff®, with the exception above stated, testifying that the abutting property received no special benefit from the improvement, whilst those called by the defendant with one or two exceptions were experts, men engaged in negotiating sales, who testified that the special benefits were from $8 to $10 to $15 per front foot. The amount fixed below, upon this same testimony, reduced the assessment one dollar and fifty cents per front foot. The trial judge being familiar with the street and abutting property took the pains of making a personal view of both.

Louis Sidensticker, called by plaintiffs, who owns and occupies property on this street and is assessed for the improvement, states that in his judgment the special benefits to the property was about $6.50 a front foot. The judgment of this witness impressed this court very favorably. If he was prejudiced at all, it is safe to assume it would be in favor of the plaintiffs. I-Iis testimony impresses the court that he was without prejudice. He purchased a lot of some 31 feet front before the improvement, paying $1,200, which in his judgment was $200 more than its market value at the time, and that after the improvement its market value was increased at least $200 — making the special benefits- per front foot about $6.50. He explains why he paid more than the market value when he purchased. The testimony of the expert witnesses, in view of all the testimony as to the few sales made, we think place the benefits too high, and whilst absolute certainty is not possible, we are of the opinion that the assessment as reduced by the court below is correct, and, therefore, on the question of benefits, the decree of this court will be the same.

The language appearing in the deed of Barbara Meinert to Peter G. Meinert creates an estoppel against the grantee. The assumption by him to pay the assessment in controversy constituted a part of the consideration for the premises, or, to put it more concisely, the assessment together with the amounts of money expressed in the deed constituted the whole consideration. There is no ambiguity in this provision of the deed, and no presumption arises that it was intended the language used should be construed to mean any other than the ordinary signification of the words. We are of the opinion, that this provision in the deed comes clearly within the Caldwell case reported in 37 L. B., 270. The assessments are named in this provision of the deed, being those for the improvement of Third street in front of said premises.

Benjamin Smith by consent of defendant and leave of this court was made a party plaintiff after the appeal. He is the owner of Lot 141, Jaeger addition to the city, abutting upon Third street and is assessed. He purchased from Nicholas S. Oh-]er, taking a deed therefor July, 1892, in which the following provision appears in the covenants of the deed1: “Free and clear from all incumbrances whatsoever except the taxes for 1892 and all assessments for the improvement of Third street under the Taylor Law, which grantee assumes and agrees to pay as part of the purchase money herein.”

O. H. Hosier, for plaintiff.

J. M. Butler, for defendants.

Plaintiff, Smith, contends that this provision in the deed does not constitute an estoppel and that he has a legal right to challenge the assessment. The reason assigned for this contention is that at the date of the deed the assessment ordinance had not been passed. We think this contention is not good, as the resolution declaring the necessity for the improvement was passed by the city council July 19, 1891, and the ordinance ordering the improvement was passed August 21, 1891. The provision in the deed in view of the passage of the foregoing resolution and ordinance on the dates above stated, and that council passed the ordinance assessing the property September 26, 1892, a few days after the purchase by Smith, support the conclusion that the parties knew that the assessment was a lien upon the property, and also the amounts of same at the date of the -deed, and the assumption by Smith to pay the same as a part consideration for the property was with knowledge of the amount of the assessment.

Daniel Hellwig purchased from Henry Stehle January 11, 1892, after the resolution to improve and ordinance ordering the improvement and before the assessing ordinance was passed. The provision in his deed does not specify any particular assessment for the improvement of any particular street, hence it can not be said that the assumption expressed in his deed related to and covered the assessment alone upon Third street for which reason we think he is not estopped.

The decree of this court will, therefore, be the same as that of the court below on the question of estoppel excepting therefrom Daniel Hellwig — and also that Smith is estopped from challenging the assessment. There will be abated from the assessment upon the Hellwig property the sum of $1.50 per front foot, and that he pay whatever may remain of the assessment after such abatement and the costs may be taxed as in the decree of the court below.


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    CONCURRENT RESPONSIBILITY AT STEAM AND STREET RAILWAY CASES.
    [Circuit Court of Hamilton County.]
    Clara Kopp v. B. & O. S. W. Ry. Co.

    Decided, December 16, 1903.

      Railways — Duty of Operating Gates — At Steam and Street Railway Grossings — Not Dispensed with by Section 3443-6 — Negligence.
    The provision in Section 3443-6, Revised Statutes, requiring that before a street car crosses a steam railroad track at grade some employe of the street railroad company shall go ahead and ascertain whether the way is clear and free from danger before the car proceeds to cross the track, does not relieve the steam railroad company from the duty of operating its gates at such crossings in a manner indicating to persons in charge of an approaching street car whether or not the crossing may be made without danger. Duties - concurrent in point of time are imposed upon both companies, and a failure of either to perform in that respect will render it liable for injuries resulting from such negligence.
    Giffen, J.; Jelke, J., and Swing, J., concur.

       Affirmed by the Supreme Court without report, 70 Ohio State, 436.

   Counsel for defendant in error assumes that Section 3M3-6, Revised Statutes, providing that before a street ear shall cross over a railroad track at grade, some employe of the company shall go ahead and ascertain if the way is clear, relieves the steam railroad company of the duty of so operating its gates as to indicate to the person operating the street car whether the track is clear. There is nothing in the statute that warrants such conclusion, and, having been enacted for the protection of the passengers, there can arise no implication that the Legislature intended to expose them to danger by releasing the railroad company from the duty of exercising ordinary care. On the contrary it was evidently intended to furnish an additional safeguard to the passengers who have no control over the management of the street car.

Theodore Horstman, for plaintiff in error.

A. W. Goldsmith, for defendant in error.

At the very time that it became the duty of the railroad company to lower its gates to indicate the approach of a train, it was also the duty of the street railway company by its employe to go ahead and see if the way was clear. The failure of each of the companies to perform such duty, concurred one with the other in causing the accident. There was no appreciable difference in the time when the failure to perform the duty by the respective companies occurred. The two ran together, and were the direct cause of the collision.

In the ease of Cincinnati St. Ry. Co. v. Murray, 53 Ohio St., 570, both the street railway company and the steam railroad company were held liable upon a state of facts similar to that in the case before us; except in that case the railroad company was operating its train of cars in a negligent manner.

It may be said of that case that notwithstanding the gates were up, and notwithstanding the employe of the street railway company failed to go ahead to see if the way was clear, still the collision would probably not have occurred had the employes of the railroad company operating the train given some signal of the approaching train, and that the failure to do so was the direct cause of the accident, and therefore the street railway company was not liable. But the court evidently considered the three causes, although distinct and independent, as concurring to cause the collision.

We think, therefore, that the common pleas court erred in arresting the case from the jury, and the judgment will be reversed.


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    CONSTRUCTION OF THE WORD “ HEIR.”
    [Circuit Court of Lake County.]
    Frank H. Todd v. Lena E. Todd, Executrix, and Elsie A. Davis.
    Decided, January, 1905.

      Words and Phrases — How “Heir” Should he Construed — As Used in Section 6098 — Defense Against Claims Filed with the Executor— Devisees and Legatees — Parties.
    The word “heir” in Section- 6098, Revised Statutes, may he construed to mean devisees and legatees, and -as such -have the right to file in the probate court a written requisition -on the executor to ■disallow and reject any claim presented for allowance; and such devisees and legatees are proper parties in any action brought upon a claim rejected under such requisition, and have the right to defend against such claim.
    Cook, J.; Burrows, J., concurs; Laubie, J., dissents.
    Error to Lake County Common Pleas Court.
   Plaintiff, Prank TI. Todd, is the husband of the defendant, Lena E. Todd, the executrix of the last will and testament of William A. Davis, deceased, who is also the daughter of the deceased; Elsie A. Davis, the other defendant, is the widow of the deceased. Frank H. Todd, who is a physician, presented a claim for medical services rendered decedent, to the executrix, his wife, for allowance, and she allowed the same as a just and valid claim against the estate of the decedent. Afterwards the widow, Elsie A. Davis, filed a written requisition in the probate court requiring the executrix to disallow the claim, and entered into the necessary undertaking with sufficient surety, which was approved by the court; and thereupon the executrix withdrew her allowance of the claim and disallowed the same as she was required to do.

Frank IT. Todd then brought suit upon the claim against Lena E. Todd, the executrix, and Elsie A. Davis, the widow. The executrix made no defense in the action, but the widow, Elsie A, Davis, filed an answer contesting the validity of the claim upon several grounds, principally that the plaintiff never intended to charge for the services, if any, he rendered, and, if he did, the claim was settled by an agreement between the plaintiff, the executrix, and herself, by which agreement she was to take the provision made for her in the will, and the executrix, the daughter, Lena E. Todd, was to take the provision made for her under the will, and the claim, if any, he, Frank II. Todd, had, was to be canceled; and thereupon the widow, Elsie A. Davis, after the making of the claimed agreement elected to take under the will. There was no personal property for distribution. The testator only owned two parcels of real estate, one of which he devised to his said daughter, and the other parcel to his wife, to be in lieu of her dower and all' her rights statutory or otherwise, in his estate. The case was tried to the court, a jury being waived, and the court rendered judgment against the plaintiff, and error is now prosecuted in this court.

The court is united upon the question that under the evidence the court decided the case properly, but we are not united as to whether or not the defendant, Elsie A. Davis, was a proper party to the action with power to make such defense.

This question was not made below, neither was it made in argument before us, but under the pleadings it no doubt arises and must be determined.

It is claimed that Elsie A. Davis was not an heir, and, therefore, could not file a requisition upon the executrix to disallow the claim. It is conceded that the property that she elected to take under the will would have been imperiled by the judgment, if one had been obtained, but it is said although that may be so, yet she must wait until her property is attempted to be subjected to the payment of the judgment and then restrain the attempted wrong, or file exceptions to the account of the executrix to the allowance of the husband’s claim.

Is such the law? The majority of the court think not.

Section 6098, Revised Statutes, provides as follows:

“If any heir, or creditor of a deceased person, or any person who has purchased, or claims to hold, by purchase or otherwise, from such heir, any lands or other property inherited by such heir from such decedent, shall file in the probate court of the county in which administration is taken out on any estate, a written requisition on the administrator or executor, to disallow and reject any claim presented for allowance, and whether said claim has been allowed or not, but which has not been paid in full, and shall enter into an undertaking, with sufficient surety to be approved by the probate judge, conditioned to pay all costs and expenses of contesting such claim, in case it shall be finally allowed, such claim shall, in such ease, be disallowed and rejected by such administrator or executor, and the holder of such claim shall be required, within six months after such rejection of such claim, to bring his action against such administrator or executor, to enforce such claim, and if he recover, the judgment shall be against the said administrator or executor; and in such action, such heir, creditor, or other person claiming to hold such property, shall be made a party defendant with such administrator or executor, and shall have the right to plead and make any defense to such action which such administrator or executor could make; whenever such written requisition and undertaking shall be so filed in the probate court, the probate judge shall at once notify such administrator or executor thereof; and such administrator or executor shall thereupon at once notify the holder of such claim that such claim is rejected and disallowed.”

What was the intent of the Legislature in the use of the word “heir”? The word “heir” as it is generally understood has a very broad signification and as the provision of Section 6098 is remedial in its nature, the word should not be considered a technical one or restricted in its meaning, without there is some controlling reason for doing so.

But in its legal or technical signification under our statute it includes widow, as a widow may inherit property (Revised Statutes, 4158-59). Bouvier in his law dictionary says:

“The word ‘heir’ in its strict and technical import applies to the person or persons appointed by law to succeed to the estate in cases of intestacy (Second Bla. Com., 201; 52 Ill., 62; 139 Id., 433; 37 S. C., 255).”

In wills in order to effectuate the intention of the testator the word heir is sometimes construed to mean the next of kin (1 Jac. & W., 388; 51 N. J. Eq., 1); and statutory next of kin (41 L. T. Rep., N. S., 209; Second Hawkes, 472). “The word heirs can he construed as distributees or representatives” (84 Penn., 245); and children (Ambl., 273; 36 S. C., 38; 87 Ga., 239; 91 Tenn., 119; 62 N. H., 558; 117 Id., 308); under the term “heirs at law” a widow has been allowed to share (158 Mass., 392; 63 Ind., 72). “In a bequest of personalty the word heir is intended to mean those entitled under- the statute as distributees in case of intestacy” (136 Pa., 153). “The word may be used in a contract to designate the representatives of a living person” (9 Conn., 272). “The words an heir and heirs are interchangeable and embrace all legally entitled to partake of the inheritance” (83 Va., 724).

But it is said that the party under the statute entitled to file the requisition with the probate judge must be an heir that has inherited property that came to him or her by descent, in each particular ease, and does not apply to devisees and legatees under a will, although they may also be heirs. We do not think this is correct. Who can tell whether the will of the decedent will be effective or not; possibly the will may be set aside, prove wholly ineffective, and, if so, the right of the heirs may be jeopardized or wholly lost.

We think it is intended, just as the statute reads, “that any heir may object to the allowance of a claim, and file a written requisition with the probate court, although such heir may also be interested as devisee or legatee.” We go further and hold that the words any heir or creditor in the statute includes devisees and legatees or any person whomsoever whose property is or may be -affected by the recovery of a judgment. We have seen that the word heir in a will may be construed to mean widow, next of kin, children; in a contract, personal representatives ; and the same rule would no doubt apply in a deed where it was manifestly the intention of the parties. Why not the word heir then in this statute have as liberal interpretation and include devisees and legatees?

The object of a statute, and the mischief against which it was designed to guard, will be looked to; such is the general holding in this state; indeed, it is one of the fundamental canons in-the construction of statutes. As was said by Brinkerhoff, J., in Terrill v. Auchaner, 14 O. S., 87:

Osborne & Osborne, for plaintiff in error.

Shepherd & Shepherd, for defendant in error, Elsie A. Davis.

‘£ In the construction of statutes we may look to the mischiefs, if any, which the statute was designed to remedy and also the consequences which would flow from any particular construction, and if the statute be fairly susceptible of two different constructions, we are at liberty to choose that one which, while it remedies the mischief aimed at, -avoids the absurd or unjust consequences which would flow from the other.”

How applicable- this opinion of the learned judge to the statute under consideration. The mischief aimed at is to prevent the allowance and payment of unjust claims' against the estate of deceased persons, through the fraud or perverseness of an unscrupulous or incompetent administrator or executor; and what1 unjust and absurd consequences would arise from so construing the statute that the word heir does not include a devisee or legatee.

The word heir, if interpreted in its narrow and strict sense, would furnish ample opportunity to defeat an unjust claim, although the party’s interest be ever so small, while a legatee or devisee whose interest might be great would be required to stand by and see an unjust claim pressed to judgment without any opportunity whatever to object. "We do not think such was the intent of the Legislature.

The judgment of the court of common pleas will be affirmed.


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    QUESTIONS IN A SUIT TO CONTEST A WILL.
    [Circuit Court of Hamilton County.]
    Frank Schoch et al v. Julius Schoch et al.
    Decided March, 1905.

      Wills — Charge of Court — Belief of Testatrix in Spiritualism — Evidence — Where Incompetent hut not Prejudicial.

    1. In a suit to contest a will, it is not error to refuse to give a special charge to the effect that the fact of the testatrix’s belief in spiritualism does not afford ground for setting the will aside, where the charge as requested does not embrace all the facts brought out at the trial concerning the belief .and practice of spiritualism by the testatrix.
    2. An exception to the admission of evidence will not avail on review, where it relates to the mode or order of proof rather than to the substance, and the plaintiff in error was not prejudiced thereby.
    3. Declarations of a witness which tend to show the state of mind of the witness, andi which afford circumstantial evidence of her purpose and design in treating the testatrix as she did in her last illness with apparent kindness and affection, are admissible.
    Giffen, J.; Jelke, J., and Swing, J., concur.
   This was an action to set aside a will upon the grounds that the testatrix was not of sound mind and memory, and was unduly influenced.

The jury returned a verdict finding that the paper writing purporting to be the last will and testament of Mary Schoch, deceased, was not the valid last will and testament of the said Mary Schoch.

The judgment rendered upon this verdict is now sought to be reversed for the alleged error of the court in refusing to give the following special charge at the request of the plaintiffs in error:

“I charge you, that even if you should find from the evidence that Mary Schoch, deceased, during her lifetime was a believer in spiritualism, and did believe during her lifetime that she could have communication with spirits’ in the other world, that this would be no ground for the setting aside of her wishes in making a distribution of her property in her last will and testament.”

The objection to this charge is that it does not embrace all the facts brought out at the trial concerning the belief and practice of spiritualism by the testator, nor was there any pretense on the part of the defendants in error that any or all of the facts concerning spiritualism proved at the trial constituted the only ground for setting aside the will.

The charge, therefore, if given, would have been misleading, and we find no error in the refusal of the court to give the same to the jury.

It is also claimed that the court erred in its general charge and its comments upon the special written instructions given to the jury before argument, but no objection was interposed at the time and upon the whole record we think no prejudicial error resulted.

The next alleged error appears'on pages 87 and 88 of the bill of exceptions. Barbara Deckham was permitted to testify over the objection of counsel for plaintiffs in error to declarations made to her by Lena Schoch, the wife of Frank Schoeh, one of the plaintiffs in error: “I was up there and I told the old lady what I think of her before she croaked.” And, “Well, she won’t eat a meal at my place; because if she had one she never would eat another.” Also, “If I go to the funeral I will wear red. I wore green at Mollie’s funeral; I will wear red at her’s.”

Lena Schoeh was not a party to the suit nor were the declarations made in the presence of any such party. These declarations were afterwards denied by Lena Schoch when called as a witness. It was clearly erroneous to admit them for the purpose of impeaching the witness without having first laid the ground for such impeachment. It seems, therefore, that the objection goes rather to the mode of proof than to its substance, and the plaintiffs in error were not prejudiced thereby.

We think the declarations were also admissible for the purpose of showing the state of mind of the speaker and as circumstantial evidence of her purpose and design in treating the testatrix during her last illness with apparent kindness and affection.

The plaintiffs in their petition allege that the testator was coerced into signing the will by the undue influence of Lena Schoch and others, Testimony was offered at the trial tending to prove that Lena Schoch. and her husband, Frank Schoch, had neglected and avoided the testatrix for a long time prior to her last sickness; that when she became seriously sick they became unusually attentive and caused her to be removed from her own house to that of the defendant, Frank Schoch, and at a time when the testatrix was not in a fit condition to be moved, and when there was no occasion therefor other than to have her near them and under the same roof. When considered in connection with this testimony the declarations tended to prove the ill-will of Lena Schoch toward the testatrix, and, circumstantially, that her affection for the testatrix was apparent and not real.

Keam & Keam, for plaintiffs in error.

Theodore Horstman, contra.

The same objection may be here made to the order of proof as the declarations were first offered. Aside from the question of admissability, the declarations themselves seem not to have been prejudicial. Although they were not made in the .presence of the testatrix or otherwise communicated to her, she refused to ‘take food or medicine from the hands of Lena Schoch until assured by the physician that they were harmless. She seems, therefore, to have possessed a mind clear enough to discern the acknowledged purpose of Lena Schoch, and a will strong enough to resist her influence. In any view of the case, therefore, although the court might properly have excluded the declarations at the time they were offered, their admission was not prejudicial error.

The objection to the testimony, on page 436 of the bill of exceptions, was addressed only to a preliminary question and answer and no objection was made at the trial to that which follows and is now complained of for the first time. It will therefore not avail the plaintiffs in error.

The only other ground of error is that the verdict is not sustained by sufficient evidence. After reading the voluminous bill of exceptions, we are not impressed with the great weight of the evidence urged by counsel for defendants in error, nor on the other hand, .are we justified in holding that the verdict is manifestly against the weight of the evidence.

Judgment will, therefore, be affirmed.