text:
    ISSUES IN A WILL CONTEST.
    [Circuit Court of Huron County.]
    William E. Moore et al v. William Caldwell et al.
    Decided, October, 1904.

      Wills — Mental Capacity of Testator — Wlhen a Delusion Does not Affect Testamentary Capacity — Value of Testimony of Experts and of Laymen — Declaration of a Beneficiary — Faithfulness of a Beneficiary — Examination of Witnesses.

    1. It is not necessary that one about to make a will should be possessed of his maximum strength of mind, or the degree of mental strength necessary to make a contract; but he should be able to remember his property, and the proper objects of his bounty, and to make a testamentary disposition of his property without suggestion.
    2. A delusion on the part of a testator does not constitute mental incapacity unless it is an insane delusion, and in determining whether a testator was suffering from such a delusion at the time he made his will, the testimony offered on the subject should' be considered by the jury, that of experts not being allowed to outweigh absolutely that of laymen who had known the testator for ' years, and had business transactions with him, and frequently met and conversed with him.
    3. An expert can not be asked whether the testator was capable of making such a will as good reason and a normal condition of ■ mind would require, and previous declarations of beneficiaries not on the stand for the purpose of impeachment are not a proper subject of cross-examination.
    4. Evidence of the faithfulness of a beneficiary to-the testator is competent in a will contest, because of the bearing which it has upon the question of the reasonableness of the will as executed.
    5. Where a witness is called by the defendant in a will contest to give his opinion in chief as to the mental capacity of the testator, no right exists in favor of the plaintiff to cross-examine him upon the facts and grounds upon which his opinion is based, until after the conclusion of the examination in chief.
    Hull, J.; Parker, J., and Haynes, J., concur.
    Error to Huron Common Pleas Court.
   This action was brought in the court below to contest the will of James A. Moore, late of this county who died in the year 1900. It was tried to the court and jury, and the jury returned a verdict in favor of the defendants, finding that the paper writing in question was the will of James A. Moore. The motion for a new trial was overruled and judgment- entered upon the verdict and it was to reverse this judgment that a petition in error was filed in this court.

The record is very voluminous, containing some 1,500 pages. We have given it sufficient examination to familiarize ourselves with the testimony. We have specially examined the testimony of plaintiffs in error, the testimony of experts called by them and the testimony of other witnesses called by them. We have also examined the testimony offered by the defendants sufficiently to gather the full import thereof.

There was no substantial dispute in the argument of the case as to' what the testimony was — that is, the general trend of it.

Several physicians were called by the plaintiffs and none, or but one, on the part of the defendants, and he did not claim to be an expert upon the subject of mental diseases. The evidence of experts upon hypothetical questions put to t'hem by counsel for plaintiffs was that, in their judgment, at the time the will was made James A. Moore was of unsound mind. Other witnesses who were not called as experts testified substantially that in their judgment, from what they could observe, he was of unsound mind.

The defendants only called one physician, Doctor Garber, who had been Mr. Moore’s physician in the latter months of his life. He testified that, in his opinion, Mr. Moore was of sound mind at the time the will was made.

A large number of lay witnesses were called by the defendants — some twenty or twenty-five, who had known Mr. Moore, many of them, for a great many years, fifteen, twenty, twenty-five and thirty years, and the most of them lived in the village of Plymouth where Mr. Moore resided for many years, and at the time of his death — and these witnesses testified in behalf of the defendants, stating the facts upon which they, based their opinion, that in their judgment Mr. Moore was of sound mind at and about the time the will was made.

An important question in the case, as in most will cases, is as to whether or not the verdict was sustained by the evidence, or whether it was against the evidence.

The plaintiffs claim that Mr. Moore was of unsound mind and of insufficient capacity — mental capacity — to make a will at the time this paper was executed. They also claim in their petition that the will was brought about by undue influence, but this was abandoned at the trial. It was probably not necessary to plead the ground upon which a will was. asked to be set aside. The question is, whether it was the will of the testator or not. But the claim as to undue influence was formally abandoned so that it left, only the claim of mental incapacity, and that claim of .the plaintiffs, according to the argument and the testimony in the case, was based upon the claim that he was suffering, at the time he made the will and had been for some time prior thereto, from an insane delusion in regard to his wife, who was living at the time the will was made, in 1900, but- who died two or three days before Mr. Moore died, she having died on Saturday and Mr. Moore on the following Monday.

This alleged insane delusion concerning his wife, as claimed, was a false belief on his part, a belief not sustained by any facts, that she was guilty of unfaithfulness and of improper conduct with other men — flirting with other men and conducting herself in an improper manner toward them, he believing that she was guilty of infidelity' — and it is claimed that this influenced him in making his will to such an extent that the paper was not his will, but was the product of this delusion.

As I before stated, the first and most important question in the case is, whether the verdict was sustained by the evidence. We will not attempt to go into the testimony in detail.

The members of the household, a sister of Mr. Moore’s wife and a niece, Nellie Wilcox, and some others testified to conduct on the part of Mr. Moore, showing these suspicions of his wife, or this belief that she was untrue to him, and various instances and circumstances are testified to tending to show things which it is claimed he said when men passed the house, or when men and boys came to the house; many instances are testified to by witnesses tending to show that he had these suspicions of his wife.

He gave his wife, by the will, the use of all his real estate during her life, so long as she remained his widow — all the real estate except eighty acres of land that he gave to William Caldwell, there being some two hundred and forty acres all together —and besides he gave her the use of several thousand dollars worth of personal property, some of it being in money, the proceeds of life insurance policies, so that she could use it. if necessary, during her life; and he gave her the use of the residence in Plymouth, the household furniture and everything except a few special bequests to others. He gave to William Caldwell, the man who had been employed by him upon his farm about ten years, eighty acres of land absolutely, he to select that eighty acres from the two hundred and forty; and he made other special bequests — quite a number of them disposing of china, stocks, personal property of various kinds, jewelry, etc.

Mr. Moore was an eccentric man and had been to some extent for many years, perhaps all his life. His business was that of an insurance adjuster who traveled about over the state. He had accumulated property, at the time of his death, to the amount of about $21,000. He came in contact with a great many people as an insurance adjuster.

As I have already stated, some twenty or twenty-five witnesses were called in behalf- of the defendants upon this question of his mental capacity — many old acquaintances, men who had done business with him for twenty-five years, some even longer than that, and some who had known him all their lives — who testified to his conduct with them, his transactions and relations with them, and basing their opinions upon the facts, as stated by them, they testified that, in their judgment, at the time the will was made and prior thereto, he was of sound mind. He was irritable, as testified to by many witnesses on both sides, and peculiar, and sometimes seemed to be under the impression that he was liable to get poor, and might go to the poorhouse. That is a feeling which some people have as they grow old who. are not insane or of unsound mind.

He had three strokes of paralysis, or rather apopletic strokes, The last one was about a year and a half before the will was made and from that he never recovered physically and perhaps, in fact, he never did have the strength of mind that he had had before. His mental powers were somewhat weakened by this stroke, or -by these strokes; there is no question about that. He was not as quick mentally as he had been before; but he continued to do business to some extent and to act for the insurance companies for quite a time after these strokes, but finally, on account of his .infirmities he was “laid off,” as it was said, upon a salary of $100 per month, where formerly he had been getting $300 per month. It was after this stroke or these strokes, when his powers of body and mind had been somewhat impaired, and his earning capacity had been lessened, only earning $100 per month where he had been earning $300 per month, and it appeared as though his time for accumulating property had passed — I say it was then — that this feeling on his part, that he might get poor some time, or go to the poorhouse, especially manifested itself; and it is said that from being very careful and particular in his dress, he became careless as to what he wore. It may be said, however, that he, having reached this condition in health and being of this peculiar temperament, it might have occurred to him that there was a probability of his becoming poor before his death, and being' in this state of health, he naturally would not be so particular as to his dress and things of that character, as he was before.

We shall not undertake to go into the testimony upon that subject in detail. These changes were noticed in him, but he continued to meet his friends and acquaintances and to do business with them, paid all his bills by cheeks and so far as disclosed by the record, never made an error in a check that he issued.'

He was sometimes very irritable, almost violent perhaps, and became very angry at his niece, Nellie Wilcox, finally ordering her out of the house. He disapproved, it seems, of a young man who showed her attention about that time.

The will was made in March, 1890, and was drawn by Hon. W. W. Skiles, an attorney of Shelby, who had known Mr. Moore for some time but was not very intimately acquainted with him. Moore came to Skiles’ office and told him how he wanted to dispose of his property. He seemed to remember his property fully — the various pieces of his property. He had stock and other personal property and he remembered his relatives and his friends to whom he wished to give his property. He made some slight errors in the names of some of his relatives.

The will was drawn up without any suggestion on the part of any one except by Mr. Moore himself. It was dictated to a stenographer in his presence and then drawn off on a typewriter and read to him again, and he pronounced himself satisfied with it in every respect, and he thereupon executed it, signed it, and it was witnessed.

Taking all the testimony together — I have not undertaken to discuss or refer to all of it — it is our judgment that the find-, ing of the jury in favor of this will was not and can not be said to be against the weight of the evidence.

It is said that the testimony of the defendants did not reach the real issue in the case, whether he was possessed of this delusion as -to his wife; but after all, the question in the case was whether he had mental capacity to make this will, and although he may have had this belief as to his wife, even if it was unfounded, unless it was an insane delusion, it would not constitute mental incapacity, and the jury were warranted in finding from this evidence, whatever there was of that, that it did not constitute an insane or fixed delusion. He may have been mistaken about it. There is no evidence here that his wife was not a pure woman. He may have been led to believe these things from some things he had seen or heard or suspicioned and his belief based upon these things. He may have been entirely mistaken about it as he' undoubtedly was, and yet, not insane or suffering from delusion; and the jury may have found and properly so that, whatever this belief was, it did not influence him in making this' will, or influence him in the provisions that were made for his wife. She was his second wife. He had been married once before. He had no children by her. ' There had been a good deal of trouble. She had twice brought suit against him, once for alimony and once for divorce and alimony and he had been bitter toward her.

It was a natural desire on his part that his property, which he had accumulated himself, in the end should go to the members of his own family; but when he came to make his will, he gave his wife a life estate of the property the real estate and the personal property as far.as it was necessary for her to use it for her miantenance and support. He- provided for her quite bountifully under all the circumstances, giving her the use of 160 acres of land and the use of this personal property and the home in Plymouth so long as she remained his widow, besides leaving $3,000 in life insurance.

It was not an unnatural desire on his part that the property which he had accumulated should go to the benefit of some man that she might thereafter marry. So we say, taking all these things into consideration, the fact that he had had these troubles with his wife and all these things that I have mentioned, the jury would be warranted in finding that, whatever his belief or suspicion was as to his wife, whether founded or unfounded, it did not influence him in making this will to such an extent that it should be set aside, on that ground; and the testimony of all these people who had known Moore this great-length of time and had been so intimate with him, was that in their judgment he was perfectly sane and. competent to transact business. That testimony must be considered also upon the question of this alleged delusion which it is said he had.

All the testimony that was offered upon the subject of his mental capacity both by the defendants and by the plaintiffs, must be considered in determining whether or not at the time he made his will he was of sound mind and whether he was suffering from any insane delusion that induced him to make and sign a paper that was not in fact his will.

No medical experts were called by the defendants, their witness, Doctor Garber, making no claim to be an expert. The testimony of experts goes to the jury to be considered by them as any other testimony, and although the defendants had no experts, it can not be said that the testimony of the expert witnesses called by the plaintiff should outweigh absolutely the testimony of the lay witnesses called by the defendants; in fact, the testimony of lay witnesses, of sound common sense, practical business men and neighbors who saw this man from day to day on the streets, in their houses and in all the walks of life, who talked with him and observed his conduct, in our judgment, is entitled to as great consideration as the testimony of experts who never saw him and knew nothing of him except as stated in hypothetical questions.

As is often said in the books, it. is not necessary for a man to make a will to be as strong in mind and body as he ever was; in fact, as is often said, it is not necessary for him to have that strength of mind required in making a contract; but he must have sufficient mental capacity to remember his property and the proper objects of his bounty, and without suggestion to make a testamentary disposition of it.

It seems to us that Colonel Moore clearly had such mental capacity at the time he made this will.

Mr. Skiles who drew the will, who is now dead, but whose testimony is in the record, was riot intimate with him: was not familiar with his property or with Mr. Moore’s relatives; so, without suggestion, as I have said, from Mr. Skiles or any one else, Mr. Moore gave to Mr. Skiles, who drew the will, all of its details.

He had said to many, or to some at least, before the will was made, how he intended to dispose of his property to some extent; that he did not intend to give any of his property to Nellie Wilcox. He had said to many that he intended to reward liberally William Caldwell, who had been a trusted and tried friend and a faithful employe on his farm. He told others, after the will was made, that he had given property to Caldwell and none to Nellie Wilcox, and he told others that he had given a ring mentioned in the will to a man in Dayton and why he gave it. In speaking of Nellie Wilcox, he stated why he gave her nothing. He had evidently planned and purposed this will before it was drawn, and knew what disposition he had made of his property in the will and stated it to others, showing that he understood what he had done.

It was a question for the jury under this evidence, whether the testator had sufficient capacity to make a will at the time it was made, and an investigation of this kind usually takes in, as in this case, his whole life, and the jury considering all the testimony, find whether or not the paper is his will, and we think in this case that the finding of the jury was unquestionably correct.

It is complained by plaintiffs, in error that they were not given the right to cross-examine lay witnesses called by the defendants before they gave their opinions as to Colonel Moore’s mental capacity; that is, they were not permitted to cross-examine them upon the facts and grounds upon which they based their opinion, but the court permitted counsel for defendants to examine the witnesses in full and ask their opinions as to Moore’s mental condition, and then they were turned over to counsel for plaintiffs for cross-examination. In this, we think, there was no error. Some authorities are cited by plaintiffs in error tending to support their proposition; but we think the great weight of authority is against it and the best reasoning is against it. It is not only in cases where mental capacity is involved, but there are many cases of opinion, evidence and matters of reputation. We hav'e never, in practice, known of a party being permitted as a matter of right to cross-examine along this line, before a witness has finished his testimony in chief. In matters of value, opinions are often asked, and when the foundation is laid an opinion is permitted to be given, and then the other side is permitted to cross-examine the witness.

We think it would lead to confusion and an undue prolongation of a trial to permit a cross-examination of this character, of witnesses of this kind. Where there is a question as to the competency of a witness or whether the matter is privileged, such as the evidence of a physician, or a lawyer or priest, or whether a conversation occurred between husband and wife in the presence of third parties, cross-examination is permitted before the testimony of such a witness upon the real question is admitted. But it has never been the practice, to our knowledge, to permit this when an opinion is about to be offered, as in eases of this character. '

There is a long line of exceptions in the record on this point. It is claimed that in one or two instances, lay witnesses were permitted-to give their opinion as to Mr. Moore’s soundness or unsoundness of mind without stating the facts upbn which they based that opinion. Pages 572 and 730 of the record are referred to, but upon examination we think those witnesses very largely stated the facts, before they were asked to give their opinion based upon those facts. But there were interruptions due to objections and arguments, and finally the question was renewed simply by asking the witnesses to state his opinion, but it was understood, of course, that the opinion was based upon the facts already stated, and there was no error in the action of the court.

Testimony as to the faithfulness and fidelity of William Caldwell to the testator was objected to and admitted over the objections. In our judgment, this was proper testimony in this case, as will cases are tried. This is the question always, as bearing upon the validity of the instrument: Is the will reasonable; was it such a will as the testator would have drawn had he been in sound mind? Caldwell was one of the main beneficiaries under the will, and it was proper to account for this that it might not appear unreasonable and a fraud. The will itself now, as in Hamlet’s time/ is to a great extent “the thing.”

As I have said, Caldwell was given eighty acres of land, and it was sought to show his relations with Colonel Moore — that Colonel Moore liked him; that Caldwell had been faithful to .him upon the farm and in all their relations, etc. — as bearing upon the reasonableness of the will and the condition of Mr. Moore’s mind at the time the will was made. In our judgment this testimony was admissible. If Caldwell had been an enemy or an entire stranger to Moore, and no reason had existed why he should give him any of his property, it would have been perfectly proper for th» plaintiffs to have shown these things, and we think this testimony in behalf of the defendants to sustain the will was entirely admissible.

A question put to Doctor Van Norman by plaintiffs in his deposition was ruled out. It appears on page 89 of the record. We think it was properly excluded. The question was asked Doctor Yan Norman, whether in his judgment Colonel Moore was in a condition to make such a will as good reason and a normal condition of mind required. A long hypothetical question is put to him which cites many facts, and he was asked this question I have stated.

In our judgment, it was not proper to ask the doctor whether Moore was in a condition to make such a will as good reason and a normal condition of mind required. It came too near asking the witness whether in his judgment Colonel Moore was competent to make this will, which was a question for the jury.

William Caldwell was placed upon the witness stand by the plaintiffs for cross-examination and was the first witness called in the ease. It appears from the record that in one of the alimony eases brought by Mrs. Moore against her husband, affidavits had been filed on the part of Colonel Moore to the effect that he was not in good mental and physical condition for the purpose of showing that he -was not capable of earning money, and among these affidavits was that of Caldwell, and counsel for plaintiffs read to.Caldwell paragraphs from his affidavit, he being then on the witness stand for the purpose of cross-examination, and asked him whether that was true, or whether he made affidavit to that, and he said he did; then he was asked whether that was true. This was excluded. .Tie was asked many questions along that line, and finally counsel for plaintiffs asked Caldwell the direct questions bearing upon the subject-matter of the affidavit. Was he in feeble mental condition at such time, etc., and those questions were permitted to be answered by the court.

We are of the opinion that all the plaintiffs were entitled to was finally admitted by the court; we are of the opinion that it was not proper to ask this witness if he did not say that in his affidavit — if he did not say such and such things in his affidavit —and then follow it np with the question, “Is that true1?” He was not being asked these questions for the purpose of impeachment; he had not yet been upon the witness stand, and it added nothing to the testimony that he had made affidavit upon these subjects. The question was not whether the things he made affidavit to were true or not, but he could be asked the direct question as to the facts which was asked by counsel and the testimony admitted by the court.

As I have already stated, all that counsel was entitled to, Caldwell answered of these questions, and he did not attempt to dodge, as far as we can discover, the effect of the testimony. He seems to have been a frank witness. We think there was no error in refusing to permit the examination upon the affidavit.

Then Caldwell was asked whether he had not made a statement to a man by the name of Waite, that Moore was crazy, and this was refused by -the court, and we think properly so. He was not on the stand for the purpose of impeachment.

There were other beneficiaries under the will, and Caldwell’s declarations out of court could not bind other legatees or devisees under the will, and that class of testimony, it has been held, is not admissible in will contests. . The question was before this court in Roush v. Wensel, 15 C. C., 133, and discussed in the opinion delivered by Judge Parker.

Wills can not be set aside by the admissions of different beneficiaries under the will. There might be legatees with only a small interest, and it is very clear that it would be improper to admit their declarations out of court against another beneficiary under the will who might have a much larger interest. Of course, a man’s interest does not affect a rule of law, and I only speak of this to show what the admission of such testimony might lead to. We think the action of the court was correct.

There are some other questions made upon the admission and exclusion of evidence which we shall not especially refer to. In our judgment, there were no prejudicial errors committed by the court in the admission or exclusion of evidence during the trial of the ease, which extended over a period of soijie fifteen days. No exceptions were taken to the charge. The judgment of the court of common pleas will be affirmed.

O. C. Pinney and A. V. Andrews, for plaintiffs in error.

Skiles, Green & Skiles and J. R. McKnight, for defendants in error.


source: Caselaw Access Project

license: Public Domain

text:
    LEASE EXECUTED BY GUARDIAN.
    [Circuit Court of Hamilton County.]
    The Globe Soap Company v. Louisville & Nashville Railroad Company.
    Decided, July 28, 1905.

      Guardian and Ward — Power of Guardian to Lease — With Privilege of Renewal — Pleading—In Suit Involving Validity of Lease — Sections 6295 and 6296.
    1. In a suit to establish the validity of a lease executed by a guardian, the petition should show by what authority the guardian acted, and that the persons for whom he acted were disqualified by infancy, imbecility or otherwise.
    2. A covenant by a guardian to renew a lease for a second term is- in excess of the power granted by Section 6295, and is void.
    3. Ain], to bring the lease within the provisions of Section 6296, the petition should contain averments showing requisite conditions and the authority of the court.
    Gieeen, J.; Jelke, J., concurs; Swing, J., dissents.
    This case was submitted upon a general demurrer to the petition and involves the validity of a lease executed by Fannie J. Dickson, Caroline T. Dickson, David J. Dickson and Fannie J. Dickson, guardian of Charles F. and Paul R. Dickson, heirs at law of Charles T. Dickson, deceased.
   It does not appear by what authority the guardian acted, nor whether she was the guardian of the estate of Charles F. and Paul R. Dickson, nor does it appear that the two persons for whom she acted were disqualified by infancy, imbecility, or otherwise. The petition, therefore, fails to show any authority in'the so-called guardian for the execution of a lease, and in the absence of such authority, her act would be a nullity.

The demurrer was argued however, not upon the ground that the guardian was without authority to act, but that in executing the power conferred upon her by statute she exceeded such power.

Section 6295, Revised Statutes, provides as follows:,

“A guardian of the person and estate or of the estate only, of any minor, may lease the real estate of his ward for any term not exceeding three years, and not extending beyond the minority. ’ ’

The lease in this case was for a period of three years, together with an option for “a further term of two and one-half years, three years, and three years, making in all a renewal of eight and one-half years.”

It will be observed that the wards themselves do not sign -the lease, and the question whether they could ratify an act done under disability, after such disability has been removed, does not arise in this case, and the only question is whether the guardian as such had authority to make a lease for a longer period than three years, or what amounts to the same thing, make a covenant to renew for a term of years after the three year lease expired.

As appears from the briefs of counsel, the authorities are not uniform on the question here presented, but we think it comes within the principle .announced in the case of The Commissioners of Knox County v. Nichols, 14 O. S., 260, the fourth proposition of the syllabus being as follows:

“Where a power created by statute has been fully executed and something not authorized by the statute has been added, but which is clearly distinguishable from the rightful execution, the 'execution of the power is good so far as authorized by the statute, and void only as to the excess.”

In this case, the power to execute a lease for three years has been fully executed, the term having expired on December 31, 1904, but the covenant to renew the lease for a term of years is in excess of the power granted by the statute, and is therefore void.

It is contended, however, that the lease may have'been executed under Section 6296, which permits a guardian “to lease the real estate of his ward for any term not exceeding fifteen ■years whenever the court appointing him shall, on his application, find that such lease would be to the advantage of the ward,” etc., but in order to bring it within this section, the petition should contain the necessary averments showing the requisite conditions and the authority of the court.

Kiilredge <& Wilby and E. L. Gordon, for plaintiff.

Ellis G. Kinkead and E. Kenneth Rogers, for defendant.

We are of the opinion that the demurrer should be sustained upon both of the grounds above stated.


text:
    PEST HOUSES OUTSIDE MUNICIPAL LIMITS.
    [Circuit Court of Mahoning County.]
    Trustees of Youngstown Township et al v. City of Youngstown et al.
    Decided, October, 1903.

      Pest-House — Distinguished from Permanent Quarantine Establishment — Located Near Public Road and School House — Not a Nuisance, When — Erection of New Building may be Enjoined, When —Specific Acts when a Menace to the Community may be Abated.

      1. A small-pox hospital, established under 72 O. L., 77, as long ago as 1878, by a municipality, within the township but outside of its own corporate limits, at a distance of 250 feet back from a public highway, will not be abated as a nuisance, although a large township school house has since been erected on the highway opposite hospital lot, and dwellings have also been built adjacent thereto.
    2. But the erection of an additional building directly opposite the school house, and within fifty feet of the highway upon which the hospital lot abuts, will be enjoined as a public nuisance where the purpose is to use said building for hospital purposes.
    3. Such specific acts as the throwing of refuse from the table and kitchen of the hospital at such points in the open as- to be accessible to the dogs and cats of the neighborhood, and the permitting of nurses and convalescents to walk upon the highway opposite the school house, may be restrained as a public nuisance.

      Laubie, J.; Cook, J., and Burrows, J., concur.
    Appeal from court of common pleas.
   This case is brought for the purpose of abating an alleged nuisance — a pest-house — which the city of Youngstown established outside of the municipality and within the limits of the township; and in addition thereto plaintiff asks for an injunction to restrain the city and its board from erecting upon the premises in question an additional pest-house.

So far as the first proposition is concerned, it appears from the evidence that the city obtained this lot and building for a pest-house, or small-pox hospital, and not as a mere quarantine, and established the same and obtained the deed therefor in 1878. At that time the statute of the state (act of March 23, 1875, 72 O. L., 77) authorized municipalities to establish pest-houses either inside or outside of the limits of the municipality without any restrictions whatever. Counsel for defendants called our attention to a subsequent act that placed some restrictions upon the power of a municipality. But as that act does not relate to pest-houses or small-pox hospitals, but only to permanent quarantine establishments, we think it has no application to this case.

This property was obtained for the purpose stated, and the ■pest-house is nearly 300 feet back from the highway and was established before the neighborhood was in anywise thickly populated, and before the location of the school-house that was erected by the township on the opposite side of the road. It is immaterial whether the township trustees had actual notice of this or not. They were bound to take notice of it, and therefore must be considered as having erected their school-house with notice that on the opposite side of the road, on the lot referred to, the city had established a pesthouse, authorized by law, and they can not, at this late day, ask to have that pest-house abolished as a nuisance.

The fact that refuse of table and kitchen was deposited where dogs and cats of the neighborhood could reach it, and that nurses and convalescents were permitted to promenade such highway occasionally, would not be ground sufficient to authorize the abatement of the pest-house itself as a nuisance, as such acts could be restrained by injunction, upon proper application.

This does not, however, deprive the plaintiffs of the right to have the city enjoined from erecting the building which it threatens now to locate upon the lot.

By the answer of the defendants,, they claim a right to build this addition or separate building, and allege that they are going to do it, and erect it within fifty feet of the highway directly opposite to the school-house in question, where the school children of this township attend school.

■So far as this proposition is concerned we think that it. would be highly dangerous to the neighborhood and-to the people living in the township and the children attending school at this place, to permit this building to be erected so near to this highway and the school-house in question.

We look at this as a separate and distinct proposition from the first, wherein the plaintiffs seek to prevent the -city from using the old building at the rear end of the lot for the purpose specified. We say that while the plaintiffs can not have-.the pest-house as maintained in the old building abolished as a nuisance, yet it would be an insufferable nuisance to permit the city to erect a building for the purpose designated, within fifty feet of a very extensively traveled highway and much nearer such school-house and dwellings which have been erected during the years when the pest-house. was not maintained, and for these reasons the injunction, so far as the erection of this building is concerned, is granted, and the order made as asked for in the petition.

We think because the city did obtain the present building and establish therein and maintained, whenever required, a pest-house or hospital for small-pox patients, that this did not give the city a right to erect on the same lands another building for a pest-house so near the highway as to be dangerous to the public, against the protest of the township trustees.

The order, therefore, will be that the city shall be enjoined from attempting in any way to erect a building on the site proposed, and the order will be made, as I have said, in conformity with the prayer of the petition in this respect, and at the cost of the city of Youngstown.


text:
    LEASE OF LAND UNDER. A CITY BRIDGE.
    [Circuit Court of Lucas County.]
    Ricard Boiler & Engine Co. v. Toledo.
    Decided, June 13, 1903.

      Municipalities — Title of, to Land — Supporting a City Bridge — Bight to Lease.

    Land under a city bridge, which is owned by the city, and is used as a support for the bridge, and is not adapted to use as a street or highway, and has never been so used, can not be regarded as a public street, and the city may lease it for any purpose not inconsistent with its use as a support for the bridge.
    Haynes, J.; Hull, J., and Parker, J., concur.
   An action was brought in the Court of Common Pleas of Lucas County for the purpose of enjoining the city of Toledo from signing a certain lease or causing to be executed certain leases to certain parties of certain real estate upon "Water street, it being that portion of the real estate used, in part at least, for the abutments of a bridge extending across the river at Cherry street. A motion was interposed to dissolve a temporary injunction which had ben granted, and, upon hearing, the court directed a dissolution of the injunction. Thereupon the parties arranged that the court pass upon the entire question and take an appeal, which was done, and no actual trial having taken place, the case was submitted to the court upon affidavits. The case has been heard here upon this appeal.

The bridge across the river at Cherry Street rests at the westerly end of it upon parts of two lots, which lots extended from Water street to the river, and being about 100 feet in width, the bridge being at that point about twenty feet above Water street. In order to support the bridge two abutments have been erected, one situated near the line of Water street on the southerly side, and the other within the water line of the river or a little within the river, extending nearly across the lot, and there is at either end a small space of ground, or perhaps five or six feet, which the abutments do not cover. Cherry street, which originally came down by an incline to Water street, was filled in by the city to the same height as the bridge (about twenty feet) and an abutment, built on the northerly side of Water street and within Cherry street, was built in to the proper height and full width. The approach was built over this piece of ground; completely covers it and covers to a large extent this property. The city, conceiving that some revenue might be derived from a lease of this property, had advertised to lease this portion of the lot (it really being a portion of the bridge) and bids were made. After the first bid was made and after the time had elapsed it is claimed that the Ricard Boiler & Engine Company offered another bid. Thereupon the city rejected all bids and advertised again, and other parties bid, and after the time had elapsed for the filing of bids, and perhaps after some bids had been opened, the Ricard Boiler & Engine Company made another bid, but the city refused to accept or recognize their bid, and awarded the lease to another party, and it is the execution of this lease that the plaintiff seeks to enjoin.

It seems, in the history of this bridge, that some time in 1870, or perhaps a little earlier, a private company had built this bridge across the Maumee river and had purchased the land in question for the approach to the bridge and sustaining 'the northerly end of it. That bridge was a toll bridge and was run by a private company who owned it. Subsequently, it is said an act was passed by the Legislature authorizing the city to buy this bridge, and it was in fact purchased by the city of the company and it was, by proper deeds, duly executed by the corporation, deeded to the city to be an open, public bridge. It was opened and used in that way for some little time — perhaps three or four years, if not more — when, in the year 1882 or 1883, the bridge was carried away and swept out by the flood, and thereupon the present structure was erected in the manner and form in which I have stated.

Now it is claimed that this piece of land is to be considered a street; that persons have been in the habit of going from Water street across the lot, .adjoining to the Ricard property, or, beginning at the other end, if you choose, to the docks and boat landings, or to the boats that might be moored at the foot of the street. It will be observed that there is no dock there of the city because the abutment fills up a large amount of the space, and there is no dock at either end of it; any docks which are there are private docks upon land next to this property. The testimony shows that the Ricard company had driven in there under the bridge with coal and had erected coal bins there and were in the habit of taking in perhaps a carload of coal and storing it there for the use of the manufacturing establishment of the plaintiff, that being built upon the property adjoining the property in controversy, the southerly side of their buildings being upon the line, or nearly upon the line .of the two properties. The plaintiff company has a door upon the southerly side, which opens out upon this lot under the bridge, and they have been in the habit of storing boilers and other things there (their business being boiler making), and it is said that they have in some instances repaired boilers, and there are water-closets there used by the employes of that company, which are situated on these lots and upon the water’s edge. It is said that they have been putting in from time to time earth and filled in there and the lot has been filled in so that they can use it, and plaintiff claims that they have expended perhaps several hundred dollars upon that.

Another claim of the plaintiff is, that by reason of this use of this part of this lot and by reason of the situation of the adjoining property this is in fact a public street and that they have e) right to use.it as a public Istreet. My colleagues visited‘the property and viewe'd it and evidence has been taken here as to the situation of the property, and it seems to us very clear that in no sense can this be said to be a public street. The simple use of this property and the only use of it, so far as the property is concerned, is that it is used for the purpose of sustaining and supporting the abutments of the bridge and supporting the bridge itself; all the public highway there is is along the bridge over the property, and the city has never in any manner invited the public to use this property as a public highway and there is nothing that could be reached by the public in passing from Water street down to the water except as they passed along the side and stepped out onto the adjoining property. We do not think the city has assumed any responsibility in regard to the duty of keeping it open or in repair underneath this bridge so that people could pass along there, and we do not think the city would be liable if a person should be injured under this bridge or stumble upon these various articles that have been stored there by the Ricard company. The city has never recognized it as a street, and, in our judgment, the very use to which it is put forbids the assumption that it is a street, or the finding or holding that it is a public street. We think very clearly that the city has a right, if it chooses, to lease this property for purposes not inconsistent with the use of the property for the support, upholding and maintaining of the bridge, and we presume that in any lease that is made upon it and executed, that any rights would be reserved to the city to enter upon the property for the purpose of maintaining, repairing or extending the bridge, and even if provision of that kind was not made, it would be very clear to us that no rights would be conveyed •to the lessee against the city itself which would prevent it from using the property for the purposes for which it was purchased, and the lease must be made to the lessee subject to the rights of the city, but they could use it for storage purposes or purposes of that nature, if the city sees fit to do so, and we see no reason why it should not do so. Indeed, the statute seems to give to the city the right to lease real estate and it seems to us that this kind of real estate may be properly leased for this purpose.

C. F. Watts and Southard & Southard, for plaintiff.

M. R. Brailey and Chas. K. Friedman, for defendant.

With this view of the case, the plaintiff’s petition will be dismissed and the injunction will be refused.


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    CAR. SERVICE RULES.
    [Circuit Court of Summit County.]
    The Thomas Phillips Company v. The Erie Railroad Company.
    Decided, April, 1905.

      Railways — Reasonable Demurrage May be Charged for Detention of Cars■ — Carrier May Refuse to Deliver Cars on Siding — Until Demurrage in Arrears is Paid — What Constitutes a Defense in Law —To a Suit to Compel Carrier to Deliver Cars on Private Siding of Consignee.

    1. A common carrier may make a reasonable charge for demurrage upon the failure of the consignee to remove freight from its cars within a reasonable time.
    2. A common carrier of freight is justified in refusing to deliver cars of freight upon the private siding of the consignee until he pays the demurrage charged for the unreasonable detention of former cars placed upon his siding.
    3. In an action, by the consignee of freight to compel a common carrier to deliver cars of freight upon his private siding, an answer alleging that the consignee positively refused to recognize certain rules imposing a reasonable charge for demurrage upon cars unreasonably detained for unloading, and reserving the right to the carrier to refuse to deliver subsequent cars until all demurrage in arrears was- paid, that consignee deliberately detained cars, thereby depriving the carrier of their use, in addition to refusing to pay reasonable demurrage charges, and denying his obligation to pay anything for the detention of the cars, states a defense entitling the carrier to a hearing upon the issues joined.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Appeal from the Court of Common Pleas of Summit County.
   Plaintiff brought its action against the railroad! company, praying that the latter be ordered and directed to immediately deliver upon the plaintiff’s switch certain cars consigned to plaintiff and laden with merchandise belonging to it, and that the railroad company be further ordered and directed to receive from certain other railroads and at once deliver upon said switch such further cars consigned to plaintiff as might in the future arrive, either upon such other railroads, or its own.

By an amended and supplemental petition, plaintiff asks damages alleged to (have been occasioned by the railroad company’s delay in delivering said described cars upon said switch.

The railroad company, by its amended answer, admits its refusal to set certain cars upon plaintiff’s switch, which cars, it alleges, it placed upon a public side-track and notified plaintiff that they were there for its benefit. It then pleads certain car service rules as follows:

“Defendant further says that prior to October 1, 1902, in order to secure the speedy unloading and return of cars and to avoid detention thereof by shippers and consignees, it made and adopted, and through the Cleveland Car Service Association, of which it was and is a member, promulgated rules providing, among other things, that a charge of one dollar per day or fraction of a day would be made for delay to or storage in ears on all cars containing property shipped at car-load rates for any time beyond the so-called free time elapsing after such ears should be placed1 for unloading, and before the same should be unloaded, Sundays and legal holidays not being counted in the computation of the time elapsing, and the free time being ninety-six hours for cars containing coal and coke, and forty-eight hours for cars containing other commodities. By said rules it is also provided, in substance, that when cars are ordered to a private siding for unloading, and the party so ordering them is delinquent in the payment of ear service charges, defendant’s agent should decline to place cars on such private siding until such delinquency should be made good, and should thereupon notify the party using such private siding that his freight would be delivered or received only upon the defendant’s public team track until such delinquency should be made good.

“Said1 rules were in force continually from a date prior to October 1, 1902, to and since the commencement of this action, and of them plaintiff, during such entire period, had full notice and knowledge, and defendant says that said rules and said charges are reasonable, and other railroad companies, and railroad companies generally, have adopted and enforced the same rules or rules of like character.

“Defendant further says that all the shipments mentioned in the petition herein, and ordinary shipments of goods to plaintiff, other than of coal and coke, have been made under contracts, evidenced) by the bills of lading under which said shipments have been made and transported. By the contracts of shipment and bills of lading it has been provided that ‘The delivering carrier may make a reasonable charge per day for the detention of any car, and for use of track after the car has been held forty-eight hours for unloading, and may add such charge to all other charges hereunder, and hold said property subject to a lien therefor,’ and further that ‘owner or consignee’shall pay-freight, and all other charges accruing on said property before delivery. ’

“Defendant further says that in its shipments from its line of road to said private track occupied and used by plaintiff, for some time prior to the date referred to in the petition, when said cars were detained, the plaintiff had detained and held for storage purposes many ears of the defendant delivered on said spur-track at plaintiff’s plant, and during the month of November, 1902, plaintiff detained as aforesaid ten ears, an aggregate of ninety days over and above the free time allowed by the rule. During the month of December it detained six cars, an aggregate of thirty-nine days over and above the free time allowed by the rule. During the month of January, it detained eleven ears an aggregate of ninety-four days over and above the free time allowed by the rule. That the reasonable service 'Charges for November were $90; for the month' of December were $39; for the month of January $94, and although defendant had often requested plaintiff to pay said car charges, it had positively refused to pay the same or any part thereof.

‘ ‘ The defendant further says that in addition to the detention of said cars above recited, for a long time, to-wit, more than two years prior to the commencement of this suit, that it positively refused to recognize the rules of the defendant with reference to the storage of the cars- as above recited, but has deliberately and purposely detained cars, depriving the defendant of their use, and plaintiff in addition has refused to pay to the defendant the reasonable value of the said detention of cars, has denied and denies its liability and obligation to pay anything to the defendant for detention of cars.

“Defendant says that because of plaintiff’s refusal to recognize said rules, and to pay any ear service charges, it, on or about January 16, 1903, served due notice upon -plaintiff that it would deliver no more freight upon said plaintiff’s private track after January 21, 1903, until said ear service charges for November, 1902, were paid, and on January 26, 1903, further notified plaintiff that it would not resume deliveries upon said private track till said ear service charges for December, 1902, were also paid; and said ear service charges not being paid, defendant refused to deliver upon said private siding said three cars mentioned in the petition, but it placed them upon its regular public team track for plaintiff to unload, and at and up to the time of beginning this suit, plaintiff was free to unload them there, except that as to said car No. 80115 the free time after such placing elapsed before this suit was begun, and car service charges accrued thereon, whereupon this defendant, through the medium of said ear service association, caused said car to be locked so that it should not be unloaded till such charges accruing thereon should be paid and its lien therefor extinguished by such payment.”

A demurrer filed to this amended answer raises the question of the reasonableness of the ear service rules pleaded, and the right of the railroad company to enforce them.

That forty-eight hours is a reasonable time within which a consignee should be required to remove freight from ears and that the railroad company might make a reasonable charge for demurrage upon failure to remove the freight within said time, was held by this court in the case of The N. Y. L. E. & W. R. R. Co. v. The J. T. Seiberling & Co., at the October Term, 1894, in this county.

In this case we have the additional question whether, upon the refusal of the consignee to pay demurrage already accrued, the railroad company can refuse to deliver other cars thereafter arriving.

We think both the rules were adopted by the railroad company for the one purpose alleged in the amended answer: “in order to secure the speedy unloading and return of ears and to avoid detention thereof by shippers and consignees,” and not that the second rule was adopted for the purpose of enforcing the payment of demurrage already accrued. That such rule is reasonable and necessary for the proper operation of defendant’s railroad is alleged in the answer as follows: “Defendant says that in the operation of its railroad it is required to use a large number of cars of various kinds to haul and carry ihe great volume of freight which is offered to it for transportation as a common carrier; and by reason of the transportation of through freight, that is, freight originating at points beyond defendant’s railway, for delivery at points on its raffway, large numbers of cars owned by other railroads are offered to the defendant for transportation, and hauled by it over its railroad to point of destination or for delivery to connecting carriers. That the proper operation of its railway requires that it return to the owners or to the other carriers, as soon as reasonably possible, all foreign cars coming on its lines. That for many months prior to the commencement of this suit, the volume of freight transported over defendant’s railroad, and over the roads of other carriers, had been unpreeedently large, and that the proper handling of its freight and the discharge of its duties as a common carrier make it necessary that consignees of freight unload cars with all reasonable dispatch, and without unnecessary delay, that shippers and consignees do not unnecessarily detain the defendant’s cars.”

Grant & Sieber, for plaintiff.

Tibbals & Frank, for defendant.

The further allegation that plaintiff positively refused to recognize these rules and deliberately and purposely detained cars, depriving defendant of their use, in addition to refusing to pay reasonable demurrage charges, denying its obligation to pay anything for the detention of cars, we think makes a defense in law entitling the defendant to a hearing upon the issues thus joined.

The demurrer is, therefore, overruled.


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    REMOVAL OF STRAW FROM A LEASED FARM.
    [Circuit Court of Lorain County.]
    Frank Garrett v. Samuel Brant.
    Decided May 8, 1905.

      Landlord and Tenant — Lease of Farm — And Contract Terminating Lease — iHay, Straw and Manure — Right of Removal of Straw.

    While it is common practice in leasing farms to treat hay and straw as manure is treated at common law — that is, as a fixture of the farm — and such a provision was incorporated in the lease to the defendant, yet in construing a subsequent contract terminating the lease, the provision thereof that the defendant was to harvest his crops and remove them by December 1, must be construed as giving him the right to remove the straw.
    I-Ienry, J.; Winci-i, J., and Marvin, J., concur.
    This is an appeal from the Lorain County Common Pleas Court. Plaintiff rented defendant a farm, September 1, 1902, for a term ending November 1, 1905, by written lease, providing, among other things, that ‘ ‘ the straw and manure is to be used on the farm.” Later they quarreled, and a written “settlement” was executed by the parties June 4, 1904, stipulating that the term should end December 1, 1904; that meanwhile defendant shall “conduct the farm as provided in the lease,” “in a husbandlike manner”; that he should “harvest his crops or remove the same on or before December 1, 1904,” and that “this settlement shall take the place of said lease.” This agreement has been carried out, but the defendant on quitting the premises threatened to take the straw with him, and plaintiff brought this action to enjoin him from doing so.

      E. G. & H. G.' Johnson and Q. A. Gillmore, for plaintiff.

      J. E• Williams and C. A. Metcalf, for defendant.
   The ease turns wholly on the construction of the writings. At common law manure made on a farm is a fixture, and it is common practice in leasing farms to covenant expressly that hay and'straw shall be treated as if in the same category, in order to "preserve the fertility of the soil by returning these products ultimately to the ground from which they have sprung.

Without sueh a covenant hay and straw are of course not fixtures. The- covenant in the original lease on this subject is not free from doubt. Instead of providing that the straw shall be left on the premises, it stipulates that it shall be used on the premises. The contract of settlement moreover expressly abrogates the lease, except as to the manner in which defendant shall conduct the farm. It stipulates nothing as to his duty when the times come for him to cease conducting the farm, except that he is to harvest his crops or remove the same on or before December 1,1904. If the lease terminated in the spring the question would be more free from doubt. It is manifest that the tenant could not well use all the straw on the farm before December, and his right to remove it then is not so clearly overruled by the writings in evidence that we can enjoin him from so doing. He had the right to remove the straw unless the parties had' expressly agreed otherwise. This we find they failed to do in the final agreement. The petition is therefore dismissed.


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    THE BOARD OF EQUALIZATION ACT.
    [Circuit Court of Lucas County.]
    State, ex rel Just et al, v. Godfrey, Auditor.
    Decided, June 13, 1903.

      Gity Boards of flquilization — Repeal of the Act Authorizing Appointment of — Section 2805.
    Tlie conflict between Section 2805 and the later act of May 10, 1902, terminates all the powers of city boards of equalization appointed under the prior section.
    Haynes, J.; Parker, J., and Hull, J., concur.
    Appeal from Common Pleas Court of Lucas County.
   In this case an application was made for a writ of mandamus to the court of common pleas. A demurrer was filed to the petition and the case was heard upon the demurrer, and the parties not desiring to plead farther, a judgment was entered in favor of the defendant and thereupon the case was appealed to this court. The ease is now being heard upon the appeal and upon the demurrer.

The claim of the relator was that the members of the board of equalization had been appointed, and that under the statutes as they now exist the members are entitled to hold until their successors are appointed and qualified. Some grounds of the argument arise from certain sections of the new municipal code, and there certainly was room for considerable argument in the case, and the points which had been made originally in the case were outlined to this court by counsel for relator. The- board had been appointed under Section 2805, Revised Statutes, and prior to May 10, 1902, and were holding their office at that time, but have not been reappointed since.

Since the decision of the court of eommon pleas a decision has been rendered by the Supreme Court of this state, which, in our judgment, ends this case. The Supreme Court hold in the case of State v. Clarke, 68 Ohio St., 463, that;

Jamies, Millard <& Poiuell, for plaintiff!.

Brown- <& Geddes, for defendant.

“Section 2805, Revised. Statutes, providing for annual city boards of equalization conflicts with and is inconsistent with the act of May 10, 1902 (95 O. L., 481), entitled, 'An act to provide for the appointment of a member of a board of review for the equalization of real and personally property,’ and is therefore expressly repealed by Section 5 of said act.”

This mandamus was applied for in the Supreme Court for the purpose of compelling the appointment of certain members of the board to succeed certain members whose terms of office had expired. The Supreme Court held and declared that Section 2805, under which this board was appointed, was repealed, and it follows that the powers and rights to exercise the office of those who hold under it fall with the statute. The statute repeals all powers which they had before that time and repeals all acts under which they were appointed and it terminates their right to perform any duties of the office, and, that being the case, the application for a mandamus in this case should be refused, and it is so ordered.


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    WHAT IN OHIO CONSTITUTES AN APPEARANCE,
    [Circuit Court of Lorain County.]
    J. G. Blinn v. Claude M. Rickett.

    Decided, April Term, 1905.

      Appearance — Motion to Dismiss Does Not Constitute, When — Language of the Motion — And Intention of the PaHy Making It,

    A motion to discharge an attachment for the reason that the affidavit upon which it was issued is false and the facts therein alleged untrue, does not confer jurisdiction; and it appearing that the affidavit furnishes no ground for the attachment, a dismissal of the suit as well as of the attachment may properly be entered.
    Marvin, J. (orally); Winch, J., and Henry, J., concur.
    The case of J. G. Blinn v. Claude hi. Riekett is a proceeding in error. The case was this: Plaintiff brought a suit against Riekett, before a justice of the peace, and filed his affidavit for an attachment; an attachment was issued and allowed. No personal service was had -upon Riekett and Riekett was not in court, except as he was brought in by the attachment; wüess he is to be held to have made a voluntary appearance1 by facts which will be stated.

       Affirming Blinn v. Rickett, 3 N. P.-N. S., 345.

   Riekett, the defendant, filed this motion before the justice of the peace:

“J. G. Blinn, Plaintiff, v. Claude M. Rickett, Defendant.

“Now comes the defendant and moves the court to discharge the attachment issued herein, for the reason that the affidavit upon which said attachment was issued is false, and the facts alleged therein untrue.”

That motion was sustained, and the justice then proceeded to dismiss the action.

The error complained of is not that he dismissed the attachment, but that he dismissed the action; because it is urged that Riekett, having made this motion, had submitted himself to the jurisdiction of the court, and the court therefore had jurisdiction of his person in the proceeding.

It is well settled that where one upon whom service has not been made appears for the purpose oO discharging or dismissing an -insufficient service, and appears for no other purpose, he is not to be held to have submitted himself to the jurisdictien of the court upon the merits of the case.

The ordinary form, as we all know is, in a ease like that, to say: “Now comes the defendant herein, and appearing for the purpose of this motion only, moves the court.”

If that is necessary in order to avoid submitting one’s self to the jurisdiction, then Rickett did submit himself to the jurisdiction ; but if that is not necessary, he did not submit himself. As has been said, it is thoroughly well settled, that where one appears for the purpose of questioning the jurisdiction and for no other purpose, he does not submit himself to the jurisdiction. Must he in his motion say so, or is it sufficient for him to say by his motion that he app'ears for nothing else-. Is one to be said to have appeared for something else than that which he asks to have done? We think not. We think that this motion did not submit Rickett to the jurisdiction of the court over any matter in that case, except the one thing that he asked to have the court do-; and we find authority in the Supreme Court of Kansas for that view, in the case of Green v. Green, 22 Pacific Reporter, 730. The second clause of the syllabus re-ads:

“A motion to set aside a judgment in the following.words: ‘Now comes the defendant, Oliver Green, by his -attorneys, Welch & Welch, and'moves the court to set aside the judgment rendered on the 1st day of October, 1887, in favor of the plaintiff herein, for the reason that no proper service was had on the defendant, Oliver Green, in said suit,’ ” is a special appearance only. The court also cited the case of Reynolds v. Fleming, 30 Kan., 106; 1 Pac. Rep., 61. The 2d Vol. of Ency. of Pleading and Practice lays down the general proposition which was stated at the beginning of what is now being said, as recognized by all where one appears for a special purpose, and that only to question the jurisdiction, he does not submit himself to the jurisdiction. Whenever he asks to have the court pass upon any question connected with the merits of the case that moment he does submit himself to.the jurisdiction.

Fritz Fueling, for plaintiff in error.

Clayton Chapman, for defendant in error.

The court of common- pleas affirmed the justice of the peace in dismissing the action, and this court affirms the judgment of the court of common pleas.


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    TRAILING CRIMINALS WITH BLOODHOUNDS.
    [Circuit Court of Stark County.]
    Harrison Baum v. The State of Ohio.
    Decided, February, 1904.

      Evidence. — Contradictory Statements may be Explained by Witness— Effect of Such Statements — Court Stenographer May Impeach Witness, When — Trailing with Bloodhounds — Testimony as to Competent, When — Character of Such Testimony — How to be Considered by Jury — Failure to Charge upon a Point not Requested not Error — Effect to.be Given Testimony as to Good Character — Criminal Law.

      1. It is not error to permit a witness, who has made statements out of court at variance with his testimony given in the trial of a cause, to explain or give his reasons, if he has any, for making the contradictory statements; such conflict in statement -goes only to affect his creditibility and does not render him incompetent or necessarily render his testimony incredible.
    2. Where it is claimed a witness, who testified' before a grand jury, changed his testimony on the trial, an 'official court stenographer, who took his testimony before the grand jury in shorthand, may, as impeaching such witness, read his notes in evidence to the jury, if he remembers and can testify that a»t the time it was correctly taken, and that the notes contain all the evidence of the witness on the question at variance, although at the time he is called to tesify he has no independent recollection of his testimony.
    8. Testimony as to trailing an alleged criminal by a bloodhound may be permitted to go to the jury as tending to connect him with the crime when there is testimony of some person, who has knowledge, that the dog used has been trained to follow tracks of human beings by scent, and its power of so dissriminating has been tasted as to its accuracy in trailing on one or more occasions.

      4. Before evidence of the trailing of an alleged criminal is rendered competent it must he first shown that the dog was put' on a trail at a point where the circumstances tend to show that the guilty person had been, or on a track which such circumstances indicate to have been made by him.,
    5. Evidence of the acts of bloodhounds in following a trail under conditions stated may be received as cumulative or corroborative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged, and when this class of evidence is hedged about with these safe-guards of human and other testimony, bloodhound evidence is no more dangerous than any other class of circumstantial evidence.
    6. Court failing to charge on a point on which counsel did not' ask a charge is not error.
    7. In a criminal case for assault with intent to kill, where the defendant put in evidence his previous good character, it is not error for the court to say to the jury, that “the weight to be given to the good character of the defendant for peace and quiet, must be such that the jury, under all the circumstances, think it should receive.”
    Voorhees, J.; Donahue, J., and McCarty, J., concur.
    Error to the Court of Common Pleas of Stark County.
   Plaintiff in error was indicted under Section 6820, Revised Statutes of Ohio, for shooting with intent to kill, one Marion Fraze. He was tried and convicted under said indictment in the court of common pleas, and sentenced to the penitentiary for a term of twenty years. Error is prosecuted to this court, and among the errors assigned and especially urged as grounds for reversal ares

1. That the court erred in the admission of evidence.

2. That the eourt erred in the exclusion of evidence.

3. That the court erred in its charge to the jury; and,

4. That the verdict is against the weight of the evidence.

(1.) As to the admission of evidence. It is contended that the eourt erred in permitting a witness for the state, Mrs. Fraze, to explain and give her reasons for making statements out of court at variance with her testimony given on the trial. It is competent and proper for a witness to explain his or her conduct or testimony which tends to affect the credibility of the witness. Where a witness is shown to have made contradictory or even false statements, which from their nature might have been prompted by an innocent motive, or a sinister one, it is for the jury and not for the court to say, from all the circumstances, to which motive it should be attributed.

If it were made to appear in the trial of a cause, civil or criminal, that a witness out of court had stated something material to the issue that was untrue, and he knew it to be untrue, no matter what explanation he should make in justification for his untrue statement, it necessarily tends to weaken or detract from the credibility or weight to be given his testimony; but it is entirely with the jury to say how much, as it only affects his credit, and does not render him incompetent or necessarily render his testimony incredible. Brown v. The State, 18 O. S., 496.

We think the court did not err in permitting Mrs. Fraze to give her reasons for making these contradictory statements.

(2.)- Was it error to admit the evidence of the witness, Fred Marpe 1

Marpe was one of the official stenographers of the court and, as such, was present with the grand jury and took notes in shorthand of the testimony of witnesses heard by the grand jury in the investigation of the crime for which defendant, in error was indicted, tried and convicted.

The purpose of the testimony of Marpe was to show that certain witnesses for the defense on the trial in common pleas court gave testimony at variance with what they had testified before the grand jury. Marpe, as the official stenographer, took the testimony of these witnesses in shorthand as given by them before the grand jury. It was contended by the state that these witnesses on the final trial had changed their testimony in material parts, and, to prove such variance, the stenographer was called and produced his notes taken by Mm of their testimony before the grand jury. The record shows that the witness had his notes before him; that he looked at them, evidently read them before he testified; he did not read the notes in evidence, but testified from memory, refreshed by the examination of the notes taken by him before the grand jury. The fact that this witness happened to be the official stenographer of the court has nothing to do with the admissibility of his evidence. Any person who had heard the witness testify might have been called and examined upon the particular question as was the witness, Marpe. His evidence comes under the well known rule of evidence for the contradiction of a witness by showing he has made statements out of court, or given evidence on a former trial or hearing, whether under oath or not under oath. But being the official stenographer, after testifying that he then knew- that at the time of the former hearing he had taken accurate notes of the testimony sought to be proven, he might read the notes in evidence, although he was not able, by refreshing his memory from the notes, to testify from memory or say he knew and remembered 1fce evidence then given.

Where it is claimed a witness, who testified upon a former trial, has changed his testimony, and the official stenographer, who took the testimony at the former trial, produces his notes in shorthand of the testimony of the witness, such stenographer may read his notes to the jury as affecting the testimony of the witness, if he remembers that at the time the. testimony was given it was carefully taken and that the notes contained all the testimony of such witness, although at the time he is called to testify he has no independent recollection of what the witness did testify. Underhill on Evidence, p. 171; Rice on Evidence, Vol. 1, p. 399; Bennett v. Syndicate Ins. Co., 39 Minn., 254; 2 Rice on Evidence, 658.

There was no error in admitting the evidence of the witness, Marpe.

(3.) The next error complained of is more difficult than the two just considered; that is, in the admission of evidence showing thé conduct of blood hounds that were used in tracking the supposed perpetrator of the crime. This raises a question of evidence that is practically unsettled in this state; and there is no authority of the court of last resort in Ohio upon the question. In the case of State v. Houck, in Knox county (not reported), such evidence was received and came up to this court on error, but the court was not required to pass upon its competency as the judgment of the court below was affirmed pro forma without considering this particular question. We have carefully considered the able opinion of Judge Van Pelt in the case of State v. Hall, 3 Nisi Prius R., p. 125, and ■we are inclined to adopt the reasons there given for the admission of such evidence, rather than that of Judge Sullivan against it, found in the case of Brott v. State, Supreme Court of Nebraska, reported in 97 Northwestern Reporter, p. 593. It must be conceded that there are some strong reasons given in the Nebraska case against the admission of such evidence. We do not hesitate in holding, however, that the receiving of such evidence violates no constitutional rights of an accused party.

The admissibility of the evidence depends upon the preliminary proof of persons familiar with the habits, instincts and faculties of these animals; what they have done, and can do in following a trail made by a human being up to the person, or abode of the one making or leaving the trail and scent behind him. Tf it were shown that such animals can exhibit such instinct and have such faculty in this regard with any degree of accuracy, then its conduct in a given case may be admitted in evidence, its effect and weight to be left to the jury.

From a careful examination of the authorities to which we have had access (Hodge v. State, 98 Ala., 10; 39 Am. St. Rep., 17; Pedigo v. Com., 103 Ky., 41; 42 L. R. A., 432; Simpson v. The State, 111 Ala., 6; State v. Moore, 129 N. C., 494; 55 L. R. A., 96), the rule for admitting this class of evidence may be summarized as follows:

1st. The blood hound in question must be shown to have been trained to follow human beings by their tracks- and scent, and to have been tested as to its accuracy in trailing on one or more occasions.

2d. The evidence of the .acts of blood hounds in following a trail may be received merely as cumulative or corroborative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged.

The admission of this class of evidence is therefore hedged about with abundant safeguards in the way of other, and human testimony, and as long as these rules are adhered to, blood hound evidence is no more dangerous than any other class of circumstantial evidence.

There was no claim made by the state in this case that the evidence as to the actions of the blood hounds in trailing the foot prints appearing at the scene of the crime to the home of the defendant was conclusive, but as a circumstance to be taken by the jury in connection with the other facts and circumstances in the ease.

Like all other evidence in human affairs there is an infirmity about it. But if it must be excluded upon that ground, then it would be impossible to furnish any evidence except direct evidence in a trial of any cause; and even direct evidence would be open to the same objection because there is that infirmity of memory, bias, and prejudice of witnesses, if not at times actual dishonesty. So we think all the arguments urged for the exclusion of this class of evidence might be offered against any evidence. We are again brought to the question whether or not it has any probative force, and taking the evidence in this record as to the breeding, the training, and the conduct of these dogs, we are of the opinion that the evidence was properly admitted and its weight left to the jury. We are hopeful that this question will soon be settled by our Supreme Court. We consider it of great importance in the administration of the criminal laws of the state. Our conclusion is that the admission of this evidence was not prejudicial error.

(4.) The only question made or error complained of in excluding evidence, is the exclusion of the record of a case pending between Marion Fraze, the prosecuting witness, and one Thomas Beans. The questions in this case are of a character that it was proper for [he defense to show that there were others, besides the accused, who were on unfriendly terms with Fraze; others who might have had motives, engendered by anger, hatred, or ill-will, to do him violence, and it was proper to show that he had been involved and was, at the time of the commission of this assault upon him, in litigation with others; but we do not consider that it would have been proper to introduce in evidence the record of these suits. It was sufficient to show that there were controversies between him and others. There was no error in excluding such records.

(5.) There are objections urged against the charge of the court, in this: That the charge did not cover or touch upon certain conditions in the evidence. The record does not show that there was any special request to charge touching these various points.

In the absence of such special request it was not error not to charge further in relation to them than was given in the general charge. The only consideration we might give to these contentions would be in reviewing the record as to the weight of the evidence. It might become important in determining whether or not the questions of fact were disposed of under a fair and proper charge, a charge full enough to enable the jury to grasp the issues and controversies in the case, and we have so considered these objections, and find no error in the court in omitting to further charge in the absence of special request so to do.

(6). It is contended that the court erred in its charge in reference to evidence offered by the defendant of his good character. On page 754 of the record the court states:

“The weight to be given to the good character of the defendant for peace and quiet must be such that the jury under all the circumstances think it should receive.”

The charge is supported and in line with the holding in Harrington v. State, 19 O. S., 264. Judge White, on page 269, quotes with approval the following rule:

“That the testimony is to go to the jury and be considered by them in connection with all the other facts and circumstances, and if they believe the accused to be guilty, they must so find notwithstanding his good character.”

Taking the charge as a whole, the defendant’s rights were guarded and protected in every paragraph, and the care and caution the jury were directed to exercise were fully impressed upon the mind of the jury, as well as the certainty required as to the defendant’s guilt before they could find him guilty. We find no error in the charge.

(7). Coming now to tbe consideration of the weight of the evidence. At the threshold we are confronted with the well settled rule of law that it is not the province of a reviewing court to disturb the verdict of the jury simply because the court might not have found as did the jury upon the issue of facts. Looking through this whole record, we can not say that the verdict is against the manifest weight of the evidence. Aside from the question of the trailing of the dogs, there is an abundance of testimony tending to prove the guilt of the defendant. If the evidence were true, it certainly justified the verdict of guilty.

Much of the evidence in this case is circumstantial. It may be said in some instances, that such evidence is not so satisfactory as direct proof. On the other hand some times circumstances are more convincing than direct evidence, for the reason that the bias, prejudice and untruthfulness of witnesses may leave more doubt in the mind of the jury as to its reliability than would positive circumstances inconsistent with any other theory, than the theory of the defendant’s guilt. As in this ease, the circumstances of the tracks of a person approaching the window of the prosecuting witness’ house, through which the shot was fired, are significant; as they approach the window, as shown by the foot prints, they were ordinary strides of a person walking and the same identical tracks leaving the window were strides made by a person running, as shown by the length and depth in the soft earth. These are strong circumstances tending to establish the fact that the person making these tracks was the guilty party. A number of witnesses testified that these. foot prints coincided with the “gum” boots of the defendant and were identical with tracks made by these boots. The peculiar characteristic, such as the “heel tap” on the defendant’s boots, appeared and was shown by the tracks approaching and leaving the hopse as before stated. There was also evidence showing that the defendant, on- occasions other than the occasion when the shooting was done, had been seen in the night season prowling about the Fraze house and committing depredations and menacing the peace and quiet of that home. All of which tended to show that he had a fixed purpose of committing some violence upon Frazé’s person. This evidence of course was disputed by the defendant, yet the jury had the right to believe it and no doubt did believe it to be true.

The shotgun in evidence furnished some additional circumstances that the crime was committed with a similar weapon. Witnesses familiar with guns examined the gun in question shortly after the shooting and testified that one barrel had recently been discharged. The father of the defendant testified that the last time the gun, a double-barreled shotgun, had been fired was two or three days before the alleged shooting of Fraze, and then only one barrel was used. If he was correct in this, the gun barrel so used would have been dry and would have shown no indication of having been recently discharged, as did the barrel examined by the witnesses the morning after the shooting of Fraze the night before.

The conduct of the defendant when the officers came to his home the night the crime'was committed is significant. A person who was present said that Marion Fraze had been shot; defendant answered, “That is what you want me for.” No one had up to this time accused him. That he should accuse himself, if innocent, is a circumstance against him. It has frequently been remarked, and is the experience of mankind, that a person, who is the depository of a fatal secret, which he is anxious to conceal, is likely to give expression by word or act of something touching the secret; as if the mind were anxious to unburden itself by giving out its workings as far as it could with safety. True, if he had said this after someone had spoken about Marion Fraze having been shot and that he was suspected or charged with it, the remark “That is what you want me for” would have much less force, as a circumstance pointing to him as the guilty party; but that he made the statement at all has significance, and, taken with other circumstances, was a very strong incriminating statement against him.

Without further reference in detail to the evidence, but taking the whole record, we can not say that the verdict of the jury is manifestly against the weight of the evidence. We do not think it is, and, therefore,, the judgment of the court is affirmed at costs of plaintiff in error and the cause remanded for execution. Judgment affirmed.

Shields cC- Pomerene, for plaintiff in error.

Robert E. Day, for defendant in error.


text:
    COVENANT AGAINST OBSTRUCTION OF VIEW.
    [Circuit Court of Summit County.]
    John MacGregor et al v. Clara Linney.
    Decided, April, 1905.

      Deed — Covenant in, Against Obstructing ■ View by Building — High Board Fence a “Building” within the Covenant.

    A board fence eight or more feet in height,, extending the entire length of the .grantor’s premises to the sidewalk, which shuts off the view from the grantor’s remaining ground, and dwelling house, diminishes the air and light formerly enjoyed by him, and which is contrary to the intention of the parties as evidenced by the stipulations in the deed and the circumstances and condition of the property at the time of the conveyance is a “building” within the meaning of a deed providing against the erection of certain buildings.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Appeal from Summit Common Pleas Court.
   Plaintiffs, being the owners of. certain premises on the westerly side of North Prospect street in the city of Akron, on June 6, 1903, conveyed the southerly part of said premises to the defendant by warranty deed containing the following conditions and restrictions:

f‘0nthe express conditions, agreements and covenants between the parties hereto, their heirs and assigns herein named, viz., that for a period of fifteen years from and after the date hereof, said property so conveyed shall be used for, and occupied by, one building only, and that a family residence, and that no part of said residence shall extend any further toward North Prospect street than does the residence now occupied by said grantors, nor shall any part thereof extend nearer to the residence now occupied by said grantors than fifteen feet from the northerly line of the property hereby conveyed; that the grantee shall within two months remove the kitchen part of the present residence and shall within two years from this date build on said property a new residence of a minimum value of $5,000, and should the grantee desire to sell, she for herself and for her heirs covenants and agrees with the grantors and their heirs and assigns, that the grantors, their heirs and assigns, shall be given the privilege of buying same at the price.and on the terms in good faith offered for said property. The plan for the new residence to be subject to the approval of said grantors, their heirs and assigns.”

It is further alleged in the petition that upon said premises of plaintiff there is a valuable house which for many years' has been and now is occupied by the plaintiffs as their residence; that in the southerly side of said house there are a number of windows, and that from said house and grounds an extensive and desirable view to the south along said street was, until the erection of the obstruction hereinafter described, enjoyed by the plaintiffs, and would, save for such obstruction, continue to be enjoyed by them, even after the erection of the building stipulated in said deed.

Plaintiffs further say that the property on said North Prospect street is devoted entirely to residence purposes; that the houses in the block in which are situated all of the premises above referred to are built on practically a uniform fine, distant about forty feet from said street; that said defendant accepted said deed with full knowledge at the time the same was delivered, of the reasons for which said restrictions were made; that the defendant, well knowing the restrictions contained in said deed, and the purposes which the same were intended to serve, did, in direct and willful violation thereof, and contrary to the plain spirit and intent of said instrument, on or about September 1, 1904, cause to be erected upon the premises so conveyed to her, within about a foot of the northerly line thereof, a certain building, to-wit, a board fence eight or more feet in height, extending the entire length of said premises to the sidewalk on said street.

Plaintiffs say that by reason of the erection of said building, their said view from said dwelling house and grounds is shut off and light and air which they otherwise would receive is diminished; as a result of which their said property is rendered of much less value than if such erection had not been made, and that by reason of the premises they are sustaining and will continue to sustain, while said structure stands, great and irreparable loss and injury, the amount of which can not from its nature be estimated and satisfied by any action at law for •damages.

These allegations of the petition we find to be true. The prayer of the petition is, that defendant be enjoined from maintaining said fence -as now constructed, and the sole question for our determination is whether it is a building within the'intendment of the condition in the deed.

The Century Dictionary defines “building” as follows:

“A structure, an edifice; as commonly understood, a house for residence, business or public use, or for shelter of animals, or storage of goods. In law, anything erected by art and fixed upon or in the soil composed of different pieces connected together and designed for permanent use in the position in which it is fixed, is a building; thus, a pole fixed in the earth is not a building, but a fence or a wall is. ’ ’

Bouvier gives it as follows:

“An edifice, erected by art, and fixed upon or over the soil, composed of different pieces of stone, brick, mai’ble, wood or other proper substance connected together, and designed for permanent use in the position in which it is so fixed.”

Bouvier defines fence as follows:

“A building or erection between two contiguous -estates, so as to divide them, or on the same estate, .so as to divide one part from another. It may be any material presenting a sufficient obstruction.”

While we are not prepared to say that all fences are buildings, we think that the structure here complained of and denominated a fence comes clearly within the meaning of the word “building” as used in the deed. In coming to such conclusion we have considered the situation of the parties at the time the deed was executed and their intention as shown by the use of said word in the light of all the circumstances and the conditions of the property.

Stuart & Stuart, for plaintiffs.

Rogers, Rowley, Bradley <& Rockwell, for defendant.

That' a fence is a building was held under the circumstances of the case reported in Wright v. Evans, 2 Ann. Pr,, 308. The contrary was held under the circumstances of the case of Nowell v. Academy of Notre Dame, 130 Mass., 209. The digests indicate the same conclusion was reached in the case reported in Clarke v. Lee, 185 Mass., 223 (70 N. E. Rep., 47), but the volume is not in the library.

Under the circumstances of this case we hold that plaintiffs are entitled to the relief they pray for, and decree may be drawn accordingly.


text:
    LAYING OF SPUR-TRACK IN STREET.
    [Circuit Court of Hamilton County.]
    Henry Herzog et al v. P., C., C. & St. L. Ry. Co. et al.
    Decided, January 13, 1904.

      Abutting Owner — Damages to, from Laying Spur-Traclc in Street— Gan not be Enjoined where Remote or General — Ingress and Egress.

    1. Where the only damages complained of by a property owner are remote, and not different in kind and hardly more appreciable in degree than are suffered by the general public,, and there is no direct or special invasion of property rights, it can not be said that there is a taking of the property within the meaning of the Constitution.
    2. Injunction will not lie to restrain the laying of a spur railway track in a public street, under the circumstances presented in this case.
    Jelke, J.; Swing, J., and G-ieeen, J., concur.
    This case is considered on the basis that defendant company proposes to lay a side-track on the south side of Water street extending seventy feet east of Walnut street. If the top of the rails of such track is laid even with the surface of the street so as to make no obstruction in the street to wagons passing over the same, an injunction will be denied.

      Cabell & Freiberg, for plaintiffs.

      Maxwell & Baonsey, contra.
   The nearest objecting property owner abuts on the north side more than fifty feet east of the east end of this proposed sidetrack, and the nearest objecting property owner abutting on the south side of the street is about one hundred and sixty feet east of the east end of this proposed track.

We are of opinion that on account of the remoteness of the complaining property, the fact that access and egress to and from the property and the street itself between the lot lines extended are not at all affected, and that there is an abundance of unobstructed inlet and outlet both east and west to the other streets of the city, and that this track is to be used only as a side-track, makes the damage to these complaining property owners no different in kind and hardly appreciably more in degree than that suffered by the general public, and hence there is no taking of private property, and brings this case fairly under the case of Kinnear Mfg. Co. v. Beatty, 65 O. S., 264.

As to a violation of the city ordinances in using the track in the middle of the street during daylight, we will leave the parties to the police department of .the city for the present.