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    LICENSE TO MAINTAIN STREET RAILWAY TRACK.
    Circuit Court of Hamilton County.
    Proprietors of the Cemetery of Spring Grove v. Cincinnati Street Railway Company et al.

    Decided, November 14, 1908.

      Contracts — Agreement for Occupation of Land hy /street Railway Tracks — Construed to he a License — Conflicting Provisions of an Ordinance.

    An agreement for the maintenance of a street railway loop on private property for a period not exceeding twenty-five years, for a consideration of one dollar per year while so maintained, and upon cessation of the use of said track it shall be removed upon demand of the owner of the land at the expense of the street railway company, is a mere permit or license to the street railway company for a period not exceeding that named, and the owner of the land can not insist on the operation of cars over the loop in the face of an ordinance providing for a different route.

      Lawrence Maxwell, for plaintiff.

      Paxton é Warrington and Kittredge & Wilby, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur. .

       For previous opinion in same case, see Winton Place v. Cincinnati Street Railway Co. et al, 3 O. L. R., 178 (affirmed by, tlio Supreme Court without report,' 76 O. S.)

   We are of opinion that all. the letters, reports, dealings, negotiations, etc., had between the plaintiff and the defendant, the Cincinnati Street Railway Company, relative to the subject-matter in dispute in this ease culminated in the written agreement under date of April 21st, 1898. All matters, therefore, extrinsic of this agreement are eliminated, and the rights of the parties are to be determined under the terms .and conditions thereof.

By the terms of the contract, the plaintiff granted to the defendant, the Cincinnati Street Railway Company, the right to maintain a loop or part of its railway on Gray road upon the property of plaintiff; to erect and place thereon certain poles, wires and other appurtenances necessary in the construction and operation of its railroad; and to construct and maintain a waiting room upon its said property, all in consideration of one dollar per year for a period not exceeding twenty-five years from April 21, 1898, while said track, appurtenances, waiting room, etc., should remain on the plaintiff’s property; and that upon cessation of the use of either said track or said waiting room, both, at the demand of the plaintiff, should be removed by the defendant at its own charge and expense, and the property of the plaintiff should be restored.

It was further agreed that at the expiration of said twenty-five years the said defendant would remove said track, appurtenances and waiting room from the property of plaintiff, and would restore said property to as good order and condition as the other property of the plaintiff adjacent thereto. The contract also provided, that if the defendant failed to perform any of the agreements it had entered into for twenty days after any complaint made by the plaintiff the license and agreement entered into between the parties, at the option of the plaintiff, should be terminated, and plaintiff would have a right to remove the track with its appurtenances and waiting room, and to restore the ground whereon they stood to the good order and condition of the adjacent property of the plaintiff at the expense of the defendant.

In accordance with this agreement, said defendant built and operated through itself and its lessee said railway until May 10th, 1903, when it is claimed said railway company abandoned the operation of its line on Winton and Gray roads north of Epworth avenue, except on Sunday, on which day it ran a car from the intersection of Epworth avenue and Winton road. It appears that this abandonment was under the provision of an ordinance, No. 414, passed February 10, 1903, by the council of Winton Place to provide for the extension of Route No. 1 of Winton Place Street Railway as established by ordinance, passed November 2d, 1894, which gave to the Cincinnati Traction Company, lessee of the Cincinnati Street Railway Company, the right, whenever it saw fit, to .abandon the operation of so much of its street railroad as lay within the village, on Winton road north of Epworth avenue and on Gray road, and to remove the rails, poles, fixtures and appliances on that portion of Win-ton and Gray roads upon said abandonment; but, until it so determined to abandon this portion of its road, it should have the right to operate ears over -the same at such times and upon such days as it might see fit.

This ordinance has1 heretofore been held by the Supreme Court to be valid and binding as between the village and the' street railroad company, and when the contract of April 21st, 1898, was made, the parties thereto must be held in contemplation of law to have entered into the same under and with the knowledge of the law of the state and their rights thereunder. A contract such as in this case could only be made subject to the law relating to thó control of and granting of franchises to street railway companies by -the council of villages, as municipalities upon whose streets said railway was to be built and operated, and unless there is something in the contract itself which the plaintiff could enforce against the defendant company, notwithstanding the ordinance permitting the defendant company to abandon the operation of its road, to compel it to so operate for a period of twenty-five years, we are inclined to the opinion that plaintiff could not insist upon the operation of the railroad by the defendant company in the face of the ordinance in question.

Upon an examination of the contract we fail to find any such provision. The contract is .merely a license or permit to the defendant to use for a period not exceeding twenty-five years the property .of the plaintiff for street railway purposes.

It seems to contemplate just such a course as has happened in this case, for it provides what shall take place upon cessation of the use of the railroad track, for the payment of one dollar per year while said track, appurtenances, etc., should be upon the property of the plaintiff, and it also provides what shall take place upon the failure of the defendant to perform any of its agreements for twenty days after complaint made by -the plaintiffs. Nowhere in the .agreement does the defendant bind itself to build, maintain and operate a railroad upon Gray road and Wanton road for a period of twenty-five years, but rather a license or permission is given the defendant to use the property of plaintiff as specified in tire agreement for a term not longer than twenty-five years, evidently meaning or contemplating thereby that the defendant might maintain and operate its track with its appurtenances for a shorter period. We think, therefore, that the equities of the case are with the defendants, and the relief prayed for in the petition will be denied.


source: Caselaw Access Project

license: Public Domain

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    APPROVAL OF AN UNDERTAKING.
    Circuit Court of Hamilton County.
    Alexander Meyers v. U. S. Health & Accident Insurance Company.
    Decided, December 21, 1907.
    Jurisdiction on appeal from a judgment by a justice of the peace is conferred by approval of the undertaking by another justice of the same township. ,

      Louis P. Pink, for plaintiff in error.

      J. T Harrison, contra.
    Gifpen, J. j Swing, P. J., and Smith, J., concur.
   An undertaking for appeal from a judgment of a justice of the peace, when approved by a justice of the same township, with the trial justice and at his request, shows a substantial compliance with the provisions of Section 6584, Revised Statutes, that the surety “be approved by such justice,” and confers jurisdiction. Job v. Harlan, 13 O. S., 485.

Judgment affirmed.


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    ERROR. IN VERDICT CORRECTED IN JUDGMENT.
    Circuit Court of Hamilton County.
    Mary E. Seal v. Herman P. Goebel, Executor, et al.
    Decided, December 5, 1908.

      Verdict — Manifest Mistake in, Corrected in the Judgment — Surplusage —Wills—Evidence—Charge of Court- — -Bwden of Proof — Preponderance of Evidence — Presumption from Probate.

    1. Where the jury in an action to contest a will return a verdict establishing its validity, but by a manifest error insert the date of the execution of the will as the date of its probate, and the record shows that but one paper writing purporting to be the last will of the decedent was exhibited to the jury, and that were the date of probate as given by the jury correct the right to contest the will would have been barred, it is not error for the court to treat the date given by 'the jury as mere surplusage and enter a judgment upon the verdict correcting the error and establishing the validity of the will.
    2. In an action to contest a will declarations by a party to the record, who is a legatee with -others under the will, are inadmissible to prove that the will was contrary to the intentions of the testator or was procured by undue influence.
    3. In such a case it is essential that the jury be instructed that the evidence of the contestants, in order to warrant the setting aside of the will, should not only outweigh the evidence adduced by the defendant but also the presumption arising from the order admitting the will to probate.

      W. B. Stier and J. C. Hermann, for plaintiff in error.

      Jacob Shroder, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.
   At the trial of this case, which was a suit brought to contest the validity of the- will -of Hannah D. AVeber, deceased, the jury returned -its verdict finding that the paper writing shown to .them .and admitted to probate in the Probate Court of Hamilton County, Ohio, on'the 15th day of May, 1900, was -the valid last will and testament of the said Hannah I). Weber, deceased,

In this verdict there was a mistake, in that said will was admitted to probate upon May 1, 1905, instead of May 15, 1900, the latter date being the date of the execution of the will.

A motion for a new trial being filed the same was overruled. The court thereupon proceeded to enter a judgment upon the verdict so rendered, and in its judgment found the foregoing mistake to exist therein, and adjudged that the paper writing shown to the jury in the cause and admitted to probate in the Probate Court of Hamilton County and executed by said Hannah D. Weber, on 'the 15th day of May, 1900, purporting to be her last will and testament was her valid last will and testament.

We see no error in the court entering this judgment. The court' did. not undertake to amend the verdict but entered its judgment construing the verdict. The petition alleges that Hannah D. Weber died on or about the 20th day of April, 1905, and that she executed a paper writing purporting to be her' last will and testament upon the 15th day of May, 1900. In the light of the record the description of the will as to its probate in the verdict was erroneous, but as the jury was impanneled to. .pass upon the validity of the last will and testament of Hannah D. Weber which was exhibited to them, the fact that the date of its execution was inserted in the verdict as the date of .its probate, is of no consequence.

. The entire record extrinsic of .any and all evidence shows there was but one paper writing purporting to be the last will and testament of BEannah D. Weber submitted to the jury for its consideration and this paper writing was declared by the jury to be her valid last will and testament.

If the verdict is to be construed as involving the will .probated May 15, 1900, then the action is barred and such claim can avail nothing to the plaintiffs in error. We .are therefore of opinion that the court had the fight to consider the date of execution in the verdict, as relating to the date of probate, mere surplusage and enter this judgment as shown by the record. Muller v. St. Louis Hospital Assn., 73 Mo., 242.

As to the proposed evidence in reference to statements made by Judge- Goebel to Mrs. Seal, same was properly ruled out by the court. We think it well settled that declarations of a party to the record of a case, who is a legatee with others under the will, in a suit to contest the will, are inadmissible to prove that the will was contrary to the testator’s intentions or was procured by undue influence, other parties or legatees being affected thereby. Thompson v. Thompson, 13 O. S., 356; Stull v. Stull, 96 N. W. Rep., 196; Matter of Meyer, 184 N. Y., 54; Matter of Kennedy, 167 N. Y., 164 (99 Mass., 112).

We think there was no error in excluding the proposed evidence of Mr. Bettinger as to declarations made by Judge Geobel. The statements sought to be proved were not made while Mrs, Weber was present nor while she was engaged in the making of her will. It related rather to’ what he, Judge Goebel, had done and as to the proposed evidence with regard to Mrs. Weber coming to the office with memoranda for the purpose of having her will drawn. Mr. Bettinger testifies that at .the time -the will was drawn he was not' constantly .in'his office and clients might come in and he not be advised of it.

No error was committed by the court in giving the special charges 'asked by defendants in error and refusing those asked by plaintiff in error nor in the general charge of the court. Stull v. Stull, 96 N. W. Rep., 196.

In the light of the judgment of the Supreme Courtin the case of Hall v. Hall, 78 O. S., 416, the plaintiff in error has no ground of complaint as against the general charge of the court, -for it was not only.the duty of the court to have instructed the jury as it did, upon .the burden of proof and .the preponderance of the evidence, but -the jury should also have been told that the evidence of the contestant should not only outweigh the evidence adduced by the defendants but also the presumption arising from the order of the Probate Court admitting the will to probate as the valid last will and.testament of Hannah D. Weber.

There being no error in the record, the judgment .of the court below will be affirmed.


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    NECESSITY OF SHOWING WHAT IT WAS PROPOSED TO PROVE BY AN EXCLUDED QUESTION.
    Circuit Court of Hamilton County.
    Joseph Miller v. Mary Miller Donahue et al.
    Decided, December 5, 1908.

      Evidence — Exclusion of Record Must Disclose that Error Intervened Thereby — Presumption—Wills.
    Where objection to a question propounded to .a witness is sustained, but the record does not disclose what reply the witness would have made had he been permitted to answer, a reviewing court will not presume that the answer would have been material, or favorable to the plaintiff in error, or that the sustaining of the objection to the question was prejudicial, or that the rejection of ;the answer' by the trial court was improper.

      Jerome D. Creed and Thorne Balter, for plaintiff in error.

      Denis F. Gash and E. J. Babbitt, contra.
    Swing, P. J.; Giffen, J., .and Smith, J., concur.
   This ease is here ori error to the judgment of the court of common pleas. In that court it' was an action to set aside the will ’of Mary Miller, deceased. The main ground of error relied on is the refusal of the court to permit plaintiff in error to have certain questions propounded to Dr. B. F. Beebe, a witness for the plaintiff, answered. The plaintiff in error excepted to the ruling of the court in refusing to permit said questions to be answered by the witness, but did not say what he expected to prove by the witness if he were permitted to answer the questions.

The sixth proposition of the syllabus in Bean v. Green, 33 O. S., 444, is as follows:

“Where a question put to a witness on the trial is excluded by the court as incompetent, to have such rejection a valid ground for error it must appear in the record what was proposed to be proved thereby .and that it was something material, the rejection of which would be prejudicial to the plaintiff in error. ’ ’

The court in its opinion at page 447, says:

“It has been ruled in this state as often .as the question has come before the Supreme Court, that an exception to the overruling of questions in the form here made is insufficient. When a question is asked of a witness which is objected to and rejected, the party taking an exception to the ruling should bring upon the record ,a. statement of what is proposed or expected to be proved by the rejected testimony, and -this must appear to be something material, the rejection of which as evidence would be prejudicial to the party excepting.”

In support of this the court cites numerous Ohio eases. The principle lying at the bottom of this decision is thus stated in the syllabus in- Seavern v. Ohio, 6th O. S., 220, which is cited by the court and which -is .as follows:

‘1 In order to justify the reversal of a judgment in error, the record must affirmatively show, not only that error intervened but that it was to the prejudice of the party seeking to take advantage of it.”

The court may have .erred in not permitting the questions put to Dr. Beebe to be answered, but how can the court say there was any prejudice to plaintiff in error in this ruling as long as the court can not know what Dr. Beebe’s answer would have been to the questions. He may not have been able to have answered the questions or his answers may have been unfavorable to plaintiff in error, for we have no right to assume as a matter of fact that the .answer would be favorable to plaintiff in error.

We find no other error in the record.


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    ADJUDICATED CLAIMS. AGAINST BENEFICIAL ASSOCIATIONS.
    Circuit Court of Franklin County.
    State, ex rel Koehler, v. Grand Lodge Ancient Order of United Workmen.

    Decided, October 21, 1907.

      Mutual Benefit Societies — Adjudication of Claims — Lien for the Amount Ordered Paid — Orden• Equivalent to a Cashier’s Check — Subsequent Appointment of a Receiver Without Effect.

    The adjudication of a claim by the duly authorized trustees of a fraternal organization with delivery of the order establishes a . lien on the funds of the organization,' which a ’court of equity will recognize as against a .subsequently appointed receiver or assignee of the organization.
    Dustin,..'J. ; Wilson, J., and Sullivan, J., concur.

       Approving Hunt v. Supreme Lodge A. O. U. W., 5 O. L. R., 374, which see for the facts of a similar case.

   We are of the opinion that the issuing of the warrant in question by the proper authorities of the A. O. U. W. was the setting-aside of the amount named for the claimant, Mrs. Koehler.

It was an order upon itself, duly certified, and needing no acceptance.

The action of an executive officer could not invalidate it nor render it non-effective. It was equivalent to what is known in banking as a cashier’s cheek; and its legal effect is the same as if the money had been wrapped, labeled and set aside as belonging to the party named thereon.

ITence we think the authorities cited by counsel for the receiver with reference to cheeks- and orders do not apply, and that Judge ITosea of the Superior Court of Cincinnati, Ohio, in the case of Huni v. Supreme Lodge A. O. ü. W., took the proper view.

Decree accordingly.


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    PROTECTION OF INTERESTS OF MINORS IN PARTITION PROCEEDINGS.
    Circuit Court of Hamilton County.
    William C. Murr et al v. Anna Murr, an Infant, by her Guardian.

    Decided, November, 1907.

      Partition — Failure to Q-Uard Interests of Minor — Appraisement Law— Adult Oo-Parceners Elect to Tahe — Land Afterward Sold for Three Times Its Appraised Value — Accounting—Judgment Against Joint Wrong-doers.

    1. Where adult co-parceners conceal from an infant co-parcener the true value of the land, and after taking it at its appraised value sell it at a greatly enhanced figure, they will be required to account to the minor for the profits thus derived.
    2. In such a case the court is not bound to apportion the judgment among the joint wrong-doers, but may render a general judgment against all the defendants.

      Spangenberg & Spangenberg and John J. Gasser, for plaintiff in error.

      J. T. Harrison, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.

       Affirming Murr, an Infant, v. Murr et al, 5 O. L. R,, 125, which see for a statement of the case,'

   The plaintiff in her original petition did not seek to set aside the proceedings in the partition suit, because the rights of an innocent purchaser had intervened; but she asked that the defendants be required to account to her for the excess of the proceeds of subsequent sale to this purchaser over the amount of the appraisement, at which one of the defendants elected to take the premises.

The ground of the action was fraud on the part of the defendants in concealing from the plaintiff, an infant, the true value of the premises; and after selling the same a few months after the partition proceedings for nearly three times their ¡appraised value, dividing the proceeds of sale ¡to the exclusion of plaintiff. While the testimony upon this issue was not, .and rarely is, direct and positive, yet the circumstances were quite as convincing, and warranted the court in finding for the plaintiff.

The court is not required to apportion the amount of a judgment among joint wrongdoers, and hence the judgment for the full amount against all the defendants was not erroneous. Judgment affirmed.


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    SIDEWALK ASSESSMENTS.
    Circuit Court of Hamilton County.
    Kahn v. City of Cincinnati et al.
    Decided, June 6, 1908.

      Sidewalk — Notice to Build Served on Abutting Owner — Walk Constructed by the City — Assessment Levied against Subsequent Purchaser.

      Moses Bushin, for plaintiff.

      Fyjfe Chambers, for the City.
    G-iffen, J.; Swing, P. J., and Smith, J., concur.
   When a resolution to construct a sidewalk in a municipal corporation is duly passed, and notice thereof is duly served upon the owner of an abutting lot, who fails to comply with such notice, and afterwards sells and conveys the lot, the corporation may nevertheless proceed, within a reasonable time, to make such improvement and assess the expense thereof upon such lot in the name of the subsequent purchaser, who must be held to have constructive notice at least.


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    FATAL INJURY FROM BEING STR.UCK BY A RUNAWAY HORSE.
    Circuit Court of Hamilton County.
    Lichtenstein, Administrator, v. The Hudepohl Brewing Co.
    Decided, December 5, 1908.

      Pleading — Negligence—Special Instructions — Interrogatories—Defenses —Error—Accidents Which Belong to that Unfortunate Glass of Occurrences for Which the Law Affords the Injured Party no Relief — Section 5061.

    1. Tlie defense of contributory negligence, if well pleaded in an action for damages for personal injuries, is not inconsistent with a general denial.
    2. An interrogatory which raises an issue as to the comparative negligence of the plaintiff and defendant, or an instruction to the jury which imposes on the defendant the duty of proving that it was prudent and cautious, or that omits the statement that tlie negligence complained of was the direct cause- of the injury, is erroneous.

      .Pogue <& Pogue and B. A. Black, for plaintiff in error.

      Kelley & Eauck, contra.
    Gieeen, J.; Swing, P. J., and Smith, J., concur.
   In an -action for damages for personal injury upon the ground of negligence the defense of contributory negligence, when well pleaded, is consistent with a general denial. If it be admitted in .the answer, as a predicate for the defense of contributory negligence, that the defendant was negligent, such admission will necessarily disprove the general denial; but.if the admission is conditional only and for the purpose of setting up contributory negligence as an additional defense, it disproves nothing nor is it inconsistent with the general denial. The rule is stated in Pavey v. Pavey, 30 O. S., 600, as follows:

“A defendant can -be required to elect between which of several defenses he will proceed to trial, only when the facts stated therein -are so inconsistent that, -if the truth of one defence be admitted, i-t will necessarily disprove the other. ’ ’

And again, on page 601 it is said:

“A contrary construction would make the section of the code .requiring a verification of pleadings, in all cases where a general denial is pleaded, defeat the section .allowing the defendant to plead as many defenses as he may have, although the facts constituting the defense be not inconsistent with the denial. 1 Such a construction of the code would work great in-'justice to a defendant who, .among several defenses, has at least one good defense to the action, and yet, through some accident incident to a trial, he may be defeated by reason of his being confined to one. This .would be clearly contrary to the policy and spirit of the code.1 ’

We are not unmindful of the fact that Section 5067, Revised Statutes, has since been amended by adding “but the several defenses must be consistent with each other, ’ ’ but if this provision be strictly contrued it will, as pointed out in the above case, defeat the very object of the section and prevent all defenses of new matter when a general denial is .interposed.

The word “consistent” .as used in the statute refers to the facts constituting' the several defenses which are averred to be true, and not to such as are implied by law or supposed by the pleader, and requires only that they should be stated in such form that the answer can be sworn to without falsehood and in good faith. In the .answer before us the defendant by its third defense admits negligence conditionally and only for the purpose of stating the defense of contributory negligence, which as thus stated is consistent with a general denial. The second defense contains a denial of all negligence of the defendant and an averment of particular facts showing negligence of plaintiff which, in effect, is the same as the general denial pleaded as a first defense, and could probably have been stricken out as redundant; but we think no prejudice resulted from the refusal to sustain such motion. The admission of evidence tending to excuse the defendant, and objected to by plaintiff, was not prejudicial, inasmuch as the jury in answer to a special interrogatory found it guilty of negligence.

The first special instruction refused by the court excludes the necessary fact that the negligence there described must have been the direct cause of the injury.

The second instruction refused imposes upon the defendant the burden of proving that it was prudent and cautious.

There was no error in the refusal of either. Special interrogatories 7, 8 and 9 were properly submitted to show’whether the view of the deceased was obstructed in any manner and thereby excuse him for not seeing .the approaching runaway horse and wagon. Interrogatory 12 called for an important fact in the case, and the .answer is sustained by .the evidence.

The answer to interrogatory 19 is conclusive .of the general verdict for defendant if sustained by the evidence, and after reading same we see no reason to doubt the correctness of the finding.

The comparative negligence of the defendant and the deceased was not a material issue in the case, hence interrogatory 22 should not have been submitted to .the jury, but we think no prejudice resulted.

Interrogatories 23, 24 and 25 and answers determine material questions of fact, consistent with the general verdict.

Our conclusion is from all the evidence that the accident was one of those unfortunate occurrences for which the law affords plaintiff no remedy, and the judgment will be .affirmed.


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    PROCEEDINGS TO COMPEL PRODUCTION OF BOOKS AND DOCUMENTS.
    Circuit Court of Stark County.
    The Stark Rolling Mill Company v. The Ocean Accidental & Guaranty Company.
    Decided, October 2, 1908.

      Action for Discovery — Proceedings Under the Statutes to Compel Production of Books and Writings — Right of Inspection and Copies —Enforcing Answers to Interrogatories — Truthfulness of Answers — Interpleader—Equity Jurisprudence — Contract for Insurance Against Liability Arising from Injuries to Employes.

    When under a given state of facts Section 5293, Revised Statutes, together with Sections 5289, 5290 and 5101, will afford the same relief as was formerly administered in chancery by a bill of discovery under the same facts, the provisions of said sections must be pursued.

      Linch, & Day, for plaintiff in error.

      Shields <& Pomerene, for defendant in error.
    Craine, J.; Donahue, J., and Taggart, J., concur.
   The Ocean Accidental & Guaranty Company brought an action in the nature of a bill of discovery in the court of common pleas against the Stark Rolling Mill Company, in which it in substance alleges that it entered into a contract with the Stark Rolling Mill Company, whereby it agreed to insuie the defendant below against liability arising from injury to certain employes of the defendant; that the premium to be paid by the defendant depended upon the amount of wages paid by the defendant to its employes; that the amount of premium, to be paid in advance, was based upon ,an estimate of the .amount of wages to be paid; and that if that estimate was too high, then the plaintiff was to make certain refunder to the defendant, but if the estimate was too low then the defendant was to pay the plaintiff an additional amount; that the provisions of the contract provided that the plaintiff might have an inspection of the books of the defendant for the purpose of determining the amount of wages paid to the defendant’s employes; that the .plaintiff believed and was informed that the wages paid by the defendant were much higher than had been reported to it by the defendant; that the plaintiff demanded of the defendant an inspection of its books and papers, for the purpose of determining what the wages that had been paid were; that the defendant refused to allow the plaintiff to inspect its books; that the plaintiff believed and was informed that the defendant had paid .a larger amount to its employes than it reported to the plaintiff; and that the plaintiff desired to bring an action against the defendant, but could not do so without an inspection of the books and papers of defendant to determine the amount of wages paid, and asked for an order of discovery, and that the defendant be compelled to exhibit its books and papers to the plaintiff.

The defendant filed a demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action, claiming that if the plaintiff wanted an inspection of the boobs and papers of the defendant, or a discovery of any facts peculiarly within the knowledge of the defendant, it should have ‘resorted to the provisions of Sections 5293, 5289, 5290 and 5101, Revised Statutes.

On a hearing of this demurrer, the court of common pleas overruled the same, and the defendant below prosecuted error to this court asking this court to reverse the judgment of the court of common pleas in overruling such demurrer.

Upon the adoption of the code of civil procedure in 1851, the distinction between forms of action at law and in equity was abolished, but the power to grant equitable relief existed thereafter, as well as before, and" equity jurisprudence exists in this' state the same as it did before the adoption of the code, excepting where it has been changed or modified by the Legislature!,

Before the adoption of the code, if a party was unable to bring his action at law without the discovery of some facts peculiarly within the knowledge of the defendant, he could filé his bill of discovery in a court of equity, setting forth the fact that he had a cause of action, but by reason of some information possessed by the defendant, which he himself did not possess, he was unable to file his action at law, and submit certain interrogatories in his bill, which the defendant was required to answer under oath. If the bill was properly brought, the defendant was required to answer these interrogatories under oath, but this was the extent of the relief afforded by a bill of discovery.

A court of equity went no farther than requiring the defendant to answer these interrogatories under oath; and the answers, so made by the defendant, could be used in the action at law.

After the adoption of the code of civil procedure, the Legislature enacted Section 5293, Revised Statutes, which seems to be almost, if not entirely, equivalent to a bill of discovery in equity.

Section 52-93, Revised Statutes, undertook to direci a course of procedure in all cases where adequate relief could be obtained under it.

In the 62d Ohio State, page 41, we find the first paragraph of the syllabus reading as follows:

“The purpose of Section 5016, Revised Statutes, which permits a defendant before answer, in an- action upon contract or for the recovery of personal property, to interpose an affidavit, and ask that opposing claimants interplead, was intended as auxiliary to the practice in chancery respecting interpleader, and to direct the practice in the particular, classes of cases named, and was not intended to regulate the entire subject of the inter-pleader. ’1

Interpleader was recognized in courts of equity, but the Legislature of the state passed Section 5016, Revised Statutes, providing for interpleader, and the Supreme Court in that case held that when the Legislature had passed a law upon the subject- of interpleader, that statute directed the practice and should be pursued, when the statute gave adequate relief under the -facts of the ease.

We think' Section 5293, Revised Statutes, falls within the doctrine announced in the 62d Ohio State, 41, and that if relief can be granted under Sections 5293, 5289, 5290 and 5101, Revised Statutes, then -their -provisions must prevail, and the party seek his relief in- accordance therewith.

If Sections 5293, 5289, 5290 and 5101, Revised Statutes, could be ignored when their provisions control or apply to a particular case, then it would be useless for the Legislature to undertake to prescribe a course of procedure.

An analysis of Section 5293, Revised Statutes, will -show that its provisions apply to just such a case -as alleged in the petition. It reads:

“When a person claiming to have a cause of action is unable without a discovery of the facts from the adverse party to file his petition such person may bring his action for the discovery, setting forth in his petition the necessity for such discovery and the grounds therefor, and such interrogatories relating to the subject-matter of the discovery as may be necessary to procure the discovery sought.”

Now applying that section to the case at bar. The plaintiff claims to have a cause of action; it claims that it is unable without a discovery of the facts from defendant to file its petition. Now what should it do?

It should do just exactly what the statute provides: file 'its petition setting forth the necessity and grounds for the discovery, and attach such interrogatories relating to the subject-matter of the discovery, as may be necessary to procure the information sought.

The plaintiff below did all that is required by this section of the statute, except that it did not attach interrogatories. But in failing to attach such interrogatories it ignored the plain provisions of the statute.

It is said, however, that the answers to the interrogatories might not be truthful, and that it was necessary that the plaintiff might see the books in order to ascertain whether or not the answers were true. A .bill of discovery in chancery never gave the plaintiff such a right. It simply compelled the defendant to answer the interrogatories' under oath, and that was the extent to which a court of chancery would go. That being true, Section 5293 gives the same relief as did a bill of discovery in chancery.

Pomeroy’s Equity Jurisprudence, Section 82, Vol. 1 (new edition), together with the 45th Ohio State, 365, 366, gives a very' clear statement as to the relief afforded by a bill of discovery in chancery, and'on page 366 of the 45th Ohio State, the court says:

“All the aid which a suit of discovery would give is now given by our code in a case at law itself.”

In our judgment, Section 5293, Revised Statutes, is a substitute for the old bill of discovery in chancery, and the provisions thereof should be followed when .applicable.

It is claimed, however, by plaintiff below that under its contract with the defendant, it had a right to an inspection of defendant’s books, and a court of equity should enforce that contract. In answer to this, we say that parties contracting together can not by virtue of their contract extend the equity power of the court, nor can they enlarge the statute.

Sections 5289, 5290, 5101, Revised Statutes, afford ample means for obtaining an inspection of the books or papers of an adversary, and should be resorted to rather than to apply to a court of equity.

We think these statutes are as broad as the old chancery practice and provide a method of procedure, and that method must be pursued, and in holding' otherwise the court of - common pleas erred in overruling the demurrer.

The judgment of the court of'common pleas-will-therefore be reversed, at the costs of defendant in -error; and this court proceeding to render the judgment the court of common pleas should have rendered, dismisses the petition of the plaintiff below at its costs.


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    PROSECUTION OF ERROR. WHERE THERE WERE TWO FINAL DECREES.
    Circuit Court of Hamilton County.
    Tedtmann v. Tedtmann et al.
    Decided, December 5, 1908.

      Final Order — Title Held in Trust — Finding as to, and as to Rents and Profits — Error Proceedings.

    In an action to declare a trust in land and for recovery of rents and profits, the final decree to which error can be prosecuted so as to bring before the court the guestion as to whether the defendant held the property in trust or in fee is the decree wherein the controversy as to the title was decided, and not a subsequent decree confirming the report of the referee as to the amount of rents and profits due from the defendant.

      E. A. Hafner, for plaintiff in error.

      Burch & Johnson, contra.
    Swing, P. J.; G-ifebn, J., and Smith, J., concur.
   This was an action in the court of common pleas by the heirs of Martin Tedtmann, Sr., against Martin Tedtmann, Jr., wherein -it was alleged that Martin Tedtmann, Sr.,- had purchased certain real estate in the city of Cincinnati and placed the same in the name of his son, Martin Tedtmann, Jr. That Martin Tedtmann, Sr., occupied and improved said property until the time of his death, in 1903. That since his death said Martin Tedtmann, Jr., has occupied said property and claims to own the same. •

The court was asked to find that said property was held-by said Martin Tedtmann, Jr., in trust--'for himself and .his, brothers and sisters, and account for rents and. profits, and for .the sale of the property and- for equitable relief. Martin Tedtmann, Jr., denied the claim of plaintiffs and claimed to be -the owner in fee simple of the premises. On September 10, 1906, the court rendered judgment in the case, stating its finding of fact and law separately. It found the issues -in favor of the plaintiffs. That they were the owners of the premises and that the defendant held the legal title to the premises in trust for the plaintiffs. The court ordered the property sold and appointed a referee to ascertain the amount of the rents and profits for which Martin Tedtmann, Jr., was liable. To this decree Martin Tedtmann, Jr., prosecuted error in this court, the petition being filed May 7, 1907, and the ease numbered 4406. On June 3, 1907, this court struck the petition from the files for the reason that the petition was not filed within the time for which error might be prosecuted and therefore the court had no jurisdiction of the subject-matter.

Afterwards the referee made his report. The parties agreed as to the amount of the rents and profits .and on this the -referee made his report and this report ,was confirmed by the court on July 23, 1907, and a petition in error was filed in this ease in this court November 20, 1907, although the bill of exceptions was not signed until December 21, 1907, being more than four months after .the judgment confirming the referee’s report.

There is no contention in this ease that the report of the referee was wrong in -any particular; his finding was conceded to be correct if the judgment of the court rendered September 10, 1906, was correct. And what Martin Tedtmann, Jr., seeks to set .aside in this court is the decree of September 10, 1906, wherein it was found that he held the premises- in question as a trustee for himself and his brothers and sisters, and he claims that the final judgment .to which he has a right to prosecute error is the judgment of July 23, 1907, confirming the referee’s report, and -that the decree of the court rendered September 10, 1906, was merely interlocutory and it is brought up by the final decree of July 23, 1907, confirming the referee’s report.

We .are of the opinion, the final decree to which error could have been prosecuted so as to bring before this court the question as to whether Martin Ted-tman, Jr., held this property in trust or in fee was the decree of September 10, 1906, wherein the court decided this controversy. Of course he could prosecute error to the judgment confirming the referee’s report, but there is no claim that there is any error in the finding of the referee. 49 O. S., 374.

Judgment affirmed.


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    QUIETING TITLE AGAINST KNOWN HEIRS.
    Circuit Court of Licking County.
    Wilson et al v. Wilson, Administrator.

    Decided, October Term, 1908.

      Title — Proceedings to Quiet Title Against XJnlmown Heirs — Not Effective Against Known Heirs — Summons—Publication—Parties— Notice — Statute of Limitations — Tenants in Common.

    1. An action brought to quiet title to land against J. D. W. if living, and if dead then against the unknown heirs of J. D. W., as defendants, in which action service was made -by publication, and a decree rendered quieting the title of plaintiff against such defendants does not affect the title in the land of heirs of J. D. W. whose names and places of residence in Ohio are known to the plaintiff in such action, and who are not named as parties, or served with summons therein, and who have no actual notice of such action; and such known heirs are not barred by the proceedings and decree in such action from asserting their interest in such land.

      2. The statute of limitations does not run in favor of a tenant in common in the occupancy of the premises, against his co-tenant, until some overt act of an unequivocal character, clearly indicating an assertion of ownership of the premises, to the exclusion of the right of the co-tenant.
    3. The commencement and pendency of an action to quiet title against J. D. W.-if living, and if dead then against his unknown heirs, was not such notice to the known heirs of J. D. W. who .were co-tenants of the plaintiff, hut had no actual notice of such action, that the plaintiff claimed adversely to their interest in the land, as to make the statute of limitations run against their interest in the land.

      Flory & Flory and B. M. Ochiltree, for plaintiffs in error,
    cited the following authorities:
    That action ¡to quiet title against unknown heirs of John D. Wilson, did not affect thé title ,of known heirs — Archer v. Brockschmidt, 5 N. P., 349; Ulhlein v. Gladieux, 74 O. S., 233; Lamb v. Boyd, 4 C. C., 499; 24 Am. & Eng. Enc. of Law, 718, 719, 724, 734, 736, 737; Young v. Heffner, 36 O. S., 238; Kingsborough v. Tousley, 56 O. S., 450; Green v. R. R. Co., 62 O. S., 67; Spoors v. Goen, 44 O. S., 497, 503; Webster v. Reid, 53 U. S., 437.
    That statutes of limitation did not run between co-tenants— Gill v. Fletcher, 74 O. S., 295, 305; Farmer’s etc., Bank v. Wallace, 45 O. S., 165; Young v. Heffner, 36 O. S., 232; Hoggs v. Burman, 41 O. S., 99; Freeman on Co-tenancy, Section 230; Wood on Limitations, page 620, Section 266; Wood on Limitations, pages 568, 571, 574, 576; Culver v. Thoads, 87 N. Y., 348; Chambers v. Wilcox, 15 O. Dec., 629.
    That, the suit to quiet title did not charge co-tenants with any adverse claim of co-tenants — Lessees of Irwin v. Smith, 17 Ohio, 226, 239; Gill v. Fletcher, 74 O. S., 295; Benton v. Shaffer, 47 O. S., 117; Gibler v. Smith, 14 Ohio, 323; Hollinger v. Bates, 43 O. S., 437.
    That no cause of action accrued until notice of adverse claim was received by co-tenants and this did not occur until disability of infancy ceased — Lessees of Thompson v. Green, 4 O. S., 218, 224; Walker v. Youngstown, 62 O. S., 249.

      From the brief of Kibler & Montgomery:
    It is a recognized rule that the statute of limitations may run in favor of -one co-tenant against another, where the possession of the one co-tenant is hostile to that of the other — Barr v. Chapman, 30 W. L. B., 265; Schulte v. Beineke et al, 4 N. P., 207; Veazie v. McCuginio, 40 O. S., 365 (affirmed by the circuit court).
    The judgment in an action to quiet'title is final and conclusive — Wabash Ry. Co. v. Toledo Elevator Co., 7 N. P., 198; Desnoyers v. Dennison, 19 C. C., 320; Swenson v. Cresap, 28 O. S., 668; B. & O. Ry. Co. v. Smith, 54 O. S., 562; Covington, etc., Co. v. Sargent, 27 O. S., 232; Gill v. Fletcher, 74 O. S., 295; Young v. Heffner, 36 O. S., 232.
    The -judgment of 1884 can not be • collaterally attacked — 8 Ency. Digest (Michie), p. 162; Bank of Wooster v. Stevens, 1 O. S., 233; Bosewell v. Sharp, 15 O. S., 466; Irvin v. Smith, 17 O. S., 242; Newman v. Cincinnati, 18, O. S., 330; Morgan v. Burnet, 18 O. S., 546; Fowler v. Whiteman, 2 O. S., 270; Kingsborough v. Tousley, 56 O. S., 450.
    A judgment must be void and not merely erroneous in order to render it subject to collateral attack — Gaw v. Glassboro, 20 C. C., 416; Moore v. Robinson, 6 O. S., 302; Weyer v. Zane, 3 O., 409.
    As to the jurisdiction of the .probate court — Doan v. Biteley, 49 O. S., 588; Dalton v. Davis, 18 C. C., 878.

      C. G. Worry, for Isaac N. Wilson, administrator of the estates of Cynthia Jane Wilson and Sarah Ann Wilson.

      Kibler & Montgomery, for the First Presbyterian Church of Newark.
    Craine, J. (orally); Donahue, J., concurs; Taggart, J., dissents

       Reversing Wilson, Admr., v. Wilson et al, 6 N. P.— N. S., 489.

   as to the last syllabus, and to the judgment of the court that the record does not show an adverse holding by the tenants in common for' more than twenty-one years, and to the reversal of the judgment.

This action was brought in the probate court.by Isaac N. Wilson, as administrator of the estates of Cynthia Jane Wilson and Sarah Ann. Wilson, asking for'an order .to sell certain real estate (lots 512 and 513 in the city of Newark, Ohio), for the purpose of paying the debts of the decedents. Charles O. Wilson, William Wilson, Pauline Wilson and..James William Gillies were made, defendants.'- Charles- O. Wilson apd,William Wilson in their .answer allege that they- .are the owners -of a one-sixth interest in lots 512 and 513; that they were co-tenants of the decedents at the time of their death. James W. Gillies files the same kind of an answer, claiming to be the owner in fee simple of an undivided one-sixth, and they pray judgment for their share.

A reply was filed by the administrator to these answers, denying certain matters and setting up as an affirmative defense that these claimed heirs were barred by an adjudication of the court of common pleas; .and also claiming a prescriptive right.

The probate court and the common pleas court held that they were barred by the statute of limitations, .twenty-one years having run against them. The ease is brought to this. court to review the judgment of the court of common pleas. A history of the case is somewhat as follows:

John D. Wilson, who was a single man,- left this country for California about 1850, and nothing has been heard from him since. The presumption is that he died. Cynthia Jane Wilson and Sarah Ann Wilson were sisters of John D. Wilson, and inherited one-sixth each; James William Gillies inherited one-sixth through his mother, who inherited, from John D. Wilson; Charles O. and William Wilson claim to inherit from their father, John O. Wilson; who, in turn, inherited from his father, Joseph Wilson; who, in turn, inherited from John D. Wilson, who went to California.

The principal contention of the parties is, whether or not Charles O. Wilson, William Wilson and James Gillies were barred by the proceedings in the court of common pleas, brought in 1884. In that year Cynthia Jane Wilson and Sarah Ann Wilson brought an .action in the common .pleas court of this county against John D. Wilson (the man who went -to California) if living, and if dead then .against .the unknown heirs of John D. Wilson. An affidavit was made, which reads:

“Cynthia Jane Wilson, being- sworn, says that she is about to commence suit against the unknown heirs of John D. Wilson, deceased, and against the said Wilson if living, the object and prayer of which is to quiet the title of herself and co-plaintiff, Sarah Ann Wilson, to lots 512 and 513 in the city of Newark, Ohio','against any 'claim- or interest theréin of the unknown heirs' of John'D. Wilson, deceased, or of the sáid John D. Wilson if living, -and -that the said defendants claim or may- claim an interest therein adverse to the interest of the plaintiffs who are the owners of and in possession of said realty.”

It is said that this 'affidavit is not sufficient. We have examined the statutes in force at that time, and we find -that the affidavit was drawn strictly in conformity to the statutes that were then in force. It will be noticed, however, from this affidavit that she wants to bring an action against John D. Wilson, if living, to foreclose his rights. If he is not living, then she wants to bring it against his tmknown heirs. -.She does not bring the action against the heirs of John D. Wilson but -against the unknown heirs of John D. Wilson. I emphasize that because of what may be said hereafter, in view of the fact that the court .is not in entire harmony in .this case.

Publication was made, and a decree was entered:

. “It is therefore ordered, adjudged and decreed that the title and possession of the said Sarah Ann Wilson and Cynthia Jane Wilson to all and singular the premises in the petition described, to-wit: situate in the county of Licking and state of Ohio, and in the city of Newark, and being lots numbers 512 and 513 in said- city, be, and the same hereby are quieted as against the defendants, and each and -every one of them, and all persons claiming under them.”

Who were.the defendants? John D. Wilson and the unknown heirs of John D. Wilson. The action was to quiet the title against the unknown heirs of John D. Wilson.

We think, in a case like this, where an attempt is made to quiet title agaipst parties, nobody’s title ought to be quieted who is not made a party. Were Charles O. Wilson; William Wilson and James W. Gillies unknown heirs of John D. Wilson? ' The majority of the court, at least, think not. We think the evidence in this ease shows that the plaintiff knew of Charles O. Wilson, William Wilson and James W. Gillies. In 1882 she presented this book (indicating) to Charles O. Wilson and William Wilson. They were residents of this state; they were minors, one being about eleven and the other fifteen years.of age. We .think. that this decree operates no further than its terms import, and a majority of the court think that this decree did not quiet the title 'against Charles O. Wilson, William Wilson and James William Gillies, because .they were not within the class named as unknown heirs. There is no place where the evidence shows that they were in that class. They were the known heirs, and not the unknown heirs, and to preclude them there must be some evidence to show that they fell within the class of unknown heirs.

Another question is raised: that of the statute of limitations; that title was acquired by adverse possession.

Charles O. Wilson, William Wilson and James William Gillies were co-tenants; that is, they were seized of an undivided one-sixth; two of them had the one-sixth jointly; and James S. Gillies had one-sixth to himself. Now, were they barred by the statute of limitations? That is the next question. In the 36th Ohio State, page 232, we find the syllabus reads as follows:

‘ ‘ The statute of limitations does not run in favor of a tenant in common in the occupancy of the premises, against his co-tenant, until some overt act of an unequivocal character, clearly indicating an assertion of ownership of the entire premises, to the exclusion of the right of the co-tenant.
“The legal .presumption of death which arises from the absence of one from his home for the period of seven years, and in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counter-proof. ’'

In the 41st Ohio State, page 81, a portion of the syllabus reads as follows:

“When a grantee enters under a deed describing his estate as a tenancy in common with others, his possession will be presumed to be not adverse to the owners of the other undivided interests, until by unmistakable acts or declarations of which his oo-tenants had or ought to have taken notice, he claims the entire ownership.”

So that where there .are tenants in common and any one or more of the tenants undertake to set the statute of limitations running against the other co-tenants who are not in possession, .there must be some overt act, unequivocal in its character — plain and decisive — so as to inform the person that the tenant in possession is claiming it adversely.

In this case, these parties were in possession of the property by reason of being heirs of John D. Wilson; that is, because they owned the two-thirds interest. Now, ordinarily, possession of itself is notice of an adverse claim, but they had a right to that possession. What act did they do that notiñéd these two infants that they were claiming adversely ? It is said that there was a deed made and put upon record, but it does not appear that these heirs were informed of that. It is also said that the bringing of the suit to quiet title was notice to them. We are cited to a ease in 17 Wallace, I believe. That case we do not think is similar to the one at bar, because in that case the co-tenants had been made parties, and the claim there was that there was a defect in the judgment. We do not think that the act of bringing the suit in -this court to quiet title was of such a public nature that it would put these children, who were infants at that time, upon their guard and inform them of the fact that these people were claiming adversely; and the majority of the court feel that, under the evidence in this case, these heirs had no actual or constructive notice of an adverse claim, and that the claim as to adverse possession has not been established. And for that reason the judgment of the common pleas ■court will be reversed.


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    REGULARITY OF PROCEEDINGS FOR. EXTRADITION.
    Circuit Court of Hamilton County.
    Craig v. Hamann, Sheriff.
    Decided, December 5, 1908.

      Extradition — Presumption as to Regularity — Where no Error in the Proceedings is Disclosed by the Record — Habeas Corpus.

    Where it appears, from the papers embodied in a bill of exceptions, that the Governor of the state was authorized to grant a warrant of extradition, and the proceedings are in all other respects regular, but the record fails to disclose what action was taken by the Governor, it will be presumed that a warrant of extradition was granted and that the prisoner is held by virture of such warrant, and refusal of a writ of habeas corpus under such circumstances is not erroneous.

      Scott Bonham, for .plaintiff in error.

      John Busse, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This case is here on error to the judgment of the court of common pleas, in which court the application of the plaintiff in error to be discharged from the custody of the sheriff, on habeas corpus, was denied. It does not affirmatively .appear from the record in this case that there was error in -the judgment of the court of common pleas to the prejudice of said plaintiff in error.

The requisition of the Governor of the State of Indiana on the Governor of Ohio was properly made under the laws of the United States, and the Governor of Ohio properly granted the request of the extradition of said Oraig. We find no defect in either the form or substance of the matters required under the statutes relating to extradition. Substantially a crime under the laws of Indiana was charged to have been committed by said Craig,'.and .that he had fled from justice in said state to the state of Ohio, and'upon the papers set forth in the bill of exceptions the Governor of Ohio was authorized to grant a warrant of extradition, and we presume this was done, although the record of the case does not disclose what-action was taken by the Governor of Ohio. We presume furthermore that the said Craig was held by virtue of said warrant although the record does not show this. It is sufficient to say that it does not appear from the record that there was error in the judgment of the court of common pleas in refusing to discharge .the prisoner on the evidence offered at the trial.


author: Per Curiam.

text:
    UNFAIR. COMPETITION BY AN UNLICENSED PHYSICIAN.
    Circuit Court of Erie County.
    Charles H. Merz v. H. L. Murchison.
    Decided, November, 1908.

      Physician and Surgeon — Unlicensed Practice and Unfair Competition —Section J¡Jf03c a Criminal Statute — Injunction Will not Lie Against an Unlicensed Practitioner — No Property Rights Conferred by a Physician’s License.

    1. The practice of medicine or surgery will not be enjoined merely because such practice is unskillful and patients may be injured rather than benefited thereby, or because the patients are deceived by false claims of skill.
    2. Section 4403c, Revised Statutes, prescribing who may practice medicine, is designed to protect the public, and notwithstanding some incidental benefits result to those having the necessary qualifications to practice, by excluding others not qualified, it is not intended to confer special privileges upon licensed practitioners for the protection of which as a property right they may invoke equitable aid to restrain unlawful competition by unlicensed practitioners.
    3. Injunction will not lie to prevent the practice of medicine by one having no legal certificate therefor, where the only ground urged for such relief is, the diminution of profits to one lawfully engaged, in such practice by reason of the unlawful competition,

      O. E. Harrison and 17. E. Guerin, for plaintiff.

      Williams & Steineman md John PwyA contra,
   Per Curiam.

Heard on appeal.

The plaintiff, a physician -and surgeon of the city of Sandusky, brought this action in the court of common pleas to enjoin alleged unlawful and unfair competition by the defendant. The ease is brought to this court by appeal. It presents an important and interesting question not heretofore, so far as we are apprised specifically considered or determined'in any court of this state or other jurisdiction. The defendant was engaged in the practice of what he denominates, not medicine or surgery, for which he conceded that he had no license under the medical examination and registration law of Ohio, but the “chiropractic” adjustment of displaced spinal vertebrae, with the result, as claimed, of effecting remarkable and speedy cure of numerous if not all bodily ailments.

The evidence before us discloses that the defendant is under indictment for alleged violation of the statute referred to (R. S., 4403c). With this matter, however, we are not concerned, but the fact that the acts of the defendant may be such as are forbidden by this penal enactment, may have an incidental bearing on the question of our power as a court of equity to prevent them.

There appears to be no serious- contention by counsel for plaintiff but that, his claim to the eqrdtable interposition of this court is based mainly, if not wholly, upon this statute. Without legal provisions for the examination .and licensing of -physicians and surgeons, one person would be as free as another to practice these professions without interference from the courts. True, there are in plaintiff’s petition .averments that the acts of defendant are fraudulent in intent as well as illegal under the statute, but little emphasis has been placed on this assertion in argument or support given to it by evidence. However unfounded may be defendant’s claims -as to .the merits of the “chiropractic” method of removing the cause of disease, and with regard to this we express no opinion, we are not convinced that he knows or believes such claims to be false. But were it otherwise, it is not apparent -that the position -of the plaintiff from a legal or equitable standpoint would be greatly strengthened. A court will not interfere with the practice of medicine or -surgery by one person on the petition of another, merely because such practice is unskillful .and patients may be injured rather than benefited there-' by, nor because the patients are deceived by false claims of skill.

The plaintiff relies rather on what he earnestly urges is a property right to practice medicine and surgery conferred on him by' his statutory license, and an interference with that property right by the unlawful competition of a person unlicensed.

Probably the statute rather qualifies rights heretofore existing than confers new ones. It is not apparent that the law could stand the test of the constitutional requirement that laws shall be for the equal benefit and protection of the people, if it had no object, purpose or effect other' than to nonfer special privileges upon certain people having certain qualifications to practice medicine, through excluding from such practice all others not so qualified. The constitutionality of the statute is based on the police powers of the Legislature, and whatever benefit is derived from the statute by those engaged in the practice of medicine and surgery is only incidental. The circle of competition may be narrowed by excluding unlicensed competitors, but that is not the purpose of the law. Palmer & Crawford v. Tingle, 55 O. S., 423, 440; State v. Gardner, 58 O. S., 599.

The statute, which is designed to protect the public, contains certain penal provisions enforcible in behalf of the .public. Can a private individual invoke it in his own behalf, and in a civil proceeding prevent the very acts which the statute fciakes criminal ?

We quote this language from an .opinion by Lord Mansfield, 2 Burrows, 803:

‘ ‘ The rule is certain, ‘ that where a- statute creates a new offense, by prohibiting and making unlawful anything that was lawful before, and appoints a specific remedy against such new offense (not antecedently unlawful) by .a particular sanction and particular method of proceeding, that particular method of pro. ceeding must be pursued and no other.’ ” •

This rule is followed and applied in Com’rs v. Bank of Findlay, 32 O. S., 194, 200, 201, and asserted in other phraseology in State, ex rel Reynolds, v. the Capital City Dairy Co., 62 O. S., 123-126.

We refer also to High on Injunctions, 4th Ed., Sections 20 and 769. In the latter section the author asserts that an injunction will be withheld against the perpetration of -an act prohibited by public statute, the only ground urged for the relief being the diminution of the profits of a trade or business pursued by complainant in common with others.

While no reported case precisely like the one under our consideration has been cited to us, the courts of New York and Texas 'have passed upon conditions and contentions very analogous and have refused the relief here sought. We refer to the cases of Smith et al v. Lockwood & Wood, 13 Barbour (N. Y.), 209, and York v. Yzaguairre (Texas), 71 S. W., 563.

The principles enunciated in those eases, so far as applicable to the ease before us, we are disposed to adopt. We have found no others so pertinent to our inquiry. ,,. ■

It is the judgment of the court that plaintiff’s petition be-dismissed.


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    LARCENY AND ROBBERY DISTINGUISHED.
    Circuit Court of Hamilton County.
    Prentice C. Tiller v. The State of Ohio.
    Decided, December 5, 1908.

      Criminal Law — Larceny Converted into Robbery by Pwsuit and a Struggle — Violence is Concomitant with the Talcing, When.

    T, -while examining rings in a jewelery store, under the pretense that he desired to purchase, seized the tray containing the rings and ran. He was followed by the clerk, and at the door of the store there was a struggle, with the result that T escaped with the tray. Held:

    That the pursuit by the clerk and the struggle at the door were concomitant or concurrent With the taking of the rings, and T was properly convicted of robbery as distinguished from larceny.

      Raymond RatUff for plaintiff in error.

      C. O. Rose, contra.

      Smith, J.; Swing, P. J., and G-iffbn, J., concur.
   At the April term of the Court of Common Pleas of Hamilton County, the plaintiff in error was tried upon two counts in the indictment, one charging the 'offense of robbery and the other grand larceny. The jury returned a verdict finding him not guilty of larceny, but guilty of robbery. A motion for a new trial was interposed, upon the overruling of which judgment was entered for the State, and .the prisoner sentenced to the penitentiary.

The sole ground of error urged is that the defendant below, if guilty at all, was guilty of larceny and not of robbery, as the prosecuting witness was not put -in fear, and the violence necessary to constitute the crime of robbery was not concomitant with, but subsequent to the taking of the property.

The circumstances of the taking -as detailed by the prosecuting witness shovúthat .while examining rings -in the store of Mich'ie Brothers, the plaintiff in error grabbed the tray containing them from the counter, placed it under his arm and ran to the door. The prosecuting witness immediately pursued him. The plaintiff in error succeeded in getting out of the door and proceedecl'.to close it when the prosecuting witness attempted to prevent this closing, and -after this struggle at the door the plaintiff in error escaped with the property.

The question is, does or not the evidence disclose that such violence was used as .the statute contemplates and is essential in the crime of-robbery?-

In Hanson v. The State, 43 O. S., 376, it was decided that the violence essential -to the crime of robbery must be concomitant-with the taking -of the property. In other words, accompany the taking — be concurrent with it. This, therefore, raises the question of fact whether the violence used was or was not in contemplation of law concomitant with the taking. Was the grabbing of the tr.ay, the pursuit through the store, the struggle to escape at the door a .part of the act by which the taking was effected? We think that they were. The taking of the property from the prosecuting witness or from his presence -and under his control'was not effected until these various -acts of violence were completed, for the reason that plaintiff in error did not succeed in his attempt to possess himself of the property until after all these acts of violence occurred.

In this respect ,the charge of the court correctly stated the law, and the judgment is affirmed.


text:
    ATTORNEYS’ FEES UNDER. AN ALLEGED CONTRACT.
    Circuit Court of Hamilton County.
    M. F. Galvin et al v. Julia B. Gaussen.
    Decided, December 5, 1908.

      Attorneys’ Fees — Alleged Contract for Services — Proof Fails to Establish Contract — Accord and Satisfaction — Ünprejudicial Errors.

    In an action for recovery for services by attorneys under a contract, there can be no recovery where the proof tends to show that no contract was entered into, and that the defendant sent to the plaintiffs a check for a substantial amount, having upon it “in full for all claims or demands for service rendered to date,” which check was endorsed and collected by the plaintiffs.

      J. D. Creed, for plaintiff in error.

      W. T. Porter, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.
   From an examination of the evidence and the entire record in this case, we are of opinion that the judgment of the court below should be affirmed.

As we view the case, it was an action to recover for services claimed to have been rendered by the plaintiffs in error and items of cash paid out by them for. the defendant in error under a certain contract between the parties. Defendant in error denied this contract and set up payment in full.

The evidence at the trial showed the amount claimed was disputed, and .a check was given by the defendant for a less amount than was claimed, the check having upon it “in full for all claims or demands for services rendered to date.”

The contentions of both sides were fairly left to the jury and we find no error committed by the court either in its general charge or in giving the special charge 'asked by the defendant or in refusing charge number three .asked, by the plaintiffs in error.

The other errors complained of by plaintiffs in error as to the court declining to notice alleged misconduct of attorney for the defendant in error, if there was such misconduct, and refusing to eliminate certain testimony offered in the ease relative to .the suit involving the constitutionality of the Harrison Avenue Yiaduct Act, if errors at all, we do not think were prejudicial.

The question was, what was the contract between the parties, if there was a contract, and, second, was the matter in dispute settled between them and payment made in full? '

We think the proof showed that the matters in dispute between .the parties had been settled and under the law the payment of the $300 bjr the defendant to the plaintiffs would discharge the defendant.

Judgment is affirmed.


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    ACTIONS ON CERTIFICATES OF FRATERNAL ORDERS.
    Circuit Court of Hamilton County.
    Grand Lodge of the Brotherhood of Railroad Trainmen v. Daly.
    Decided, December 19, 1908.

      Life Insurance — Mutual Benefit Societies — Exemptions—Weight of Evidence — Charge of Court — Error—Sections S6&5 and S6S1-1J/.

    1. In an action on a policy of life insurance, where the burden of proof is placed on the defendant fraternal order by the issues joined and also by Section 3625, relating to false answers in an application for insurance, the order will not be permitted after trial and verdict to claim the exemptions provided by Section 3631-14.
    2. Where the application for insurance is made a part of the contract both by its own terms and by the constitution of the order, it is reversible error to charge the jury that the contract of insurance is embodied in the constitution and the certificate.

      Hoffman, Bode & LeBlond, for plaintiff in error.

      Wm. Littleford and Henry G. Frost, contra.
    The defendant below recovered a judgment against the Grand Lodge for $1,350 on a policy of insurance on the life of the decedent. The principal defense set up was as to the truthfulness of answers made by the decedent at the time of his application for a policy. In the court below the judgment was against the Grand Lodge.
    Gifhen, J.; Swing, P. J., and Smith, J., concur.
   Upon the issues joined in this case the burden of proof rested upon the defendant in the original action, .and by its answer it also assumed the burden of .proving éach fact required by Section 3625, Revised Statutes..

After trial and verdict upon issues .thus tendered it can not claim exemption under Section 3631-14, Revised Statutes, and inasmuch as this court will not reverse* á judgment on the ground that it is against the weight of the evidence unless clearly so, it follows that Section 3625 and not 363Í-14, Revised Statutes, is the law of the case. All the facts enumerated in this section were clearly proved with reference to the following answers made by the deceased in his application for a benefit certificate:

1st. That he had not consulted-a physician during the last five years.

2d. That he was then in good health.

3d. That he had never been afflicted with syphilis.

4th. That he had no deceased brother or sister.

5th. That he took possibly three drinks of intoxicating liquor a week.

The judgment is therefore manifestly against the weight of the evidence.

The statement of a physician to bis patient in that relation that he is afflicted with a certain disease is advice within the meaning of Section 5241, Revised Statutes.

The court erred in charging the jury that the certificate and the constitution and by-laws constitute the contract, when the petition of plaintiff, the constitution and the application itself make the latter a part of the contract.

The special instructions requested by the defendant were based upon the rule stated in the case of Insurance Co. v. Pyle, 44 O. S., 19, which was abrogated by Section 3625, Revised Statutes. Life Ins. Co. v. Warren, 59 O. S., 345, at 353.

Many other errors are alleged but we find none that is prejudicial.

Judgment reversed and cause Remanded for a new trial.


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    COMMITMENT TO WORK HOUSE IN ANOTHER. COUNTY.
    Circuit Court of Ashland County.
    William Young v. The State of Ohio.
    Decided, November 11, 1908.

      Imprisonment — Authority of Constable to Take Prisoner to Work House of Another County — Fines and Costs — Provisions for, in Default of Payment — Habeas Corpus — Section 1536-318.

    1. A constable, in a county having no work house, but which has made terms, under Section 1536-378, Revised Statutes, with a city or district of another county having within its limits a work house, can not commit to such work house a prisoner found guilty of violating a state law, unless the sentence so provides, although the writ issued to the constable directs such confinement.
    2. It is the duty of a constable holding a writ of execution for the collection of a judgment for a fine and the costs of prosecution, rendered by a magistrate for the violation of a state law, hut which judgment makes no provision for imprisonment in case of default in the payment of said fine and costs, to take the body of the offender and commit him to the county jail, in case he fails to pay said fine and costs and. there is no property out of which to satisfy said judgment.
    3. Where, under such circumstances, a constable has taken possession of the body of the defendant, habeas corpus will not lie against the constable for the release of the defendant, at least until the constable has had a reasonable time in which to convey him to the county jail.

      E. E. Bell, for plaintiff in error.

      F. N. Patterson, contra.
    Craine, J.; Donahue, J., and Taggart, J., concur.
   William Young, the plaintiff in error, was arrested, convicted and sentenced by the mayor of Ashland for a violation of Sections 4364-20-a-6-c, • Revised Statutes. The sentence provided that Young should pay a fine and the costs of prosecution, but imprisonment was not made a part of the .punishment, -nor did the sentence provide for imprisonment in ease the defendant defaulted in the payment of the "fine and costs of prosecution. A writ of execution was issued by the mayor and placed in the hands of a constable, directing the constable to collect the amount of said fine and costs of prosecution and, in default thereof, commit the defend,pnt to the Columbus work house. The constable, being unable to find property of the defendant with which to satisfy his writ, took the body of the defendant and was about to commit him to the Columbus work house, when the defendant applied to the court of common pleas for a writ of habeas corpus, claiming that said constable unlawfully deprived him of his liberty. A writ of habeas corpus was issued by the court of common pleas, but upon a final hearing of the case, the court of common pleas dismissed 'the petition and remanded Young to the custody of the constable. From the judgment of the court of' common pleas error has been prosecuted to this court, asking this court to reverse-the judgment of the court of common pleas. The eentention of plaintiff in error is, that there being no provision for imprisonment mentioned in the sentence, either as a part of the punishment or as a means of colleSting the fine and costs, the constable had no right to take the body of Young and commit'him to the Columbus work house or any other prison, but that the sentence stood like a judgment in a civil ease, and that if Young did not have property sufficient to satisfy the fine and costs, that ended the matter.

Section 1536-378, Revised Statutes, provides:

“That a city or district having within its limits, a work house, may receive as inmates of such work house persons sentenced thereto as provided by law, from counties other than the one in which such work house is situated.”

It does not appear from the record whether or not the county of Ashland had made any provision for sending inmates to the Columbus work house, but assuming that Ashland county had such arrangements with the authorities of the Columbus work house, we are of the opinion that Young could not be committed to this work house, unless the sentence of the court so provided, as the language of the statute is:

# * * “may receive as inmates of such work house persons sentenced thereto as provided by law.”

If Young were in the possession of the work house authorities, we would be inclined to hold, that such confinement, under the circumstances, would be illegal and that he be released by habeas corpus, but Young never having been admitted to the Columbus work house, a writ of habeas corpus would not lie, simply because the officer threatened to send him there.

The remaining question is as to whether or not the constable has a right to the custody of Young. Section, 7327, Revised Statutes, reads as follows:

“When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged. ’ ’

This section of the statute provides that the magistrate may order the person confined in the county jail, but we apprehend that such order should be made a part of the sentence.

Section 7328, Revised Statutes, we think, is decisive of the duties of the constable under the circumstances and reads as follows:

“When a magistrate or court renders judgment for a fine, an execution may issue for the same, and the costs of prosecution, to be levied on the property, or, in default thereof, upon the body of the defendant; and the officer holding such writ may arrest the offender in any county, and commit him to the jail of the county in which the writ issued, there to remain until the fine and costs are paid, or secured to be paid, or he is otherwise discharged according to law.”

As I have said, in this case there was no provision made in the sentence for any imprisonment, but when the magistrate issued the writ of execution he provided in it that in default of property out of which to satisfy the fine and costs, the constable should commit Young to the Columbus work house. We do not think that under this writ the constable had any right to commit Young to the Columbus work house, but it was his duty to ignore that part of the writ which provides for commitment to the Columbus work house and proceed under Section 7328, Revised Statutes, which provides that in default of property he shall commit the body of the defendant to the county jail. The constable had not committed Young to the county jail, but he certainly had a reasonable time in which to do so.

Section 5729, Revised Statutes, which is a part of the habeas corpus ’act, provides:

“If it appear that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; etc.”

There is no doubt but what the magistrate had a right to render the judgment and likewise had the right to issue the writ of execution for the collection of the .judgment and costs, and the fact that he ordered Young to be committed to the Columbus work house in default of the payment of the judgment and costs, would not, in our judgment, render the. writ nugatory, except as to the commitment part.

In the 78th O. S., 24, a party was sentenced to pay a fine and the costs of prosecution. 'Afterwards the mayor issued a mittimus, commanding the person to be committed to the county jail until the fine and costs were paid, without including the words “or secured to be paid,” as provided by Section 1536-793 of the Revised Statutes. Habeas corpus was brought and a writ issued. The trial judge gave the state leave to amend the writ, so as to include the omitted words. This being done, the court remanded the prisoner to the custody of the marshal, and the Supreme Court held there was no error in so doing.

We think.the court of common pleas was right in dismissing the petition of the plaintiff in error and in remanding the body of Young to the custody of the constable, and we also think that it is the duty, of the constable to commit Young to the county jail in pursuance of Section 7328, Revised Statutes, and being of this opinion we affirm the judgment of the court of common pleas. We would suggest, however, that the constable obtain a new writ of execution from the magistrate, providing for imprisonment in the county jail, in default of the payment of said fine and costs and in default of property of Young out of which to satisfy said writ.


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    FAILURE OF CONSIDERATION FOR. WIFE’S RELEASE OF INTEREST IN LAND.
    Circuit Court of Hamilton County.
    Kate Klein v. Ellis B. Gregg, Guardian, et al.
    Decided, December 5, 1908.

      Husband and Wife — Release by Wife of Her Interest in Lands — Consideration Wholly Fails — •Action to Set Deeds Aside — Pleading— Presumption — Fraudulent Representation — Mistake.
    The allegation that the consideration upon which a wife released her rights in her husband’s property have wholly failed, and if the deeds are permitted to stand she will receive no part of the consideration which it was intended both by her husband and herself that she should receive, is not ground for setting the deeds aside, in the absence of the allegation that the consideration was wholly inadequate at the time the deeds were executed.

      W. A. Hieles, for plaintiff.

      E. B. Gregg, contra.
    Gieeen, J.; Swing, P. J., and Smith, J., concur.
   The failure of the plan or design of David Klein in executing and delivering the deeds in question to provide a home and support for his wife and. children -after his death is no legal ground for setting aside such deeds¡ unless such plan or design was disclosed to the plaintiff .and induced her to part with her interest in ¡the property. The statement that “she would be taken care of and be amply provided for under said deeds” is not a representation of an existing fact; nor of the legal effect of such deeds, but a mere opinion of her future wants as well as those of the -children, and the sufficiency of the means pror vided. Ii-er real complaint is, not that the property conveyed is insufficient of itself to provide a home and support for herself and his children, but that they do not receive what the deeds purport to convey, to-wit, a clear and unincumbered -title. One conveyance is made subject expressly to a mortgage of $3,000, and .there .is no allegation in the second amended petition that he promised or represented to her that he would pay or cause -to be paid such mortgage.

The -other conveyance -contained a covenant of warranty that the property is clear and unincumbered, .and plaintiff -avers that her husband represented to'her at the -time the deed was executed that the $2,500 mortgage was satisfied and no longer a lien on said property, whereas in fact it w.as unsatisfied of record; but she nowhere avers- that such representations were relied upon by her. Insurance Co. v. Reed, 33 O. S., 283.

There is no pretense -that .the misrepresentation was intentionally made, and if it be treated as a mistake there is no averment that it was mutual.

While the pleading contains the averment that “the consideration upon which she released her rights in said -property has wholly failed, and if said deeds are permitted to stand she will receive no part of the consideration upon which such release was founded and intended for her by her husband,” yet there is no averment that the consideration was wholly inadequate at the time -the deed was executed, September I9th, 1901. The presumption would rather be that it was adequate, else she would have begun her action long ago.

Her right of .action depends not upon .the failure to receive what her husband intended she should receive, although not expressed in the deed, but upon fraud, mistake -or undue influence

There was no intentional -misrepresentation of fact, nor undue influence, -and the only apparent ground for rescission is mis» take, which, to be available, must be mutual. If the facts .warrant, the plaintiff may amend accordingly.

Demurrer sustained.


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    CONSTITUTIONALITY OF ACT LIMITING HOURS OF LABOR. OF GIRLS IN FACTORIES.
    Circuit Court of Cuyahoga County.
    J. W. Bolton v. The State of Ohio.
    Decided, January, 1909.
    That provision of the act of February 28, 1908 (99 O. L., 30), which makes it an offense to permit girls under eighteen years of age to work more than eight hours in one day in factories, etc!, is constitutional.

      Hoyt, Dusiin & Kelley, for plaintiff in error.

      Charles P. Kim, contra.
    Winch, J.; Henry,- J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   Plaintiff in error was convicted of employing a girl under eighteen years, of age and permitting her to work more than eight hours in one day in the factory of which he was superintendent, contrary to the provisions of the act of February 28, 1908 (99 O. L., 30).

In this court it is claimed that the provision of the law referred to, under which plaintiff in error -was convicted, is unconstitutional.

We find nothing upon which to base this claim. The state has plenary power to legislate regarding minors, as wards of the state; they have only such right to contract as the state awards them.

That the provision of the law referred to is a reasonable exercise' of the police power of the state is apparent, if it be viewed in its bearing upon the health of immature girls who are to be the future mothers of our citizens. The judgment of the Legislature in -this matter is not to be set aside by the courts.

Judgment affirmed.'


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    PROSECUTION FOR. SUFFERING A GAME OF CHANCE ' ON THE PREMISES.
    Circuit Court of Hamilton County.
    Harry Enderes v. State of Ohio.
    Decided, November 14, 1908.

      Criminal Law — Failure to Lay the True Venue — In Prosecution for Sujering Game of Chance on the Premises — Section 69SS.

    A conviction for suffering a game of chance on the premises must be reversed, where the affidavit merely charges that the offense was committed within four miles of the city of Cincinnati and county of Hamilton, but there is no averment and no proof that the offense occurred “within” the county of Hamilton and state of Ohio.

      M. G. Lyhins, for plaintiff in error.

      John M. Thomas, for the state.
    The plaintiff in error was tried in the police court-of the city of Cincinnati, Hamilton county, Ohio, on the charge of suffering a game.of chance on the premises. The alleged offense was committed on the Island Queen, an Ohio river steamer, lying at “Coney Island,” a pleasure resort on the Ohio side of the river, near Cincinnati. The affidavit was as follows:
    “ H. T. Harrison, being first duly cautioned and sworn, deposes and saith that one Harry Enderes, on or about the 29th day of August, 1906, within four miles of the corporate limits of the city and county aforesaid, did unlawfully suffer a certain game of chance, the name of which is to the affiant unknown, to be played for gain, to-wit, for money, to-wit, for the sum of five cents, by means of a certain gaming device and machine, to-wit, a ‘ nickel slot machine, ’ by one Louis Wien, in a certain erection, to-wit, an apartment upon the main deck of’the steamer Island Queen, the said apartment being then and there in the care of him, the said Harry Enderes.”
    Enderes was found guilty in the police court, and the court of common pleas affiraned the judgment. Error was thereupon prosecuted to the circuit court, where the judgment was re* yersed in the ^joined niemowndum opinion;

      Giffen, J.; Swing, P. J., and Smith, J., concur.
   It is not charged .in the affidavit that the offense ivas committed at the city of Cincinnati and county of Hamilton, but “within four miles of the corporate limits of the city and county aforesaid. ” Under this averment it may have been in the state of Kentucky. It is admitted in the record that Coney Island is within four miles of the city of Cincinnati, but there is no proof that it is within the county of Hamilton and state of Ohio.

Judgment reversed.