text:
    DISREGARD BY SERVANT OF WARNING OF DANGER..
    Circuit Court of Hamilton County.
    Iliff et al v. Cavey, Administratrix.
    Decided, May 23, 1908.

      Negligence — Master and Servant — Assumed Risk — Error in Overruling Motion to Take Case from the Jury.

    Where a master orders a servant away from the place where he is at work, and gives as the reason therefor that he is afraid a wall will fall on him, and the servant disregards .the order and continues his work without changing his position, and the wall falls and he is killed, an action for damages against the master because of his death should be taken from the jury on the ground that the risk was assumed.

      Keam & I£eam, for plaintiff in error.

      Thos. L. Michie and W. W. Symmes, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The negligence charged in the petition is the failure of the defendants to furnish the plaintiff’s intestate a safe place to work; that the defendants knew and plaintiff’s intestate did not know the dangerous condition of the brick wall which after-wards fell upon and killed him.

The undisputed facts disclosed by the record are that about fifteen or twenty minutes before -the accident occurred .one of the defendants discovered the dangerous condition of the brick wall near which the workmen, including plaintiff’s intestate, were engaged; that he so informed them and ordered them ,awav to a safe place; -that two of the workmen — the deceased and one Bradley — disobeyed the order, the latter willfully and the former apparently so; that the deceased in the full possession of his sense of hearing must have heard the order, and had abundant time and opportunity to obey the same.

It is clear therefore, that the deceased with full knowledge of the danger, and against the order of. one of the defendants, voluntarily assumed the risk, and the court erred in overruling tbe motion of tbe defendants at tbe conclusion of the evidence to arrest the case from the jury.

It necessarily follows that the judgment must be reversed, and judgment rendered for the plaintiffs in error. Davis v. Somers-Cambridge Co., 75 O. S., 215.


source: Caselaw Access Project

license: Public Domain

text:
    SALE OF TREASURY STOCK TO DIRECTORS.
    Circuit Court of Hamilton County.
    Edward C. Hall v. William H. Hall et al.
    Decided, March, 1908.

      Corporations — Rights of Stockholders with Reference to New Issue of Stock — Waiver—Stock of the.New Issue Becomes Treasury Stock, When — Sale of Treasury Stock Otherwise than in the Open Market —Combinations of Stockholders to Control — Cumulative Voting.

    1. Where full opportunity was given stockholders to take their pro rata share of. a new issue of stock and they failed to do so, they Will be deemed to have waived their right thereto, and purchasers from them four years later of their stock of the original issue acquire no rights thereby in the new issue, but such new stock remaining untaken becomes treasury stock, which may be legally sold by the board of directors.
    2. In the absence of fraud or other illegal action, complaint will not' lie because of the obtaining of control of a corporation by a combination of stockholders or by cumulative voting; nor will a sale of treasury stock in furtherance of such a design be set aside by a court, where made in the presence of all the parties and by the proper officers, and in the absence of any claim that the stock would have sold for more in the open market or that it would bring more at a re-sale.

      Albert Bettinger, for plaintiff.

      Wm. L. Dickson, for Wm. H. Hall, Chloa Hall Kemper, Fred S. Kemper.

      W. C. Cochran, for' the Hall’s Safe Company.
    Gieeen, J.; Swing, J., and Smith, J., concur.
   The plaintiff seeks to set aside the sale of fifty-four shares of the capital stock of the defendant corporation, the Hall’s Safe Company, to the defendant, Chloa H. Kemper, upon the ground that these shares being part of an increase of capital stock should have been apportioned ratably to the holders, including the plaintiff, of the original stock of the company, and that any sale thereof without the consent of the stockholders was illegal and void.

The testimony shows that plaintiff received more than his proportion of such increase, when based upon the number of original shares held by him at the time of the increase, and that those stockholders who did not receive their full quota, having every opportunity to do so, waived their right thereto.

A. Acton Hall and Mr. and Mrs. Clark, as original stockholders, declined to take any of the increase, and when' four years later they transferred the stock to the plaintiff the- right which they had surrendered did not survive as an incident to the stock, and could not be rightfully asserted by him.

The fifty-four shares, therefore, became treasury stock, which could be legally sold by the board of directors.

The control of the board of directors and the sale of the stock was effected -by cumulative voting and by the defendant stockholders combining against the plaintiff, which in the absence of fraud or other illegal element are binding upon him. Thé stock was_ sold at a regular meeting of the board of directors, at which plaintiff was present and stated -that he would give $250 per share; but a written proposal from the defendant, Chloa IT. Kemper, to purchase at $300 per share was accepted and the sale made.

It is not claimed that the stock is worth more, nor that the company will be benefited by a resale; but the whole controversy arises from a determination on the part of plaintiff to retain a majority of the stock, and thereby the control of the company, and a like determination on the part of the defendant stockholders to secure such control; and having decided that the plaintiff as an original stockholder is not entitled to any of the fifty-four shares, the court will not interfere and set aside a sale which although not made in the open market yet was in the presence of all^the parties by the proper officers and not illegal.

The petition will be dismissed.


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    LOSS OF A LEASE IN ITS REFORMATION.
    Circuit Court of Fairfield County.
    Louis W. Marks v. Rushville Gas & Oil Co.
    Decided, September 18, 1908.

      Lease — Agreement to Reform — Record of Cancellation on Margin— Failure to Record New Lease — Property Re-leased to a Third Party — Knowledge—Possession—Infunction—'Section J/llHa.

    1. Where at the request of an owner of land an oil and gas company holding a lease of the land consents that the lease shall be reformed, and by agreement this is done by cancelling the old lease and executing a new one, but the lessee fails to have the new lease recorded, and the owner of the land subsequently re-leases it to a third party, the company holding the first lease will not be heard to claim that the cancellation of its lease was without effect because its president in signing the cancellation acted on the belief that the cancellation would not be effective until the new lease was recorded.
    2. The fact that the company had drilled within certain territorial limits of the tract described in the lease but not on the leasee^ land does not constitute such actual and. open possession of the land as to give effect to the unrecorded lease under the provisions of Section 4112a.
    3. Where a lease provides by its terms that it may be surrendered by the parties, 'the endorsement thereon of its cancellation and surrender, whether such endorsement is entitled to record on the margin of the lease record' or not, constitutes a legal surrender and cancellation and surrender of the lease, notwithstanding the statutory provision that any interest in land must be granted by an instrument duly executed, acknowledged and attested by witnesses.
    4. A lease for oil or gas has no force or validity except'between the parties until the same is filed for record in the recorder’s office of the county in which the leased land is situated, and a subsequent lessee with knowledge, whose lease is recorded, is entitled to hold the premises as against all persons claiming under the prior unrecorded lease.
    O. W. McCleery, F. M. Acton and M. A. Daugherty, for plaintiff.

      C. D. Martin, A. W. Mithoff and F. S. Monnett, contra.

      Donahue, J.; Taggart, J., and Craine, J., concur.
   This ease comes into this court on appeal and is an action brought by the plaintiff, Marks, to enjoin the Rushville Gas & Oil Company from interfering with his possession of thirty-two acres of land described in Ms petition, and from drilling thereon for oil or gas, he claiming to be the owner of the right by grant from Coplin, the owner of the land. The Rushville Gas & Oil Company answers that petition, averring that Marks is not the owner of any right in said property, but that the Rushville Gas & Oil Company is the owner of a valid lease duly executed and acknowledged by Coplin, who it is admitted was the owner of the property in fee simple, dated the 22d of June, 1906, and recorded March 11, 1907, long prior -to the execution of this plaintiff’s lea.se, and that the same was never surrendered or canceled, but that a pretended cancellation was obtained by fraud and placed on record, and that notwithstanding this they are the owners of the same. That is denied by the reply, and upon the trial of this case in this court leave was taken .to make other parties defendants, who were jointly interested with plaintiff in this case claiming that Marks was only holding as trustee for himself and others who were jointly interested with him .in the lease, and who participated in the taking of the same from Coplin, and that the lease was fraudulently obtained, and that these other parties entered into a guaranty to protect Coplin against any damages that he might suffer by reason of any suit being brought .against him by the defendant for any violation of the terms of his lease to it. To this amendment to answer and cross-petition of the defendant there is a general denial filed.

The lease to Marks is dated April 8th, 1908, and was recorded April 9th, 1908. This action was commenced April 11, 1908, to enjoin the Rushville Gas & Oil Company.

The lease under which the Rushville Gas & Oil Company claims was dated the 22d day of June, 1906, and recorded March 11, 1907. What is claimed to be a surrender and cancellation is dated February 29, 1908, and was entered on the margin of the record of the lease in the recorder’s office on March 17,1908. The evidence shows its physical delivery on the 2d of March, 1908. It also appears that contemporaneously with the surrender of this lease of June 22d, 1906, a new lease was executed by Mr. Coplin to the Rushville Gas & Oil Company. That lease was never placed on record. The reason for this change of lease was the fact that in the original lease a cemetery lot was included by mutual mistake, when it was not intended by either party to be included. Mr. Coplin applied to the directors to have a change and reformation of that lease and it was agreed that might be done. At the meeting at which that was done, the evidence informs us that a suggestion was made by the attorney of the defendant company, who was also the secretary of the company, that the lease could be reformed by canceling it, and a new lease executed, and it is apparently the uncontradicted evidence that that was the method acceptable to all parties concerned. It is not important to this court whether that was the best method; it was one method that would work a reformation, and it seemed to be the understanding of all parties — the directors of the company, Coplin and the attorney of the company — that it would be done in this way at the time the reformation was agreed upon. There is some discrepancy in the testimony- as to how that was to be accomplished — in regard to^the surrender of the -old lease and the delivery of the new lease. It is insisted that the intention was that the old lease should be surrendered with a cancellation on •the back thereof, after the new lease was consummated; or some of -the witnesses say the motion originally put was, after the new lease was recorded; that is, that the motion was proposed in that language, and put by the president of the company to the directors ‘ ‘ after the new lease should be consummated. ’ ’

It is now claimed by the Rushville Gas & Oil Company that this secretary and the “plaintiff, Marks, and others,” is the language of the cross-petition, entered into a fraudulent conspiracy with the intent and purpose of working a fraud upon this company and depriving it of its rights in this property and secured by fraud the signature of the president to this cancellation. It would seem unnecessary for this court to say that that allegation of the cross-petition is not sustained by a single syllable of evidence in this case, The evidence is uncontradicted that Marks and the other gentlemen identified in interest with him had nothing whatever to do with this lease, until the day the contract of lease was entered into with them — April 8th, 1908. There is no evidence of any kind or character that points to a conspiracy between the secretary of this company and Marks and the other persons made parties by this amendment to answer and cross-petition. In fact, when they knew the condition of this lease, all had been done that was contemplated to be done under the arrangement made at the meeting of the directors at the time they kindly consented that the reformation might be made. There is no showing that the secretary acted in bad faith. lie might have exercised bad judgment in this matter. There might have been carelessness connected with the performance of his duties, or with the performance of the duties of the president, but there is nothing to show that either of them acted fraudulently, or that Mr. Kerr’s signature was obtained by fraud in that transaction, or that any fraud entered into the negotiations, or into the mind of the secretary, or any one charged with the duty of reforming this lease.

It is true that there is some evidence that, when this lease was offered to Mr. Kerr for his signature; it was simply shoved over to him with the statement, “here is another paper for you to sign,” and he signed it. That is no excuse for Mr. Kerr. lie was charged with the duty of guarding and defending the interests of this company. He can read and write. He is a man learned' in the sciences and learned in the law, a man who knew that he would be held to answer for his acts and that he could not negligently and carelessly put his signature to any paper and say, ‘ ‘ I did not know what I was doing. ’ ’ Courts of equity are organized to protect the weak and ignorant, who are swindled by the machinations of others, because of their inability to protect themselves, but a man who is clothed with reason and charged with responsibility, when he signs his name to a paper, courts will hold that he contemplated the effect of the paper and -the consequences thereof. That act was the voluntary act of Mr. Kerr; he was not under duress and it was not procured by fraudulent misrepresentation of .any kind or character. If he did not understand' it, the secretary did, and we hold he was acting in good faith. We might say that it is an unfortunate thing that through later manipulation these men are called on to suffer a loss by reason of a disposition to do a kindness to Mr. Coplin.

The alleged cancellation on the back of the lease is as follows:

“Rushville, Ohio, Feb. 29, 1908.
“In consideration of one dollar and other considerations, the within lease is hereby canceled and surrendered and not binding on either party.
' ‘ The Rushville Gas & Oil Company,
“By R. W. Kerr, Pres.”

What is the effect, of that cancellation and surrender of this lease? What is -the effect of the new lease w-hieh is made and unrecorded ?

If a court of equity were to pay no attention to statutory'law, it would not take thisrcourt long to declare that transaction did not deprive this company of its interest in its lease, and that they are still the owners of the same, and are entitled to all the rights of a lessee in the property; but equity must follow the law. One of the maxims of equity is that 'equity must follow the law' and it is not for this court to pretend to more wisdom than the Legislature of the state; it is our duty to apply the law as we find it, for the public conscience .is reflected in the statutory law of the state, just as much as in the principles of equity. [Here the court read Section 4112a, Revised Statutes of Ohio, also the paragraph of the syllabus relating to this section, 59 O. S., 420].

There is some claim made that this defendant company was in actual possession of the land, because it had drilled within certain territorial limits named in the lease but not on the lease itself. We think that was not an actual possession, not an open, notorious and adverse possession.

When a man is in possession of another’s farm, exercising authority over i.t, doing that which without grant or license he would have no right to do, any person buying or leasing that land takes it with whatever rights the person in possession has— whatever they may determine to be. This defendant not being in open possession of the land, this court can not say that it is within .the .provisions of this section. Its unrecorded lease is .absolutely a nullity for all purposes and the evidence touching knowledge of that lease is not important.

That being true the sole question remaining is whether this case in fact was a cancellation. Was there a surrender of the original lease? The statute authorizes the recording of this cancellation on the margin of the lease. Counsel have argued with a good deal of vigor and have cited quite a number of authorities to the effect that there is no provision made for the cancellation of a lease in this way, and that the statutory provision is that any interest in land must be granted in certain ways • — that is to say it' must be duly executed, acknowledged and attested by witnesses. But turning to -this particular lease we find that if has within its terms a provision for its cancellation and surrender, which is as follows:

“It is agreed that the second party, its successors and assigns shall have the right at any time to surrender up this lease and be released from all moneys due and conditions unfulfilled, then and from that time this lease and agreement shall be null and void and no longer binding on either party and the payments which have been made, be held by the party of the first part as the full stipulated damages for the non-fulfillment of the foregoing contract, that all conditions between the parties hereunto shall extend to their heirs, executors, administrators, successors and assigns, which is fully understood and agreed to by party of the first part.”

. This lease in terms provides that it may be surrendered by the parties. We think that this indorsement upon it expresses a cancellation or surrender, and whether it is entitled to record upon the margin of the lease record or not, certainly it carries with it the effect of a surrender and cancellation that would prevent and estop'either party from bringing an action upon it. Suppose' that all had been done to protect the rights of this company required by law, and that instead of neglecting to file the lease that was given in exchange for this, that on the next day after its execution it liad been recorded in tbe recorder’s office of' this county, and some dispute arose between Coplin and tbe Rush-ville Company, under the terms- of that paper, would not the rights of -the Rushville Company be determined under the new lease taken and recorded in the place of the old one? The fact that they failed to record this could not change the result of this lawsuit. The same law would apply except as to the right of the parties taking a lease afterwards and recording it first.

We have already said that up to the time of the cancellation or making of .the new lease that we think no fraud entered into the mind of anybody. Suppose that Coplin had such a notion in his mind; it was hardly possible, he had, because he would suppose that the Rushville Company would attend to its business. After he talked to Shaeffer the -idea grew upon him; the first time that he knew .that he had a right-to re-lease it and that a new lease would take precedence1 oveivthe prior unrecorded lease, was the day he actually re-leased it. Whatever was done by his counsel can not have a retroactive effect; it can not reach back to the day when everybody to this lease agreed to reform it.

So that we must measure that contract by what transpired then; and we must measure this new lease by what occurred upon that day it was executed. It is not the business of this court to say what these men should have done morally. That is not our affair. We have filled our mission when we have determined the law of this case, and it is our duty to apply the law .as it is written and as the Supreme Court of Ohio has expounded it. With this statute and adjudication before us, the truth is that evidence touching knowledge is not important. The only questions are: Was this cancellation obtained by fraud? If it is not obtained by fraud, what effect as a legal proposition is to be given this lease to Marks? We think there is.absolutely no fraud proven at the time .this cancellation was made, and the first lease to the Rushville Company was surrendered to Coplin and a new lease executed and delivered. ■ There was no intent on the part of anybody to wrong the company, at least not on the part of its officers. With Coplin it must deal at arm’s length; if through courtesy, kindness and consideration it .correct a mistake in his lease and neglect to protect itself — that is no defense here. With their own agents,- attorneys and officers, they are not supposed to deal at arm’s length. If we found that the officers of this company had entered into a fraudulent conspiracy with Marks and others, it would be not only our duty but our pleasure to declare the .cancellation void. But we find no evidence to warrant such conclusion; we think the cancellation was in good faith with proper motives and proper purposes. After that cancellation .and surrender of the old lease and the execution of the. new lease, that new lease then became the muniment of title of the Rushville Gas & Oil Company, and it can not protect the company, because it was unrecorded.

Therefor^ we conclude that the injunction should be made perpetual, tbe answer and cross-petition with amendment thereto will be dismissed with costs, motion for a new trial may be filed and will be overruled, and exceptions noted on behalf of defendant, statutory time for filing bill of exceptions, and twenty days for finding of fact.


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    SUFFICIENCY OF NOTICE OF STREET ASSESSMENT.
    Circuit Court of Hamilton County.
    Johnson v. City of Cincinnati.
    Decided, May 23, 1908.

      Assessments — Streets Notice of Proposed Improvement — Sale for Taxes —Confirmation—Life Estate — Title—Sections 15S6S1B and 326S.

    The owner of a life estate was served with notice of a proposed street improvement thirty days after the property was sold for taxes and two days before confirmation of the sale. Held:

    That on the day notice was served the life tenant was the owner of the life estate, and as such was the proper person to be served, and the assessment thereafter levied was not rendered invalid' for want of sufficient notice.

      William F. Chambers, for plaintiff.

      Charles F. Hornberger, Assistant Solicitor, contra.
    Swing, P. J.; G-iffen, J., and Smith, J., concur.
   This is an action in this court on appeal from the court of insolvency. The plaintiffs seek to enjoin the collection of an assessment for a street improvement on Linwood avenue. The ground relied on is that there was not a proper notice given. The property in question belonged to one Kennedy, who died intestate, giving a life .estate to Anna E. Kennedy and the remainder to Louis B. and Nellie Kennedy. The estate of Louis B. and Nellie Kennedy was purchased by the plaintiffs at judicial sale. The property became delinquent for taxes and was forfeited to the stáíe. Thereupon the treasurer of the county brought an action to sell the property to pay the taxes, and said property under said proceedings was sold to the plaintiffs by the sheriff on March 4, 1905. This sale .was confirmed by the court on April 6, 1905. Two days prior to the confirmation of this sale, to-wit, on April 4,. 1905, the notice of the improvement as required by the statute was served on Anna E. Kennedy, the life tenant.

Was this a good service under the statute? We think it was. Section 2268, Revised Statutes, says that special assessments shall be payable by the tenant for life. Evidently the life tenant is the proper person to be served with the notice for the improvement required, for the life tenant is the one charged with its payment.

Section 1536-212 (M. C., Section 52), Revised Statutes, should be read in connection with Section 2268, Revised Statutes, and requires service of notice on the life tenant.- It is claimed, however, that when the sale was confirmed, by the court and the sheriff’s deed made that the title of the purchaser reverts to the time of the sale. This is a settled principle of the law and is thus stated in the syllabus in the case in 59 O. S., 540:

“A deed for real estate, executed by an officer of a court pursuant to its order confirming a judicial sale previously made. takes effect by relation on the day of the sale and vests in the purchaser the right to ‘intermediate rents.’ ”

The court say in its opinion:

“The equity of the rule is manifest, because the purchaser can not escape from the sale because he may think it disadvantageous to him, and he is required to pay interest from the day of the sale on so much of the purchase -price as he has not actually paid. That the right to the intermediate .rents passes to the purchaser as one of the results of confirmation has been held in numerous cases.”

This is a fiction of the law founded in equity, and is for the protection of the purchaser, and goes no further. It 'does not mean that the purchaser was the owner before the confirmation of the sale.

In the opinion of the court in Reed v. Radigan, 42 O. S., 294, the court say:
‘‘It will be found upon an examination of the authorities that in states where a confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation * * * is refused the right of the purchaser falls to the ground.”

It seems evident therefore that on April 4, 1905, the time when Arma. E. Kennedy was served with the statutory notice she was the owner of the life estate in-the property; that she continued to be the owner until April 6, 1905, when the court confirmed the sale, and under the statutes she was the proper person to serve and the assessment is not invalid for want of sufficient notice.


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    ASSESSMENT FOR. TOWNSHIP DITCH IN EXCESS OF BENEFITS.
    Circuit Court of Fairfield County.
    Benoni Stemen v. Baker G. Hizey et al.
    Decided, September 18, 1908.

      Ditches — Injunction Lies against Assessment by Township Trustees, When — Appeal—Error—Sections Jf533, 4539, 4560 and 4401.

    1. There is no provision for an appeal by a property owner who complains that the assessment which has been levied on his land for the improvement of a township ditch is unjust and unreasonable in that it is grossly in excess of the benefits which he will receive from the improvement.
    2. Nor will error lie in such a case, inasmuch as there is no provision for a bill of exceptions, ahd even if the transcript of the record of the township trustees were brought up, it would be of no assistance in determining the question whether the assessment exceeds the benefits.
    3. But where the complaining owner alleges that the assessment laid upon his land is grossly in excess of the benefits conferred, injunction will lie notwithstanding it is directed against thd action of a judicial board, and in such a case a court of equity 'may do justice even though no error is found in the proceedings.
    W. E. Lane and C. O. Beals, for plaintiff.

      C. W. McGleery, contra.
    Craine, J.; Donahue, J., and Taggart, J., concur.
   Benoni Stemen vs Baker G. Hizey et al is an action brought in this court by appeal from the court of common pleas and the questions presented to this court are raised by a motion to strike out certain matters from the petition; and also a demurrer is filed, and we think the demurrer reaches the questions in this case. The demurrer reads as follows:

“Now come the defendants, trustees, and demur to the petition for the following reasons:
“1st. That the court has no jurisdiction of the subject of the action.
“2d. That the petition does not state facts sufficient to constitute a cause of action.
“3d. It appears from the petition that the plaintiff has an adequate remedy at law.”

Briefly stated the history of this case is as follows:

The trustees of Violet township, Fairfield county, Ohio, on petition of certain property owners, passed a resolution for the construction of a township tile ditch. In the construction of that ditch they assessed a portion of the expense upon this plaintiff. The plaintiff claims that this amount so assessed upon him was unreasonable and unjust and that he should not be compelled to pay any part of it, for the reason that he received no benefit from the tiling of the ditch; and he brought an action in the court of common pleas -to enjoin the collection of that assessment upon him so made by the trustees. The defendant filed a motion asking to have certain matters in the petition stricken out, and while that motion was pending the plaintiff filed a motion to strike off that motion, which the court sustained. Thereupon a demurrer was filed to the petition, which was overruled by the court of common pleas and a judgment was taken on the petition and evidence of the plaintiff below, without any controversy on the part of the defendant, and the case was brought into this court, and the demurrer is up for hearing here. The contention of the defendant is this: that a court of equity can not attack by injunction the judgment of a judicial board; that if the plaintiff has any remedy at all, it is by appeal or error. With that contention of the defendant, we are in accord, if there is a provision for error or appeal.

The question presented then is this: Could this plaintiff appeal or could he prosecute error from the judgment of the trustees of Violet township in assessing him for the construction of this ditch, when he received no benefit from it? We are cited to certain sections of the statutes.

The court then read from Section 4533, as follows:

“Any person interested in the location of such ditch, or in the amount of compensation and damages determined upon by the trustees, may take an appeal from the proceedings of the trustees to the probate court of the county. ”

Then when the appeal has been taken, the probate court uncler Section 4536 shall examine the same and determine whether the preliminary steps for the appeal have been taken properly. If it finds that the steps have been taken properly, the matter is submitted to a jury and Section 4539 provides what the jury may find. [Here the court read Section 4539.]

It will be noticed from the section just read, an appeal may be taken from three questions enumerated in the section; but whether or not this plaintiff has been assessed an amount exceeding the benefits derived from it, is not one of the questions that may be appealed from. So that no appeal lies from the question in this lawsuit.

The next question is: Does error lie? Appeal does not lie, but counsel for defendant claims that error lies thereto. [The court here read Section 6708.]

Here was a board of -township trustees that was exercising judicial functions, and under* the section of the statutes their proceedings may be reversed, vacated -or modified by the court of common pleas. We think that is where the error appears upon the record of that board. If an error appears upon the records of the board that would be upon the minutes of the township clerk. We suppose that a transcript of that record might be brought up, and the -court might review it, but the question whether or not the -amount assessed against the plaintiff was just or unjust, or whether he received full value, is a matter that we insist can not appear upon that record. There is- no provision for a bill of exceptions, and how could that question be raised in the court of common pleas on error under this particular statute?

We -are also cited to another section of the statute, Section 4560. This is under the head -of township ditches. [Section 4560 read.]

In other words, this section of the statute provides that when an action is brought to enjoin an assessment the same proceedings shall be had as provided -in the case of county ditches. That is found under Section 4491, which is as follows:

‘' The -court in which any proceeding is brought to recover any tax or assessment paid (that is not the ease here), or to declare void the proceedings to locate or establish any ditch (that is not the case here) or to enjoin any tax or assessment levied or ordered to be levied to pay for the labor and expense aforesaid (that is the ease here).”

The court read this section to the end thereof and continued:

All these things may be done. It seems that the court may go into all these incidents, as to whether it is conducive to the public health; whether the assessment is unjust or unfair, when an -action is brought to enjoin the assessment. But here is a man that under the allegations of his petition claims the assessment is unjust. I will read that portion of the petition:

“Plaintiff further says that said apportionments and costs as assessed ag-ainst him by the defendants, the said trustees of Violet township, are grossly unjust and unfair, and that had the same been made according to benefits, no part of the cost and expenses of said Bowen ditch improvement would have been apportioned or assessed against him, for any part of said tile ditch, and that said apportionment to this plaintiff is grossly in excess -of-benefits conferred upon him by said ditch improvement.”

Does not that constitute ground for injunction? It is pretty fundamental and needs no discussion that you can not take private property for public use, unless the person owning it gets full value received.. It is the principle of assessment that you must give the owner value for it. He must derive some benefit from that improvement eqiial to the amount he may have to pay. He says it is unjust; there is no provision for appeal; there is no provision for error. He comes into a court of equity and asks that the trustees be enjoined. When he makes a prima facie case in his petition, the court may hear it and do all things found under that section of the statute. Even if the court find no error, it may go ahead and give him complete justice.

We think this action is properly brought and that the demurrer in this case should be overruled, because the petition does state a cause of action. As to the-motion, it will be overruled too because it simply performs the office of a demurrer. We think this action is properly brought, as this section provides for injunction and jt recognizes the fact that injunction may be brought under some circumstances.

Judgment will be rendered for the plaintiff with costs. Exceptions will be noted for defendant.


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    SUFFICIENCY OF PETITION UNDER JONES LAW.
    Circuit Court of Hamilton County.
    In Re Petition to Prohibit the Sale of Intoxicating Liquors in a Residence District (Winton Place).

    Decided, May 23, 1908.

      Liquor Laws — iExamination of Petition Under the Jones Law — Burden of Proof as to Facts — Number of Signers Necessary — Judicial Notice as to Politics of Newspapers Publishing Notice — Withdrawal of Names — Depositions—98 O. L., 68.

    1. A petition under tlie Jones local option law can not be taken as prima facie evidence of the facts necessary to decide upon its sufficiency, except in the absence of a request upon the part of any elector to be heard.
    2. The burden of proving the facts alleged in the petition rests upon' the petitioners; and the burden of proving that a signature was procured through fraud or misrepresentation rests upon the party who alleges that he was misled and is asking for the withdrawal of his name from the petition.
    3. The number of signatures to the petition must equal a majority of • the votes cast at the last regular municipal election.

      Yeaiman & Yeaiman, for the petition.

      Jerome D. Greed and Fred P. MuMhauser, contra.
    G-ieeen, J.¿ Swing, P. J., and Smith, J., concur.

       Affirming In Re Petition, 5 O. L. R., 517.

   Under the act of May 15, 1906 (98 O. L., 68), the provision that “the mayor or judge shall examine the petition at a public hearing” requires a trial or investigation of the facts necessary to decide upon the sufficiency of the petition and in no event shall the petition be taken as prima facie evidence of such facts, except upon failure of any person or persons, who are electors of the district, to ask to be heard there.on.

1 The burden of proving such facts rests upon the petitioners; but if any elector wishes to withdraw his own or authorized signature from the petition, the burden falls upon him to prove to the mayor or judge that it was secured through fraud or misrepresentation.

The petition must be signed or authorized to be signed by as many qualified electors as equal a majority of the votes cast at the last regular municipal election in such residence district.

It is common knowledge in this jurisdiction that the two newspaper known as “The Cincinnati Daily Enquirer” and “The Cincinnati Daily Commercial Tribune” are of opposite party politics, hence the court will take judicial notice of that fact.

Of the thirty-eight petitioners who sought to withdraw their names from the petition upon the ground of misrepresentation that the liquor dealers intended to establish a saloon upon a lot near a church in such residence district, only fifteen were induced, according to their own testimony, to sign such petition by any misrepresentation of a present intention on the part of such dealers to locate a saloon near a church.

The statements made to the other twenty-three petitioners recording to their own testimony, rely upon such statements, and lated to facts, thA truth or falsity of which could be ascertained by reading the petition. Many of the petitioners did not, ac-none had a right to so rely.

We deem it unnecessary to weigh the evidence in rebuttal on the question of misrepresentations, because if we should find that the fifteen names were improperly counted, there were still enough remaining to equal a majority of the votes cast at the last regular municipal election.

The fifteen names above referred to are as follows:

Isaac J. Fieler, W. J. Williams, Chris. Seibert,, James Finn, Adolph Lukens, Fred Schillins, George Maft'ey, TIarry E. Shaffer, Peter ITeuel, John Doberrer, Jr., Fred Goetz, Clifford Campbell, George Huber and Philip Kuntz.

While the depositions jtaken during the progress of the trial were not and could not be filed in accordance with Section 5282, Revised Statutes, yet it appears from the whole record which is before us that no prejudice resulted to the plaintiff in error on that account.

The judgment will therefore be affirmed.


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    ACTION AGAINST LANDLORD FOR. INJURY TO TENANT.
    Circuit Court of Hamilton County.
    Jacob Mueller v. Margaret Busch.
    Decided, July 3, 1908.

      landlord and Tenant — Action Toy Wife of a Tenant for Damages on Account of an Injury — Pleading—Variance—Bua-den of Proof— Error in Refusing Special Charges Before Argument.

    1. In an action against a landlord on account of injuries to a tenant due to a defective step, the fact that proof discloses the plaintiff to be the wife of one of the tenants of the building, does not present a material variance.
    2. Where the averment is that the landlord had knowledge of the defect and the plaintiff did not, and the landlord negligently permitted the defect to continue, the plaintiff assumes the burden of proving these allegations; and, upon request therefor, the landlord is entitled to special instructions delivered to the jury bpfore argument embodying the law with reference to such knowledge and negligence.
    3. Error in refusing to give special instructions before argument, where of a proper character and correctly expressed, is not cured by the giving of like instructions in the general charge.

      G. W. Baker and Thorne Baker, for plaintiff in error.

      A. G. Boss and Smith <& Haivke, contra.
    G-iefen, J.; Swing, P. J., and Smith, J., concur.
   The plaintiff avers in her second amended petition that she was at the time of her injury the tenant of the defendant, but the proof shows that she was the wife of one of the tenants. This variance is not material in view of the averment that the defective steps causing the injury were a part of a common passageway'used by plaintiff and other tenants, and that there was a covenant on the part of defendant to make repairs. The rule in such case is stated in .Jones on Landlord and Tenant, Section 614, as follows:

“The prevailing rule seems to be that a landlord who leases separate portions of the same building to different tenants, and retains exclusive control, for the purpose of repairs and construction, of the porches, galleries and stairways, used in common by all the tenants, is under an implied obligation to use reasonable diligence to keep such reserved parts in a safe condition for the use of a tenant occupying a part of the premises and for the members of his family. For failure to perform that duty the law attaches to him liability for injury to such tenant or to a member of his family.”

The particular defect of the steps is not'stated, but plaintiff avers that defendant had knowledge.of the defect and negligently permitted it to continue, and that she had no knowledge of it. She thereby assumed the burden of proving that the defendant' had knowledge, or by the exercise of ordinary care would have known of the defect; and that she did not know, nor by the exercise of ordinary care could have known that the steps were out of order, or knowing it gave notice to the landlord.

These propositions were fairly embraced in the first and last special instructions requested by the defendant to be given to the jury before argument, and refused by the court. The error in refusing to give such-instructions before argument, was not cured by giving like ’instructions in the general charge and was prejudicial.

Judgment reversed and cause remanded.


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    DISPOSITION OF MONEY GARNISHED IN A VOID PROCEEDING.
    Circuit Court of Hamilton County.
    Brandt et al v. Rabenstein et al.
    Decided, June 6, 1908.

      Attachment and Garnishment — Reversal of Proceedings before Justice of the Peace for Lack of Jurisdiction — Speaks as of the Date of the Reversal — Disposition of Money Garnished — Dismissal.
    Where it has been adjudged on review of a suit in attachment that the justice of the peace was without jurisdiction, any order which the justice may have made as to payment of the money is void and it becomes his duty to return it to the garnishee, notwithstanding the dismissal of the petition by the reviewing court may have been erroneous.

      Otis H. Fish, for plaintiff in error.

      Gideon C. Wilson, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   While there is some confusion in the petition as to what order or judgment of the justice of the peace was reversed by the common pleas court, it is made definite and certain by reference to the number of the case in the latter court, the essential averment being that the common pleas court dismissed the action pending before the justice, and that judgment being affirmed by the circuit court remains unreversed. The motion upon which the judgment is founded was not merely to discharge the attachment, but to dismiss the action for want of jurisdiction of the person of the defendant, and is almost identical with that considered in the case of Smith v. Hoover, 39 O. S., 249. The judgment of reversal and final judgment of dismissal speak as of the date of the judgment reversed. Rupp v. Phillips et al, 1 C. C., 108.

Even if it be-conceded that the courts erred in dismissing the action, and that it was still pending -before the justice, it being adjudged that the justice was without jurisdiction, any order he made disposing of the money otherwise than by payment to the garnishee was null and void; and the omission of the judgment debtor to give an undertaking for a stay of execution did not relieve the justice of the obligation to return the money to the garnishee, who, although not the absolute owner, had paid it to the justice upon his order hnd was liable to account to the real owner.

We find no prejudicial error in the record-and the judgment will be affirmed.


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    VALIDITY OF MORTGAGE EXECUTED BY CORPORATION.
    Circuit Court of Hamilton County.
    Fritsch Manufacturing Co. v. Elmont Building & Saving Co.
    Decided, May 23, 1908.

      Corporations — Authority of Officers of, to Sign Mortgage — Parties Dealing With, not Bound to Know that Every Formality has been Complied With.

    The certificate of authority for the signing of a mortgage hy officers of a corporation will not be held insufficient because the certificate does not appear to have been recorded in the minutes of the company, where there is evidence that a certificate was gutliorized by the board of directors and both parties to the mortgage relied on its correctness. Boesch v. Toledo Horse Displaying Co., 14 C. C., 289, followed.

      L. J. Bolle and W. G. Taylor, for plaintiff in error.
    I?. A. Poioell, contra.
    Smith, J.; Swing, P. J., and Gtffen, J., concur.
   Prom an examination of the evidence in the above case we are of the opinion that the judgment of the court below should be ..affirmed. While the testimony discloses loose conduct upon the part of the president and treasurer of the plaintiff in error company, who also was treasurer of the defendant 'in error company, yet the fact remains fairly established that the Clara Fritsch mortgage was assumed by the Fritsch Company and, when the new mortgage was executed in October, 1894, Fritsch, as treasurer of the building association, had cash in his hands which, with the refunding of the balance due on the first mortgage, was within a few hundred dollars sufficient to make the $10,000 loan, and also pay quite a sum to other parties. , -

A part of the consideration of the mortgage in suit was the cancellation of the Clara Fritsch mortgage, and it is apparent from all the evidence that the Fritsch Company received the benefit of the loan in question and the consideration therefor. •

The certificate of authority to the officers to sign the mortgage under the evidence in the case, we think, is sufficient. It is a proper certificate, and while it may not appear recorded in the minutes of the company, yet this would not justify its rejection, where there is evidence that such action was taken by the board of directors, and that both companies acted and relied upon its correctness.

Parties dealing with officers of a corporation are not bound to know that every formality required of such officer has been performed. Bosche v. Toledo Horse Displaying Co., 14 C. C., 289.

The form of the mortgage also would not affect the right to recover for the reason, as already stated, the -Fritsch Company received the benefits of the transaction.

We, therefore, think the equities of the case are with the defendant in error, and-the judgment below will be affirmed.


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    AUTHORITY TO SUSPEND A BRIDGE OVER. A STREET.
    Circuit Court of Hamilton County.
    Catherine Offutt, on Behalf of the City of Cincinnati, v. John Roth Packing Company et al.
    Decided, February 29, 1908.

      Municipal Corporations — 'Validity of Ordinance Authorizing the Connecting of Properties on Opposite Sides of Street by a Bridge-Easement as to Light and Air does not Exist against a Municipality — Nuisance—Obstruction of Street — Ingress and Egress — Section 28 of the Municipal Code.

    An injunction will not lie on the petition of a property owner against the connecting of buildings on opposite sides of the street by a bridge twenty feet above the pavement, where the ingress and egress of the plaintiff is in nowise impaired, and the injury which he will sustain, if any, is not different in kind from that suffered by the public at large.

      J. T. Harrison, for plaintiff in error.

      Geoffrey Goldsmith, for the city.

      Denis F. Gash, for the Roth Packing Company.

      Smith, J.; Swing, P. J., and G-iffen, J., concur.
   We are of the opinion that the ordinance passed by the council of the city of Cincinnati, granting to the defendant, the John Roth Packing Company, the right to maintain a bridge across Oehler street, is valid. It does not contravene Section 28 of the municipal code, which provides as to streets that council “shall cause the same to be kept open and in repair and free from nuisance.” The ordinance provides that-said bridge shall be twenty feet .above the street. No part of it is placed upon the surface of the street, and the city can still keep the street open, in repair and free from nuisance. Nor do we think the ordinance unreasonable, exclusive or indefinite.

The plaintiff seeks an injunction against maintaining this bridge, on the ground that .it is an impairment of her easement of light, air and view. Such an easement does not exist,*' we think, in Ohio by prescription against a private owner (Mullen v. Stricker, 19 O. S., 135; Letts v. Hessler, 54 O. S., 73).. And we do not think it exists against a municipality.

Nowhere in the petition does plaintiff complain of any obstruction to the ingress and egress of her lot. Her property is some distance removed from -the property of the defendant, the Roth Packing Company, and the bridge in question, and does not nor can it, under the allegations of the petition, abut upon the portion of the street which she claims is obstructed. The injury, if she suffers any at all, is not different • in kind from that of the general public. The access to her property is not impaired or destroyed, and -as we have already stated, of this she does not complain. We do not think, therefore, that the construction of the bridge in question is such an obstruction of the street, under .the allegations of the petition, to the injury of the plaintiff, as would entitle her to the relief sought.

The judgment of the court below will be affirmed.


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    ENJOINING IMPROVEMENT OF DITCH WITH INADEQUATE OUTLET.
    Circuit Court of Fairfield County.
    John Love v. Jacob Simon et al.
    Decided, September 18, 1908.

      Ditches — Improvement of Joint County Ditch — For Purpose of Affording a More Adequate Outlet for Lateral Ditches — Jitris diction of County Commissioners — Assessment of the Cost — Flooding the Lands of a Loioer Owner — Injunction.
    1. Neither county commissioners nor individuals have any right to collect water and by turning it into a ditch with an insufficient ' outlet 'cause an overflow of the lands of a lower owner, and an injunction will lie against a ditch improvement where the testimony warrants the conclusion that such a result will ensue.
    2. While the improvement of a joint county ditch may not be effected by proceedings for the establishment of a ditch wholly within the county, yet a joint county ditch may be widened and deepened by-the commissioners of one of the abutting counties, where the purpose is to provide a more adequate outlet for streams emptying therein, and the cost of such an improvement may properly be assessed upon those most benefited thereby.

      William Davidson, for plaintiff.

      G. A. Badcliffe and Moore é Moore, contra.
    .Taggart, J.; Donahue, J., and Craine, J., concur.
    Heard on appeal.
   The case of John Love v. Jacob Simon et al. (the Board of County Commissioners -of Fairfield County, Ohio) is a petition for injunction. The plaintiff says he is the owner of certain property consisting of about 175 acres in Perry county, Ohio.; that these premises lie partly on the eastern terminus, of a proposed county ditch that was petitioned for by Maggie Miller and others. The further averment is made that the eastern terminus of this ditch is in an alleged joint county ditch which had been attempted to be established and located some seventeen years ago between the counties of -Fairfield and Perry. The petition further avers that in consequence of the location and establishment of the proposed ditch and that if the same is established as proposed, more water in times of flood will be precipitated into the said joint county ditch than the same is capable of carrying away, there being several ditches uniting at or near the said eastern terminus of said proposed ditch, and that in consequence of bringing the water to this point near the eastern terminus of the proposed ditch that the plaintiff’s said lands will be flooded to a greater extent, and he will be injured in consequence of the establishment of the proposed ditch. He further avers that the defendants, the county commissioners of Fairfield county, utterly regardless of their absolute want of jurisdiction to widen, deepen, straighten and clean out said joint county ditch, and the part thereof lying in Perry county, Ohio, and regardless of the rights of others owning land in Perry county, along the line of this ditch, threaten to and unless restrained will proceed to construct said proposed county ditch and throw the surplus water upon the lands of this plaintiff, to his great damage and irreparable injury and against which this plaintiff has no adequate remedy at law.

In brief it is the claim of the plaintiff in .this ease that some seventeen years ago the commissioners of Fairfield and Perry counties sought to establish a joint county ditch, extending from Perry county westward into a portion of Fairfield county; that near the western terminus of this ditch is the confluence or meeting of a county line ditch (the Love ditch as it is often designated) and another ditch extending from the south, there being three streams of water — water-courses or.ditches near the western terminus of this joint county ditch.

It is claimed that no notice was given to the commissioner’s of Perry county of the proposed action, and, secondly, that •there is no adequate outlet furnished for the proposed improvement. This ease was heard in the common pleas court and judgment entered therein, and .an appeal taken -to this court.

Several things are clearly established by the testimony in this case:

1st. The entire watershed or territory sought to be drained by this improvement is the same as has been drained into this joint county ditch for many years — certainly more than seventeen -or eighteen years; that is to say, the testimony does not show that any new territory is brought in, but only the natural watershed which has always drained eastward.

2d. That during the years last past there has been drainage of this territory, that has not been under the provisions of -the ditch law, but it has been by individual effort of the various land owners; it has not been entirely systematic.; yet it has been so concurrent that much of the water of this watershed reached the point which would have been the outlet of the eastern terminus of the proposed ditch.

3d. The attempted location of this joint county ditch some fifteen years ago, while it may not have been under the forms of law, and while it might be that it could not be put through under the present ruling of the Supreme Court, yet it was attempted and the order, was made by the joint board of county commissioners of the two counties-, that the creek which was the head waters of Rushcreek was straightened, and was intended to furnish an outlet for the confluence of the streams that were turned into it at its western terminus.

4th. It does appear clearly from the testimony that the plaintiff’s lands before this attempted location of the joint county-ditch were overflowed -and overflowed to a very considerable extent.

5th. It also appears that since that time the plaintiff’s lands have-been overflowed.

Now this suit' is brought to enjoin this proposed improvement on the ground principally that there is not sufficient outlet under the law as required to be found by -the commissioners. And, secondly, that great and irreparable injury will be done to the plaintiff by the concentration of the waters .at this point of the confluence of those streams and projecting of them down and over his land..

If the testimony in this case would establish either of these propositions, the court are unanimous in the opinion that it would have ful-1 right and authority to enjoin this improvement. It is a jurisdictional fact that must be determined by the commissioners that there is a sufficient outlet for a ditch before it can be established. And we take it, that it is a matter of law that neither the commissioners of a county nor individuals have a right by the industry of man -to gather together waters and project them down on and over the lands of .an owner lying below a proposed improvement to his injury ‘and damage, for that is pro tanto an appropriation of his land, and unless he receives compensation -therefor it is violative of the Constitution of the state.

The testimony in respect to the question of outlet is somewhat in conflict. If we look to the cross-sections of this stream and to the profile that is presented in this case, showing the bottom of this ditch .and the grade of the bottom of this ditch, we might be -constrained to hold that the commissioners could not under such a showing have established this ditch with a sufficient outlet.1' If we look to the testimony of the witnesses in the case, we have a division of opinion in -that respect ¡’"certain of the witnesses who are property owners and have an opinion concerning the action of the waters at the western terminus of the joint county ditch say that this joint county ditch or Rushereek is wholly inadequate to receive the waters from these three streams that are now meeting there, and if the new ditch is established the outlet is wholly inadequate. We have -the commissioners of the county, who have investigated this matter and in whom is reposed the duty of determining whether a sufficient -outlet is provided ; they say that -they found a sufficient outlet for the proposed ditch. The -engineer .in charge on whom the law1 puts the duty -of laying out this improvement says that a sufficient outlet is provided. So that with this divided sentiment in respect of the .improvement w-e can not say that -the preponderance of the evidence .is with the plaintiff upon this proposition. There is as /much testimony here and as satisfactory evidence that there is a proper and sufficient outlet, -as that they have failed to provide a sufficient outlet.

Now the next proposition — the equitable proposition that the plaintiff has the right to be protected from an increased flow of water down and over his lands. We have the testimony in this ease and we think the great weight of the testimony -is that the drainage for years back has been better along the line of this watershed than it is now; we think that by the concurrent act of the land owners they had practically the same drainage as is sought to be given, by this proposed improvement; we think by the drainage going on for years and acquiesced in by the plaintiff, that the plaintiff received the same amount of water formerly and the same watershed was projected upon his land as will be projected by the proposed improvement. The engineer says that no greater amount of water will come down upon his lands than came before. This is also the opinion' of the owners of the land affected, by the improvement.

While the improvement of the joint county ditch may not be made by proceedings to establish a ditch, yet it can certainly be improved. We do not. understand the Supreme Court to say that a water-course can not be widened, straightened or deepened. If it can be widened and deepened to furnish a more adequate outlet for the benefit of those three streams,’ the cost of that improvement may be assessed upon those most benefited thereby, rather than that the court should use the drastic and extraordinary writ of injunction.

So that taking all these things into consideration, we think that the judgment in this case ought to be for the defendants, and that the petition of the plaintiff should be dismissed with costs; exceptions will be noted on belialf of plaintiff; motion for a new trial may be filed and overruled; the statutory time will be allowed for bill of exceptions; and twenty days will be allowed for findings of fact, and if that can not be agreed upon, submit it to us and we will settle it.


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    CORPUS DELICTI.
    Circuit Court of Hamilton County.
    Max Premack v. State of Ohio.
    Decided, July 18, 1908.

      Criminal Law — Corpus Delicti — Charge of the Court — Erroneous Assumption by the Court That a Grime Occurred — Province of the Jury Invaded.

    Where a defendant enters a plea of not guilty, he puts in issue all the material facts, including the corpus delicti, and a charge to the jury in such a case to the effect that the theft of the goods was not disputed or open to controversy is an evasion of the province of the jury and constitutes reversible error.

      Thomas H. Darby, Louis P. Pink and Eugene Adler, for plaintiff in error.

      Froome Morris, contra.
    Smith, J.; -Swing, P. J., and Giffen, J., concur.
   The grounds of error relied upon by the plaintiff in err-or are —first, the court erred in admitting testimony of a prior larceny; and second, the court erred in its charge -to the jury.

As to the first we do not think the testimony admitted by the trial court -and objected to by plaintiff in error disclosed a prior larceny -on the part of the defendant, but that it was properly admitted as tending to show guilty knowledge on the part of the plaintiff in error that -the property, for receiving which he was charged, was stolen. Besides the record does not disclose an objection and proper exception to the substance of the testimony, but rather to the time of its introduction by the state.

Second. We think there was error in the charge of the court in stating to the jury that “certain facts were not disputed and not open to controversy,” that is, “does not controvert nor open •to controversy that the goods or some of them set forth in the indictment were stolen at the time alleged from a freight car belonging to the Cleveland, Cincinnati, Chicago & St. Louis Railway Company.”

The -plea of not guilty of the defendant put in issue all material facts to be proven by the state, and one .of the facts thus to be proven was the corpus delicti. The defendant did not take the stand in his own behalf, and he did not by his testimony or otherwise as shown by the record admit the claim of the state as to the body of the crime. This was an -issue to be tried by the jury and not by the court. In substance the trial court -told the jury that the crime of larceny had been committed, and the statement -also would tend to fortify the evidence given by the accomplices in -the case who testified on behalf of the state -to the commission of the crime, where such evidence, -as the court properly instructed the jury, was to be.scrutinized with care. It is the province of the jury to determine whether or not a crime has been committed, and if it is has then the time and manner of it, as well as who are the perpetrators. Morgan v. State, 48 O. S., 371.

For the above err-or of the court the judgment will be reversed, and new trial granted.


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    INTERPRETATION OF EVIDENCE.
    Circuit Court of Hamilton County.
    Houston v. Cincinnati, Milford & Loveland Traction Company.
    Decided, July 13, 1908.

      Error Proceedings — Misconduct of Counsel Must he Shoion hy the Record — Accident and Surprise — Evidence—Chairge of Court.

    1. Misconduct of counsel for the prevailing, party in his remarks to the jury can not be considered as ground of error, unless it has been- properly brought into the record.
    2. Nor can error be predicated - upon accident or surprise with reference tp testimony offered by the opposite side, where a fair -interpretation of the testimony complained of discloses nothing which could not have been anticipated. ,

      A:: A. Ferris, for plaintiff! in' error.

      Thorne. Baker, contra.

      Smith, J.; Swing, P. J., and Gtpfen, J., concur.
   The grounds of error relied upon by counsel for plaintiff in error are:

First. Misconduct of counsel of the prevailing party in his remarks while .addressing the jury.

Second. Accident and surprise which ordinary prudence could not guard against.

Third. That the verdict was against the weight of the evidence.

Fourth. That, the charge of the court was such as to mislead or confuse the jury.

As to the first ground „of error, if there was misconduct of counsel of the prevailing party in his remarks to the jury, such ground-can not be considered by this court under the case of State v. Young, 77 O. S., 529, as the same is not properly brought upon the record.

The accident or surprise complained of relates to the claim of the plaintiff in error that the testimony of the motorman tended to show .that there were curtains on the sides of his vestibule which he had down, when as a matter of. fact upon investigation the vestibule had no side curtains.

We do not think this ground of error is well taken, as the motorman in describing the vestibule of his car on the night of the accident says: “It was a closed vestibule car. I had my curtains down, center and sides, and my right hand door was open as I had just turned the switch at Sixth and Broadway.” This answer is very plain and can only refer to the curtain in the center of the ear at the door opening into his vestibule, and the two curtains on each side of the center door.

As to the claim that the verdict and judgment is against the weight of the evidence, this was for the jury to determine, and we can not say that .the verdict is wrong on this account.

We see no error in the general charge of the court as complained of by plaintiff in error, whereby the jury was misled or confused on the question of negligence or contributory negligence, and there being no errors in the record, the judgment of the trial court is affirmed.


author: Per Curiam.

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    MAKING NEW PARTIES FOR. PURPOSE OF DISTRIBUTION.
    Circuit Court of Hamilton County.
    Alex. M. Hazelgreen et al v. The Cincinnati & Indiana Western Railroad Company et al.
    Decided, November, 1907.

      Parties — May be Brought in for Purposes of distribution — Contractors —Railways—Claims of Material-men and Laborers — Error.
    In an action by a contractor against a railway company for damages for breach of contract it is not error, where judgment has been obtained by the contractor, to permit the railway company to make material-men and others asserting claims against the contractor parties to the action for the purpose of distribution.

      L. W. Goss, for plaintiff in error.

      John W. Peck, for the railroad company.
   Per Curiam.

The court is of the .opinion that there is no error in this case. The petition below was filed by Henry S. -Hazelgreen, doing business as H. S. Hazelgreen & Co., against the Cincinnati, Indiana & Western Railroad Company to recover for a breach of contract. The railroad company filed its answer and cross-petition asking judgment in a certain sum against said plaintiffs. These two questions were submitted to a jury who found in favor of the plaintiffs against the defendant in the sum of $1,231.91. Thereupon the railroad company made various persons, claiming to have performed labor, furnished supplies, food, board, etc., to the contractor, parties defendant, and asked that said sum so recovered against it be distributed among said labor and material men.

It can not be claimed that the amount found by the jury as due the plaintiffs, was outside and above the other sums that the defendant railroad company owed for labor and supplies furnished, and that these amounts were deducted from the entire sum due. The verdict returned fixed the entire amount that was owing from the railroad to plaintiff, and in this amount the various laborers and material men were interested. We see no error in having them made parties to the action for purposes of distribution.

The judgment therefore will be affirmed.


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    JUDGMENT IN EXCESS OF AMOUNT ENDORSED ON SUMMONS.
    Circuit Court of Hamilton County.
    American Audit Company v. James A. Miller.
    Decided, December 28, 1907.
    1. Where a court exceeds its jurisdiction by rendering judgment for an amount greater than that endorsed on the summons, the error can not be cured by a remittitur.
    2. It is not error to set aside such a judgment at a subsequent term.

      Closs <& Luebbert, for plaintiff in error.

      James M. Biddle and Charles F. Ilornberger, contra.
    Swing, P. J.; Gieeen, J., and Smith, J., concur.
   We think that the Court of Common Pleas had no power to render a judgment for $6,500, on June 13, 1907.

Section 5034, Revised Statutes, provides “that when the action is for money only, there shall be endorsed on the writ the amount to be stated in the precipe for which with interest judgment will be taken if the defendant fails to answer, and if he fails to appear judgment shall not be rendered for a larger amount and the costs. ’ ’

In this case the amount 'endorsed on the summons w-as $5,900. The court was without jurisdiction to render judgment for an amount greater than was endorsed on the .summons (35 O. S., 107); and this could not be cured by an offer to remit.

The action of the. court, in setting this judgment aside at a subsequent term was right.


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    LIABILITY UNDER. BOND OF A VILLAGE CLERK.
    Circuit Court of Hamilton County.
    George Sauer and George Hack v. Village of Madisonville.
    Decided, February 29, 1908.

      Fiduciary Bonds — Duties of Village Cleric — Sureties' of, not Liable for Failure to Account for Assessments Collected Under Authority 'of an Ordinance — -Section 1162.

    The collection and disbursement of street assessments is not a statutory duty of a village clerk or a duty pertaining to his office, and where such service is performed by him under authority of an ordinance his sureties are not liable for his failure to account for such collections, when the condition of the bond is that he will “faithfully perform the duties of the office of clerk of said village during his continuance in said office for said, term.”
    TV A. Hicks and TV F. North, for plaintiffs in error.

      L. A. Ireton and TV M. Schoenle, contra.
    Smith J.; Swing, P. J., and Giffen, J., concur.
   The condition of the bond sued upon in this case is:

“Now, if the said Bennett Carter shall faithfully perforin the duties of the office of clerk of said village during his continuance in said office for said term, then this obligation shall be void, otherwise it will and remain in full force and effect.”

In State v. Griffith, 74 O. S., 80, it is decided:

“A public officer is personally and may be even criminally liable for malfeasance in office; but the sureties on his official bond are answerable only within the letter of their contract for faithful performance- of his.official duties, and not for dereliction outside of the limits of his official duties.”

The question is, does or does not the bond in this case opme within the terms of this decision? We are of Opinion thai it does.

In State v. Carter, 67 O. S., 422, while the Supreme Court of Ohio holds that Carter was legally chargeable with -the funds collected by him under the ordinances passed by the village council of Maclisonville, and if he fraudulently converted them to his own use he was guilty of embezzlement under the provisions of Section 6841, yet in their opinion the court say that “the moneys which came into his possession, custody and keeping while he was village clerk, were moneys which he had collected and received under the provisions of said ordinances and not in the discharge of any purely statutory duty imposed upon him.” Further on in its opinion the court say that “the clerk was an officer of the village and not of the state, and while his general duties are defined by statute, it is within the legitimate exercise of municipal authority to add other duties, which are not inconsistent with the statutory duties, and which relate solely to the local affairs of .the corporation.”

We do not think this new duty imposed upon Carter was one -pertaining to his office as clerk that might be prescribed by council as provided in Section' 1762. In holding Carter guilty of embezzlement the court say:

‘ ‘ That he availed himself of the provisions of the • ordinances so far as to receive from the village tax-payers sums of money which they were required to pay within a certain period to iavoid certification of the same by him to the county auditor.”

In becoming surety for Carter, the bondsmen were only liable .in case Carter “failed to faithfully perform the duties of the office of clerk of said village. ’ ’ And this no doubt would include such other duties “pertaining” to his office as council might prescribe. The duty of collecting and disbursing the assessments set out in the ordinance was not a duty imposed upon him by statute, .or one pertaining to his office as village clerk. ITis appointment and. selection for this purpose was as though the village council had selected any other individual, and under the terms of the bond such duties were not included.

We.are of opinion,’therefore,'that the court erred at the close of the defendant in error’s testimony below to grant the motion of the plaintiffs in error to arrest the testimony from the jury and -instruct $ .verdict for the plaintiffs in error. • ...

Judgment reversed..


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    EVIDENCE AS TO RELATION OF A DECEDENT TO A NOTE.
    Circuit Court of Madison County.
    Butt, Executor, v. Worthington.

      Promissory Note — Principal and Surety — Evidence—Deceased Party— Competency of Testimony Under Section 5242.

    Where one of the four makers of a note, claiming to be a surety, having paid the balance due after the death of two of.such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were .sureties, the other remaining maker, not being a party to the. • action, is not incompetent under Section 5242, Revised Statutes, to testify as to the relation existing between the deceased and the plaintiff.

      Lincoln é Lincoln and Howard Black, for plaintiff.

      Durfling er c& Emery, contra.
    Summers, J.; Wilson, J., and Shearer, J., concur.

       Affirmed without report, 57 Ohio St., 636.

   The only question presented in this case is as to the competency of Delilah Worthington as a witness. Plaintiff in error claims that she was incompetent under the amendment to Section 5242, Revised Statutes, which provides- that if the case is not within -the letter, but is plainly within the reason and spirit of the three preceding sections, the principies- shall be applied. We have examined all the cases but think it necessary to notice only two.

In Hubbell v. Hubbell, 22 Ohio S.t., 208, 221, the court says. “That both the parties disqualified and the reverse party referred to must be parties to the record.”

In Cochran v. Almack, 39 Ohio St., 314, 316, the court say: The ólause of Section. 5242, Revised Statutes, under consideration, “calls for the application of the principles of the three preceding sections, only when the case is not provided for by either of these sections” and “that if a case is provided for by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its_letter or terms.”

Delilah Worthington is not a party to the record, and being made competent by the terms of the preceding sections, the latter clause of Section 5242, Revised Statutes, has no application. Finding no error on the record, the judgment will be affirmed.


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    LOSS OF LIEN ON REAL ESTATE FOR. DEBT OF DECEDENT.
    Circuit Court of Hamilton County.
    Kemper, Administrator, v. Apollo Building & Loan Company et al.

    Decided, May 23, 1908.

      Administration of Estates — Laches in Enforcing Mortgage Claim-Protection of Innocent Purchasers — Equity—Estoppel.
    A mortgagee s is guilty of laches when, in acting upon the theory that his security is ample, he delays enforcement of his claim for a number of years, and until after the estate has been closed and other realty belonging thereto has been sold to innocent purchasers for value, who have erected valuable improvements thereon; and in such a case the mortgage is estopped from proceeding against such innocent purchasers for recovery of a balance remaining due after exhausting his security.

      W. A. Hicks and D. F. Cash, for -the plaintiff.

      Willis M. Kemper, Pogue & Pogue, Boettinger & Gorman, David Davis, Charles M. Leslie, William Walleer Smith, Jr., and J. H. Charles Smith, contra.

      Smith, J.; Swing, P. J., 'and Gieeen, J., concur.

       Affirming Kemper, Admr., v. Apollo Building & Loan Co., 5 N, P.—N. S., 403.

   In our view of this case, we are of opinion that the defendants, Thomas C. Welch, or T. J. Couden, -assignor -of the claim of Welch, have been guilty of such laches that they are estopped from asserting any claim against the other defendants herein, the innocent purchasers for value and mortgagees -of the Kemper real estate.

The account of the administrator of Parke- F. Kemper was filed in the probate -court showing distribution to the creditors then existing. Couden, having a mortgage upon a certain piece of property, relied upon this security, no doubt believing it would be sufficient to pay his mortgage debt.

Some eight years passed without any -effort being made to enforce the payment.of his claim. When the claim accrue^ the security was regarded -as' worth considerable more than the -claim, and it was not until years after' the various tracts of lan-d were sold and valuable improvements'made thereon, that, finding on a sale of the mortgaged premises that the same was not sufficient to pay his debt in full, he undertook to enforce his claim for the balance against the property held by the present owners who paid value for the tracts and were innocent purchasers thereof.

To determine whether a party is guilty of laches each case must be decided according to its own particular circumstances, taking into consideration all the elements which affect the question. Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to the -adverse party, and therefore operates as a bar in a court of equity. We are of the opinion that the time allowed to pass' and the circumstances in this ease are such that, in -the hands of innocent purchasers, the claim of Couden or Welch can not be -asserted against the property now held by them. The doctrine of laches proceeds upon the question of the iniquity of permitting a claim to be enforced, which iniquity is founded upon some change in the condition or relations of the property or the parties interested.

Having reached this conclusion, and basing it upon the doctrine of laches, it is unnecessary for us to consider whether or not the enforcement of the claim of Welch and Couden is barred by the statute of limitations.

The petition therefore of the appellant will be dismissed.


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    MALICIOUS PROSECUTION — PLEADING.
    Circuit Court of Hamilton County.
    Grosse v. Oppenheimer et al.
    Decided, January 18, 1908.
    A petition in an action for damages for malicious prosecution states no cause of action, where the petition merely alleges “that ..the said cause was terminated by plaintiff being obliged to pay the costs of1 said prosecution.”

      John G. Rogers, for plaintiff in error.

      Benlon S. Oppenheimer, pro se.

    Swing, P. J.; Gieeen, J., and Smith, J., concur.
   This is an action in .this court on error to the judgment of the court of common pleas. In that case it was an action for malicious prosecution. A general demurrer was filed to the petition, which the court sustained. In doing so, we think the court committed no error. The petition alleges, “that said cause was terminated on the 13th day of November by said plaintiff being obliged to pay the costs of said prosecution.” We take this allegation to mean that she was found guilty of the charge and fined the costs. There is no allegation in the petition that the judgment of conviction was procured by fraud or by any other improper means.

“The general rule is that a conviction in criminal proceedings is conclusive proof of probable cause unless procured by false or fraudulent testimony or other unlawful means.” 19 Am. Ency., 666.

There is no cause of action stated in the petition.

Judgment affirmed.


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    ADVANCEMENT TO A SON-IN-LAW OF INTEREST OF DAUGHTER.
    Circuit Court of Fairfield County.
    Fisher v. Fisher et al.
    Decided, September Term, 1907.

      Advancements — May be Made to 8on-in-law, How — Intention of Donor — Acquiescence of Daughter — Trusts and Trustees — Probate Practice.

    A gift of a tract of land to a son-in-law and payment by the donor of part of the purchase price of another tract, the daughter of the donor and her husband, the son-in-law, uniting in a receipt for the property by way of advancement, constitutes neither an implied nor a resulting trust, but ié'an advancement to the son-in-law, of the daughter’s interest with her" acquiescence.

      G. W. McGleery and A. W. Clutch, for plaintiff in error.

      M. A. Daugherty and W. If. Marlin, for defendants in error.
    Taggart, J.; Donaihte, J., concurs; McCarty, J., not sitting.
    Error to Fairfield Common Pleas Court.
   This is a proceeding in error prosecuted in this court to reverse the judgment of the court of common pleas. The question arises on a demurrer to the first and second causes of action in plaintiff’s petition and, concretely stated, it is this: Does the giving by a father to his son-in-law of a tract of land and payment by the father to the .son-in-law of a part of the purchase price of another tract of land, the son-in-law and daughter uniting in a receipt for the property by way of advancement, constitute an implied trust or a resulting trust under the law. The averments1 of the first and 'second causes of action are simply the relationship of the parties, and that the father conveyed -to the son-in-law one tract of land and paid part of the, purchase price of another tract of land, and that thereupon the daughter and son-in-law executed a receipt acknowledging getting this property by way of advancement; and it is claimed that, out of this transaction .alone, an implied trust or resulting trust arose. It .is distinctly averred that the bestowal of this property by the father upon the son-in-law was by way of an advancement to the daughter and the receipt was given as an advancement.

This can not be an advancement and at the same time either a resulting trust or an implied trust. The two are at variance with each other and a brief analysis of what constitutes an advancement negatives the idea of a trust. Roekel, Probate Practice, Section 929, defines an advancement as follows:

"An advancement is a gift by a person to a presumptive heir of certain property with the intention that the value of such property shall be deducted from the portion that such presumptive heir would otherwise be entitled to receive out of such person’s estatS- after such person was deceased. * >s * The gift in order to constitute an advancement must be irrevocable, divesting entirely all the ancestor’s interest, and forming no part of the property to be administered; hence the donee can in no case be compelled to refund what he has received.”

The author further goes on and discusses the character of an advancement — that it is a gift and can not' be changed to a debt. It is not intended that it should ever be refunded or repaid by the donee. The .gift is to an heir presumptive, or one standing in the nature of an heir, or one who is entitled to inherit.

That being the case the question arises: Caif there be an advancement to a son-in-law? This question has been settled in the case of Dittoe v. Cluney, 22 Ohio St., 436:

"A gift to .a son-in-law, intended by the ancestor to be charged as an advancement against his daughter, and not subsequently converted by him into a gift absolute, will be so charged against her in the distribution of his intestate property, if she, knowing the fact and intention of the gift, shall have acquiesced therein.-’ ’

So that there can be an advancement to a son-in-law with the knowledge and consent of the daughter, and after that appears, it is then an advancement to the daughter.

Let us look briefly to a definition of an implied trust. Perry, Trusts, says:

“Implied trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts from the whole transaction and the words used, imply or infer that.it was the intention of the parties to create a trust.”

So we must gather from the transaction whether it was the intention of the parties to create a trust, because there is no express trust in this ease insisted upon.

“An implied trust arises where, upon the purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration or a part of it is given or paid" by another, not in the way of a loan to the grantee; the parties being strangers to each other, a resulting trust immediately arises from 'the transaction, and the person named in the conveyance will be a trustee for the party from Whom the consideration proceeds. ’ ’

, So we see the distinguishing feature, in those two transactions. In both instances the intention of the parties must govern. If it was the intention that there was to be an implied trust, that must be gathered from the transaction. If it was the intention to be an advancement, that must be inferred from the intention of the donor -and the acts and intention of the donee.

Looking to this transaction and the averments of the petition, there is only the averment that this was an advancement, in which event it was- -an irrevocable gift. The donees were never called upon to account for any payment of this sum except in the distribution of the estate. If they were donees they could not be called upon in any other way for an accounting. If the daughter was the donee of this gift and the son-in-law was a participant in the reception of the gift, he certainly could not be called upon to account for the principal-or for any interest in the proceeds of that gift. There would be no control over this transaction except as the representative of the donor would account for it in the administration of the estate.

Another test — If she is the donee of this gift she could- hardly insist that she was the ceskd que trust of which her husband was the principal trustee; that could hardly be claimed.

Now we have Thompson v. Thompson, 18 Ohio St., 73, holding distinctly that no such trust is either implied or results therefrom. Stump v. Stump, 26 Ohio St., 169, holds similarly. It is claimed that the ease of Stayner v. Bower, 42 Ohio St., 334, is contrary to this doctrine, but we think there is a very distinguishing feature which differentiates it from the other cases cited. In that ease the daughter did not consent or in anywise acquiesce in the bestowal of the money upon her husband. The father bestowed it upon the son-in-law as an advancement intending to charge it against the daughter’s estate; she not acquiescing therein, it could not be said to be an advancement to her, nor chargeable out of her share in her father’s estate. It was not strictly speaking an advancement, but it'was in the nature of property bestowed upon the, son-in-law for her benefit and use, for which she would be entitled to recover against her husband. There was no acquiescence on the part of the donee that the transaction should constitute an advancement against her.

In the case- at bar there was the intention of the donor to give, and there was an acquiescence of the donee in the nature of an advancement, as to which there was to be no recovery of the principal or of the rents and profits, and no accounting except in the manner provided in the distribution of the estate.

So we think that in this case, after careful review of all the authorities and on principle, the demurrer to the first and second causes of action were properly sustained. We find that the court committed no error in dismissing the first and second causes of action, and the others being contingent upop them and the parties not desiring to plead further, we find no error in the record and the judgment of the lower court will be affirmed with costs.


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    INJURY TO FIREMAN WHILE UNDER. HIS ENGINE.
    Circuit Court of Hamilton County.
    The Cincinnati, Hamilton & Dayton Railway Co. v. John H. Tangeman.
    Decided, June 13, 1908.

      Negligence — Fellow-S&rvant—Pleading—Special Findings 5 y Jury — Inconsistencies in — Evidence.
    1. In tlie absence of proof to the contrary an engineer will be regarded as superior to his fireman, and a finding by the jury that the injury to the fireman was caused by the negligence of fellow-servants is inconsistent with a finding that the engineer assured the fireman it was safe to go under the engine, although no precautions had been taken to protect him while there.
    2. A finding by the jury that the injury was the result of an accident may be interpreted as merely negativing the charge against the defendant of malice and willfulness contained in the petition.

      Harmon, Colston, Goldsmith ds Hoadly, for plaintiff in error.

      Frank H. Kunkal and Thos. L. Michie, contra.
    Plaintiff, -a fireman, was injured while under his engine cleaning out the ash pan, by a cut of freight cars being allowed to run against the enginp. He recovered a verdict below of $7,500.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The omission to close the switch after the engine passed onto the siding is neither charged nor proved as an act of negligence by the defendant company, and does not support the general verdict for plaintiff.

The special finding of the jury that the negligence of the defendant consisted in part of “the word from engineer Dumphy to fireman Tangeman, i. e., 'alright John,’ ” supports the averment in the petition that “the defendant neglected to place a flag or some other signal of warning to other engines and cars in the said yard for the protection of the plaintiff while under the said engine” because it shows not only a positive notice of safety to the fireman, but also tbe absence of any precaution by the engineer to protect him.

The finding of the jury that the plaintiff w.as hurt through the negligence of one or more fellow-servants is inconsistent with the finding that he was hurt through the negligence of the engineer, who must, in the absence of proof to the contrary, be regarded as a superior servant.

The finding of the jury that the injury was the result of an accident, was intended merely to negative the charge in the petition of malice or willfulness.

There was no error in overruling the motion of defendant for judgment upon the special findings of the jury, and the judgment will be affirmed.


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    LIABILITY FOR. SAFETY OF MONEY DEPOSITED BY A GUEST.
    Circuit Court of Hamilton County.
    Herman Roeckers v. Joseph Hart.

    Decided, April, 1908.
    Where one who pays a stipulated amount for his board and lodging deposits a sum of money with his landlord for safekeeping, the latter is liable for the money so taken, whether he be regarded as an inn-keeper or a boarding house keeper.
    Wm. G. McLean, for plaintiff in error.

      W. A. Bmckhoff, contra.
    Giepen, J.; Swing, P. J., and Smith, J., concur.

       Affirming Hart v. Roeckers, 7 N. P.—N. S., 395, which see for statement of the ease.

   The defendant in error paid the plaintiff in error a stipulated sum of money for his board and lodging, and the latter agreed to safely keep over night the sum .of $152, belonging to the former. The next morning the plaintiff in error gave the money to his servant for redelivery to the defendant in error, but the servant appropriated the same to his own use.

The plaintiff in error was liable for the money so taken, whether he be regarded as an innkeeper or a boarding house keeper. The defendant in error was his guest in either event (Beale on Innkeepers & Hotels, Sections 188 and 293).

AVhile it is true that the defendant in error testified that he had no home except at Rockers (plaintiff in error), yet he explained his meaning in his redirect examination by saying, “I consider that my home wherever I pay my bills for my board.”

What he meant, and what the jury evidently understood was, that he had no permanent home, and that wherever he stopped for board and lodging, no. matter for how short a time, that place he regarded as his temporary home. In other words, he was a transient person or guest, and recognized as such by the plaintiff in error, who was accustomed to receiving such guests. Hancock v. Rand, 94 N. Y., 1.


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    DISSOLUTION OF PARTNERSHIP.
    Circuit Court of Hamilton County.
    Theo. M. Harsch v. William Brown, Sr., et al.
    Decided, July 8, 1908.

      Partnership — Action for Dissolution of, Dquitahle — Division of Partnership Assets — Appeal.

      Healy, Ferris & McAvoy, for -the motion.

      W. J. Davidson, contra.
    Swing, P. J.; G-ieeen, J., and Smith, J., concur.
   The motion to dismiss appeal will be overruled. The petition states facts which show a partnership. An action _which seeks a dissolution of the partnership and a division of partnership assets is equitable in its natuhe.


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    INJURY FROM TILTING OF LOOSE BOARD IN SIDEWALK.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Guth.
    Decided, January 18, 1908.

      Contributory Negligence — Board Sidewalk in Bad Repair — Action for Injury thereon — Municipal Corporations.

    Where the only' contributory negligence which can be imputed to a plaintiff, suing for damages for ah injury, was in using a board sidewalk known to be in bad condition, but at a time when other parts of the street were also unsafe for travel, the issue is one of fact to be determined by the jury under proper instructions by the court, and the finding'of the jury thereon, as implied by the general verdict, will not be lightly disturbed.

      Edward M. Ballard, City Solicitor, for plaintiff in error.

      Kelley <& Hauck, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   It appears at page 114 of the bill of exceptions that the plaintiff, when she entered upon the defective sidewalk, knew that the boards were loose and liable to tilt when stepped upon, but the testimony also tends to prove that the other parts of the street were in an unsafe condition for travel, and that she could not easily avoid the danger from the boardwalk.

The question of contributory negligence was therefore one of fact to be determined bjr the jury, under proper' instructions from the court. Such instructions were given at the requ'est of the defendant, - and are numbered eight and nine in the bill. Schaefler v. City of Sandusky, 33 O. S., 246; Norwalk v. Tuttle, 73 O. S., 242.

The testimony shows that the plaintiff exercised care commensurate with the known danger; that the accident occurred by reason of her- companion, a boy about sixteen years of age, stepping up5n one of the loose boards ancl causing it to tilt in front of the plaintiff while walking, whereby she'trippéd’and fell to the ground. The only aet therefore, if any, of contributory negligence was in using'the walk when known to be in a dangerous condition, and we are not disposed to disturb the finding of the jury necessarily implied in the general verdict given under proper instructions.

We find no prejudicial error and the judgment will be affirmed.


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    FRAUD IN OBTAINING JUDGMENT AGAINST A WIFE.
    Circuit Court of Stark County.
    Ulman, Einstein & Co. v. Effinger.

      Judgment — Fraud in Obtaining, Against a Wife — Sufficient Averment of Fraud — May be Set Aside, Notwithstanding There was Service of Summons, but no Defense was Interposed.

      N. J. and J. S. McLean, for plaintiff in error.

      Peter J. Collins, contra.
    Adams, J.; Pomerbne, J., and Douglass, J., concur.

       Affirmed by the Supreme Court without report, 60 Ohio St., 579.

   First. A judgment may be set aside for fraud notwithstanding the fact that no defense was made at the time it was rendered, although the defendant was properly served with summons by copy thereof left at her usual place of residence.

Second. A judgment procured against a party on an account which she never owed, nor became either directly or indirectly liable for its payment, constitutes a fraud on the court rendering such judgment, which should be set aside in a proper proceeding brought for that purpose.

Third. An averment in a petition that goods or merchandise were sold to a husband, and that afterwards and before suit is brought to recover the price thereof, the plaintiffs inserted the name of the wife of such husband in said account, and without her knowledge or consent, is a sufficient averment of fraud to constitute a cause of action and a demurrer to such petition and pertinent interrogatories attached thereto is properly overruled.