text:
    INSURANCE INDUCED BY FALSE REPRESENTATIONS.
    Circuit Court of Miami County.
    The Provident Savings Life Assurance Company v. Jessie DeCamp Statler.

    Decided, April 10, 1911.

      Life Insurance — Rights of Assured where He Has Been Persuaded to TaTce Out a Policy By False Representations — Recovery of Premiums Paid — Limitation on the Authority of Agents — Representations By Agents and By Managers Distinguished — Speculation as to Profits — Meaning and Intended Effect of Representations a Question for the Jury — Charge of Court — Section 3631-4,' R. S.

    1. It is the settled law of this state that the holder of a policy of life insurance induced by fraud and misrepresentation may, by an action brought in due time, recover from the insurance company the amount of premiums paid with interest thereon and without deduction for intervening insurance which he has had and enjoyed.
    2. A limitation of the authority of agents, endorsed on the policy and on notices and receipts sent to the policy holder, are not available to the company as a defense, where the policy holder opened negotiations with the company direct and dealt with one who was termed “manager.”
    3. Representations made to a prospective policy holder as to profits accruing to the company, based upon past experience of the company, may have been intended as more than mere opinion and have constituted a representation as to the present condition of the company and its earning capacity upon which the assured had a right to rely, and the question of fact as to the meaning of such representations and the intention with which they were made, unlike the construction of a contract, may properly be submitted to the jury under proper instructions.
    4. A wide departure between the calculations made as to profits at the time the policy was taken out and the realization eight years later, constitutes evidence which may be considered by the jury upon the question of the falsity of the representations; and in an action for the recovery back of premiums paid no bar is raised by the provisions of Section 3631-4, R. S., nor by the four years statute of limitations where the petition alleges that the plaintiff continued to rely upon the representations in making his quarterly premiums, nor is the claim available to the company that the plaintiff should have read his policy where the falsity of the representations as to profits would not have been revealed by such reading.
    5. A jury having found that the policy holder did rely upon the representations so made to him as to profits, their finding will not be disturbed on the ground that the representations were so extravagant and the returns so large as to constitute notice to a reasonable person as to their falsity and negative any weight to rely thereon.

      A. F. Broomhall, for plaintiff in error. ^

      Ferdinand J elite, Jr., and C. B. Jameson, contra.
    Allread, J.; Dustin, J., and Ferneding, J., concur.

       Affirmed without opinion, Provident Life Assurance Society v. Statler, 88 Ohio State, — .

   Jessie DeOamp Statler brought suit in the court of common pleas to recover the amount of certain premiums paid by her upon an insurance policy, with interest. Sihe claims as a foundation of the action that she was induced to give up a yearly renewable term policy upon the life of her father, Ezekiel L. DeCamp, and take a level rate premium policy on a twenty year limited plan and keep up the premiums thereon, upon certain representations of the company. The material representations of the petition are that:

“Defendant company further represented to--thfjh^aintiff that the new policy would provide for paid up insu^Re, extended insurance, and additions at death, and participation in profits which in a few years would fully offset and pay the notes exacted on account of the reserve against the policy. Plaintiff further says that the said defendant company represented that at the expiration of the term in May, 1908, all premiums having been paid, said policy would became paid up for- life in the sum of $5,000 and that there would be due in • cash on account of the shares of the profits found to be apportionable to said policy over and above all notes and interest, .a balance of $1,144.90.”

Appropriate averments were made showing the falsity of the representations and the reliance of plaintiff thereon. The issues were joined and the case was tried, resulting in a verdict for the plaintiff for the full amount claimed.

The cause is here upon petition in error.

It is, we think, settled in this state that a policy holder whose policy has been induced by fraudulent misrepresentations, may, by action brought in due time, recover of the insurance company the amount, with interest, of the premiums paid, and without deductions for supposed benefit of intervening insurance. Insurance Company v. Pottker, 33 O. S., 459, 466; U. S. Life Insurance Company v. Wright, 33 O. S., 533. See Caldwell v. Insurance Company, 140 N. C., 100.

The assurance company contends that the agent making the representations had no authority to bind the company. This contention is founded upon a limitation of authority of "agents endorsed upon notices and receipts of premiums sent to policy holders, and by the following endorsement on the policy:

“Agents are not authorized to make, alter or discharge these contracts or to waive any of the provisions thereof or to- extend these assurances or to grant permits or to bind the society in any way.”

In making this contention, however, we think that the important fact is overlooked, that the transaction here was had through a special representative. Negotiations were opened up by the policy holder with the company direct. It is not clear how Bosworth & Company, for whom Rohrer acted, were brought into the transaction. But it is shown by satisfactory evidence that they acted for the company and as its special representative in making the exchange of policies, and were referred to by the company in the negotiations as “our manager at Cincinnati.” There was no intimation in the present transaction of limited authority, until it came to the endorsement on the policy. Whatever might be the binding force of a limitation of this bind upon soliciting agents or even so-called general agents, it should not be extended to apply to a “manager.” The authority of a manager is generally understood to be unlimited as to scope. It is true that the letter of the company to DeCamp in which Bosworth & Company were styled “manager” was subsequent to the representations, but it was pending the transaction, and before entirely concluded, and before the premiums were paid. If the company, instead of representing Bosworth & Company as “manager,” had stated that they were limited agents, having no authority to bind the company, a different case would be presented. Rohrer acted for Bosworth & Company and presented the representations prepared by Bosworth & Company. Acting, therefore, as managers in explaining the policy and making the representations the company is bound. The court of common pleas rejected evidence of the private contract between Bosworth & Company and the Assurance Company. This was entirely proper in view of the express authority contained in the letter to DeCamp.

It is contended that the Rohrer letter upon which the plaintiff relies is neither false nor misleading, and that the policy holder had no right to rely and did not in fact rely thereon.

It will be noted that the profits of the assurance company was a material consideration in several clauses and features of the policy. While the loan values and additions at death are expressly stated and guaranteed in the policy, the amount of the profits are not stated nor is any basis given in the policy for calculation. Clause 4 on page 2 of the policy provides for distribution of the profits, and under the guarantee clause on page 3 the policy holder may, at the end of the aecummulation period, surrender the policy and receive $3950, and in addition thereto the cash profits. Under another clause on the same page the assured is authorized to continue the insurance as a paid up life contract for its full amount and draw profits in cash.

The Rohrer letter and statement contain certain representations as to profits based upon past experience of the company. Such assurances may fairly have been intended to be more than mere opinion. They may have constituted a representation of the present condition of the company and its earning capacity, upon which the assured had a right to rely. Both DeCamp and Mr. Statler testify that they did rely upon Rohrer’s representation, and while they made inquiry of others as to certain features and for advice, there is not sufficient evidence to overthrow their testimony that they did in fact rely upon the representations of the Rohrer letter. It is insisted that the Rohrer letter is based upon the condition “all premiums having been paid,” and that this includes the payment of all the premiums from 1888, and that the policy holder having only paid the premiums from 1890 did not come within the scope of the representations. This construction of the Rohrer letter is more ingenious than convincing. The representation was made with reference.to the identical policy proposed to be exchanged and was intended to include the payment only of premiums called for in the exchange. It would be unreasonable, in our view, to assume that the letter contemplated the payment of premiums which were never to be paid or called for under the exchange. And also we think that the contention of counsel for plaintiff in error as to the construction to be given of the clause of the Rohrer letter in reference to paid up insurance, extended insurance, and additions at death offsetting the lien against the policy is too nárrow to be adopted by the court.

Whether the statements in the Rohrer letter were actually intended in the sense contended for by counsel plaintiff below was submitted to the jury under proper instruction as a question of fact.

It is also urged that the representations of the letter are so extravagent and the returns so large as to constitute notice to a reasonable person of their falsity and negative any right of reliance thereon. Whether the policy holder did in fact rely upon the representations is a question of fact to be determined from the evidence, and we are not prepared to lay down a proposition that would permit the perpetrator of a great fraud to escape the consequences thereof because of the extravagence of the ^presentations and credulity of the person defrauded. When the question of fact is fairly determined that the party defrauded did in fact believe and rely upon the representations and parted with value, it is not competent for the one guilty of the fraud to set forth in justification that the party defrauded was too credulous and ought to have exercised better judgment. Again, it is urged that the representations of the Rohrer letter are mere estimates of future earnings and as such did not legally justify reliance thereon.

The representation of the Rohrer letter in this respect is as follows:

“At the expiration of the term (1908), all premiums having been paid, the policy becomes paid up for life, $5,000, and there is due in cash the shares of the profits then found to be apportionable to said policy. Past experience of our company warrants us in figuring such policies as yours at a dividend paying basis of $920 on each $1,000 of insurance, which would figure your policy at $4,600, less notes and interest, $3,455.10, leaving a cash balance of $1,144.90, and a paid up contract for life for $5,000.”

This representation is one of present condition of the company based upon past experience. It may be' considered a representation of an existing fact, to-wit, existing condition as represented by past experience, from which the company, through its agent, merely calculated as to future results as a bank figures dividends. It is not necessarily based upon the future uncertainties but reflects upon present conditions. The policy holder was, therefore, entitled to rely upon this representation, and the representation tends to sustain the charge made in the petition in reference to “paid up insurance” and “participation in profits.”

It is urged that there is no proof of the falsity of the representation of the Rohrer, letter as to existing condition of the company as to profits. The representation is, in substance, that, based upon past experience, they were warranted in figuring, this policy on a dividend paying basis of $920 on each-$1,000 of insurance, and that this would figure the policy under consideration at $4,600, less notes and interest, leaving a cash balance of $1,144.90, together with paid up insurance of $5,000.

It is true that there is no exhibition in evidence of the precise condition of the company at the time this representation was made, but that is not essential. The company itself admits in 1908 such a state of affairs as to constitute a wide departure from its assurances based upon past experience and present condition. Instead of the profits of the company being such as to offset the reserve note, the condition of the company proved to be such that the assured would only receive by surrendering his policy and all benefits thereof $134.90 in addition to the reserve note and contract. The wide departure between the calculations made in 1900 and realization in 1908 is some evidence to be considered by the jury upon the subject of the falsity of the representations in the Rohrer letter. The only explanation attempted to be made is the reduction in the approved values of the real estate in the' sum of $440,000 made by the New York Insurance Department. This reduction may be fairly considered as tending to show the inferior condition of the assets of the company rather than as a satisfactory explanation of reduced profits.

It is urged that the assurances in the Rohrer letter, whether considered as a contract or as a representation, was in violation of Section 3631-4 of the Revised Statutes and should not therefore be made the basis of a cause of action.

We are unable to understand how any of the" provisions of this statute prevents a right of action for fraudulent representations, This action does not seek to enforce the representations as a contract, but simply to recover the premiums that would not have been paid except for the representations. There is no discrimination contemplated in the representations. There is no intimation in the representations that Mrs-. Statler was getting a better policy than others issued by the company. The representations affect matters ele hórs the contract. It was not the intention of the Legislature, in our opinion, by this statute to prevent the recovery back of premiums secured by fraud.

It is contended in the brief in this court that it is not shown that the action was brought within four years after the fraud was or ought to have been discovered. We are not advised as to whether this question was made in the trial court. There was no demurrer filed to the petition, the defense of the statute of limitations was not made in the answer, nor was there any special request of the court to charge upon this subject. The first occasion when the question could have been considered was on the demurrer to the reply.

The allegation of the petition, that the plaintiff continued to rely upon the representations in making the several quarterly payments of premium, in connection with the still broader averments of the reply in that respect, justified the overruling of the demurrer. The evidence offered on the trial tends to show that the falsity of the representations as to profits was not discovered until after the accumulation period, and it does not appear that there was any such state of facts brought to the notice of the policy holder before that time as would lead to a discovery of the facts.

Cases are cited by counsel for plaintiff in error in which it is held that the insured is bound to read the policy, and if it fairly appears therefrom that the falsity of the representation could have been discovered from the policy, the assured is held bound thereby. But so far as the cash profits are concerned no examination, reading or spelling out of the entire policy gives any notice of the falsity of the representations as to the amount.

The court also submitted to the jury the question of fact as to whether the representations as to the amount of profits were intended to be representations of existing fact, estimate or opinion of future profits. See Williams v. State, 77 O. S., 468; Beckwith v. Ryan, 67 Conn., 589; Rohrschneider v. The Knickerbocker Life Insurance Company, 76 N. Y., 216.

The verdict of the jury under these instructions amounts to a determination of the fact so far as susceptible of that meaning in favor of the plaintiff, and ought not to be disturbed, unless manifestly against the evidence.

We have carefully examined the special charges and the general charge of the court and find no prejudicial error therein. There is ample authority in the cases cited by counsel for the defendant in error to • sustain the action of the court in submitting to the jury the question of the representations and the meaning of the representations of the Rohrer letter. In fact counsel for plaintiff in error' submitted special charges to that effect, which were given. The question of fact as to the meaning of representations, although in writing, is unlike the construction of a contract. The latter should be decided by the court; the former may be left to the jury.

It is contended that the policy offered no promise of definite profits, and that, therefore, the policy holder was bound to inquire. We think this is fully met by the proposition that she relied upon the representation of an authorized agent of the company as to condition and earning capacity. It is also contended that the court impropely submitted to the jury the question of whether the policy itself was misrepresented. It is argued that the policy holder was bound to read the policy and was therefore charged with knowledge of its contents.

There are in some two 01» three paragraphs of the charge of the court references to misrepresentation as to the terms and provisions of the policy. But as the case was clearly reduced by the court to misrepresentation of the condition of the company as to profits, the amounts of which were not defined in any clause of the policy, the charge of the court in this respect was not prejudicial error.

The request to withdraw the representation as to “paid-up insurance, extended insurance,” and “additions at death,’-’ off-setting the lien, was properly refused. There was evidence tending to show misrepresentations as‘to “paid-up insurance,” and hence the special request was faulty. The general charge we think properly reduced consideration to the question of misrepresentation of the condition as to profits.

Counsel raise an objection as to defect of parties, but in our opinion all the necessary parties are before the court.

We find no prejudicial error in the record, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DUTY OF PEDESTRIAN AT STREET CROSSING OF SEVERAL RAILWAY TRACKS.
    Circuit Court of Cuyahoga County.
    Nicola Cerri (Substituted for Gaetano Liotta), as Administrator of Biagio Sidoti, Deceased, v. The Erie Railroad Company.

    Decided, December 17, 1909.

      Railway Crossing — Pedestrian to Look Both Ways at Each Track.

    A pedestrian crossing several railroad tracks at a street crossing should look both ways just before going upon each track, if there is time so to do.
    H. F. Payer and J. V. Zolierelli, for plaintiff in error.

      Gushing <& Siddall, contra.
    Winch, J.; Henry, J., and'Marvin, J., concur.

      Affirmed without opinion, Cerri, Admr., v. Milvale Goshen Coal Co., 85 Ohio State, 444.

   This was an action for wrongful death. Sidoti was killed at the Broadway crossing of the Erie Railroad in the city of Cleveland. At that point Broadway runs substantially north and south and the tracks of the railroad company run east and west. There are fivé tracks at this point. Proceeding from the south, as Sidoti did, the first track is a switch, or coal -spur, the next a siding, then comes the east-bound main track, next the westbound main track and last a switch or siding. Gates are maintained at this crossing, operated from a tower on the east side of Broadway, north of the tracks. These gates, one south oE the tracks and the other north of the tracks, are hinged on the east side of the street; when let down they extend over to the west side across the street.

Just before this fatality occurred the gates were down and Sidoti stood on the west sidewalk of Broadway with other persons, waiting for a train going west on the fourth track from Mm, to cross the street. Immediately to the west of him on the first switch were two box ears which obstructed Ms view in that direction.

Following the west bound freight train on the fourth track was a caboose, traveling west by gravity and about one hundred and fifty feet behind the freight train.

There is evidence tending to show that before this caboose crossed the street and while it was in full view of Sidoti, the gate was raised, Sidoti started north and then the gate was again lowered behind him. At least, such is the claim of the plaintiff in error.

Sidoti was killed by a train coming from the west. Iiis administrator claimed that this train was on the second track, or siding; the company claimed that it was on the third, or eastbound main track. There being a conflict in the evidence on this point, the court submitted the case to the jury charging however, among other things, as follows:

“And here I say to you, that plaintiff claims that decedent was injured by the engine while it was running on the switch track or long siding; while defendant claims that the engine was running on the east-bound main track. .If you find that the engine that struck Sidoti was running on the east-bound main track as claimed by the defendant, the plaintiff could not recover, as I say to you that it is undisputed from the evidence that the space between the coal spur track and the east-bound main track (eighteen or nineteen feet), is such that if the decedent had exercised ordinary care for his own protection, in other words, if the decedent had looked and listened, he would have seen this engine in time to have avoided being struck by it, and not to have seen it and avoided it would be such negligence as to bar recovery in this case.”

The jury brought in a verdict for the defendant and so we have it settled for the purposes of this case, that the train which killed Sidoti was on the third track. As stated by the court, the distance between the first track and the third track was eignteen or nineteen feet. It is claimed, however, that the distance between the north side or overhang of the box car on the first track and the south side, or overhang of the engine on the third track, was only fifteen feet. "While traveling this distance Sidoti had a clear and unobstructed view of the train approaching from the west and could have seen it in ample time to avoid the accident, if he had looked. lie may not have heard it because of the rumble of the west-bound freight on the fourth track.

The sole question, however, for review in this case is whether, under the circumstances, Sidoti was negligent in not looking to the west that the court was warranted in finding, as a matter of law, that he thereby contributed to his own injury, and that there could be no recovery.

The case of Railway Company v. Schneider, 45 Ohio St., 678, is relied upon for a reversal of this case, The third paragraph of the syllabus of that case is as follows:

“When gatemen are maintained at such crossings, it is their duty to observe the tracks and know when, on account of trains or engines thereon it becomes dangerous for persons to cross, and when it is so, to close the gates and keep them closed to prevent persons from going upon the tracks so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have a right to presume, in the absence of knowledge to the contrary, that the gate-men are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the gate-man in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or to pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.”

It will be noticed that the Schneider case formulates the law for persons driving teams across railroad crossings, and holds that it is not negligence for persons approaching the crossing with teams to drive at a trot, or pass onto the tracks through the open gates without stopping to listen; nor in"such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet- or more from the crossing, negligence, though they could have been seen.

We apprehend that this rule is applicable only to persons with teams or other motive power, more or less difficult to control. A pedestrian can stop short in his tracks; not so with horses on a trot.

At least, if the same rule is to be applied to pedestrians — it is proper that the court which finally settles the law should say so, for the syllabus of the Schneider case very carefully limits it to persons with teams, and we can not overlook that fact.

There is another reason why the Schneider ease does not rule this case. It is there held that, “Persons approaching the crossing or about to cross have the right to presume, in the absence of hnoivledge to the contrary, that the gatemen are properly discharging their duties,” and again: “Hence an open gate with the gatemen in charge is notice of a clear track and safe crossing, in the absence of other circumstances.”

What were the circumstances here?

The brief of counsel for plaintiff in error says: ‘ ‘ The almost undisputed testimony is that his (Sidoti’s) attention was drawn toward a caboose that was approaching Broadway on the westerly bound main track.” Then he saw that it was approaching when the gate went up and knew that the gateman was not properly discharging his duty; he had knowledge to the contrary. In the light of this circumstance the open gate was not notice of a clear track and safe crossing. Such being the case, he went into a dangerous place, not only without invitation but in the face of one known danger, and neglected to look for the other danger “just before going upon the track,” which is the time to look. Railroad Company v. Kistler, 66 Ohio St., 326. This means that where there is more than one track, one should look both ways just before going upon each track, if there is time so to do.. ‘ ‘ The train has the right of way on each track. ’ ’ This is so because the person can stop within a few feet, and the train can not. Sidoti could not see to the west before he crossed the first track, because of the box cars on it. Had he looked before he crossed the second track he would have seen the train in ample time to avoid it. That was the first time he was called upon to look; for it was the first time he could see in that direction; the approaching train was upon the third track. He was then struck because he did not look to the west.

There seems no explanation of this accident, but his own negligence.

Judgment affirmed.


text:
    CONFINEMENT IN JAIL FOR. VIOLATION OF AN ORDER. OF INJUNCTION.
    Circuit Court of Cuyahoga County.
    S. A. Grossner v. State of Ohio.

    Decided, December 17, 1909.

      Final Judgment — .Evidence of — Presumption—.Injunction Bond t>y Corporation — Validity of — Punishment for Contempt.

    1. Where a supplemental petition is filed in a case and judgment rendered upon it, it will be presumed that final judgment had not been rendered on the original petition and the case disposed of so as to preclude further judgment in the case, unless the record affirmatively shows the contrary.
    2. An injunction bond is not invalid because given by a corporation, the name of which is signed to the bond by its attorney of record, not an officer of the corporation, provided proper sureties have signed the bond as provided by law.
    3. Confinement in jail for ten days as punishment for violating an order of injunction is excessive punishment not authorized by R. S., Sec. 5581.

      Francis J. Wing, Herman Pretisser and Simon A. Grossner, for plaintiff in error.

      M. P. Mooney, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Grossner v. State, 85 Ohio State, 312-318.

   Plaintiff in error was found guilty of contempt’of court in violating an order of injunction issued by the Common Pleas Court of Cuyahoga County. That he violated the order is conceded, but he justifies on the ground that the order was of no validity, for two reasons, first, because the court had no authority to issue it; and, second, because no proper undertaking was given by the party obtaining it.

The record before us discloses that the order violated was made on a supplemental petition filed October 16, 1909, in cause of No. 111093, in the common pleas court and sought to temporarily restrain Mr. Grossner from prosecuting forty-nine suits against the Citizens Savings & Trust Company pending before a justice of the peace, based upon its liability as garnishee in certain actions against forty-nine persons in which Grossner had obtained judgments which are alleged to be invalid. This supplemental petition further prays that upon final hearing the plaintiff may be granted the relief prayed for in its original petition. The supplemental petition alleges that said forty-nine suits were brought after the filing of the original petition which asked for relief against other similar suits theretofore begun.

It is claimed by Grossner that the court had no jurisdiction to grant a restraining order upon this supplemental petition, - because the original case had long since been disposed of by a final decree entered on January 18, 1909. This decree is set forth in the bill of exceptions, as well as the order of injunction which was violated and these two orders are the only evidence in the record as to the ease in which they were entered.

There is no. copy of the docket entries, no pleadings (indeed it is shown in evidence that all the original pleadings have been lost), no copy of the record of the case, if one was ever made; all we have from which to determine whether the order of January 16 was intended as a final disposition of the case is the order itself, and we have no evidence as to whether that order was ever attacked by motion for new trial during the term, petition to vacate it after the term, or proceedings for its review in a higher court.

Two recitals in said January decree are called to our attention as fixing its character as a final judgment disposing of the entire case. The opening words of the decree are as follows:

“This cause having been duly advanced for hearing upon the docket of the court, came on for hearing upon the petition of the plaintiff and the answer of the defendant and the evidence, and was argued by counsel. ’ ’

It may be conceded that the final judgment in a case wou'd read about like this, but does it follow that an interlocutory order of injunction could not possibly open with these words? We think not.

The pleadings may have been sworn to absolutely and so have been used as affidavits. The fact, as recited, that the cause was advanced, is very strong evidence that the whole cause as distinguished from an application for a restraining order only, was heard, but it is not conclusive that the entire case, after hearing, was finally disposed of. It is common knowledge that upon final hearing of an equity case something develops in the evidence which induces the trial judge to grant partial relief, but retain the cause for further consideration of some of the matters in issue. In this case it seems that the court saw fit to temporarily enjoin the further prosecution of the justice cases, but did not adjudicate the validity of the causes of action therein set up. An adjudication of that kind necessarily would have been a final disposition of the entire matter. In the absence of such an adjudication it must be presumed that the court intended to consider that matter later, if it became necessary so to do, or to abide and adopt the decision in the test ease which is mentioned in the decree.

With this in mind the language..of the decree “without determining any issue made or raised in this ease and without prejudice to the rights of the parties hereto to try any and all of said issues,” in said test case, becomes plain and must be held as meaning that the decree is not intended as a final one.

It is also claimed that the bond ordered to be given in the January decree shows that said decree was a final one. The conditions of said bond are specified, while the statute, 5576, uses the general language “to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted.” As we read the decree we think the bond ordered to be given is as comprehensive as it would have been had the general words of the statute been used instead of the specification of the damages likely to be sustained.

It is true that the bond is even broader and such as might be ordered in a final decree, but this fact is not conclusive of the question here made, for, in addition to the express words used in the decree reserving issues to be tried, it lacks one of the most characteristic elements of a final judgment and that is an adjudication as to costs. The January decree gives no judgment for or against either party as to costs; it is silent on the subject. The cause was therefore unfinished.

“Section 1319. On the rendition of judgment, in any case, the costs of the party recovering together with his debt or damages, shall be carried into his judgment.” See also Sections 5348 and 5351.

Having concluded that the January decree was not intended as a final disposition of the cause, it follows that the case was still pending when the supplemental petition was filed and that the court had authority in the original case and without causing the supplemental petition to be filed as a new case, to make the order which Grossner violated. This conclusion is strengthened by the presumption in favor of the latter order which is expressed by the maxim, “omnia praesumuntur rite acta.”

The next question in the case is whether Grossner had a right to disregard the order made in October because of insufficiency of the bond filed by the plaintiff in the case.

The plaintiff was a corporation and its name was signed to the bond by its attorney of record in the case, and nó authority, specific or general, from the corporation’s board of directors authorizing its attorney to sign its name to such bonds, was shown. The bond, was, however, executed by sufficient surety approved by the clerk of the court.

Conceding that the authority of the attorney of record in the case did not authorize him, in the absence of a showing that his client could not be reached, to sign the corporation’s name to the bond, we still think the bond was sufficient as a literal compliance with the statute, Section 5576, which only requires the plaintiff to give an -undertaking, executed by sufficient surety and does not specifically require tbe plaintiff to execute tbe bond. The authorities upon this subject are found in the case of Johnson v. Johnson, 31 O. S., 131. We believe that case was decided upon the wording of a similar statute relating to appeal. bonds, and not upon the suggestion contained in the opinion that the appellant would be bound by any judgment that might be rendered in the appellate court without obligating himself by an undertaking to be so bound. We realize that such is not the case with an injunction bond; there can be no recovery against a plaintiff in injunction for damages sustained by the wrongful suing out of an injunction, except upon an injunction bond. But the bond executed by the surety in this case is so worded as to make him liable for his promise, whether his principal signed it or not. It reads:

“We bind ourselves to the said defendant in the sum of two hundred dollars that the said plaintiff the Citizens Savings & Trust Company shall pay to the said defendant the damages he may sustain by reason of the restraining order in this action, if it be finally decided that the said restraining order ought not to have been granted.”

This is an original promise upon the faith of which the order of injunction went into effect, and it is unnecessary to determine whether it savors of suretyship or guarantyship.

We suggest further that the plaintiff in this case may be liable on said bond under the rules not only of estoppel but of ratification.

The evidence in the case warranting the application of either or both of said doctrines we do not find it necessary to set forth,' as we rest the sufficiency of said bond upon the wording of the statute requiring it to be given.

Finding the bond sufficient, the plaintiff in error was without excuse in violating the order of injunction. He was clearly in contempt of court when he disregarded the order. The only point made as to any inequities in this trial upon the contempt charges, is as to the sentence. The court ordered a confinement in jail for ten days as punishment for violating the order, to be followed by confinement until tbe order was complied with. Clearly this was excessive punishment not authorized by the statute, Section 5581.

For error in the sentence alone, the judgment is reversed and the cause remanded for re-sentence according to law.

It follows that the judgment in the habeas corpus case must also be reversed, and judgment rendered for the applicant.


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    ACT RELATING TO TAXES FOR BRIDGE PURPOSES UNCONSTITUTIONAL.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel John A. Cline, Prosecuting Attorney, v. Robert C. Wright, Auditor.

    Decided, January 17, 1910.

      Constitutional Law — Bridge Fund — Section 2824, Revised Statutes Unconstitutional.

    That part of Section 2824, Revised Statutes, which provides “that in all cities of the second grade of the first class, and all cities of the second class, one-half of the proportion of said bridge fund collected (under a levy by the county commissioners) upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by^such city for the purpose of building and repairing bridges,” is unconstitutional.

      W. D. Meals and John A. Cline, for plaintiff.

      Newton D. Baker, contra.
    Winch, J.; Henry, J., concurs; Marvin, J., not sitting.

       Affirmed without opinion, State ex rel, v. Wright, Auditor, 84 Ohio State, 448.

   In this case we hold that the clause of Section 2824, Revised Statutes, which provides, “that in all cities of the second grade of the first class, and all cities of the second class, one-half of the proportion of said bridge fund collected (under a levy by the county commissioners) upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by such city for the purpose of building and repairing bridges,” is unconstitutional. We do not base this conclusion solely upon the claim that this legislation is in contravention of the constitutional requirement that laws of a general nature shall have uniform operation throughout the state, for we appreciate the fact that there is some force in the suggestion that by general law, both cities and counties are authorized to levy and collect taxes for bridge purposes and expend them in building and repairing bridges, and that a division of funds so raised, or transfer thereof, from one authority to ‘ another, may be merely a local matter (though the petition shows no facts which differentiate Cleveland from other cities in the state in that respect) but we are clearly of the opinion that the authority conferred by this special act upon certain cities to demand and to receive one-half of the bridge fund is a conferring of corporate powers, and so is inhibited by Section 1 of Article XIII of the Constitution which provides that: “The General Assembly shall pass no special act conferring corporate powers.”

Judgment reversed.


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    LENGTH OF TERM OF JUSTICE OF THE PEACE IN A NEWLY CREATED TOWNSHIP.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel M. J. Penty, v. A. H. Hansen.
    Decided, January 24, 1910.

      Justice of the Peace in New Township — Term of.

    A justice of the peace elected in a new township at a special election held on a day fixed hy the common pleas court, pursuant to Section 566, Revised Statutes, holds office until the election of a successor at the first general township election thereafter held.

      Matheius & Orgill, for relator.
    Winch, J.; Henry, J., and Martin, J., concur.
   Relator by his application in this case represents that he was duly elected to the office of justice of the peace in and for the township of Corlett, Cuyahoga county, Ohio, at the November election, 1909, and has qualified by giving bond which has been approved, and has received his commission as such justice of the peace and recorded the same with the clerk. He further represents that the defendant is unlawfully holding said office and excluding the relator therefrom.

It appears that the township of Corlett was duly created as a new township May 4, 1907, whereupon, pursuant to Section 566 of the statutes, the Common Pleas Court of Cuyahoga County determined that there should be one justice of the peace for said township, and fixed the 25th of May, 1907, as the day for his election. Upon said day the defendant was duly elected justice of the peace for Corlett township, and the question in this case is, for how long a term was he elected?

The statutes regulating such matters are somewhat indefinite and inconsistent, because after the amendment of the Constitution in November, 1905, changing the term of office of a justice of the peace from three years to such even number of years not exceeding four years as may be prescribed by the General Assembly, tbe latter failed to amend all of the sections of the statutes bearing upon this matter, but did amend Sections' 567 and 1442 in such manner as to provide that justices of the peace should be chosen for a term of -four years the first Monday in November in the odd numbered years, and that their terms of office should commence on the first day of January next after their election. No change was made in Section 566, and in order that the general scheme of elections as outlined by the constitutional amendment and the amendments of the statutes which the General Assembly did make pursuant thereto may be carried out, so that township and municipal officers, including justices of the peace, shall be elected only at the November election in the odd numbered years, we are required to hold, as we do, that Section 566, which authorizes a special election to be held on a day to be fixed by the common pleas court, simply provides for the election of a justice of the peace to hold office until one can be elected at the first general township election thereafter held.

So interpreting the statute it would seem that defendant’s term would have expired on January 1, 1908, and that at the November election in 1907, a justice of the peace should have been elected in Corlett township to hold office for four years from January 1, 3908. No such election was held, however, until the November election, 1909, at which time the relator was duly elected, and we hold that his term began on January 3, 1910, and will continue for four years.

It follows that the relief prayed for by the relator should be granted.

Judgment of ouster of the defendant and induction into office of' the relator.


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    CORRECTION AFTER TERM OF CLERICAL ERROR IN ENTRY OF JUDGMENT.
    Circuit Court of Cuyahoga County.
    Charles W. Wrentmore v. E. E. Wrentmore.
    Decided, February 7, 1910.

      Judgment — Correction of, to Conform to Actual Judgment — Nunc ProTunc Entry After Term.

    A court has .power after the term, by a nunc pro tunc entry, or otherwise, to amend and modify its judgments or decrees, or the entries thereof, so as to correct clerical errors and make the entries conform to the judgments and decrees actually rendered.

      Bttrroius c& Mason, for plaintiff in error.

      C. L. Gates, contra.
    Winch, J.; TIenry, J., and Marvin, J., concur.
   This is a proceeding to reverse a judgment of the common pleas court entered at the September term, 1909, correcting the entry of a judgment made by said court at the July term, 1907.

The judgment complained of recites;

“This action came on to be heard upon the motion of plaintiff to correct the journal entry heretofore placed upon the journals of this court in said action, so that it may conform with the actual judgment by the court, and was submitted to the court upon the evidence, and the court being fully advised in the premises, finds that statements of fact contained in said motion are true. It is therefore ordered, adjudged and decreed that said journal entry heretofore placed on the journals of this court, be corrected so as to-conform with the actual judgment rendered by the court by adding thereto the following,” etc.

The bill of exceptions shows that the evidence offered in support of the motion was the motion itself used as an affidavit and the trial judge’s recollection.

It may be assumed that the law of the case is fairly stated by counsel for plaintiff in error in his brief, as follows:

“A court has no power after the term, by a nunc pro tunc entry, or otherwise, to amend or modify its judgments or decrees or the entries thereof, except to correct clerical errors and. make the entries conform to the judgments and decrees actually rendered, and except when under the express authority of Section 5354 of the Revised Statutes of Ohio. ’ ’

As there is no claim that this motion was under the express; authority of said Section 5354, the only point to be examined is whether its purpose was to correct a clerical error and make the original entry conform to the judgment actually rendered.

The motion is as follows:

“The said plaintiff respectfully represents to the court that at the trial of the above entitled action the court heard and determined certain matters in dispute between the parties, but did not hear or determine the rights and liabilities of the parties in reference to the inventory of the chattel property of the co-partnership formerly existing between plaintiff and defendant, nor the rights and liabilities of the parties in and to the chattels covered by said inventory, but all questions in regard to the same were reserved to be determined by the parties themselves.
“Said plaintiff further represents that the journal entry placed upon the journal of the court contains no entry whatever in reference to the said inventory and the goods and chattels of the co-partnership covered thereby or the rights and liabilities of the respective parties in reference to the same, but that by intendment of law said journal entry is res adjudicada, as to the said inventory and goods and chattels covered by the same and the rights and liabilities of the parties in reference thereto; that said journal entry fails to truly and correctly state the judgment of the court in said above entitled action, in that it, by legal effect finally adjudicates and determines the rights and liabilities of the parties arising from and growing out of said inventory and the chattels covered by the same, although, as a matter of fact, the court did not hear, adjudicate or determine any of the said rights and liabilities of the parties.
“Wherefore said plaintiff moves the court to correct said journal entry so as to conform with the actual judgment rendered by the court, and for such further order in the premises as may be proper.”

It seems to state specifically enough that the court did no(b hear or determine the rights- and liabilities of the parties as to certain matters, and that said matters were reserved to be determined by the parties themselves.

It further states that the journal entry fails to truly and correctly state the judgment of the court.

The recollection of the judge was to the same effect.

The prayer of the motion was that the court correct said journal entry so as to conform with the actual judgment rendered by the court.

The judgment rendered on the motion is that the entry "be corrected so as to conform with the actual judgment rendered by the court, ’ ’ and sets forth what that was.

We think the trial judge having found the fact to be that the entry originally made did not conform to the judgment he had actually rendered, had full authority to correct it so to show the actual judgment rendered, and that he acted upon proper evidence. Jacks v. Adamson, 56 Ohio St., 397.

Judgment affirmed.


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    INVALID DEEDS ALLOWED TO STAND.
    Circuit Court of Cuyahoga County.
    Ernest Becker v. Edla F. Shade et al.
    Decided, February 7, 1910.

      Action to Set Aside Deeds Irregularly Executed — Estoppel—Ratification — Tender Bach of Consideration.

    In an action to set aside deeds because of their invalidity under the law, relief will be denied the plaintiff where it appears that he has not been wronged or defrauded; that he actively brought about the very situation of which he complains; that he took no prompt steps to notify the defendants of the defect in their title; but stood by while they expended money on the property and made no offer to place the defendants in statu quo.

      F. C. Hartman, for plaintiff in error.

      J. N. Natty, H. B. Grotty, Louis B. Spanner, Fred Bruml and James Hossack, contra.
    Winch, J.; Henry, J., and Marvin, J.; concur,
   This, is an action to set aside two deeds because of their invalidity under the law of Ohio.

The defendants are charged with no fraud; at least so far as the evidence shows, they were innocent purchasers who paid full value for the property; but plaintiff demands his property back, and claims that he is entitled to receive it, solely upon the ground that said deeds were ineffectual to pass the title to the property.

We are inclined to think that a fraud would be perpetrated upon the defendants, if we should grant the relief prayed for by the plaintiff.

It seems that in the latter part of 1908, the plaintiff, desirous of disposing of some vacant lots he owned upon Broadway, in the city of Cleveland, which were encumbered for all they, were worth, and contemplating a trip to Europe, signed a blank form of quit-claim deed, which contained no description, grantee’s name or consideration, and acknowledged the. same before a notary, who, however, did not at the time certify to the acknowledgment. This deed was left with an agent with instructions to trade off the Broadway property as best he could, and to fill in the blanks in the deed, when he got a customer. The agent traded the property with defendant, Edla F. Shade, for some improved property on Holyoke avenue, the latter being deeded to plaintiff’s daughter to hold for him, and produced the quitclaim deed in question which meanwhile had been .filled in and signed and acknowledged by plaintiff’s wife. Mrs. Shade’s husband demanded a warranty deed of the premises, and this was furnished, the plaintiff’s wife signing his name to it and procuring two witnesses and a notary’s certificate of acknowledgment to it; how she managed to do this, we do not know. The Shades had no knowledge that plaintiff was in Europe and supposed both deeds to be genuine and valid. They both appeared to be perfectly regular upon their face.

That these deeds were invalid is clear, and so we stated upon the hearing, but we heard the evidence of the defendants as to their claim that plaintiff should be estopped from asserting their invalidity.

We have no doubt, however, that plaintiff fully believed that he could convey a good title by the quit-claim deed he signed* and intended it to have that effect, and we believe that he instructed his wife to sign his name to any papers that might be needed to transfer said property, and perhaps believed that she could so give good title thereto.

It is apparent from the evidence that plaintiff never knew or supposed the deeds in question were invalid, until the Broadway property had been improved, and he then found 'it to his interest to upset the transactions.

Both these deeds were dated November 19,. 1908. Plaintiff returned from Europe December 19, 1908, and at once was informed of the transaction by his wife. He investigated the transaction, inspected the Holyoke property, and in January, 1909, told his agent that he hadn’t got much of a bargain, but that the other side hadn’t got any better. His agent told him that Shade was willing to trade back, and this was a fact, but he permitted the agent to collect the rents of the Holyoke property, collected rents himself and notified the tenants that he was their landlord, promising them repairs.

In February, Edla F. Shade contracted to sell the Broadway property to defendant, Blanche Epstein, and the transaction was soon concluded by a deed. Mrs. Epstein paid off mortgages and other liens on the property, mortgaged it to defendant, the Ohio Savings & Loan Co., to secure a building loan, and com-1 menced the creation of a block on the premises.

Plaintiff knew of the erection of the building, at one time visiting the premises and telling Mr. Epstein, then present, that he had more nerve than plaintiff had to improve that property. When said building was nearly completed plaintiff began this suit, offering to deed back the Holyoke property, but tendering no deed until after the conclusion of the hearing in this case.

While plaintiff, perhaps in May, sent notice to Mr. Shade, husband of Edla F. Shade, of his claims, he never notified Mrs. Shade or the defendant, Mrs. Epstein, of his claim.

Plaintiff has never tendered to defendants their expenditures in removing certain liens from the Broadway property.

If the foregoing statement of the facts of the case seems- incomplete to plaintiff’s counsel, it is because we have disregarded plaintiff’s own testimony because of our lack of belief in his veracity.

There appear to be three reasons why plaintiff should not recover in this case:

He has not been wronged or defrauded; he actively brought about the very situation of which he now complains.

He did not promptly take steps to notify defendants of the defect in their title, but stood by while they expended money1 upon the property; indeed, if such imperfectly executed deeds can be ratified, he did ratify and confirm them.

He has not offered to put defendants in slatu quo. The tender of a deed was not sufficient.

Petition is dismissed.


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    ATTACHMENT FOR. SERVICES RENDERED A NON-RESIDENT.
    Circuit Court of Cuyahoga County.
    The Citizens Savings & Trust Company v. S. A. Grossner.

    Decided, May 7, 1910.

      Garnishee Process — Action for Services — Service on Garnishee — Individually or as Receiver — Funds in Garnishees Sands Bound.

    1. Attachment will he in an action for services rendered a non-resident.
    2. Service upon a garnishee requiring it to answer whether it has in its hands, either individually or as receiver money belonging to the debtor, is sufficient to sustain an attachment.
    3. In an action against a garnishee it is sufficient to show that at the time service was had upon him he had in his possession property belonging to the debtor.

      M. P. Mooney and M. B. c& E. E. Johnson, for plaintiff in error.

      Eerman Preusser, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Citizens Savings & Trust Co. v. Grossner, 83 Ohio State, 443.

   This was an action brought by Grossner against the bank for failure to answer as garnishee in an action against one Eekhoff. It is conceded that the bank has in its hands funds belonging to Eekhoff, sufficient to pay the judgment against him, but certain technical objections are raised as reasons why it should not respond. We shall examine them in their order.

The first point is that the justice’s record does not show that the action against Eekhoff was one in which an attachment is authorized by the statutes:

The statute authorizes an attachment against a non-resident of the county, when the claim is for a debt or demand arising upon contract. The record shows that the defendant was a non-resident and that the action was for services rendered.

We can imagine no action to recover the value of services which does not arise upon a contract, express or implied.

It is said that the bank was never properly served with the order of attachment because it is described in the affidavit therefor as the Citizens Savings & Trust Company, individually, or as receiver, as garnishee. The record shows that the bank was served. The purpose was to require the bank to answer whether it had in its hands, either individually or as a receiver, funds belonging to Eckhoff. There is no alternative naming of a defendant, so that it is doubtful what defendant was required to answer, as' in eases cited; the proper defendant was named and served, and was required to answer in both capacities.

It is claimed that the judgment against Eckhoff, a non-resident, was void, because the justice did not first find that there were funds in the hands of the garnishee belonging to him before he continued the case for service by publication. The record does show, however, that the justice after judgment found this fact, and this we think sufficient. Indeed, it is sufficient,in an action against the garnishee, if the fact be that at the time of service upon him he have in his possession property belonging to the defendant. Root & McBride Bros. v. Davis, 51 O. S., 29.

We find no merit in the claim that the docket of the justicie fails to show how'much money the bank was ordered to pay and that the order to pay several upon the bank, directed it to pay the money to one named as special constable, whose authority as such was not shown.

The order to pay was, in effect, a letter or notice which came to the bank’s hands as a demand that it hold Eckhoff’s funds for the payment of Grossner’s judgment against him. The bank did not see fit to comply with said order, but now, in this suit, being formally called upon to respond, and it appearing clearly that Grossner has a valid judgment against Eckhoff and that the bank has in its hands sufficient funds to pay it, we see no good reason why it should refuse to do so.

Judgment affirmed.


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    AS TO QUALIFICATION OF COMMISSIONERS IN PARTITION.
    Circuit Court of Lorain County.
    Clifford S. Terrell v. Electa Leonard et al.
    Decided, April 29, 1910.

      Partition — Disinterested Commissioners — Discretion of Commissioners.

    1. Commissioners in partition are not disqualified to act because they have decided views of the value of the land to be aparted and have previously expressed such view, provided they are otherwise disinterested, as required by, the statute.
    2. Commissioners in partition are by law required to make a division of the land in an equitable manner, and before their award will be set aside, it must appear clearly that the discretion thus vested in them has been plainly abused, or that they have made a manifest mistake.

      D. J. & I). F. Nye and F. M. Stevens, for plaintiff in error.

      Stroup é Fmver, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action to partition about twenty acres of land of peculiar shape, being only 144 feet wide and over a mile long, lying on both sides of the Cleveland road a few miles east of Elyria. The plaintiff, Clifford S. Terrell, owned five-sevenths, and his sister, Electa Leonard, one-seventh, and his brother, Edwin Terrell, one-seventh. About two acre's of the land lies south of the road from which it rises to the well-known fertile ridge which makes such beautiful sites along this road. On this piece is the old farm house and some outbuildings. The eighteen acres north of the road drops off sharply from it to a lower level which is somewhat wet and wooded at the northern end. Clifford owns the adjoining farms on both sides of this entire strip, both north and south of the road. On the north piece is a barn half on this land and half on Clifford’s adjoining land, another barn and a shed connecting the two barns. All the buildings on both pieces were built many years ago.

The commissioners first appointed found the land divisible by metes and bounds, and set off to Clifford as his five-sevenths, all the land lying north of the road. To Electa they set off half on acre south of the road on which is the old farm house, and to Edwin they gavé the balance of the land south of the road.

There was some informality in the return of the commissioners; they made a slight mistake in the description of one of the pieces, which the court very properly might have corrected, but he saw fit to set aside the return, appoint the same commissioners again, over the objection of the plaintiff, and they brought in the same report a second time.

The plaintiff complains of the reappointment of the same commissioners, claiming they were not,' on the second view ‘ ‘ disinterested, ’ ’ as required by the statutes, and he also says that the division made by them is inequitable and unjust; that it gives him too little and his sister, Electa, too much. Edwin, as well as Electa, seems to be satisfied with the report. Clifford claims that the property is not divisible by metes and bounds, but should be sold and the proceeds divided.

We find no trouble in the claim that the commissioners were not distinterested. That they had decided views as to what division should be made of the property, obtained from their first investigation of it, is doubtless true, but that they had any interest in it of their own, is absurd, as shown by the record, which contains their cross-examination. It is in this latter sense that the law says they shall be disinterested. Ordinarily the best commissioners are those who have decided views, an intimate knowledge of the property and experience as to real estate values, and, with regard to farm lands, a thorough knowledge of the uses to which such land can be put. These commissioners were considered not only disinterested but judicious, by all parties, when they were first appointed, and the only question now before us is whether they have made such return that the plaintiff has a right to complain of it on its merits.

As to the values put by the witnesses in the court below upon the several parcels into which the farm was divided by the commissioners and the improvements upon them, they vary so and run to such extremes that they are almost irreconcilable. The witnesses seem to reflect the views of the parties who called them and to strive to sustain their contentions in a partisan manner.

The trial judge, in a careful manner, showing thorough knowledge of real estate values, has made an effort to sustain the division made by the commissioners by the money values given by certain of the witnesses whose testimony he considered of most weight.

His opinion on this subject while not entirely convincing, is not lightly to be disregarded, for he had the advantage of seeing the witnesses. One thing, however, is clear, if a division by metes and bounds is to be made, the commissioners have made the only one of which the land is susceptible. The division made by them gives Electa somewhat more than one-seventh of the property, when valued in dollars; and it gives Edwin considerable less than one-seventh, so valued. The exceptor, Clifford, plaintiff in error, gets about his share, five-sevenths, even if the land is not to be considered with reference to the fact that he owns on both sides of it and also owns half of the barn.

Edwin has a clear right to have this division set aside, for the share set off to him is manifestly below the value of one-seventh of the whole, but he is not complaining. Taking his,share with his sister’s it leaves Clifford receiving very nearly his due, even when the land is considered without reference to its surroundings. Which is the better brother is easy to determine.

The contention of Clifford that the land, by reason of its peculiar shape, should not be divided at all, but should be sold, we think would be sound, if it were not surrounded by his land. He would be the only person who could realize its full value by making it a part of the farms he already owns. No one else could bid as much for this farm as he can, and he owns so much, five-sevenths of it, that a sale of the farm would give him a decided advantage and might result inequitably to Electa and Edwin.

We are thus in that position with regard to this case that courts are frequently in: no matter what is done one party or' the other will suffer some loss unjustly.

The division by metes and bounds made by the commissioners gives Clifford some few dollars less than his full five-sevenths in value of the farm, if considered by itself without reference to his ownership of the adjacent farms; a sale of the farm and division of the proceeds would give Clifford an undue advantage as a bidder by reason of that very ownership.

We determine the matter, therefore, in.favor of the weaker party, in favor of the owner of only one-seventh. This conclusion, we believe, is warranted by the law.

Section 12031 of the General Code of Qhio provides:

“In making such partitions the commissioners must view and examine the estate, and, on their oaths set it apart in such lots as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts.”

We believe the division made by the commissioners in this case is, under all the circumstances, the one most advantageous and equitable that could possibly be made, and that they gave no more than due regard to the improvements, situation and quality of the different parts. Although the commissioners are merely ministerial officers, assisting the sheriff to execute an order directed to him, still it seems that they are to make the division in an equitable manner.

We are unable to say that they have abused the very large powers that are given them by the use of this word in the law directing how they shall perform their duties.

Judgment affirmed.


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    TARDY NOTICE OF DESIRE TO RENEW LEASE.
    Circuit Court of Cuyahoga County.
    The Standard Brewing Company v. Agnes Tomash et al.
    Decided, May 9, 1910.

      Landlord and Tenant — Renewal of Lease — Notice.
    A stipulation in a lease terminating December 31, 1909, for its renewal 'for three years, “provided said party of the second part shall demand such renewal at least five days before the expiration of his lease,” is not complied with by a letter written December 27, 1909, and received by the landlord December 29, 1909.

      Sanders <& Sanders, for plaintiff.

      Caldwell & Younger, contra.
    Winch, J.; Henry, J., and Marvin, J., concur. "
   Plaintiff in error was tenant of defendants in error, under a written lease for one year beginning January 1st, 1909, and ending December 31st, 1909. Said lease contained a stipulation for its renewal for three years more, ‘ ‘ provided said party of the second part shall demand such renewal at least five days before the expiration of his lease. ’ ’

December 27 1909, the brewing company wrote a letter to its landlord demanding such renewal; this letter was received by them December 29th but they declined to grant the renewal, served'notice upon the tenant to quit the premises, and brought proceedings in forcible detainer before a justice of the peace, who decided in favor of the landlord.

Thereupon the ease was carried to the common pleas court on error, and the judgment of restitution affirmed.

The case is here on error to review both judgments.

The trial before the justice was on an agreed statement of facts, and the only point for our consideration is whether the demand for a renewal made by the tenant was in time, plaintiff in error claiming that the clause quoted from the lease is a continuing offer from the landlord, which is good and may be ac^ cepted until revoked by him within the five days stipulated; in other words, that the offer being open, a bargain is consummated by its acceptance and notice thereof to the other party, before he communicates the withdrawal of his offer.

We do not construe this stipulation as such continuing offer. Taking the plain meaning of its terms, it is an offer good until December 26, 1909, terminating then according to its own limitation. On December 27th there was no offer outstanding for acceptance. Manifestly the offer was intended to terminate December 26th, so that the landlord might have five full days in which to secure another tenant, if the brewing company up to that time had failed to offer itself, having had first chance, as such tenant.

The option had expired when the letter was written, and the justice rightly decided the ease, and the common pleas court very properly affirmed his judgment, and is now in turn affirmed by this court.


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    ACTION TO COMPEL THE SETTING OFF OF HOMESTEAD.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel Minnie Dreher, v. A. J. Hirstius, Sheriff.
    Decided, May 31, 1910.

      Mandamus — Not Proper Remedy to Enforce Homestead Rights.

    Mandamus is not the proper remedy by which to require the sheriff to set off a homestead in lands under an order of sale in his hands.

      Toland ■(& Pearson, for plaintiff in error.

      Myers <& Green, contra.
    Winch, J.; EIenry, J., and Marvin, J., concur.
   This was an action in mandamus to compel the sheriff to set off a homestead to the relator in certain premises under an order of sale in his hands. The case was originally begun in the common pleas court and is here on appeal. There appear to be three reasons why the relief prayed for should not be granted.

First. It is not at all clear that the mortgagee defendant did not desire the sale. In this respect the case differs from that of Bernsee v. C. B. & W. H. Hamilton, 6 C. C., 487.

Second. The relator has “a plain and adequate remedy in the ordinary course of the law.” She can object to the confirmation of the sale or otherwise bring the matter to the attention of the court in the original case, and have its determination reviewed on error.

Third. Pending the appeal the sheriff sold the property and distributed the fund.

“If it is apparent that the writ if granted, can not be enforced by the court, relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority can not be vindicated by the enforcement of process. ’ ’ High on Extraordinary Remedies, Section 14.

Writ refused and petition dismissed.


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    LIABILITY FOR. A RAILWAY CROSSING ACCIDENT.
    Court of Appeals for Hamilton County.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Albert Pritz, Administrator of the Estate of Henry Graf, Deceased.
    Decided, July 17, 1913.

      Railways — Negligence at a Crossing — Passenger on Electric Car Makes Fatal Leap through Fear of Collision with Steam, Railway Train— Faulty Allegation of Petition as to Number of Children Left by the Deceased.

    1. Where a fatal injury to a street car passenger at a railway crossing was due to. the concurrent negligence of both the steam and the electric railway company, the fact that a crossing gate which had been negligently raised by a watchman for the steam road was situated more than fifty feet from the crossing, and under a strict construction of the law the electric car would be bound to stop for the crossing after passing the gate, does not afford ground for relieving the steam road from liability growing out of its own negligence in raising the gate in the face of an oncoming train.
    2. Failure to allege in the petition that, in addition to the widow and two children mentioned in the petition, the decedent was also the father of two other children by a divorced wife, does not invalidate the judgment -recovered, where the recovery is for the entire amount permissible under the statute; but in such a case the claim of the two unnamed children may be presented to the probate court and their share apportioned to them out of the judgment.

      Maxwell <& Ramsey, for plaintiff in error.

      Wm. Littleford, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   The action below was brought to recover damages for the wrongful death of Henry Gra-f, who was a passenger upon a car of the Cincinnati Traction Company, and who was killed by a train on the railroad of the defendant company at the point where it crosses Eastern avenue at grade.

At this crossing safety gates are maintained by the defendant company which are operated by a man in a tower who had an extended view of the steam railroad tracks. Eastern avenue and the railroad cross at this point at a very acute angle, there being double tracks of the Cincinnati Traction Company in Eastern avenue and a double track of the steam railroad operated by defendant company. The safety gate east of the railroad is close to and parallel with the tracks. The safety gate west of the railroad is a distance of one hundred and thirty feet from the center of the double track along the center of Eastern avenue — the street railway being located in the center of the avenue quite a distance from the middle thereof. The distance from the center of Eastern avenue at the point of the location of the west gate northwardly across to the south railroad track is probably not more than thirty feet. The car on which deceased was riding was a summer car and was eastward bound. When it reached the west gate the car stopped and the conductor went forward to the center of the railroad track and gave the motorman the signal to come on. This was claimed to be in compliance with Section 9125, General Code. The tower gateman had the gates raised and the car proceeded, when the tower man seeing the approaching train from the east come westward toward the crossing commenced to ring his gong and undertook to lower the gates, but too late. There seems to have been no signal from the conductor further than his original signal to come on. The motorman by putting on high-speed proceeded with his car and crossed the track just before the train reached him. At least two of the passengers, however, in the extreme peril of the occasion, jumped from the car in an effort to save their lives. Plaintiff’s decedent was one of these, and in jumping he alighted upon the railroad track and was killed by the train. Independent actions have been prosecuted against the traction company and the plaintiff in error here by the administrator of the deceased.

From the record it appears that the facts make out a ease of concurrent negligence upon the part of both the plaintiff in error here and the Cincinnati Traction Company, against which latter company a judgment of the same amount as was given here against the plaintiff in error, viz., $10,000, was recovered in another ease, and is brought into this record by exhibits attached to the bill of exceptions.

Plaintiff in error here relies upon the argument that because the distance between the west gate and the actual crossing of the tracks was more than fifty feet that the stop to be made by the street railway company under the statute should have been east of the gate, and that therefore the invitation ^extended to the street car operatives to proceed across its tracks by reason of its open safety-gate was not the proximate cause of the injury, because under a strict construction of the statute after the safety-gate had been passed the street railway car must again stop for the purpose of complying with Section 9125, General Code.

This crossing furnishes an unusual state of facts for the application of this law, as the two tracks are so close together, crossing at such a sharp angle. But as the purpose of the law to require the street car operatives to rely upon their own inquiry and observation rather than on that of the steam railway employes seems to have been observed, although ineffectively, it is the opinion of the court that the question of time can not be successfully used to protect the steam railway from the consequence of the negligence of its employes. It has been repeatedly held in’ this state that a crossing accident such as the one under consideration is the result of the concurrent negligence of the street car employes and the railroad employes, and that both companies are therefore liable. St. Ry. Co. v. Murray et al, 53 O. S., 570; Toledo, etc., Ry. Co. v. Fuller, 7 C. C., 562; Kopp v. B. & O. S. W. Ry. Co., 1 C.C.(N.S.), 596 (aff. 71 O. S., 444).

The fact that the traction company, through its conductor who failed to see the on-coming train, was negligent, is no excuse for the negligence of the plaintiff in error through its^gate tender in opening the gates when the train was approaching and thus extending an invitation to the street car to advance (Ry. Co. v. Schneider, 45 O. S., 676), and the negligence of the two companies was so near together in point of time that they must be deemed concurrent.

Another point urged strongly by plaintiff in error was the fact, which developed in the trial of the case, that deceased instead of leaving a widow and two children as- set out in plaintiff’s petition, had in addition thereto two other children by a previous wife who had been divorced.

Under the terms of Section 10772, General Code, it is provided that an action of this character shall be for the exclusive benefit of the wife and children but is to be brought in the name of the personal representative of the deceased for their benefit, and the jury may give such damages not exceeding (at that time) $10,000 as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit the action was brought. This section, however, provides that the amount recovered shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiary and the laws of descent and distribution. If the amount of recovery here had been less than the amount fixed by statute, it would present a question much more difficult than it now does, because as the suit was by the administrator, who is the representative of all the beneficiaries, if the recovery were less than the full amount it would not be deemed to cover any loss that might have been suffered by those children not referred to in the pleadings; but if the jury deemed the loss suffered by the two who were referred to with the widow to amount to the maximum that could be allowed, then nothing in addition could be recovered on behalf of the two unnamed children. But as it now stands, these children can present their claims to the probate court which made the appointment of the administrator, at the time it comes to make its apportionment of the amount recovered. The fact therefore that all of the children were not set out in the petition can not be deemed prejudicial to the plaintiff in error.

Objection is also made by plaintiff in error to tbe paragraph in the charge of the court given by the judge presiding in the trial below, which has been previously criticized by this court in another case, viz.:

•‘Tuu have the right to reject any evidence that you choose and consider only that which appeals to your sense of justice and of fairness.”

The record in this case shows but little controversy as to the facts. They were proven in .considerable detail by plaintiff’s witnesses, and were not seriously controverted by defendant. While the language objected to is subject to criticism, used as it is in connection with the entire paragraph preceding it, of which it is a part, we do not think that it is so prejudicial to defendant as to require a reversal here, nor do we find any error in the record so prejudicial to -the defendant.

Judgment below will therefore be affirmed.


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    INACCURATE CHARGE AS TO SCENE OF OFFENSE.
    Circuit Court of Cuyahoga County.
    Jacob Goldberg v. State of Ohio.
    Decided, June 10, 1910.

      Criminal Law — Variance.
    Where an indictment alleges that the accused induced a female person under eighteen years of age to enter a house of ill-fame for the purpose of prostitution, and described the house as No. 501 Hamilton avenue, in the city of Cleveland, and the only proof is that he induced her to enter No. 415 Hamilton avenue in the city of Cleveland, the variance between the allegation and the proof is fatal.

      Francis J. Wing and Max Goodman, for plaintiff in error.

      John A. Cline and G. C. Hansen, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Plaintiff was convicted under Section 7023 of the Revised Statutes (now Section 13027 of the General Code), of the crime of inducing, decoying and procuring one Gussie Cohen, a female person under the age of eighteen years, to enter a house of ill-fame, for the purpose of prostitution. The indictment alleges that “said house of ill-fame was then and there kept by one Jane Doe, whose real name is to the grand jurors unknown, which house was then and there located on Hamilton avenue in the city of Cleveland, and. was then and there known as being No. 501 Hamilton avenue in the city of Cleveland.”

The evidence adduced at the trial was that she was induced to enter a house of ill-fame kept by one Maud Osborn at No. 415 Hamilton avenue, and that 415 is a different place from 501. This variance between the indictment and the proof is claimed to be reversible error. It is said that the accused was prejudiced in two material respects by this variance:

First. He was not enabled by the charge in the indictment to properly prepare his defense, for being notified to defend himself against the charge that he had induced the girl to enter a house of prostitution kept by some woman whose name the grand jurors did not know, at 501 Hamilton avenue, and being prepared, to show that the girl was never in said house he was confronted with proof that she was in some other house elsewhere on the street.

Second. It is claimed that the record of conviction in this case of having induced the girl to enter No. 501 Hamilton avenue can not be used by him, or pleaded in bar, should he hereafter be indicted for inducing her to enter No. 415 Hamilton avenue, although he induced her to enter but one house.

On the other hand, the prosecuting attorney claims that the variance is as to an immaterial matter, and that the question was left to the jury whether in using the number 501 the grand jury intended to describe No. 415.

That the grand jury described the number they intended to describe is plain from the ■ evidence.’

It is perhaps correct to say that the grand jury need not have described the house further than to say that it was a house of ill-fame on Hamilton avenue in the city of Cleveland, Cuyahoga county, Ohio, for the statute makes it a crime to induce a female person under eighteen years of age to enter “any house of difame” for the purpose of seduction or prostitution.

This case is so much like the case of Moore v. State of Ohio, 12 Ohio St., 387, that we are unable to make any distinction between the two cases. The syllabus of that case is as follows:

“Where an indictment for selling spirituous liquors to be drank where sold, avers that the sale was mqde at a particular place, by way of local description and not as mere venue, the proof must correspond with the allegation.
“Where such indictment alleges the sale to have been made at the grocery of M in the township of A, and the only proof is of sale at the grocery of M in the township of G, the variance between the allegation and the proof is fatal to the prosecution. ’ ’

In the opinion it is pointed out that it was not necessary that the indictment should state the precise locality of the act of sale, for the statute itself provided that it should not be necessary to describe the place where the liquor was sold, and Roscoe’s Criminal Evidence, 112, is cited to the proposition that where the name of the place is mentioned not as matter of venue but of local description, it must be proved as laid, although it need not have been stated. The court further says: "the cases are numerous, requiring proof of averment descriptive of the offense, which were unnecessarily inserted in the indictment. ’ ’ So here, it being alleged that the accused induced the girl to enter a house of ill-fame at 501 Hamilton avenue, it was necessary for the state to prove that that was the house she was induced to enter, and proof that she was induced to enter some other house fails to make the case.

We are constrained to reverse the judgments in this case upon the authority of the case cited. See also Griffin v. State, 14 Ohio St., 55.

We are not reluctant to reverse this case, because the reading of the evidence creates a reasonable doubt in my mind at least, as to the defendant’s guilt, and although we are loathe to set aside the verdict of a jury in a criminal case, still we feel that there must have been circumstances at the trial, perhaps the infamy of the offense alone, which caused the jury to disregard the instructions of the court that they must be satisfied beyond a reasonable doubt that the accused was guilty as charged in the indictment.

Other numerous errors are alleged to have occurred at the trial, but we find none prejudicial to the rights of the accused, except the variance mentioned, for which alone the judgment is reversed.


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    CONSTRUCTION OF INCONSISTENT BUILDING RESTRICTIONS.
    Circuit Court of Cuyahoga County.
    Minerva J. Parmenter et al v. Frank E. Mueller et al.
    Decided, May 31, 1910.

      Building Restrictions' — Conflict—Laches and Estoppel.

    1. Conflicting building restrictions in a deed must be reconciled according to the manifest intention of the parties.
    2. Laches or estoppel can not be claimed against a plaintiff who has been induced to delay bringing suit by the conduct of the defendant.

      White, Johnson & Gannon, for plaintiff in error.

      A. C. K. Schoeneman, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   We construe the restrictions contained in the deed from Charles L. F. Wieber and wife to Nellie F. Wright as prohibiting the erection of any building or structure of any kind excepting porches or bay windows on sub-lot No. 9 within forty feet from the Belle avenue street line for a period of twenty-five years from the date of said deed. This restriction is specific and not to be overcome by the other restriction in said deed “that the dwelling-house shall be erected or placed so as to leave not less than fifteen feet of clear space on the westerly side of the lots, ’ ’ which was the form of restriction used by the maker of the subdivision in deeds to lots fronting on Clifton boulevard, and carelessly inserted in this deed.

We apprehend that these two lots, 9 and 10, were sold as one parcel of land and that it was not intended that the westerly fifteen feet of lot 10 should not be built upon, so that defendants ’ contention that lot 9 would become valueless if the forty feet restriction should be enforced is of no avail to them.

Upon the question of estoppel, we find the defendants did not act in good faith.

Not only were they advised from the time they purchased the property that it was subject to the restriction contained in the Wright deed, but the improvements on Belle avenue showed them the general building line. When they built the house on the rear of the lot they were told that all buildings on Belle avenue had to be back forty feet from Belle avenue and when they started the building on the corner the neighbors questioned them and showed' such interest in their operations that they should have foreseen the bringing of this suit. But defendants were not candid. To all questions as to where they were going to build they said that they knew the restrictions and were going to live up to them. To no one who inquired did they say that they claimed a right to build within fifteen feet of Belle avenue.

Had they been acting in good faith they would have notified the inquiring neighbors that they claimed the right to build closer than forty feet to Belle avenue and would do so, unless enjoined by the courts. Such conduct would have got the ease into court before they had proceeded very far with their building. We think their own conduct produced the slight delay which ensued, before the suit was brought.

Judgment for plaintiffs.


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    UNINTENTIONAL MISTAKE IN USE OF LANGUAGE IN CHARGE TO JURY.
    Circuit Court of Licking County.
    Roy Cole v. State of Ohio.
    Decided, 1910.

      Criminal Law — Error in Charge — Accused Clearly Cuilty — Cause Not Reversed for Technical Error.

    Where it is manifest from the record, by the defendant’s own testimony, that he was clearly guilty of the offense charged in the indictment, a judgment of conviction will not be reversed for error in the charge due to an unintentional mistake in the use of language by the trial judge, apparent to everybody, jury and all alike, it being certain that a new trial would result only in another conviction.
    Winci-i, J.; ITenry, J., and Marvin, J., concur.
   Plaintiff in error was convicted at the September term, A. D. 1909, of the Licking County Common Pleas Court, of pocket picking.

It is conceded by his counsel that he took a gold watch, a railroad ticket, divers letters and one half pint bottle of whiskey from the person of one James Adams.

His defense was that though he took the property, he was so drunk that he did not know what he was doing, and so could have no intention to steal.

The judge properly charged the jury that one of the essential elements of the crime of pocket picking is the taking of property from the person of another, without force and violence, and without putting him in fear, but with the intent to steal the same.

It is said, however, that the judge improperly charged the jury as to the defense of intoxication, and this is the main ground of error relied upon by counsel for plaintiff in error, though it is also claimed that the verdict of the jury is contrary to the weight of the evidence on the question of intoxication.

As to the evidence;

It is clear that both Adams and Cole were drunk on the night the offense was committed. Adams was asleep on a bench in the waiting room of the B. & O. depot at Newark. Cole had been drinking ever since eight o’clock in the evening and came into the waiting room sometime between 11 o ’clock p. m. and midnight, according to the witnesses, Annie Gallagher and Adolph Anthes, and between midnight and one o’clock in the morning according to his own story. He walked up to the sleeping man, shook him and not awakening him, went through his pockets, abstracting the articles mentioned in the indictment.

. Cole says that he remembers nothing after midnight and was dopy, but his own story contradicts him in this respect.

Let us consider a few things he said when upon the stand, as shown by the record.

Being asked if he remembered being in company with a colored man that night, he says: “I remember it quite well, quite distinctly. I met him in Jerry Baker’s place directly across the street from our place, that evening, about eight o ’clock. I had been drinking more or less ever since Labor Day. I had been drinking in a moderate way, but was still in a condition to transact business.”

Then he stated, that there was a German band at Baker’s place and a colored man seemed to have it in tow. “I stayed there until the band left. They played two or three short pieces.. We went down along the canal, the north bank of the canal and to the Dave Pigg property. Jake Steinkemper was engaged in business there. The German band played several pieces there. I remember quite distinctly of buying a drink there. This man had been very friendly to me — the man who formerly ran the place. The next stop was at the Klondike. I don’t know how long I was there. It was about eleven o’clock I am sure. We had drinks there. The next place was George Fessler’s. We had drinks there. We didn’t stay very long there, only until they closed up, the ordinance requiring them to close at 12 o’clock. We ran around some after that, and the next thing I remember was being arrested at 6 or 7 o’clock in the morning at Gus Kern’s place.”

When asked about"two tickets to Zanesville he had, he says:

“I bought them from the night ticket man, Mr. Kelly, bought them myself and paid for them.” And when asked, “Do you remember going to the B. & O. station with two men, one of them a colored man, he answers: “I remember this colored man being there, because I went with him, but as to the other people I did not pay particular attention to them.” And on cross-examination, he says that it must have between 12 and 1 .o’clock that he was at the depot; that several young fellows were there.
“There was a young man who formerly worked at Kuster’s named Michael Burke for one and another man named Bacon who formerly worked here, and Steve Ulrich, who was the bartender at Fessler’s, he was not along; he closed up his place, he was not along; and this colored fellow that they called ‘Doc.’ I remember being at Fessler’s until they closed, and that when they closed, Ulrich, the bartender at Fessler’s, said he liked to have company and he talked with us, and he said he would have to close. I think I do remember the conversation with him. I remember in a general way he invited us very kindly to go out. ’ ’

And on re-direct examination he says:

“Well my memory is not so poor but what I can remember some of those circumstances. I remember that this train was two and one-half hours late, and it was about three o’clock.”

We think it clear from this record that Cole was so drunk that he was reckless of the consequences of his act, but not so drunk that he did not know what he was doing, and upon the evidence we are satisfied beyond a reasonable doubt that Cole took the property of Adams with the intention of stealing it.

Now as to the charge: Complaint is made as to the following part of the charge (page 111, bill of exceptions):

“The defendant claims that he was intoxicated at the time, and, on that subject, I charge you: that while drunkenness is not an excuse from crime, yet, if the defendant was so drunk as to destroy his reasoning powers, and thus not know what he was doing, that is a fact that may be considered by you, together with all the other facts and circumstancees in the ease for the purpose of determining the intention of the defendant at the time.
“Did the defendant intend to steal and take from the person of James Adams the property described in the indictment ?
‘" Intention is a condition of the mind, and is difficult of actual proof. It is a question of fact for you to determine, from all the evidence and circumstances in the ease. ’ ’

It is claimed by counsel for plaintiff in error that the trial judge should have said “that is a fact to be considered by you” instead of that is a fact that may be considered by you.

We think he might well claim more and urge that the charge should have been, “if the defendant was so drunk as to destroy his reasoning powers and thus not know what he was doing, then you must acquit him,” for such is the law.

We do not think that the charge, as worded, is as bad as the one given in the case of Cline v. State, 43 Ohio St., 332, which the court characterizes as virtually saying that proof of intoxication could not be considered with respect to the felony charged in the second count of the indictment, for here the court says that it may be considered. The error lies in failing to indicate the weight to be given to the consideration of the drunkenness, should the jury find that the defendant was so drunk as to destroy his reasoning powers. It is probable that the charge, taken as a whole, is not misleading, and that the counsel for plaintiff in error should have requested the judge to charge more fully upon the subject of drunkenness, and to state' specifically that if the defendant was so drunk that he did not know what he was doing, the jury should acquit him, under the ruling in the case of Columbus Railway Co. v. Ritter, 67 Ohio St., 53. But we do not care to rest our conclusions in this ease upon that proposition. It is so manifest from the record, by the defendant’s own testimony, that he knew what he was doing when he took the property, that it would be idle to grant him a new trial for some manifest slip in the charge, and unintentional mistake in the use of language by the trial judge, apparent to everybody, the jury and all alike, it being certain that a new trial would result only in another conviction.

It was held in the case of McHugh v. State, 42 Ohio St., 154, that:

“A judgment will not be reversed merely because the record shows error to which exception was taken.
“The error to be ground of reversal must be prejudicial to the rights of the party complaining. And this is the rule in criminal as well as civil eases.”

That was a capital case and there are other authorities in Ohio to the same effect.

Applying that suggestion to the ease at bar the 'judgment is affirmed.