text:
    CONTEMPT PROCEEDINGS FOR VIOLATING AN INJUNCTION.
    Circuit Court of Cuyahoga County.
    Ray et al v. Broadway & Newburg Street Railway Co.

    Decided, 1896.

      Contempt — Charges of, for Violation of an Injunction — Independent Proceeding Unnecessary — Affidavit Need only Allege Violation of the Order — Penalty—Limit of Pine Prescribed Applies lo the Defendants Individually, and not Collectively — Nature of Notice which Must be Served on Defendants.

    1. Where there has been a violation of an order of injunction, it is not necessary to docket an independent action in contempt, or proceed in an independent prosecution, to enforce the order made in the civil action. The court continues to have control to enforce ,the order under authority of Section 5581, Revised Statutes.
    2. It is not necessary that the affidavit for an attachment for a violation of an order of injunction should state the pendency of the original action, the orders, etc.; all that is required, in addition to what is already upon the record, is a statement of violation of the order not in the presence of the court.
    3. The assessment of a fine, under Section 5581, for a violation of an order of injunction providing that “such party may be required by the court or judge to pay a fine not exceeding $200,” is an individual matter, and where there are several defendants each must respond for himself for the wrong he has done and the limit may be applied to each, and not to the defendants collectively.
    4. It is not necessary that persons accused of violating an order of injunction, and brought before the court upon attachment, should be served with a copy of the affidavit, or the order which they have disobeyed. Upon being served with the injunction they were supposed to inform themselves at once of what they were enjoined from doing. And where the record discloses that in a contempt proceeding the charges were read to defendants in open court, it is sufficient.
    Hale, J.; Caldwell J., and Marvin, J., concur.

       Affirmed without report (57 Ohio St., 664).

   The case of Alexander Ray against -the Broadway & Newburg Street Railway Company is a proceeding in error in which it is sought to reverse a judgment of the court of common pleas.

The case has been pending here for a long while, but for various reasons not reached for hearing. Whether this delay has made the question less important to parties1 or not, I am not aware. However, it involves the validity of a certain judgment that was rendered against the plaintiff in error in a contempt proceeding.

An action was commenced by-the railway company, the object of which was to enjoin the defendants named in that action from doing certain acts which were claimed to be in violation of the rights of the railway company. On the allegation of the petition a temporary injunction was allowed; the usual endorsement was made upon the summons, and the summons served upon the defendants. Very soon thereafter an affidavit was filed in the court, charging .that fourteen of the defendants named in the original action had and were violating the order of the court and disobeying -the injunction that had.been allowed. On that affidavit being filed, an order was made directing the arrest of the defendants. They were arrested and brought before the court. The proceedings had from that point on are claimed in several respects to be erroneous, following the points that are suggested by counsel:

1 “First. The court erred in refusing the request of Ray and others for a copy of the accusation against them when brought before the court by .the sheriff under arrest. ’ ’

That is, the claim is that there should have been, -as in a criminal case, a copy of the affidavit served upon- the plaintiffs in error,, liking it to a criminal prosecution.

The record discloses that the charges made against the plaintiffs in -error were read to.them in open court. It was fully made known to them — the charges that existed and were made -against them. In connection with some other part of the case, I will further note this error. But so far as we say here, we do not think that there was -any error to the -prejudice of the plaintiff, upon the ground here claimed.

'£ Second. The court erred in refusing the request of Ray and others that the proceeding .against them be docketed as an independent action, and in holding that the proceeding' was a. part of the action of The Broadiuay & Newhurg Street Railway Company v. The Employees Union, Charles Narrow et al, then pending in said court.”

The proposition is, that in an injunction suit, where an order of injunction has been issued by the court and there has been a violation of that order of injunction, that it is necessary to docket an independent action, and proceed by an independent prosecution, to enforce the order made in the civil action.

Section 5577, Revised Statutes, provides that “the order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the. clerk; when the injunction is allowed at the commencement of the action, the clerk shall endorse on the summons, ‘injunction allowed,’ and it shall not be necessary to issue the order of injunction. ”

I have always understood -that to mean, that when the injunction is allowed and endorsed upon the summons, it should have the same effect precisely as if it had been made and served upon the party after the commencement of the action; and upon endorsement on /the summons “injunction allowed,” and summons served upon the party, he must take notice of what the petition contains. He is supposed to inform himself at once of what he is enjoined from doing. At .all events, that is the plain provision of the statute.

Now, Section 5581, Revised Statutes, provides the mode of enforcing the order:

“An injunction or restraining order granted by a judge may be enforced as the act of the court, and disobedience thereof may be punished by the court, or any judge who might have granted it in vacation, as a contempt; an attachment may be issued by the court or judge, upon being satisfied by affidavit of the breach of the injunction or restraining order, against the party guilty of the same; and such party may be required by. the court or judge to pay a fine not exceeding $200 for the use of the county, to make immediate restitution to the party injured, and to give further surety to obey the injunction or restraining order, and in default thereof, he may be committed to close custody until he complies with such requirement, or is otherwise legally discharged. ’ ’

We suppose that the court granting the .injunction, forbidding the doing of a certain act, may enforce that order in the ease in which the order is made, and in the mode pointed out by the section of the statute that I have just read. Of course the court has made the order; it has gone upon the journals; the whole proceedings are before the court down to the violation of the order. The statute then provides that when it is brought to the attention of the court, by .affidavit, that the order has been violated, then the party may be brought before the court and the proceedings taken pointed out by -the statute. It is simply enforcing an order made by the court, of which the court has full cognizance in that particular case. We see no necessity for * docketing the separate case.

“Third. The court erred in overruling the demurrer of Ray and others to the charge.”

That is, upon this theory: the claim is that the affidavit should state the pendency of the original action, the orders made, and everything necessary to show .that the order violated has been made by the court, that that should go into the affidavit.

We take the view, however, that the order having been made in .the case, that as part of .the record of the case, being a proceeding simply to prevent the violation of that order, to enforce •that 'order, all that was required in addition to what was already upon the record was the filing of the .affidavit of the violation of the order which occurred out of the presence of the court, and then the court might act.

“Fourth. The court erred in refusing to discharge Ray and others on their answer to the charge.”

That answer was in substance a general denial. That is, having demurred to the affidavit, which was overruled, they then answered, denying the fact that they had violated the order made by the court, and asserting that .they had no intention of violating any order of the court, and did not propose to. The court, treating that as a denial of the allegations made in the affidavit, •that there had been a violation of the order, investigated, heard what both parties1 had to offer upon that .issue as to whether the order had been violated or not; and on the testimony found against plaintiffs in error, as the testimony fully justified the court in holding.

It is further claimed as a ground on which these parties ought to have been discharged that they had no notice of what the injunction was, or what they were forbidden from doing. There were fourteen of these parties that were arrested under this order; seven of them were held; seven discharged. And looking to this testimony, it very clearly .appears that none were held for the violation of the previous order of injunction except those against whom it was fully established that they had knowledge, not only of the injunction that had been allowed against them, but that they had violated that order. The evidence fully establishes those two propositions as to those who were adjudged in contempt of court.

“Fifth. The court erred in the admission of evidence on the trial. ’ ’

Without stopping and making this opinion so long, I will say that we are fully satisfied that there was no error committed by the court in the admission of testimony.

‘ ‘ Sixth. The judgment is not supported by sufficient evidence, and the court erred in overruling the motion for a new trial.”

I have already said .all I desire to say upon that.

“Seventh. The court erred in refusing the application of the accused for .a jury trial.”

I hardly think it would be claimed, on careful reflection, that the court granting an order of injunction must impannel a jury to ascertain whether that injunction has been violated or not, before they may proceed against parties violating it. It is eminently a question for the court -to investigate and determine.

‘ ‘ Eighth. The amounts ordered to be paid by Ray and others ■aggregated $1,000, and exceed the limit fixed for a violation of an injunction provided by .Section 5581, Revised Statutes.”

The question there made is that there were seven that were adjudged in contempt of court. The maximum fine that coqld be imposed for the use of the county was $200. There were seven of them. They were in the aggregate fined $1,000. It is claimed that the aggregate could be only $200.

Arnold Green,- for plaintiffs in error.

Squire, Sanders & Dempsey, for defendant in error.

We think that when you come to the assessment of the fine, it was an individual matter, and each must respond for himself for the wrong he had done, and that the limit of the $200 must apply individually, and not as a whole.

“Ninth. The State of Ohio not being a party to the proceedings, the judgment rendered as to the fines imposed are invalid. ’ ’

What we have already said would answer that, that it is a proceeding in thé original case to enforce the order made.

It .is further said that the order as to -the payment by each of the defendants is invalid, for want of definiteness and certainty.

We do not find any such indefiniteness and uncertainty as would cause us to set it aside.

The real merits of this contention are whether the proceeding provided 'by statute for the enforcement .of an order of injunction, is a proceeding in the ease in which the 'order was made over which the court continues to hold and have control to enforce that order in the manner pointed out by the statute, or whether it can only be done by an independent action.

We hold that the former is the true rule, and that there was no error in this proceeding.


source: Caselaw Access Project

license: Public Domain

text:
    NECESSARIES FURNISHED TO AN INFANT.
    Circuit Court of Richland County.
    The International Text Book Company v. Carl W. Alberton.
    Decided, January 31, 1908.

      Infants — Boohs and Material Furnished for Instruction of — Claimed to have been Necessaries — Executory and Implied Contracts by Infants — Pleading and Evidence as to Reasonableness of the Account and Financial Condition of Parent.

    A suit can not be maintained against an infant on his express contract ,for necessaries, without an averment and proof that the price to be paid for such necessaries was reasonable.
    Craine, J.; Taggart, J., and Donahue, J., concur.
   In an action brought in the Court of Common Pleas of Rich-land County by the plaintiff in error .against the defendant in error a verdict was rendered for the defendant. A motion for a new trial having been made and 'overruled, judgment was rendered in favor of the defendant; whereupon the plaintiff instituted error proceedings to this court and asks this court to reverse the judgment of the court of common pleas for numerous reasons set forth in its petition in error. Upon an examination of the pleadings and evidence in this case we are convinced that the verdict and judgment in the court of common pleas was right, and that there is one question in this case which is decisive of the case.

The petition of the plaintiff alleges in substance that it entered into a contract with the defendant, whereby the plaintiff was to furnish the defendant with a course of correspondence-instructions in the subjects embraced in -the electric scholarship, with copyrighted instruction papers, examination papers and drawing plates, prepared for such scholarship; in consideration of which, the defendant agreed to pay the plaintiff the sum of $100 in installments as these matters and things were furnished by the plaintiff to the defendant; that the plaintiff has furnished certain p.arts of the things agreed by it to be furnished, 'and that the defendant has paid for the same; that it is ready and willing to perform the balance of'its contract and furnish the things agreed by it to be furnished, but that the defendant has refused to accept the same, and has refused to pay any further amount on this contract, and that there is due the plaintiff the sum of $68, together with interest, on a part of the 'contract, viz., for the things not delivered under the contract and which the defendant has refused to accept, for which it asks judgment against the defendant.

To this petition the defendant filed an answer, in which he alleges that .at the time of the entering into the contract set forth in the petition he was a minor.

Plaintiff filed a reply to this answer, in which he admits 'the minority of the defendant at the time .of entering into the contract, but avers that the matter and things to be furnished by it to the defendant were necessaries.

On this state of the pleadings, the .question arises whether or not the plaintiff can maintain an action. The plaintiff contends that this contract being for necessaries, .an action wou’d lie for its breach; whilst on the other hand the defendant claims that the contract was not for necessaries, and furthermore, that even if it were for necessaries, the plaintiff can not recover from an infant upon an express contract. Assuming for the purpose of this case that the contract was for necessaries, the question is, can an infant be sued upon his express contract ?

The defendant in support of his contention has cited to us 122 Wisconsin, 318, a part of .the syllabus of which reads as follows:

“An infant is bound by implied contract to pay reasonably for necessaries furnished him, but is not liable therefor upon an executory contract to furnish them, nor upon an express contract.”

In 64 Connecticut, 407, another authority cited by defendant, a part of the syllabus reads as follows:

“The obligation of an infant to pay for necessaries furnished him is one imposed by law rather than one which arises from his contract, as the party furnishing the necessaries can recover only their fair and reasonable value.”

These eases, in our opinion, are well considered eases, and seem to be founded upon reason and suggest .to us the idea that they are sound law. An express contract for necessaries might be a grossly unjust .and inequitable one, and to say that an infant must pay the consideration agreed by him to be paid for necessaries, irrespective of .the price agreed upon, would be -taking from him the protection the law has thrown around minority. We think that even -if the plaintiff sets forth the terms of the express contract in its petition, it would have to go a step further and allege that the sum agreed to be paid, by the defendant, was a reasonable one for t-he things .to be furnished by the plaintiff, and upon the trial i-t would be incumbent upon the plaintiff to establish this fact -by evidence. By doing this the plaintiff would not be recovering upon its express contract, but would be recovering upon an implied contract for .the reasonable value of the books .and instruments furnished by it. In the ease at bar there is no allegation as to the reasonableness of the contract or its consideration, neither was there any evidence offered tending to establish such reasonableness.

We are further of the opinion that in contracts for necessaries, furnished to -a minor a recovery can only be had for the fair value of the -executed part of the contract, and that an infant can repudiate the executory part of his contract at any time, even though such executory part of such contract be for necessaries, and that all the plaintiff can do is to recover the fair and reasonable value of the necessaries actually received by the minor.

' In this particular ease it affirmatively -appears that the father of the defendant is living, and it nowhere is alleged or attempted to be proven that the father is not financially responsible, or that he has not furnished the defendant with all the necessaries suitable to his condition in life.

Section 310, Revised Statutes, provides: “The husband must support himself, his w-ife, and his minor children out of his property, or by his labor. If he is unable to do so, the wife must assist him so far as she is able.” The father is entitled under the law to all of the wages of the minor son, and in part consideration, at least, it is the duty of the father to support the son; .and that means furnish him with the necessities of life. If -a minor, whose father was able and willing .to furnish him with the necessaries of life, could enter into express contracts for necessaries and be liable in all cases under such contracts, then the money arising from the services of the son might be diverted from the father, to the son’s creditors, and the pecuniary relation between the father and .the son be materially affected.

Harrington & Brinherhoff, for plaintiff in error.

H. T. Manner, contra.

The foregoing being our views, we think the judgment below was right .and that the only error committed in the court below was in the court not directing a verdict for the defendant. The judgment of the court of common pleas will be affirmed at the costs of the plaintiff in error, and this cause remanded to the court of common pleas for execution.


text:
    CONCURRENT PROCEEDINGS ON APPEAL AND ON ERROR.
    Circuit Court of Hamilton County.
    Walker et al v. Jenney, Administrator, et al.
    Decided, February 15, 1908.

      Appeal — Effect of — Court Without Authority to Dismiss — Concurrent Proceedings on Error — Become Material, When.

    1. An appellant bas no authority to dismiss an appeal which has been properly perfected in an appealable case; but a dismissal of an appeal to which no error is prosecuted will stand, and will be construed as the judgment of the court.
    2. While error may be prosecuted before the determination of an appeal, the proceeding will avail nothing in the event the appeal Is sustained; but where the appeal is dismissed and the appellant has an error proceeding pending, it is his right to have a hearing therein, and to dismiss such a proceeding is error.

      Swing, P. J.; Smith, J., concurs; Giffen, J., dissents.
   Upon the filing of certain accounts in the probate court certain exceptions were filed by the plaintiff in error, which exceptions were upon hearing overruled by said court. Thereupon plaintiff took an appeal from the judgment of the probate court to the court of common pleas. This appeal was perfected September 26, 1905. Subsequently said plaintiff in error also had a bill of exceptions perfected, and filed in said court of common pleas a petition in error. On May 29, 1906, the following entry was made in the appeal case: “Now come the appellants in the above cause and dismiss this said appeal at their costs.” Afterwards, to-wit, on May 31, 1906, the defendants filed a motion to dismiss the error' proceedings in said court, for the reason that an appeal had been taken from said probate court to said court of common pleas prior to the filing of said petition in error, and that therefore -there was no judgment in said probate court to which error could be prosecuted. Afterwards, to-wit, on February 7, 1907, the court of common pleas found said motion well taken and dismissed said petition in error for the reasons set out in said motion.

This action in this, court is to reverse the judgment of the court of common pleas dismissing the petition in error. No proceeding was prosecuted to the judgment dismissing the appeal.

It is urged that the principle announced in the first proposition of the syllabus in 10 O. S., 617, “An appeal perfected suspends all. proceedings upon the judgment appealed from,” which proposition seems to be the settled law of this state, and which is followed in 77 O. S., 75, is decisive of the question here.

The record shows that in this case the appeal was perfected from the decision of the probate court to the court of common pleas prior to the filing of the petition in error, and for this reason the petition in error was dismissed.

In Hull et al v. Bell Bros. & Co., 54 O. S., 228, the fourth proposition of the syllabus is as follows;

“While an appellant may prosecute error to the judgment appealed from before the determination of his appeal, the proceeding will avail nothing if the appeal be sustained, for then the cause stands for a new trial on the issues of fact. The judgment superseded by that of the appellate court and errors occurring in the court below, if any were committed, became immaterial. Nor can the affirmance of the judgment before the trial of the appeal give it any additional or different effect.”

In the opinion of the court, at page 241, it is said:

“We are not aware of any statutory provision or rule of law which prevents a party, who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice; otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting error, and then be determined adversely to him, thus leaving the judgment in force, his remedy on error would be lost, but if the appeal be sustained the proceeding in error avails nothing, for the cause then stands for a retrial of the issues in the appellate court.”

It seems clear from this decision that a party may prosecute error for a judgment after he has perfected an appeal, but of course it avails nothing if the appeal be sustained.

Was the appeal sustained in this case? The case seems to have been an appealable case, and an appeal was'perfected, but it certainly was not sustained, and no trial was had on the issues joined in the appellate court. On the contrary the appeal was dismissed in the appellate court. The entry dismissing the appeal recites: “Now come the appellants in the-above cause and dismiss their said appeal at their costs.”

We know of no provision of our statute which authorizes an appellant to dismiss an appeal when perfected and we think there is no such power. Such power rests solely in the court and, in order to give this dismissal any effect, it must be construed as the judgment of the court, and the court had no right to dismiss the appeal unless the appeal was not properly taken, or the ease was not one from which an appeal could be taken. No error was prosecuted to the judgment dismissing the appeal, and it therefore stands, although the court may have committed an error in. dismissing -the appeal. It seems to us that when the appeal was dismissed the party had the right to have the judgment reviewed on error, and that the court erred in dismissing the petition in error.

J. M. Dawson', for plaintiff in error.

W. H. Mackoy, for defendants in error.


author: Per curiam.

text:
    AUCTION SALE-WARRANTY.
    Circuit Court of Richland County.
    Bailey & Walters v. Sigmund Peters et al. *
    Decided, 1906.

      Presumption — That a Purchaser Understands the English Language— Otherwise Notice Must he Given to the Contrary.

    One who undertakes to do business in this country is presumed to be able to transact business in the language of the country, and if he can not, it is his duty to make that fact known; and if he does business without making that fact known he does it at his peril.
    The facts in this case are as follows:
    Plaintiffs in error sold to defendants in error at public .auction in the city of Mansfield, Ohio, on March 3, 1902, a horse, sold as coming three, sound and broke double.
    Plaintiffs sold the horse under the following rule, which was printed and .attached to a post near .the auctioneer’s box, to-wit: “Guarantee on all .draft horses sold by Bailey & Walters shall " expire at twelve o’clock noon of the day following the day of sale.” That the auctioneer called .the attention of defendants in error and others at the opening of the sale to this rule; .that the horse was not returned within the time limit, nor any notice given of the sickness of the horse until after death; that the horse lived about ten days after the sale.
    Defendants claimed they were Germans, and did not understand what the auctioneer said when he called the attention to the rules, admitting that they were present.

      Charge to jury: The plaintiffs bring their action upon a promissory note, which note is set up by copy, and the -interest which the note bears is set forth. There is no controversy on the plaintiff’s cause of action. The plaintiffs, in reckoning -the interest, hav-e made rests. You are not -authorized to do that. Y-ou will reckon the interest right -along to the first , day of this term of court, and you will find -that amount for plaintiff.
    Then we come to the question these parties have been litigating.
    The answer, in substance (and you will have it before you, to look at its terms), sets forth -that this promissory note was given for the purchase of a horse, -and that as a part of the contract of sale this horse was warranted to be sound; that it turned out he w.as not sound, but diseased, at the time, and that from the disease he died on the hands of the defendants; that -the defendants in endeavoring to cure him and protect him as against the disease, expended some thirty odd dollars, but the horse finally died.
    To this claim -of the defendants there is a general denial, denying all the allegations -of this contract claim of defendants.
    Although, in -terms, there is a denial of the warranty, the attorneys for the parties, now in -open court, admit there was a warranty, but claim it was a limited -one. So you will see that the controversy narrows -down to, not in fact whether there was a warranty, but was the warranty that was made limited, as the plaintiffs contend?
    The testimony tends to show that when the horse was put up for sale, the representation was made that this horse was “sound, three years old, and broken. ’ ’ If that representation was made to induce the sale of the horse, and it induced the defendants to bid on the horse, it constitutes what we call in law a warranty. Or, in other words, the term “warranty,” in warranting a horse, is not necessarily to be used, but any term that clearly imports -that one party contracts that the h-orse is sound, and the other buys the horse on -the faith of that contract — that in law constitutes warranty.
    We come to the real matter in dispute between the parties. Although not set up in the pleadings in any way, still it is contended under the denial in the reply — «nd the reply .denies all the allegations of the cross-petition — that although these words were spoken, and spoken at the time of the sale of the horse, the parties understood that they were limited by this notice that was claimed to be hanging on the post. As a matter .of course, if the parties knew there was a rule by which these words were limited, and bought with reference to that rule, they are bound by it, as they would be in any other transaction. But it is contended that the defendant could not read the English language, and that it was no notice to him. And it is contended that it was said in English, “This sale is governed by the same rules as heretofore.” I do not quote the exact language, but the substance of it. You are to look at the parties. Did they understand that the old gentleman was .a German and might not understand the English language clearly? Was there anything occurred to induce them to know that the old gentelman was a German? If they knew he was a German, I do not think any presumption arises that he could read the English language.
    Gentlemen, treat these parties fairly. If this horse is sold under the warranty that is set up, then the parties are entitled to reply upon -that warranty.
    The next question is, was the horse sound at the time he was sold? As a matter of course, if he was sound at that time, and he took sick a few miles out, the plaintiff would not be liable on the warranty. But you may look at the condition of the horse in an hour, or a day or two after the time he was sold, to determine the fact as to whether or not he was sound at the time of the sale.
    The verdict of the jury was for defendants.
   Per curiam.

This is an action to recover on a promissory note.

The defendants admit the execution of the note, but say that the same was executed to evidence the purchase price of a horse purchased by the defendants from the plaintiffs on March 3, 1902; that said plaintiffs, as a part of the consideration of the purchase price of said horse, represented and warranted the same to be-«ound and freed from disease, but .that it then was afflicted with disease which resulted in the death of the horse in a few dat^s or weeks after its purchase. They claim that by reason thereof there was a total failure of consideration, and that defendants were put to great expense in the care and treatment and nursing of the horse and burying of the same, and ask .to recover the sum of $150 damages, and'that sufficient of said damages be counter-claimed and set-off against plaintiff’s note, and that they may have judgment for the residue thereof.

Plaintiffs for reply deny generally the allegations of the answer and cross-petition, and the issue so made up was tried to a jury, resulting in a verdict for defendant. Judgment was rendered thereon, and error is prosecuted to this court to reverse the same.

We think that the court erred in its charge to the jury,'touching the ability of Leopold Peters to read the English language, and in saying to the jury that a copy of the rules printed in the English language was no notice to him, .and when inquiring from the jury: “Did they understand that the old gentleman was a German and might not understand .the English language?” Further inquiring: “Was there anything occurred to induce them to know that the old gentleman was a German, and in the further statement that if they knew he was a German, there was no presumption that he could read the English language. ’ ’

We are of the opinion that if any man .undertakes to do business in .any language, he represents, and the .parties dealing with him have a right to understand, that he is able to deal in that language, unless the contrary clearly appears.

If he was not able to transact business in this country in the language of this country, it was his duty to protect himself by securing the services .of someone who could aid him in that behalf, .and therefore, when he undertook to act for himself, he in effect represented that he was able to take care of his side of the business transaction, .and there is nothing appearing in this record that would make this case an exception to the rule.

As to the weight of the evidence, we think it clearly appears by the evidence of the defendant, Leopold Peters, that he knew what the rules were in former sales. True, he does not admit, that he understood what the auctioneer said, when he said that the rules of former sales should control this -one, but claims that he could not understand so much English; yet he does say very clearly that he understood him to -say that the horse was sound and well broken.

We think -that if he understood that much in his behalf, he ought to have understood what ivas said on behalf of plaintiffs; but even if he did not, and he knew that the rules were posted there for the information of purchasers at this sale, and if he knew that they were in -a language that he could not read and could not understand, he engaged in the bidding at his peril, if he did not seek information from one who could read and who could understand.

It was his duty, in other irords, to advise himself when -opportunity was offered, and if he failed, it was his mistake and not the fault -of the plaintiffs.

The plaintiff had a right to make the conditional warranty contained in -the rules, and in sales made under these rules the limitation -thereof necessarily -became a part -of the contract.

The purchaser is at liberty to buy or not to buy at a sale where such rules -are promulgated with such limitations of warranty; in fact -the sellers might -refuse by -their rules to warrant at all, and then -the doctrine of caveat emptor would apply; so that if there be a limited warranty the purchaser, in order to avail himself of the terms of the warranty, must comply with the conditions thereof.

Therefore, we are of the opinion that the verdict in -this case is against the manifest weight of the evidence, viewing the -evidence in connection with the law that must control.

We therefore find that there is error apparent upon the rec- ■ ord, to the prejudice of the plaintiffs in -error, in the charge of the court as above specified, -and in overruling the motion for a new trial -on the ground that verdict was against the weight'of the evidence.

The cause is reversed for these reasons, with costs, and remauded .to tbe court of common pleas for further proceedings and trial according to law. Exceptions of defendant in error are noted.

W. H. Gifford and J. P. Seward, for plaintiffs in error.

Andrew Stevenson, for defendants in error.


text:
    DEEDS SIGNED IN OTHER. THAN THE USUAL, PLACE.
    Circuit Court of Auglaize County.
    Eliza Graham et al v. Michael Burggraf et al.

      Deeds — Record of, Competent Evidence, When — Identification of Deed —Signature of Qrantor Established — Wife Signed on Opposite Page —Instrument Construed to be as to Her a Contract — Such an Instrument Sufficient as a Basis of Equitable Relief.

    1. The record of deeds is competent as evidence in an action involving title to land, where there are irregularities in the execution of the deed.
    2. The testimony of a witness who saw a deceased grantor sign a deed, and the identification of the deed in question, and the testimony of three or four expert witnesses that the handwriting is that of such grantor, there standing uncontradicted, are sufficient to establish the signature'of such grantor.
    3. A party may sign a deed elsewhere than in the place provided for that purpose; and if in other respects regular, and the signature is properly identified, the fact that one of the grantors signed on an opposite page from the place for the signature does not render a deed invalid.
    4. An instrument purporting to be a deed, and proper in all respects except as to the signature of the w.ife of the grantor, which appears in another than the ordinary place therefor, and without seal, as the law at the time required, and without proof that the witnesses were present and saw her sign her name, amounts to a deed by the husband and a contract by the wife.
    5. Such an instrument, while lacking one or more essentials as to the form of its execution, forms a basis upon which a court of equity may give relief to parties holding possession thereunder, especially where there is evidence tending to prove payment received by the wife at the time of such conveyance, and that those claiming through her acquiesced in the adverse possession of grantees for a long period of years. The instrument under these conditions confers an equitable title, and injunction to restrain acts of ownership by grantees, will be refused.
    Price, J. (orally) ; Day, J., and Finley, J., concur.

       Affirmed without report (59 Ohio St., 603).

   Plaintiffs brought their suit in the court below against Michael Burggraf and M. H. Goodkind, and for a cause -of action say they are the sole and only heirs .at law of Cynthia Cornell, deceased, and as such are .entitled to the reversion .of a certain tract of land in this county, containing about fifty acres; that the defendant, Michael Burggraf, is the owner .of the present outstanding life estate in the premises of one George W. Cornell; that on September II, 1895, the defendant, Burggraf, without authority or right from .the plaintiffs, executed and delivered to Goodkind an oil lease on the same premises; that under that lease Goodkind had wrongfully entered the premises -and had begun to extract oil from .the ground in large quantities; that the lands were valuable for oil producing purposes, and to remove the oil would be somewhat disastrous to the value of this estate; and they ask an injunction against the operation of these premises for oil purposes, .and an order to enjoin entering the premises and also for an accounting for the oil that has been produced.

The defendant, Burggraf, answers in three defenses. The first is a general denial to the plaintiffs’ title to the land; the second, that the defendant had executed a lease -to Goodkind for -oil purposes -on the premises, .and that "it is necessary to operate for oil by reason and -in order to save the waste which would occur by reason of the adjacent territory to this fifty-acre tract being drawn upon by the sinking of wells on that land and drawing from the fifty acres; third, by way of cross-petition, that he is in .possession of the premises and is the owner in fee simple, and that the plaintiffs claim some right in the premises which he asks .they may be compelled to set up, and that his title may be quited against them, and for other and further relief.

On the hearing of this case there were some objections made to the introduction of testimony, which we should dispose of before proceeding to the balance of the ease. The plaintiff, by his counsel, introduced the record of deeds, Vol. 22, page-; there was an objection made to the introduction of that by one of the parties, and my recollection is that it was introduced by the plaintiff. There would be no error in that, for the record is evidence by reason of the association of the parties. The record of the deed offered in evidence between the parties was the one which Mrs. Cornell made at the time. The deposition of George W. Cornell is introduced in evidence, subject to objections made to certain questions in the deposition; we have marked in lead pencil in the margin opposite such questions as we think should be ruled out, and in that wiay counsel can determine the evidence that we regarded as competent and incompetent.

What is the evidence, then, in regard to the title in this case? No question is made as to the conveyance by George W. Cornell, the husband of Cynthia, but that it is in proper form. The record shows no signature of the wife joining in the execution of the deed; but the deed is produced and identified, the deed of which the record is a copy and in which it is claimed Cynthia signed her name, not in the form .of subscribing to the deed, but signing it between two lines on the opposite page of the deed and in another par-t of the deed where there is language regarding the covenants embraced in the conveyance.

Is the evidence satisfactory that that was the signature and handwriting of Cynthia Cornell? We have a deed identified by a witness who saw her sign a certain deed and testifies positively that she signed that paper, which was> introduced in evidence as a standard of comparison. The handwriting in the deed in question was compared by three or four witnesses who were introduced as experts in comparison of handwriting, and as a result of their examination, they say that this handwriting in the deed in question is by the same hand 'that wrote the signature to the other deed, identified by the other witness; there is no evidence opposed to this; at least there is no expert testimony on the subject, and while the evidence is not as full and clear as we would like it in a ■ case of such importance, we believe it fairly establishes the fact that .the handwriting of the name of Cynthia Cornell, on the page opposite to where her husband signed, is in the handwriting of Cynthia Cornell.

That being the ease, the next question raised is, what is the effect of the signature at that place? It is not witnessed, and is in a different locality from the place where signatures are generally recorded. From an examination of the authorities cited and the usual rules regulating the execution of deeds under the law as it existed at .the time this conveyance was made, we are .of the opinion that it doesn’t have the character of a deed of conveyance, so far as the wife is concerned. It would lack the one element, clearly, perhaps that there is no seal annexed to her name, and it can not be said to be clear that the witnesses who attested the signature of the husband were present and saw her sign her name at the place mentioned; but so finding does not necessarily give the plaintiffs a right .to the relief prayed for.

We .think from our investigation .of the authorities and from the language of our statute, that a, party may sign a deed elsewhere than under the place usually provided for that purpose in the forms; like the law regulating wills, the signature need not be necessarily at the close of the will but may appear elsewhere if it is identified as ¡being the signature of the testator, and otherwise regular in form and execution. So we think it stands at least in the form of a contract — a .deed by the husband, and in the form of a contract by the wife; and while in an old case involving title, in an action of ejectment where the general issue was joined, such document would not be sufficient to defeat the plaintiff’s right to recover possession of the property, yet in a court of equity, where it is made to appear that this contract was executed on its face purporting to be a conveyance, yet lacking one or more essentials as .to -the form of its execution, it is such basis as would authorize a court, upon a proper pleading, to execute a contract, and give relief to the parties who held possession under such instrument. In this evidence it appears, while not amounting to much in weight, in the evidence of the son, that $800 was paid at the residence of Cornell in the presence of his wife, which was turned over by the husband to -the wife for safe-keeping; that she had knowledge of the consideration. There was no notary public there, to take the acknowledgment of this deed by either party. There is some evidence as to the place of its1 execution, -namely, at the office of Joseph Plunkett.

Goeke <& Culliton, for plaintiffs.

Wm. E. Cunningham and Lay Ion E, Süieve, for defendants.

There is another circumstance in this case, the mother -of -this child dying, if we are informed correctly, seventeen years ago, at least it so appears from the deposition, there was an acquiescence -on the part of this- plaintiff, up to a certain period of time, in the possession of the parties under whom the defendant h-olds. ■

Now, on the whole case are the plaintiffs entitled to enjoin defendants .from -enj-oying possession of -this property; they must show a clear right to this- remedy. We think that the case, taken as a whole, shows that Mrs. Cornell signed .this instrument ; that she signed it as a contract at least, and no doubt, we think, -intended to join in the conveyance, and that it is such an instrument as confers- upon Burggraf, and the other parties under whom he h-olds, an equitable title, one that is capable of being enforced in -equity. That being -the case, the plaintiffs have n-o standing in -court to enjoin the peaceable enjoyment -of the possession of the premises under -this title. There will be a finding for the defendants; plaintiff’s- petition dismissed, and .the title of -the defendants quieted as -against the plaintiffs and each of them; costs to plaintiffs and judgment for costs; the -injunction dissolved and "cause remanded to the court of common pleas for -execution.


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    LOCATION WITH REFERENCE TO A DWELLING HOUSE OF AN ADDITION TO A CEMETERY.
    Circuit Court of Hancock County.
    Mariah Morlock v. Ignatius T. Horstman et al.

      Cemeteries — Location of, within not less than One Hundred Yards of a Dwelling — Not an Infringement on the Vested Rights of the Property Owner, When — Such Use of Adjoining Land should be Anticipated, When — Reasonableness of the Provision in Section 3573.

    1. The change in Section 3573, whereby the distance from a dwelling at which a cemetery may be located was made not less than one hundred yards instead of not less than two hundred yards, can not be construed as an infringement on the vested rights of a property owner who purchased and made his improvements prior to such change, especially where the land which it is proposed to' devote to such use adjoins an established cemetery in a rapidly growing town.
    2. A restriction as to the location of cemeteries, which was considered reasonable when it was adopted, may be removed or modified when the Legislature determines that necessity or circumstances so demand; and it is not unreasonable to require that such modification be anticipated as to land adjoining cemeteries established, and in use, and so situated that adjoining land would naturally be selected when more burial space becomes necessary.
    3. One who purchases land adjoining the cemetery of a religious society, and builds a house one hundred and sixty feet from the nearest lot therein and makes other improvements, is not entitled to an injunction restraining the society from using for cemetery purpurpo'ses land purchased by them boerdering on the established cemetery grounds, where the part to be so used is more than one hundred yards from the plaintiff’s, dwelling, although the nearest boundary line is less than one hundred yards from his dwelling.
    Norris, J.; Day, J., and Price, J., concur.

       Affirmed by the Supreme Court without report (60 Ohio State, 629).

   The plaintiff, Mariah Morlock,’ complains that the defendant, Ignatius ITorstman, is the Bishop of Cleveland, and as such holds title of real estate of the Catholic church in his diocese, and so holds certain land in Washington township in this county. St. Wendelas Catholic congregation of Fostoria, Ohio, is areligious society. The plaintiff owns and occupies as a residence the premises -adjoining -on the west the land held by the church; her residence and out-.buildings are less than one hundred yards from the land of -the church. She says that it is the intention of said religious society of St. Wendelas church .to lay out its said lands for a cemetery for the dead -of that congregation. She says that if that be done it .will make impure -the water’ supply for her residence, and will greatly injure and depreciate the value of her property; and she asks that defendant may be restrained from establishing and using- the lands described for cemetery purposes.

Defendants deny that they intend or will lay -out and establish a cemetery within three hundred feet of plaintiff’s residence, but say that they are .about to locate and 1-ay out a cemetery which will be at its nearest point more than one hundred yards from plaintiff’s duelling-house. They aver that when plaintiff purchased her property and built her -house and made her improvements the Fostoria city cemetery was located and used adjoining her lands, and no more than one hundred and forty feet from her said dwelling-house, -and that said cemetery is now, and before she so purchased, and ever since has- teen used as a cemetery .and place for the burial for the dead, and that the land so proposed by the defendant to be used as -a cemetery adjoins the said Fostoria cemetery.

The issues thus' presented reach this court by appeal from the common pleas. There is substantially no disagreement a.s to the facts in -this case. There w-as thought to be a difference as to distances. The west line -of the land so 'held by the religious society is less than one hundred yards from the plaintiff’s dwelling, but the testimony shows that the portion .of the land proposed to be used as a cemetery is three hundred feet and more from plaintiff’s residence; and that being true, what is the law of the case

The testimony informs us that plaintiff’s premises are one hundred and sixty .and one-half feet from the nearest lot in the Fostoria cemetery, which is separated from her premises by the public highway.

The Fostoria city cemetery was established forty years ago, and ever since has been and now is in use as a place of interment. Plaintiff’s property was acquired eighteen years ago, about, and the improvements were made all since that time.

Under our statute the rule appears to be that a cemetery can not be established upon premises that do not adjoin a cemetery already located, if the lands sought to be used for cemetery purposes lie within two hundred yards of a dwelling-house, unless the owner of the dwelling-house gives his consent. This rule, however, is not without its exceptions, and notably where it is sought to use for cemetery purposes property adjoining a cemetery already located and used. In such ease the limit shall not be less than one hundred yards from a dwelling-house, if the dwelling-house has been erected after the laying out and establishment of the cemetery so located and used.

We think there is nothing uncertain or ambiguous about this provision of Section 3573, Revised Statutes. The case at bar is clearly controlled by it. A cemetery is located and has been in use for forty years and is now in use adjoining it, with a cemetery road between, which is merely a public easement and does not fix the land lines on plaintiff’s premises. ITer home is one hundred and forty-seven feet from the old cemetery line, and one hundred and sixty and one-half feet from the nearest lot in it. Her property was acquired and her dwelling built years after the location of the adjoining cemetery. The land upon which this cemtery is sought to be established joins the old cemetery, the same as do the premises of plaintiff, and is distant from the dwelling over one hundred yards.

It appears that a state of facts such as is recited by the testimony in this ease was in contemplation by the law makers when this provision of Section 3573, Revised Statutes, was enacted. As to her vested rights, Section 3573 is .a general law. Each may use his property for legitimate purposes subject to whatever restriction the law imposes.

Land used for cemetery purposes .is. not being used for an illegitimate purpose. If two hundred yards was the distance from a dwelling-house at which the location of a cemetery was fixed, when she made her improvement, it didn’t determine any right in her; it simply curtailed the rights of somebody else; it restricted the rights to use property for a legitimate purpose.

Blackford & Blackford, for plaintiff in error.

Seney & Sayler and John Sheridan, for defendants in error.

A restriction that might have been a reasonable one, when necessity or circumstances required it, may.be removed or modified 'as the wisdom of the Legislature may determine; and it does1 not appear unreasonable that such modification shall be anticipated as to land .adjoining cemeteries already established and in use. She located beside ground, which was then held, near a large and growing town, as a place for the sepulchre of the dead. She was, to some degree at least, chargeable with notice that -the people of that place, of whatever religious sect or denomination, would naturally incline to that locality when conditions required more burial space. We do not think that this general law can be construed as an infringement upon her vested rights.

Plaintiff’s petition will therefore be dismissed at her costs.


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    ASSESSMENTS IN EXCESS OF THE STATUTORY LIMITATION.
    Circuit Court of Hamilton County.
    The Fifth National Bank of Cincinnati v. City of Cincinnati et al.
    Decided, February 15, 1908.

      Streets — Assessments for 'Improvement of — Where by Petition Under Section 2272 — Application of the Restrictions to Assessment Under the Municipal Code.

    While a lot owner can not escape payment for a street improvement made in accordance with a petition signed by him, even though the assessment exceeds the statutory limitation, he is entitled to have such an assessment added to any later assessment made within five years, for the purpose of ascertaining whether the total exceeds thirty-three and one-third per cent, of the value of the land . after the improvement has been made; and if excess is found he is entitled to relief from the second assessment to that extent.

      G-ifhen, J.; Swing, P. J., and Smith, J., concur.
   In 1899, Henry Moemke was the owner of lot 89, situtated at the corner of Mansion place and Myrtle, place on Price Hill, being 37.50 feet on Myrtle and 135 feet on Mansion place, and signed a petition for the improvement of Mansion place and for the assessment of the whole cost of such improvement except two per cent, and cost of intersections. The amount of the assessment including interest is $400.90.

An ordinance to improve Myrtle place was passed August 8th, 1904, and the assessing ordinance was passed July 17th, 1904. This assessment with interest amounts to $389.99.

On September 12, 1904, the lot was assessed for a sidewalk in Mansion place in the sum of $64.45, which has been paid. And on June 3d, 1907, the lot was assessed for a sewer in Mansion place in the sum of $99.88, which has been paid.

It is agreed that the property is worth $1,725. The plaintiff is now the owner of the lot and prays that the assessments be reduced to the amount allowed by statute, and for an injunction.

The lot owner having signed a petition for the improvement of Mansion place and for the assessment of the cost thereof is not entitled under Section 2272, Revised Statutes, then in force, to the benefit of any statutory limitation upon the power of assessment for that improvement, although such petition was not subscribed by three-fourths in interest of the owners of the property abutting upon Mansion place, and although legislation similar to Section 2272, Revised Statutes, has since been held by the Supreme Court to be unconstitutional. Shoemaker v. City of Cincinnati, 68 O. S., 603.

It does not follow, however, that the owner of the lot, by signing the petition, waived his right to have such assessment added to later assessments levied upon the same lot within a period of five years, to ascertain whether the total exceeds thirty-three and one-third per cent, of the actual value thereof after improvement is made, as provided in Section 53 of the municipal code as amended April 20, 1904 (97 O. L., 126).

He did not then know and' could not anticipate what improvements would be made or what assessments would be levied within the statutory period.

Wm. F. Chambers, for plaintiff.

Charles F. Hornberger, Assistant City Solicitor, for the city.

Besides the municipal code expressly provides that “in no ease shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any or all purposes, within a period of five years, exceeding thirty-three and one-third per cent, of the actual value thereof,” which provision admits of no exception, other than when a petition is signed and presented, and then only to be applied to the particular improvement asked 'for, or when otherwise waived. The owner could not escape payment for the improvement in accordance with the'petition even though the assessment exceeded the limitation then in force (Section 227, Revised Statutes) or now in force (Section 53, municipal code).

The illegality attaches to the later assessments levied within a period of five years, and not to the original assessment authorized by petition.

The Myrtle place assessment was legal to the extent of $174.10, which together with the assessment of Mansion place equals thirty-three and one-third per cent, of the actual value of the lot. The collection of the excess of the Myrtle place assessment, amounting to $215.89, will be enjoined. Such illegal assessments as were voluntarily paid can not be recovered, nor set off against those that remain unpaid. Wilson v. Felton, 40 O. S., 306; Brooks v. Village of Norwood, 12 C. C., 257.


author: By the Court.

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    HUSBANDS’ NAMES INSERTED IN PARTITION DEEDS.
    Circuit Court of Franklin County.
    Waterman v. Waterman.

      Quit-Claim, Deeds in Amicable Partition — Names of Husbands of the Heirs Inserted — Title of Heirs not Affected Thereby — Possession of Husbands not Adverse.

    1. Where a family who had inherited certain real estate agreed to an amicable partition, the heirs joining in quit-claim deeds to each other in which deeds the names of their husbands were inserted, the heirs took title by inheritance and the quit-claim deeds will be regarded as merely the means adopted to sever the tenancy in common.
    2. The insertion of the names of the husbands of the heirs in quitclaim deeds thus executed did not invest the husbands with title to any part of the property, but was a mistake of the scrivener, the husbands holding an undivided one-half of the property in trust for their wives, which upon the death of the wives descends to their heirs.
    3. Under such circumstances the occupation of the property by the husband of one of the heirs during her lifetime was not adverse.
    Stewart, J., Shauck, J., and Shearer, J.

       Affirmed without report (57 Ohio State, 659).

   By the Court.

A family by the name of Anderson, having inherited certain real estate in Franklin county, in 1855, by a mutual agreement had an amicable partition made, in which the various heirs and their consorts joined in quit-claim .deeds to each other. One of these Andersons, to-wit, Rebecca Ann, had married a man by the name of Waterman, but when the quit-claim deed by the others was made, they inserted in it, as grantees, not only Rebecca Waterman, who was the sole owner, but also her husband’s name. The same kind of a deed was made to the other female heirs, that is: their husband’s names were inserted with .them, as grantees in the deed. Waterman and his wife lived on this place and used -and occupied the same until a year or two before the commencement of this action, when Mrs. Waterman died. Her husband claimed under .the deed to be entitled to one-half of the property and also his dower in his wife’s one-half. The children of Mrs. Waterman claimed that she was the equitable owner of the entire tract. A decree was granted as follows:

This day this cause came on for hearing, upon the petition of the plaintiff filed herein January 22, 1894; the answer and cross-petition of Chas. F. Waterman, and others, filed herein March 14, 1894; the answer of Edward Waterman, Clarence AYaterman and Mabel Waterman, infants, by their guardian ad lilem, filed March 18, 1895; the answer of Herbert Waterman, Florence Waterman, Walter AYaterman and Harold Waterman, infants, by their guardian' ad litem, filed March 23, 1895; the answer and cross-petition of Ida M. Waterman, filed March 23, 1895, and the second .amended reply of the plaintiff, filed March.30, 1895, and was heard upon said pleadings, the' exhibits and the -testimony, and was argued by counsel and submitted to the court, and upon consideration thereof and -being fully advised in the premises,' the court doth find from -the evidence the following facts and the law governing the same, as follows, to-w-it:

First. Rebecca Ann Waterman took title to the forty-Jive acres in dispute by inheritance. The deeds and partition proceeding being the means adopted to sever the tenancy in common and set apart separate tracts to each.

Second. That in the execution and exchange of the deeds and the election in partition, -there was no intention -on the part of the plaintiff and his deceased wife to make a gift or advancement to the .plaintiff.

Third. The insertion of the plaintiff’s name in said deed from the Anders-ons and in the election confirmed by the court, was a mistake of the scrivener drawing the deed and furnishing the entry of confirmation. The occupation -of said premises by the plaintiff during the lifetime of Rebecca Ann Waterman, >his wife, was not adverse.

Fifth. The improvement -of the estate by the plaintiff was made with knowledge on his part of the facts supporting the title of his wife, Rebecca Ann Water-man. Er-oin these facts so found, and arising from the attending circumstances, it follows, as a matter of law, and the court find that Rebecca Ann Waterman was seized in fee not only of the legal title of undivided half of the forty-five -aer-e 'tract, but also of the beneficial interest in the other half, and -that A. Frederick Waterman only held the title to the undivided -one-half thereof in trust for said Rebecca, and so the title remained until the death of said Rebecca, when it descended to the defendants- as her heirs at law.

T-o each and all -of which findings of fact and conclusions of law the plaintiff excepts. It is n-ow, therefore, ordered and adjudged that the petition be and the same is hereby denied. To which judgment of the -court the plaintiff -excepts. And it is now further considered and adjudged that the plaintiff, A. Frederick Waterman, make, execute' and deliver to the defendants, Mary E. Waterman, Emma L. Waterman and Alfred Gr. Waterman, children of Rebecca Ann Waterman, deceased, and to Edward Waterman, Clarence Waterman, Mabel Waterman, Herbert Waterman, Florence Waterman, Walter Waterman, Harold Waterman, children and heirs at law -of Charles F. Waterman, deceased, wh-o was- a son of the said Rebecca Ann Waterman, a good and sufficient deed or deeds of quit-claim, conveying to said defendants a fee simple title to the undivided one-half of the said forty-five acres of land described in the petition subject to his rights of dower therein, and that in default thereof for a period thirty days from the date of this decree, that it operate and stand-as such conveyance. Said forty-five acre tract of land is described as follows, to-w-it:

Situated in the -county of Franklin, state of Ohio, and in Franklin township, being forty-five -acres of land off from the east side of the tract estimated to contain sixty-six acres adjoining on -the east the farm kn-own as -the J-ohn Anderson Homestead farm, said sixty-six acre tract being the same conveyed by John Anderson to his sons, Robert, J-oshu-a and J. Redding Anderson, by deed dated May 30, 1836, and being the same forty-five acres -of land quit-claimed and released to Rebecca Ann Waterman, and A. Frederick Waterman, by deed dated December 24, 1855, by J. Redding Anderson and .others, and appearing of record in deed book 84, page 92, Franklin county deed record.

To all of which orders, judgments and decree of the court the plaintiff excepts. The said deed or deeds of quit-claim to be executed by the said A. Frederick Waterman shall convey the undivided three-fourths of the undivided one-half of the said forty-five acre tract subject to the dower estate therein to the said Mary E. Waterman and Alfred G. Waterman jointly, so that each of said seven children shall take an undivided one-seventh of said undivided one-fourth so conveyed subject to the right of dower of the said Ida M. Waterman, as the widow of Charles F. Waterman, deceased, in the said undivided one-fourth so conveyed.


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    FINALITY OF A JUDGMENT ON DEMURRER.
    Hamilton County Circuit Court.
    Cyril Kehm v. German Mutual Insurance Co.
    Decided, March 7, 1908.

      Judgments — Conclusive on Demurrer by Way of Estoppel, When — Finality of Affirmance of, as Shown by the Record — Not Changed by a Different Reason Stated in the Opinion.

    Where the record shows that a demurrer to the petition was sustained by the trial court on the merits of the plaintiff’s cause of action, and this judgment was affirmed by the circuit court in the usual form as without error, the finality of the judgment can not be changed by looking to the opinion of the circuit court judge where it appears that the affirmation was based on technical grounds.

      Albert Bettinger, for plaintiff in error.

      John B. Sayler, for defendant in error.

      Swing, P. J.; Smith, J., and Giejfen, J., concur.
   This is an action in this court on error to the judgment of the court of common pleas dismissing the petition of the plaintiff in error against the defendant in error.

Kehm brought his action in the court of common pleas on a policy of insurance held by him in the German Mutual Insurance Co.; in this action he obtained a judgment. The insurance company prosecuted error to the circuit court, wherein the judgment was reversed and the cause remanded for further proceedings.

After .the case went back to the court of common pleas, plaintiff filed an amended petition, to which .the insurance company filed a general demurrer, which general demurrer was sustained and plaintiff’s petition was dismissed. Plaintiff prosecuted error .to the circuit court, which court affirmed .the judgment of the court of common pleas. Thereupon plaintiff brought another action in the court of common pleas. The defendant filed an answer to this petition in which it set out two defenses, one of which was a plea in bar, setting up a former decision of the same court, between the same parties, in the same cause of action. To this defense the plaintiff filed .a reply setting forth the opinions of the judges of the court of common pleas and circuit court in deciding the questions in the former ease, as showing that the base was not determined on the merits and therefore was not a bar to a subsequent action. The defendant filed a motion for judgment on the pleadings and this motion was granted and plaintiff’s petition dismissed. This is the judgment sought to be reversed in this court.

The judgment in the first action between the parties was rendered in the court of common pleas on a general demurrer to the petition. It is admitted by counsel that the law on this question is correctly stated in Black on Judgments, Section 707, as follows:

“There can be no doubt .that -a judgment rendered upon a demurrer is equally conclusive by way of estoppel of the facts confessed by the demurrer, as would be a verdict and judgment finding the same facts. But a judgment on a demurrer based on merely formal and technical defects is no bar to a suit on an amended declaration correctly setting forth, a good cause of action.”

Again at Section 709, it is stated:

“In mány of the states, especially those following the code practice, a statutory and much used ground of demurrer is: ‘that the complaint does not state facts sufficient' to constitute a cause of action.’ ‘A decision upon a demurrer of this kind is an adjudication upon the merits as far as the complaint goes, and is final and conclusive. ’ ’

The demurrer in the court of common pleas as shown by the record was on the merits of plaintiff’s cause of action. But this judgment of the court of common pleas was affirmed in the circuit court, as shown by the opinion of the circuit court judge, which is brought into the record, on a technical ground, viz., that there was no consideration alleged in the petition although the judgment of affirmance was in the usual form simply finding that there was no error in the judgment. The record in this ease contains the opinion of the judge of the court of common pleas sustaining the demurrer to the petition and it is admitted that it goes to the merits of the action and was not on technical grounds. The opinion of -the circuit court judge affirming this judgment was on the ground that no consideration was alleged in the amended petition, and it is admitted this is a technical ground, the opinion saying that the court found it unnecessary to pass on the other questions of .the ease. No error was prosecuted to the Supreme Court to reverse this judgment of affirmance.

The general principles of .the law applicable to the question at bar seem to be well settled. If no error had been prosecuted to the judgment of the court of common pleas, the judgment of that court on the demurrer would be final and a bar to this action. This judgment was affirmed by the circuit court, and we think the finality of the judgment was not changed by the fact that looking to the opinion of the court, outside of the record of that case, the circuit court based its affirmation on technical grounds. The circuit court might have been wrong in its conclusion and still the judgment have been right, .and if the case had gone to the Supreme Court the question there would have been, not whether the reasons given by the circuit court in its opinion were right, but whether on the record the judgment of affirmance was right. We think the judgment should be affirmed.

       Affirming Kehm v. German Mutual Insurance Co., 5 O. L. R., 558.


text:
    REVIEW IN A HOMICIDE CASE.
    Circuit Court of Morrow County.
    Williams v. The State of Ohio.

    Decided, December 9, 1907.

      Criminal Law — Defect in Sheriffs Venire — Failure to Deliver Copy of Panel to Accused — Reviéwable only when of Record — Objection to Mental Competency of Witness does not Require Immediate Inquiisitiom — Improper Remarles by Prosecuting Attorney to Jury— Testimony of Accused before Grand Jury — Evidence Establishing Death by Violent Means.

    1. Under the rule that only matters which are brought into the record can be considered by the circuit court on review, a verdict of conviction will not, be set aside on the ground that a true copy of the panel as returned by the sheriff was not delivered to the accused as required by Section 7273, Revised Statutes, where the irregularity complained of is not carried into the bill of exceptions but is brought to the attention of the court by an affidavit to which is attached a paper writing and what purports to be a copy of the jury panel.
    2. An objection to the competency of a witness on the ground of his mental incompetency does not require that the court stop the trial at that point and immediately institute an inquisition as to the mental capacity of the witness.
    3. The declaration by the prosecuting attorney in this case as to what a certain “black jack” could tell and what the accused could tell, where followed by an admonition from the court that the remark should be disregarded and not repeated, did not amount to misconduct if prejudicial.
    4. Testimony by the accused before the grand jury that he was not guilty but knew how the murder was committed was properly admitted at the trial together with other incriminating statements and admissions on his part showing guilty knowledge.
    5. Evidence as to the disappearance of the deceased, the finding of his body two weeks later with contusions on the head, and abrasions on the neck and other parts of the body, together with the testimony of reputable physicians that death was caused by suffocation, if it does not establish beyond reasonable doubt that the deceased came to his death by violence, at least outweighs the idea of death by accident and reasonably brings to the jury the theory that violence was employed.

      J. W. Barry and'W. F. Bruce, for plaintiff in error.

      T. B. Mateer and .MV. Ward, for defendant in error.
    Taggart, J.; Donahue, J., and Craine, J., copcur.
    Error to the court of 'Common pleas.

       Leave to file petition in error denied by the Supreme Court, January 21, 1908.

   At the April -term, 19Ó?, of the court of common pleas Jerry Williams was indicted for murder in the first degree by a grand jury of Morrow county. To -the indictment he filed a motion to quash and also a demurrer. This motion and demurrer were overruled by the court. He was placed upon trial .and a verdict of “guilty” was returned “of murder in the second degree.” A motion for a new trial was filed and overruled; he was sentenced under the law. Thereupon proceedings in error were prosecuted in this court, incorporating all the errors that it is alleged intervened from the time of the indictment to the sentence of the defendant by the court of common pleas.

In respect -to the motion to quash, and 'the demurrer to the indictment, we think the court of common pleas committed no error in overruling them. The next error to which our attention has been called, is a motion to quash .the service of the panel, as it is designated. The motion is somewhat extensive; the following is a part:

“Now comes the defendant, Jerry Williams, in his own proper person, and objects to the panel of petit jurors, drawn- June 3, 1907, and June 8, 1907, and returned by- the sheriff of Morrow county, Ohio, to try the above entitled cause, for the following reasons, to-wit:
‘ ‘ 1. Because of .the failure of the sheriff, or proper officer, to comply with Section 7273, Revised Statutes, which said section of the statutes reads as follows:
“ ‘A copy of the panel of the jury returned by the sheriff shall be delivered to .every person so indicted at least three days before the day of trial.’
“That no copy of said panel, as returned by the sheriff, has been delivered to .this defendant Jerry Williams; that all the paper writing, purporting to be a copy, is hereto attached and made a part of this motion.
‘ ‘ 2. Beeouse -the return of the sheriff does not show that all of the jurors named in .the first special venire were served by him •to appear as jurors to try the above entitled case.
“3. Because the clerk was not authorized, by said return, to cause a special alias venire f acias to be issued.
“4. Because, the, clerk drew the special alias venire facias in the .absence of the court.
“5. Because the record does.not show that the special alias venire facias was drawn in the presence of the court.
“6. Because the endorsement by the sheriff upon said special venire, -Not Found,’ is not a sufficient return by the sheriff, to show that a juror is not within the county of Morrow, and state of Ohio..
“Wherefore said, defendant prays that said panel may be quashed. ”

Then follows an affidavit:

“The State of Ohio, Morrow County, ss. Jerry Williams, being duly sworn according to law, says, that the paper writing hereto attached and made a part of this motion, is the paper writing served upon him, purporting to have been served by the sheriff, and that the same is .the only paper writing served upon him by the sheriff, .or by any other person, and that the said Jerry Williams is now an inmate of the county jail and has been confined therein since long before the return of the indictment in this ease by the grand jury of Morrow county, Ohio, against said defendant at the April term of this court, to-wit: April —, 1907. (Signed) Jerry Williams. Subscribed in my presence and sworn to before me this twenty-fifth day of June, 1907. (Signed) C. R. Meredith, Clerk of Courts.”

So far .as this motion purports to set out .any irregularities that appear in the sheriff’s venire and returns, we can-consider them. Such as are required to be shown outside of the venire, by proof, we can not consider. Looking into the matters that are raised on this motion that appear from the venire and return of the sheriff .and from the transcript in .this case, we think that the clerk and sheriff have fully complied with the law. The only matter that appears outside of the record and that is attacked by the plaintiff in error is, “that á true copy of the panel as returned by the sheriff was not delivered to him;” and this appears by the affidavit and a copy of the papers, attached to the motion.

It may be said in respect to that matter, that .this does not bring the matter into the record at all; neither is it in a condition that we can consider it for the reason: there is attached to this motion an affidavit by Jerry Willaims, but we do not know that the court acted upon that affidavit alone, or what evidence the court acted upon in overruling this motion; all that appears in this transcript is the overruling the motion.

In order that it may be brought to the attention of the reviewing court, this affidavit and all the affidavits .that the court heard must be brought into the bill of exceptions, with the certificate that that was all the evidence that was heard by the' court, at the ' hearing* of the motion.

In Henning v. Bartz, 1 C. C. — N. S., 389, -the Circuit Court of Wood County thus announced the law:

“A reviewing court can not .take notice of affidavits offered on motion for a new trial, unless they are incorporated in a bill of exceptions.”

In the case of Brock v. State, 22 C. C., 364, the Circuit Court of Hamilton County thus lays down the rule:

“These facts are only supplied by the .affidavit of the county prosecutor made after the accused had been tried and found guilty. In the first place, an affidavit .is no part of the record, and is not made such even though copied verbatim by the clerk into the record. An affidavit can only become part of the record by being incorporated in a bill of exceptions. ’ ’

The Supreme Court in Goyert v. Eicher, 70 Ohio State, 30, thus lays down the rule:

“An 'agreed statement of facts, although in writing, signed 'by counsel of all parties and filed, does not become a part of the record unless brought upon the record by a bill of exceptions, or the facts as agreed upon are stated in the journal entry as the court’s .finding of facts.” And cites With approval, Wells v. Martin, 1 Ohio St., 386, and particularly Busby v. Finn, 1 Ohio St., 409; also Lake Erie & W. Ry. v. Mackey, 53 Ohio St., 370, 380.

This is clearly the ruling of the different courts. So far, then, as to any matters outside of the record, 'they 'are not before us and we can not pass upon them, but from what appears in the record we think there was no error in the court overruling this motion -to quash the service of the panel, and this exception is not well taken. ;

It is claimed the court erred in the trial of the case,'-in refusing to hear evidence as to the mental condition of one Herbert Glenn.

Glenn is jointly indicted for .this crime; when he was called as a witness, objection was made that he was not mentally “competent .and it is urged that the court was in error in not hearing testimony as to his mental condition before admitting him as a witness.

Our attention is called to Whittaker’s Code of Evidence and other authorities. Where a person of tender years is brought into court, the court can see and it is his duty to ascertain whether the child has such knowledge of .the responsibility and nature óf an oath, the proper appreciation of the relation of things, that it can state truthfully and relate correctly what it has heard and seen.

. Assuming that that would be the same rule with respect to one that was of weak mind (which we do not by any means announce as the opinion of,the court), but assuming that (in this case the witness was introduced, the court .could see him; he heard him testify and the motion was again renewed .at .the close of his testimony) , it would be a strange procedure that, .on an objection to a witness that is tendered, .the facial court would have to stop the trial to test the mental capacity of the witness. We do not think that such is .the law of the case.

If the .examination in chief, .or the cross-examination even, tended to bring to the attention of the trial judge .that there was such mental infirmity, it would have been his duty to have taken care of it in .the proper way; if it was disclosed that the person was of unsound -mind and mentally weak, he should have then withdrawn the testimony from the jury. But from a careful examination of this record, we .think there was no prejudice in this case as to .the competency of this man on the ground of lack of mental capacity, for the manner in which this record discloses that he had detailed facts and circumstances, and the manner in which he underwent the close, careful, rigid cross-examination of counsel, would indicate that he was at least possessed of the ordinary degree of mentality. We can not hold to the idea, that on a mere objection, that the court was compelled to institute .on the side an inquisition .as to the mentality of .the witness. We think that is not the practice and not the rule. Therefore we hold .the court was not in error so far as that objection is concerned, in admitting him as a witness in the ease.

The next objection urged upon us is, the misconduct of the prosecuting attorney. There was introduced in the case a “billy” or black-jack” as it is sometimes called, and the prosecuting attorney in the argument of the case, comments on some testimony in the ease, which would justify the remark: “That black-jack could tell the story. ’ ’ A certain witness had so stated; he repeated that; that was perfectly proper. He .adds, however: “S,o could Jerry Williams.” Thereupon the court very promptly, upon objection of counsel, stopped him, insisted that it was not proper and that it should not be repeated. Now the court in that instance did all that he could do to correct whatever wrong there was in the action of the .prosecuting attorney. And even assuming that the statement, "So could Jerry Williams”; assuming that it was improper, it was corrected and no prejudicial error intervened, in our judgment.

It is urged upon us that the admission of the .testimony of Jerry Williams before the grand jury at the January term, admitted at -the trial, was erroneous and prejudicial. An .examination of this record will show that when it was proposed to introduce the evidence of Jerry Williams taken before the grand jury, it was objected to .as being incompetent, because, no cross-examination had been made, and no opportunity given for cross-examination. We think that this was entirely competent, upon the well-established rule, that the admission, declaration, or statement of .any party on trial made at different times or places is perfectly competent to be introduced against him.

These, statements were introduced as substantive testimony, ,:that he had guilty knowledge of the perpetration of this crime. He so testified before the grand jury, that he knew how this crime was committed. Although there were some self-serving declarations, yet there were also incriminatory statements which were perfectly proper as substantive testimony. Besides, this could not .be prejudicial. Williams did not take the witness stand, but the admission of this testimony placed before, the jury the fact that he did not commit the crime; by the introduction’ of these statements there was brought before them his sworn testimony -that he was. not guilty, without subjecting him to a cross-examination, and the effect of this testimony was to create a doubt in the minds of the jury as to his guilt.

But it is urged upon us that the defendant was not properly convicted of this offense; that the verdict was against the evidence and against the law of the case.

To determine whether this verdict was merited by the evidence produced, there .are a few things that we can assume as proven beyond .all peradventure..,

Shadrick Westbrook disappeared on March 17, 1904; was found perhaps on the second day of April thereafter, dead; tfiere is no dispute about that fact. There can be. no dispute as to the condition of the body at that -time; that the head was covered with certain contused wounds, that the skin of the knees was torn off or abraded. There were also marks- on his throat. We need not enumerate them all in detail.

The first question that would address itself to the triers of the cause would be: Was this a homicide or was it an accident that resulted in the death of the deceased?

We have the testimony of reputable physicians introduced in the cas-e, to say that he came to his death by suffocation. Whether this testimony, beyond a reasonable -doubt, establishes the fact that he was violently dealt with or not, we may assume -that it reasonably brings to the jury that there was violence employed and there were strong probabilities -that some person was guilty of the commission of -the offense. We think it outweighs the idea of an accident at least.

There are other facts connected with this case w-hich strengthen that very reasonable position:.- Shortly after his disappearance-certain persons begin to tell the story that Westbrook was murdered, and -that one' Peck was guilty of the crime. The only persons who would have any motive in telling such a -story' would be somebody .that was interested in his disappearance, or connected therewith.

There has been introduced in the case the testimony of one Herbert Glenn, and let us see whether we -can find any testimony outside of him which tends to establish and strengthen the idea that -there was a homicide and not an accidental killing.

The defendant, Jerry Williams, in the workhouse and in the grand jury room, says that one Sherman Peek committed this crime. There you have -the plaintiff in error bringing to the attention of the jury that it was not an accident but .that it was a homicide. We have that from his declarations on several occasions — that -the disappearance of Westbrook was' not accidental; it was purposely and willfully caused.

Nest, after looking to the evidence -tending to establish that it was a homicide and. not an accident, it becomes necessary to look to see whether we can ascertain the guilty agent. The only persons that would have .an interest in making any statement in regard to this were those that were .connected with it.

We have said nothing thus far about Herbert Glenn, but the person, Jerry Williams, who says that this was a homicide and not an accident, shortly .after the disappearance of West-brook himself disappears. Now flight and concealment, unless properly explained, is an evidence of guilt; so that in connection with tfle^fact of his stating that it was a homicide, we have his disappearance and his accusation of Peek. He would be interested in diverting suspicion from himself; he therefore says that it was Sherman Peck who committed this offense.

He was a witness before the grand jury; and in the presence of Herbert Glenn and other witnesses calls attention .to .the fact that Herbert Glenn could corroborate what he knew about it, that Sherman Peck was the guilty party. They -are. in the prosecutor’s office; they tell the same story; they go before the .grand jury and Sherman Peck- is indicted. But Sherman Peek was never tried and it is .said now -that the proof of Sherman Peck’s innocence was beyond controversy; assuming that to be true, then you have this plaintiff in' error, in conjunction with Herbert Glenn, placing the crime, telling the same story upon Sherman Peck, which might send him to the chair. That being so we reach the next step, that 'they have some connection with.the crime, that they would not have any purpose in diverting susupicion from themselves on someone else, unless they were connected with ,.it.

Later Herbert Glenn tells the story as given on the trial; a story similar in its details with that told before, and as told by Jerry Williams, except that instead of Peck committing the crime,, that he and Williams and, one Mauck committed this offense.

It is said we are to give no credence .to the story of Herbert Glenn. But we .call .attention to the testimpny of the witnesses who heard Glenn and Williams talk in the jail. Williams says: My wife will not say anything that will send me for life, or. something .in substance of that kind. He says other things there. Glenn .testifies on the trial that they took the body of 'Westbrook to Williams’ home and sought admission, which was refused by Williams’ wife.

It is urged upon our attention that -there is no corroborative testimony of Gl-enn here. We -think that he is corroborated through-out on very substantial details. True, it is said that he manufactured -this case'.after he learned -all the facts about it. He could not have manufactured it, as h-e detailed' it -on the -trial, without having run counter -to Williams, .and -the greatest -corroborative testimony -that we find .in this record, is Jerry Williams himself, and the facts and circumstances which this record contains.

We think that this verdict is amply sustained by the evidence. We think that it is not against the law -of the ease; but the plaintiff in error was f airly tried by the court of common pleas, and -the verdict of the jury was right and there is no error in this case to the prejudice -of the plaintiff in error.

Finding no error in -this record of prejudice, the judgment of the court -of common pleas will be affirmed, with costs, and remanded. .


text:
    PROSECUTIONS UNDER. THE SUNDAY CLOSING LAW.
    Circuit Court of Tuscarawas County.
    Owney Daugherty v. Village of Dennison.

      Criminal Law — Violation of Sunday Closing Laio — Affidavit Must Show Criminal Intent.

    An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges Knowledge and criminal intent.

      Eealea & Greene, for plaintiff in error.

      T. E. Loller, for defendant in error.
    Kibler, J.; Pomerene, J., and Adams, J., concur.

         Affirmed by the Supreme Court without report (59 Ohio State, 593).

   The case of Owney Daugherty vs. the Village of Dennison is here -on error. Plaintiff in error asks us to reverse the judgment of the mayor, and the judgment of the court of common pleas affirming the judgment of the mayor.

This man was arrested on an affidavit for allowing a place to be kept open on Sunday of the description of those that were open on .other days of the week for the sale of liqu-or. There is an -ordinance in the village which we think a good, sufficient and v.alid ordinance, and under this ordinance the affidavit was made and the arrest was made.'

The -affidavit charges that on December 15, 1895, said day being the first day of the week, commonly called Sunday, at the village and county aforesaid, one Own-ey Daugherty allowed a place where intoxicating liquors are on other days sold or exposed for sale (the same not being a regular drug store, nor a place where intoxicating liquors are manufactured) to be open, eon-' trary to the ordinance in such ease made and provided.

After his .arrest on this affidavit and warrant issued upon the affidavit, a motion was made by Daugherty to dismiss the proceedings on the grounds that the ordinance of the village by virtue of which this action is brought is null and void and of no effect ; and second, the affidavit filed herein and upon which this defendant was arrested is insufficient and does not state any offense, and'does not charge this defendant with .any violation of. any ordinance of said village. This motion was overruled, case tried, and resulted in the conviction of Daugherty and assessment of a fine. As I stated, we find that this ordinance, is not the subject of criticism made in this motion, but is a proper and valid ordinance.

The only question to be considered is whether or not this affidavit is sufficient. This affidavit -simply says, on this day Daugherty allowed a place where intoxicating liquors are on other days sold or exposed for sale® to be open. It is claimed that this affidavit is insufficient for several reasons; among others, that it does not charge that he knowingly allowed this place to be open. The question which we have to consider, and which we think of some importance here, is whether this affidavit, as it is, is sufficient.

Now, an act may be innocent or criminal, and I use the word “criminal” in the broad sense, according to the intent in which it is done. We think that where it is a ease where the guilt, or whether the act is innocent or criminal, should be stated in the affidavit — ¡that is to say, the crime, or the intent which makes an act (which may be innocent) criminal, should be stated in the affidavit. Now, this affidavit does not show that Daugherty fraudulently or knowingly allowed a place where intoxicating liquors are on other days sold or exposed for sale to be open. We think some word at least ought to be in this affidavit which shows a wrong intent on the part of this man. Now, a man may go into a place where he has been in the habit of selling intoxicating liquors on week days, with an innocent intent, and may go in for a cigar, for instance, and leaving the door open a little while, and may go in for a number of proper reasons. Therefore, by merely having it open a short time is not an offense under this ordinance, and -we think the word “unlawfully” or “knowingly” or something of that description ought to have been in this affidavit in order to show that this opening was a wrongful opening. Now, although we do not hold that the strictness that is used in indictments ought to be expected or required in affidavits of this description, yet as I have said there ought to be something in this affidavit to show that the act was done with a wrongful intent.

•In the Ohio Criminal Code, by Wilson, page 340, the charge is stated in this way:

“Being the first day of the week, commonly called Sunday, did unlawfully and knowingly allow to remain open, a certain room, said room being then and there and theretofore a place where on other days of the week than the first, commonly called Sunday, were there and therein sold and exposed for sale, by the said E. F., intoxicating liquors, to-wit: brandy, whisky, gin, ale, beer, and wine, the said room not being then and there a regular drug store.”

Now, there is the expression used by this author in this form, ‘1 did unlawfully and knowingly. ’ ’ Now we, of course, have not overlooked the statute in respect to criminal proceedings.

“No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings be stayed, arrested or in any manner affected by the omission of the words ‘with force and aims,’ or any words of similar import; nor for the omission of -the words 'as appears by the record’; nor for omitting to state the time at which the offense was committed, in any case in which time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of statement of the value or -price of any matter or thing, or the amount of damages or injury, is not of the essence -of the offense; nor for the want of an allegation of the time or place of any material fact, when the time -and place have once been stated in the indictment ; nor that dates and numbers are represented by figures; nor for any omission to allege that the grand jurors were impanneled, sworn, or charged; nor for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any other defect or inperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’

I say we had that in view, and having that in view and with the views I have expressed, we are constrained to conclude that this transaction should not have been commenced in this way and .that the judgment of the mayor, and the judgment of the court of common pleas, affirming the judgment of -the mayor, should be reversed, and it is so ordered and prisoner discharged.