author: PARKER, J.

text:
    EXEMPTIONS — DOWER.
    [Sandusky (6th) Circuit Court,
    May 20, 1902.]
    Parker, Hull and Haynes, JJ.

      B. F. Bretz et al. v. Loia A. Moore.
    1. Exemption Laws Construed Equitably and Liberally.
    The policy of the law is to construe exemption laws equitably and liberally, so as to effect the purposes of their enactment.
    2.' Section 5437 Rev. Stat., Allowing Exemption in Lieu of Homestead out' of Proceeds of Sale, Applicable to Voluntary Sales.
    Section 5437 Rev. Stat., allowing the widow, or in case there he no widow, an unmarried minor child, to hold in lieu of a homestead the residue of the proceeds not exceeding $500, arising from a sale of the homestead, made to pay any lien which precludes the allowance of a homestead, applies to a sale voluntarily made by the heirs and widow, and is not limited alone to cases where the homestead is brought to sale by the-mortgagee or administrator, or under legal process which compels a sale.
    3. Widow Entitled to Dower and $500 in Lieu of Homestead Prom Proceeds of Mortgaged Premises Under Sec. 5437 Rev. Stat., When.
    Where the widow and heirs, all of whom are sui juris and have full knowledge of the situation, voluntarily and mutually agree among themselves to sell at private sale, the homestead property, pay off a mortgage thereon, and deliver the balance to the administrator of the deceased husband and father for the purpose of paying any indebtedness against the estate, which mortgage precluded the allowance of such property as a homestead by reason of .having been executed by the deceased and his wife (now the widow), which sale is duly made, the mortgage paid by the widow and heirs direct to the mortgagee, and the balance delivered to the administrator in accordance with the terms of the agreement; in such case, the administrator holds the fund so delivered to him as trustee, and not as administrator; the widow, not having waived her right .thereto under the agreement, is entitled to receive, in addition to the value of her dower interest, not exceeding $500 from the fund in lieu of a homestead under Sec. 5437 Rev. Stat., and her right th.ereto is not lost by reason of her abandonment of all claim to hold the premises as a homestead; and the heirs are estopped from denying the purpose of the sale, or the right of the widow in the fund so created.
    Error to tbe common pleas court of Sandusky county.
    This action was brought by Loia A. Moore against B. F. Bretz„ Henry Moore and Minnie "Huffman. The petition alleges that B. F. Bretz was appointed administrator of John F. Moore, deceased, June 22, 1900; that the plaintiff was the widow of John F. Moore, who died on June 18, 1900,'and that Henry Moore and Minnie Huffman were children of John F. Moore and the only heirs of said deceased; that Moore died seized of a lot in Greenspring, Seneca county, Ohio; that prior to his death he borrowed $600, and he and the plaintiff executed
      a mortgage upon the real estate to secure it; that the real estate was' occupied up to the time of his death by said Moore and the plaintiff as a family homestead; that Moore left other unsecured indebtedness at the time of his death, the amount of which was at that time unknown; that the plaintiff and said Henry Moore and Minnie Huffman, to satisfy the mortgage indebtedness and to provide for the other indebtedness if the personal assets should be insufficient to pay it, sold the real estate constituting said homestead to one Zimmerman for $1,450; that Zimmerman assumed the mortgage, then amounting to $571.50, and paid', the balance of the money, $878.50, to B. F. Bretz, which he, as alleged in the petition, “deposited in his name as such administrator, but kept, separate and never mingled with the assets of said estate, and has been: held by him as trustee to be paid by him to the persons entitled to the same.-’ ’
    That thereafter and,on August 16, 1900, plaintiff demanded that she be paid $500 out of said fund in lieu of a homestead, and $348 in lieu of her dower; that Bretz paid the amount of the dower, but refused to pay the $500 in lieu of a homestead; that the amount of the personal estate was found to be sufficient and did pay the debts of the estate, including the year’s allowance to the plaintiff, and she prays for a judgment for $500, and interest from August 16, 1900.
    The answer admits' substantially the facts in the petition alleged, admitting that $348 were paid her in lieu of her dower, and that he refused to pay the $500 in lieu of a homestead. He denies that he received the $878.50 as administrator. He avers it was paid to him to be paid to the widow and the children according to their rights. He avers that an agreement was made by the plaintiff and the said children and the purchaser to sell said land and pay said mortgage, and that the plaintiff voluntarily entered into the arrangement without any suggestion or interference on the part of the defendant. He avers that there was sufficient personal estate to pay all the unsecured, indebtedness and that he has paid the same and paid the widow’s year’s allowance, and that the widow was not precluded from occupying the premises as a homestead by reason of the encumbrance thereon, but that she was informed by this defendant that she’ could occupy it and that she could, not be disturbed for at least one year.
    He further sets up that on June 30, 1900, she abandoned the premises and that she made the arrangement for a sale of the premises with the children, for the purpose of defrauding them out of $500. He says that after the payment of the widow’s dower, he holds the sum. of $530, subject to the order of the court.

      Henry Moore and Minnie Huffman, tbe children, also filed answers somewhat similar.
    Replies were filed to these and the case came on for trial anu was fried, resulting in a verdict and judgment for the plaintiff for the amount of her claim of $500 and interest from August 16, 1900. A bill of exceptions was taken and the error prosecuted to the circuit court. i
    E. B. King and Geo. H. Withey, for plaintiff in error:
    Plaintiff was not entitled to offer and give in evidence, a conversation between herself and the witness, Perrin, in the absence of the defendants, where Perrin did not represent the defendants. It was also equally erroneous to refuse to allow the question to the plaintiff below on cross-examination, as to why she did not occupy the homestead.
    The charge of the court that the rights of the plaintiff in the real estate and the proceeds were to be determined by the conditions existing .at the time of the death of the husband, was error. The rights of the plaintiff did not altogether depend on the condition at that time. Her right to a homestead in the land afterwards sold, depended upon conditions existing at that time, as for instance, that it was a homestead and that she was the widow.
    The court said there was no specific agreement shown to waive the homestead and then said that ignorance of fhe right did not alone waive, and it was incumbent upon the defendants to prove an agreement by a preponderance of the evidence. We think this was clearly misleading.
    The right of a widow to a homestead in the lands of her deceased husband is conferred by Secs. 5437 and 6155 Rev. Stat.
    We think a fair construction of the statutes means that there must have been a homestead occupied by the family at the time of the death of the husband, owned by him. There being such, the widow waa entitled to have set off to her that homestead, and it should remain as and for a homestead as long as she resided, thereon and remained unmarried, but by the language of the statute, she could remove and therefore abandon, and she could marry and thereby forfeit the homestead.
    This was a title to the property, but was nothing more than a conditional estate for life. 15 Am. & Eng. Enc. Law (2 ed.) 697; Merritt v. Merritt, 97 Ill. 243; Brokaw v. Ogle, 170 Ill. 115 [48 N. E. Rep. 394]; Jones v. Gilbert, 135 Ill. 27 [25 N. E. Rep.-566]; Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432]; Stevens v. Stevens, 50 Iowa 491.
    The only right a widow has to $500 out of the proceeds of the sale of the family homestead is conferred by Sec. 5437 Rev. Stat. It comes alone under its provisions. Wolverton v. Paddock, 2 Circ. Dec. 279 (3 R. 488); Bliss v. Fuhrman, 3 Circ. Dec. 416 (6 R. 203).
    By statute a widow may lose ber homestead in Ohio by remarriage, and it has been hold that remarriage would end it, even in absence of statute in some states. Boland, Estate of, 43 Cal. 640; Still, In re Estate of, 117 Cal. 509 [49 Pac. Rep. 463] ; Dei v. Habel, 41 Mich. 88; Anderson v. Coburn, 27 Wis. 558; Ferguson v. Mason, 60 Wis. 377 [19 N. W. Rep. 420].
    A person entitled to a homestead may waive it by failing to assert it when he ought, and this rule applies as well to a widow as to any other person. Wright v. Dunning, 46 Ill. 271 [92 Am. Dec. 257]; Hemenway v. Wood, 53 Iowa 21 [3 N. W. Rep. 794],
    And a widow may abandon her homestead or her right to assert a claim for a homestead. Buck v. Conlogue, 49 Ill. 391; McComb v. Thompson, 42 Ohio St. 139, 147; Niehaus v. Faul, 43 Ohio St. 63, 68 [1 N. E. Rep. 87] ; Shepard v. Brewer, 65 Ill. 383; Peebles v. Bunting, 103 Iowa 489 [73 N. W. Rep. 882]; Paul v. Paul, 136 Mass. 286; Abbott v. Abbott, 97 Mass. 136; Pratt v. Pratt, 161 Mass. 276 [37 N. E. Rep. 435]; Hicks v. Pepper, 57 Tenn. 42; 15 Am. & Eng. Enc. Law (2 ed.) 659; Mack v. Heiss, 90 Mo. 578 [3 S. W,. Rep. 80]; Grothaus v. DeLopez, 57 Tex. 670; Bates v. Bates, 97 Mass. 392.
    A surviving husband or wife cannot enjoy both dower and homestead at the same time' in the same premises, and an election to take the one will bar the other. Stevens v. Stevens, 50 Iowa 491; Butterfield v. Wicks, 44 Iowa 310; Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432]; Merritt v. Merritt, 97 Ill. 243; Bryan v. Rhoades, 96 Mo. 485 [10 S. W. Rep. 53] ; Chaplain v.-Sawyer, 35 Yt. 286.
    The decision of Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426), referred to by defendant in error is not in point.
    Richards & Heffner, for defendant in error:
    Had Mrs. Moore and the children not provided for this lien it would have been the duty of the administrator to apply for an order for the sale of the homestead. Section 6136 Rev. Stat.
    Section 5437 gives the widow the right to make this sale, and yet preserve all her rights. It allows a private sale, saving the costs of an administrator’s sale or a foreclosure. It would be a stiff doctrine to hold that the widow with the heir could not settle the suit by a private sale, and yet the widow preserve her rights; that an action would lie to foreclosure. See Bigelow v. Renker, 25 Ohio St. 542, 546.
    If Mrs. Moore had been fortunate enough to have the money, she might have redeemed the homestead, and she would then have been subrogated to the rights of the mortgagee. 3 Pomeroy, Eq. Jurisp. ,Sec. 1212; Sheldon, Subrogation See. 51.
    Under the first clause of Sec. 5437 Rev. Stat., though the homestead is sold under a power in a will, yet the widow is entitled to the exemption, notwithstanding that the statute reads expressly that she is entitled to have it set oft to her by the appraisers on a petition to sell. Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426).
    The policy of the courts is to so construe exemption laws as to give them effect if possible and in favor of the homestead right. Conley v. Chilcote, 25 Ohio St. 320; Chileote v. Conley, 36 Ohio St. 545; Sears v. Hanks, 14 Ohio St. 298, 300, 301 [84 Am. Dec. 378],
    The widow is allowed both dower and $500 in lieu of a homestead. We see no provision in the latter clause of See. 5437 Rev. Stat., that the widow shall elect to take $500 or her dower. Section 5443 Rev. Stat., moreover, clinches her right. Section 6155 Rev. Stat. prescribes in detail the duties of appraisers after the court finds it necessary that the executor or administrator shall sell real estate to pay debts. They shall set off both homestead and dower and the sale shall be subject to both. It is of little consequence what the courts of Missouri, Illinois and Iowa have held upon a widow’s right in those states. Their decisions were based upon their own statute law, especially the Iowa cases. See Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432], cited by plaintiff in error.
    Our statutes harmonize to give the widow both dower and homestead, and cannot be harmonized in any other way.
    Chapter 4, Title 2, provides for administering estates of insolvents. Section 6350 Rev. Stat: provides for converting the real estate of the insolvent into money. Section 6351 Rev. Stat. provides for dower without any reference at all to homestead.
    Nowhere in the laws of Ohio is the widow required to elect between dower and homestead. . Hutchings v. Davis, 68 Ohio St. 160.
    There can be no election between rights conferred by statute unless the statute provides for it. In that case the widow was allowed money in lieu of dower and also a distributive share of the proceeds of sale of real estate, which in accordance with the will was converted into cash and mingled with the proceeds of the personalty.
    The practice in this state has been universal by probate and common pleas courts to allow both homestead and dower without one being diminished by the other. Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426). Judge Lawrence so held in most positive terms.

      In other states where the statutes are as liberal as ours the courts have allowed both. Monk v. Capen, 87 Mass. (5 Allen) 146; Mercier v. Chace, 93 Mass. (11 Allen) 194.
    Lord Bacon said, “The law favoreth three things: First, life; •second, liberty; third, dower. ’'' Had he lived in our day and in America he would have added, “homestead.”

       Affirmed by Supreme Court, without report, Bretz v. Moore, 69 O. S. 574..

   PARKER, J.

This is a proceeding brought to obtain a reversal of the judgment of the court of common pleas.

We shall not undertake to state or follow all the ramifications of the various questions that have been suggested and argued, for we think that the real controlling question can be very simply stated and comes within a very narrow limit.

Loia A. Moore, a widow, was entitled to a homestead out of certain premises of which her husband died seized, under Sec. 5437 Rev. 'Stat., and it appears that these premises were mortgaged and that the mortgage was one which precluded the allowance of a homestead, that is to say, that no homestead could be allowed as against the claim of the mortgage, the husband and wife, afterwards the widow, having both signed the mortgage. The husband beside leaving his widow, left certain children, who were all of age, and it fairly appears from the record that all the persons interested in this property as heirs — these children and the widow — foresaw that they would not be able to discharge this debt and lien except by the sale of the property, and therefore they agreed together that they would sell the premises and pay all encumbrances; and thinking that the administrator of the estate of the deceased husband and father would be entitled to hold and handle the proceeds of such sale and therefrom discharge any indebtedness of the decedent, they agreed that they would turn over the residue remaining after the discharge of the mortgage debt to the administrator, and in pursuance of this agreement, they proceeded to sell the premises and derived enough from the sale to pay off the mortgage and turn over seven or eight hundred dollars to the administrator, which they did. It turns out that probably the administrator could not have brought these premises to sale, as administrator, because there were no claims against the estate which would have required it. At all events, even if he might have brought it to sale for the mortgage claim (and about that we express no opinion) he was not required to take or use any of these proceeds of the sale that were turned over to him, the mortgage claim being paid directly by the widow and heirs. But they paid over the residue to him and he holds it, and the court of common pleas of Seneca county bas held, and we think correctly, that he never received or held it as administrator, bnt, under the circumstances, he held it as trustee.

Now the widow has asserted her claim to a part of these proceeds, as the value of her dower interest in this property, and that claim, I believe, is not contested. She has also asserted and here asserts her claim to the remainder of the proceeds in lieu of 'a homestead under Sec. 5437 Rev. Stat.

It is contended however, upon behalf of the heirs, that having consented to this arrangement and sale of the premises, she thereby waived her claim to a homestead; that she thereby abandoned her homestead; and that, as a consequence, she also waived and abandoned all right to claim any of the proceeds in lieu of, a homestead.

The contention by counsel for the heirs is, that it is only in cases where the property is brought to sale by the mortgagee or the administrator, or by some process of law, which compels a sale of the premises, that this provision of Sec. 5437 Rev. Stat. relied on by defendant in error, applies, viz., “That in all cases where the homestead has been or shall be sold to pay any lien which precludes the allowance of a homestead, the residue of the proceeds, not exceeding $500, shall be paid to the widow, or in case there be no widow, to the minor child, unmarried, in lieu of a homestead, on her or said minor child’s application, in person or by agent, attorney or guardian,” and that this provision of the statute does not apply to a sale voluntarily made by the heirs and the widow. But we think that a fair and reasonable construction of this statute authorizes an application of these provisions to a case like that at bar; that where the heirs and widow, foreseeing that a sale must be made to satisfy a claim and lien which precludes the allowance of a homestead, agree together that they can probably do better by making a private sale of the premises, and that they will do so, and that they will retain their rights in the proceeds rather than undertake to hold on to the property- and allow the premises to be brought to a forced sale, as between them, it would not lie with either to dispute the equitable rights of the other arising out of such proceeding; that in a case like this, the heirs being of age, and having full knowledge of the situation, and having agreed that the premises should be sold at private sale and having participated in the sale, and agreed that the proceeds should go into the hands of the administrator, and not having required of the widow that she should waive her homestead right, or her right to the proceeds in lieu of a homestead, and it not appearing that she has waived it, but rather that she desired and still desires to retain her right, it should be held that she has not lost such right. Though she has abandoned all claim to bold the premises as a homestead, she has not thereby necessarily abandoned her right under this clause of the statute to hold a part of the proceeds in lieu of a homestead. We think the statute should receive such fair, equitable and liberal construction; that it is the policy of the law to construe these exemption statutes liberally, so as to effect their purpose, and such sale should be held to be within the purview of the statute. It was a sale to pay a lien which precluded the allowance of a homestead. Under the circumstances the heirs cannot be heard to dispute that fact.

The judgment of the court of common pleas being in accordance with these views, will be affirmed.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

author: MOONEY, J.

license: Public Domain

text:
    ERROR — BILL OF EXCEPTIONS — RECORD—STATUTES.
    [Crawford (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    A. Strauck v. Massillon Stoneware Co.
    1. Errors Must Appear Upon Record Under Sec. 6709 Rev. Stat., to Confer Jurisdiction.
    The circuit court has jurisdiction only to review, vacate or modify a judgment of the common pleas court for errors appearing upon the record, under Sec. 6709 Rev. Stat.
    2. Question Raised by Motion to Strike Bill of Exceptions Prom Piles of Circuit Court.
    A motion made in the circuit court to strike a bill of exceptions from the flies involves only the question whether the bill was and is a proper part of the record in the common pleas court, and not whether it was properly i filed in that court.
    3. Only Orioinal Papers Which are Part of Record can be Piled Under Sec. 6716 Rev.-Stat.
    Only such original papers as are part of the record in the court below can be filed with a petition in error under authority of Sec. 6716 Rev. Stat. No warrant exists for bringing up original papers which are properly filed in the lower court, but which are not properly a part of the record of tbat court.
    4. Order of Trial Court Making Bill of Exceptions Part of Record Necessary Under Secs. 5302 and 5334 Rev. Stat.
    A bill of exceptions is not a part of the record unless an order is made by the trial court making it a part thereof, which order must be evidenced in the reviewing' court by a proper transcript of the journal; and, in the absence of such order, the bill will, on motion, be stricken from the files of the reviewing court. The mere filing of the bill, with the signature of the trial judge allowing, settling and signing the same, does not, by force of Secs. 5302 and 5334 Rev. Stat., make it part of the record, nor can such order be presumed from the fact of prior allowance and signing by the trial court.
    5. Section 5302 Rev. Stat. (96 O. L. 17) Construed.
    Section 5302 Rev. Stat., as amended October 22, 1902 (96 O. L. 17), dispensing with the necessity of an entry upon the court journal of the settling, allowance and signing of bills of exceptions, and providing that the signature of such bills by the trial judge shall be sufficient evidence of their settling, allowance and signing, does not dispense with any other entry relating to bills of exceptions, nor with the necessity of an order by the trial court making them a part of the record.
    ERROR to Crawford common, pleas court.
    Harris & Sears, for plaintiff.
    Finley & Gallinger, for defendant.
   MOONEY, J.

In the original action the parties were reversed. That action was commenced in the justice of the peace court; was appealed to the court of common pleas; issues were made by the pleadings; the action was tried to a jury; a verdict returned for plaintiff; defendant’s motion for a new trial was overruled, one ground of the motion being that the verdict is not sustained by sufficient evidence. Defendant duly ex-pepted; judgment for plaintiff was entered on the verdict; defendant duly prepared his bill of exceptions and filed the same; a proper entry of the date was made on the appearance docket; the bill was afterwards settled, allowed and signed by the trial j udge.

The defendant afterwards, as plaintiff in error, commenced this proceeding in error to reverse the judgment of the common pleas. All the errors assigned are predicated upon the bill of exceptions. The record shows no order of the trial court making the bill of exceptions a part of the record and for want of such order, defendant in error here moves that the bill of exceptions be stricken from the files of this court.

It is doing no violence to the facts in this case to say that this motion and its proper determination have occasioned the court a very great amount of trouble. This has been increased by reason of the fact that upon critical examination we have arrived at a conclusion at variance with our preconceived notions of the law upon the subject under consideration. However, the only province of this court is to declare the law as it finds it, leaving the work of legislation to the general assembly and all other changes of the law to the Supreme Court. By Sec. 6709 Rev. Stat. this court has jurisdiction to review, vacate or modify a judgment -of the court of common pleas only for errors appearing upon the record. By Sec. 5334 Rev. Stat. the record is required to be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and proceedings of the court, and “the bill of exceptions shall be filed with the pleadings •and papers, but not recorded, unless the court for good reasons shall so order. ’ ’

By Sec. 6716 Rev. Stat. the plaintiff in error “shall file with his petition either a transcript of the final record, or a transcript of the •docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of; and, if •original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit the temporary withdrawal of the originals for a reasonable time, to allow the recording thereof.” From this provision it is held that the only necessity, as indeed the only warrant to file original papers in this court, extends to such original papers as are part of the record in the court below, and that such original papers as are properly a part of the files in that court, but are not properly a part of the record there, are not necessarily nor properly a part •of the files in this court. A motion to strike the bill of exceptions from the files therefore does not involve the question whether the bill was a proper file in the court of common pleas, but does involve the question whether the bill was and is a proper part of the record in that court.

No one will doubt that prior to the act of October 22, 1902 (96 0. Xi. 17), a bill of exceptions, though duly settled, allowed and signed by the trial judge or judges and filed in the cause, did not become a part of the record proper to be considered by a reviewing court in proceedings in error, without an order of the court making the bill a part of the record. Prior to that act it was required that the journal, by proper entry, should show (1) either by direct affirmative statement or by presumption arising from the journal entry, that the bill was duly settled, allowed and signed by the trial judge or judges; and (2) that the court order the bill to be made a part of the record. Felch v. Hodgman, 62 Ohio St. 312 [56 N. E. Rep. 1018], and Riverside Rubber Co. v. Manufacturing Co. 63 Ohio St. 66 [57 N. E. Rep. 958]. In this latter case the first paragraph of the syllabus is:

“In order to entitle a bill of exceptions to be considered by a reviewing court, it must be shown by a proper journal entry that the bill was ordered made a part of the record.”

The ease was one arising in 1897 when Sec. 5334 Rev. Stat., defining what the record shall contain, was in its present form, and when Sec. •5302 Rev. Stat. provided that:

“The bill of exceptions shall be' filed with the pleadings, and, if the party filing the same request it made a part of the records, but not-spread upon the journal; and an entry of the allowance and signing of the same must be entered upon the journal of the court within the time fixed for such allowance and signing.” (89 O. L. 125.)

It will be noted that the sections contain no express requirement that the entry making the bill a part of the record shall be made upon the journal. The provision that the bill shall become a part of the record if the party requests it does not, of itself, require' an entry to' show such request. Smith v. Board of Education, 27 Ohio St. 44. If the mere filing, after allowance and signing, made the bill in fact part of the record, the request would be presumed. It follows, therefore, that the Supreme Court has determined, in view of the provisions of Sec. 5334 Rev. Stat., as it now exists, and of Sec. 5302 Rev. Stat. as it existed prior to October 22, 1902, and when the latter section expressly required an order of the allowance and signing of the bill and was silent as tO' the necessity of an entry ordering the bill to be made a part of the record, that, nevertheless, the bill did not become a part of the record, for purposes of review without an express order of the trial court making it so. In this state of the law the amended Sec. 5302 Rev. Stat. was-passed on October 22, 1902, and is as follows:

“It shall not be necessary to cause an entry to be made upon the-journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in See. 5301a allowing, settling and signing such bill, shall be sufficient evidence of such fact.”

Neither this nor any other amended section expressly dispenses with any other entry relating to bills of exceptions, nor is there now any express requirement of an entry showing an order by the trial court to make the bill a part of the record.

It seems to follow necessarily that if the filing of the bill, after its due signing and allowance and with the necessary entry to show such, signing, allowance and filing, did not make the bill a part of the record before the amendment, the filing of the bill with the signature of the judge, instead of the entry, as sufficient evidence of the fact of allowance, settling and signing, since the amendment will not have that effect. A bill of exceptions since, as well as before the amendment, does not, upon filing, by mere force of either Secs. 5334 or 5302 Rev.. Stat., become a part of the record, and so, under the former section, it requires something more than filing, after settling, allowance and signing, to wit, an order, which, for the purpose, would become and be “a material act and proceeding of the court to make it so,” and of course, all orders and material acts and proceedings of the trial court must be evidenced here by a proper transcript of tbe journal, unless "the statute expressly makes some other showing of such fact sufficient -evidence of it. While in Felch v. Hodgman, 62 Ohio St. 312 [56 N. E. Rep. 1018], a presumption of due allowance and signing by the trial judge was indulged from the subsequent action of the court in ordering the bill to be made a part of the record, in this case it cannot be presumed, from the fact of the prior allowance and signing of the bill, that the trial court subsequently ordered the bill to be made a part of the record.

We feel that, on the authorities, we are compelled to sustain the motion and strike the bill from the files here, and we declare that this action is taken only with extreme reluctance.

The pleadings sustain the judgment and the bill of exceptions being disregarded, we find no error in the record and the judgment is therefore affirmed.

Day, J., concurs; Norris, J., dissents.


author: MARVIN, J.

text:
    DEEDS — REAL PROPERTY.
    [Lorain (8th) Circuit Court,
    October 8, 1903.]
    Hale, Marvin and' Winch, JJ.
    A. J. Turner v. Clinton DeWitt.
    1. Copy of Deed Should be Attached to Petition as an Exhibit.
    In an action for breach of warranty contained in a deed, a copy of the deed should be attached to the petition as an exhibit and not made a part thereof.
    2. Water Pipe Passes as an Appurtenance.
    A water pipe connecting two adjoining lots owned by the same grantor, and through which water is supplied to _ both lots, passes as an appurtenance under a general warranty deed conveying one of the lots by metes and bounds “together with the appurtenances thereunto belonging,” where the evidence shows that the pipe was in use at the time grantee received his deed, and that a supply of water was necessary to the proper enjoyment of the property; and It is a breach of the warranty for the grantor, which will render him liable in damages, to cut the pipe and thereby shut off the water from the lot conveyed.
    ERROR to the common pleas court of Lorain county.
    D. H. Aiken and G. E. Hall, for plaintiff in error.
    C. F. Adams and C. Chapman, for defendant in error.
   MARVIN, J.

The case of A. J. Turner against Clinton DeWitt is a proceeding in error to reverse the judgment of the court of common pleas of this county. In that court suit was brought by DeWitt against Turner upon this state of facts: Turner was the owner of real estate at the corner of Forest and Livingston streets in the city of Lorain, and this real estate thus owned, whether divided into lots or not I do not know, I believe it was, but in any event the property, fronting on Forest, the part of this real estate fronting on Forest and not abutting upon Livingston, was sold by Turner to DeWitt; on the property thus sold to DeWitt was a dwelling house. Water was supplied to the lot sold to'DeWitt by a pipe running from the main water pipe across the other part of this real estate of Turner’s, and extending clear into and upon the lot of DeWitt; this was so at the time DeWitt received his deed from Turner. The deed was an ordinary warranty deed, and granted the premises with all the appurtenances thereunto belonging, practically that is the reading. And by the way, I think it would be well enough to criticise tbe petition in this case to this extent — the deed is not only made an exhibit, but a part of the petition. It would be a good deal better to follow the statute and make it an exhibit and not make it a part of the petition. But it is admitted that the copy attached is a true copy of the deed.

So when DeWitt owned the property, he held it by a deed from Turner, which conveyed to him the property by metes and^ bounds, together with all the appurtenances thereunto belonging. As alreadv stated, the pipe passing along of course under the surface of the other land of Turner, conveyed water to DeWitt’s property. After DeWitt purchased the property he had connections made with the hydrant which was already upon the lot and to which water was conveyed by the pipe already spoken of, so that water was conveyed into his house.

Some time after the purchase by DeWitt, Turner cut the water pipe near the line or close to the line, between his own property which he still retained and that of DeWitt, and thereby cut off the supply of water to DeWitt. In his answer he says that DeWitt was in arrears for water rent, and under some rule of the water company the water would be cut off from them both, but that is not sustained by the evidence.

The claim on the part of Turner is, that he had a right to cut tíiat water off; that he sold by metes and bounds to DeWitt the lot; that DeWitt still-has the lot; he never has interfered with his having the lot, but that he did not sell him any water pipe or any rights in any water pipe. Of course if he did convey to him any rights, it is because either to the necessary enjoyment of the property which he did sell this pipe was a,n appurtenance or because the deed conveyed the land with the appurtenances.

The evidence shows that to the proper enjoyment of this property purchased from Turner by DeWitt it was necessary to have the water upon the lot, and the cutting off by Turner of the water pipe necessitated DeWitt making a connection from Forest street to his premises, and that connection, the evidence shows, was an expense of $23.80; that is to say, that amount was paid to the man who put jn the connection, then he had to pay the water company $5 for something, I do not exactly know what, and he says his land was injured by the earth being thrown up to make the ditch, and it was a good deal of injury to his. lawn.

The case was tried to the court without a jury. The court rendered judgment in favor of DeWitt for $25.

Neither in the motion for new trial nor in the petition in error is. any complaint made that the amount allowed yras excessive; if that were made, we should hold against it, but as it is not made it is not important to know what we would do about it.

We understand that by this deed' DeWitt had an interest as an ap purtenance to his property in this water pipe, and that it was an interference with the appurtenance which Turner had warranted to DeWitt when he cut it.

In Johnson v. Jordan, 43 Mass. (2 Metc.) 234 [37 Am. Dee. 85], certain propositions are announced by the court, and pretty well recognized by the profession, and well expressed here. On page 240 it is said:

“There are some general and well-settled rules of construction of conveyances, which tend in some degree to settle the question. The language of the deed is the language of the grantor; he selects the terms, and it being supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to stale fully all which is beneficial to the grantee, the language is to be construed most strongly against the grantor.
“Another well-settled rule of construction is, that a grant of any principal thing shall be taken to carry with it all which is necessary to the beneficial enjoyment of the thing granted, and which it is in the power of the grantor to convey. When therefore a party has erected a mill on his own land, and cut an artificial canal for a raceway through his own land, and then sells the mill, without the land through which such artificial raceway passes, the right to use such raceway through the grantor’s land shall pass as a privilege annexed de facto to the mill, and necessary to its beneficial use: * * *
“Under these rules, i£ might perhaps be held, that if a man, owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with *the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee.”

Without reading further we think that authority is in point, that when that deed was made granting this property and appurtenances, it carried with it the right to have water through this water pipe; when that was cut off a damage was done to the plaintiff below, DeWitt, which, under lfis deed, Turner was bound to warrant against, and he was therefore liable in damages, and the judgment of the court of common pleas is affirmed.

Hale and Winch, JJ., concur.


text:
    ADVANCEMENTS — INTEREST — LIMITATION OF ACTIONS — EXECUTORS AND ADMINISTRATORS.
    [Crawford (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    John L. Tobias v. Jennie C. Richardson et al.
    1. Failure of Action on Promissory Note for Want of Title not Failure Because of Jurisdiction, When.
    Failure of an action commenced on a promissory note Decause tne title thereto is in another, is not a failure due to any defect in the jurisdiction of the court, hut because the court, in the full exercise of jurisdiction, determines that plaintiff has no title, and, therefore, no right to recover.
    2. Accrual of Cause of Action on Promissory Note — Death of Payee — Statute of limitations.
    A cause of action accrues, within the meaning of the statute of limitations, when there coexists a demand capable of present enforcement; a suable party against whom the demand may be then enforced; and a party in being who has a present right to enforce it. Hence, when a note becomes due after the' death of the payee the title thereto and the right to enforce its payments vests in the administrator, and the fifteen-year limitation (Sec. 4980 Rev. Stat.) begins to run from the date of the administrator’s appointment. But if the note falls due during the lifetime of the holder and maker (both of whom are sui juris), a cause of action in favor of the former, and against the latter, immediately accrues, and the statute thereupon begins and will continue to run unless something intervenes to stop it; the death of the payee, and failure to appoint an administrator will not, however, suspend it.
    3. Cause of Action Barred, When.
    The statute of limitations does not require that certain conditions shall continue to exist after the statute begins to run, in order that it may continue to run; it only prescribes the condition upon which it will commence to run, and that at the end of the designated period, unless certain disabilities intervene, the action is barred.
    4. Notes Considered as Advancements, no Part of Estate.
    Notes owned by a decedent at the time of his death are personal property and assets of his estate, the title to which is in the administrator and not the heirs; the latter have no right to enforce their payment. But notes treated as evidence of advancements form no part of the estate.
    4>. Debtor Heir Must Account to Estate.
    A debtor heir who makes a claim on distribution must account to the estate for the amount of his debt; and his share of the joint estate is determined by the result of his accounting.
    ■6. Money Held to be Advancements, When.
    Money was received by two heirs from the ancestor, which was evidenced by the separate note of each; one of the notes became due before, and the other one after the ancestor’s death, the former subsequently becoming barred by the statute of limitations; both heirs had the right to have an administrator appointed, to whom they could and should have paid their notes before either became barred, but both failed to discharge these . duties; the estate, which consisted entirely of real estate except the two notes in question, was held in common by all the heirs for several years; in an action for partition: Held, the money received by the two heirs will be held to be advancements, and under Sec. 4171 Rev. Stat. (there being-no personalty), will be equalized among all the heirs with reference to the-real estate as a fund; and the amount .thereof, with interest to the ancestor’s death, will be Charged against and deducted from their respective-interests in the fund which they otherwise would have inherited.
    7. No INTEREST ON ADVANCEMENTS AjFTER ANCESTOR’S DEATH.
    In such case the notes treated as advancements will not bear interest after-the ancestor’s death.
    ERROR to Crawford common pleas court.
    Finley & (jallinger, for plaintiff.
    C. F. Schaber and S. W. Bennett, for defendants:
    Tbe indebtedness of an heir may be deducted from his share of the ancestor’s personal estate. Ellis, In re, 5 Dee. 330 (5 N. P. 207); 11 Am & Eng. Enc;.Law (2 ed.) 1170,1171; Howland v. Heekscher, 3 Sandf. Ch. 519, 526; Livingston v. Newkirk, 3 Johns. Ch. 312; Smith v. Kearney, 2 Barb. Ch. 533; Bogart, Ex parte, 28 Hun (N. Y.) 466; Smith v. Murray, 1 Dem. 34, 36; Clarke v. Bogardus, 12 Wend. 67; Wright v. Austin, 5ft Barb. 13, 17; Close v. Van Husen, 19 Barb. 505, 509; Blackler v. Boott,, 114 Mass. 24; Webb v. Fuller, 85 Me. 443 [27 Atl. Rep. 346; 22 L. R. A. 177] ; Bowen v. Evans, 70 Iowa 368, 369 [30 N. W. Rep. 638]; Earnest v. Earnest, 5 Rawle (Pa.) 213; Strong v. Bass, 35 Pa. St. 333; Girard Life Ins. Co. v. Wilson, 57 Pa. St. 182; 2 Woerner, Administration 1236.
    The same rule is applicable to the assignee of the heir, or persons otherwise succeeding to his interest. 11 Am. & Eng. Enc. Law (2 ed.) 1171; Keim v. Muhlenberg, 7 Watts (Pa.) 79; Martin v. Martin, 5ft Ohio St. 333 [46 N. E. Rep. 981]; Baker v. Carpenter, 69 Ohio St. 15.
    The debt may be deducted from the interest in land, as well as from a legacy or distributive share. Keever v. Hunter, 62 Ohio St. 616 [57 N. E. Rep. 454]; Woodruff v. Woodruff, 13-23 O. C. C. 408, 410.
    The right of retainer is applied to debts barred by the statute of limitations. This is based on the theory that the legacy or distributive share is subject to a lien for the amount of the debt. 11 Am. & Eng. Enc. Law (2 ed.) 1172; Holmes v. McPheeters, 149 Ind. 587 [49 N. E. Rep. 452] ; Harrett v. Pierson, 29 Iowa 304; Smith, In Matter of, 14 Mise. 169 [35-N. Y. Supp. 701]; Bogart, In Matter of, 28 Hun (N. Y.) 466.
    The cases of Milne’s Appeal, 99 Pa. St. 483; Drysdale’s Appeal, 14 Pa. St. 531 ¿ Reed v. Marshall, 90 Pa. St. 345; Harrod v. Carder, 2 Circ. Dec. 274 (3 R. 479), announce the rule that debts barred by the statute-of limitations in the lifetime of the decedent cannot be retained out of the distributive share, and are not applicable to this case.

      The statute of limitations does not operate to extinguish a debt, but bars the remedy only; hence, such debts may be áet off against legacies, distributive shares, or the heir. 2 Woerner, Administration 1237, 1238; Angelí, Limitations 77, 78; Welsh v. Childs, 17 Ohio St. 319; Gary v. May, 16 Ohio 66, 80; Kerr v. Lydecker, 51 Ohio St. 240, 253, 254 [37 N. E. Rep. 267; 23 L. R. A. 842]; Fisher v. Mossman, 11 Ohio St. 42.
    The statute of limitations is not a defense unless there was in existence both some one who could sue, and some one who could be sued. Where an action accrues to the estate of a deceased person, the statute does not begin to run until the qualification of a personal representative. Brown Co. (Treas.) v. Martin, 50 Ohio St. 197, 204 [33 N. E. Rep. 1112] j, 19 Am. & Eng. Enc. Law (2 ed.) 220; Angelí, Limitations 55, 56; Taylor v. Thorn, 29 Ohio St. 569, 574; Kinkead’s Practice 15.
    The statute of limitations has no bearing in this ease, because it is not an action upon a specialty, or upon an agreement, contract, or promise in writing. Section 4980 Rev. Stat.
   MOONEY, J.

These proceedings in error [John L. Tobias v. Jennie C. Richardson et al. and Jennie C. Richardson et al. v. Daniel M. Tobias] both originated in the same action which was commenced in the court of common pleas. The action was partition and the parties to it were the heirs at law of one William B. Tobias, deceased. The lands involved descended to the heirs from their said ancestor. The petition stated that John L. Tobias, Daniel M. Tobias and Jennie C. Richardson were each seized in fee of the undivided one-sixth part of said lands and Marcus A. Charlton of the undivided one-thirtieth part thereof. By separate answers and cross-petitions Jennie C. Richardson and Marcus A. Charlton deny that the interest of said parties were truly stated in the petition and alleged that their ancestor died intestate, seized in fee of the lands described in the petition, and leaving the parties as named and described in the petition as only heirs at law; that said intestate left no personal estate for distribution; that said defendants, John L. Tobias and Daniel M. Tobias, at the time of the death of said intestate, were each indebted to him upon certain described promissory notes which are now due and have never been paid; that each of said debtor heirs holds his interest in said lands subject to his indebtedness; that said amounts so owing be taken into account in making partition and that these cross-petitioners participate in the partition and have as their shares the one-sixth and one-thirtieth part of the lands respectively after the shares of each of their said debtors are charged with the amount of the indebtedness to the estate.

.John L. Tobias and Daniel M. Tobias, by separate answers, plead, first, in substance, a general denial; second, the statute of limitations; and in addition, John R. Tobias denies the jurisdiction of the court. Cross-petitioners join issue as to the statute of limitations by reply. The lands were ordered sold. A sale was made. Partial distribution of the proceeds ordered, but enough of the fund was retained to abide the further order of the court to adjust the rights of the parties in case the averments of the cross-petition, as heretofore stated, be well taken. After the partial distribution all of the heirs, owning in the aggregate a seven-fifteenth interest in the estate, relinquished all their rights in and to the controversy, heretofore stated, to the cross-petitioners and thereupon and upon their own motion were dismissed from- the action. The interests in the estate may be here stated, with relative exactitude, as one-sixtfy each to John and Daniel, and six-fifteenths to Jennie C. Richardson and four-fifteenths to Marcus A. Charlton.

Upon request the common pleas stated separately its findings of fact and conclusions of law. From the facts found it appears that the parties are heirs of said intestate and are seized of and own the respective shares of the estate “in the pleadings alleged;” that the ancestor died August 18, 1882, leaving no personal estate for distribution, and seized of the real estate described in the petition; that no administrator of said estate was appointed until July 30, 1900,. when an appointment was made and the administrator took possession of the two promissory notes hereinafter described; that at the time of the death of the ancestor, defendant, Daniel M., was indebted to him on a promissory note dated March 3, 1881, for $150, interest seven per cent., due one day after date, and upon which one year’s interest was endorsed as paid to the ancestor; and defendant John L., was indebted upon a note dated November 1, 1881, for $50, due in one year, interest six per cent., upon which no payment has been made.

It appears from the record that the administrator of the ancestor’s estate procured from the probate court a certificate showing the amount of the deficiency of the personalty to fully administer the estate; that he filed this certificate in the original action and that,.upon partial distribution, the amount so certified was paid to the administrator from the proceeds of the sale. The trial court found the indebtedness of Daniel M., to be barred by the statute and as to him the cross-petitions were •dismissed, and further found that the amount of the note of John L., with interest, should be accounted for as part of the fund for distribution, and distribution was ordered accordingly. The losing parties thereupon commenced these proceedings in error to reverse the adverse judgments of the common pleas.

Plaintiff in error, John L., Tobias, contends that said cross-petitions were based upon promissory notes, the title to which is not in the heirs but in the administrator, and the court of common pleas was without jurisdiction in the action. It seems however, upon the point suggested, that the question is not one of jurisdiction but of the cross-petitioners.* right to recover. If A brings an action to recover upon a claim due B,. then A must fail, but his failure is not due to any defect in the jurisdiction of the court in which the action is brought but is due to the fact that' the court, in the full exercise of jurisdiction, determines that A has no-title to the asserted demand and has, in consequence, no right to recover..

By Sec. 4980 Rev. Stat. an action can be brought upon a promissory' note only within fifteen years after a cause of action accrues thereon. The original action was commenced February 27, 1902. Both of the promissory notes referred to in the pleadings were thus more than fifteen years overdue. If now the cross-petitions in the action filed in March, 1902, be deeemd petitions in actions to enforce the promissory notes, it becomes of first importance to determine when the cause of action accrued in each case.

A cause of action may be said to accrue when there coexists (1) a demand capable of present enforcement; (2) a suable party against whom it may be then enforced; and (3) a party in being who has a present right to enforce it. In this view it may be noted that a party may be vested with a present right to enforce a claim when, by reason of a disability, he may not be able to maintain a present action in his own name and on his own behalf. No one will contend that a cause of action can accrue unless it accrues in favor of some one in being and against some one in being. The note of John L. Tobias became due, by its terms, after the death of the payee, William B. Tobias. Upon that note no cause of action accrued to the ancestor because, during his lifetime, there was no breach of the contract to pay. When, by its terms, the note fell due no cause of action accrued because, by reason of the failure to have an administrator appointed, there was no one in being who had a present right to enforce it. In fact, as an asset of the personal estate, no cause of action accrued on the note until July 30,1900.

The statute of limitations is immaterial so far as barring a claim on the note as such óf John L. Tobias. When the note of Daniel M. Tobias fell due and was not paid a cause of 'action accrued thereon, for the breach of the contract to pay was then a present cause of action with. William B., a proper plaintiff, and Daniel M., a proper defendant in the action. The statute then commenced to run and unless something intervened to stop'it, the cause of action on the note is barred. It is argued here that inasmuch as William B. Tobias died shortly after the cause of action accrued and the rigfht to sue was thereafter suspended until 1900, because no administrator was appointed the statute should cease to run during the same interval. The statute does not require that certain conditions shall continue to exist, that the statute may continue to run, but only prescribes the condition upon which the statute will commence to run and provides that at the end of the period, unless certain disabilities exist, the action is barred. ' The case of Daniel M. is,not within any exception named in the statute or recognized by our courts, and so the claim against him, considered merely as one upon his note, is barred by the statute of limitations.

But the causes of action, .or the claims made by the cross-petitioners, cannot be well founded upon either of these notes as such. The notes are personal property, assets of the estate, and the title to” them is in the administrator and these cross-petitioners have no right to enforce them whether the causes of action thereon be barred or not.

The original action was one to partition real estate among cotenants and so, as a court of equity, the common pleas was asked to apart the lands so that each party might have in severalty that part of the joint -estate to which in law and in equity he was entitled. The heirs had .held this land in common since 1882 when it descended to them. Each heir took a certan share of this land at the moment of the death of the ancestor and whatever title and interest each then took he now has undiminished and unaugmented. At that time it seems there was no personal estate of the intestate for distribution. The ancestor’s property, as far as we are advised, consisted of this land and these notes; and this property, the law, by its policy, casts upon these heirs to be divided equally per stirpes. A debtor heir, who makes claim on distribution, is required to account to the estate for a debt he owes, and receive his share of the joint estate by the result of his accounting.

“When the lands of the intestate descend to his children, there being no personal estate for distribution, the interest of each child in the lands is subject to his indebtedness to the intestate.” Keever v. Hunter, 62 Ohio St. 616 [57 N. E. Rep. 454].
“It is inequitable and at variance with the policy defined in our statutes, to permit one to share in an estate which is diminished by his default and to the prejudice of those whose rights are equal to his.” Keever v. Hunter, supra, page 619.

On the same page of the opinion Judge Shauck says:

“ It is not important whether, to secure equality in cases of this character, we adopt the doctrine of equitable setoff, as has been done by some courts, or, for that purpose, regard the debt as an advancement, as has been done by others.”

It appears later in the opinion that the theory of advancement is inclined to, if it is not adopted by the court. In the original case here both of the debtor heirs had the right to have an administrator appointed ■and the duty to pay their notes. They failed to exercise the right and to discharge the duty. Under these circumstances, when upon the facts, two views may be entertained, by one of which the failure to pay the notes and to take the necessary precedent steps for that purpose is wrongful, and by the other the retention of the money due is rightful, it should not rest with the debtor to say that his ambiguous conduct should receive such a construction as would make him a wrongdoer and enable him to work injustice to his coheirs. We think, under the circumstances of this case, that, by operation of law and with the implied consent of all the heirs, the debts of both John and Daniel were converted into and became advancements from the personal estate at the death =of the ancestor; and we believe that these debtors should now be estopped to deny that such is the situation. So considered and as among the heirs the notes would then cease to be personal assets of the estate and the administrator would have no duty in respect to them, nor even on distribution, to recognize them since there is no personal estate to distribute, and by the application of Sec. 4171 Rev. Stat. to the case the desired equality would be effectually preserved. That section provides ■that if an advancement be made from personal estate, and it exceeds the share that would come from the personal estate to the person receiving the advancement, he shall receive so much less of the real estate as will make his whole share equal, as near as can be estimated, to that of the other heirs of the same degree.

In the event of such advancements being made it is evident that a division of the estate of both kinds is necessary to a determination of the question of interest of the person advanced in the kind of property in which the advancements were equalized. So that, in the case here, •John and Daniel never in fact inherited' each the one-sixth of these lands, but they did inherit so much less than one-sixth each as would enable their debts to the estate to be considered as advancements and equalized. Their shares were not definite and charged with a specific lien as a debt, but the whole land constituted a fund to equalize the advancements and be the source of an equal division to the heirs. John and Daniel did not each hold the one-sixth part of this land as his own so as to be enabled to say that the statute of limitations has run against a lien upon a definite share, but all the heirs, as tenants in common, held the land, each to have such share therein as upon equalizing the advancements, should be determined. The other heirs, it seems to us, have the undoubted right to' hold possession of the land until one chief purpose of the common possession has been realized, towit, until the advancements have been equalized. It appears affirmatively that the personal estate of the intestate has been fully administerecl and. the debts all paid. In such case clearly, under the case already cited, we are not concerned with possible claims .of the administrator to these' notes.

We have adopted the theory of advancements in this case and to-be consistent that theory must be followed throughout the entire case.

Section 4172 Rev. Stat. is as follows:

“If the value of the estate, real or personal, so advanced, is expressed in the deed of conveyance, or in the charge thereof, made by the' intestate, or in the receipt in writing, given by the person receiving-such advancement, it shall be considered and taken to be of that value, in the division and distribution of the estate,' otherwise it shall be estimated at its value when advanced.”

At the death of the intestate Daniel M., owed him, in principal and interest, to that day, on his note, $154.81; and at the same time the amount of principal and interest on John’s note was $52.65, and it was at that time that these debts became advancements and at that time a quantum of interest in the land taken by inheritance became fixed. Counsel for cross-petitioners insist here, with emphasis and truly, that the right then fixed remains unchanged. These debts, as such, ceased longer to exist and by inheriting a less share in the real estate than, they would otherwise be entitled to, the debts were in effect, paid. Upon'what principle can either of these debts continue longer to bear-interest? We are convinced that they should not do so. We are aware of the cases in which it is held that advancements, after the death of the intestate, shall bear interest; but these cases are at variance with the provisions of Sec. 4172 Rev. Stat., and with the equitable holding in Hosmer v. Sturges, 31 Ohio St. 657, as well as with the theory that the-debtor heirs inherited less of the land by reason of their indebtedness. No interest should be charged upon these amounts after the ancestor's death, but the sums to be equalized should be $154.81 to Daniel and $52.65 to John, and no more.

These two proceedings in error will be ordered to be consolidated and distribution of the residue of the fund will be ordered accordingly..

Day and Norris, JJ., concur.


text:
    PARTIES — PLEADINGS—EVIDENCE.
    [Lorain (8th) Circuit Court,
    October 8, 1903.]
    Hale, Marvin and Winch, JJ.
    North Amherst Home Telephone Co. et al. v. Clinton Jackson.
    1. No Misjoinder of Defendants When Petition Alleges Cooperation.
    There is no misjoinder of parties defendant in an action for negligence when the petition charges that the negligence of each defendant cooperated with that of the other in causing the injury complained of. Moreover the overruling of a demurrer alleging such misjoinder could not be prejudicial to the demurrant where the allegations of the petition show a cause of action against it.
    2. Allegations in Petition Sufficient to Show Joint Negligence of Defendant-Companies.
    As pleadings under the code should be liberally construed in favor of the pleader, allegations in a petition in an action to recover for inj uries resulting from the negligence of defendant companies in the control and maintenance of their electric wires that, at the time of the accident, the wires were heavily charged with electricity “without any of said wires of either of said companies being properly insulated or protected by guards from coming in contact with one another at said point of crossing, as in the exercise of ordinary care by said defendants they should have done,” are sufficient to charge that there was not a proper insulation of the wires of either company and that, at the point of crossing, there were not proper guards; and it is competent, under these allegations, to show that the insulation was not such as should have been used,
    3. Evidence of Comparative Merits of Electric Insulators Competent, When.
    Where defendant has offered evidence to show that a certain insulator used at th'e time of an accident was a proper and safe one, that it was as good as could be procured in the market, and that there was none better to his knowledge, it is competent for plaintiff to show the comparative merits of the insulator used with other makes used by telephone and electric companies for their electric wires. While, as a general rule, defendant is not bound to procure and use the best insulator known, but is only required to hava one that is approved, yet after defendant undertakes to show that tha one it is using is the best in the market, plaintiff may rebut such evidence by comparing the insulator used with others in use, and in such a case the opinion of an expert witness called by the plaintiff that a particular make of insulator used by a defendant company was not a safe one, is competent.
    4. Competency of Evidence not Determined on Review, When.
    A reviewing court will not determine whether evidence is competent or not when no proper means was exercised at the trial, by motion or otherwise, to have it taken from the jury.
    5. Evidence of Subsequent Changes Competent, When.
    Evidence that defendant made certain changes shortly after an accident is not competent for the purpose of showing that defendant recognized its prior negligence, but this rule has no application where the only purpose of the-questions asked is to ascertain the condition or situation of things at the time of the alleged accident.
    61 Not Hearsay for Witness to State That he Heard of Accident, When,
    It is not hearsay evidence for a witness to state that he heard of a certain transaction, when the object of such question is to refresh the witness’ memory and assist him in fixing the time of the particular accident which is the foundation of the action.

      7. Evidence Incompetent to Show Dangerous Condition of Wires.
    Where insufficient insulation of electric wires at a particular point, which was ' the scene of an accident, is the negligence complained of, it is prejudicial error to permit a witness for plaintiff to testify that, owing to defective insulation elsewhere, electricity escaped from the wires of defendant company at another point along the line and at a time other than that of the accident.
    8. Ambiguous Charge Cubed by Explanation.
    An ambiguous instruction contained in a charge to the jury is cured by a subsequent instruction by the court in which it fully explains what is meant by the former instruction.
    ERROR to the common pleas court of Lorain county.
    E. G. Johnson, Hale C. Johnson and H. G. Redington, for plaintiffs in error:
    Cannot show changes since accident to show prior negligence. Cleveland Provision Co. v. Limmermaier, 4 Circ. Dec. 240 (8 R. 701) ; Toledo Ry. Co. v. Beard, 11 Circ. Dec. 406 (20 R. 681) ; Morse v. Railway Co. 30 Minn. 465 [16 N. W. Rep. 358] ; Elliott, Roads & Streets Sec. 864.
    Purchase of reputable dealer. Thomas, Negligence 745; Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537 [31 Am. Rep. 321] ; Carlson v. Bridge Co. 132 N. Y. 273 [30 N. E. Rep. 715] ; Ballard v. Manufacturing Co. 51 Hun 188 [4 N. Y. Supp. 940],
    There is no presumption of negligence. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Railway Co. v. McMillan, 37 Ohio St. 554; Ruffner v. Railway Co. 34 Ohio St. 96; Central O. Ry. Co. v. Lawrence, 13 Ohio St. 66; Jones v. Pipe Co. 8 Circ. Dec. 168 (15 R. 26) ; Rock Falls (City) v. Wells, 169 Ill. 224 [48 N. E. Rep. 440]; Deisenrieter v. Malting Co. 97 Wis. 279 [72 N. W. Rep. 735] ; Keigher v. St. Paul, 69 Minn. 78 [72 N. W. Rep. 54] ; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; 1 Thompson, Negligence 53, 73; Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613] ; Dobbins v. Brown, 119 N. Y. 188 [23 N. E. Rep. 537] ; Booth, Street Railways 397, 399 ; Bergert v. Railway Co. 34 Iowa 571.
    Not competent to show disconnected acts of negligence. Lake Shore & M. S. Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 32) ; 21 Am. & Eng. Enc. Law (2 ed.) 510, 511,-512, 517; Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633] ; Kramer v. Fay, 6 Dec. 335 '(4N. P. 233) ; Cleveland Terminal & Yal. Ry. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821] ; Dayton (City) v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480],
    Act of God. 1 Rapalje 18; Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480].

      The test of negligence in methods, machinery and appliances is the ordinary usage of the business. Titus v. Railway Co. 136 Pa. St. 618 [20 Atl. Rep. 517, 518; 20 Am. St. Rep. 944] ; Mad River & L. E. Ry. Co. v. Barber, 5 Ohib St. 541 [67 Am. Dec. 312] ; Northern Cent. Ry. Co. v. Hussen, 101 Pa. St. 1, 7 [47 Am. Rep. 690] ; Bailey 23 et seq.; Mt. Adams & E. P. Ry. Co. v. Cavagna, 3 Circ. Dec. 608; (6 R. 606) ; Croswell 206, 218; Uggla v. Street Ry. Co. 160 Mass. 351 [35 N. E. Rep. 1126; 39 Am. St. Rep. 481] ; Albany v. Turnpike & R. Co. 76 Hun 136 [27 N. Y. Supp. 848] ; Little Rock & M. Ry. Co., v. Barry, 84 Fed. Rep. ■944 [28 C. C. A. 644; 56 U. S. App. 37; 43 L. R. A. 349] ; 1 Thompson, Negligence Sec. 28.
    Common carriers are not responsible 'for remote and extraordinary ■consequences of their negligence, but for those that are ordinary and ■proximate. Morrison v. Davis, 20 Pa. St. 171 [57 Am.' Dec. 695] ; Rice v. Homer, 12 Mass. (11 Tyng) 230 ; Denny v. Railway Co. 79 Mass. (13 Gray) 481, 486 [71 Am. Dec. 645] ; Michigan Cent. Ry, Co. v. Burrows, 33 Mich. 6, 15; Memphis & C. Ry. Co. v. Reeves, 77 U. S. (10 Wall.) 176, 190; Hoadley v. Transportation Co. 115 Mass. 304, 308 [15 Am. Rep. 106]; Daniels v. Ballantine, 23 Ohio St. 532 [13 Am. Rep. 264]; Fleming v. Beck, 48 Pa. St. 309, 313; 1 Thompson, Negligence 48, 49, 70, 72; Goodlander Mill Co. v. Oil Co. 63 Fed. Rep. 400 [11 C. C. A. 253; 24 U. S. App. 7; 27 L. R. A. 583] ; Freeman v. Accident Assn. 156 Mass.'351 [30 N. E. Rep. 1013; 17 L. R. A. 753] ; Allegheny v. Zimmerman, 95 Pa. St. 287, 295; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; Rodgers v. Railway Co. 67 Cal. 607 [8 Pac. Rep. 377] ; Pittsburgh, Ft. "W. & C. Ry. Co. v. Brigham!, 29 Ohio St. 374; 2 Am. & Eng. Ry. Cas. 170.
    Metcalf & Cinniger, for defendant in error,
   MARVIN, J.

The case of The North Amherst Home Telephone Company and The Cleveland, Elyria & Western Railway Company against Clinton Jackson, an infant, is a proceeding in error brought here, seeking to reverse the judgment of the court of common pleas. "

Each of the plaintiffs is a corporation. The North Amherst Home Telephone Company operates an exchange in the village of North Amherst, this county, and the railway company operates an electric railroad from North Amherst to Elyria and so on through to Cleveland.

At Amherst the construction of the railway at its terminus is such that there is a “Y,” upon which cars are run for the purpose of getting them turned around and headed' back over the line. For the purpose of making nse of this Y, the trolley over its north branch or track is drawn to and held in its position by a wire, called a pull-over (that is not the name by which it is called in the petition, but spokén of so many times in the evidence, that we have designated it as a pull-over wire), extending from the trolley to a green maple tree some considerable distance and northerly from the trolley. It is perhaps eighty-five feet from the trolley over to the tree. This pull-over wire is wrapped around the tree with dry boards between the wire and the tree in such wise that the wire does not come in contact with the tree itself. Between the trolley and the tree, and but a few feet from the trolley, there was placed what is known as a globe insulator, for the purpose of cutting off the electric current,' which would, in the operation of the cars of the railway company, be carried along the trolley and out upon this pull-over.

About thirty inches above this pull-over wire and between the insulator and the tree and crossing the line of the pull-over the telephone company had strung four of its wires; there were no guards or insulators upon the wires of either company at the place of the crossing, and nothing to prevent the telephone wires from sagging down upon the pull-over wire except the tension of the wires.

This crossing point was over one of the public streets of the village.

On the evening of July 4, 1901, there was a severe electric storm at Amherst, accompanied by heavy rain and violent wind. During the storm a barn in the village was set on fire,,probably by lightning, and the plaintiff, á boy about eight years of age, with many others, went to the fire, and on returning therefrom, in walking along the public street or sidewalk, he walked against one of the telephone wires, which, in some manner, had been broken or burned off ánd was hanging over the pullover wire of the railway company. This wire was charged with electricity to such an extent that the plaintiff was severely shocked and burned by the electricity upon coming in contact with the wire.

To recover damages for this injury suit was brought by the defendant in error against both the telephone and the railway company, charging' that his injury resulted from the carelessness and negligence of these companies.

The case was tried to a jury in the court of common pleas, resulting in a verdict and judgment for the boy, the defendant in error, against both of these companies.

The bill of exceptions before us contains the proceedings which took place in the trial, including all the evidence.

Plaintiffs in error claim a reversal of the judgment, for numerous reasons to be noticed.

First. A demurrer was filed by the railway company to the petition for misjoinder of defendants. This was properly overruled, for though ■each company had control of its own wires, yet the allegations of the petition are such as to show that the negligence of each compány cooperated with that of the other to bring about the injury. Not only that, but there could be no prejudice to the railway company in the overruling of that demurrer, for the allegations of the petition showed a good case against that company. But in a case where the allegations are as they are here there was no misjoinder.

The Supreme Court of Alabama, in the case of McKay v. Telephone & Tel. Co. 111 Ala. 337 [19 So. Rep. 695; 31 L. R. A. 589; 56 Am. St. Rep. 59], uses this language in the third clause of the syllabus:

“A telephone company and an electric railway company are jointly liable for negligence when both maintain their wires with knowledge of the danger caused by the want of guard wires between the trolley wire and a telephone wire insecurely suspended over it, and especially when they permit a broken telephone wire to remain suspended across the trolley wire.”

It is urged further on in the trial, by an objection to the introduction of any evidence, that the petition fails to state a cause of action against anybody; and that the charge in the petition, and the only charge of negligence, is that the companies had no guards or insulators at the place where the wires of the telephone company passed over the line of the trolley of the railway company.

The language of the petition in that regard is this:

“On the fourth day of July, 1901, and for many months prior thereto, the defendants in their said business, knowingly, purposely and negligently suffered and permitted four or more of the wires of said telephone company to cross nearly at right angles to and within a' few inches above a certain wire of said railway company at the northwest corner of Main and Milan streets in said village, the same being much traveled thoroughfares in the business center of said village, while all of said wires of both of said companies were heavily charged with electricity, and without any of said wires of either of said companies being properly insulated at said point of crossing as in the exercise of ordinary care by said defendants they should have been.”

Now, with the liberal construction given to pleadings under the code, it seems clear to us that there is a charge of negligence here, more than simply negligence that there were no guards and no insulators at the point of crossing. “Without any of said wires of either of said companies being ’properly insulated or protected by guards from coming in contact with one another at said point of crossing, as in the exercise of ordinary care by said defendants they should have been.” It seems to us that the fair reading of this is that therfe was not the proper insulation of the wires of either company, and at the point of crossing there were not proper guards.

Counsel- for the plaintiff clearly understood that such was the meaning, and we think it clear it meant that, and that therefore there is a charge of negligence in the want of proper insulation and the additional charge cff negligence in the failure to properly guard the wires at the point of crossing.

Testimony was admitted (this is complained of, over the objection of the railway company) as to whether the insulation of the pull-over wire was a proper one.

As has already been stated, there was what is called the globe insulator in this pull-over wire a short distance from the trolley wire. The wires of the telephone company crossed the line of the pull-over wire at nearly right angles between this insulator and the tree.

The first place where the objection is made to this kind of evidence, as to the insufficiency of this insulator in the pull-over wire, is on page sixty-eight of the record. Bert Smith was a witness, and he was asked about the ball or globe insulator which is in the pull-over wire and quite a distance from where the wires crossed.

Now it was said no complaint is made in the petition that there was any improper or insufficient insulation anywhere except at the place of crossing. But what has already been said on that point is all that need be said.

It is proper to show under this petition that the insulator was not such as should have been used, the insulator at this place in the pullover wire. Again, it having been made to appear that the insulator used, by the railway company was what is known as the ball insulator, and that other insulators for the same purpose were used by electric railway-companies, quite a number of witnesses were asked as to the comparative merits of this ball insulator with other known insulators.

Complaint is made that this kind of evidence should not have been permitted, because it is said the railway company was not bound to use the best insulators known, and that to permit a comparison of their insulator with some other insulator could be of no avail except for the purpose of making it appear that the company should have used another, because there was another that was better, and they say they were not bound to have the best, but were only bound to have an approved insulator.

That objection would have more force, and possibly would be good, but for what had before that been elicited by questions put by counsel for the plaintiffs in error, the defendant below. W. J. Hillier was on the stand, placed there by the plaintiff below. He was the superintendent of the railway company. He had testified somewhat as to the construction of this railway. Upon examination he was asked by counsel for the railway company:

“What do you say as to the globe insulator being a proper and safe insulator July 4, 1901?”

That was objected to by the plaintiff below. The objection was overruled, and the witness answered:

“I think it is as good as they could have got in the market.”

Not content with that, counsel for the plaintiff in error asked this question:

“Were there any that were better?” And the witness answered:
“Not to my knowledge.”

Now that having been brought out by questions asked by counsel for the railway company, it seems to us it justified the defendant in error, the plaintiff below, to show that their superintendent was mistaken when he said that there were no better insulators in the market; otherwise with good effeet the attorney might go to the jury and say that plaintiff’s witness, put on by himself, says there were no better insulators in the market, overlooking the fact that he said it in answer to their question, and then might add very well in the argument, and nobody pretends to deny it, that was the very best insulator that could be got. There was no such error in. permitting the questions of the character under discussion to be answered as would justify a reversal of this case.

Bert Smith was a witness. He was asked by counsel for the defendant in error his opinion, and this appears on pages seventy-nine and eighty.

“Whether the ball was a safe insulator.” He was permitted to answer, he did not think it was safe; he said “It was not safe as against lightning.”

On page eighty-five, he also made the statement “That the ball insulator would leak.” It is complained that the ruling of the court in permitting this, which was permitted over the objection of the railway company, was allowing the witness to give an opinion on an ultimate matter. The witness was permitted to say that the insulator was not a safe insulator, give his opinion it was not a safe insulator, and that the insulator leaked.

Now, already, attention has been called to the evidence given by Hillier on page eight, where counsel for the railway company asked' him “What do you say as to the globe strain insulator being a proper and safé insulator July 4, 1901?”

I think that they might very well, after the testimony of Hillier, show by Bert Smith or any other competent man that it was not a safe insulator and that it would leak. Not only that, but our' Supreme Court, in Ohio & Indiana Torpedo Co. v. Fishburn, 61 Ohio St. 608, 612 [56 N. E. Rep. 457; 76 Am. St. Rep. 437], discuss the question of the opinions of witnesses upon matters something like this. There an expert in the matter of drilling oil wells was upon the stand and he was asked the question:

“ 'Suppose the shooter of a well brings 100 quarts of nitroglycerine to said well, the nitroglycerine had been placed in the shells, lowered in the well¿ the well logged in, the derrick boarded up, except the opening facing towards the engine and belt house, the said well being at a distance of from 80 to 200 feet of the residence and buildings adjoining and surrounding it, located in a village of twelve to thirteen hundred people; the condition of the atmosphere such that when the gas is liberated from the well, it settles to the surface of the earth; would the hour of 7:30 o’clock on the seventh day of September in any year when darkness had intervened so that fires and lights are lit in certain of such business and dwelling houses be, in your opinion, a proper time to shoot such well; that is to say, explode such torpedo therein ?' * * * And the answer is ‘It is not a proper hour.’ ”

The court say:

“The objection urged is that this was error because the fact sought was a matter to be found by the jury. We do not think the admission of the evidence was error. The fact called for was evidentiary. It tended to prove one fact involved in the issue, but was not the ultimate fact in issue. Nor was it a subject of common knowledge, or one of which the jury could as well judge as the witness.”

The opinion then goes on to discuss the right as an expert to testify to it.

Now here the thing charged was that these people were negligent in the use of this insulator. This was one of the negligent acts complained of. We think it was proper to inquire of an expert whether that was a safe insulator, and in any event that it was not error, after the other party had inquired of a witness, whether it was a safe insulator.

On page eighty-nine of the record we have the testimony of a witness by the name of Kitchon on the stand as an expert, and he was .asked:

“Now from your practical experience of your lifetime, are you able (after he had given evidence tending to show he was familiar with electric street railroads), are you able, have you the means of knowing, from the practical workings of insulators, are you able to state which is the better insulator for a pull-over wire in July of 1901?” A. “I am.” •Q. “You may answer the question.” Then there was an objection and overruled. A. “For me I would put in the porcelain insulator or th<j wood.” It seems there is an insulator known as the porcelain insulator and there is another insulator made of wood, and they are comparing those. “For me I would put. in the porcelain insulator or the wood. Now if you want to know my reasons I will explain my reasons.” No motion was made to take that testimony from the jury. The question was proper if what has already been said about comparing the different insulators, the different kinds of insulators one with another, if what has been said about that is correct, then the question was proper. If the answer was incompetent, no proper means to have it taken from the jury was exercised, and hence the court committed no error in that regard.

Frank Estinghausen was a witness in the case on the part of the plaintiff below, and as appears on page 103, he was asked to compare the globe insulator with the wood and other insulators, and that was objected to and overruled. And he was asked, “Do you know anything about that ?” The question, was proper, if what we have .already said is all right. He said, “I have seen these; yes, sir, and seen them used a great ■deal. In speaking from a standpoint of working for my own safety on one of these or on the strap insulator or wood insulator, I would prefer the wood or strap insulator to this for several reasons.”

The record reads: “Objected to by defendant. .Objection overruled. Exception by defendant.” The witness continues right on with his answer. “I say with my own experience I would prefer the strap insulator or wood insulator, for the reason, here with a high current and working on the line, I am speaking strictly from my own experience in working on the line.” He goes on and bases it upon his own experience and what he would prefer, but no motion was made to take that from the jury. If the question was proper, as we have held it was, then the proper method of taking that from the jury was not adopted, and hence no error which would justify a reversal in that regard.

There was asked of more than one witness (one was Steele, I think of another witness) questions as to the condition of the wires at this-place where the boy was injured, at the time of the trial. It is urged-that error was committed, because the question of what changes had been, made should not’ be permitted to go to the jury, as that might tend to-induce the jury to think that the company itself recognized that it was-negligent in the way that it had its wires, its arrangement at this place, and had made changes. At each of -the places where this complaint is. made an examination of the record shows that that is not the purpose at all, that that was not the tendency of it. The questions were asked as to-the condition of things, and he said there are ten wires over there now'. Whát the counsel was clearly trying to get at was, how many there were at the other time, not for the purpose of showing they made a change, but when the witness answered there were ten, counsel recognized it was not the same as it was before, and asked “How was it at the time of this, transaction?” There was no tendency to show the company had made any change for the purpose of making it safer, and therefore no prejudice could come to the company by having this question answered. That is true with each of the questions where a reference is made to a change.

Complaint is made as to some inquiry about the time Clark’s buggy was overturned, and the witness stated he had heard of Clark’s buggy being overturned, and it is urged that the plaintiff was getting in hearsay-evidence. That was not the purpose of the evidence at all. He was asked, “You heard about Clark’s buggy being overturned?” A. “Yes.” Nobody claimed that was overturned by any electric storm, but in order to get at the time, because they thought they would be able to show when the buggy was overturned, they simply put the question, “Do you remember when Clark’s buggy was overturned?” There was no error in that.

Without stopping to go through with each of the objections made and exceptions taken to the rulings upon evidence, either permitting questions to be answered or excluding answers to questions, we will consider only one other witness, one other matter as to the rulings on evidence.

Ora Mowary was introduced by plaintiff below as a witness, and Mowary testified (he had been on the stand before but he was introduced for a second time, as appears on page SI'S and following) that he had been familiar with the lines of the telephone company, and that he was-faqfiliar with the lines of this railway company.

Then he was asked: “Have you come in contact with the trolley system of the C. E. & W. Railway Company?” That was objected to, and the objection overruled, and no exception was there taken. A. “Yes, sir.”

Q. “I will ask you whether or not in the line of your duties it has' become necessary for you to climb the poles to which their trolleys were attached?” A. “Yes, sir.”

Q. “I will ask you whether or not the span wires running from the trolleys to the poles on the C. E. & W. are supplied with insulators like-the one marked Exhibit 1?”

Q. “What, if anything, have you discovered, Mr. Mowary, regarding live wires between these insulators and the poles?”

That was objected to and objection overruled and exception taken by' defendant. Now following that several questions are asked of Mr, Mowary of this sort, tending to show and designed to show that Mr, Mowary had observed the workings of the trolley system of this railway company and that he had noticed that electricity escaped past these insulators, and the lightning.

The objection having been made, the court said this: “I would like to know what you expect to prove?” He asked this of plaintiff’s counsel.

By Mr. Metcalf: “We expect and offer to show by the witness and other evidence, that a large number of the span wires of the defendant railway company attached to its trolley wires along its line were at about the time of the accident to the plaintiff, found alive and heavily charged with electricity, between the poles to which the span wires were attached and the globe insulators thereon near the trolley, and while these globe insulators to all appearances were in perfect condition.”

By the Court: “I will allow the testimony to go in under this statement, but before this trial ends, if I find I am wrong, I will endeavor to take it from the jury.” ,

The court nowhere took that from the jury. He did permit that kind of evidence, not^ connected with this transaction, not near to this transaction. Necessarily that opened up, as we think, a field that would have called upon the other party to bring evidence to show (upon finding out from this man where it was).whether electricity did escape at other points and other times.

We think it was clearly error to admit this testimony, and that it was prejudicial to the defendant, and for this error the judgment must be reversed.

Very many other errors are complained of. The charge of the court is complained of on page 576. Certain language used by the court is ■said to be ambiguous, and other things in the charge as already stated are complained of; at least on page 576 the language is somewhat ambiguous, but we think what was afterwards said by the court in relation to the subject matter contained in that fully explained that, and that is •equally true as to page 586, and we think that the charge, as a whole, •was a fair charge, and no error was committed by the court in refusing to give requests made, and no error given in the charge as made, and the only error on which the judgment is reversed is on the admission of this testimony of Mowary, and for that the judgment is reversed and the case remanded to the court of common pleas.

Hale and Winch, JJ., conenr.