text:
    EFFECT ON DESCENT OF PROPERTY OF FAILURE OF WIFE TO TAKE UNDER. THE WILL.
    Circuit Court of Knox County.
    Armstrong et al v. Armstrong et al.
    Decided, 1907.

      Wills — Devise of Property to Widow in Fee — Other Property Devised to Her for Life with Power to Sell — Effect of Failure of Widow to Take — -Intention to Create a Life Estate Prevails over Inference Arising from Power to Sell — Widow can not Elect Whether She will Take as Heir at Law or as Devisee — But Must Take Either as Widow or Devisee — Distribution of Residue — Dower—Sections 4159 and 5964-

    1. Where a husband possessed of real estate acquired by purchase dies testate but without issue, property devised to his widow, in fee, with no devise over in the event that she elected not to take or failed to take under the will, does not become intestate property as to her within the meaning of Section 4159, and she can not take as heir at' law the property thus devised to her in lieu of dower and distributive share.
    2. With reference to the fee of property devised to a widow for life with a power to sell which has not been exercised, the husband will be held to have died intestate.
    3. In such a case the widow becomes the owner in fee of the intestate property devised to her for life, but has oply a dower ipterest ip j;be property devised tp ber ip fpe.

      Donahue, J.; Taggart, J., concurs; McCarty, J., not sitting.
   This cause comes into this court by appeal and is submitted on demurrer to the petition. It appears by the petition, The material allegations of which are admitted by this demurrer to be true, that the defendant, Rebecca Armstrong, is the widow of John Armstrong, who died testate seized of the real estate described in the petition, all of which was acquired by purchase, leaving no children. By the terms of the will the husband devised to his widow a certain part of this real estate, but the will contains no devise over of this real' estate in case the widow elected no$ to take under the will. It appears that the widow did elect not to take, or rather, failed to elect to take, under the provisions of the will, and now claims that the real estate devised to her in the will, by reason of her failure, to take under that will, becomes intestate property and -that she is entitled to take the entirety thereof as heir at law, under the provisions of Section 4159, Revised Statutes of Ohio.

We think that Section 5964 of the Revised Statutes is decisive of the question presented by this -petition and the demurrer thereto. That section provides that, upon failure of the widow to elect to take under the will, she shall retain the dower and such other of the personal estate of the deceased consort as the widow would be entitled to receive in case the deceased consort died intestate, leaving no children. That is to say, that in such case where the widow fails to elect to take the provisions made for her by will, that by operation of Section 5964, Revised Statutes, the property devised to her does not become intestate property as to her within the meaning of Section 4159, Revised Statutes, but that her interest therein is the same as if the husband died intestate leaving children. In other words, we do not believe that it is (the policy of the law to permit the widow to make her election to take as heir at law or devisee; she must elect to take either as widoiv or devisee, and she can not defeat her husband’s will by claiming dower in all his real estate and her rights as widow in all his personal property, whether tile same be devised or not, and tl]ep claim that she takes as heir the property devised to her by her husband in lieu of her dower and distributive share.

In the case of Wilson, Ex’r, v. Hall et al, Vol. 6 C. C. Rep., page 570, which was affirmed without report in the 53 Ohio State, page 679, almost an identical question was presented, the only difference being that it was the husband who.elected not to fake', or failed to 'elect to take under the will within the year, and' it wás 'there' held that such property would descend subject to his rights’as" widower, under Section 4176, to the children, and there being no children in that case, that except for the provisions of Section 5964, the entire estate would pass to and divest in the widower, but, in accordance with the provisions of Section 5964, Revised Statutes, notwithstanding the testatrix left no children, the widower was entitled only to take the same interest that he would have taken in intestate property had the testatrix died leaving children, and that the residue thereof would pass to the brothers and sisters of the intestate of the whole blood or their legal representatives, and distribution was ordered in that case in accordance with this finding, and the same affirmed by the Supreme Court.

The next question presented by this demurrer is, whether or not John Armstrong died intestate as to any of the real estate' described in -the petition. The determination of this question requires the construction of item three of his will, which reads as follows:

‘ ‘ I give and bequeath to my beloved wife Rebecca Armstrong, the farm I now own situated in Porter township, Delaware county, Ohio, known as the Ramsey farm, to be hers to-do as she may wish with.” “I also give and bequeath to her so long as she may live the balance of my real estate and personal property with full power to sell and dispose of the same as she may wish; also to make and execute deeds for any or all of that part of my real estate that lies within’the corporate limits of the village of Centerburg, Knox county, Ohio.”

It is apparent that the Ramsey farm was devised to Rebecca Armstrong in fee and therefore John Armstrong did not die intestate ns¡ tp ¡wiy part p| that real estate, But the question arises upon the further provision of this item which devised his other real estate and perenal property to her “so long as she may live with the right to sell and dispose of the same,” etc., and it is claimed that this devise, coupled with the power to sell, is a devise of the real estate in fee simple, but with this contention we can not .agree. We think that under the provision of this will Rebecca Armstrong took only.a life 'estate, in the balance of the real estate, 'except the Ramsey farm, and the farm devised in a former item of the will to a church society; that he died intestate as to the fee in all his other land.

In the case of Home v. Lippart, 70 O. S., page 261, at the bottom of page 282, the Supreme Court say:

“The rule is that when an estate is devised with absolute power of disposal, a devise over of what may remain is void, but that ivhere a life estate only is given in express words to the first taker, with an express power in a certain event, or for a certain purpose, to dispose of the property, the life estate is not by such power enlarged to a fee or absolute right and the devise over is good.”

In this will we .are construing there is.' no devise over, but the principle announced in that case is .applicable to the case at bar, and applying the same here it would appear that Rebecca Armstrong takes only a life estate in this property, and from the reading of the entire will it is apparent that that was the intention of the testator.

Underhill on the Law of Wills, Yol. 2; Section 686, page 938, says:

“A devise of land not expressly by terms of limitation, inheritance, or succession creating a fee may be raised to a fee simple if the testator gives the devisee an absolute and unrestricted power to dispose of the land. It is not meant to say that this is the case where an estate .is expressly given for the life of the devisee.”

Again, in the same connection, the' following language is used:

“But if the land be devised -to a person expressly for life only, an estate for life only passes. The intention to create an estate for life shown by the express language which is employed will prevail over the inferences ■yhieh may be created by the gift of the power; and if the devisee dies without exercising the power, the reversion of the fee will descend to the heirs of the testator or it will go to the devisee of the testator as a contingent remainder or executory devise if he has devised it over. In either event no estate in the land will pass under the power until it has been executed.”

In this case she has not exercised the power, and having failed to take under the will she can not now, and never can, exercise that power. Therefore John Armstrong died intestate as to the fee in all .these lands. And the widow, notwithstanding she has failed to take under the will, may také this land as heir .at law under the provision of Section 4159, Revised Statutes.

In the land that was specifically devised to her in fee simple, to-wit, the Ramsey farm, she is entitled to take only dower therein, and this plaintiff as next of kin.takes under the statute of descent and distribution.

Entertaining this view the demurrer will be overruled and the defendant, Rebecca Armstrong, is given leave to answer the plaintiffs’ .petition, setting up her rights and interest in these lands of which John Armstrong died intestate, as well as her dower interest in the Ramsey farm, or, if counsel desire it, the petition may be amended so ¡as to present a separate cause of action as to the different parcels of land, and a decree may be entered finding that she is the owner of the intestate property and that she has only a dower interest in the property that was devised to her by the will of John Armstrong.

Motion for new trial will be overruled; exceptions noted.


source: Caselaw Access Project

license: Public Domain

text:
    PROCEEDINGS IN ATTACHMENT.
    Circuit Court of Hamilton County.
    Edwards Manufacturing Company v. Ashland Sheet Mill Company.
    Decided, January 25, 1908.

      Attachment-Error to Overruling of Motion to Discharge — Averments of the Affidavit — Exceptions Under Section 5521 — Compliance with Section 5568>b.

    1. The filing of a petition in error • within the required time together with an undertaking for retention of the attached property is a sufficient compliance with Section 55636.
    2. The averment of the affidavit that the defendant is a non-resident, when aided by an allegation of the petition that the defendant is a corporation under the laws of Kentucky, is equivalent to a statement that it is a non-resident corporation; but the affidavit must affirmatively show that the defendant is not within the exceptions contained in subdivision 1 of Section 5521.

      Albert D. Shockley, for plaintiff in error..

      Maxwell & Ramsey and Joseph L. Lackner, for defendant in error.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   Where a motion to discharge an attachment is sustained, and the. plaintiff, within thirty days thereafter, or sooner if so ordered by the court,-files -a petition in error and an undertaking, for the retention of the attached property, it is a sufficient compliance with -the provisions of Section 5563&, Revised Statutes.

An affidavit for attachment which contains the statement that ‘•‘the defendant is a non-resident of said state of Ohio,” when aided by the .averment in the petition, which is sworn to positively, ‘-‘that the- defendant is a corporation duly organized under -the laws of-Kentucky,”-is equivalent to. a statement that the defendant is a foreign corporation.

- An affidavit for .attachment upon the ground that -the defendant is a foreign, corporation must affirmatively show that such corporation is not within the exceptions contained in Subdivision 1, Section 5521, Revised. Statutes, and it is not aided by an averment in the petition, though sworn to positively, that the defendant is “doing business at Ashland, Kentucky,” as such statement does not exclude the fact that it may also be doing business in this state and owning or using a part of its capital or plant in this state.

Judgment affirmed.


text:
    REAL ESTATE AGENT’S COMMISSION.
    Circuit Court of Hamilton County.
    John Pfanz v. Magdalena Humberg et al.
    Decided, February 29, 1908.
    Where the contract with a real estate agent specifically states that he is to be paid for his services “when the property is sold,” it is not error in an action by the agent against the owner for recovery of his commission to direct a verdict for the defendant, • where the testimony has disclosed that the prospective purchaser refused to take the property because of defect in the title.

      Benner & Benner and Eugene Heim, for plaintiff in error.

      A. L. Herrlinger and A. T. Eulford, contra.
    Smith. J.; Swing, P. J., and Gteeen, J., concur.
   The contract of agency sued upon in this case distinctly sets out that the agreement entered into between the parties was that defendants in error were to pay Pfanz for his “services when the property was sold. ’ ’.

This being so, the agent was not entitled to compensation until either a sale was had, or at least an enforceable contract made, signed by the sellers and purchaser, that would enable the sellers to compel the purchaser .to take the property if he refused to do so.

Neither of these elements were present. A deed was offered by the defendants in error for the property in question to the purchaser, Ohlinger, who declined to accept it, for the reason of an 'alleged defect in title. •

The defendants were never in a position to enforce their rights against him; therefore, under the contract, no sale having been made, or there being no means of enforcing one, the plaintiff in error under the terms of his contract was not entitled to compensation.

There was no error in the trial court granting the- motion of defendants at the close of plaintiff’s testimony to arrest the evidence from the jury and direct a verdict for the defendants.

Judgment affirmed.


text:
    MAKING IDIOTS PARTIES BY ANSWER.
    Circuit Court of Hamilton County.
    Rosa Segal v. The Eagle Building Co.
    Decided, May 21, 1907.
    In an action by an administrator to sell real estate to pay debts, heirs who are idiots are made parties to the record by the filing of an answer and cross-petition by their guardian, wherein the allegations of the petition are admitted, service- of summons waived, and the court is asked to grant the prayer of the petition.

      Phares, Gusweiler & Phares, for plaintiff in error.

      Bates & Meyer, contra.
    Giffen, J.; Swing, J., and Smith, J., concur.
   As appears from the findings of fact the only question involved is whether, in a proceeding to sell real estate by an administrator to pay debts of decedent, heirs, who are idiots, are parties to the record, when not made parties to the petition but their legal guardian filed an answer in which she as such guardian expressly waived the issuing and service of summons upon her wards — admitted the allegations of the petition to be true and ask that the prayer of the petition be- granted? We think they are such parties and bound by the sale made. Ewing v. Hollister, 7 O. (pt. 2), 138; Section 6143, Revised Statutes.

Judgment reversed and judgment for plaintiff in error..


text:
    STATE AND FEDERAL AUTOMATIC COUPLER ACTS.
    Circuit Court of Jackson County.
    The Detroit, Toledo & Ironton Railway Company v. The State of Ohio.

    Decided, January, 1909.

      Automatic Couplers — State Law Relating to, not Superseded by the Federal Act — Commerce Clause of the Constitution — Rights Retained by the States — Regulation of Commerce and of the Instruments of Commerce Distinguished — Unit of the State Act — 98 O. 15.

    1. The state law, requiring that all locomotives and cars used in moving intrastate traffic shall be equipped with automatic couplers, is not in conflict with the federal act making the same requirement as to locomotives and cars engaged in moving interstate traffic, but rather the state law is supplementary to the federal law and in harmony with it.
    2. The car is made the unit by the statute, and each car must be complained of separately in seeking to enforce the penalty under the statute.

      Alex. G. Smith and’ John Bobbins, for plaintiff in error.
    - O. E. Harrison, of counsel to Attorney-General, and E. E. Eubanks, Prosecuting Attorney, for defendants in error.
    The following authorities were cited on behalf of the State: 65 O. S., 70; 135 Fed., 122; 149 Fed., 107; 150 Fed., 229; 154 Fed., 897; 116 Fed., 873; 161 U. S., 677; 95 U. S., 155; 169 U. S., 311; 179 U. S., 287; 169 U. S., 613; 175 U. S., 211; 102 U. S., 541; 154 U. S., 204; 129 Fed., 522; 11 Mich., 43; 103 Mo., 550; 1 Black., 603; 5 Wheat., 1; 5 How., 410; 9 How., 560; 8 Grat., 933; 5 Leigh, 707; 10 Amer. Neg. Rep., 166; 133 Ind., 69; 177 U. S., 584; 141 U. S., 147; 173 U. S., 285; 135 U. S., 100; 140 U. S., 545.
    Walters, J.; Cherrington, J., and Jones, J., concur.

       Affirming State v. D., T. & I. Railway, 7 N. P.—N. S., 541.

   .The State of Ohio brought this action in the court of common pleas of this county, against the railroad company, defendant below.

It was .alleged in the petition that defendant was a corporation organized under the laws of the state of Michigan; that its road extended from Detroit, in the state of Michigan, to Iron-ton, in the state of Ohio; that it was engaged in the business of carrying freight and passengers as a common carrier, and that on the 17th day of January, 1907, in violation of the statute of Ohio, it carried a ear, No. 4661, doing state business.and engaged'in' state traffic- and belonging to said railroad company, which w-as not equipped with an automatic coupler, a device which when used renders it unnecessary for .an employe, when desiring to couple or uncouple the ears, to go between the ends of the same to do so. The statutory penalty of one hundred dollars was demanded.

The railroad company in its answer, admitted its incorporation ; that it was engaged in the business of a common carrier, and alleged- that' ks 'subh -it owned locomotives, engines, cars, equipment and rolling stock, all of which, together with its employes, -were commonly -engaged in interstate traffic and business.

It further alleged that the Congress of the United 'States was empowered, under' the commerce clause of the Constitution, to regulate interstate traffic, which included automatic couplers upon ears commonly used in interstate commerce, and that the Congress had exercised its power so given, and passed an act which was' in operatión at the date' mentioned in the petition, and that the act of -the General Assembly of Ohio passed before that time had thereby become superseded and was void. The second defense contained a further allegation that this particular car in question was in a train composed of- ten other cars, which were all loaded with freight and were then being transported from points within the state of Michigan, to places outside of said state.

A demurrer for insufficiency was interposed to each of these defenses and sustained by the court. The exact point presented for decision is:

Whether the federal law regulates or controls a ear operated by a railroad which is, commonly, • and was engaged in interstate traffic, over a track commonly so used by employes commonly so engaged, in a train actually at the time so used and engaged, but which particular car at the time happens to be loaded with intra-state traffic, as distinguished from interstate traffic, and whether said car is so regulated and controlled by the federal law as to thereby withdraw it from the operation of state legislation?

Article 2 of the articles of confederation provides:

‘‘That every state retains its sovereignty and every power, jurisdiction' and fight which is not by this confederation; «expressly delegated to the United States in Congress assembled.’’

Article 10 of the amendments to the Constitution of the United States provides:

‘ ‘ The powers not delegated to the United States by the Con-situation nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Articlq,.!' of Section 8 of the Federal Constitution grants to the Congress,' among other things, the power, “to regulate commerce with foreign nations and among the Several states and with the Indian tribes.

Under the power thus granted, the Congress passed an act entitled, ‘ ‘ an act to promote the safety of employes and travelers upon railroads, by compelling common carriers engaged in interstate commerce to equip their ears with autoinatic couplers and continuous brakes and their locomotives with drive wheel brakes and for other purposes.”

Section 2 is as follows:

“That on and after the 1st day of January, 1908, it shall be unlawful for any such common carrier to haul, or permit to be hauled, or used, on its line any ear, used in moving interstate traffic not equipped with couplers coupling- automatically by impact, and which can be uncoupled -without the necessity of men going between the ends of the cars.”

The General Assembly of the State of Ohio, 1906 (98 O. L., 75), enacted a law upon the same subject. Section 2 of this act, which the state claims in this ease was violated, is as follows:

That it shall be unlawful for any such .common carrier to haul, or permit to be hauled or used on its line, any locomotive, car tender, or similar vehicle used in moving state traffic, not equipped with couplers coupling automatically by impact, and which can be uncoupled, without the necessity of men going between the ends of the cars. ’ ’

In so far as these two acts refer to cars, and require automatic couplers thereon, the language used in each is identical.

The word “such” in Section 2 of the Ohio law, refers to the kind of a common carrier described in Section 1 of that act, which is as follows:

“Any common carrier engaged in moving state traffic by railroad between points within this state.”

Placing this definition of a kind of carrier meant by the word “such” in Section 2, it would read as follows:

“That is shall be unlawful for any common carrier engaged in moving state traffic by railroad between points within this state * * * to haul * * * any car * * * used in moving state traffic, ’ ’ etc.

The car must be “engaged in moving state traffic between points within this state.”

The Supreme Court of the United States has held that there are three general classifications of legislative acts, federal and state, under the commerce clause of the Constitution, in one of which classes each enactment must fall. The three classes are:

First. Where the federal Congress has exclusive jurisdiction.

Second. Where the state has exclusive jurisdiction.

Third. Where the state has jurisdiction to act until the federal Congress passes an act upon the same subject.

The object to be attained' by the Ohio law would indicate that it fell within the second class. The safety, life and health of the employes, passengers and citizens of the state, lie at the bottom of the regulation. These objects are clearly within the police power of the state, and unless such a law conflicts with a regulation of a federal law upon the same subject, over which the Congress has Relegated power to act an<| hftS acted, the state law is Yñ-lit?.

The states have a right to enact a law forbidding the consolidation of parallel and competing lines engaged in interstate commerce. L. & N. R. R. Co. v. Ky., 161 U. S., 677.

The state can regulate the speed of interstate trains within city limits; it can establish a rule of evidence ordaining the character of proof by which a carrier may show its liability to be limited. 169 U. S., 311. It can enforce track connections between two railroads. 179 U. S., 287.

In all the cases upon the subject there is an important distinction and difference between regulation of commerce among the states and a regulation of the instruments of commerce. The one is confided to the Congress, the other, the regulation of the instruments of such commerce, is within the jurisdiction of the states under their police power. All police regulations of interstate traffic interfere indirectly more or less with commerce between the states, in the fact that they impose a burden upon the instruments of such commerce, by adding something to the costs of transportation in the way of expense in conforming to such regulations.

In L. & N. R. R. v. Kentucky, 161 U. S., 702, Justice Brown says:

“It has never been supposed that the dominant power of Congress over interstate commerce took from the states the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. * * * In the division of authority with respect to interstate railways, Congress reserves to itself the superior right to control this commerce and forbid interference therewith;- while to the states remains the power to create and to regulate the instruments of such commerce, ,so far as necessary to the conservation of the public interests.”

The state of Ohio, having the right to legislate and regulate thereby for the safety and lives of its people under its police powers, and having done so, and employed language in the act that confines its operations to a “common carrier engaged in moving traffic, by railroad, between points within this state,” it could npt conflict wjth the federal law upon the spine subject and regulating the same instrumentality, when engaged in moving interstate traffic among the several states, because to the state is reserved the exclusive right to regulate its own internal commerce.

The Ohio law, instead of being in conflict with the federal law, as to cars, is rather a harmonious supplement thereto, compelling the roads to have the safety device on all cars engaged in moving traffic between points within this state, a subject without the jurisdiction of the Congress, and the Ohio and federal law, each acting and operating within its own proper and constitutional sphere, bring about the intended result by requiring such safety device to be placed on all cars by all roads, whether such cars are being engaged in moving interstate or intra-state traffic.

Otherwise, without the force and effect of the Ohio law, all cars loaded with freight moving from point to point within the state of Ohio would be absolutely immune from the operation of the federal law, and all such safety couplers could be omitted.

The national pure food and drug act has been supplemented by acts passed by the various states, containing similar provisions, applicable to the manufacture, sale and transportation of impure foods and drugs within the statutes, without which the national act would lose much of its value.

The claim is made that by reason of peculiar situation of this car No. 4661, being as the answer alleges nested in a train consisting of ten other cars, and all the other ten containing freight which was being transported from one state to a point in another; that the equipment consisting of a locomotive, cars, track and train crew, all then being engaged in interstate transportation and commerce, it must be held that this particular car partook of the same characteristics as the other ten ears.

The Ohio, as well as the federal act, designates a “car,” and not a train of cars, as being subject to the penalty prescribed in the acts. The device is attached to'each car, and each as such must be complained of separately in a petition asking for the penalty. The car is thus made the unit by the statute.

Each car shall be provided ]vith the coupler and any roac] hauling a car not so provided, is doing an unlawful act, prohibited and penalized. ■

The demurrer was properly sustained, and the judgment below is affirmed.


text:
    MOVABLE PARTITION NOT PART OF THE FREEHOLD.
    Circuit Court of Hamilton County.
    The Commercial Tribune Building Company v. Rapid Electrotype Company.
    Decided, January 25, 1908.

      Landlord and Tenant — Partition of Room Held,by Lease — Fixtures.
    The movable partition involved in this case can not he regarded as a permanent addition to the freehold.

      Mallon & Yordenberg, for- appellant.'

      Johnson & Levy, for appellee.
    Gippen, J.; Swing, P. J., and Smith, J., concur.
   The defendant, as lessee of the third floor of a building belonging to the plaintiff, constructed a partition across the *same, for.the purpose of subletting a part thereof, the upper part being of glass and the lower part being of wood fitting into the groove of a cleat which was nailed to the floor. At the edges and at the top it was wedged but not otherwise fastened to the walls or the ceiling, and coul'd easily be removed without doing any substantial injury to the building.

Held: The nature of the article affixed, the relation of landlord and tenant, the structure and mode of annexation, and the purpose or use for subletting a portion of the floor space, show-no intention to make the partition a permanent accession to the freehold. Teaff v. Hewitt, 1 O. S., 511; Brown v. Wallis, 115 Mass., 156.

Injunction dissolyed and.petition dismissed,


text:
    EVIDENCE ESTABLISHING GIFT BY WIFE¡¡TO HUSBAND.
    Circuit Court of Hamilton County.
    Ella A. Miller, Executrix, v. Wm. C. McLean, Administrator.

    Decided, January 9, 1909.

      Husband and Wife — Separate Estate of Wife — Gifts Inter Vivos— Proof necessary to Establish — Assent of Wife to Possession and Use of Her Property by Husband — Written Instrument not necessary to Complete a Gift — Declarations .of Deceased Persons — Presumption.

    1. While the evidence of a gift inter vivos must, under the Ohio law, be clear and convincing, there is no rule requiring that it be direct and positive.
    2. If there be any weakness in testimony as to declarations by a deceased wife of her assent to the use by her husband for his benefit of her property then in his possession, it lies in the source and not in the substance1 of the declarations.
    3. Where a wife has full knowledge that her husband is- using her property as his own, investing part of it in real estate, taking title in his own name, selling part and reinvesting the proceeds without in any way recognizing her as a creditor or beneficiary,, her assent thereto during more than thirty years of harmonious and affectionate married life is clearly corroborative of declarations that a gift was intended.
    4. Evidence that the husband had possession of a check and notes, transferrable by. delivery and given in payment for property of his wife, does not sustain the burden of proof required in an action for money had and received, in the absence of testimony that he realized the cash or its equivalent by using the check and notes.

      Eealy, Ferris c@ McAvoy, for plaintiff in error.

      Wm. G. McLean and Edward Barton, contra.
    For the facts in-this case see the opinion of the court below, 5 N. P.—N. S., 57.

      Gifegn, J.; Swing, P. J., and Smith, J., concur.

       Reversing McLean, Administrator, v. Miller, Executrix, 5 N. P.—N. S., 57.

   It is settled law in this state that a written assignment is unnecessary to complete a gift inter vivos of a note or other evidence of indebtedness (Polly v. Hicks, 58 O. S., 218). And while the evidence must be clear and convincing, there is no rule of law requiring it all to be direct and positive.

The admissions of Mrs. Mills, if made, are direct evidence of the facts stated, which considered together show her assent to a reduction into possession by her husband of the proceeds of sale of her real estate. The claim of counsel for defendant in error that the declarations of deceased persons are of little, if any, value, is not as a general rule sound. In the case of Larimore V. Wills Admr., 29 O. S., 13, it was held to be reversible error to exclude declarations of the payee of a promissory note that she intended to give it to the defendant, Judge White saying at page 17:

"Where the subject of the alleged gift has been delivered, .the intention with which the delivery was made becomes material, and this intention may be proved by the declarations of the alleged donor, whether made at the time of the delivery or not.”

In the ease under consideration the declarations relate not to an intentipn to thereafter make a gift, ,but to her assent to the use by her husband for his benefit of property then in his possession. If there be any weakness in the testimony, it lies in the source and not the substance of the declarations. The trial judge makes, in his written opinion, no complaint of the witnesses who testified to the declarations, but .disagrees with us on their effect; and surely the fact that one of the witnesses was a nurse or servant in the household should not alone discredit her.

While it is true that no presumption of a gift arises from the possession by .the husband of his wife’s property, whether with or without her consent, yet such possession with her consent continued for :a period of thirty years without demanding or receiving any account, although the marriage relation was always harmonious and affectionate, is clearly corroborative of the declaration that a gift was made. Mrs. Mills was not, of course, bound to speak at the risk of making trouble in the family; but it was natural that she should and did speak in harmony with her conduct with reference to the property. When therefore, with full knowledge that her husband was using her property as his own, investing part of it in real estate and taking title in his -own name, selling part, and reinvesting the proceeds, without in any way recognizing her as a creditor or beneficiary, she makes any declaration upon the subject, the most natural one would be that it was all done with her consent.

Her will executed before her marriage to Mr. Mills and before the -purchase of the property in' dispute, and which contains no specific bequest, except of her gold watch, is no more inconsistent with her admissions concerning property in the possession of her husband than her election to take under his will is inconsistent with her right to such property, and? for the reason that neither refers, in terms, to that property.

Without her declarations the evidence is insufficient to show that her husband received for her use .all the money in question. The stub of a bank cheek can rise no higher as evidence than the check itself, which is only to be regarded as payment, if cashed, unless accepted in absolute discharge of the debt. 2 Daniel on Neg. Inst., Section 1623.

The stub of June 6th, 1870, shows by a liberal construction only that a check for $6,875, payable to Fanny C. Mendenhall, or bearer, was delivered to Samuel Mills as “first payment, house and lot, Sixth street; ’ ’ and no effort was made to prove that the check itself was cashed by him or any other person, although a check of the bank on which it was dr.a^yn was examined as a witness.

So also the check dated May 29th, 1872, for $5,135.58, and the corresponding stub show that it was payable to Fanny C. Mendenhall or bearer, and applied to the payment of “note to S. Mills;” but the note for the purchase money of the Sixth street property due on that day bears no evidence by indorsement or otherwise that S. Mills had anything to do with it; and on the day the last note was due, Mrs. Mills joins her husband in the execution of a receipt of satisfaction in full of the mortgage, and authorizes its cancellation of record.

It does not appear from the evidence when, if ever, in what manner, or to whom, the first payment of $2,500 for the George street property was made, except by the deed in which both husband and wife acknowledged receipt of the entire purchase money of $6,000.

The purchases of real estate by Samuel Mills in 1885 and 1886 were too remote to prove the receipt by him of money arising from transactions occurring twelve or fifteen years before; nor do they enlarge the declaration that he had money of his wife’s to invest in a particular piece of property and for a particular purpose, so as -to include all the money he invested during that period in other property.

Counsel insist, however, that the trial court was entitled to accept the declarations of Mrs. Mills to the extent of showing possession and to reject them as evidence of title; but he himself, in his original brief, cites cases to show the indefinite and uncertain sense in which the verb “to give” may be used in connection with personal property. Why then reject qualifying-words which make the meaning definite and certain, and add others that restrict the sense to “delivery of possession” only.

In the case of Liesemer v. Burg, 63 N. W. Rep., 999, cited by counsel for defendant in error, the defense of payment is a distinct admission of the purpose for which the money was received, to-wit, for the use of plaintiff; hence it was properly held that he might avail himself of the admission and contradict other portions of the testimony.

The plaintiff’s cause of action is money had and received for the use of his testator, and the burden of proof is not sustained by showing merely that Samuel Mills had possession of a check and notes given in payment of his wife’s property, although transferable by delivery. It must be further shown that he realized the cash or its equivalent by using the check and notes.

In either view of the evidence, therefore, it is not sufficient to sustain the judgment, and the application for a rehearing will be denied.


text:
    PREJUDICIAL REMARKS BY COUNSEL TO JURY.
    Circuit Court of Hamilton County.
    Dayton Folding Box Co. v. Daniel Ruehlman.
    Decided, January 30, 1909.

      Negligence — Master and Servant — Defective Machinery — Master’s Liability After Ineffectual Efforts to Repair — Injury to Operative— Unprofessional Remarles to Jwry — Duty of Trial Judge.

    1. Where the evidence clearly shows that the machine at which the plaintiff was employed was not working properly, and that an effort was made to fix it, and the plaintiff was then told it was all right, a judgment in his favor for injuries' thereafter received and due to a defect in the machine will not be set aside if supported by sufficient evidence.
    2. Where counsel make statements of fact during the trial of a cause and within hearing of the jury, which are prejudicial and incompetent or not at issue, it is the duty of the judge to interpose and correct the wrong without waiting to be reminded of it by opposing counsel; and in default of so doing, or if the wrong be one that could not be nullified and therefore required that the jury be discharged and the cause continued, and it does not manifestly appear to the reviewing court that no prejudice in the minds of the jury resulted from the statements, the judgment must be reversed.

      Galvin <& Galvin, for plaintiff in error.

      Victor Heiniz, Gontra.
    Swing, P. J.; Smith, J., and Gieeen, J., concur.
   This ease is in this court on error to a judgment rendered in the Superior Court of Cincinnati, wherein a judgment was recovered by Ruehlman in an action for personal injuries.

It is urged that the judgment is not sustained by sufficient evidence. We think it is sustained by sufficient evidence. The evidence clearly shows th^t the machine which produced the injury had not worked properly; that the defendant was informed of the fact by Ruehlman; that the defendant attempted to fix the machine, and informed plaintiff that it was all right— although the weight of the evidence is probably to the effect that the machine was not fixed at the exact time0 claimed by the plaintiff. It might have been fixed a few days before but this is not material. .From the evidence the jury had a right to believe and find that the injury was caused by the defective machine.

During the progress of the trial the following occurred:

“Mr. G-alvin: If Dr. Van Meter is here, plaintiff can subpoena him and call him if he desires.
“Mr. TIeintz: But he is the physician of the defendant.
“Mr. G-alvin : He is not the physician .of the defendant, but is a regular practicing physician of this city and belongs to no one.
“Mr. Heintz: Well, then, he is the physician of the insurance company which you represent and which is defending this suit.
“Mr. Calvin: I object to that statement from counsel for plaintiff, and I move the court that this case be now withdrawn from consideration by the jury, because of the misconduct of counsel and the improper remarks of counsel for the plaintiff in the statement made in the presence of the jury that there is an insurance company back of the defense of this action, and because said statement is outside of the record, foreign to the question wre' are trying and made for no other purpose than to prejudice the jury. I insist upon my motion that the ease be withdrawn from the consideration of the jury and the cause continued. ’ ’

This motion was overruled; to which counsel for defendant excepted.

It is the duty of a judge fin the trial of .a cause before him to see that the cause is tried in accordance with the established principles of the law. The cause is to be tried upon the issues made in the pleadings, and the evidence which is competent to support these issues, the arguments of counsel upon these issues, and the evidence and the charge of the court pertinent to the issues and the evidence. This dutyfis ever present with the judge during the trial, and where evidence is sought to be introduced which is not only incompetent but which is calculated to prejudice the jury, or when counsel make statements of fact which are not in issue, which are calculated to prejudice the minds of the jury, it is the duty of the judge to immediately interpose and correct thq wrong without waiting to be reminded of it by counsel. There may be cases where the judge by proper admonitions to the jury may nullify this, .wrong, but there are cases where this can not be done, .and in these cases the only safe way is to discharge the jury and continue the. case. 69 O. S., 438; 69 O. S., 55; 215 Penna., 219, 226; 95 N. Y. Sup., 861.

In this case the court did not interfere of its own motion and admonish the jury, but when counsel objected to remarks of counsel the objection was overruled, and the remarks therefore went to the jury with the court’s approval.

The remarks made by counsel are clearly improper and manifestly calculated to prejudice the jury, and it does not manifestly appear from the evidence that what was said did not influence the jury in arriving at its verdict, and while we hold that the verdict is not manifestly against the evidence, we also hold that it does not clearly appear that the jury was not influenced-in arriving at its verdict by this improper statement of counsel ■made in its presence.-

Judgment reversed.


text:
    PROSECUTION FOR. ASSAULT WITH INTENT TO MAIM.
    Circuit Court of Ashtabula County.
    John O’Brien v. The State of Ohio.
    Decided, September Term, 1908.

      Criminal Law — .Assault with Malicious Intent to Maim or Disfigure— Evidence Necessary to Convict — Maim and Mayhem — Intention Inferred from Ci/rcumstances — Section 6S19.

    Where an assault is committed by a blow upon the head with a blunt instrument, under circumstances evincing an intent to permanently disable the person assaulted in respect to the use of some member of the body necessary in defense of his person or to annoy his adversary, the party committing the assault may be convicted of an assault with intent to maim.

      Boyd, Marvin & Lawyer, for plaintiff in error.

      Clyde L. Taylor, Prosecuting Attorney, contra.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Ashtabula Common Pleas Court.
   John O’Brien was convicted, under Section 6819 of the Revised Statutes, of the crime of assaulting George Ryle. with a dangerous weapon with the malicious intent to maim and disfigure. The indictment contained three counts: the first of assault with intent to kill, and the second and third of assault with intent ,to maim and disfigure; the last two counts being substantially the same. The jury returned a verdict of not guilty on the first and third' counts and guilty on the second count. lie was sentenced, by the court to the penitentiary and the ease is now beforp us on error.

The circumstances as detailed in the evidence are briefly these:

A construction firm was putting up some structural steel work at Ashtabula Harbor, and the work was being done with non-union labor, which was objectionable to union men; and the union at Cleveland sent several men to the' harbor to look after the interests of the union men, and to see if the non-union men could not be induced to quit working. These special agents of the union were assisted by. a number of other men at the harbor so that there were quite a number of men, union and nonunion, on each side. •

As ordinarily in cases of this character the controversy became quite hot and much bad blood was aroused. About six o’clock in the morning, when the assault took place, Ryle was going to work and passed diagonally across the corner .of two streets when four men came in the opposite direction; coming from behind a small building, and met Ryle about half way across the intersection of the streets. Each of the four, or at least some of them, had a piece of gas pipe about eighteen inches long and one inch in diameter, covered -with heavy brown paper. They were, closely huddled together, and one of them''struck Ryle qver the side of the head with his weapon, making a serious and dangerous wound, but not of sufficient force to fracture the skull. The blow felled Ryle to his knees when he pulled his revolver and shot one of his assailants dead; the other three immediately fleeing in different directions. There is no evidence of any threats being made by O’Brien, or by either of the other three.

Two questions of error are made before us, and are strenüously relied upon by counsel for plaintiff in error. First, that the evidence does not sufficiently show that O’Brien was one of the parties that committed the assault. Second, that the evidence wholly fails to show that the assault was made with the malicious intent to maim or disfigure. We have examined the evidence and we think the jury did right in finding that 0 ’Brien was one of the parties that committed the assault. The judgment, therefore, can not be reversed upon that ground.

The second ground of error presents a question of much more difficulty, and that is, whether the malicious striking of a person upon the head with a blunt instrument, of the character and under the circumstances shown in the evidence, is sufficient to show a malicious intent to maim or disfigure. It must be conceded that whatever may be the holding in the different states— and the decisions are directly contrary — in. our own state, in order to convict of an .assault with the malicious intent to maim or disfigure, the act must be done with intent to permanently injure one of the members of the body specifically set forth in Section 6819 of the Revised Statutes, .and to maim the assault must be made with the malicious intent to injure a member that may be used in the defense of the person, or to annoy an adversary.

State v. Johnston, 58th O. S., 417; the first section of the syllabus in that case is as follows:

“1. Maim and mayhem are, at common law, equivalent words, and mean .the same thing; therefore, a count in an indictment charging the defendant with maliciously biting the ear of another with intent to maim, can not be supported as to the particular intent charged, as the biting of an ear does not in law constitute a maiming.”

On page 423 in the- opinion it is said:

“There is no question, we think, but that maim as a noun, and mayhem are equivalent words, or that maim is but a newer form of the word mayhem — the difference being in the orthography and not in the sense. Webster’s Unabridged Dictionary: ‘Maim,’ as a noun, is there defined the’same as mayhem: ‘The privation of the use of a limb or member of the body by which one is'rendered unable to defend himself or to annoy his adversary.’ This is the definition of mayhem at common law (1 East, P. C., 393; 1 Whar. Criminal Law, Section 581). Hence the verb ‘to maim’ is accurately defined in Anderson’s Law Dictionary, as follows: ‘To commit mayhem.’ ”

Again, on page 425, it is said:

“If the member be not one of use to the person in defending himself, an injury to it can not be said to have been done with intent to maim.”

In this case it is not claimed by the State that there was any intent to disfigure on the part of O’Brien; neither could there be, as there is nothing tending to show such intent by the injury or by any. circumstance in the case.

The question then arises, is the evidence sufficient to show, under the law as laid down in State v. Johnson, supra, an intent to maim; that is, such privation of the use of .a limb or other member of the body by which one would be rendered less able to defend himself or to annoy his .adversary. The injury in this ease produced no such effect, so that no implication of fact or law arises that the accused intended -that which his act in fact produced, and a specific intent must therefore be shown from the manner of inflicting the blow, the part of the body struck and the circumstances under which the injury was inflicted.

Intent is a mental state, and therefore very difficult of proof. The only manner in which it can be proven is by the circumstances of each particular case, and if the circumstances are of such character as to satisfy the triers of the facts beyond a reasonable doubt, not only that the act was done by the defendant, but that it was done with the felonious intent charged in the indictment, that is sufficient.

The rule is well -stated by Elliott on Evidence, Section 2842 :

[Intent — Inferred from Circumstances.] While it is incumbent upon the state to prove the intent, yet the law, recognizing the difficulty of proving mental states, does not require proof of such intent by direct evidence, but it may be established by proof of such facts- and circumstances from which the intent may naturally or reasonably be inferred. One court very aptly stated the rule thus: ‘But it is generally true that the State is not expected and can not be required to make proof of felonious intent, as a fact, by direct and .positive evidence; for as a general rule, men who do or commit acts do not proclaim in public places the intent with which such acts are done. If the State were required to make direct and positive proof of the felonious intent which characterizes the act done as a public offense, the result would be that many persons, charged and guilty of public crimes, would go acquit unwhipt of justice.’ Therefore all that the State is required to do in such eases is to introduce such evidence on the trial of the cause as will satisfy the triers of the facts, whether court or jury, beyond a reasonable doubt, not only that the act was done by the defendant, but that it was done with the felonious intent charged in the indictment. ’ ’

The jurors and the trial jpdge were so satisfied in this case. Were they in error in being so satisfied? We think not.' Here was a. contention between .two conflicting parties of large numbers. The question between the factions was which should do the work of construction, union labor or non-union labor. "There could be no reasonable object in killing Ryle; it would not accomplish their purpose, and at the same time upon apprehension be attended with severe penalty.

The main object, no doubt, was to disable Ryle and not kill him. This is shown by the weapon used and the manner of its use. It was wrapped with heavy paper so as to blunt the force of the blow. Why use an eighteen-inch piece.of gas pipe so protected, if the main intent was to kill? Why not have used a revolver or other gun at a safe distance, at some secluded point; why go^four together attracting attention leading necessarily to detection, apprehension and conviction? But it is said, they did not maim Ryle. True, but what would have happened had he not shot one of the number down? They were there to disable him; teach him a lesson, and had it not been for his revolver, no doubt numbers of blows would have fallen upon his arms, limbs and other members of his -body. Who can say, under such circumstances, the assault was not made for the purpose of maiming?

The case of Ridenour v. The State, 38 O. S., 272, is a case quite similar to the one we are considering. Ridenour was convicted of shooting with intent to maim. He shot Montgomery in the trunk of the body near the navel; a nerve was destroyed by the bullet in its course and paralyzed his right leg. In the second paragraph of the syllabus it is held:

“2. Where one shot another in the trunk of the body, and the result was to produce paralysis of a leg, causing a permanent disabling of that member, a verdict of guilty with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act. ’ ’

True, in that case an actual maiming took place and raised a presumption against Ridenour, but we think not stronger than the presumption raised by the circumstances in this case.

On page 274 in the opinion it is said:

“It further appeared, however, that a nerve was destroyed by the bullet in its course, and that although the patient has recovered, his right leg is disabled by paralysis, from which it is said he will never, in all probability, recover. From this it seems that the result of the shooting was actually to maim. Can it be said that the verdict finding that the accused intended the result of his criminal act was not warranted? We think not. The law presumes all persons to contemplate the natural and probable results of their actions; and we can not say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body.”

Mark the closing sentence:

‘ ‘ The law presumes all persons to contemplate the natural and probable results of their actions; and we can not say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body. ’ ’

So a blow upon the head made under the circumstances shown in this ease may be presumed to have been made 'with intent to cause the loss of the use of some important member of the body. Indeed, it is well settled by medical authority that a violent blow upon the head not fracturing the skull frequently does cause the paralysis of an arm or leg. American Text Book of Surgery; Principles and Practice of Surgery, by De Costa. '

The judgment of the court of common pleas is affirmed.


text:
    DAMAGES TO PROPERTY FROM A SEWER.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Philip Roettinger.
    Decided, January 9, 1909.

      Municipal Corporations — Sewers—Damages to Property from — Ownership of Sewer — Notice of Defect — Errors at Trial Immaterial, When.

    Where a cause of action is stated against a municipality, and the uncontradicted evidence shows liability for whatever damages resulted, and also that the plaintiff suffered greater damages than were allowed him by the jury, errors of law in the charge to the jury or in the admission or rejection of evidence become immaterial.

      Geoffrey Goldsmith, for the city.

      Ellis G. Kinlcead and H. Kenneth Rogers, contra.
    Swing, P. 'J.; G-ifeen, J., and Smith, J., concur.
   Defendant in error brought an action against the plaintiff in error for damages to his real estate caused by sewage matter escaping from a sewer in Gilbert avenue and flowing under the foundations of his’houses abutting on that street. The petition states a good cause of action. The answer of the city was in effect a general denial.

The plaintiff introduced his evidence, which substantially sustained the allegations of his petition. The damage to the property was shown to be at least $1,500; one witness placed it at $2,000. It- was further proved that repairs were made to the buildings caused by sewage matter to the extent of $951. The city offered no evidence. The jury returned a verdict for the plaintiff in the sum of $1,179, including interest to May 4, 1908. The petition was filed April 20, 1904, claiming interest from January 1, 1903, so that the verdict carried with it at the least over four year’s interest, and the amount of damage allowed by the jury was not over $900.

The jury made special findings of fact as follows:

“Did the city have reasonable notice of the defect, if any, in the sewer pipe before the injuries or any .of them complained of. Answer. Yes.”
“Did the city have reasonable notice of the defect, if any, in the culvert before the injuries complained of, or any of them. Answer. Yes.”
“Did the city after notice, if any was given, remedy the defect, if any, in the sewer in a reasonable time. Answer. No.”
“Did the city after notice, if any was given, remedy the defect, if any, in the culvert in a reasonable time. Answer. No.”
“Was the break, if any, in the sewer pipe, the proximate cause of the damage. Answer. Yes.”
“Was the break, if any, in the culvert, the proximate cause of the damage. Answer. Yes.”

It is urged in argument that the evidence does not show that the city was the owner of the sewer in question, but this contention comes too late. The city in its answer did not set up any defense of that kind. The evidence shows that the. sewer was in the public street of the city, and when complaint was made to the city that sewage was leaking from the sewer into plaintiff’s property, the city did not disclaim ownership of the sewer, but finally after repeated notices of the defect, repaired the sewer. There really can be no question but that the sewer was the property of the city.

Quite a number of errors alleged to have been committed by the court in the trial of the case were presented to the court on behalf of the city with great learning and ability, but with the view we take of the record these do not seem prejudicial, if erroneous, and need not therefore be considered in detail.

The plaintiff having stated a cause of action and the uncontradicted evidence showing that the city was liable for whatever damages resulted, and the uncontradicted evidence showing that he sustained more damage than the jury allowed, any errors of law if committed by the court in its charge or in the admission or rejection of evidence must be immaterial and of no prejudice to the city.

Judgment affirmed.


text:
    JUDGMENTS AGAINST MUNICIPALITIES FOR. PR.OPERTY TAKEN.
    Circuit Court of Hamilton County.
    State, ex rel Edward M. Ballard, Solicitor, v. Charles L. Harrison et al, Sinking Fund Trustees.
    Decided, July 18, 1908.

      Municipal Corporations — Sinking Fund Trustees — Mandamus—Recovery of Damages for Property Taken — The Proceeding in the Nature of Condemnation.

    Mandamus will not .lie to compel sinking fund trustees to pay a judgment against a municipality for land taken, the value whereof was fixed by the court in a proceeding filed by the property owner subsequent to the taking of possession by the municipality. .

      Ediuard M. Ballard and Fyffe Chambers, for relator.

      Thornton M. Hinkle and Alfred Q. Allen, for defendants.
    This was an application for mandamus to compel the sinking fund .trustees to pay a judgment against the city. The relator alleged that the city had taken possession of lands of Oliver without having appropriated the same'by law or made compensation therefor; that Oliver brought suit against the city for two thousand dollars as damages for the trespass committed; that the city answered admitting that it took possession of the land as alleged, is willing to pay the value thereof upon receipt of a deed therefor, and asking the court to fix the value. The court entered a decree finding the value and ordering it to be paid to the plaintiff, Oliver,- upon delivery of a deed to the city. The solicitor thereupon certified the judgment to the sinking fund trustees. They declined to pay it on the ground that they were not authorized to levy taxes to provide for judgments against the city “in condemnation of property cases,” nor to pay such judgments. '
    Swing, P. J.; Smith, J., and Gieeen, J., concur.
   The judgment entered against the city in favor of Oliver et al was not in the nature of damages, but in its nature was one for condemnation. The sinking fund trustees are not permitted to pay judgments in condemnation. The writ should be refused.


text:
    COMPENSATION — EVIDENCE-BILL OF EXCEPTIONS.
    Circuit Court of Hamilton County.
    Raphael M. Pedretti v. Charles A. Pedretti et al.
    Decided, December 28, 1907.
    Error does not lie to tlie overruling of a motion for the allowance of compensation for services rendered, where the motion was heard on evidence and no hill of exceptions is offered containing the evidence.

      Galvin & Bauer, for plaintiff in error.

      H. B. Probasco, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   ' This is an action in this court to reverse the judgment of the court of common pleas, wherein that court refused to grant the motion of Galvin & Bauer, attorneys in the case for Raphael Pedretti, for compensation for services rendered the plaintiff and receiver and referee. The judgment entry recites that this motion was heard on testimony and was argued by counsel and the court being fully advised overrules said motion. The plaintiff excepted to the overruling of the' motion, but no bill of exceptions was taken containing the evidence. Therefore this court can not saj^ whether the court decided the question correctly or not. A consideration of the evidence alone could show this. In the absence of this evidence, we must assume that the court decided the matter correctly. The judgment is therefore affirmed.


text:
    BLINDNESS RESULTING FROM USE OF WOOD ALCOHOL IN VARNISH.
    Circuit Court of Hamilton County.
    The Herancourt Brewing Co. v. Joseph Frank.

    Decided, January 30, 1909.

      Negligence — Master ancl Servant — Fumes of Wood Alcohol Cause a Brewery Employe to Lose his Eyesight — Safe Place to Work— Assumed Bisk — Pleading—Charge of Court — Bill of Exceptions— Weight of Evidence — Expert Witnesses.

    1. Under the rule that a master can be held liable only for acts negligently done or omitted and so alleged, it is necessary to aver that the appliance used was negligently selected, or that there was a failure to warn the servant of the danger connected with its use.
    2. A charge' which authorizes the jury to return a verdict for the plaintiff, in the event they find that certain facts are true, is erroneous when the essential fact constituting the negligence is omitted.
    3. The fact that a witness is a dealer in brewers’ supplies and technical machinery does not qualify him to testify as an expert as to whether or not Columbian spirits are poisonous, if applied as a compound of shellac in an enclosed area.
    4. Questions requiring an argumentative answer, or which appeal to the prejudice of the jury by introducing irrevelant facts, are not only erroneous, but should draw from the court a caution against any further attempt to influence the jury in that manner.
    5. Where exhibits are found to be missing from a bill of exceptions at the time it is offered for signature, the time for signing should be extended under the statute, rather than go to the upper court with an incomplete bill, or attempt to make it complete by subsequently attaching the exhibits without the consent or knowledge of the trial judge.

      Robertson & Buchwalter .and Roettinger & Gorman, for plaintiff in error.

      Strieker & Johnson, contra.

      Oiffbn, J.; Swing, P. J., and Smith, J., concur.

       For the facts in this case and opinions previously rendered, see 5 N. P. —N. S., 281; 5 O. L. R., 559, and 5 O. L. R., 577.

   The negligence of the defendant brewing company is charged in the second amended petition as follows:

‘ ‘ That defendant negligently, carelessly and in total disregard of its duty to plaintiff, failed and omitted to supply or offer to supply the plaintiff with such mask or head-protector or any other appliance or means to avoid the harmful and dangerous consequences connected with the use of said varnish and that had the plaintiff.been supplied with such.mask, helmet or head-protector, he would have escaped all the injuries herein complained of.”

Also as follows:

‘ ‘ That he is permanently and incurably blind, all of which was directly caused by, and is due to, the use of said varnish or shellac as aforesaid.”

The other allegations show what duty devolved upon the defendant, and lay the foundation for the specific 'charge of negligence. There is no allegation that the varnish used was negligently selected from among others in the market, and so far as the pleading discloses was the only material suitable for coating the. inside of beer casks; nor is there any averment that the defendant negligently failed to warn plaintiff of the danger. The defendant can be held liable only for acts negligently done or omitted and so charged. Railroad Co. v. Kistler, 66 O. S., 326; Railroad Co. v. Lockwood, 72 O. S., 586.

The duty of a master to provide a “safe place” in which to work is not involved under the pleadings or the evidence; and the claim of counsel may be aptly answered in the language of the Supreme Court in the case of Coal & Mining Co. v. Adm’r of Clay, 51 O. S., 542, at 558:

“Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing, and instead of being a place furnished by the master for the employes within the spirit of the decisions referred to, was a place the furnishing and preparation of which was in itself part of the work which they were employed to perforin.”

The first special instruction to the jury given at the request of plaintiff is in substance, if you find from the evidence that plaintiff had no knowledge of the danger, that the defendant knew or ought to have known the dangers, yet failed to warn the plaintiff thereof, and in consequence thereof plaintiff sustained the injuries complained of, your verdiot must be for plaintiff.

These facts were all necessary to be found by the jury as leading up to the essential fact constituting the negligence charged, to-wit, the failure to supply the plaintiff with a mask or other means to avoid the danger of using the varnish, but did not alone amount to negligence as charged. It was error to give this charge; but it will no doubt be claimed that it was not prejudicial, because the jury found in answer to an interrogatory that the failure to provide masks and properly ventilate the casks caused plaintiff’s blindness. They do not, ’ however, find that such failure was due to negligence of the defendant. Another interrogatory requiring a statement of the negligent acts of the defendant causing plaintiff’s blindness was submitted to the court, but refused. ■ Why, does not appear. We think it was a proper question to be submitted to the jury; but the error seems not to be urged in the petition in error either specifically or generally.

Special instruction No. 5 given at the request of the plaintiff is not accurate in stating the duty of defendant, to-wit, “the defendant knew or in the exercise of ordinary care ought to have known of such dangers. ”

What a master ought to know is the measure of his duty in the premises, but that duty is ascertained by what he would know by the exercise of ordinary care.

The witness, J. A. J. Mager, was neither a chemist nor a physician, and had. no experience in varnishing beer-casks, but was in the business of brewers ’ supplies and technical machinery. It seems to us therefore that he was not qualified as an expert to answer such questions as the following:

“State, if you know, whether or not Columbian spirits is poisonous, if used or applied as .a compound to shellac in an enclosed area such as a brewer’s beer vat?”

Besides it was a precise issue of fact to be determined by the jury from the evidence. Fowler v. Delaplain, 79 O. S., —.

William Porn, a brew-master, was asked by counsel for plaintiff in his examination in chief the following question:

“What would you say as to the necessity of heating the casks until they are so hot on the inside you can feel the heat on the outside with your bare hand? Is it necessary the casks be heated to such a degree before the operator applies the varnish ? There being, if you please, no ventilation in- the cask save a manhole at the bottom one to two feet in diameter and a bunghole at the top two inches in diameter, and the varnisher not being supplied with a mask but a moistened sponge worn around the mouth and nose?”

It is hardly necessary to ask what relation -the bung-hole, the man-hole, the absence of a mask, and the presence of a sponge over the mouth and nose of the varnisher have to the necessity of heating the cask; but it is pertinent to inquire why encumber -the record with such questions until -the bill of exceptions reaches- the enormous bulk of ten hundred and thirty-six type-written pages, and why appeal to the passion and prejudice of the jury by an irrelevant question put to a witness? The court should not only have sustained the objection to the question, but -cautioned counsel against any further attempt to influence the jury in that manner.

The same witness was -asked the following:

“Why do you use pure grain shellac varnish and not Columbian spirits varnish?”

His motive or reason for doing the act was not in issue, nor relevant to any fact in issue, -and the question called for an argumentative answer, which was given as follows:

‘ ‘ Because I know the dangers of wood alcohol and Columbian spirits; regardless of the fact that we can make a cheaper varnish, we do not -employ Columbian spirits or wood alcohol.”

We have not weighed the evidence to ascertain whether the verdict is sustained by sufficient evidence, because the trial judge has certified that the bill of exceptions does not contain all the evidence, in that two exhibits are wanting.' At the time the bill was signed it was discovered that these exhibits1 were not attached and the judge so certifies. They were soon after found in the custody of the clerk of the court, and -attached to the bill without the consent of the judge and after the time for signing the bill had expired. While it is -not the duty of the trial judge to prepare' a bill of exceptions, yet under the circumstances the better course would have been to extend the time under the statute for allowing and signing the bill, so that counsel, who were without blame, could search for the missing exhibits. With -the record incompléte, and a want of power to weigh the evidence, we are constrained to hold that the errors in giving special instruction No. 1, and in admitting incompetent and irrevelant testimony were prejudicial, for which the judgment is reversed and -the cause remanded for a new trial.


text:
    IMMUNITY FROM STATUTE OF LIMITATIONS NOT TRANSFERABLE. *
    Circuit Court of Hamilton County.
    Charles H. Wiltsie v. John B. McClymon et al.
    Decided, February 6, 1909.

      Taxation — Lien for Money Paid at Delinquent Tax Sale-Subject to Statute of Limitations — Defenses—Section 2SSO.

    1. The plea of the statute of limitations is a good defense against an action to subject lands to satisfaction of a lien for money paid for said lands at a tax sale which proved invalid.
    2. The six year statute of limitations applies in such a case.

      Wm. F. Chambers, for plaintiff.

      John J. Acornb and Harmon, Colston, Goldsmith & Hoadly, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This is an action to subject lands to the payment of certain sums -of money paid to the state on the sale of said lands at delincpient tax sale. '

The petition alleges that plaintiff bought the land at delinquent tax sale in February, 1898; that said sale was invalid by reason of certain irregularities; that he paid the taxes of December, 1898, and the June tax of 1899; and he asks judgment for the amounts paid at the. respective dates with interest, and .asks for a foreclosure of his lien on the land.

Defendants filed an answer setting up a general denial and also a plea of the statute of limitations pleading the bar of six years. This action was brought January 21, 1907.

We are of the opinion that the plea of the statute of limitations .is a good defense to this action.

It is conceded that the statute of limitations does not run against the state for taxes, and it is insisted that this exemption is transferred to the purchaser at tax sales by virtue of Section 2880, Revised Statutes, wherein .it is provided that if the tax sale is proven to be invalid, the purchaser shall be entitled to receive from the properties the amount of the taxes and the land shall -be bound for the payment of the same.

Thé right of the purchaser to maintain this action and have a lien on the land is'conferred by the statute, and is not inherent in him, and in transferring this right to the purchaser the state does not confer with it the right of the sovereign not to be bound by any statute of limitations, and whatever right the purchaser gets is governed by the statute of limitations.

The provision of the statute applicable to this case is the six year limitation. This action was not brought until after six years had elapsed after the cause of action accrued.

The two propositions in the syllabus in the case of Hartman v. Hunter, 56 O. S., 157, are decisions of the two propositions involved in the determination of the questions here raised.

Petition dismissed.


text:
    APPROPRIATION OF ABANDONED CEMETERY.
    Circuit Court of Montgomery County.
    Pansing v. Village of Miamisburg.

    Decided, July 6, 1907.

      Eminent Domain — Appropriation of Abandoned Cemetery by Village— Eights of Persons Who have made Interments upon Payment of a Fee — Harmonious Purposes of the Appropoiation — Method of Procedure — Certificate of Clerk — Necessity for the Appropriation — Designation of Parties Defendant.

    1. A cemetery wherein interments were made upon payment of a fee without the granting of any title to the ground, and in which no interments have been made for forty years, may be appropriated by a village for use for parks and public buildings.
    2. The Burns law, requiring that before any expenditure is authorized the clerk or auditor shall certify that funds sufficient to.meet the proposed expenditure is in the treasury :and unappropriated,' can not be made to apply to an appropriation proceeding in advance of any knowledge as to what the property will cost.
    3. In such a proceeding it is not necessary to declare the interest to be acquired, and in the absence of a declaration a fee simple will be presumed; nor can the necessity of the appropriation be questioned, except for collusion or fraud.
    4. Where the property is owned by a religious society the trustees of the society should be individually named as such in the caption of the application to assess compensation.
    Gottschall & Turner and Mahlon Gebhart argued- for the plaintiff in error,
    Pansing, that the probate court had no jurisdiction to determine the questions raised, and cited Revised Statutes, Sections 1536-108 and 1536-111; P., C., C. & St. L. Ry. Co. v. Greenville, 69 O. S., 487, and Grant v. Hyde Park, 67 O. S., 166.
    That the relatives and even friends of deceased persons buried in the cemetery are the real parties in interest, and have a standing in a court of equity to restrain the village from entering on the land: Davidson v. Reed, 111 Ill., 167; Boyce v. Kalbaugh, 47 Md., 334; Sabin v. Harkness, 4 N. H., 415; Wormley v. Wormley, 207 Ill., 411.
    That if the-statute is not strictly followed the probate court acquires.no jurisdiction and its proceedings -are void: Harbeck v. Toledo, 11 O. S., 219; Harbeck v. Connelly, 11 O. S., 227; Platt v. Penn. Co., 43 O. S., 228; Giesy v. Ry. Co., 4 O. S., 308.
    That no -certificate was filed by the clerk as required by Section 1536-205: Rhoades v. Toledo, 6 C. C., 9; Ryan v. Hoffman, 26 O. S., 109.
    Th-at the resolution, ordinance and application do not state the purpose of the appropriation: Grant v. Hyde Park, 67 O. S., 166; Section 1536-103 and 105; Taylor v. Taylor, 55 O. S., 61; Railway v. Bohm, 34 O. S., 114; Randolph on Eminent Domain, Section 56, bot. p. 53; Lewis on Eminent Domain, Section 308.
    That the resolution, ordinance and -application do not state the estate or interest sought to be appropriated: 98 O. L., 164; Giesy v. Railway, 4 O. S., 308; Dodson v. Cincinnati, 34 O. S., 276; Railway v. Bohm, 34 O. S., 114.
    That council made no finding -or declaration that the appropriation of this real estate was necessary for the public use: 4 O. S., 308, supra; 34 O. S., 276; State v. Curtis, 86 Wis., 140.
    That the property was devoted to public uses and can not be condemned; as to what constitutes a public cemetery: Lay v. State, 12 Ind. App., 362; as to dedication, which arises out of the conduct of the' owner and the acts of those who rely thereon by permitting -others to bury there: Davidson v. Reed, 111 Ill., 167; Hunter v. Trustees Sandy Hill, 6 Hill (N. Y.), 407-13; Boyce v. Kalbaugh, 47 Md., 334; Beatty v. Kurtz et al, 2 Peters (U. S.), 566; Wormley v. Wormley, 207 Ill., 411; Rosewood Cemetery v. Bandy, 93 Ind., 246; Kitchen v. Wilkinson, 26 Pa. Super. Ct., 75; 6 Cyc., 714; 13 Cyc., 446.
    As to abandonment, mere disuse, especially where it results from the filling up of a cemetery, never constitutes abandonment: Commonwealth v. Wellington, 7 Allen (Mass.), 299. See, also, Stockton v. Newark, 42 N. J. Eq., 531; Kansas City v. Sacarrit, 169 Mo., 471; Dangerfield v. Williams, 26 App. D. C., 508; 6 Cyc., 715.

      That a public cemetery can not be condemned in Ohio: Iron Co. v. City of Ironton, 19 O. S., 299; Hatch v. C. & I. Ry., 18 O. S., 119; Little Miami v. Dayton, 23 O. S., 510-518; Hickok v. Hine, 23 O. S., 523; R. R. v. Belle Center, 48 O. S., 273; St. Ry. Co. v. St. Ry. Co., 50 O. S., 603-616.
    As to the law in other states: Evergreen Cemetery v. New Haven, 43 Conn., 234; Memphis State Line Ry. Co. v. Forest Hill Cemetery Co., 116 Tenn., 400; Lewis on Eminent Domain, second edition, 654; 6 Peters, 438; Hunter v. Trustees Sandy Hill, 407; 2 Peters, 566; 116 Tenn., 422.
    J. C. Myers, Village Solicitor, and Rowe, Shuey, Matthews & James, cited for the defendant in error:
    Sloan v. Railway, 7 C. C., 84; Spangler v. Cleveland, 43 O. S., 526; Kellog v. Ely, 15 Ohio, 64; Railway v. Fostoria, 7 C. C., 293; Colby v. Toledo, 22 C. C., 736; Railway v. Belle Center, 48 O. S., 290; Richards v. Skiff, 8 O. S., 586; T. & O. C. Ry. v. Beard, 20 C. C., 681; Heckman v. Adams, 50 O. S., 305; Moore v. Moore, 46 O. S., 89; Toledo v. Preston, 50 O. S., 36; Thoms v. Greenwood, 7 Am. L. Rec., 320; Hallock v. Columbus, 1 N. P.—N. S., 205; Swing v. Rose, 75 O. S., 355; Fire Ins. Co. v. Furniture Co., 108 Mich., 176; Stove Co. v. Mehling, 21 C. C., 60; Reynolds v. Stansbury, 20 O. S., 345; Sheldon v. Newton, 3 O. S., 494; Ex parte Bushnell, 8 O. S., 599; Railway v. Traction Co., 1 N. P.—N. S., 296; Railway v. Ironton, 19 O. S., 299; Krumberg v. Cincinnati, 29 O. S., 69; Caldwell v. Carthage, 49 O. S., 334; Strauss v. Cincinnati, 24 W. L. B., 422; R. R. v. O’Meara, 2 W. L. B., 142; Coster v. Water Co., 18 N. J. Eq., 54; Water Co. v. Burkhardt, 41 Ind., 364; People v. Smith, 21 N. Y., 595; Sample v. Carroll, 132 Ind., 496; R. R. Co. v. Kipp, 46 N. Y., 546; Ward v. Turnpike Co., 6 O. S., 15; Commonwealth v. Connellsville, 201 Pa., 154; Laird v. Pittsburg, 54 Atlantic, 324; Wellsville v. O’Conner, 1 C. C.—N. S., 253; Ryan v. Orbison, 7 O. C. C., 30; Putin-Bay v. Well, 18 C. C., 780; Klopfer v. Sunderland, 1 Iddings, 143; Grant v. Hyde Park, 67 O. S., 166; Section 1536-111, Revised Statutes; Ellis’ Forms, Ellis’ Code, 88 and 89; Order of Procedure, Ellis’ Code, 87; C., H. & D. R. R. v. sundry persons, 7 W. L. J., 265; Mills on Eminent Domain, Section 20; In re Application to Acquire St. John’s Cemetery, 133 N. Y., 329; In re Deansville Cemetery Assn., 66 N. Y., 569; Randolph on Eminent Domain, Section 97; Richards v. Sutherland, 32 Barb., 42; Babb v. Cincinnati, 36 W. L. B., 206; Matter of Street Opening, 133 N. Y., 336; R. R. Co. v. Ironton, 19 O. S., 299; C., H. & D. v. Spring Grove, 1 Ohio Dec. (Reprint), 316 (7 W. L. J., 251); State v. Jersey City, 58 N. J. L., 262; In re Railway Co., 99 N. Y., 12; Ry. Co. v. Mining Co., 161 Mo., 288; C., H. & D. v. Spring Grove, 1 Ohio Dec. (Reprint), 316 (7 W. L. J., page 251); Sections 1464 to 1475-1; Sections 1536-478 to 1536-518; Sections 3571 to 3586-5; Mannix v. Purcell, 46 O. S., 102; tery Association, 66 N. Y., 569; Mannix v. Purcell, 46 O. S., 102; Elliott on Evidence, Sections 1335 and 1336; Sections 420 to 433; Potter v. Norwood, 21 C. C., 461.
    An old cemetery containing about .39 of an acre lies near the center of the town of Miamisburg. The title to the -land is in the German Reformed and Lutheran churches. Prior to about 1860 it was used as a public burying ground, although 'the church controlled it, and might charge a fee for burying unless they saw fit to remit such charge. There have been practically no burials in it for possibly forty years.
    The village council decided to appropriate this land for the purpose of erecting public buildings. Being more ground than would be required for the buildings proper, the appropriation resolution and subsequent proceedings used the following language, “for parks and public building purposes,” etc., it being intended that the ground around' the buildings should be kept as incidental to the buildings, .although not to be built upon. Plaintiff claimed that this language made the proceedings involve more than one subject, and therefore illegal under the statute. The .resolution did not specify the estate to be taken and the plaintiff urged this as an error, but defendant claimed that under the present statute, which provides that an estate in fee shall be taken unless some other estate is asked, the village was entitled-to the fee.
    No certificate of the clerk -of the corporation was filed showing the money in the treasury for the appropriation. Plaintiff insisted that this also was an error. Plaintiff also claimed that the village had no right to appropriate the land, because it was already used for public purposes and was in fact public property.
    The circuit court found all of plaintiff’s objections not well founded, and that the village had the right to appropriate the land. This judgment of the circuit court was affirmed by the Supreme Court.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.

       Affirmed by the Supreme Court without report, 79 Ohio State, ——,

   We think the Village of Miamisburg has the power to appropriate thé cemetery in question for public purposes. It has not been in “use” for forty years. The right of- eminent domain is sovereign, and all private and corporate realty is subject to it, except that where the right has already been exercised, and the 'property continues ip the,use for which it .was conveyed or appropriated, it can not again be taken for a different or inconsistent purpose. Cemetery of Spring Grove v. Cin. Ry., 7 W. L. J., 251.

- In this case it appearing that interments were- made on payment of a fee, no title to the ground being granted to individuals, the only rights acquired by the survivors were to have the bodies of their dead remain long enough for thorough decomposition, and removed to another burying ground, when the property should be used for secular purposes. Windt v. German Reformed Church, 4 Sand. Chan. Rep., 502.

It did not render the ordinance invalid to state several harmonious purposes for which the property was to be used. Indeed it was the. only practicable way. Should several'ordinances be passed and several actions brought to condemn different parts of the same tract? That would complicate the situation, require an unnecessary multiplicity of suits and largely increased costs for no good reason.

The necessity for the appropriation can not be questioned except for fraud and collusion.

The' Burns law does not apply and could not be made to apply in advance of any knowledge as to what the premises would cost.

Nor was it necessary to declare the estate or interest to be acquired; for a fee simple is presumed unless a lesser estate is mentioned.

Put we think the trustees of the churches should have been individually named as such. To generally designate parties to a suit as “trustees” of a. church without giving their names leaves the identification of the parties wholly to the determination of the officer 'serving the process; and there is no means of testing the correctness of the service by comparison with the petition.

Opportunity will' be afforded, however, .to correct the condemnation proceedings' in that respect, so .as to bring the proper parties into court.

The case therefore will be continued for that purpose.


text:
    RECOVERY FOR. WRONGFUL DEATH OF A MARKET WOMAN.
    Circuit Court of Hamilton County.
    Cincinnati Traction Co. v. Fred Kettler, Administrator of Louisa Rechmann.
    Decided, December 19, 1908.

      Bill of Exceptions — Failure to Attach Letters of Administration — Negligence Where Electric Oar Stmclc Marlcet Wugon — Improper Manner of Introducing Evidence — Damages for Wrongful Death.

    1. Failure to attach letters of administration to a bill of exceptions does not render the bill incomplete, where the administrator testified as to his appointment and to his acting as administrator, and no objection was taken thereto.
    2. Statements by counsel without objection, as to facts contained in a pamphlet not offered in evidence, is not the proper way to introduce evidence, but in this case was not prejudicial.
    3. For the wrongful death of a widow fifty-seven years of age, engaged in market gardening, whose, income with, the aid of two sons and one daughter amounted to only $500 a year, a judgment' of $2,000 is liberal compensation to the children for their loss.

      Joseph Wilby, for plaintiff in error.

      Iloffman, Bode & LeBlond, contra.

      A Cólerain avenue car, descending a grade in Cincinnati came up behind a truck wagon which was .being driven by the decedent. The wagon was shoved along for 100 feet or more, when the intestate was thrown off and killed. Her administrator recovered a judgment below for $3,000.
    Swing, P. J.; G-ifken, J., and Smith, J., concur.
   We think the bill of exceptions contains all the evidence offered by the parties on the trial of the case. It is true that the letters of administration were' offered in evidence and are not attached, but the witness testified that he was appointed administrator by the probate court and was there acting as such, and no exception was taken to the competency of this evidence, and it is further shown that the letters introduced added nothing to what had been shown, and that in fact the letters of administration showed the appointment of Kettler by the probate court.

As to the omission to attach the almanac to the bill, it does not appear to have been introduced, but without objection counsel was permitted to state what it contained as to a particular matter. -This was not a proper way to introduce evidence, but it was done and is not prejudicial.

The jury had a right to conclude from the evidence that Mrs. Rechmann was driving her wagon on the morning in question on the track of the company in the street of the city; that the car of the company approached the wagon from the rear; that the wagon was in plain view of the motorman when he was more than two hundred feet away; .that he did not sound his gong, nor slacken his speed until the car struck the wagon and killed Mrs. Rechmann, and that there was nothing to show that he could not have sounded his gong or stopped his car so as-to have avoided the injury; that the collision was caused by the company, to which Mrs. Rechmann did not contribute.

The verdict was for $3,000. Mrs. Rechmann was 57 years old at the time of the killing. She was a market gardener and stood in Sixth street market. She had raised a family and her husband had died some three years before. The estate inventoried some $6,500. It was in evidence that with the help of two sons and one daughter she had made about $500 per1 year, the sons doing the garden work, the daughter the household work and she managing the garden and marketing the product. It seems to us that the judgment is excessive; her earning power was not great; it must soon cease altogether, and instead of supporting her children they would before Tong have to support her. We think $2,000 would be a most liberal estimate to be placed on the pecuniary loss to the children, and a remittitur should be made to this extent.


text:
    JURISDICTION OF POLICE JUSTICES.
    Circuit Court of Hamilton County.
    In the Matter of Habeas Corpus for Charles Derrick.
    Decided, January 25, 1909.

      Sunday law — Prosecution for Violating — Police Justices — Appointed Under Section 1588-88.'ia — Constitutional Law — Villages.
    1. A police justice of a village, appointed by virtue of authority conferred by Section 1536-884», has under the present statutes of Ohio the same jurisdiction as is conferred upon mayors of such corporations.
    2. The statute bestowing this jurisdiction the court believes to be unconstitutional, but inasmuch as the question of its constitutionality ca'n not be raised in a collateral proceeding, the police justice in this case is treated as a de facto officer whose ■ acts are valid as between the public and third persons.

      Amos Foster, Henry G. Frost and Albert H. Morrill, for the writ.

      ‘Edwards Ritchie and Jas. E. Robinson, contra,
    Smith, J., Swing, P. J., and Giffbn, J., concur.
   The agreed statement of facts sets out that on May 29, 1908, Edward Woodruff, the police justice of the village of Wyoming (appointed under Section 1536-884»,-old Section 1831), caused the arrest of the said Derrick for an alleged violation of the Sunday common labor law, which is claimed to have occurred at the defendant’s place of business in the city of Cincinnati, at least a distance of ten miles from the boundary of the village of Wyoming; whereupon this application is made to the" court for the release of said Derrick.

In support of this application it is urged—

First. That the right of the police justice .to try the defendant, Derrick, does not exist, because the offense for which he was arrested was not committed in the village of Wyoming, in which the police justice was .appointed, but was committed in the city of Cincinnati, ten miles distant from the boundary line of said village, for the reason that said police justice has jurisdiction only over violations of .ordinances of his .own village.

Second. That the Legislature having repealed Section 1536-884® without repealing Section 1536-885, this left the latter section without any full force and effect and that the result of the repeal of the main statute was to repeal the following statute with which it was connected; and when again the Legislature re-enacted Section 1536-884® without specifically re-enacting Section 1536-885, this brought upon the statute books only the one Section 1536-884®, the latter section not having been expressly re-enacted.

Third. That Section 1536-884® is unconstitutional for the reason that it contravenes Article IV, Sections 10 and 15 of the Constitution.

• We are .of the opinion and agree with counsel for the applicant that the right of the police justice .to try the defendant does not exist under Section 1536-884®, unless Section 1536-885 is in force, as the offense was not committed against an ordinance of the village of Wyoming and the jurisdiction of the justice could not be extended to the limits of the county. The words, ! ‘ in all such cases,” contained in said law must refer to the words, “violation of ordinances.” We think this view is sustained by a proper construction of the ease of Morgan v. Tighe, 12 Ct. Ct., 719.

This being so, is Section 1536-885 in full force and effect, thus making the jurisdiction of the police justice in such matters the same as the mayor of a village and consequently co-extensive with the county as provided in Section 1536-876?

An examination discloses that the old Sections 1831 and 1832 were passed as one (69 O. L., 192), and later in the revision of statutes were separated and classified as two distinct sections as Nos. 1831 and 1832. That the first was repealed (96 O. L., 105) and subsequently re-enacted (98 O. L., 159), thus leaving upon the statute book Section 1832. It is clear that having repealed Section 1831, Section 1832 was of no force or effect, as the office to which it related did not exist, 'but afterwards when Section 1831 was re-enacted, Section 1832 still being in existence, it was not necessary to re-enact the latter as the force and effect of the statute was at once restored, and its application to Section 1831 was again available.

While it is true that a statute containing a clause repealing all other laws within its purview operates to repeal all other legislation relating to the same subject, yet we think that where the act repeals expressly a particular act or statute, this shows the intention of the Legislature to allow the remaining acts or statutes to stand although the same might be inoperative.

The claim that the law is unconstitutional we believe is well taken, but we are of the opinion that this question can not be raised in a collateral proceeding such as this.

It would seem that the police justice is an officer de facto at least and the acts of such an officer performed before the qnconstitutionality of .the law has been judicially determined are valid as- respects the public and third persons as the acts of an officer de facto. State v. Gardner, 54 O. S., 24; Ex Parte Strang, 21 O. S., 610.

The discharge of the defendant is denied.