author: WINCH, J.

text:
    MUNICIPAL CORPORATIONS.
    [Lorain (8th) Circuit Court,
    1910.]
    Marvin, Winch and Henry, JJ.
    Lake Shore & M. S. Ry. v. Elyria (City).
    Municipalities Cannot Contract to Supply Water to Railroad Company at Special Rate and Given Time.
    The power to “assess and collect * * * water rent” prescribed by Gen. Code 3958, means power to fix general rates to be assessed equally upon all water takers of a given class; the director is not authorized by this section to bind a municipality for a period of years by special contracts with individual takers.
    [Syllabus approved by the court.]
    Error to common pleas court. •
    This is an action by which the city seeks to recover from the Lake Shore & Michigan Southern Railway Co. for water used by the railway company in its watering tanks and at the depot for flushing closets, etc.
    A petition and answer were filed and then the case was submitted to the court upon an agreed statement of facts, in whieh it is agreed:
    “That the plaintiff is a municipal corporation and that the defendant is a railway corporation operating its railway through the city of Elyria, Ohio.
    “That said city owns and operates a system of waterworks which is under the charge and control of the board of public-service, according to law.
    ‘ ‘ That on May 18, 1905, the board of public service of said "city entered into the agreement which is marked Exhibit A and attached to the defendant’s answer herein.”
    This contract reads as follows:
    “This agreement, made May 18, 1905, by and between the city of Elyria, by its board of public service, party of the first part, and the Lake Shore & Michigan Southern Railway Company, party of the'second part, WITNESSETH:-

      “That first party does hereby agree to furnish to second party, at such points on first party’s water pipe lines as second party may choose to take the same, such quantities of water as second party may need for its use in said city, all water furnished to be metered and to be furnished at the rate of six cents per thousand gallons, bills to be rendered monthly, second party being privileged to read or inspect meters jointly with first party.
    “That the second party agrees to take said water to the amount of at least fifty million gallons per year, a-nd to pay first party for the same on the rendition of monthly bills therefor at the rate of six cents per thousand gallons.
    “That this agreement shall take effect January 1, 1905, and continue for the period of five years, but it is understood and agreed that if at any time the first party shall fail to furnish second party with a sufficient supply of water and of a quality satisfactory for its purposes, second party may terminate this contract.”
    “That said contract was signed by the members of the board of public service and was approved by the solicitor of said city and all the formalities required by law relating to contracts made with municipal corporations were complied with; but the said contract was not approved by the council of said city, nor authorized by said council.
    “That in pursuance of said contract plaintiff began the furnishing of water and the defendant the using thereof under said contract, and that said defendant complied with the terms of said contract, and that the defendant paid and the city accepted pay for water furnished under said contract according to the terms of said contract until shortly prior to October 1, 1908, when the plaintiff notified the defendant that beginning October 1, 1908, it would not furnish water to the defendant for the price named in said contract, but would charge defendant a higher rate for water thereafter furnished.
    “That the plaintiff continued to furnish water and the defendant used the amount of water claimed in plaintiff’s petition, but refused to pay therefor except at the price named in said contract, which defendant was willing to do, but which plaintiff refused to accept.
    “It is further agreed that if the court shall find that said contract is not binding' on the city, then the court shall render judgment against the defendant for the amount claimed in the petition, but if the court finds that said contract is binding upon the plaintiff, then the defendant shall pay for said amount of water consumed at the rate of six cents per one thousand gallons, and in the event the petition shall be dismissed at the costs of the plaintiff.”

      JS. G., H. C. & T. G. Johnson, for plaintiff in error.

      H. A. Pounds, city solicitor, for defendant in error:
    This is a contract with a municipal corporation, and the law with reference to the rights of the parties under those .circumstances is well stated in Schaaf v. Railway, 65 Ohio St. 219 [64 N. E. Rep. 145].
    While there is implied municipal liability at common law, the statutes of this state provide the manner in which contracts, agreements, obligations and appropriations shall be made and entered into by municipalities, and they cannot be entered into otherwise than as provided by statute.
    There has been no implied municipal liability in matters ex contractu in this state since the passage of the act of April 8, 1876 (73 O. L. 125), part of which'now. forms R. S. 1693.
    To state a good cause of action against a municipality in matters ex contractu, the petition must declare upon a contract, agreement, obligation, or appropriation made and entered into according to statute. A petition on an account merely, or quantum meruit, in such cases is not sufficient.
    ‘Persons dealing with officers of municipalities must ascertain for themselves and at their own peril that the provisions of the statutes applicable to the making of the contract, agreement, obligation or appropriation have been complied with.-
   WINCH, J.

The sole question in this ease is whether the board of public service of the city of Elyria had power to enter into a contract with the railroad company to supply it with water at a given rate for five years, the company agreeing to take and pay for not less than a stipulated quantity of water each year during the continuance of the contract.

Two sections of the statutes require consideration in connection with this question. R. S. 2425 (Gen. Code 3973) provides:

“Any city or village which has established or Ihereafter establishes waterworks, may enter into a contract with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations; and any city or village which has waterworks, is hereby authorized and empowered to dispose of any surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the waterworks, or public works, and approved by the council of such city or village.” .

Manifestly the contract here involved, if it be considered as an agreement concerning the disposition of surplus water, cannot be sustained, because it was not approved by the city council.

The other section is R. S. 2411 (Gen. Code 3958), which reads as follows:

“For the purpose of paying the expenses of conducting and managing the waterworks, * * * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount in such manner as they may deem most equitable upon all tenements and premises supplied with water.”

The power here granted to “assess and collect from time to time a water rent,” must be taken as meaning the power to fix general rates which shall be assessed equally upon all water takers of a given class, and we so hold. The board is not here authorized to tie its hands or that of the city for a period of years by special contracts entered into with individual takers. Such contracts are authorized under certain circumstances by the other section referred to. Having legislated particularly upon tbe subject, tbe general power granted by tbe legislature should not be amplified by judicial interpretation, “expressio unius est exclusio alterius.”

The judgment of the common pleas court being in accordance with tbe views here expressed, it is affirmed.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: ROCKEL, J.

license: Public Domain

text:
    DAMAGES — FALSE,IMPRISONMENT.
    [Franklin (2nd) Circuit Court,
    January 17, 1911.]
    Jones, Allread and Rockel, JJ.
    (Judge Jones of the fourth circuit sitting in place of Judge Dustin.)
    George M. Williams et al. v. V. G. Morris.
    1. Deputy Sheriff may Arrest on View Persons Found Violating Fish and Game Laws.
    Notwithstanding that the prosecution for violation of Sec. 77 of act 99 O. L. 380, Gen. Code 12525 (of the fish and game act), shall be instituted only upon complaint of the person or his agent upon whose lands, or rights in lands or waters, the trespass has been committed, a deputy sheriff or other person authorized by 'law to make arrests may, on view, arrest persons found violating such act and not be liable for false arrest.
    2. Whether Officer Secured Warrant in Reasonable Time is Fact for Determination of Jury in False Imprisonment.
    Where an arrest is made without warrant, the officer should in a reasonably short period of time secure such warrant and in the interval should only use such means and methods of detaining the person so arrested as is reasonably proper and necessary under the surrounding circumstances. Whether or not the officer has so acted is a question of fact for the jury.
    8. Arresting Officer not Liable for False Imprisonment on Defective Warrant Set Aside on Error.
    Where such an arrest is made and a warrant is afterwards sworn out, which is defective and the person arrested is bound over to the grand jury by a justice of the peace upon such defective warrant and on proceedings in error being taken from such justice’s order the same is set aside, the arresting officer is not liable for false imprisonment, unless he has detained the arrested person an unreasonable length of time and in an improper manner.

      4. Unconstituxionality of Statute does not Make Arrest Prior to so Finding False Imprisonment.
    An arresting officer is not liable for false arrest or imprisonment where he acts properly within the prescribed limits of. an act of the legislature, although such act may afterwards be declared unconstitutional, and void. Until decided otherwise, the legislature is presumed to have only passed constitutional laws.
    5. Counsel Fees in False Imprisonment Case Allowable Only when Facts Justify Exemplary Damages.
    While, in an action for false arrest or imprisonment, counsel fees may be allowed as compensatory damages, yet they cannot be allowed as such, unless the evidence is such as would justify the jury in allowing exemplary or punitive damages.
    6. Counsel Fees Involved in Setting Aside Defective Warrant not Allowable if Arrest be not Illegal.
    Where the arrest is not illegal and there is no false imprisonment, it is error to instruct the jury in an action of false arrest and imprisonment, that they may allow as compensatory damages an attorney’s fee which was incurred in setting aside the proceedings of a justice of the peace had on a defective warrant.
    [Syllabus by the court.]
    Error to common pleas court.

      G. M. Carpenter, for plaintiff in error.

      J. C. Nicholson, for defendant in error.
   ROCKEL, J.

The action in this case, according to the plaintiff’s petition, is one of false arrest and imprisonment. The petition alleged, among other things, that the defendants maliciously assaulted plaintiff, shot at him, threatened to kill him and by force unlawfully compelled him to go with them and imprisoned him in a corn crib and there detained him against his will, depriving him of his liberty from about 8:30 o’clock P. M. on June 12, 1908, until about 5 A. M. June 13, and refusing him food and water and other matter during said time, and that on June 13 said defendants maliciously, unlawfully, and with force compelled the plaintiff to go with them to a magistrate and there to answer to a pretended charge of trespassing, all without warrant and without authority of law.

That the plaintiff was afterward, according lo an order of the court of common pleas, dismissed, or at least discharged from the action and that the plaintiff was compelled to expend the sum of $25 in counsel fees in attaining his release and discharge.

The defendants for answer admit in substance that the -defendants did detain him a certain length of time, but that the plaintiff was then trespassing upon defendant’s land and that the alleged arrest was made by a duly authorised deputy sheriff and that the arrest-was made on view and that the plaintiff was taken, as early as convenient on the following morning, to a justice of the peace, where an affidavit was filed and a warrant was duly issued by the justice and the plaintiff pled guilty, and the justice imposed a fine and that it was this action of the justice of the peace in imposing such fine that was set aside by proceedings in error, and denies the other allegations.

The case was tried to a jury and a verdict of $25 given for plaintiff. Motion was made for a new trial by both the plaintiff and defendants below, which motions were overruled and each of the parties excepted thereto. The charge of the court was excepted to by both of the parties and error is principally predicated upon the law as laid down by the court.

The defendant in error, while not specifically pointing out in his brief, the matters objected to, takes the position for his ground for setting aside the judgment below, that the court below took the view throughout the trial and in. its charge to the jury that the arrest in the first place was legal, and left the jury for determination from the evidence, the questions as to whether or not the accused had been detained an unreasonable length of time before being taken to the magistrate, and whether or not he had been detained in an improper place, and whether or not he had suffered at the hands of his captors improper treatment and indignities.

■ And defendant in error admits that if the view taken by the court below was correct that there was no prejudicial error. The facts show that Mr. Williams, one of the plaintiffs in error, was the owner of a tract, I believe about 130 acres, of land several miles from Columbus; that the .other plaintiff in error, Mr. Rutter, was a duly appointed and acting deputy sheriff. On Mr. Williams’ farm there was an artificial lake less than ten miles in length, into which had been introduced some fish, and it was such a lake that a person trespassing thereon for the purpose of fishing would be guilty of an offense under the statutes of Ohio. (99 O. L. 380, Sec. 76.)

That the defendant in error, with two others, came out to this lake about 8:30 o ’clock for the purpose of fishing, and between that hour and 10:30 o’clock they were caught in the act of fishing by Mr. Rutter and by him placed under arrest, and that afterwards they were taken up to the house of Mr. Williams, and there detained in a corn crib until the next morning, when they were taken before a* justice of the peace, where Mr. Rutter made out an affidavit for the violation of this section, and the defendant in error and his two companions pled guilty and were fined $10 a piece and given thirty days in whi'ch to pay the same, or give bond in the sum of $75.

Under section 77, 99 O. L. 380, Gen. Code 12526, it is provided:

“Prosecutions for a violation of the provisions of such section shall be instituted only upon complaint of the person or his agent upon whose land or rights in land or waters the trespass has been committed.”

In making out the affidavit for the warrant before the justice of the peace, the deputy sheriff did not state therein that he was the authorized agent of Mr. Williams, but merely signed his name to the affidavit. .These proceedings before the justice of the peace were taken up to the court of common pleas and reversed for the reason that the affidavit did not show an offense, that is, as this prosecution could only be instituted by Mr. Williams or his authorized agent and the affidavit did not show that fact, that, therefore, the proceedings before the justice of the peace were erroneous.

However, the warrant on its face was regular and the evidence shows that Mr. Rutter was in fact the authorized agent of Mr. Williams, when this affidavit was made and that he was duly authorized to make a proper affidavit, and that he was also the duly authorized agent for Mr. Williams at the time that he made the arrest.

The defendant in error contends that because no valid complaint had been filed prior to the arrest, that all the proceedings were illegal.

The court, however, tried the case and took the opposite view that Mr. Rutter as deputy sheriff duly authorized by Mr. Williams might on view lawfully make the arrest even though no complaint had before been filed or that the complaint thereafter filed was not valid in law. To hold that a person found violating this law could not be detained or arrested, without first having the owner file an affidavit, would in many instances defeat its enforcement entirely. Such persons are not likely to kindly wait for these preliminaries, nor are they particular about disclosing their identity, and the return on the officer’s warrant would generally be “not found.”

We think that the court was right in this view, that it is not necessary under this statute to have a complaint made before an arrest can legally be made, especially when the arresting officer makes the arrest on view. If an officer should arrest on view and thereafter the owner of the land would refuse to institute proceedings, a different question would arise, but in this case the officer had authority from the owner at the time the arrest was made and had full authority to institute proceedings in this case. So the fact that the court of common pleas after-wards set these proceedings of the justice aside would not, in our view, make the arrest illegal.

In fact, the court charged the jury in this case that, “The fact that the plaintiff was subsequently released and discharged from custody by order of the court of common pleas of this county, cuts little or no figure in this case.”

In this we think the court was right.

If the arrest in the beginning was legal, the only question which was really iia the case was whether or not the plaintiff below was unlawfuly detained or illegally imprisoned from the time that the arrest was actually made until the affidavit was filed before the justice of the peace, and this question was submitted to the jury. Even if the length of time of the detention was not sufficient to make it unlawful, yet whether the detention itself was conducted in a proper or improper manner was certainly a question of fact for the jury to decide.

Defendant in error contends that the statute under which the arrest was made was unconstitutional and, therefore, all proceedings were void ab initio, and that no protection is afforded to these plaintiffs in error, even though they acted in a manner in which the law would have protected them were it constitutional.

We do not think it is necessary to pass upon the constitutionality of the law in this action, for we are satisfied that these plaintiffs in error were not bound to act or not act under the possibility that the law thereafter might be declared unconstitutional. To otherwise hold would be to take away a safeguard from persons acting under such a law which could not be otherwise than unwise and unjust. A law is presumed to be constitutional until the courts have declared it otherwise. The legislature is presumed only to have passed constitutional laws.

Courts should protect officers and others in the administration of the law as it appears in the statutes, promulgated by proper authority, and so long as they do not transcend the authority given by such statute, their acts should be upheld and they should not be mulcted in damage merely because the law is afterwards declared unconstitutional. The verdict of the jury was in favor of the defendant in error, and we cannot say that even if the law were so construed, as defendant in error contends, that he could have received or have been entitled to a larger verdict.

We, therefore, find that there is no error prejudicial to the defendant in error in this case.

The plaintiff in error raises a question upon the refusal of the court to allow him to introduce certain testimony, and also questions of law arising'in the charge of the court. On pages 86, 87, 88, 89 of the record, Mr. Brown was examined in chief by counsel for defendant, and after it was shown where he lived, he was inquired of as to his having seen three persons going towards Mr. Williams’ residence, and the following as appears from the record:

“Q. What time of night was that.?
“Mr. Nicholson: I object to that unless they identify the parties.
“The Court: Do you expect to identify these people?
“Mr. Carpenter: Only by the circumstances is all. There is not much probability that there was two lots of three people going down there at that time of night.
“The Court:' Before he answers that question, you may inquire with regard to any description of the men.
“Q. Are you able to give any description of the men? A. Oh, no, — no way at all of knowing whether they were, — I ■couldn’t identify them by no means.
“The Court: Tell whether they were old or young men.
“Witness: They had the appearance of young men.
“Q. (By Mr. Carpenter.) Where had you been during that evening? A. We were sitting out on the porch. We had company and were sitting out on the front porch.
‘ ‘ Q. How long had you been sitting out there ? A. Probably all evening, — sitting there in our -shirt sleeves, talking. I can tell you that.
“Q. How early in the evening do you say you went out there? A. We probably went out thereafter supper; we generally eat our supper about seven or eight o’clock in'the summertime.
“ Q. Do you mean sun time ? A. Yes. We go by sun time •out there.
“Q. Now, then, what would you' say as to whether you were out there from that time until the time you saw these parties? A. Oh, yes, sir. I was out there.
‘ ‘ Q. Had you seen anything else; that is, a group of three passing there, carrying fishing poles? A. I had not.
“Q. ; Did you see another group of three later than that passing there, carrying fishing poles, — I mean later than the time you saw,— ? A. I only saw the one gang of three. That is all I remember of seeing.
“Q. (By the Court.) How long did you remain on your porch in view of'the highway that night? A. Oh, it was probably — just after supper we went out there, — I suppose probably eight o’clock, something like that, — . We stayed there until ten or probably later. We had company that afternoon and we ■were sitting out on the front porch.
“Mr. Nicholson: I cannot see where even the time would be material, if the court please. These boys admit they went down that way and that they were there. . They say about eight-thirty and Rutter says about ten. I cannot see the materiality of this testimony.
“Q. (By Mr. Carpenter.) What time was it that you saw these three parties passing along with fishing poles?
“Question objected to by the plaintiff; objection sustained; exception by the defendants.
“Mr. Carpenter: Let the record show that we expect the witness, if permitted to answer the question, to say that it was between nine and ten o ’clock that night.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.
‘ ‘ Q. Mr. Brown, what, if anything, did you do with reference to this matter after you saw them pass your house south?
“Question objected to by the plaintiff; objéction sustained; exception by the defendants.
“Mr. Carpenter: Let the record show that if the witness, were permitted to answer the question, he would testify that he called up Mr. Williams’ residence and talked with Mr. Rutter.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.
“Q. What time was it that you talked to Mr. Rutter?
“Question objected to by the plaintiff; objection sustained;: exception by the defendants.
“Mr. Carpenter: Let the record show that if the witness, were permitted to answer the question, he would say that it was after ten o’clock when he got them on the ’phone.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.”

Mr. Rutter, the man making the arrest, had testified that after he had retired the telephone began to ring, and it continued for some time. He then rose and a friend told him over the ’phone that some fellows had gone down his way with fish poles, or something of that kind, and that thereupon he got his. gun and went down to the lake and made the arrest. As the length of time which the defendant in error was confined in the com crib, between the time of the arrest and the filing of the affidavit, was a material element in the determination by the jury whether or not the detention was unlawful, we think that it was prejudicial error to exclude the testimony of Mr. Brown as to when he called up Mr. Rutter.

Mr. Nicholson, counsel for plaintiff below, admits the identity of these boys, as will be seen from the record above quoted. Therefore, it seems to us that it was quite material, not only as showing the actual time that this arrest was mdde, but in corroboration of the testimony of the defendants below as to the time that the arrest actually was made, and in opposition to the testimony of plaintiff below and his companions upon the same matter. For, as before said, the real question of issue in this case, as viewed by the court below, was whether or not such detention was unlawful and the length of time of such detention was a material element in considering whether it was in fact unlawful.

In the instructions of the court to the jury upon the question of what damage should be allowed to the defendant, and the character of the same, the court charged as follows:

"If you find for the plaintiff, the question of damages then arises, and you should award siich damages, as will compensate the plaintiff for thes injury which he sustained, unless you find that the acts of the defendants were malicious. Then you may add what is termed in law ‘exemplary damages,’ or ‘smart money. ’ If you find for the plaintiff, as I have said, the plaintiff is entitled to compensatory damages, although the defendant may have acted in good faith and in the belief that they were discharging their duties in the premises. But if you find that the defendants arrested and imprisoned the plaintiff maliciously, then the defendants are liable to the plaintiff for compensatory damages and you may, if you see proper, also assess further damages as smart money, that is, exemplary damages. By a malicious act is meant an act that is wanton and wilful, without regard to the rights of others. • That is an act that is malicious. You will determine whether the defendants acted maliciously. If they acted maliciously you may add smart money to the actual damages which you find this plaintiff to have sustained, smart money is given in the way of pecuniary punishment for malicious acts. In allowing for compensatory damages you should allow such damages as will fully and reasonably compensate him for the injuries which he has sustained. The elements, for which compensatory damages may be allowed include pain and suffering, if any, mental and physical, the loss of time, if any, in consequence of such false imprisonment, and injury, if any, to the reputation or social position as well as for shame and mortification caused by false imprisonment, and also reasonable attorney’s fees to the plaintiff for services of the attorney in prosecution. The plaintiff claims $25 in obtaining his release. You may consider that also. And if you find that the defendants not only falsely, but that they also maliciously imprisoned the plaintiff, then you may allow the plaintiff, in addition to the ¿compensatory damages such further sum by way of exemplary damages as you in your judgment may think just and proper in view of all the facts and circumstances.”

We think that there are two serious objections to this charge, as given by the court to the jury. The first is that part of it which refers to what constitutes or may be allowed under the head of compensatory damages.

The court correctly stated that if the detention was unlawful, that if it was unreasonable, the defendants are liable and they were so, even though they might have acted in good faith, and that if the jury found that the detention was unlawful, they should allow the plaintiff below compensatory damages, but the court erred when the jury was instructed that they might consider as a part of such compensatory damages, reasonable attorney fees to the plaintiff for services of the attorney in prosecution.

In the recent ease of United Power Co. v. Matheny, 81 Ohio St. 204, 210 [90 N. E. Rep. 154], which was a case brought by a passenger to recover damages for an unlawful and forcible ejectment from a street car, and in which a very much similar charge was given, the court says:

“Again, the court proceeded to correctly define the circumstances under which, if found by the jury, they might award to the plaintiff not only compensatory damages, but in addition thereto exemplary or punitive damages. The court even cautioned the jury that they should not award exemplary damages, unless they should find that the expulsion of the plaintiff from the car “was done not only without justification, but in a malicious and insulting manner.” The court then proceeded to say, ‘ Otherwise, you should only allow such an amount as would fairly compensate him. * * * And as a matter of compensation you would have a right to allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company. ’ In this last sentence, we think that the court fell into a serious error. * * *
“But, although we have made a somewhat extended search we are not aware of any well considered case in which it was held that, in the absence of statute or express agreement, at-, tomey’s fees might be included as part of the damages where compensatory damages only could be allowed. There are, however, numerous cases in wdiich the contrary doctrine has been distinctly announced and applied. * * *
“The court below properly said to the jury that if they should find that the ejectment of plaintiff from the car was not justified, but was not done with malice or in an insulting manner, they could award compensatory damages only; but the court erred in instructing the jury, in that connection, that, in case they should so find, as a matter of compensation they might allow to the plaintiff a reasonable amount for services of his counsel. ’ ’

“While counsel fees in bringing the action in the court below might be a proper matter to consider in allowing damages, even though it is sometimes done under the theory of compensatory damages to the plaintiff who brings the action, it can only be considered and allowed in cases where the facts found by the jury are such as would justify them in allowing punitive or exemplary damages designated in the ease at bar as “smart money.” The other matter in this charge which seems to us to be erroneous, is that in allowing compensatory damages the jury might consider that $25 which was paid to the counsel in having the proceedings of the justice of the peace set aside. Under the facts as .developed in this case, we do not think that should have submitted to the jury. The arrest in this case was lawful and the warrant issued was legal on its face. There was no false arrest, neither was there a false imprisonment after the proceedings were begun in the office of the justice of the peace.

In the case at bar, it is clear that under the testimony if the plaintiffs in error would have directly taken the defendant in error to the justice of the peace and there filed an affidavit, and a warrant was then issued, that the plaintiff below would have had no cause of action. There was no imprisonment, or at least no false imprisonment after the affidavit was filed and the warrant issued.

The justice of the peace had jurisdiction and did pass upon the affidavit; the mere fact that his judgment was erroneous would not make the plaintiffs liable. The testimony clearly shows that the justice of the peace gave the plaintiff below thirty days’ time in which to pay the fine or give bond, and in the meantime let him go on his recognizance, and that the deputy sheriff hauled him back to the city. So we are at a loss to know upon what principle the defendants below could be held liable for attorney fees that were incurred in setting aside the judgment of the justice of the peace.

If these attorney fees had been incurred in an action brought to directly release the plaintiff below from imprisonment, that is from a false imprisonment, then it might have. been proper; but in the ease at bar there was no false imprisonment, actual or constructive, resulting from the action of the justice of the peace.

In an action for malicious prosecution, then such attorney fees, under a proper charge of the court, could be considered by the jury in making up their award of damages, but we think that under the circumstances of this ease, under a charge of false arrest and imprisonment, that such services of an attorney could not be considered as an element of damage.

The plaintiff in error complains further of this charge of the court wherein the jury is instructed that,

“Rutter, agent of the plaintiff, is justified for a length of time only reasonably required to take the detained, person, that is the plaintiff, to the proper officer.”

This is admitted to be correct as an abstract proposition of law, but is claimed to be misleading. But we think, considered with other matters in the charge, that it did not mislead the jury.

The court se^ms to have submitted this matter fully and clearly to the jury and that the defendants below would not be liable unless Rutter did detain the plaintiff for an unreasonable time, and in an unlawful manner.

Judgment of the court below, for error in the rejection of testimony offered by defendant below, and erroneous and prejudicial statement of the law in his charge to the jury, will be reversed and the case remanded to that court for further proceedings.

Jones and Allread, JJ., concur.


author: METCALFE, J.

text:
    INTOXICATING LIQUORS.
    [Trumbull (7th) Circuit Court,
    October Term, 1910.]
    Laubie, Metcalf and Taggart, JJ.
    [Judge Taggart of the fifth circuit sitting in place of Judge Fillius.]
    State of Ohio v. John A. Fuller.
    Actual Knowledge by Keeper of Premises of Unlawful Sales of Liquor thereon by Person Placed in Charge not Necessary to Sustain Conviction.
    In the prosecution under Gen. Code 13225, for keeping a place where intoxicating liquors are sold contrary to the provisions thereof, it is not necessary to prove actual knowledge on the part of the keeper of the premises of unlawful sales of liquor made thereon where such sales were made by one placed by him in charge of the premises.
    [Syllabus by , the court.]

      Error to common pleas court.
   METCALFE, J.

The defendant, John A. Fuller, was charged' before a magistrate with the offense of keeping a place for the sale of intoxicating liquors contrary to the provisions of what is commonLy known as the Eose county local option law. He was convicted before the magistrate. The judgment of the magistrate was reversed by the common pleas court on error and error is prosecuted in this court to that judgment of reversal. The journal entry in the common pleas court does not state the ground upon which the reversal was made, so we assume generally that it was either upon the weight of the evidence or upon the law as applied by that court to the case.

Mr. Fuller was the keeper of the Park Hotel in Warren at the time this charge was made. There is a room in the hotel which was formerly used as the barroom and at the time the alleged illegal sales were made it was used as a pool room and for the sale of soft drinks, and was in charge of a man named Goldie. Two detectives testify in the case that they purchased liquor of Goldie upon several different occasions, and that the liquor which they purchased was drank upon the premises by them and others. We think from the evidence that the magistrate was fully warranted in finding that the sales were made by Goldie at the time and place charged, but we are not prepared to say that the evidence shows beyond a reasonable doubt that Mr. Fuller had knowledge of those sales. The conclusion we have reached, however, is that it is immaterial whether or not he had actual knowledge of sales made on the premises by the person placed by him in charge thereof, for we are convinced that it is the intention of the law to charge the keeper of the premises where unlawful sales of liquor are made by a person placed in charge thereof with knowledge of the sale, and to make him responsible therefor.

Section 2 of the “Eose Law” (Gen. Code 13225) contains the following provision: “From and after thirty days from the date of holding said election it shall be unlawful for any person, personally or by agenfy within the limits of such county, to sell, furnish or give away intoxicating liquors to be used as a beverage, pr to keep a place where such liquors are kept for sale, given away or furnished for beverage purposes and whoever from and after the thirty days aforesaid,'violates any of the provisions of this act or in any manner directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage, or keeps or uses a place, structure.or vehicle, either permanent or transient for such selling, furnishing or giving away or in which or from which intoxicating liquors are sold, given away or furnished or otherwise dealt in as aforesaid, shall be guilty of a misdemeanor.”

It may be doubted whether the words “personally or by agent” are sufficient to charge the defendant with the responsibility- for the acts of .©oldie done without the defendant’s knowledge for the word “agent” in this connection might well refer to one employed for the express purpose of making sales on behalf of his principal. However that may be, the subsequent provision, “Keeps or used a place, structure or vehicle * * * in which or from which intoxicating liquors are sold,” seems to indicate a clear intention on the part of the legislature to place upon the keeper of the place where intoxicating liquors are sold a direct responsibility for the acts of those placed by him in charge thereof. See Huffcut, Agency p. 324, See. 265.

Mr. Fuller was the keeper of the Park Hotel, he put a man in charge of a room therein and in that room intoxicating liquors were sold by the person placed in charge of it, and consequently the defendant is liable under the provisions of Sec. 2. The judgment of the court of common pleas is reversed and that of the magistrate affirmed,

Laubie and Taggart, JJ., concur.


author: SMITH, J.

text:
    CHARGE TO JURY — MASTER AND SERVANT — NEG= LICENCE.
    [Hamilton (1st) Circuit Court,
    March 30, 1908.]
    Giffen, Smith, and Swing, JJ.
    Cincinnati Traction Co. v. John Oberschmid.
    Plaintiff cannot Recover on Preponderance of Evidence Regardless of His Own Contribution Thereto.
    Instructions and charge permitting recovery by plaintiff on a preponderance of evidence, regardless of his own possible negligence and without showing the negligence of defendant as being the proximate cause of plaintiff’s injury, are erroneous.
    Error to common pleas court.

      Kinhead, Bogers & Ellis, for plaintiff in error.

      F. H. Freeriehs, for defendant in error.
   SMITH, J.

The first ground of error urged is that the verdict below is against the weight of the evidence, but upon an examination of the record we do not think this is well taken.

The second ground is that the court erred in giving special charges Nos. 'l and 2.

According to charge No. 1, the sole evidence required to defeat plaintiff’s claim was such as was shown by a “preponderance” of the evidence offered either by the plaintiff or by the defendant, while as a matter of law, if plaintiff’s evidence raised a presumption of negligence that contributed directly to the injury, and this was not removed, then plaintiff would not be entitled to recover. We think without this element being present in the charge, that it was error to give the charge as appears in the record.

Special charge No. 2 is, we think, also erroneous, in that It does not correctly state the rule under which plaintiff could recover; for while the injury to plaintiff might have been due to negligence on the part of defendant, yet the plaintiff himself must be free from negligence, and this is omitted from the charge.

.As given in the record, the charge permits th,e plaintiff t® recover damages even though he was at fault himself, and without the defendant’s negligence being the direct or proximate cause of the injury.

We do not think the objections raised to the portions of the general charge on pages 6 and 8, even if erroneous, are prejudicial to plaintiff in error.

It would have been better perhaps to have stated the matter of the “sudden jerk” of the car differently, but as the charge as a whole fairly sets forth the law of negligence, we find no prejudicial error therein.

Judgment reversed.

Giffen and Swing, JJ., concur.


author: MARVIN, J.

text:
    MUNICIPAL CORPORATIONS — SEWERS.
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    Lakewood (Vil.) v. Catherine P. Swift.
    1. Municipal Liability foe Defective Sewers not Relieved from by Fact of Being Constructed by Tax Funds.
    A municipality is not relieved from liability for damages caused by the flooding of a cellar, resulting from the backing up of sewage in a private drain connected with a defective public sewer, by the fact that such main sewer was constructed at the expense of the corporation and paid for by funds raised by taxation, and not by assessment upon the property benefited.
    2. Evidence of Flooding-of Sanitary and Other Sewers Above Same Outlet Competent to Prove Obstruction in Main Outlet Sewer.
    In an action for damages resulting from the flooding of a sanitary sewer, evidence that property drained by a storm sewer emptying into the same manhole as the sanitary sewer and that other property having drains leading to the sanitary sewer were flooded at the same time is competent as tending to show <an obstruction in the main sanitary sewer below the manhole; but evidence of obstructions in the sewer above plaintiff’s property and of sediment in the main sanitary sewer more than nine months after the flooding complained of is incompetent.
    3. “Unprecedented Rainfall” Qualified by Instruction as to Overflow of Sewers not Prejudicial.
    “Unprecedented” as applied to rainfall overtaxing sewers in fixing the measure of liability of municipal liability for overflowing sewers to the damage of property drained, if unexplained or qualified, would be misleading; but as used in an instruction, “If the sewer * * * was of sufficient capacity to take care of the ordinary flow of water and sewage, including that brought in by the new streets; and the backing up was caused by an unprecedented rainfall, something which could not have been reasonably anticipated” considering conditions in that locality, it is not prejudicial.
    Error to common pleas court.

      E. G. Guthery, city solicitor, for plaintiff in error;
    Permissive use of public sewers, Dermont v. Detroit, 4 Micb. 435; Sheriff v. Oskaloosa, 120 Iowa 442 [94 N. W. Rep. 904] ; Buckley v. Neiu Bedford, 155 Mass. 64 [29 N. E. Rep. 201]; Boll v. Indianapolis, 52 Ind. 547.
    Prevention of the injury, Wilson Co. v. Waterbury, 73 Conn. 416 [47 Atl. Rep. 687] ; Carr v. Northern Liberties, 35 Pa. St. 324 [78 Am. Dec. 342] ; Mills v. Brooklyn, 32 N. Y. 489; Kelley v. Portland, 100 Me. 260'[61. Atl. Rep. 180]; Detroit v. Beckman, 34 Mich. 125 [22 Am. Rep. 507]; Bealafeld v. Verona, 188 Pa. St. 627 [41 Atl. Rep. 651]; Rozell v. Anderson, 91 Inch 591.
    Liability for obstructions in sewers, Zanesville v. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; Arndt v. Cullman, 132 Ala. 540 [31 So. Rep. 478; 90 Am. St. Rep. 922] ; City of Effingham v. Burrells, 77 111. App. 460; Smith v. New York, 66 N. Y. 136; Knostman & Peterson Furniture Co. v. Davenport, 99 Iowa 589 [68 N. W. Rep. 887] ; Row v. Portsmouth, 56 N. H. 291 [22 Am. Rep. 464],
    Injuries resulting from extraordinary or excessive rainfall, Peoria v. Adams, 72 111. App. 662; Allen v. Chippewa Falls, 52 Wis. 430 [9 N. W. Rep. 284; 38 Am. Rep. 748] ; Gulat'h v. Si. Louis, 179 Mo. 38 [77 S. W. Rep. 744] ; Los Angeles Cemetery Assn. v. Los Angeles, 103 Cal. 461 [37 Pac. Rep. 375] ; Helbling v. Cemetery Co. 201 Pa. St. 171 [50 Atl. Rep. 970]; Wright v. Wilmington, 92 N. C. 156.
    Effect of storm on other cellars, Bateman v, Rutland, 70 Yt. 500 [41 Atl. Rep. 500] ; Jamieson v. Railway', 147 N. Y. 322 [41 N. E. Rep. 693]; Lincoln v. Manufacturing Co. 91 Mass. (9 Allen) 181; Clark v. Willett, 35 Cal. 534; Fitzsimmons v. Braun, 199 111. 390 [65 N. E. Rep. 252; 59 L. R. A. 421] ; Blank v. Livonia (Tp.), 79 Mich. 1 [44 N. W. Rep. 157] ; Windhaus v. Bootz, 92 Cal. 617 [28 Pac. Rep. 557] ; Murdock v. State, 68 Ala. 567; MaHyn v. Curtis, 67 Yt. 263 [31 Atl. Rep. 296]; Stoker v. Railway, 91 Mo. 509 [4 S. W. Rep. 389]; Leidlein v. Meyer, 95 Mich. 586 [55 N. W. Rep. 367].

      Patterson & Nieding, for defendant in error:
    Cited and commented upon the following authorities: Hart v. Neillsville, 125 Wis. 546 [104 N. W. Rep. 702; 1 L. R. A. (N. S.) 952; 4 Am. Cas. 1085] ; Barton v. Syracuse, 36 N. Y. 51; Daggett v. Cohoes, 7 N. Y. Supp. 882; Bolton v. New Rochelle, 84 Hun. 281 [32 N. Y. Supp. 442]; Evers v. Long Island City, 78 Hun. 242 [28 N. Y. Supp. 825] ; Fort Wayne v. Coombs, 107 Ind. 75 [7 N. E. Rep. 743; 57 Am. Rep. 82] ; Mur

      phy v. Indianapolis, 158 Ind. 238 [63 N. E. Rep. 469] ; Roberts v. Dover, 72 N. BE. 147 [55 Atl. Rep. 895]; Lakeside <& M. Ry. v. Kelly, '6 Ciro. Dec. 555 (10 R. 322) ; Baxter v. Doe, 142 Mass. 558' [8,N. E. Rep. 415]; Meyer v. Wolnitzell, Tex. Civ. App. [63 S. W. Rep. 1058]; Crocker v. McGregor, 76 Me. 282 [49 Am. Rep. 611] ; Birmingham Union Ry. v. Alexander, 93 Ala. 133 L9 So.. 'Rep. 525].
   MARVIN, J.

Defendant is a property owner in the village of Lakewood and brought suit against the village, claiming damages by reason of the flooding of her cellar resulting from the backing up of water in a sewer drain leading from her cellar to a main sewer of the village on Detroit street. She recovered a judgment, and by proper proceedings the case is here for review.

Numerous claims of error are made, one of which is that the verdict should have been directed for the village for the reason that it is shown that the Detroit street sewer, the main-sewer into which the drain sewer of the plaintiff below emptied,, was constructed at the expense of the village, the money for the purpose being raised by general taxation and not by assessment upon property-benefited; the claim being that the sewer being so constructed, the plaintiff whose sewer emptied into this main sewer, by permission of the village, could recover-nothing, however defective the main sewer might have been. Authorities on this proposition are cited, notably the case of Dermont v. Detroit, 4 Mich. 435. This case seems to sustain the-contention of the village, but the decided weight of authority is the other way, so far as we are able to find. A large number of cases are cited and commented upon in the brief furnished by counsel for the defendant in error. In Hart v. Neillsville, 125 Wis. 546 [104 N. W. Rep. 699; 1 L. R. A. (N. S.) 952]; it is held by the supreme court of Wisconsin, at page 702, that, where as a matter of right a private drain is connected with the main sewer through an opening left therefor, and damage results to- the property from which the private drain leads, does not relieve the municipality from liability in case there is a flooding of the property of the person constructing the private: sewer.

In the case of Daggett v. Cohoes, 54 Hun. 639 [7 N. Y. Supp. 882], it is said:

“The fact that plaintiff had voluntarily connected her premises with the public sewer of defendant is no bar to her recovery for injuriéis caused by its negligence in permitting it to be out of repair.”

To the same effect is Bolton v. New Rochelle, 84 Hun. 231 [32 N. Y. Supp. 442].

See also the case of Murphy v. Indianapolis, 158 Ind. 238 [63 N. E. Rep. 469], where it is said in the syllabus: “A city cannot by ordinance relieve itself from liability resulting from its negligence in maintaining a sewer.”

And in the case of Merzweiler v. Akron, not reported, decided by this court in Summit county, April 8, 1910, the following quotation from- 2 Dillon, Mun. Corp. Sec. 1049, was referred, to, and seems applicable here:

“A municipal corporation is liable for negligence in the ministerial duty to keep its sewers (which it alone has the power to control and keep in order) in repair, as respects persons whose estates are connected therewith by private drains, in consequence of which such persons -sustain injuries which would have been avoided had the sewers been kept in a proper condition. If the sewer is negligently permitted to become obstructed or filled up, so that it causes the water to back-flow into cellars connected with it, there is a liability therefor on the part of the municipal, corporation having the control of it, and which is bound‘to preserve and keep in repair erections it has. constructed, so that they shall not become a source of nuisance’ to others. The work of constructing gutters, drains, and sewers is ministerial, and when, as is usually the ease, the undertaking is a corporate one, the corporation is responsible in a civil action for damages caused by the careless or unskillful manner of performing the work.”

But it is said that there was error in the admission of certain evidence. One Walter D. O’Donnell was permitted to testify, over the objection of the village, as appears at page 110.of the bill of exceptions, that his sewer was flooded at the time of the storm which flooded the cellar of Swift. It appears that the drain, from O’Donnell’s cellar connected with a storm sewer of the village along the same street and but a few inches higher along the street than the sanitary sewer into which Swift’s private sewer entered. The fact being that both the storm and sanitary sewers emptied into the same manhole, and that the evidence tended to show that this manhole filled up with what was emptied into it from these two sewers. We think this evidence was competent, as tending to show that the injury to Swift resulted from an obstruction in the sanitary sewer which may have been further down the incline of the sewer than this manhole.

Complaint, too, is made as to the admission of any evidence as to the flooding of other cellars which had drains leading in to this sanitary sewer. We hold that the court did not err in admitting this evidence. The fact that other cellars were flooded tended to show that there was failure on the part of this main sewer to carry off what it should have carried off, and therefore tended to show that there was some defect in it. An examination of the record fails to disclose any error on the part of the court in its rulings upon evidence offered in the ease, except that the court permitted evidence to be introduced tending to show obstructions in the Detroit street sewer at a point higher up in the sewer than the point where Swift’s sewer emptied into the main sewer. This evidence did not in any wise tend to show that the plaintiff was injured by reason of any defect or obstruction in the sewer. However faulty' the condition of the sewer may have been above the point where the sewer of Swift emptied into the main sewer it could not have caused or help to cause the. flooding of which Swift complains. This evidence was erroneously admitted and was calculated to prejudice the jury against the municipality. Again, the court permitted evidence to be introduced over the objection of counsel for the village, tending' to show that some nine or ten months after the injury to Swift’s property there was sediment and other obstruction in the main sewer below the point, that is further down the line of the sewer than the point where Swift’s sewer emptied in. This evidence did not tend to show that there was any obstruction there at the time of Swift’s injury, and it was error to admit it, and was calculated to prejudice the jury against the village.

For these two errors, and for these alone, the judgment of the court below is reversed.

It is not at all improbable that without this evidence the verdict would have been as it was, but since it is not certain that it would have been and since this testimony was erroneously admitted and may have affected the verdict; indeed, may have directly tended to affect the verdict against the village, we feel that the judgment must be reversed.

Complaint is made that the court erred in its charge to the jury. The court said to the jury:

“If the sewer in Detroit street was of sufficient capacity to take care of the ordinary flow of water and sewage, including that brought in by the new streets, and the backing up was caused by an unprecedented rainfall, something which could not have been reasonably anticipated, considering the conditions as to rainfalls in this latitude and vicinity, then the village would not have been liable.” Complaint is made of the use of the word “unprecedented.” It is said that a rainfall may be so excessive as to overflow sewers, even though they are properly constructed and equipped, and so relieve the municipality from liability even though the rainfall be not “unprecedented.” This is true. That for which the municipality would be liable would be injury sustained by reason of the insufficiency of the sewer to take care of the water and sewage that might reasonably be anticipated to be brought into the sewer during the times of such rainfalls as are likely to occur in this locality, and the court so said to the jury, using this language: “If the storm was of such volume of rainfall that ordinary prudence and foresight would not have anticipated it and provided against it, and this was the cause of plaintiff’s injury, plaintiff could not recover.”

The court explained what was meant by the use of the word “unprecedented” in the passage from the charge already quoted, by what immediately followed after the use of that word, for the language taken .together is, “If the sewer in Detroit street was of sufficient capacity to take care of the ordinary flow of water and sewage, including that brought in by the new streets, and the backing up' was caused by an unprecedented rainfall, something which could not have been reasonably anticipated,' considering the conditions as to rainfalls in this latitude and vicinity, then the village would not be liable.”

We are of opinion that the charge as a whole was correct and was not misleading, although the use of the word “unprecedented,” not explained or qualified, might be calculated to mislead.

The judgment of the court is reversed for the reasons given in this opinion and remanded to the court of common pleas.

Henry and Winch, JJ., concur.


author: VOORHEES, J.

text:
    EVIDENCE-TENANTS IN COMMON — WILLS.
    [Morrow (5th) Circuit Court,
    May Term, 1911.]
    Voorhees, Shields and Crow, JJ.
    (Judge Crow, of the 3rd Circuit, Sitting in Place of Judge Powell.)
    Fannie D. Kuster v. Alban Yeoman.
    1. “Heirs” Regarded as Children if Testator Has Children Living.
    The word “heirs,” where used by a testator having living children, will be regarded as synonymous with children.
    2. Tenant in Common Taking and Remaining in Possession does not Oust Other Tenant in Common.
    The grantee of a one-half interest in lands does not by merely going upon the lands and remaining in possession thereof and • failing to account to the owner of the other half interest for rents and profits, thereby oust the said owner of the remaining half interest from possession or set the statute of limitations against him.
    3. Testimony Showing Son’s Insolvency Competent to Indicate Purpose of Devise to Son’s Wife, and Children.
    Testimony showing that the son of the testator was heavily in debt is competent for the purpose of indicating that testator, in making no provision for said son and giving his entire estate to his son’s wife and their children, thereby protected the estate against the creditors of the said son.
    [Syllabus by the court.]
    Error to common pleas court.
   VOORHEES, J.

This action in the court below was a proceeding in ejectment brought by the plaintiff in error against the defendant in error, for the possession of the real estate described in the first cause of action set forth in the plaintiff’s petition.

In a second cause of action, the plaintiff says that the defendant ever since June 20, 1908, excluded the plaintiff from the rents, issues and profits of said premises and refused to account to the plaintiff therefor, or pay to her any part of the value thereof. The value of the rents, issues' and profits from said date and the damage for withholding the said premises from plaintiff amount to the sum of $240.

Wherefore, plaintiff asks judgment for the delivery of said real property and for the said sum of $240, and for all other, further and different relief to which she is entitled.

The action was commenced June 18, 1910.

The defendant by answer, and in his first defense, denies each and every allegation in the petition contained, and in a second defense pleads the statute of limitations; first, that the plaintiff’s first cause of action did not accrue- to her within twenty-one years next preceding the commencement of the action, nor within ten years after plaintiff arrived at the age of majority, and that by reason thereof her causes of action are barred by the statute of limitations.

The plaintiff by reply denies each and every allegation of defendant’s second defense.

The cause was tried to the court without a jury, upon an agreed statement of facts, and certain evidence introduced at the trial.

From the agreed statement of facts it appears that one, Lewis Barge, was the common source of title to the premises involved in this action; that said Lewis Barge died testate June 20, 1884; that his will and a codicil thereto were admitted to probate and record August 1, 1884, in the probate court of Morrow county, Ohio; that he was the owner in fee of the premises described in the petition. That Robert T. Barge was a son of said Lewis Barge and he died July 18, 1904. Louisa Jane Barge was the wife of said Robert T. Barge. She died June 20, 1908. The said plaintiff, Fannie D. Kuster, was the only child and heir of said' Robert T. Barge, deceased, and said Louisa Jane Barge. Said Fannie arrived at the age of majority in the year 1895.

On March 21, 1885, said Louisa Jane Barge and her husband, Robert T. Barge, for the consideration of $2500, expressed in the deed, quitclaimed all their right, title and interest in said premises to one, Daniel Benson, which deed recited: “Being the title and interest in the real estate of Lewis Barge,, deceased, devised to' grantors, or either of them, by the last will and testament of said Lewis Barge, deceased, being all their interest in the lands owned by said Lewis Barge at the time of his death.”

It is further stipulated that “should said will be broken and set aside by the court, it is then intended by said grantors that said Daniel Benson, his heirs and assigns, shall by this conveyance have all our right, title and interest in all of said estate of said Lewis Barge, deceased.”

That on March 25, 1885, the said Daniel Benson and wife quitclaimed said real estate to Hattie Smalley, with the same description and recitation in said deed. Hattie Smalley and husband on May 27, 1886, quitclaimed all their interest in said premises to John H. Rhodes, excepting therefrom two and one-half acres, deeded to Huldah Yeoman, who was the wife of said defendant, Alban Yeoman.

That John H. Rhodes and wife on July, 1887, quitclaimed all their, right, title and interest in said premises to A. Yeoman, the defendant herein, who has been in possession of said premises from said date to present time.

That the said defendant, Alban Yeoman, was a brother in-law of said Louisa Jane Barge and Robert T. Barge,, and was familiar .with the will of said Lewis Barge, deceased, and all the deeds above set forth at the time he purchased said premises from John H. Rhodes.

Huldah Yeoman by her last will and testament “bequeathed,” devised, to the defendant, Alban Yeoman, all the right, title and interest she had in the two and one-half acres purchased of Hattie Smalley, and being part of the premises described in said plaintiff’s petition.

The testimony outside of the agreed statement of facts does not materially affect the legal status of the ease, so the principal and controlling element in the case is the will of Lewis Barge. "What estate, if any, did the will of Lewis Barge, deceased, give to the plaintiff, Fannie D. Kuster, in the premises described in her petition? And what estate did the will of Lewis Barge, deceased, give to Louisa Jane Barge, wife of Robert T. Barge?

To determine these questions, resort must be had to the will of said Lewis Barge. The will was made February 19, 1880. At the time of making the will, Robert T. Barge, the son, was living and had then living the plaintiff as his only child.

The first item of the will, after providing for a life estate in said premises, in favor of his wife, Sibbia Barge, who died before the testator, among other things provides that, “At the death of my said wife, the real estate aforesaid I give and devise to Louisa Jane Barge, wife of my son,- Robert T. Barge, and to his lawful heirs.”

It will be observed that the will gives Robert T. Barge nothing. His name is used to designate more clearly those who were intended to receive his estate or who were to be the objects of his bounty, namely, Louisa Jane Barge, wife of his son, Robert T. Barge, and to his lawful heirs. Robert survived his father, and the plaintiff, Robert’s only child, was living at the date of the will.

Technically, persons in life can have no heirs, and therefore when property is given to the heirs of one living, the heirs means the child or children of such person. From the fact that the estates of deceased persons usually descend to their children, the term heirs is frequently regarded as synonymous with children.

The words heir or heirs in a will, if such was the clear intention of the testator, may be construed child or children, and they will take as purchasers. King v. Beck, 15 Ohio 559; Parrish v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320; Taylor v. Foster, 17 Ohio St. 166; Taylor v. Foster, 22 Ohio St. 255; Durfee v. MacNeil, 58 Ohio St. 238 [50 N. E. Rep. 721].

The wife of Robert T. Barge is given a fee in the premises described in the first item of the will of Lewis Barge, and jointly with her is given to the heirs or children of Robert T. Barge a fee in said premises, making the only child of Robert T. Barge and his wife joint tenants in the premises described in said item one of said will, and being the same premises described in the petition.

Therefore, Louisa Jane Barge and the plaintiff were tenants in cpmmon in the ownership of said premises, an^ the quitclaim deed of Louisa Jane Barge and Robert T. Barge of March 25, 1885, only conveyed to Daniel Benson an undivided half of said premises, and the plaintiff, Fannie D. Kuster, is the owner of the other undivided half, unless the defendant’s defense of the statute of limitations bars her right to recover in this action.

It is contended by the defendant that he has been in possession of said premises for twenty-one years, and for ten years since the plaintiff has arrived of age.

The deed from Robert T. Barge and Louisa Barge did not undertake or assume to convey only the interest of said Louisa Barge and Robert T. Barge, to said Daniel ‘Benson; hence, he and his grantee became tenants in common with said plaintiff in the occupancy of said premises.

There is nothing [in the agreed statement of facts or the testimony that tends even to show that defendant had taken such possession or control of said premises as to oust the plaintiff of possession or set the statute of limitations to running against her.

Therefore, we hold that the defendant’s plea of the statute of limitations is not good and is not established by any evidence. Youngs v. Heffner, 36 Ohio St. 232; Gill v. Fletcher, 74 Ohio St. 295 [78 N. E. Rep. 433; 113 Am. St. Rep. 962]; Hogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71].

We think the court erred in ruling out the testimony of the plaintiff to show the indebtedness of the son, Robert T. Barge, as tending to show the intention of the testator not to give Robert any of his bounty, but to give it to his child, as he was not willing to pay the debts of his son out of his estate.' This he had a right to do, and it furnishes a reason for the construction of item one of ■ his will, as we find his intention was to give to Robert’s wife and their child, rather than to Robert, who was largely in debt. We think this evidence was competent, and the court erred in excluding it. -

Therefore, the judgment and finding of the court below is reversed with costs. And coming now to render the judgment the court should have rendered, we hold that plaintiff is entitled to hold and be possessed as tenant in common witn defendant and to have an accounting upon her second cause of action for rents and profits according to law. Exceptions. Cause remanded to the court of common pleas for further proceedings according to law.

Shields and Crow, JJ., concur.


author: PER CURIAM.

text:
    EVIDENCE — INTOXICATING LIQUORS.
    [Licking (5th) Circuit Court, -,
    1911.]
    Taggart, Donahue and Yoorhees, JJ.
    Robert Folliard v. State of Ohio.
    1. Admission of Internal Revenue Retail Liquor Tax Certificate Kot in Contravention of Constitutional Requirement as to Accused’s Meeting "Witnesses Pace to Pace.
    Admission of a certified copy of the record in the United States internal revenue department showing payment hy accused of a special tax as retail dealer in intoxicating liquors, payment of which is made prima facie evidence of violation of local option laws, is not in contravention of Sec. 10 of the hill of rights providing that accused shall be entitled to meet witnesses face to face, the constitutional inhibition applying to parol evidence only and not to introduction of public records or instruments of writing.
    2. Certified Cories of U. S. Government Records Competent Evidence in Criminal Proceedings.
    ‘Under Gen. Code 11500, making copies of certain records in the executive departments competent evidence, a certified copy of the internal revenue department showing payment of a retail dealer’s liquor tax is the best evidence of the fact of payment provided for in Gen. Code 6100, especially since under the rules of the internal revenue department the original records are not permitted to be taken from.the office of the collector. This rule applies to criminal as well as civil cases.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Jones & Jones, for plaintiff.

      P. B. Smythe, for defendant.
   PER CURIAM.

The motion of plaintiff in error to file a petition in error in this court is, for good cause, allowed, and said petition in error is accordingly filed. Thereupon said cause is submitted to the court upon the questions raised by said petition in error and the bill of exceptions taken in the trial of the case.

The first contention of the plaintiff in error is: That the court erred in permitting the state to introduce a certified copy of the record in the internal revenue department of the United States, showing that said defendant below had paid to the United States the special tax as a retail dealer in intoxicating liquors.

It is insisted that this is in violation of Sec. 10 of the bill of rights and particularly that part of the section which provides that the accused shall be entitled to meet the witnesses face to face. But, in the opinion of the court, this section has no application whatever. That applies to the parol testimony of a witness only, and not to the introduction of public records, or other instruments of writing, which may become competent evidence in the trial of a criminal case.

Gen. Code 6100 provides that the payment of suer special tax shall be held to be prima facie evidence that the person, or persons paying the same, are violating the law prohibiting the sale of intoxicating liquors as a beverage. This same question is raised in other cases submitted to this court at this, term, and what we have to say upon the subject will be stated in this opinion and not repeated in the opinions of the other cases. In some of the cases it- is insisted that this is made competent evidence in civil cases only. Those are the terms of Gen. Code 6092, but Gen. Code 6100 also expressly provides that' the payment of such tax is competent evidence in a prosecution for the violation of the liquor laws.

It is insisted, however, that the original record itself must be introduced in evidence and that a certified copy thereof is-not competent evidence. In answer to that contention it is-sufficient to say that the best evidence of which a case in its-nature is susceptible must be introduced: This rule applies to criminal as well as civil eases. In fact the general rule as-to competent evidence in criminal cases is not different from that in civil cases except as to the constitutional provision contained in Sec. 10 of the bill of rights and such other differences as are expressly provided for by statute. Otherwise evidence that is competent in civil cases is equally competent in criminal cases:

Under the rules and regulations of the internal revenue department of the United States these records are not permitted to be taken from the office of the collector and the state has -no-authority to control the policy of the general government in. that respect. Therefore, the best evidence that can be obtained touching the matters and things contained in this record is, of-necessity, an exemplification of that record.

By Gén. Code 11500, it is specially provided that copies of any books, maps, records, papers or documents on file or deposited in any of the executive departments of the United State® government, authenticated under the seal of such department, shall be competent evidence and have the same force' and effect as the originals would if produced. To the same effect i® Sec. 906 U. S. Stat.

Therefore, in view of this provision of the law and in view of the fact that this is not the parol evidence of a witness, that the accused is permitted face to face, the introduction of this certified copy of the record was and is authorized by the statute and is not in violation of the constitution of the state and the court was not in error in admitting it in evidence.

The next contention of the plaintiff in error is: That the evidence offered by the state does not sustain the conviction, or-that the finding of the court is against the manifest weight of the evidence.

It is true that there is a serious conflict of evidence in this case, but under the statute under which we have just called attention, the proof of the payment of this special tax makes a ;prima facie case, and coupled, with that is the positive evidence <of a witness who testifies that he bought intoxicating liquors rfrom the accused, at the time and place mentioned in the affi'davit. True, this witness is a detective and there are some things in connection with his cross-examination which affect his credibility, but, from the whole record this court cannot say that the finding of the trial court is so manifestly against the weight of the evidence as to require a reversal for that reason.

Therefore, the judgment of the common pleas court is affirmed and the same is remanded for execution.

Exceptions of the plaintiff in error are noted.


author: GIFFEN, P. J.

text:
    EVIDENCE — NEGLIGENCE—RELEASES.
    [Hamilton (1st) Circuit Court,
    July 3, 1909.]
    Giffen, Smith and Swing, JJ.'

      Emma DeGarmo v. Cincinnati Trac. Co.
    Failure to Read Release Signed as Receipt for Damages to Apparel not Negligence Precluding Recovery for Personal Injuries.
    Failure to read before signing a release of liability for personal injuries is not negligence precluding evidence of circumstances of signing if at the time of settlement no claim for bodily injuries was contemplated or made and releasor relied upon a statement of defendant’s agent that the paper signed was a receipt for money paid for damages to apparel only.
    Error to common pleas court.

      Horace A. Reeve, for plaintiff in error.

      Kittredge, Wilby & Stimson, for defendant in error.

      Reversed, no op., De Garmo v. Traction Co. 85 O. S. 000; 56 Bull. 375.

   GIFFEN, P. J.

At the time plaintiff signed the release pleaded as a defense, it was not known that she had sustained any serious bodily injury, although she was extremely nervous.

She testifies as follows:

“I said what am I signing this for? He said it is to show that I paid you the money for dress damages.”

The conversation was confined wholly to the damages to her dress, for which she received $15. Under such circumstances it was not negligence on the part of plaintiff to omit, reading the paper before signing, and the court erred in arresting the case from the jury. Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41].

It was error also to sustain the objection to: “Q. Did you rely upon what Mr. McCarthy told you ? ’ ’

Judgment reversed and cause remanded for a new trial.

Smith and Swing, J.J., concur.


author: JONES, C. J.

text:
    EVIDENCE.
    [Pickaway (4th) Circuit Court,-,
    1911.]
    Jones, Walters and Sayre, JJ.
    John Sullivan v. Iva Starkey.
    1. Witness Denying Authenticity of Writing by Him may be Compelled to Write Specimens of His Handwriting on Cross-Examination, THOUGH NOT ON DIRECT EXAMINATION.
    When a witness has denied the authenticity of a document, purporting to have been written and signed by him, containing-statements material to the issue in the case, he may be required on cross-examination to write specimens of his handwriting for the purpose of comparison. But this rule does not. apply to the direct examination of the witness.
    2. Writing Denied by Party may be Offered to Impeach Purported' Writer and as Declaration against Interest.
    In such a case where testimony has been given by another that the document is in the handwriting of the party, it may be offered for the purpose of impeachment; and if the witness be; a party, for the additional reason that it is a declaration against interest.
    [Syllabus by the court.]
    Error to common pleas court.

      Barton Walters, for plaintiff in error.

      Geo. W. Lindsay and Irvine F. Snyder, for defendant in error.
   JONES, C. J.

This action arose on a complaint in bastardy filed by Iva Starkey againqt John Sullivan. The case was tried in the common pleas court, before the court and jury, and the defendant was found to be the reputed father of the child. A motion for a new trial was filed and overruled, a judgment entered upon the verdict, and a bill of exceptions taken. The petition in error in this court alleges: That there is error in the rejection of certain testimony, and in the refusal to give .special charge No. 10, asked to be given by the defendant below.

Iva Starkey, the complainant, took the witness stand in her own behalf and testified, as shown by the bill, when a certain letter was shown to' her, that this letter was written by a friend of hers; that she did not dictate it, and knew but very little of its contents; that she didn’t direct that it be sent to John Sullivan, the defendant below, and that she did not know it was being sent. She, however, did state that she knew some of the things contained in the letter. This letter was claimed by the defendant to have been written by the prosecuting witness, and it purports to be signed by her initials. 'This letter/ as shown by the bill of exceptions, was inclosed in .an envelope and directed to the defendant at his address in the city of Circleville, and purports to have been written during the time of her pregnancy. The letter, among other things, contained this statement:

“Don’t worry about what we talking about Sunday night, for it don’t belong to you. I would not lay it on you if it was yours. ’ ’

It, appears from the record, after the direct examination of the complaining witness had been completed, this letter being in the possession of counsel for the defendant and exhibited to the witness, he asked the witness as follows:

“I wish you would take that sheet of paper and pencil, and write what I dictate to you.”
“Thereupon counsel for the defendant presented a sheet of paper and pencil to the witness, and requested that she, in the presence of the jury, write out a copy of the letter above offered in evidence, for the purpose of enabling the jury to say upon the comparison of the handwriting whether or not the letter in question was written by the plaintiff.”

The court refused this request by counsel for the defendant, and an exception was taken to the refusal of the court.

In- Ohio this is a new question, and has never been passed upon in any case reported so far as we know. It is unquestionably the rule as shown by the great weight of authority, that the claimed author of disputed handwriting can not exhibit, for the purpose of comparison, any writing made by him after the controversy arose. This rule has been amplified and extended in proper eases, that signatures and writing after the controversy arose may beuffered in certain cases; that is, where it appears that the signatures and handwriting were not manufactured, and had been used in the ordinary course of business, and could not have any connection with the disputed point. However that may be, it has never been held in any case we can find, that upon the direct examination of the party, or a witness in the case, he may be asked, in support of his declaration, that the disputed writing is not authentic, to write out his signature or a portion of the disputed document for the purpose of comparison. That can not be asked, I say, upon the direct examination of a witness, for the reason, as the courts say, that a signature, or handwriting, could at the time, upon the trial, and during the examination in chief, be so disguised as to prevent a proper standard of comparison to be made. And furthermore, the witness himself might have in his- mind the idea of procuring at the trial such handwriting or signatures as would be self-serving in its nature, especially if he would be a party. But an examination of authorities cited, carefully and discriminately, will show that there is quite a difference whether this question is asked in chief or upon cross-examination. The opposite party, of course, may take the risk of the fact that the witness will disguise his handwriting. But the rule is, that upon the cross-examination of a witness, upon a point that is material to the issues in the case and upon a point which he has orally denied, the document may be displayed to the witness and he may be required to write in open court for the purpose of making a standard of comparison for any disputed document, and he may be required to furnish specimens of his handwriting therefor.

One of the cases frequently referred to and cited in the other cases, is the case of Huff v. Nims, 11 Neb. 363. [9 N. E. Rep. 548], There it was said by the judge:

“The only point relied on worthy of attention is the alleged error in requiring the witness Huff to write certain words in the presence of the jury, and for their inspection and comparison with the same words contained in the note on which the action was brought.
In view of the testimony the handwriting of the witness was an important factor in the case, and it was certainly competent to disprove his oral statement as to the words of the note then before the jury. This could be done in various ways; one of which was by a comparison of the writing of the note with other writing, either admitted or proven to be his own. That written in the presence of the court and jury was certainly his own, and ought to have been acceptable to the witness and the party calling him. If not dissembled, and of the possibility of this the party conducting the cross-examination took the risk, the writing thus exhibited enabled the jury to form a pretty accurate estimate of the value of the witness’ oral testimony on this point.”

To the same effect is the ease of Bradford v. People, 22 Colo. 157 [43 Pac. Rep. 1013], where the court held that where the accused comes on the stand as a witness in his own behalf and denies writing the document, alleged to have been written by him, he may be required on cross-examination to write in the presence of the jury for the purpose of comparison.

The case of Sanderson v. Osgood, 52 Vt. 309, was a bastardy case in which evidence of this character had been offered and admitted and where the complaining witness had written in open court a portion of the disputed, writing. Judge Ross in the decision of that case closes the opinion with the following language:

“The utmost limit to which the cases and practice go in this respect, is to allow the opposite party, when the upholding party takes the stand as a witness, in cross-examination to call upon him to write in the presence of the jury, that he may nse such specimens of his writings for comparison with the disputed writing, by the jury, and experts against him.”

Another case frequently referred to in these cases is the case of King v. Donahue, 110 Mass. 155 [14 Am. Rep. 589], where the court say:

“A party to an action is not entitled to write- his signature in the presence of the jury for the purpose of being compared with a signature purporting to be his, the genuineness of which he denies. There are cases to the effect that where a witness has denied his signature to a document he may be called upon in cross-examination to write in open court that the jury may compare such writing with the controverted signature, but this is merely as a part of the cross-examination and for the purpose of contradicting the witness.”

In the case of People v. DeKroyft, 49 Hun. 71 [1 N. Y. Supp. 692], it was held that:

“On a trial for forgery, where the defendant introduced one of the parties whose name was signed to the note as a witness to show that she wrote the name alleged to have been forged, and that defendant wrote her name by her authority, she may be, required on cross-examination to write her own name and that alleged to have been forged, and the signatures may be submitted to the jury for comparison as a test of her veracity. ’ ’

This is also supported by the case of Chandler v. LeBarron, 45 Me. 534. And to the same effect is the case of Doe v. Wilson, 10 Moore, P. C. 502, 530.

"While in some of these cases the handwriting of the witness was obtained in open court, either on the direct examination without objection or upon the cross-examination, the rule of practice is distinguished in the opinions.

In the ease of Hickory v. United States, 151 U. S. 376 [14 Sup. Ct. Rep. 334; 38 L. Ed. 170], Chief Justice Fuller recognizes the distinction wherein a witness in a case of this kind upon examination in chief may not be asked to write in support of his declaration in open court, but the rule is that upon cross-examination by the other side he may be required to do so.

We think that the court erred in refusing to permit the witness on her cross-examination to write a portion of the letter that was claimed to have been written by her, and signed by what purported to have been her initials.

On pages 15 and 16 of the record, after she testified that she knew some of the things that were in this letter, she was asked this question:

“Now, I wish you would tell us so that I can get it in the record, what parts of that letter you are acquainted with?”

The court refused to permit her to answer that question. On the next page of the record, after testifying that she knew it was being written but did not know what was in it with the exception of a few things, she was asked the question:

“Will you tell us what statements were in that letter that you did not know were in there before it was mailed?”

The court refused to allow that question to be answered and an exception was taken by the defendant to the refusal of the court to allow the questions to be answered in both instances. Here was a witness who knew that this letter was being written to Sullivan, and knew some of the contents of the letter; yet, in spite of the admissions made by the witness'on the stand, she was not permitted to testify what things were contained in the letter that she knew; and one of the statements in the letter is the statement referred to in the first part of the opinion, viz.:

“Don’t worry about what we were talking about Sunday night, for it don’t belong to you. I would not lay it on you if it was yours.” ,

We think the court erred in refusing to permit the witness to answer as to the contents of that letter. We think, also, that the court erred in not admitting the letter itself in evidence upon the case made out by the defendant.

The defendant introduced one witness by the name of Love McKinley, who testified that the writing in the letter was the handwriting of the complainant, that she knew it; in some portions of the testimony she makes it positive, but upon cross-examination her credibility is questioned seriously; but all this is a matter of fact for the jury; and having made a prima facie case by testifying to the fact, that this handwriting was the handwriting of the complaining witness, this letter should have been admitted by the court, because of the prima facie case made by the testimony of the witness, Mrs. McKinley.

This is supported by the opinion in the case of Schriedly v. State, 23 Ohio St. 130. The fifth proposition of the syllabus is as follows:

“Where, upon such trial, a witness testified in behalf of the state that the goods were received and bought of him by the defendant, knowing that they were stolen; and, on cross-examination, he denied that he had any knowledge whatever of a letter, shown to him, purporting to be written by him to the defendant, stating that he knew nothing against the accused relating to the transaction: Held, that, for the purpose of impeaching the witness, the letter might be given in evidence by the defendant, on making prima facie proof that it was written at the dictation of the witness, and was in fact sent by him to the defendant.”

This case is a little stronger than the ease at bar, but it is in principle the same. So is also the case of Pennsylvania Fire Ins. Co. v. Carnahan, 10 Circ. Dec. 225 (19 R. 98). The fifth proposition of the syllabus is as follows:

“Where a witness on cross-examination is shown a paper with his name signed thereto, which is at variance „with his testimony in chief, but denies to have signed it, it is competent to introduce witnesses to testify that he did sign it, and such writing may be admitted in evidence.”

That was exactly the course sought to be taken in this case. As to whether or not she signed it, that was a question for the jury; but the defendant sought to introduce this letter as a declaration against self-interest and also for the purpose of impeaching the credibility of the complaining witness.

Special Instruction No. 10, which was refused by the court, 'is as follows:

“The- plaintiff alleges that she became pregnant by the -defendant on August 22, 1909; now, I charge you that she must establish, by a preponderance of the evidence, that she became pregnant at that time; and you can not return a verdict against the defendant if you are in doubt as to when she became pregnant or in the event you believe that she became pregnant at some other time.”

The trouble with that charge is, it attempts to bind the plaintiff on a question in controversy: the pregnancy of the complainant to beginning on the date of August 22, 1909. The plaintiff was not, and could not, be bound by that exact date. There is no error on the part of the court in refusing to give this charge.

We think, because of the errors named, that the judgment of the court below should be reversed and the cause remanded to that court for a new trial.

Walters and Sayre, JJ., concur.


text:
    ASSESSMENTS — INJUNCTION.
    [Hamilton (1st) Circuit Court,
    May 19, 1906.]
    Jelke, Swing and Giffen, JJ.

      Charles C. Breuer et al. v. John H. Gibson et al.
    Petitioner for Street Improvement Completed as Petitioned is Barred-from Objecting to Assessment.
    An abutting property owner, having petitioned under Gen. Code 3835” for improvement of a certain street and that the improvement he made in a particular manner, cannot thereafter enjoin collection of the assessment on the ground that the improvement was made in an improper and negligent manner, where it was made in the way designated in the petition.

      Horstman & Horstman, for plaintiff.

      Jesse Lowman, for defendant.

      Affirmed, no op., Breuer v. Cincinnati, 77 O. S. 602.

   PER CURIAM.

This action was commenced to enjoin the collection of certain assessments levied upon the plaintiff’s lots for a street improvement, on the ground that the street was improperly and negligently constructed. The amended answer contains the averment that plaintiff petitioned the eity through its proper boards to make said improvement in the manner in which it was afterwards made, and wherein they agreed to pay for the whole cost of such improvement except 2 per cent of the entire cost of the improvement and the cost of the intersections. This averment is nowhere controverted by reply, and hence the court did not err in refusing to hear testimony tending to prove that the street was negligently and improperly constructed.


text:
    HABEAS CORPUS — PRISONS AND REFORMATORIES.
    [Hamilton (1st) Circuit Court,
    March 20, 1909.]
    Giffen, Smith and Swing, JJ.
    William Harrington v. Ferdinand Bader, Supt.
    Habeas Corpus does not Lie to Discharge Workhouse Prisoner Whose Term oe Commitment had been Interrupted by Return to Penitentiary erom which He had Escaped.
    Delivery of a prisoner sentenced to a municipal workhouse to the custody of the chief of police for return to the penitentiary, whence he had escaped, is presumed to be accomplished by legal process, as contemplated by R. S. 5748 (Gen. Code 12184); such transfer did not effect an unconditional suspension of the workhouse sentence or discharge him therefrom until the full term thereof had expired; hence, habeas corpus will not lie to release him from such workhouse to which he was returned after serving his time in the penitentiary, not at least until the term of workhouse sentence, interrupted by his penitentiary term, had fully run.
    Error to common pleas court.

      Thomas H. Darby, for plaintiff in error.

      John M. Thomas, for defendant in error.
    Harrington, a prisoner in the Cincinnati workbouse, filed a petition in common pleas for a writ of habeas corpus, which having been denied, error was prosecuted.
    The petitioner was committed to the workhouse by the police court under sentences aggregating more than fivé years. On the day following his commitment he was surrendered by the superintendent of the workhouse to the chief of police, who turned him over to authorities from the Ohio penitentiary, who claimed he was an escaped convict. He was returned to the penitentiary, and three years later, having served out his term in the penitentiary, he was brought back to Cincinnati and again incarcerated in the workhouse to serve out the interrupted sentence above mentioned.
    It was claimed in the hearing on habeas corpus, that the order of release from the workhouse, under which he was returned to the penitentiary, was equivalent to a discharge from further imprisonment under the workhouse commitment, and that the said commitment was ineffectual to justify his recommitment to the workhouse after the release and discharge therefrom.
   GIFFEN, P. J.

On July 31, 1905. the plaintiff in error was sentenced to the workhouse of the city of Cincinnati to serve three successive sentences each of six months’ imprisonment and fine of $300 with costs for housebreaking. On August 1, 1905, he was delivered to the chief of police of the city of Cincinnati under the following order:

“State oe Ohio, Hamilton County, ss. Police Court of the City of Cincinnati.
“To the Superintendent of the Workhouse':
“Deliver to Paul M. Millikin, Chief of Police of the City of Cincinnati, the body of ¥m. Harrington, now in your custody, charged with housebreaking, committed July 31, 1905, for new trial.
“By order of court.
“Attest: Aug. Kirbert,
“(Seal.) Clerk of the‘Police Court,,
“By F. G. GooDr Deputy. ■
“Cincinnati, 8-1, 1905.”

Counsel assume that the effect of this order was an unconditional suspension of the sentences which amounted to a final discharge of the prisoner; but there is nothing upon the face of it to indicate that any suspension or modification of the sentences was intended.

The presumption is that the removal of the prisoner from the workhouse into the custody of the chief of police was by legal process, as contemplated by R. S. 5748 (Gen. Code 12184), and if not, the sentences continued in full force without loss of time by the prisoner.

It appears, however, from other evidence, not the best, that he was delivered to the chief of police for the purpose of being returned to the Ohio penitentiary, whence he had escaped. It is unnecessary to determine whether this delivery was authorized by law on demand of the warden of the penitentiary, because under the several commitments his time would not in any event expire till December 21, 1910.

The better practice no doubt would be to await the expiration of his term in the workhouse when the warden could, under R. S. 7404 (Gen. Code 2186), arrest and recommit him to the penitentiary.

The prisoner is not now, at least, entitled to a discharge, and the judgment of the common pleas court dismissing his petition and remanding him to the custody of the superintendent of the workhouse will be affirmed.

Smith and Swing, JJ., concur.


text:
    COUNTIES — INTEREST.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smith and Swing, JJ.

      State ex rel. Pros. Atty. v. Western German Bank.
    1. Prosecutor May Maintain Action for Recovery of Interest on ' County Funds Unlawfully Deposited.
    A prosecuting attorney may maintain an action for the benefit of the county under R. S. 1277 (Gen. Code 2921) for recovery from a bank of interest on public funds deposited therein, whether so deposited lawfully or otherwise.
    2. Six not Four Years’ Limitation Applies to Action for Recovery of Interest on County Funds.
    An action for recovery of interest on county' funds deposited without authority is brought for the benefit of a county; hence the state is not a real party in interest, and the six years’ statute of limitations prescribed by R. S. 4981 (Gen. Code 11221), and not the four years’ limitation provided by R. S. 4982 (Gen. Code 11224) is available.

      Hunt, Bettman & M err ell, for plaintiff in error.

      Kitt'redge, Wil'by & Stimson and H. D. Peck, for defendant in error.

      Affirming, State v. Kilgour, 19 Dec. 837, and State v. Bank, 22 Dec. 113; affirmed, no op., State v. Bank, 85 O. S. 000; 57 Bull. 79.

   GIFFEN, P. J.

The original action was commenced to recover from the bank money had and received, whether wrongfully or not, for the use of Hamilton county; and it is because the money is thus due to the county that the prosecuting attorney is authorized to bring the suit as he did. R. S. 1277 (Gen. Code 2921).

The limitation applicable to the cause of action stated was six years, as provided by R. S. 4981 (Gen. Code 11221), and not four years, as provided by R. S. 4982 (Gen. Code 11224). Mount v. Lakeman, 21 Ohio St. 643.

The action having been commenced under favor of R. S. 1277 (Gen. Code 2921), for the benefit of the county and to recover money due to the county, the state is not a real party in interest, and the plea of the statute of limitations is available. Hartman v. Hunter, 56 Ohio St. 175 [46 N. E. Rep. 577].

Judgment affirmed^

Smith and Swing, JJ., concur.