text:
    No. 4126.
    Retterer v. Ohio Insurance Company.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Marion county.
    Scofield, Durfee dé Scofield, for plaintiff in error.

      McMahon ds McMahon and McNeal dé Wolford, for defendant in error.
   Judgment reversed on the authority of Moody v. Insurance Co., 52 Ohio St., 12, and cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    No. 4127.
    Hupp et al. v. Boring.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Licking county.

      Ribler dé Kibl&r, for plaintiffs in error.

      Samnel M. Hunter, for defendant in error.
   Judgment affirmed.


text:
    No. 4128.
    Hupp et al. v. Boring.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Licking county.

      Kibler & Kibler, for plaintiffs in error.

      Samuel M. Hunter, for defendant in error.
   Judgment affirmed.


text:
    No. 4132.
    River & Railroad Transfer Company v. Stephens et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Hamilton county.

      Ramsey, Maxwell <& Ramsey, for plaintiff in error.

      Stephens, Lincoln c& Smith, for defendants in error.
   Judgment affirmed.


text:
    No. 4133.
    River & Railroad Transfer Company v. Paxton & Warrington.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Hamilton county.

      Ramsey, Maxwell & Ramsey, for plaintiff in error.

      Stephens, Lincoln <& Smith and Thomas B. Paxton, for defendants in error.
   Judgment affirmed.


text:
    No. 4147.
    Fluhart et al. v. McGhee et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Jackson county.

      John T. Moore and James M. Tripp, for plaintiffs in error.

      J. M. Mg Cillivray and J. W. Hannon, for defendants in error.
   Judgment affirmed.


text:
    No. 4186.
    Lockwood v. Lockwood et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Ashtabula county.

      L. - S. Sherman and Hoyt & Mansell, for plaintiff in error.

      Herbert Williams, for defendants in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 4204.
    Babb et al. v. City of Cincinnati et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Hamilton county.

      M. W Conway, for plaintiffs in error.

      William E. Brooks and Porter Bendigs, for defendants in error.
   Judgment affirmed.


text:
    No. 4405.
    Mulholland et al. v. Reiff.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Seneca county.

      Seney do Sayler, for plaintiffs in error.

      Brewer & Brewer, for defendant in error.
   Judgment affirmed,


text:
    No. 4956.
    The State ex rel. Attorney General v. Best.
    (Decided June 9, 1896.)
    Quo Warranto.

      F. 8. Monnett, Attorney General; J. I Albrecod and Scoter do Robeson, for plaintiff.

      J. A. Breaden, Jr. and Anderson dk Bowman, for defendant.
   Demurrer to petition overruled and judgment of ouster on the authority of State v. Shearer, 46 Ohio St., 275.

Shauck and Burket, JJ., dissent.


text:
    No. 3541.
    The Singer Manufacturing Company v. Caldwell.
    (Decided June 16, 1896.)
    Error to the Circuit Court of Jefferson county.

      F. F. Ershine and A. EE. Bcottin, for plaintiff in error.

      J. F. Dcoton and J. M. Cook, for defendant in error.
   Judgment affirmed upon the ground stated in opinion of circuit court.

Shauck, J., dissents.


text:
    No. 4203.
    Haber v. Bushnell, Receiver, Etc.
    (Decided June 16, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Prentiss c& Vorce, for plaintiff in error.

      Edward Bushnell, for defendant in error.
   The court is of the opinion that the third and fourth conclusions of law not being warranted by the findings of fact as made by the court, it is ordered and adjudged by this court that the judgment of the said circuit court be and the same is reversed, and the petition below dismissed as to the said Arthur M. Haber; and it is further ordered and adjudged that the said Haber recover his costs of the plaintiff below in this court and in the court below, to be taxed.

Judgment reversed and petition dismissed.


text:
    No. 4814.
    Stoughton v. The State.
    (Decided June 16, 1896.)
    Error to the Circuit Court of Erie county.

      Dickey, Oarr c& Goff, for plaintiff in error.

      O. E. Sheldon and E. J. Phinney, for defendant in error.
   Judgment affirmed.


text:
    No. 3971.
    Hunter, Admr., v. Scott et al.
    (Decided June 23, 1896.)
    Error to the. Circuit Court of Jackson county.

      E L Dewitt and E. C. Powell, for plaintiff in error

      A Leach; James M. Tripp and Thomas A. Jones, for defendants in error. •
   Judgment affirmed.


text:
    No. 4178.
    Sendelbach v. Reaver.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Franklin county.

      Sha/rp <& McDonald, for plaintiff in error.

      F. F. D. Albery, for defendant in error.
   Judgment affirmed.


text:
    No. 4179.
    Lounsbury v. Richardson, Admr. et al.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Stark county.

      Day, Lynch c& Day, for plaintiff in error.

      Baldwin <& Shields; Clark, Ambler c& Cfla/rk and Sterling <& Wertz, for defendants in error.
   Judgment affirmed.


text:
    No. 4192.
    Village of Uhrichsville v. Auld.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Tuscarawas county.

      Healea & Greene, for plaintiff in error.

      T H. Loller, for defendant in error.
   Judgment affirmed.


text:
    No. 4193.
    Village of Uhrichsville v. Mealey.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Tuscarawas county.

      Healea <& Greene, for plaintiff in error.

      T. II. Loller, for defendant in error.
   Judgment affirmed.


text:
    No. 4196.
    Call v. Good et al.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Ashtabula county.

      Ednoa/rd II. Fitch, for plaintiff in error.

      Theodore Hall, for defendants in error.
   Judgment affirmed.


text:
    No. 4197.
    Means et al. v. Clark et al.
    (Decided June 23, 1896.)
    . Error to the Circuit Court of Hamilton county.

      8. A. Miller and G. D. Robertson, for plaintiffs in error.

      W. A. Hicks; 8. B. Deal; H B. Iv/rrill; IF. G. Dw'rell and Speigel, Brormoell <& Foraker, County Solicitors, for defendants in error.
   Judgment affirmed.


text:
    No. 4205.
    Smith, Guardian, v. Carver et al.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Miami county.
    IF. B. McKinney and F. V. B'linn,' for plaintiff in error.

      H H. Williams, for defendants in error.
   Judgment affirmed.


text:
    No. 4213.
    Hammel v. Palmer et al.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Huron county.

      T. II. Kellogg and Stewcvrt <& Rowley, for plaintiff in error.

      Ha/milton c& Kwby, for defendants in error.
   Judgment affirmed.


text:
    No. 4235.
    Sutton et al. v. Barker.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Franklin county.

      Walter B. Page, for plaintiffs in error.

      F. W. Wood, for defendant in error.
   Judgment affirmed.


text:
    No. 4238.
    Eckstein et al. v. Board of Education et al.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Huron county.

      Stephen M. Young, for plaintiffs in error.

      Warren Severance and George R. Walker, for defendants in error.
   Judgment affirmed.


text:
    No. 4834.
    The American Express Company v. The State of Ohio.
    (Decided June 23, 1896.)
    Error to the Circuit Court of Franklin county.

      Ramsey, Maxwell c& Ramsey, for plaintiff in error.

      J. K. Richards, Attorney General, for defendant in error.
   Judgment affirmed on the authority of Adams Express Co. v. The State, ante, -.


text:
    No. 4835.
    The United States Express Company v. The State of Ohio.
    (Decided June 23, 1896. )
    Error to the Circuit Court of Franklin county*

      Ramsey, Maxwell cb Ramsey, for plaintiff in error.

      J K. Richards, Attorney General, for defendant in error.
   judgment affirmed on the authority of The Adams Express Company v. The State, ante, -.


text:
    No. 3782.
    Goodheart v. Goodman et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Franklin county.

      Powell da Minahan and Jonas B. Frenkel, for plaintiff in error.

      G. J. Merriott, for defendants in error.
   Judgment affirmed.


text:
    No. 4146.
    City of Columbus v. Jaeger.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Franklin county.
    ■ Gilbert H. Bcwger; FLorizel Smith and Ellsioorth G. Irvine, for plaintiff in error.

      Huggins <& Sowers and Henry II. Huggins, for defendant in error.
   Judgment reversed on the authority of Keating v. Cincinnati, 38 Ohio St., 141, and cause remanded for a new trial.


text:
    No. 5040.
    Dietz v. City of Cleveland et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Cuyahoga county

      Frederick A. Henry, for plaintiff in error.

      Miner G. Norton, and Phillips, Ford & Growl, for defendants in error.
   Judgment affirmed on the authority of Hayes & Sons v. The City of Cleveland, ante, 117.


text:
    No. 5041.
    Dietz v. The City of Cleveland et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Frederick A. Henry, for plaintiff in error.

      Miner G. Norton and Phillips, Ford <& Growl, for defendants in error.
   Judgment affirmed on the authority of Hayes & Sons v. City of Cleveland, ante, 117.


text:
    No 5042.
    Dietz v. The City of Cleveland et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Frederick A. Henry, for plaintiff in error.

      Miner G. Norton and Phillips, Ford & Growl, for defendants in error.
   Judgment affirmed on the authority of Hayes & Sons v. The City of Cleveland, ante, 117.


text:
    No 5043.
    Dietz v. The City of Cleveland et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Frederick A. Henry, for plaintiff in error.

      Miner G. Norton and Phillips, Ford ds Growl, for defendants in error.
   Judgment affirmed on the authority of Hayes & Sons v. The City of Cleveland, ante, 117.


text:
    No 5044.
    Dietz v. The City of Cleveland et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Frederick A. Henry, for plaintiff in error.

      Miner G. Norton and Phillips, Ford ds Growl, for defendants in error.
   Judgment affirmed on the authority of Hayes & Sons v. The City of Cleveland ante, 117.


text:
    No. 5054.
    Seifert et al. v. Weidner et al.
    (Decided June 26, 1896.)
    Error to the Circuit Court of Montgomery county.

      McMahon ds McMahon, for plaintiffs in error.

      B. A. Harrison, Edwin P. Matthews and Charles TL Bosle/r, for defendants in error.
   Judgment affirmed on the authority of State v. Baker, ante, 1, and Dietz v. The City of Cleveland, supra.


text:
    No 2721.
    Clawson v. Beattie, Admr.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Huron county.

      Q. T Stewart and T. B. Strong, for plaintiff in error.

      Andrews Bros, and A. M. Beattie, for defendant in error.
   Judgment affirmed.


text:
    No. 3734.
    Farmers’ Deposit National Bank et al. v. Rees et al. Ex’s.
    (Decided October 6, 1896.)
    ■Error to the Circuit Court of Stark county. •

      Bush Taggart, Clark eft Ambler and J. A. Ambler, for plaintiffs in error

      Bay, Lynch eft Bay and Stevenson Burke, for defendants in error.
   Judgment affirmed on the authority of Morgan v. Lewis, 46 Ohio St., 1.


text:
    No. 3860.
    The State ex rel. Brucker v. Garber et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Richland county.

      Cummings eft McBride; Bell eft Brinkerhoff and W. S. Kerr, for plaintiff in error.

      M. May and Steward eft Bricker, for defendants in error.
   Judgment affirmed.


text:
    No. 4134.
    Reinoehl v. Baltzly.
    (Decided October 6, 1896 )
    Error to the Circuit Court of Stark county.

      I). F. Reinoehl and Ua/rter da Kirehbaum, for plaintiff in error.

      John 0. Gannett, for defendant in error.
   Judgment affirmed.


text:
    No. 4152.
    Miller, Treasurer, v. Franklin, Adm’r.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Licking county.
    •/. B. Jones and O. W. Miller, for plaintiff in error.

      Mbler <& Eibler and II. D. Sprague, for defendant in error.
   Judgment affirmed, it appearing that one ground of reversal by the circuit' court was that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 4218.
    Brubaker v. Brubaker, Assignee, et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Ashland county.

      Byron Stilwell, for plaintiff in error.

      Charles J. Kenney; George A. Nicol; Campbell da Semple and II. A. Mykrantz, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on the authority of Kleine v. Katzenberger, 20 Ohio St., 110.


text:
    No. 4243.
    Hukill v. Haigler et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Fayette county.

      Joseph Hidy, for plaintiff: in error.

      Harper <& Harper and John Logan, for defendants in error.
   Judgment affirmed.

Williams, C. J., not sitting.


text:
    No. 4244.
    Hukill v. Haigler et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Fayette county.

      Joseph Hidy, for plaintiff in error.

      Harper & Ha/rper and John Logan, for defendants in error.
   Judgment affirmed.

Williams, C. J., not sitting.


text:
    No. 4248.
    Kerr et al v. Paul et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Morrow county.

      Han Babst, Jr. and Olds & Olds, for plaintiffs in error.

      John IF. Barry and Ilarlan & Wood, for defendants in error.
   Judgment affirmed.


text:
    No. 4266.
    Railroad Company v. City of Washington et al.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Payette county.

      J. II. Collins, for plaintiff in error,

      Bye Gregg, for defendants in error.
   Judgment affirmed.

Williams, C. J., not sitting.


text:
    No. 4267.
    Doty v. Van Horn & Co.
    (Decided October 6, 1896.)
    Error to the Circuit Court of Hancock county.

      A. Blackford and B. J. Kibler, for plaintiff in error.

      A. Zugscluoert, for defendants in error.
   Judgment affirmed.


text:
    No. 4816.
    Railway Company v. Martin, Adm’r.
    (Decided October 6, 1896.)
    Error to the Superior Court of Cincinnati.

      Bamsey, Maxwell <& Bamsey, for plaintiff in error.

      Hiram I). Peck and Olivet" B. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 5258.
    The State ex rel. Marks v. Dahl et al.
    (Decided October 6, 1896.)
    In Mandamus.

      John Logan, for plaintiff.

      J. J. Hcurper, for defendant.
   Demurrer to petition sustained, writ refused and petition dismissed.

Williams, C. J., not sitting.


text:
    No. 4219.
    Johnson et al. v. Village of Ashland.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Ashland county.

      George B. Smith; Jenner, Jenner da Weldon and Byron Stihoell, for plaintiffs in error.

      W T. Devor, City Solicitor, for defendant in error.
   . Judgment affirmed.


text:
    No. 4274.
    Hegler, Receiver, v. Peoples and Drovers’ Bank et al.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Payette county.

      M. Willa/rd, for plaintiff in error.

      Humphrey Jones and Harper da Hcurper, for defendants in error.
   Judgment affirmed.

Williams, C. J., not sitting.


text:
    No. 4278.
    Gibb v. Townsend, Receiver, et al.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Huron county.

      A. M. Beattie, for plaintiff in error.

      Andrew Bros., for defendants in error.
   Judgment affirmed.


text:
    No. 4290.
    Baier v. Stoll et al.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Wyandot county.

      D. D. Han'e and Watts <& Moore, for plaintiff in error.

      D. D. Clayton and Benjamin Aleck, for defendants in error.
   Judgment affirmed on the authority of Neuman v. Becker, 54 Ohio St., 323.


text:
    No. 4296.
    Mulrooney v. Clum, Adm’r, et al.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      llessenmueller cfe Bemis, for plaintiff in error.

      Alfred Crum; Emil Joseph; M. B. c§ IT. II. Johnson; Wilcox c& Collister; J. 0. Winship; Thomas Piwonka and George A. Groot, for defendants in error.
   Judgment affirmed.


text:
    No. 4310.
    Village of Barnesville v. Rosser.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Belmont county.

      Petty <& Smith and George Duncan, for plaintiff in error.

      Tollman c& Armstrong, and L. Danford, for defendant in error.
   Judgment affirmed.


text:
    No. 4317.
    Amelong v. Keil.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Allen county.

      Thomas R. Shaw and Prophet <& Eastman, for plaintiff in error.

      J. J. Ferrall and P. R.. Kerr, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 4336.
    Minnix et al. v. Eikenberry, Executor.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Preble county.

      James A. Gilmore and Rising er c& Rising er, for plaintiffs in error.

      R. W. Quinn and Fisher <& Vaughan, for defendant in error.
   Judgment affirmed;


text:
    No. 4339.
    Gormly, Assignee, etc., v. Thomas.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Seneca county.

      F. S. Monnett, for plaintiff in error.

      Thomas N. Bierly, for defendant in error.
   Judgment affirmed on the authority of Armstrong v. Warner, 49 Ohio St., 376.


text:
    No. 4937.
    Harmon v. The State.
    (Decided October 13, 1896.)
    Error to the Circuit Court of Jackson county.

      James M. Tripp, for plaintiff in error.

      John W. Higgins, Prosecuting Attorney, and F. O. Powell, for defendant in error.
   Judgment affirmed.


text:
    No. 4276.
    Persinger v. Thurston.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Fayette county.

      John Logan, for plaintiff in error.

      Joseph Hidy and Humphrey Jones, for dorendant in error.
   Judgment affirmed


text:
    No. 4863.
    City of Cincinnati v. Pruden.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertemtein and Frank Hassav/rek, Corporation Counsel, for plaintiff in error.

      William L. Dickson, for defendant in error.
   Judgment affirmed on the authority of Branahan v. Hotel Co., 39 Ohio St., 332.


text:
    No. 3588.
    Haigler v. Logan.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Fayette county.

      Gardner & Rodg'ers and Post <& Beid, for plaintiff in error.

      John Log an for defendant in error.
   Judgment affirmed.

Williams, C. J., not sitting.


text:
    No. 4286.
    Farmers’ National Bank v. Morton et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Hancock county.

      A. & F. P. Blackford, for plaintiff in error.

      J. A. (& F. V. Bope, John Poe and John H. Doty, for defendants in error.
   Judgment affirmed.


text:
    No. 4300.
    Coons v. Farmers’ National Bank et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Hancock county.

      Thomas Meehan.and William V. Goons, for plaintiff in error.

      A. <& F. P. Blackford and J. A. & F. V. Bope, for defendants in error.
   Judgment affirmed.


text:
    No. 4337.
    Wilson v. Ayers.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Preble county.

      James A. Gilmore and J. W. King, for plaintiff in error.

      Fisher <& Vaughan and Á. F. Hume, for defendant in error.
   Judgment affirmed.


text:
    No. 4348.
    Stichtenoth v. Rife.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Hamilton county.

      Ramsey, Maxwell <£> Ramsey, for plaintiff in error.

      W. A. Hicks and G. F. Malsba/ry, for defendant in error.
   Judgment affirmed.


text:
    No. 4352.
    Moody, Treasurer, et al. v. George et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Morrow county.

      J. W. Bct/rry, for plaintiffs in error.

      Harlan <& Wood, for defendants in error.
   Judgment reversed and cause remanded with instructions to sustain the demurrer for further proceedings.

Minshall, J., dissents.


text:
    No. 4375.
    Brown et al v. Hull.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Hancock county.

      John Poe, for plaintiffs in error.

      8. P. Hcm-ison, for defendant in error.
   Judgment reversed on the authority of Railway Co. v. Wright, 54 Ohio St., 181, and cause remanded to circuit court with instructions to pass on questions presented by the bill of exceptions.


text:
    No. 4379.
    Showen v. City of Marion et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Marion county.

      J. db 8. II. Bartram and George D. Gopelcmd, for plaintiff in error.

      W. Z. Davis, for defendants in error.
   Judgment reversed and cause remanded to the circuit court with instructions to overrule demurrer and for further proceedings.


text:
    No. 4385.
    Reed et al. v. German Baptist Church et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Miami county.

      Byrkeit da Gilbert, for plaintiffs in error.

      A. F. Broomhall and M. K. Gante, for defendants in error.
   Judgment affirmed.


text:
    No. 4388.
    Cheney v. Butler.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Franklin county.

      Farnha/rt da Swwte, and Taylor da Taylor, for plaintiff in error.

      Bicluwds da Sullivan, for defendant in error.
   Judgment affirmed.


text:
    No. 4397.
    Penfield & Son v. O’Neil.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Lake county.

      Horace Alvord, for plaintiffs in error.

      George W. Alvord, for defendant in error.
   Judgment affirmed.


text:
    No. 4823.
    Railway Company v. Fox.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Huron county.

      Swa/yne, Hayes da Tyler, for plaintiff in error.

      G. T. Stewart, for defendant in error.
   Judgment affirmed.


text:
    No. 4871.
    Alter, a Tax Payer, v. City of Cincinnati et al.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Hamilton county.

      Theodore Horstman, for plaintiff in error.

      Frederick Hertenstein¡ Corporation Counsel, and Drausin Wulsin, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 4897.
    Patton v. Railway Company.
    (Decided October 27, 1896.)
    Error to the Circuit Court of Franklin county.

      Florizel Smith and Paul Jones, for plaintiff in error.

      Watson, Burr, dó livescmf, for defendant in error.
   Judgment affirmed.


text:
    No. 3483.
    Ridgway et al. v. Rio Grande College et al.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Gallia county.

      White & Holcomb and F. C. Bussell, for plaintiffs in error.

      Wood <& Wood and Grosvenor, Jones <& Worsted, for defendants in error.
   Judgment affirmed.


text:
    No. 3584.
    Miller v. Weisenburger.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Defiance county.

      Hcm-is c& Cameron, for plaintiff in error.

      B. B. Kingsbury and John W Slough, for defendant in error.
   Judgment affirmed. It appears that one ground of reversal was that theverdictwasagainsttheweight of the evidence. Other questions not passed upon.


text:
    No 4391.
    Hoffman v. Hanken et al.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Putnam county.

      Watts <& Moore, for plaintiff in error.

      George Fritz, for defendants in error.
   Judgment affirmed.


text:
    No. 4400.
    West v. Norwalk National Bank.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Sandusky county.

      Bartlett c& Wilson, for plaintiff in error.

      O. P. <& L. W Wickham; Finefrock c& Garver and O. L. Eennan, for defendant in error.
   Judgment affirmed on the authority of Benninger v. Hess, 41 Ohio St., 64.


text:
    No. 4418.
    Olinger, a Minor, v. McGuffey et al.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Franklin county.

      Me Guffey <& Sims, for plaintiff in error.

      Arnold do Morton, for defendants in error.
   The court is of the opinion that there is error shown by the record for which the judgment should be reversed, in this, to wit: That the said James W. Meek, in his answer and cross petition avers that the note on which the suit is brought had been paid off and extinguished, and that the indorsement on the note was placed thereon merely as a memorandum at the request of John G. McGuffey, and not to pass the title to the note, which was denied in the reply of the plaintiff. The burthen of this issue was on the said James M. Meek to establish the same, not by a mere preponderance of the evidence, but by clear and convineing proof. Prom an examination of . the evidence there does not appear to be such proof, and the court must have been of the opinion that such proof is not necessary and that a mere preponderance is all that is required.

Therefore, the court being of the opinion that the rule has been disregarded in this case, the judgment is reversed and cause remanded to the circuit court for a new trial. Ford v. Osborn, 45 Ohio St., 1.


text:
    No. 4438.
    Kelley v. Barnett et al.
    (Decided November 10, 1896.)
    Error to the Circuit Court of Columbiana county.

      S. G. Gowgill and J. M. Dickinson, for plaintiff in error.

      Fording <& Harris and W. S. Potts, for defendants in error.
   Judgment affirmed.


text:
    No. 3593.
    Methodist Protestant Church v. Laws et al.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Hamilton ■county.

      Matthews c6 Cleveland and Archer c& McNeill, for plaintiff in error.

      Rcmnsey, Maxwell <& Ramsey, for defendants in error.
   Judgment affirmed.


text:
    No. 3611.
    Railway Company v. Henderlich.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Ottawa county.
    Bwayne, Bwayne, Hayes <& Tyler, for plaintiff in error.
    <7. I York, for defendant in error.
   On consideration whereof the court find that there is error in the record and judgment of the court of common pleas, and that the circuit court erred in affirming the said judgment of the court of common pleas.

The records of former action introduced • in evidence upon the trial in the common pleas were not sufficient-to create an estoppel, not being records in cases between these said parties, and aside from the records the question as to the existence of the street should have been submitted to the jury upon the testimony. It is therefore ordered and adjudged that the judgment of the circuit court, and also the judgment of the court of common pleas in this case be and and the same are hereby reversed at the costs of said defendant in error. It is further ordered and considered that said plaintiff in error recover from said defendant in error its costs herein expended, and that said defendant in error pay the costs by him made, and in default that execution issue therefor, and that this cause be remanded to the court of common pleas of Ottawa county for a new trial and proceedings according to law.


text:
    No. 3643.
    Kilgour v. Groeschen.
    (Decided November 17, 1896.)
    Error to the Superior Court of Cincinnati.

      Burch & Johnson, for plaintiff in error.

      Mallon, Ooffey <& Motion, for defendant in error.
   Judgment affirmed.


text:
    No. 3943.
    Snyder v. Albright.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Stark county.

      J. A. Ambler; B. H. Folger and Baldwin <& Shields, for plaintiff in error.

      Bay, Lynch <& Bay, for defendant in error.
   Judgment affirmed.


text:
    No. 4002.
    Ingersoll, Adm’r, Etc., v. Smith, Jr., Ex’r, et al.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Burke <& Ingersoll, for plaintiff in error.

      Wilcox & Gollister; Kline, Carr, Tolies <& Goff and Hoyt, Bustin & Kelley, for defendants in error.
   Judgment affirmed.


text:
    No. 4398.
    Plumley v. Bellard.
    (Decided November 17, 1896.)
    Error to the» Circuit Court of Ashtabula county.

      Wade & Betts, for plaintiff in error.

      William II. Buggies, for defendant in error.
   Judgment affirmed.


text:
    No. 4424.
    Railroad Company v. Brown et al.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Butler county.
    MilliMn, Shoots db MilliMn, for plaintiff in error.
    Morey, Andrews db Morey, for defendant in error.
   Judgment affirmed.


text:
    No. 4762.
    The State ex rel. Willard et al. v. Fawcett et al.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      John 0. Winship and James M. Jones, for plaintiffs in error.

      Norton T. Ilorr, for defendants in error.
   Judgment affirmed.


text:
    No. 4927.
    Railway Company et al v. McGovern.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Williamson <& Gushing, for plaintiffs in error.

      George H. Billman and J. E. Ingersoll, for defendant in error.
   Judgment affirmed.


text:
    No. 5298.
    Cottell v. The State.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Summit county.

      Fckoin F. Vorhes and Han'vey Musser, for plaintiff in error.

      F. S. Monnett, Attorney General, and B. M. Wanamaker, for defendant in error.
   Judgment reversed and cause remanded for a new trial on the authority of Kelch v. The State, 55 Ohio St., 146, for error in the charge of the court as to the degree of proof required to establish defense of insanity. No other error is found in the record.

Minseall, J., dissents.


text:
    No. 3545.
    Wells, Treasurer, v. Adair.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Scioto county.

      John C. Milner and A. O. Thompson, for plaintiff in error.

      N. W. Evans aud R. Livingstone, for defendant in error.
   Judgment affirmed, one ground of reversal by the circuit court being that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 3637.
    Clark et al. v. The Cleveland Refining Co.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Marvin, Sadler <& Atterholt, for plaintiffs in error.

      William M. Reynolds and Virgil P. Kline, for defendant in error.
   Judgment affirmed.


text:
    No. 3645.
    Lucy v. Insurance Company.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      John 0. Winship, for plaintiff in error.

      O. L. Hollze and M. R. Rickey, for defendant in error.
   Judgment affirmed.


text:
    No. 3669.
    Sibley et al., Ex’rs., v. Lehman et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Scioto county.

      A. O. Thompson, for plaintiffs in error.

      T. 0. Anderson, for defendants in error.
   Judgment affirmed, it appearing that one ground of reversal is that the finding of fact is against the evidence. Other questions not passed upon.


text:
    No. 3690.
    Winn, Assignees, et al. v. Brock et al.
    (Decidep November 24, 1896.)
    Error to the Circuit Court of Muskingum county.

      Simeon M. Winn; William S. O'1 Neal and Dv/rban (& McDm'mott, for plaintiffs in error.

      Gha/rles A. Bea/t'd, for defendants in error.
   Judgment affirmed.


text:
    No. 3713.
    Taylor, Adm’r, v. Musser, Auditor, et al.
    (Decided November 25, 1896.)
    Error to the Circuit Court of Scioto county.

      N W. Evans and Duncan Livingstone, for plaintiff in error.

      A. O. Thompson and John G. Milner, for defendants in error.
   Judgment affirmed.


text:
    No. 3721.
    The Pioneer Savings & Loan Company v. McCormick et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Hancock county.

      H F. Burket and G. I). Emery, for plaintiff in error.

      Jason Blackford, for defendants in error.
   Judgment affirmed.


text:
    No. 3722.
    The Pioneer Savings & Loan Company v. Lichtig et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Hancock county.

      H. F. Burket and G. D. Emery, for plaintiff in error.

      Jason Blackford, for defendants in error.
   Judgment affirmed.


text:
    No. 3732.
    Wright et al. v. Hobson, Recorder.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Hamilton county.

      W. A. Hicks and O. -F. Malsban'y, for plaintiffs in error.
    Spiegel, Bromwell & Foraker, County Solicitors, and Edward FT. Glingman, for defendant in error.
   Judgment affirmed.


text:
    No. 3783.
    Mansfield et al., Trustees, v. Mills, Spellmire & Co.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Hamilton county.

      Sidles & Sidles, and L. Brucker, for plaintiffs in error.

      Herman Muller, for defendants in error.
   Judgment affirmed.


text:
    No. 3784.
    Mansfield et al., Trustees, v. Heberger et al.
    (Decided November 24, 1896.)
    ERROr to the Circuit Court of Hamilton county.

      Sidles <& Sidles and L. Brucker, for plaintiffs in error.

      Herman Muller, for defendants in error.
   J udgment. affirmed.


text:
    No. 3857.
    Griffith v. City of Findlay.
    (Decided November 24, 1896.)
    Error* to the Circuit Court of Hancock county.

      Foster c& Smith and George II. Phelps, for plaintiff in error.

      William F. Hunccm, for defendant in error.
   Judgment affirmed.


text:
    No. 4154.
    DeRhodes v. Peters.
    (Decided November 24 1896.)
    Error to the Circuit Court of Wood county.

      Pa/rh&r <& -Moore, for plaintiff in error.

      Taylor da Westenhmer and Troup da Dunn, for de^ fendant in error.
   Judgment affirmed.

Burket and Shauck, JJ., dissent.


text:
    No. 4354.
    Dunnavant et al. v. Howlett et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Richland county.

      Jenner ds Weldon, for plaintiffs in error.

      M. B. Dvrlam, for defendants in error.
   Judgment affirmed.


text:
    No. 4387.
    Diley v. Diley et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Fairfield county.

      W. H. Lane and M. Á. Daugherty, for plaintiff in error.

      George B. Ma/rUn, for defendants in error.
   Judgment affirmed.


text:
    No. 4390.
    Glockner v. Newland et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Scioto county.

      N W. Evans and Duncan Livingstone, for plaintiff in error.

      Theodore A. Funk, for defendants in error.
   Judgment affirmed.


text:
    No. 4406.
    Brant v. Lyon.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Clinton county.

      P. Savage, for' plaintiff in error.
    IF. 27. Hartman, for defendant in error.
   Judgment affirmed.


text:
    No. 4434.
    Williamson et al. v. Johnson, Adm’r.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Tuscarawas county.

      A. L. Neeley and Henry Bowers, for plaintiffs in error..

      A. IF Patrick and J. G. Patrick, for defendants in error.
   Judgment affirmed.


text:
    No. 4436.
    Smith v. King.
    (Decided November 24, 1896.)
    Error'to the Circuit Court of Richland county.

      Bradford do Moorhouse and B. Dvrlam, for plaintiff in error.

      Cummings <& McBride; A. J. Txoitchell and W. S. Kerr, for defendant in error.
   Judgment affirmed on the authority of Neuman v. Becker, 54 Ohio St., 323.


text:
    No. 4437.
    Smith v. Mansfield Savings Bank.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Richland county.

      Bradford do Moorhouse and. D. Dvrlam,. for .plaintiff in error.

      Cummings do McBride; A. J. Iwitchell and W. S. Kerr, for defendant in error.
   Judgment affirmed on the authority of Neuman v. Becker, 54 Ohio St., 323.


text:
    No. 4455.
    Detwiler et al. v. St. John et al.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Wood county.

      King do Tracey and Parker do Moore, 'for plaintiffs in error.

      Baldmin do Harrington, for defendants in error.
   Judgment affirmed.


text:
    No. 4456.
    Brayton et al. v. Buckland.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Putnam county.

      Olive O. Handy and Handy c& Ogan, for plaintiffs in error.

      Thomas W. Prentiss and Bailey <& Bailey, for de-' fendant in error.
   ' Judgment affirmed.


text:
    No. 4673.
    Railway Company v. Ivins.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Warren county,

      J. E. Smith; John T. Dye and Goulder da Holding. ' for plaintiff in error.

      Seth W. Brown; W. L. Dechant and P. H. Rue, for defendant in error.
   Judgment affirmed.


text:
    No. 4822.
    Railroad Company v. Bradshaw.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Lucas county.

      Siuayne, Hayes & Tyler,, for plaintiff in error.

      George B. Boone, and Frank H. Hurd, for defendant in error. c
   On consideration whereof it is ordered and adjudged by this court that the judgment of the said circuit court be and the same is hereby reversed, and this court rendering the judgment that the circuit court should have rendered, it is ordered and adjudged that the judgment of the court of common pleas he and the same is hereby reversed and remanded to the court of common pleas for further proceedings according to law, upon the ground that the petition in the court of common pleas did not state a cause of action, in this, that it did not show that the broken and defective condition of the draw-bar contributed to cause the hand of the plaintiff in that court, tobe caught between the deadwoods and injured. The other questions not passed upon.


text:
    No. 4829.
    Elliott, Treasurer, v. Cummins, Executor.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Williams county.
    ’ John M. Killits for plaintiff in error.

      Boiuersox dk Starr; Joseph Cummins, Jr., and James JD. Hill, for defendant in error.
   Judgment affirmed.


text:
    No. 4864.
    City of Cincinnati v. Street Railway Company.
    (Decided November 24, 1896.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertenstein and William U. Whittaker, Corporation Counsel, for plaintiff in error.

      Paxton dk Warrington; Kittredge dk Wilby and Foraker dk Prior, for defendant in error.
   Judgment affirmed.


text:
    No. 3696.
    Peck, Adm’r, v. Cavagna.
    (Decided December 1, 1896.)
    Error to the Superior Court of Cincinnati. '

      Germ'd, Lampe da Stallo, for plaintiff in error.

      KitP'edge, Wilby da Simmons, and E. H. .Eleinschmidt, for defendant in error.
   Judgment affirmed.


text:
    No. 3701.
    Kirby et al. v. Bowdle et al.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Hamilton county.

      Ihompson, Riohm'ds da Rioha/rds; Ezelviel L. De-Gamp; Rmnsey, Maxwell <& Ramsey and Wmner M. Batema/n, for plaintiffs in error.

      Thomas MoDougal and Alfred O. Gassatt, for defendants in error.
   Judgment affirmed.


text:
    No. 3726.
    Railroad Company v. Griffith, Adm’x.
    (Decided December 1, 1896.)
    ■ Error to the Circuit Court of Licking county.

      J. LB Oollins and Eibler da Eibler, for plaintiff in error.'

      Samuel M. Hunter, for defendant in error.
   Judgment affirmed.


text:
    No. 3961.
    Mandeville et al. v. Dye.
    (Decided December 1, 1896.)
    Error to the Circuit Courtof Washington county.

      Loomis <& Wood/ward and Powell <& Minahan, for plaintiffs in error.

      Wye <& FolleM, for defendant in error.
   Judgment affirmed.


text:
    No. 4386.
    American Express Company v. McPherson.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Miami county.

      Bryhett c& Gilbert, for plaintiff in error.

      Olyde <& McPherson, for defendant in error.
   Judgment affirmed.


text:
    No. 4446.
    Reiter v. State ex rel. Reiter.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Putnam county.

      Bailey <& BaÁley, for plaintiff in error.

      John H. SOamcm and W. W. Sutton, for defendant in error.
   Judgment affirmed.


text:
    No. 5052.
    City of Hamilton v. Clawson et al.
    (Decided December 1, 1896.)
    Error to tlie Circuit Court of Butler county.

      EckoarcL II. Jones, for plaintiff in error.

      J. J. McMaken and M. 0. Burns, for defendants in error.
   Judgment affirmed.


text:
    No. 5330.
    The State ex rel. Pearson v. Bushnell, Governor, et al.
    (Decided December 1, 1896.)
    In Mandamus.

      G. Bambach <£¡ Son, for plaintiff.

      F. S. Monnett, Attorney General, for defendants.
   Demurrer to petition sustained- and writ refused.


text:
    No. 3520.
    The State ex rel. Attorney General v. The Peoples’ Industrial Fire Association.
    (Decided December 8, 1896.)
    Quo Warranto.

      F. S. Monnett, Attorney General, for plaintiff.

      George S. Bailey, for defendant.
   Judgment for defendant.


text:
    No. 3743.
    Corrigan v. Kimberly, Treasurer, et al.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    Goulder, Wing c6 Holding, for plaintiff in error.

      P. H. Kaiser, for defendants in error.
   Judgment affirmed. .


text:
    No. 3754.
    Burnett et al. v. Felt.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Summit county.

      K. Sowers and Green, Grant & Sieber, for plaintiffs in error.

      Marvin & Sadler, for defendant in error.
   J udgment affirmed.


text:
    No. 3756.
    Stevens v. Wheeler.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Huron county.

      Cummings <& McBride, for plaintiff in error.

      W. Severance, for defendant in error.
   Judgment affirmed.


text:
    No. 3773.
    Wells v. Railroad Company.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Mahoning county.

      B. B. Murray, for plaintiff in error.

      Mine <& Clark; J. B. Carey and W. C. Boyle, for defendant in error.
   Judgment affirmed.


text:
    No. 3789.
    Ream et al. v. Ramlow et al.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Franklin county.

      C. T. Clark and'N. 'Haonbleton, for plaintiffs in error.

      0. IF. Aldoñoh and Marodott <& Hughes, for defendants in error.
   Judgment affirmed on the authority of Dengenhart v. Cracraft, 36 Ohio St., 549.


text:
    No. 3791.
    Railroad Company v. Ault.
    (Decided December 8 1896.)
    Error to the Circuit Court of Ross county.

      E. W. Strrong and IF H. Wiggins, for plaintiff in error.

      Mayo, Yaple <& Phillips, for defendant in error.
   Judgment of the common pleas reduced to $100.00, with interest, from the date of its rendition. In other respects the judgment of the circuit court is affirmed.


text:
    No. 3793.
    Hickox, Admr., v. Shields, Treasurer.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Cuyahoga county.

      Burke da Ingersolls, for plaintiff in error.

      Boynton da Horr and P. H. Kaiser, for defendant in error.
   Judgment affirmed on the authority of Gager, Treas., v. Prout et al., 48 Ohio St., 89, and Probasco v. Paine, Auditor, 50 Ohio St., 378.


text:
    No. 3811.
    Dieringer v. Building & Loan Company.
    (Decided December 8, 1896.)
    Error to the Superior Court of Cincinnati.

      Charles W. Baker, for plaintiff in error.

      William L. -Dickson, for defendant in error.
   Judgment affirmed.


text:
    No. 4988.
    Street Railway Company v. City of Findlay.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Hancock county.

      J. A. da E.Y. Bope, for plaintiff in error.

      William F. Duncan and George W Poss, City Solicitor, for defendant in error.
   Judgment of the circuit court as to the 1st, 2d and 3d causes of action reversed, and that of the common pleas affirmed, and as to the 4th cause of action, judgment of the circuit court is affirmed.

Burket, J., not sitting.


text:
    No. 3822.
    Scott v. Wissler et al.
    (Decided December 15, 1896.)
    Error, to the Circuit Court of Ross county.

      B. A. Hm'rison and L, T. Neal for plaintiff in error.

      W. T. Me Clintick and E. W. Sfrong, for defendants in error.
   Judgment affirmed.

Minshall, J., did not sit in the case.


text:
    No. 3823.
    Glenn et al. ex’rs v. Raine, Auditor.
    (Decided December 15, 1896.)
    Error to the Superior Court of Cincinnati.

      Herron, Gatch db Herron, for plaintiffs in error.

      Thomas McDougal, for defendant in error.
   Judgment affirmed.


text:
    No. 3824.
    Fischer v. Freiberg et al.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Hamilton county.

      Ha/rmon, Colston, Goldsmith <& HoadVy, for plaintiff in error.

      Kramer da Kratner and David J. Workum, for defendants in error.
   Judgment affirmed on the authority of Wetsell v. Bichcreek, 53 Ohio St., 62, it appearing that one ground of the reversal of the common pleas by the circuit court maj7 have been that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 3840.
    In the matter of Walsh et al. v. Taylor et al.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Summit county.

      Baird & Voris and Thomas F. Walsh, for plaintiffs in error.

      G. II. Hcnoland and Green, Grant c& Sieber, for defendants in error.
   Judgment affirmed.


text:
    No. 3855.
    The Syndicate Oil Fuel Company v. Bladkesley et al.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Hancock county.

      J. A. <& F. V. Bope and M. F. Elliot, for plaintiff in error.

      Shafer <& Platt, for defendants in error.
   J udgment affirmed.


text:
    No. 3867.
    Andrews et al. v. Smith et al.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Mahoning county.

      Thomas W. Sanderson and F. F. Hutchins, for plaintiffs in error.

      Hine (& Ola/rlce, for defendants in error.
   Judgment affirmed.


text:
    No. 3871.
    Squire v. Conkle, Treasurer.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Defiance county

      Henry and Edwa/i'd H Heiobegin, for plaintiff in error.

      John W. Slough, for defendant in error.
   Judgment affirmed.


text:
    No. 3939.
    Millhouse v. Railroad Company et al.
    (Decided December 19, 1896.)
    Error to'the Circuit Court of Marion county.

      Byrkett & Gilbert, for plaintiff in error.

      Frank Ohanoe, for defendants in error.
   Judgment affirmed for reason stated in the report of this case in 7 C. C. Rep., 466.


text:
    Nos. 4073 and 4405.
    Haines et al. v. Reiff.
    (Decided December 19, 1896.)
    Error to the Circuit Court of Seneca county.

      Seney db Seney,.for plaintiffs in error;

      Breioer db Breioer, for defendant in error.
   Application for rehearing not entertained.


author: Bradbury, J.

text:
    No. 5013.
    Miller v. The State.
    (Decided December 19, 1896.)
    Error to the Circuit Court of Seneca county.

      McCauley <& Weller and J. C. Royer, for plaintiff in error.

      George E. 'Schroth, Prosecuting Attorney, for defendant in error.
   Judgment affirmed.

Time of execution fixed for March 31, 1897.

Bradbury, J.

I dissent from the judgment of affirmance on the ground that the charge of the court, while in the main accurate and clear, was so prolix that it probably confused rather than guided the minds of the jury in considering the evidence. Its effect was to make too prominent the rights of the officers in making the arrest, while it failed to entirely cover the vital point in the case, which was that relating to the rights of the accused in the facts and circumstances immediately attending the homicide.


text:
    No. 3947.
    Steele et al. v. Swartz, Guard., et al.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Wayne county.

      McClure & Smyser and Ihomas W. Peckinpaugh, for plaintiffs in error.

      John M. Sioaríz and John Me Sweeney, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed, on the authority of Shahan v. Swan, 48 Ohio St., 25.


text:
    No. 3949.
    Webb, Jr., et al., Admrs. v. Roettinger, Admr., et al.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Hamilton county.

      Burch c& Johnson; D. Thew Wright and A. B. Champion, for plaintiffs in error.

      Robert 8. Fulton, for defendants in error.
   Judgment affirmed.


text:
    No. 3970.
    Woods, Jenks & Company v. Chapman.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Blandin <& Rice, for plaintiffs in error.

      Kline, Carr, Tolies <& Goff, for defendant in error.
   Judgment affirmed.


text:
    No. 3982.
    Bacon et al. v. Kuhn et al.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Defiance county.

      Henry <& Edward Nmbegin, for plaintiffs in error.

      Hill & Hubba/rd; Harris <& Cameron and Henry G. Baker, for defendants in error.
   Judgment reversed and cause remanded.


text:
    No. 3987.
    Mooney et al. v. Campbell et al.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Belmont county.

      Petty c& Smith, for plaintiffs in error.

      W. V. Campbell, for defendants in error.
   Judgment affirmed.


text:
    No. 3988.
    Lacy et al. v. Brotherton.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Hamilton county.

      J.. C. Robison, Jr., for plaintiffs in error.

      Ilarlan Cleveland ; Irwin c& Murray and Matthews dc Cleveland, for defendant in error.
   Judgment affirmed.


text:
    No 4254.
    Evans v. Thomas, Admrx.
    (Decided January 12, 1897.)
    Error to the Circuit Court of .Portage county.

      I. T. Siddall, for plaintiff in error.

      A. S. Cole, for defendant in error.
   Judgment affirmed, the questions argued not properly presented by the record.


text:
    No. 4440.
    Wood v. Railroad Company.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Marion county.

      Scofield, Durfee & Scofield, for plaintiff .in error.

      W. Z.Davis, Goulder <& Holding and John T. Dye, ■ for defendant in error.
   Judgment affirmed for the reason that judgment was reversed by the circuit court on the weight of the evidence. Other questions not passed upon.


text:
    No. 4444.
    Reemsnyder v. Galt et al.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Stark county.

      Meyer & Piero, for plaintiff in error.

      Clark, Ambler & Clark, for defendants in error.
   Judgment affirmed.


text:
    No. 4487.
    Brown v. Heffner.
    (Decided January 12, 1897.)
    Error to the Circuit • Court of Miami county.

      H. H. Williams, for plaintiff in error,

      J. A. Kerr, for defendant in error.
   Judgment affirmed.


text:
    No. 4543.
    The Globe Oil Company v. Gardner.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Henderson, Mine & Tolies, for plaintiff in error.

      Blanden & Bice, for defendant in error.
   Judgment affirmed.

Spear and Shauck, JJ., dissent.


text:
    No. 5205.
    Blair v. Railroad Company.
    (Decided January 12, 1897.)
    Error to the Circuit Court of Mahoning county.

      W. 8. Anderson; B. B. Murray and D. F. Anderson, for plaintiff in error.

      James P. Wilson, for defendant in error.
   Judgment of the circuit court reversed on the authority of Robinson v. Gary, 26 Ohio St., 241, and Railway Co. v. Whitacre, 35 Ohio St., 627, and judgment of the court of common pleas affirmed jfor $6,000.00.


text:
    No. 3219.
    German National Bank v. O’Gara et al.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Fairfield county.

      John 8. Brasee, and Hoyt, Dustin & Belley, for plaintiff in error..

      John G. Beeves and George F. Martin, for defendants in error.
   Judgment affirmed.


text:
    No. 3798.
    Thomas v. Koch, Guardian.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Wayne county.

      L. B. Oritohfidd and John 0. Me Clarran, for plaintiff in error.

      B. F. Eason, for defendant in error.
   Judgment affirmed.


text:
    No. 3813.
    Bryant et al. v. Insurance Company.
    (Decided January 19, 1897.)
    Error to the Superior Court of Cincinnati.
    Kittredge, Wilby da Simmons, for plaintiffs in error.

      Channing Richards; Stephens, Lincoln ds Smith and Paxton, Warrington da Boutet, for defendant in error.
   Judgment affirmed.


text:
    No. 3814.
    Bryant et al. v. Firemen’s Insurance Company.
    (Decided January 19, 1897.)
    Error to the Superior Court of Cincinnati.
    Kittredge, Wilby da Simmons, for plaintiffs in error.
    ' 1 axton, Warritigton d¡ Boutet; Stephens, Lincoln d¡ Smith and Channing Richards, for defendant in error.
   Judgment affirmed.


text:
    No. 3972.
    The A. C. Evans Manufacturing Co. v. Jackson et al.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Sandusky county.

      Bucklancl <& Love, for plaintiff in error.

      Finch d¡ Dewey, for defendants in error.
   Judgment affirmed.


text:
    No. 3995.
    Gibbons v. Brewer.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Montgomery county.
    Munger, Kennedy <& Munger, for plaintiff in error,

      Emanuel dc Dioyer, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 4006.
    Railway Company v. Rhodes.
    (Decided January 19, 1897.)
    Error to ■ the Circuit Court of Mercer county.

      Bioayne, Hayes d Tyler. and Marsh d¡ Loree, for plaintiff in error.
    G.S.Mauk, for defendant in error.
   Judgment affirmed.


text:
    No. 4008.
    Campbell v. Johnson, Receiver.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      O. J. Campbell, for plaintiff in error.

      Q-. II. Foster and C. O. Williams, for defendant in error.
   Judgment affirmed.


text:
    No. 4035.
    The Mahoning Gas Fuel Company v. Brown, Receiver.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Mahoning county.

      Myron A. Norris; Thomas W. Sanderson; M. F. ElMott; II. Mo Sweeney and F. II. Feed, for plaintiff in error.

      Mine c& Clarke, for defendant in error.
   Judgment affirmed.


text:
    No. 4041.
    Ramsey v. Ulrick, Bell & Co.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Franklin county,

      J. V. Lee and Walter B. Paige, for plaintiff in error.

      J. W.- Mooney, for defendant' in error.
   Judgment affirmed.


text:
    No. 4045.
    Railroad Company v. City of Tiffin.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Seneca county.

      J. II. Collins, for plaintiff in error.

      P. H. Jayne, for defendant in error.
   Judgment affirmed.


text:
    No. 4449.
    Railway Company et al. v. Phillips.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Geauga county»

      J. B. Burrows, for plaintiffs in error.

      I. ■ N. Hathaway for defendant in error.
   Judgment affirmed.


text:
    No. 4467.
    Railway Co. v. Borden et al.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Stark county.

      Day, Lynch <& Day, for plaintiff in error.

      D. P. Bemdehl and Harter <& Kirchbcwm, for defendants in error.
   Judgment affirmed.

Shauck and Spear, JJ., dissent.


text:
    No. 4468.
    Goudy v. Borden et al.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Stark county.

      Day, Lynch <& Day, for plaintiff in error.

      D. F. Reindehl and Harter c& Kirchbaum, for defendants in error.
   Judgment affirmed.

Shauck and Spear, JJ., dissent.


text:
    No. 4793.
    German National Bank v. O’Gara et al. Admr’s.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Fairfield county.

      Brasee & Brasee; Pickering cfi Pickering and A. O. Dustin, for plaintiff in error.

      John G. Reeves and George F. Martin, for defend- ' ants in error.
   Judgment affirmed.


text:
    No. 4966.
    Knower, Executor v. City of Toledo.
    (Decided January 19, 1897.)
    Error to the Circuit Court of Lucas county.

      Hamilton <& Kirby, for plaintiff in error.

      T. J. McDonnell, for defendant in error.
   Judgment reversed and cause remanded to the circuit court for trial on the issues of fact.


text:
    No. 4051.
    Ong et al. v. Worden.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      W. S. Kerruish and K. J. Bladin, for plaintiffs in error.

      J. E. Ingersoll and W. B. Beebe, for defendant in error.
   Judgment affirmed.


text:
    No. 4052.
    Calvert v. Russell et al.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Morgan county.

      Ball da Ivers, for plaintiff in error.

      Berry ds Weber, for defendant in error.
   Judgment affirmed.


text:
    No 4070.
    Farmer v. Cope et al. exrs. et al.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      E. Sowers and T. E. Burton,' for plaintiff in error.

      II. G. Ranney; Squire, Saunders da Dempsey and James G. Moore, for defendants in error.
   Judgment afflrjned.


text:
    No. 4083.
    King v. Spayne.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Clinton county.

      Smith do Savage and Mills do Clevenger, for plaintiff in error.

      Hayes do Sioain, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 5027.
    Anderson v. Hoover, Treas.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Licking county.

      J. B. Davis; Thomas McDougal and Alfred C. Cassett, for plaintiff in error.

      Charles W. Miller and Edtocwd Eibler, for defendant in error.
   Judgment affirmed on the authority of Hagerty, Treas. v. State ex rel., 55 Ohio St. 613.


author: Minshall, J.

text:
    The Citizens’ Electric Railroad Company v. County Commissioners.

      Municipal corporation — Powers of — Ordinance authorizing corporation to extend road — Act unlawful, when — Sections 3438 and 863 Rev. Stat.

    An ordinance adopted oy a city council under section 3438, Revised Statutes, simply confers on a street railway company the corporate power to extend its road over a state or county road. In the exercise of the power, the right to so extend its road, can only be acquired by agreement with the commissioners or by condemnation; and where a company so extends its ro^ad over a state or county road beyond the city limits, without such agreement or condemnation, its acts are uulawful, and a recovery of the damages caused to the road, may be had at the suit of the county commissioners under Sec. 86S, Revised Statutes.
    (Decided February 2, 1897.)

      Error to the. Circuit Court of Richland county.
    Under an ordinance passed by the city council of the city of Mansfield, June 7, 1892, authorizing the Citizens’ Electric Railway Light and Power Company to extend its track within the city limits, and also without, “ along- what is known as the Olivesburg road” to a definite point, the road named being- a state road, the Electric Railway Company extended its track over the road, digging it -up and excavating it so as to greatly injure and impair its usefulness for public travel. No leave was obtained from the county commissioners nor agreement had with them. On these facts the commissioners brought suit against the company for damages under the proyisions of section 863, Revised Statutes. At the trial evidence was offered by the plaintiff of the facts stated; the defendant offered the' ordinance, and moved the court to direct the jury to return a verdict in its favor, which was done by the court. A motion for a new trial was made and overruled, and judgment rendered dismissing the action. The plaintiff excepted; and on error to the circuit court, the judgment was reversed and cause remanded for further proceedings.
    The case is now here for a reversal of the judgment of the circuit court.

      Cummings <& McBride, for plaintiff in error.
    It has been decided in Ohio that without statutory authority the commissioners in their official capacity cannot maintain an action for the wilful destruction of the highway. 7 Ohio, (pt. 1) 230; Commissioners v. Railway, 45 Ohio St., 403.
    The act first passed in this state and out of which section 3438 of the Revised Statutes grew, was passed and became a law April 10, 1861, and was entitled, “An act to provide for and regulate street railway companies.” 58 Ohio Laws, 66
    This act was amended Feb. 19, 1870, (see vol. 67, page 19, Ohio Laws) but making no change as to how and with whom such agreement should be made, except as to the national roads when the board of public works should be consulted. Although in the meantime no legislation was had enlarging upon these rights in favor of municipal corporations, still words importing such enlarged powers crept into the revision of 1880. (See section 3438 therein.) Allen v. Russell, 39 Ohio St., page 336.
    This court, however, is relieved from putting any forced construction upon the statute by the act of April 18, 1883. 80 Ohio Laws, page 174.
    It seems to us that the statute, 3438, means just what it says; that the language is plain and that there is no ambiguity in it when it says, that the authority to so construct .or extend such railway within and beyond the limits of a municipal corporation can be granted only by the council thereof by ordinance.
    The courts of Ohio have decided that the. Supreme Court and all other courts can not usurp the law-making power; but must confine themselves to determining what the law is and not to making new laws. Ludlow v. Johnson, 3 Ohio, 553; Pcmcoast v. Ruffin, 1 Ohio, 381; Beaver v. Blind Asylum, 19 Ohio St., 97.
    The circuit court, in deciding this case, got into the uncertain field of speculation to determine as they thought what the legislature meant by this amendment to section 3438, passed in 18§3. This was • erroneous. Broioer v. Hunt, 18 Ohio St., 311.

      Again it is the literal meaning of the statute that must be adhered to. If the intention is doubtful, the literal and obvious meaning must be adhered to. Burgett v.. Burgett, 1 Ohio, 469.
    But if the language of the statute is unambiguous there is no room for construction. Mb Gormiok v. Alexander, 2 Ohio, 65.
    Another plain and simple rule in the construction of the statutes and which the circuit court violated in deciding this case, is the following: “The ordinary and natural import of words, consistent with the common sense of the community, is to be adopted in arriving at legislative intent.” Allen v. Little, 5 Ohio, 65; State v. Beck, 21 Ohio St., 26.
    Plain and explicit language cannot be construed contrary to the express words on conjecture. Hathaway’s Will, 4 Ohio St., 383; Smith Bridge Go. v. Bowman, 41 Ohio St., 37.
    Nor the obvious meaning abandoned though the court is convinced that the legislature intended differently and omitted words by mistake. Wood-bury v. Woodbury, 18 Ohio St., 456.
    Nor a new meaning given to words because such was the probable intention, nor a general law controlled by the peculiar circumstances of one case. Ludloio v. Wade, 5 Ohio, 494.
    . If several causes irreconcilably conflict, the last in date or local position must prevail, except perhaps, where the last is obscure and incoherent and the earlier clear and explicit. State ex rel. v. Hamilton, 47 Ohio .St., 42.
    This amendment in 1883 is in the nature of an exception varying the general statutes and therefore is not in conflict with any provision of section 863. State ex red. Orawford v. Mo Greggor, 4 Ohio St., 628; Brower v. Hunt, 18 Ohio St., 311.

      In short, when the words admit of but one meaning a court is not at liberty to speculate on the intention of the legislsture, or to construe an act according to its own notions of what ought to have been enacted.
    Whilst the court is to seek for the intention of the legislature, that intention is not, to be ascertained at the expense of the clear meaning of the words. Endlich on .Inter, of Stat., section 7; James v. Petten, 6 N. Y., 9, 13; Leoni v. Taylor, 20 Mich., 148; Frye v. R. B. Go., 73 111., 399.
    The intention of the legislature is to be ascertained by means of the words which it has used, and though these words are often modified, though their literal sense is not always adopted, though they are sometimes strained, transported, treated as inadequate or. as superfluous ; they are still the only interpreters of the mind of the legislature. Endlich on Inter, of Stat., sectionS; Breioer v. Blougher, 14 Pet., 178; Cearfoss v. State, 42 Md., 403.
    The circuit court, in their opinion of this case, clearly show that they have violated all of the above rules of construction. Their decision is not based on the language of the statute, but upon their own speculation.

      2£. May and J. O. Laser, for defendants in error.
    Defendant in error’s right to sue and recover is sustained by a number of cases brought under section 863, to-wit: Laiorenee Railroad Company v. Commissioners of Mahoning County, 35 Ohio St., 1; Perry County v. Railroad Company, 43 Ohio St., 451; Commissioners v. Railway Co., 45 Ohio St., 401; Railroad Co. v. Commissioners, 31 Ohio St., 338.

      There is only one question in this case, to which we will refer, and that is: Can a municipality by and through its council grant such rights to a street ear corporation to pass upon and over a public highway without the city limits, and change the grade of the same, without becoming responsible to the county commissioners, for the damage to the public highway, and to the property owners abutting upon the public highway, for the damage that may result to their properties by reason of the construction of a railway track ?
    Defendant in error thinks not for three reasons:

      First — Because a law, attempting to give to a city council a right to exercise such a power, or jurisdiction, over a state or county road, without the city limits, would be unconstitutional.

      Second — Because section 863 of the Revised Statutes gives to the commissioners of the several counties jurisdiction of the highways, and enjoins upon them the duty of keeping them in repair and free from obstruction, and to protect the rights of the public with reference to a wrongful 'invasion by private individuals or corporations upon public highways.

      Third — Because the statute construed, as plaintiff in error demands.that it shall be, would be in violation of section 19, of the Bill of Rights.
   Minshall, J.

The leave to extend, obtained by ordinance from the city council, did not, as we think, of itself confer the right on the company to occupy the Olivesburg road; it was under the supervision and control of the commissioners of the county, and, by section 3441, ‘Revised Statutes, the company was required to agree with the commissioners as to its occupation. No such agreement was had, and, therefore, what the company did was unlawful. Section 3438, Revised Statues, on which the company relies for its defense, must be construed with other sections relating to the same subject. State and county roads are under the general supervision and control of the commissioners of the county, where they are located; and by section 863, Revised Statutes “where any state or county road, or public highway, has been injured or impaired by placing or continuing therein, without lawful authority, any obstruction, or by filling up or digging out the bed thereof, or in any manner rendering the same less convenient or useful than had been previously by any person or corporation, such person or corporation shall be subject to an action for damages,” and the commissioners of the .county are authorized to bring the action and to “recover such damages as have accrued by reason thereof.” Section 3441 provides, that, “If the public road, along which the railway is to be constructed is owned by a person or company, ,or is within the control or management of the board of public works or other public officers, such person, company or officer may agree with the person or company constructing the railway as to the terms and conditions upon which the road may be occupied.” This section plainly applies to state and county roads under the control of county commissioners, as well as to roads under the control of the board of public works. No reason is perceived why any discrimination should have been made; and the term “officer” will, in its connection, by fair interpretation include a board of county commissioners. This section is not, therefore, consistent with the claim of the defendant, and clearly indicates that the ordinance provided for in section 3438, Revised Statutes, simply confers corporate power on street railway companies, and uot the right to use and occupy state and county roads in extending’ their tracks over them. Without such ordinance a company could not extend its road within or without the municipality. As a corporation it has, without the ordinance, no such power. To illustrate: By articles of incorporation a railway company is empowered to locate and . construct a railroad between its termini. But the power so conferred is subject to the duty of making compensation to the owner for .private property taken; and of agreeing with the county commissioners as to the use and occupation of public hig’hways under their control. Section 3283, Revised Statutes. In the same sense, under the provisions of section 3438, power may be c’onferred by ordinance on a street railway company to extend its road within or without the city or village, where located; but in executing the power it is reqiiired to conform to the duty of making compensation to the owner of private property taken, unless waived, and of agreeing with the commissioners as to the use and occupation of any state or county road under their control. And if it cannot do so, must resort to the alternative of condemnation, which it may do under the provisions of section 3440, Revised Statutes. Conferring the power to agree with the board or officer having control of the road, does not confer the right to take the road if an agreement cannot be had. The provision implies an alternative, and the duty to adopt one or the other. In this case the company did neither ; and, as a wrong doer, is therefore liable to the action of the commissioners for the damages caused to the road from the acts done, as averred in the petition and shown by the evidence. If it were otherwise, then a street railway company , could, under the ordinance of a city, extend its road over the highways of a county to any part of it without being liable for damages, though the roads so occupied might be rendered wholly useless 'for public travel. This is contrary to what has been the general policy of the state in regard to steam railways; and no reason is perceived why it should have been the intention of the legislature, by section 3438, to confer such franchise on street railways and, for the reasons before given and the sections of the statutes referred to, we feel sure that no such intention existed in adopting that section.

The case is well considered by Jenner, J., in delivering the opinion in the circuit court. 9 C. C. 183.

Judgment affirmed.


author: Shauck, J.

text:
    Irwin, Admr. v. Lombard University.

      Promissory note — Execrded to college — For purposes of the incorporation — •Sufficiency of consideration.

    The consideration for a promissory note executed to an incorporated college is the accomplishment of the purposes for which it is incorporated and in whose aid the note is executed; and such consideration is sufficient.
    (Decided February 2, 1897.)
    Error- to the Circuit Court of Hamilton county.
    The defendant in error brought suit in the common pleas court to recover the amount of a promissory note executed by Gilpin in his lifetime in aid of the endowment of Lombard University, the petition being in substance as follows :
    “The plaintiff says that the Lombard University, at Galesburg, 111., is a corporation duly organized under the laws of Illinois, for the purpose of conducting an institution of learning, and is authorized by the terms of its charter to receive and accept-donations and contributions for the purpose of' carrying on said institution of learning, establishing professorships, and generally to promote the interests of said institution, and that plaintiff is the duly elected treasurer of said Lombard University, and is now acting’ as such.
    Plaintiff further says that one Thomas Gilpin, since deceased, for the purpose of endowing said institution and to enable it to create certain professorships and to generally enhance the interests of said institution, executed and delivered to the treasurer of said Lombard University, at Gales-burg, 111., a certain promissory note, of which the following is a copy, with all endorsements thereon, to-wit:
    “$1,000. Cincinnati, Feb. 1, 1867..
    “Two years after date, for value received, I promise to pay to the order of the treasurer of Lombard University, at? Galesburg, 111., one thousand dollars, for the endowment of said institution, with interest at six per cent., payable annually.
    “Thomas Gilpin.”
    Plaintiff further says that the Lombard University secured from many persons at or about the time the said Thomas Gilpin executed and delivered said note, a large number of subscriptions,' some of which were paid in cash and others ’were evidenced by promissory notes, lor the purpose of creating a professorship in said institution, and relying upon the faith of such subscriptions, the said Lombard University has created said professorship at a large additional expense, and in many other ways caused large expenditures to be made on the faith of said subscriptions and relied upon the same to discharge the obligations thus entered into in that respect by said Lombard University; that the said Lombard University has in all respects performed all the conditions and obligations in respect to the creation of said professorship and in respect to other matters pertaining to the educational facilities of said college, and has ever since the said time relied upon said donations, subscriptions and promissory notes, including that given by said Thomas Gilpin, to sustain the additional expense thus created upon the faith of such subscriptions.
    The petition also alleges that Gilpin paid the interest which accrued upon said note to February' 11, 1887; that he died in 1890; that his administrator rejected the claim of the University upon said note and refused to allow it as valid claim against the estate, that the sum of $1,000.00 with interest from February 1, 1887, remained due thereon, and prayed judgment therefor.
    In his amended answer, the administrator admitted the execution of the note by Gilpin, the payment of interest by him as alleged in the petition, his death, and the rejection of the claim by his administrator. The answer also alleged “that the note sued on in plaintiff’s petition was executed by said Thomas Gilpin, deceased, during his life-time, as evidence of a subscription, and a voluntary gift, which said Gilpin at that time wished to make to said Lombard University, and that there was no consideration therefor; and further answering defendant denies each and every allegation in plaintiff’s amended petition contained except such as are herein specifically admitted.”
    The reply denied that the note was made without consideration, and alleged “that the said Thomas Gilpin in his lifetime with many other people living in the city of Cincinnati, and elsewhere in the state of Ohio, desiring to aid said Lombard University, an institution of learning in the city of Galesburg in the state of Illinois, and with a view of increasing its usefulness, agreed with each other and the Lombard University that they would each pay the sum of one thousand dollars for the purpose aforesaid; that the number so subscribing in the state of Ohio exceeded one hundred people, many of whom paid their subscriptions in cash, and others by giving their promissory notes; among the latter was the said Thomas Gilpin, who made, executed and delivered the promissory note set forth in the petition, in pursuance of said subscription and agreement as aforesaid; that in pursuance of said subscription and agreement by said Gilpin and others, residents of Ohio, a professorship was established in said university and named at the request of said donor in honor of the late I. D. Williamson, D. D., of Cincinnati, an eminent divine of the religious faith of said Thomas Gilpin and. others subscribing as aforesaid.
    Plaintiff for further reply says, that relying upon, the good faith of said Thomas Gilpin in making and delivering said promissory note, said university made and caused to be made large expenditures of money, and that the other persons subscribing in aid of said university have largely paid the amounts subscribed by them and acknowledged their obligations to pay the remainder whenever called upon by the authorities of said university.
    On the trial-in the court of common pleas, a jury was waived, and the cause was submitted to the judge upon the evidence and arguments of counsel. The judgment was in favor of the Univérsity, and a motion for a new trial being overruled, a bill of exceptions was taken containing all the evidence, and the cause was presented to the circuit court on error, where the judgment of the common pleas was affirmed. The petition in error in the circuit court invoked its judgment as to the sufficiency of the evidence to sustain the judgment.
    The evidence, without contradiction established the following facts:
    By act of the general assembly of the state of Illinois, Alfred Knowles and others and their successors were constituted a body corporate and vested with the powers usually conferred upon institutions designed to promote higher education, including power to contract and be contracted with, to sue and be sued, to acquire property by gift, grant, bequest, devise, or otherwise and to hold and convey the same, whether real, personal or mixed, to adopt á seal, to make by-laws for the government of the corporation, to receive and hold funds for the endowment of the university or of departments or professorships therein, to elect a president and such professors, tutors, instructors and other officers as they might deem for the interest of the university, to establish such departments of literature, science, law, medicine and theology as they may deem necessary to fix courses of study and to confer such academic, honorary or other degrees as are usually conferred by such institutions.
    At the time of the execution of Gilpin’s note, Ohio, Illinois and other states were canvassed for subscriptions or an endowment fund for the university, and more than one hundred thousand dollars was subscribed, and the subscriptions were collected as far as possible in cash and interest bearing notes. The income of the fund was to be used in payment of the salaries of professors and other current expenses.
    After the amount subscribed in Ohio was ascertained, a professorship of the Greek language and literature was established in the university, and in accordance with the wishes of the friends of the university in Ohio, it was called the “ Williamson Professorship.” A theological department was added, other teachers were employed, and further expense was incurred in improving and increasing apparatus.

      Irwin <& Murry, for plaintiff in error.
    This case presents not only the ordinary phases of a subscription to an educational institution, but also several other points growing out of the nature of the transaction, all or any of which we regard as being fatal to the claim of defendant in error.
    1. This was a gratuitous subscription wholly unsupported by a consideration1.
    2. Granting that the making of improvements and the incurring of expenses, relying upon the promise gives rise to a consideration, this being an endowment fund, the defendant in error could only rely upon the income arising from fund i. e. the interest, and this has been paid.

      3. Supposing a ease of consideration ' be made out by the proof of the incurring of obligations on the faith of the promise (which we submit is the only claim defendant in error' canhope to maintain) this consideration cannot retroact and give validity to a note void when given.
    4. The real promise was merely for the payment of interest and nothing more, save at the option of Gilpin himself.
    An agreement on the part of the institution to receive and invest the money when paid and apply the interest to the payment of officers’salaries is no consideration. Stewart v. College, 2 Denio (N. Y.) 403 ; Church v. Kendall, 121 Mass., 528; Trustees of Hamilton College v. Steioart, 1 Comstock (N. Y.) 581; Presbyterian Church of Albany v. -Cooper et al., 112 N. Y., 517; Baptist Church v. Cornell et al., 117 N. Y., 601; The Trustees, etc., v. Davis, 11 Mass., 113 ; Bridgewater Academy v. Gillbert, 2 Pick., 578; Ohio Wesleyan Female College v. Love's Fxr., 16 Ohio St., 28; Johnson v. Otterbein University, 41 Ohio St., 531.
    The alleged consideration of naming a chair at the request of Ohio subscribers is too illusory and unsubstantial to merit .more than passing notice. Furthermore it is not shown that Gilpin either requested or knew of the creation of the professorship. So this claim must also fail.
    The only serious ground of contention of the University is the incurring of obligations at the special instance and request of the promisor and upon the faith of his promise.
    There is certainly no request, as the note reads, either express or implied, either to do any act or to incur any liability upon the faith of the gratuitous promise therein contained.

      There is nothing in the evidence to show either directly or indirectly or by fair implication that Gilpin ever requested the doing of anything or the incurring- of any obligation.
    In the absence of testimony such request can not be inferred, and such proof is absolutely necessary to enable defendant in error to maintain this action.
    Nor are authorities wanting on the proposition that the mere handling of a fund (for that is our case, as no obligation could have been incurred, relying upon the principal) is not a sufficient consideration to support a promise.
    We confess a total inability to see any difference in principle between the creation of a fund to pay previously incurred indebtedness and one to pay expenses to be incurred in the future.
    The liability on the part of Gilpin (if any) only arose after the note was given, upon the doing of the work, etc. Up to that time a suit upon the note must have failed. The enforceable contract then cannot be predicated upon the note as a note, but should be on the promise, made enforceable by the doing of work, etc., after the note was given.
    Paxton, Warrington dc Boutet, for defendant in error.
    By admitting the execution and delivery of the note as stated in the petition, the burden is upon the defendant to show that there was no consideration therefor. He has adduced no testimony whatever, but relies solely upon the testimony offered by plaintiff, to establish his defense. By the state of the pleadings, it was not necessary for plaintiff, in our opinion, to offer any evidence whatsoever until the defendant had adduced some testimony at least to establish his defense. But we did offer evidence, however, in chief, which proved substantiaily the allegations of the amended petition. We maintain, therefore, that the facts stated in the amended petition being sufficient in law to warrant a recovery, 'Ohio Wesleyan Female College v. Love's Exr, 16 Ohio St., 20; then the evidence adduced by us must alsowarranta recovery.
    It is the policy of our state to encourage institutions of this kind, and all statutory enactments in their behalf should be liberally construed. Hooker, Admr., v. Wittenberq College, 2 Cin’ti Sup. .Ct. Rep., 353.
    It is contended, however, by defendant, that it is not shown by the testimony that anything was ever done by Lombard University upon the faith of the execution and delivei-y of this promissory note by Gilpin.
    The depositions of the two witnesses, Isaac A. Parker, professor of Greek language in Lombard University, and T. Judson Hale, secretary of the Lombard University, called by plaintiff, establish beyond peradventure that upon the faith of the endowment fund of one hundred thousand dollars, ■which was subscribed and paid for in cash and by notes, of which the note sued upon is a part, the Lombard University created additional professorships for said college, and expended other sums of. money for the improvement and advancement of said college. With this testimony, how is it possible to claim that if the payment of the note is enforced it will be giving the consideration a retroactive effect. The facts established bring the ease clearly within the rule that “where such subscription is made and accepted, and liabilities incurred on the faith of it, its collection cannot be defeated on the ground of the supposed want of valuable or legal consideration.” Ohio Wesleyan Female Colleger. Love’s Ex’rs., 16 Ohio St., 20; Cottage St. Meth. Fpis. Church v. Kendall, 121 Mass., 528; Simpson College r.Bryan, 50 la., 293; Sirnpson College v. Tuttle, 71 la., 596.
    We will concede for argument’s sake that if it were shown in this ease that the Lombard University did nothing whatever upon the faith of the subscriptions to the endowment fund, or in case said subscription was made to pay an existing indebtedness of the University, it would be a good defense to the payment of this note. Ilamor v. Moore’s Admr., 8 Ohio St., 239 ; Stctrrv. StarBs Exr, 9 Ohio St., 74. d
    The ground of the decision in the case of John» son v.Otterbein University, 41 Ohio St., 527, war that the subscription was made to pay an existing-'' indebtedness of the college, and there was no pre tense that any expenditures had been made by the institution on the faith of such subscription.
   Shauck, J.

It does not appear that anything of value passed from the university to Gilpin as a consideration. for the note, nor that he requested it to. expend money on the faith of his promise; nor that he requested others to contribute to the endowment and support of the university, except as such requests are to be inferred from the circumstances of himself and others when they made donations and executed obligations of this character, and from the nature of the enterprise which he and other donors and obligors were alike desirous of promoting, and from the character and objects of the obligee. It does, however, appear that Gilpin and many others were interested in maintaining Lombard University as an institution of learning, and that, a charter having been obtained from the legislature of Illinois, they undertook to contribute the funds necessary to the accomplishment of their purpose, some making donations in cash, others executing obligations of the character of that executed by Gilpin. It also appears that these donations and obligations were sufficient in amount and character to encourage the corporation to expend money and incur obligations in carrying out the purposes of its creation. The enterprise to which Gilpin and others contributed and subscribed did not fail, but went forward.

In view of these facts, counsel for the plaintiff n error contend that the note is a mere gratuity, oid for want of consideration; and they in voke the general rule that a consideration is necessary to support.a promise, relying especially upon Johnson v. University, 41 Ohio St., 527; Church v. Cooper, 112 N. Y., 517; and Church v. Kendall, 121 Mass., 528, as applying that rule to contracts of the character of this.

That a promise which does not secure a benefit to him who makes it, or loss or detriment to him to whom it is made or in any manner influence the conduct of others is not enforceable, is a recognized general rule of the law. According to familiar definition, a consideration is a benefit to the promisor or a loss or detriment to the promisee; and this definition is sufficiently comprehensive to determine the validity of the . promises which are usually the foundations of actions. But the cases are not infrequent in which, to avoid arbitrary exceptions, it has been found necessary to define more accurately and comprehensively. In the case of Currie v. Misa, L. R. 10 Exch., 153, it is said: “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered or undertaken by the other.” In Addison on Contracts (page 2) the author adopts the definition of the Indian Act: “When, at the desire of the promisor, the promisee, or any other person, has done, or abstained from doing’, or does or abstains from doing or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise.” Certainty of adjudication is promoted by the nearest possible approach to scientific accuracy. The comprehensiveness of the definition lastly given is required by well considered cases in .which contracts have been enforced, especially the class of contracts commonly .called subscriptions. It would not aid the present inquiry to show that decisions of unquestionable authority have affirmed the validity of contracts resting upon considerations not embraced in any of the foregoing definitions. Por present purposes it is sufficient that all th'e alternatives embraced in the definitions quoted are required by the adjudications.

Tested by either of the comprehensive definitions quoted, the contract under consideration is valid and enforceable. By the desire of Gilpin, many other persons made donations in money and executed obligations to the university of like character with his, and his promise was an inducement to their donations and promises. It is true that this doctrine is rejected by the supreme court of Massachusetts in Church v. Kendall. But in that state, one for whose benefit a contract is made by others, cannot maintain an action on it for want of privity. 'While in this state it has long been established that one for whose benefit others contract, upon a consideration sufficient as between themselves, may maintain an action for its enforcement. Crumbaugh v.Kugler, 3 Ohio St., 544; Thompson v. Thompson, 4 Ohio St., 333; Emmitt v. Brophy, 42 Ohio St., 82.

It is equally apparent that, prompted by the promises and gifts of Gilpin and others, “responsibility has been undertaken” by the university. It did not abandon the educational enterprise which these donors and promisors were desirous of promoting. Whether the object of the promisors was to secure the opportunity of educating their own children under such influences as they desired, or, more generally to contribute to the 'public welfare by increasing the facilities for higher education, it has been accomplished. It has been accomplished by the expenditure of money and the incurring of obligations, in reliance upon their .promises and similar promises from others.

Institutions of this character are incorporated by public authority for defined purposes. Money recovered by them on promises of this character, cannot be used for the personal and private ends of an individual, but must be used for the purposes defined. To this use the university is restricted not only by the law of its being but as well by the obligations arising from its acceptance of the promise. A promise to give money to one to be used by him according to his inclination and for his personal ends is prompted only by motive. But a promise to pay money to such an institution to be used for such defined and public purposes rests upon consideration.

The general course of decisions is favorable to the binding obligation of such promises. They have been influenced, not only by such reasons as those already - stated, but in some cases, at least by state policy as indicated by constitutional and statutory provisions. The policy of this state, as so indicated, is promotive of education, religion and philanthropy. In addition to the declarations of the constitution upon the subject, the policy of the state is indicated by numerous legislative enactments providing for the incorporation of colleges, churches and other institutions of philanthrophy, which are intended to be perpetual, and which not only for their establishment, but for their perpetual maintenance, are authorized to receive contributions from those who are in sympathy with' their purposes and methods — the only source from which, in view of their nature, their support can be derived. Looking to the plainly declared purpose of the law making department, promises made with a view to discharging the debts of such institutions, to providing the means for the employment of teachers, to establish endowment funds to give them greater stability and efficiency, and whatever may be necessary or helpful to accomplish their purposes or secure their permanency must be held valid. A view which omits considerations of this character is too narrow to be technically correct.

It is not contemplated by the parties, nor is it required by the law, that in eases of this character the institution shall have done a particular thing in reliance upon a particular promise. • Not only do the law and the parties contemplate the permanency of the institution, but all promisors understand that the proceeds of their promises will be mingled with prior and subsequent donations and tog-ether constitute the financial support of the enterprise. The cases must be rare indeed in which such contributions or promises would be made if others had not been made before, and rarer still, in which they would be made but for the belief that others will be made afterwards.

The requirements of the law are satisfied, the objects of the parties secured, and the perpetra-' tion of frauds prevented by the conclusion that the consideration for the promise in question is the accomplishment, through the university, of the the . purposes for which it was incorporated and in whose aid the promise was made. The defense properly failed because there was neither allegation nor proof of abandonment of those purposes.

From the very numerous cases in which these views are sustained by adjudications in other states, the following are selected: Academy v. Nelson, 24 Vt., 189; Institute v. Haskell, 73 Me., 140; College v. Bryan, 50 Iowa, 293; Collier v. Educational Society, 8 B. Mon., 68; Garrigus v. Missionary Society, 28 N. E. R., 1009; Barnett v. College, 37 N. E. R., 427 ; Amherst Academy v. Cowls, 6 Pick., 427; Roche v. Seminary, 56 Ind., 198; also Beach on Contracts, section 179, note 2.

In this state the reported eases, with but one -exception, are consistent with these views. Indeed, the validity of such promises is supported by all the cases in which it has been held that subscriptions for public purposes of such a nature are enforceable. For the law, regarding the substance rather than the form, permits nodistinetion because of the promises being in one instrument or several instruments. And the mutuality of the interests of the several promisors is not to be determined as a matter of time from the dates of their promises but from the continuity and perpetuity of the object to be accomplished. In Commissioners v. Perry, 5 Ohio, 56, this court established the validity of subscriptions to the accomplishment of a material purpose. The case of College v. Love's Exr., 16 Ohio St., 20, shows that the purposes of philanthropy are entitled to the same regard and that the .character of the obligation as a subscription is not affected by the fact that it is a separate paper. It also establishes the enforceable character of an instrument differing in no leg’al sense from that before us.

An examination of the digest of the decisions of the various courts of the state will show that there has been a uniform adherence to these views until the case of Johnson v. University, 41 Ohio St., 527, was decided by the commission. A majority of the court are of the opinion that there is not such identity of facts in that case and this that we are required here to overrule it.

Judgment affirmed.