author: Minshall, C. J.

text:
    Grever & Sons v. Taylor et al.

      Petition in replevin — Sufficient averment — Representations of purchaser as to pecuniary circumstances — Sufficient consideration— Right of transferee.

    1. A petition in replevin, in which it is averred, that the defendant wrongfully detains certain goods of the plaintiff, describing them, is sufficient, without an averment that the plaintiff is entitled to the possession: A wrongful detention by the defendant necessarily implies a right to the possession in the plaintiff; and wrongful detention is the gist of the action.
    2. Whether representations as to his pecuniary circumstances, made by the purchaser to the seller of goods, at one time in order to obtain credit, influenced the seller in making a like sale to the same party at a subsequent time, is a question of fact; and, in such case, it is competent for the seller to testify that they did. But the fact is to be determined by.the jury in view of all the circumstances; as, also, whether there was such fraud in the subsequent sale as to entitle the seller to recover the property, on the grounds that the information given in the first instance was false.
    3. A pre-existing debt is not a sufficient consideration for the transfer of property, to warrant the transferee to hold it as against the right of one, from whom the transferrer had obtained it by fraud in the purchase. Eaton <Sf Co. v. Davidson, 46 Ohio St., 355.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Hancock county.

      Follett (& Kelley, and II. F. BurJ&et, for plaintiffs in error.

      A. <& J. Blackford and George II. Phelps, for defendants in error.
   Minshall, C. J.

The suit below was an action of replevin to recover the possession of certain personal property described in the petition. It was tried to a jury on a general denial, except the averment of a demand for the goods; and a verdict was rendered for the plaintiff, finding that they were, at the commencement of the action, entitled to the possession of the property, and that the defendants unlawfully detained the same, and assessing their damages at one cent. A motion for a new trial was overruled and judgment entered on the verdict. On error to the circuit court, the judgment was reversed on the ground that the court erred in admitting evidence offered by the plaintiffs below, and in overruling’ a motion for a new trial. The first g’round of the motion is, that the petition does not state facts sufficient to constitute a cause of action; the second and third are as to the admission of improper evidence; the fourth, error in the charge of the court; the fifth, improper conduct of the bailiff; and, finally, that the verdict is contrary to law and the undisputed evidence. No evidence was offered as to the misconduct of the bailiff, and no exception was reserved as to the charge of the court; so that the only questions presented are, (1) as to the sufficiency of the petition, (2) the admissibility of certain evidence, and (3) whether the verdict is contrary to law. We will consider these questions in their order.

1. There was no demurrer to the petition, its sufficiency having been raised for the first time in the motion for a new trial. So that the question might be stated to be, whether it was sufficient after verdict. But we prefer to waive this question, and consider the assignment as if raised on demurrer. The objection to the petition is, that it does not, in so many words, aver that the. plaintiffs are entitled to the possession of the property. The language of the petition is, that, “The defendants, and each of them, wrongfully detain from the plaintiffs the following goods and chattels of the plaintiffs,” describing them, and averring that they have been so detained for a certain period of time to the damage of the plaintiffs, $300. Now it is not claimed that the language “the following goods and chattels of the plaintiffs,” is not a sufficient averment of ownership; for to be the goods and chattels of the plaintiffs, they must be the owners of them; but it is claimed that the petition should, also, contain an averment, that the plaintiffs are entitled to the possession. One may be the general owner of property and not entitled to its possession. This is so in many instances, and, particularly so, in most eases of bailment. Still we do not think it necessary, in the action of replevin, that the averment should be made in so many words. The gist of the action in this state, as held in Williams v. West, 2 Ohio St., 87, is the unlawful detention of the property. There can be no such thing as a wrongful detention of property from a plaintiff where he is not entitled to the possession. So that where there is an averment of ownership, whether general or special, with an averment of, wrongful detention, by the defendant, the plaintiff must, by necessary implication, aver that he is entitled to the possession. What is necessarily implied in the language used is as much a part of the pleading as if it were expressed in totidem verbis. Doyle v. Doyle, 50 Ohio St., 330. The petition is not only as specific as the requirements of the language of the statute regulating the action, but is in conformity with approved forms. Sections 5814 and 5815, Revised Statutes. Swan’s Pleadings and Precedents, 446 ; 2 Bates’ Pleadings, 690. In the form given by some of the authors, is contained an express averment that the plaintiff is entitled to the possession of the property, in addition to an averment of ownership, and also, of wrongful detention. 1 Nash’s Pleadings and Practice, 586; 2 Yaple, Code Practice, 896; 2 Kinkead’s ■ Code Pleadings section1080. N o exception canbe taken to such forms. They have the merit of greater exactness; but it does not follow therefrom, that the form given by Swan and by Bates is insufficient, when construed according to the liberal principles of the Code. It would be impossible as a matter of law to support the averment of wrongful detention by the defendant without showing a right to the possession of the property by the plaintiff; and one of the best tests' of the sufficiency of the language employed in a pleading is the evidence that would, in law, be required to support it. ■

2. As to the admissibility of the evidence complained of: The plaintiffs below, Grever & Son, in June, 1891, sold the defendant, Thomas J. Taylor, a bill of goods on credit. The goods were delivered in August, and a few days afterwards turned over to his wife, Olive J. Taylor, in payment of an indebtedness to her, of long standing. The suit was brought to recover the goods on the ground of fraud in the purchase. The defendant, a merchant tailor, residing in Findlay, Ohio, had, in January prior to this time, visited Cincinnati, and made a purchase of the plaintiffs amounting to some $450. Prior to the sale the plaintiffs inquired of the defendant as to his pecuniary circumstances and his indebtedness. He stated that he had $400 — he had made on the bench, that he had no other property and was not in debt. He then paid some $250 on the purchase and got credit for the balance. This was afterward paid. Afterward, in June following the goods in question were purchased. The purchase was made of the plaintiffs through an agent sent by them to Findlay. It amounted to a considerable sum, and, shortly after being received, was turned over to the wife of the plaintiff. His indebtedness to her amounted to over $800', and was evidenced by a promissory note. He gave her a new note for the balance due, after crediting himself with the value of the goods turned over, and she surrendered the old note. Nothing was said by the defendant at the time of his last purchase of the plaintiffs, about his indebtedness to his wife; and he was indebted to her for the-same money at the time of the first purchase, although when' asked as to his indebtedness, he said he was indebted-tono one. No question can be made as to the competency of this testimony to show fraud in the purchaser. He was insolvent and must have known that he could not pay for the property when he purchased it, and concealed the fact from the vendors; and, furthermore, the inference is a fair one from the fact of his insolvency, and the haste with which he turned the goods over to his wife, that he did not intend to pay for them, but intended, when he made the purchase, to do with them exactly what he did do, almost as soon as he received them. The evidence, however, which the circuit court held to be incompetent, was the statement of the principal member of the firm in answer to a question, that at the time he sold the goods in question, he still relied on the information given him by Taylor as to his being free of debt, at the time of the first purchase. This would be the natural presumption, unless he had learned something to the contrary, and the evidence tended to show that he had not. A person may, where it is material, be asked as to his intention in a given instance; and the evidence that was given, is quite analogous to evidence as to intention. It is not conclusive; for, as in evidence as to intention, it is for the jury to determine from all the circumstances, under what influences he acted at the time of the sale. The case is simply this: Taylor, a resident of Findlay, Ohio, visited Cincinnati, for the purpose of purchasing a bill of goods, and called on the plaintiffs to whom he was a stranger. He was asked as to his pecuniary circumstances, and, particularly, as to whether he was indebted. And, although he was then indebted to his wife in a sum much greater than he could pay, stated that he was not indebted. That the plaintiffs had aright to rely on this statement is not questioned, and, relying on it, sold Taylor a bill of goods, partly on credit and partly for cash. He afterwards punctually discharged the credit, and some months after-wards, purchased another bill of goods on credit, without in any way correcting the false information he had given as to his indebtedness at the time of the first purchase; and the question now arises, whether the seller had a right to rely, in making' the last sale, on the statements made by the purchaser at the first one. This we think was a question of fact for the jury, and was fairly submitted to it by the court in its charge. Zabriskie v. Smith, 13 N. Y., 322; Von Bruck v. Peyser, 2 Robertson, N. Y., 468.

3. The circumstances show that the wife is not in a position to claim the protection of an innocent purchaser for value. The proof shows that she knew all the circumstances as well as her husband, and virtually stands in his shoes as to the purchase. He was indebted to her, and, as she says, had been pressing him for payment. She knew his circumstances and that he had not paid for the goods; and that, in taking them from him in part payment of what he owed her, a fraud was being perpetrated on the party from whom he had purchased. But if it were otherwise, as the only consideration she gave for the goods was part of her husband’s preexisting debt to her, she cannot, under the law, claim to be a bona fide purchaser for value. This was recently determined in this court, in the well considered case of Eaton & Co. v. Davidson, 46 Ohio St., 355. It cannot then be said that the verdict is contrary to law and the undisputed evidence. By reason of the fraud practiced by the husband, the seller had the right to recover his goods, and the wife as against the seller, for the reasons just stated, occupies no better position than the husband. By the recovery no injustice is done the wife. For, as said by Dickman, J., in the case, just cited, “If the consideration of the purchase from the fraudulent vendee is the release of a pre-existing debt, the purchaser will be restored to what he may have yielded up, if the original owner who has been defrauded reclaims and recovers the property. The consideration having failed, it will be the right of the purchaser to be placed in statu quo, and the courts in the exercise of their remedial powers, will be adequate and furnish him needed relief, even though, as in the present case, there may have been a surrender of a promissory note.”

Judgment of the Circuit Court reversed, and that of the Common Pleas affirmed.

Burkett, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Commissioners of Putnam County et al. v. Krauss et al.

      County ditch — Established by commissioners — Assessments upon land owners — .Grounds for injunction — Remedy when ditch not according to contract.

    Where under the ditch laws of this state, a ditch has been ordered and established by the county commissioners, and the construction- paid for from the county treasury, on certificates of the engineer appointed to superintend the work, the assessment made to reimburse the county for the payments mad,e from its treasury, cannot be enjoined by the land owners on the ground simply that the ditch was not constructed according to the contract and specifications,- and does not drain their lands. An action upon the bond of the engineer, or of the contractor, or of both, is the proper remedy in such case; and, if'not adequate, it is from the fault of the land owners in not having made their objections to.the engineer, or in not having caused his removal for dereliction of duty.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Putnam county.
    The action below was brought by the defendants in error, Krauss et al., against the plaintiff sin error, to restrain the collection of certain ditch assessments that had been made on their lands. The assessments were restrained in-the common pleas, .and the defendants in that court appealed to the circuit court. The case was there first heard on a demurrer to the petition as- amended in the common pleas. The demurrer was overruled, and the case then heard upon the pleadings and the evidence. The pleadings consisted of the amended petition and the answer thereto. The answer admitted the official character of the parties as averred, and then denied each and every other averment of the petition. The court found the averments of the petition to-be true; and enjoined the collection of the assessments, until such time as the commissioners should complete the ditch according to the plans and specifications. The usual exceptions were taken, and a motion for a new trial made and overruled. The evidence is not set out; and the only question presented is as to the sufficiency of the petition to warrant the relief granted. The petition is as follows:
    “The plaintiffs, P. M. Krauss, F. P. Bowman, H. Rauche, H. J. Krauss, George. Kratzer, Mary Ann Smith, Richard Catón and John Zickafoose, for their amended petition say, that the defendant, W. W. Place, is the duly elected, qualified and acting auditor of Putnam county, Ohio;*that O. ~W. Crawfis is the duly elected, qualified and acting treasurer of Putnam county, Ohio, and for their cause of action against said defendants and the Commissioners of Putnam county, Ohio, said plaintiffs say:
    ‘ ‘ That sometime during the years 1886 and 1887 the said commissioners of Putnam county ordered the construction of a certain ditch known as the Zickafoose improvement of the Kratzer ditch, appointed an engineer to sell and superintend the said construction according to law. Said work of construction was sold out pursuant to said order and the contractors therefore proceeded to construct said ditch; but plaintiffs say that said ditch was not constructed as required by the said order and by the specifications furnished by said engineer, and was left and still remains but partly constructed and entirely inadequate to carry away the water flowing into it and that it was intended to carry away; and that said ditch was left and still remains both too narrow and too shallow below the lands of said plaintiffs; that at points below said lands where said ditch is by the said order and specifications, to wit: at or about work sections 3 and 5, among others, required to be 16 feet and over wide, it is as constructed only 8 feet and 4 inches wide, and at such points said ditch is from 16 to 18 inches less than the required depth. That along- side and above said lands the water rises to the depth of 18 inches in said ditch before beginning to flow over said obstructions.
    “Said plaintiffs further say, that said commissioners levied large assessments to pay for the construction of said ditch upon the lands belonging at that time and still belonging to said plaintiffs ; that said defendant, W. W. Place, auditor as aforesaid, has placed said assessments on the duplicates of said county to be collected from said plaintiffs; said treasurer threatens to, and will unless restrained therefrom, proceed to collect the same by authority of the statute authorizing him to proceed against said lands for the collection of taxes and assessments. Said plaintiffs will, by reason of .the said defective construction and of the noncompletion of the said ditch, be compelled to pay the said assessments, but will not receive the benefits for which said assessments were levied.
    “The contractors for said work have ceased working on and have abandoned said ditch, have wrongfully received from the engineer thereof and the said county auditor their certificates, presented them to said treasurer and received their jaay for the entire construction of said ditch although said ditch was never completed. Plaintiffs have no means of enforcing the completion of said ditch.
    “Said plaintiffs are resident taxpayers of said county and are the owners of lands as follows,” (describing them) “all of said lands being in Liberty township, Putnam county, Ohio, and all assessed for the construction of said ditch, and all situated far enough above said shallow, narrow and obstructed places above described, to be deprived thereby of drainage and to be overflowed by the waters that should and would, were those obstructions removed, flow out through said ditch. By reason of said failure to complete said ditch and the wrongful payment to the contractors for the construction thereof, the consideration of the said assessment has entirely failed and plaintiffs thereby suffer an irreparable and continuing damage for which they have no adequate remedy at law.
    “ Plaintiffs therefore pray that the said defendants may be enjoined from collecting said assessments until such time as said ditch shall be completed; that the commissioners be compelled to complete the said ditch and for such other and further relief as equity requires between the parties.”

      Bailey <& Bailey, for plaintiffs in error.

      Krause <& Eastman, for defendants in error.
   Minshall, C. J.

We are of the opinion that the petition does not state a cause of action and should have been dismissed. The county had no proprietary interest in the ditch. It belongs to the land owners on whose lands, and for whose benefit it was constructed. The commissioners simply acted as a board before whom the necessary proceedings for the construction of the ditch had, by the statute to be conducted. On the petition of the land owners, or some of them, such proceedings were had, that an order was made for its location and construction, and an engineer appointed for letting the work, the taking of bonds from contractors, and the superintendence of the work. Sections 4475,4476,4477 and 4478, Revised Statutes. The engineer is required to give bond for the faithful performance of his duties, and this we must presume he did, for there is no averment to the contrary. He is required to give certificates of the work done, on which payments, on the order of the auditor,- are to be made by the county treasurer. The work as done, is first paid for, in this manner, out of the county treasury, and assessments made on the lands, are to reimburse the county for the advancements thus made in the construction of the ditch for the benefit of the land owners. With the fixing of the time for the sale of the construction of the improvement and the appointment of an engineer to superintend its construction, the connection of the county commissioners with the improvement substantially ends. No duties of supervision are imposed on them. The engineer is - required, section 4475, Revised Statutes, to take a. bond from the contractor for the faithful performance of the work according to contract. And this we presume was done, for thére is no -averment to the contrary. By section 4478, it is provided that “a job not completed within the time fixed in the contract and bond,may be reestimated by the engineer, and resold by him to the lowest responsible bidder, or he may complete it at the expense of the contractor and bondsmen. ”

On the -bond given by the engineer, an action may be brought by any person aggrieved by his failure to do his duty, and a recovery had for his use and benefit, section 4494, Revised Statutes; and on the bond given by the contractor, a suit may be brougt by any one who has sustained damages in consequence of the contractor’s failure to perform the work, and a recovery had for his damages, section 4478, Revised Statutes. There is no averment in the petition of any fact that did, or could, have prevented these parties from resorting to the remedy provided therein, on either or both of these bonds. They are not only adequate, but the only remedies they had or have, for the grievances complained of. They do not aver want of knowledge of the matter as the work progressed. It is no doubt in accordance with the fact, that they knew how the work was being done at the time. Here they might, and should have complained to the engineer; and if he continued derelict in his duty, could have caused him to be removed. It was in the power of the engineer to have had the work reestimated and resold, for the neglect of the contractor to complete it. Without doing any of these things or taking any steps to have the engineer removed, or payments or estimates enjoined, they remained inactive, so far as appears from the petition, until the collection of the assessments was about to be made. Under such circumstances, there is no principle of law or equity under which they can be permitted to shift the consequences of their own negligence to the people of the county. Such must be the result, if these assessments are enjoined; for, they say, the work has all been paid for. But the payment was made from the funds of the .county, and the county cannot be reimbursed except by the collection of the assessments. A party appealing to a court of equity must make a case that will recommend itself to the conscience of the court. Kellogg v. Ely, 15 Ohio St., 64. But our attention is called to section 4491, Revised Statute's, giving the court in which such proceeding is brought, power to enjoin an assessment.- But the power conferred is not an arbitrary one. There must be a reason for the injunction — a case made. This petition, as we have shown, makes none.

Judgment reversed and petition of plaintiff below dismissed.


text:
    No. 2748.
    Dean v. Commercial Gazette Company.
    (Decided May 14, 1895.)
    Error to the Superior Court of Cincinnati.

      Follett c& Kelley and J. M. McGillwray, for plaintiff in error.

      Thornton M. Hinkle, for defendant in error.
   This court is of opinion that the request of defendant numbered 7, found on page 78 of the printed record in this court, was properly refused. But the court is further of opinion that there is error in the record of the Superior Court of Cincinnati at the special term in this.

1. In admitting in evidence the letters of guardianship, said letters not being a part of the record of the probate court of Lawrence county, and not being competent for any purpose.

2. In refusing to give to the jury the request of the defendant numbers 8, 11 and 12, as found on pages 78, 79 and 80 of the printed record.

3. In refusing to give to the jury the several requests of defendant found on pages 91 and 92 of the printed record without modification.

It is further ordered and adjudged bjr this court that the judgment of said Superior Court at the general term reversing the judgment of said court at special term be, and the same is hereby affirmed, for further proceedings.


text:
    No. 2789.
    Coal and Iron Company et al. v. Lasley.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Jackson county.

      J. II. Collins, for plaintiffs in error.

      J. W. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 2790.
    Coal and Iron Company et al. v. Welch.
    (Decided May 14, 1895.)
    ' Error to the Circuit Court of Jackson county.

      M. T. Vanpelt and Archibald Mayo, for plaintiffs in error.

      W. A. Hutchins and J. W. Bannon, for defendant in error.'
   Judgment affirmed.


text:
    No. 2806.
    Nichols, Sheppard & Co. v. Orr et al.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Wayne county.

      Mahlon Bouch and George W. Somerville, for plaintiffs in error.

      A. P. Metz and John Mo Sweeney, for defendants in error.
   Judgment affirmed.

Spear and Shauck, JJ., dissent.


text:
    No. 2833.
    Miller et al. v. Peters.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Hamilton county.

      C. P. Bobertson, for plaintiffs in error.

      G. Hammond Avery, II. L. Burgoyne and John B. Holmes, for defendant in error,
   Judgment affirmed.


text:
    No. 2849.
    Alspach v. Boyer et al.
    (Decided May 14, 1895.)
    Er’ror to the Circuit Court of Franklin county.

      Nash <& Lentz and G. G. Pickering, for plaintiff in error.

      William H Lane and Hite, Poison cfi Gourtright, for defendants in error.
   Judgment affirmed.


text:
    No. 2871.
    Dudley v. Warren et al.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Lorain county.

      E. G. Johnson and Boynton, Hale dk Ilorr, for plaintiff in error.

      N. L. Johnson, G. T. Johnson and J. II. Dickson, for defendants in error.
   Judgment affirmed.


text:
    No. 2872.
    Chamberlain, Executor, et al. v. Phellis, Jr., et al.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Franklin county.
    ■ Frank A. Davis, Nash do Lentz and II. E. Bradley, for plaintiffs in error.
    IE. 0. Henderson and Booth do Keating, for defendants in error.
   Judgment modified by entry of remittitur of costs below. Costs in this court adjudged against defendants in error.


text:
    No. 3371.
    Winterburn v. Paris.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Hamilton county.

      Ooppock <& Gallagher, for plaintiff in error.

      Hicks do Malsbary, for defendant in error.
   Demurrer to answer overruled, and cause dismissed.


text:
    No. 3390.
    Commissioners v. Parrott et al.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Clermont county.

      Frazier & Hicks, for plaintiff in error.

      Alfred Mack and Nichols <& Nichols, for defendants in error. ■
   Judgment affirmed.


text:
    No. 3435.
    MAHAFFEY v. COYKENDALL et al.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Morrow county.

      B. F. Bartlett and W. Z. Davis, for plaintiff in error.

      Theodore S. White, for defendants in error.
   Judgment affirmed.


text:
    No. 4458.
    Fidelity and Casualty Company v. Hahn, Superintendent of Insurance.
    (Decided May 14, 1895.)
    . Error to the Circuit Court of Franklin county.

      W J. (& O. B. Gilmore and George K. Nash, for plaintiff in error.

      John H. Bichards, Attorney-general, for defendant in error.
   Judgment affirmed.


text:
    No. 2864.
    Weber v. Beiler et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Erie county.

      Vickery Bros., for plaintiff in error.

      Boose <& Wagner and P. N. Schuyler, for defendants in error.
   Judgment affirmed.


text:
    No. 2878.
    Trustees v. Banning et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of‘Hamilton county.

      C. B. Simrall and W. T. Porter, for plaintiffs in error.

      Ramsey, Maxwell & Ramsey, and J. R. Von Seggern, for defendants in error.
   Judgment affirmed.


text:
    No. 2884.
    Railway Company v. Thompson et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Belmont county.

      St: Clair Kelley and Callaher & Woodbridge, for plaintiff in error.

      L. Danford .and George Duncan, for defendants in error.
   J udgment affirmed.


text:
    No. 2886.
    Kranz v. Butler.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Erie county.

      Boioen, Stone & Reiter, for plaintiff in error.

      Sadler d? Alvord, for defendant in error.
   ■ Judgment affirmed.


text:
    No. 2889.
    Western Paper Bag Company v. Friend & Forgy Paper Company.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Hamilton county.

      Hollister, Roberts <£s Hollister and Harrison, Olds <& Henderson, for plaintiff in error.

      Harmon, Colston, Goldsmith <& Hoadly and Utos. McDougall, for defendant in error.
   Judgment affirmed, it not appearing but the judgment of reversal was upon the ground that the verdict was against the weight of the evidence. The other errors assigned not passed upon.


text:
    No. 2909.
    Rush et al. v. Rush et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Ashland county.

      McCray <& Winbigler, for plaintiffs in error.

      R. M. Campbell, F. C. Semple and S. B. Easen, for defendants in error.
   Judgment affirmed.


text:
    No. 2914.
    Fox v. Ervin et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Montgomery county.

      Thomas McDougall, for plaintiff in error.

      Gottschall <& Brown, for defendants in error.
   Judgment affirmed;


text:
    No. 2955.
    Chase v. Railway Company.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Lucas county.

      George A. Chase, for plaintiff in error.

      E. I). Pointer, Jr., for defendant in error.
   Judgment affirmed.


text:
    No. 3356.
    Woodward v. Medford.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Darke county.
    P. Gaynor and' Cater da Robeson, for plaintiff in error.

      Alh-ead c& Bickel, for defendant in error.
   Judgment affirmed.


text:
    No. 3391.
    State ex rel. Hine v. Riker et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Lake county.

      Horace Alvord, for plaintiff in error.

      Burrows c& Jerome, for defendants in error)
   Judgment affirmed.


text:
    No. 3392.
    Mulford v. Gardner et al.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Morrow county.

      J. D. DeGolley, for plaintiff in error.

      George W. Fluckey and Olds da Olds, for defendants in error.
   Judgment affirmed.


text:
    No. 2914.
    Southern v. Williams.
    (Decided May 21, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Gilbert ds Hills, Caskey <& Calhoun and Harold Remington, for plaintiff in error.

      Everett, Hellenbaugh ds Weed, for defendant in error.
   Judgment affirmed.


text:
    No. 2913.
    Rolling Mill Company v. Joseph et al.

      (Decided June 4, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      William E. Cushing, for plaintiff in error.

      Henderson, Kline ds Tolies, for defendants in error.
   Judgment affirmed.


text:
    No. 2919.
    Westerm Union Telegraph Co. v. Porter.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Marion county.

      McWeal ds Wolford and Ramsey, Maxwell da Ramsey, for plaintiff in error.

      Davis ds Crissinger, for defendant in error.
   Judgment affirmed.


text:
    No. 2834.
    Merchant Tailors’ Exchange et al v. Getchell.
    (Decided June 4, 1895.)
    Error to the Superior Court of Cincinnati.

      Kittredge, Wilby ds Simmons, for plaintiffs in error.

      Bateman do Harper, for defendant in error.
   Judgment affirmed.


text:
    No. 2942.
    Nesbitt v. Koop, Adm’r.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Miami county.

      Byrkett <& Gilbert, for plaintiff in error.

      George 8. Long, for defendant in error.
   Judgment affirmed.


text:
    No. 2951.
    Snodgrass Adm’r. v. Procter & Gamble.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Hamilton county.

      B. 8. Button, for plaintiff in error.

      Mortimer Matthews, for defendant in error.
   Judgment affirmed.


text:
    No. 2953.
    Railway Company v. Kretzman.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Crawford county.

      A. IF. Scott, Finley dh Bennett and Scroggs & Scroggs, for plaintiff in error.

      F. 8. Monnett, for defendant in error.
   Judgment affirmed.


text:
    No. 2961.
    Harbick, Admr. v. Jordon et al.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Hamilton county.

      Gollins <&. Fenley, C. B. Simrall and Alfred Mack, for plaintiff in error.

      Ramsey, Maxwell da Ramsey and William Worthington,, for defendants in error.
   Judgment affirmed.


text:
    No. 3096.
    Light & Fuel Company v. Colored Plate & Window Glass Company.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Mercer county.

      Armstrong & Johnson, for plaintiff in error.

      John Poe, Mattingly da Kenney and LeBloncl d¡ Loughriclge, for defendant in error.
   Judgment affirmed by consent of parties.


text:
    No. 4185.
    Cummings et al. v. Bird et al.
    (Decided June 4, 1895.)
    Error to the Circuit Court of Knox county.

      Oritehfield db Graham, for plaintiffs in error.

      D. F. da J. J). Ewing, for defendants in error.
   Judgment reversed on report of Hon. W. E. Gilmore.


text:
    No. 2911.
    Riley et al. v. Rush el al.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Mercer county.

      Marsh.da Loree, I. F. Raudabaugh and Selioyn. Ff. Oioen, for plaintiffs in error.

      LeBlond da Loughbridge, for defendants in error.
   Judgment affirmed.


text:
    No. 2966.
    Cable Railway Company v. Barriss.
    (Decided June 11, 1895.)

      Error to the Circuit Court of Cuyahoga county.

      Squire, Sanders d Dempsey and James M. Jones, for plaintiff in error.

      Estep, Dickey, Carr & Goff and Ilenry C Ranney, for defendant in error.
   Judgment affirmed.


text:
    No. 2991.
    Street Railroad Company v. Kelly.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Henderson, Kline <& Tolies and Russell <& Rice, for plaintiff in error.

      Everett, Dellenbauqh da Weed, for defendant in error.
   Judgment affirmed.


text:
    No. 2997.
    Railroad Company et al. v. Beecher et al.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Licking county.

      J. II. Collins, J. Dunbar and Kibler d¡ Kibler, for plaintiffs in error.

      Samuel M. Hunter and B. G. Smythe, for defendants in error.
   Judgment affirmed.


text:
    No. 3003.
    Martin v. Incorporated Village of Bond Hill.
    (Decided June 11, 1865.)
    Error to the Circuit Court of Hamilton county.

      Bateman d¡ Harper, for plaintiff in error.

      Healy <& Brannan and Charles II. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 4259.
    Golding & Sons Company v. Connors.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Columbiana county.

      H. B. Hill, A. H. Clark and J. A. Ambler, for plaintiff in error.

      P. M. Smith and B. W. Taylor, for defendant in error.
   Judgment affirmed.


text:
    No. 4431.
    Edwards v. The State.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Hocking county.

      Weldy c& Buerhause, for plaintiff in error.

      J. II. Bicharás, Attorney General and B. F. Price, for defendant in error.
   Judgment affirmed and time fixed for execution.

Burket, J., dissents.


text:
    No. 4491.
    State of Ohio ex rel. Attorney General v. Parker et al.
    (Decided June 11, 1895.)
    Quo Warranto.

      Andreios Bovs, and S. A. pVildman, for relator.

      Johoi Bay, Jr., II. Goodooin and Colver & Colver, for respondents.
   Demurrer to petition overruled and judgment of ouster. State v. Bargus et al., ante.


text:
    No. 2856.
    Harrison et al. v. Baldwin.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Franklin county.

      Nash ds Lentz, Tod B. Galloway and Samuel G. Luecoek, for plaintiffs in error. '

      Fairbanks, Smith ds Steele, for defendant in error.
   Judgment affirmed.


text:
    No. 2893.
    Hussey et al. v. Cherry Valley Iron Co.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Gotdder ds Holding, for plaintiffs in error.

      Henderson, Kline' ds Tolies, for defendant in error.
   Judgment affirmed.


text:
    No. 3006.
    Life Insurance Company v. Wood.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Adams ds Hotze, for plaintiff in error.

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


text:
    No. 3020.
    Railway Company v. Horner.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Jefferson county.

      Sioayne, Sioayne & Hayes, R. G. Richards and John M. Cook, for plaintiff in error.
   Judgment of the circuit court reversed, and that of the common pleas affirmed on the authority of- Converse v. Hawkins, 31 Ohio St., 209.


text:
    No. 3024.
    Railway Company v. Paine.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Lake county.

      Burrows <& Jerome, for plaintiff in error.

      R. B. Murray and Horace Alvord, for defendant in error.
   Judgment affirmed.


text:
    No. 3039.
    Kindall et al. v. Nash, Admr., etc.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      John 0. Winship, for plaintiffs in error.
    Estep, Dickey, Carr <& Goff, for defendant in error.
   Judgment affirmed.


text:
    No. 3321.
    Directors of Wittenberg College v. Greenwald et al., Admrs.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Hamilton county.

      John L. Zimmerman and C. K. Shunk, for plaintiff in error.
    Paxton, Warrington <& Boutet, for defendants in error.
   Judgment affirmed.


text:
    No. 4164.
    City of alliance v. Campbell.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Stark county.

      D. Fording and J. W. Or aim, for plaintiff in error.

      Baldwin <& Shields, for defendant in error.
   Judgment affirmed.


text:
    No. 4283.
    City of Cincinnati v. Steadman, Trustee.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertenstein, Corporation Counsel,, for plaintiff in error.

      Iiecoly <& Brannan, for defendant in error.
   Judgement affirmed.


text:
    No. 3282.
    Kissel, etc., v. Village of Columbus Grove.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Putnam county.

      Ghmdes Frayer and A. V. Watts, for plaintiff in error.

      Bailey <& Bailey, for defendant in error. •
   Judgment affirmed.


text:
    No. 3325.
    Struther, Wells & Co. v. Ross et al.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Hancock county.

      W. IF. Chapman and Burket da Burket, for plaintiffs in error.

      George II Phelps, for defendants in error.
   Judgment affirmed.

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


text:
    No. 3338.
    Ward et al. v. Kiblinger et al.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Champaign county.

      Leedom c& Lewis, for plaintiffs in error.

      Warnock ds Mchelberger, for defendants in error.
   Judgment affirmed.


text:
    No. 4011.
    Coal Company v. Davis.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Belmont county.

      Joel IF. Tyler and N. IF Kennon, for plaintiff in error.

      James G. Tollman, for defendant in error.
   Judgment affirmed.


text:
    No. 4088.
    Coal Company v. McClelland, Auditor.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Guernsey county.

      Campbell & Rosamond, for plaintiff in error.

      J. II Mackey, for defendant in error.
   Judgment affirmed.


text:
    No. 4089.
    Coal Company v. McClelland, Auditor
    (Decided June 25, 1895.)
    Error to the Circuit Court of Guernsey county.

      David Okey and Campbell <& Rosemond, for plaintiff in error.

      J. II. Mackey, for defendant in error.
   Judgment affirmed.


text:
    No. 4318.
    Coal & Car Company v. Preston, Adm’x.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Athens county.

      Powell, Ricketts da Black and L. M. Jeioett, for plaintiff in error.

      Townsend da Hopkins and L. A. Moons, - for defendant in error.
   Judgment affirmed.


text:
    No. 2988.
    Ferris v. Auton et al.
    (Decided June 27, 1895.)
    ERROR to the Circuit Court of Hamilton county.

      Paxton, Warrington da Boutet, for plaintiff in error.

      Warner M. Bateman, Gorman da Thompson, John E. Smith, II. G. M^Burney and J. A. Runyan, for defendants in error.
   This court is of opinion that neither the judgment of the court of common pleas, of May 10, 1884, in favor of the creditors against the stockholders of the railway company, nor that of December 31,1887, in favor of the plaintiff in error, by which it was determined he was not a party to or bound by the compromise agreement made between certain of the creditors and stockholders, was opened up by the appeal taken from the confirmation of the supplemental report of the master, and the judgment entered August 16,1890, and the circuit court erred in proceeding to hear and determine the question as to whether said plaintiff in error was a party to or bound by said compromise agreement, for which error the judgment rendered by the circuit court is hereby reversed, with costs, and the cause is remanded to that court for disposition upon said supplemental report.


text:
    No. 3001.
    Floyd et al. v. Rike et al.
    (Decided June 27, 1895.)
    Error to the Circuit Court of Montgomery county.

      William Lawrence, George W. Llouk and Young <& Young, for plaintiffs in error.

      Gunchel <& Rowe and McMahon c& McMahon, for defendants in error.
   The case has been fully and exhaustively considered in the opinion of the circuit court as announced by Shearer, J. Rike et al. v. Floyd et al., 6 O. C. C. Rep., 80. We fully affirm the reasoning of the court, and the conclusions there rendered.

Judgment affirmed.

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


text:
    No. 3015.
    Frank et al. v. Levy et al.
    (Decided October 1, 1895.)
    ERROR to the Circuit Court of Hamilton county.

      Porter & Bendigs, for plaintiffs in error.

      Paxton c& Warrington, and E. L. Strieker, for defendants in error.
   Judgment affirmed.


text:
    No. 3383.
    Myers v. Croninger.
    (Decided October 1, 1895.)
    Error to the Circuit Court of Hancock county.

      Burket <& Burket, for plaintiff in error.

      Jason Blackford, for defendant in error.
   Judgment affirmed.

Burket, J., did not sit in the cáse.


text:
    No.3403.
    Roberts v. Roberts, Ex’x, et al.
    (Decided October 1, 1895.)
    Error to the Circuit Court of Marion county.

      W. Z. Pavis and Orissinger <& Byan, for plaintiff in error.

      McNeal <& Wolford, and Scofield, Bwfee <& Scofield, for defendants in error.
   Judgment affirmed.

Burket, J., dissents.


text:
    No. 3406.
    Fort Wayne Electric Company v. Hill, etc.
    (Decided October 1, 1895.)
    Error to the Circuit Court of Belmont county.

      Boss J. Alexander, J. G. Heinlein .and O. II. Worden, for plaintiff in error.

      H. K. Kennon and White, Johnson & McGaslin, for defendant in error.
   Judgment affirmed.


text:
    No. 4188.
    Brooks, Adm’r, v. Railway Company
    (Decided October 1, 1895.)
    Error-to the Circuit Court of Miami county.

      Brykette <& Gilbert, for plaintiff in error.

      Frank Chance, for defendant in error.
   Judgment affirmed on the authority of Woodward v. Railway Co., 10 Ohio St., 121; Hover, Admr., v. Pennsylvania Co., 25 Ohio St., 667.


text:
    No. 4407.
    City of Cincinnati v. Board of Education.
    (Decided October 1, 1895.)
    Error to the Superior Court of Cincinnati.

      Frederick Hertenstein and W. H. Whittaker, for plaintiff in error.

      Simrall <& Galvin, for defendants in error.
   Judgment affirmed.


text:
    No. 4538.
    State ex rel. Hartman, etc. v. Board of Education.
    (Decided October 1, 1895.)
    Error to the Circuit Court of Darke county.

      S. V. Hartman, J. E. Breaden, Jr., and Anderson <é Boioman, for plaintiff in error.

      Sater <& Robeson and Knox, Martx c§ Rivpe, for defendant in error.
   Judgment affirmed.


text:
    No. 4047.
    John v. John.
    ( Decided October 8, 1895.)
    Error to the Circuit Court of Darke county.
    ■ Anderson c& Boioman, for plaintiff in error.

      T. C. Miller, for defendant in error.
   Judgment affirmed on the authority of Parish v. Parish, 9 Ohio St., 534.


text:
    No. 4309.
    Engelman, Adm’r, v. Railway Company.
    (Decided October 8, 1895.)
    Error to the' Circuit Court of Lucas county.

      Hurd, Bnumbach <& Thatcher, for plaintiff in error.

      E. D. Potter, Jr., Thomas Emery and George G. Greene, for defendant in error.
   Judgment affirmed.


text:
    No. 4311.
    Armstrong, Assignee, v. Speidel Grocery Company.

      (Decided October 8, 1895.)
    Error to the Circuit Court of Belmont county.

      Tallmon & Armstrong and D. W. Cooper, for plaintiff in error.

      Gallaher dá Woodbnñdge, for defendant in error.
   Judgment affirmed on the authority of Joseph Speidel Grocery Co. v. Armstrong, Assignee, 8 O. C. C. Rep., 89.


text:
    No. 4335.
    Railway Company v. Starkey.
    (Decided October 8, 1895.)
    Error to the Circuit Court of Lucas county.

      E. I). Potter, Jr., Ihomas Emery and George C. Greene, for plaintiff in error.

      Scribner db Ilurd, for defendant in error.
   Judgment affirmed.


text:
    No. 4484.
    Railway Company v. Trust Company et al.
    (Decided October 8, 1895.)
    Error to the Circuit Court of Jefferson county.

      J. Langdon Ward and John M. Cook, for plaintiff iii error.

      B. G. Bicha/i-ds, J. Dunbar and P. P. Zeiois, for defendants in error.
   Judgment affirmed.


text:
    No. 3369.
    Van Nes v. Brooks, Treasurer.
    (Decided October 15, 1895.)
    Error to the Superior Court of Cincinnati.

      Gustavus II. Ward and. Charles B. Wilby, for plaintiff in error.

      J. B. Foraker and L. O. Black, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be and the same is hereby affirmed, as it..does not appear but that the judgment of reversal in the general term was upon the weight of the evidence; and it appearing to the court that there were ■ reasonable grounds for this proceeding in error, it is ordered that no penalty be assessed herein.

Judgment affirmed.


text:
    No. 4314.
    Wilder et al. v. Daniels et al.
    (Decided October 15, 1895.)
    Error to the Circuit Court of Franklin county.

      R. A. Ilcmdson, George S. Peters and George B. Obey, for plaintiffs in error.

      Booth eft Keating, Paul Jones, Barger, • Smith eft ' Irvine and Gurtis G. Williams, for defendants in error.
   Judgment affirmed for reasons given in Daniel v. Columbus, 8 O. C. C. Rep., 642.

Minshall, C. J. and Williams, J., dissent.


text:
    No. 4378.
    Railroad Company v. Mackelfresh, Adm’r.
    (Decided October 15, 1895.)
    Error to the Circuit Court of Hamilton county.
    Ramsey, Maxxoell d Ramsey, for plaintiff in error.
    Stephens, Lincoln d Smith, for defendant in error.
   Judg’ment affirmed.

Shauck and Burket, JJ., dissent.


text:
    No. 4398.
    City of Toledo v. Center.
    (Decided October 15, 1895.)
    Error to the Circuit Court of Lucas county.

      Ghaxdes F. Watts, for plaintiff in error.'

      Ashton JET. Goldham and J. Kent Hamilton, for defendant in error.
   Judgment affirmed.

Minshall, C. J. and Shauck, J., dissent.


text:
    No. 3021.
    Express Company v. Schwab & Bro.
    (Decided October 22, 1895.)
    Error to the Superior Court of Cincinnati.
    Ramsey, Maxxoell d Ramsey, for plaintiff in error.
    Harmon, Golston, Goldsmith d Iloadly, for defendants in error.
   Judgment affirmed.

Shauck, Burket and Spear, JJ.., dissent.


text:
    No. 3047.
    Young et al. v. Ulsh.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Marion county.

      W. E. Scofield and B. G. Young, for plaintiffs in error.

      McNeal <& Wolford, for defendant in error.
   Judgment affirmed.


text:
    No. 3055.
    Valentine et al. v. Insurance Company.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Portage county.

      John 0. Winship, for plaintiffs in error.
    Bamsey, Maxwell do Ramsey and E. W. Maxon, for defendant in error.
   Judgment affirmed.


text:
    No. 3057.
    Greiner, Adm’r. v. White et al.
    (Decided October 22, 1895.)
    Error to the .Circuit Court of Payette county.

      J. J. Harper, for plaintiff in error.

      II M. Daugherty, II L. Hadley and II B. Maynard., for defendants in error.
   Judgment affirmed.


text:
    No. 3866.
    City of Newark v. Flatau.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Licking county.

      Edward Kibler, City Solicitor, and Frederic M. Black, for plaintiff in error.

      Gil O. Daugherty and Waldo Taylor, for defendant in error.
   Judgment affirmed on the authority of Sipe v. Murphy, 49 Ohio St., 536.


text:
    No. 4142.
    City of Cleveland et al. v. Selden et al.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      James lawrence and Estey, Weh & Henry, for plaintiffs in error.
    Henderson, Kline ds Tolies, George S. Kain, Burns ds Weed, A. J. Marvin, Kerruish ds Ghapman and Goulder ds Holding, for defendants in error.
   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 cause remanded to said circuit court for a new trial upon the issue-of fraud and bad faith on part of the city council in the proceedings, as to the improvement and assessment in question and as to a deduction of one-fiftieth part of said assessment which is to be paid by the city. The record of the proceedings of the council is sufficient in form and substance to support the assessment, except one-fiftieth part thereof to be paid by the city, and the evidence offered to-impeach said record is and was not competent for' any purpose other than to sustain the issue of fraud and bad faith.


text:
    No. 4334.
    Hammond, Adm’x v. The Pennsylvania Co.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Cuyahoga county. ’

      James Kennedy and A. K. Mercer, for plaintiff in error.

      J. R, Carey and W. T Boyle, for defendant in error.
   It is ordered and adjudged by this court that the judgment of the said circuit court be and the same is hereby affirmed, and it appearing to the court that there were reasonable grounds for this proceeding in error, it is' ordered that no penalty be assessed herein.


text:
    No. 4475.
    Leidy et al. v. Grove et al.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Franklin county.

      Donaldson <& Bussing, for plaintiffs in error.

      Q. J. Marriott and K. L. Tayloi\ for defendants in error.
   Judgment affirmed.


text:
    No. 4556.
    Geiger v. The State.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Iligby <& Bailsman, for plaintiff in error.

      W. B. Neff, T. L. Strimyle and P. K. Kaiser, for defendant in error.
   Judgment affirmed.


text:
    No. 3067.
    Leggett, Executor, et al. v. Hamilton et al.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Coshocton county.

      Voorhees <& Hunt, for plaintiffs in error.
    17. R. Pomerene, for defendants in error.
   Judgment affirmed.


text:
    No. 3071.
    National Bank v. Green et al.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Guernsey county.

      Fred-L. Rosemond, for plaintiff in error.

      Poioell, Owen, Ricketts <& Black and Taylor & Scott, for defendants in error.
   Judgment affirmed.


text:
    No. 3076.
    Hershiser et al. v. Williams et al.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Franklin county.

      W. J. <& O. R. Gilmore, Harrison, Olds c& Henderson and Frank A. Davis, for plaintiffs in' error.

      J. F. Sater, Allen Andrews, Bcwton Smith and J. T. Holmes, for defendants in error.
   Judgment affirmed;


text:
    No. 3102.
    Batchelor et al. v. Accident Association.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      John 0. Winship, for plaintiffs in error.

      W C, Wilson and Adams & Bishop, for defendant in error.
   Judgment affirmed.


text:
    No. 3117.
    Railway Company v. Moyer.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Muskingum county.

      Frank Durban, for plaintiff in error.

      Munson <& Adams, for defendant in error.
   Judgment affirmed. See Pennsylvania Co. v. Langendorf, 48 Ohio St., 315.


text:
    No. 3372.
    Farrington & Co. v. Farorite et al.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Miami county.

      A. B. Byrkett, for plaintiffs in error.

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


text:
    No. 3479.
    Express Company v. Keck Manufacturing Company.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Hamilton county.

      Tibbals do Frank, for plaintiff in error.

      Bawd do Voris, for defendant in error.
   Judgment affirmed.


text:
    No. 4066.
    Bains, Adm’r, v. Licklider, Adm’r, et al.
    (Decided October 29, 1895.)
    ERROR to the Circuit Court of Miami county.

      JByrkett c% Gilbert, for plaintiff in error.

      H. II. Williams and William G. Johnston, for defendants in error.
   Judgment affirmed.


text:
    No. 4381.
    Railway Company v. Orvis, Adm’r.
    (Decided October 29, 1895.)
    ERROR to the Circuit Court of Lorain county.

      F. J. Jerome and F. G. Johnson, for plaintiff in error.

      II. W. Ingersoll and Boynton <& Ilorr, for defendant in error.
   Judgment affirmed.


text:
    No. 4498.
    Winslow et al. v. City of Cincinnati et al.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Hamilton county.

      W. M. Ampt, for plaintiffs in error.

      Frederick Hertenstein, Corporation Counsel, and Wm. U. Whittaker, for defendants in error.
   Judgment affirmed.

Shauck and Spear, J J., dissent.


text:
    No. 3122.
    In re Oliver C. Hampton et al.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      E. Sowers and J. E. Ingersoll, for plaintiffs in error.

      Banney & Dickey, for defendants in error.
   Judgment affirmed.


text:
    No. 3123.
    Beach v. Julian.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Pickaway county.

      P. C. Smith and Milton Morris, for plaintiff in error.

      Charles Dresbach, for defendant in error. •
   Judgment affirmed.


text:
    No. 3145.
    Miller v. Savings Bank et al.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Franklin county.

      Bichcwds c& Sullivan, for plaintiff in error.

      J. T Molones and Bell c& Bodnkerhoff, for defendants in error.
   Judgment affirmed on the reasoning of the judge delivering the opinion in The Mansfield Savings Bank et al. v. Miller, 2 O. C. C. Rep., 96.


text:
    No. 3148.
    Haworth v. Kester.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Darke county.

      M. JB. Trainor, and Scoter <& Robeson, for plaintiff in error.

      Anclerson <& Bowman, for defendant in error.
   Judgment affirmed.


text:
    No. 3149.
    Railway Company v. Kelly.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Hamilton county.

      Ramsey, Maxwell & Ramsey, for plaintiff in error.

      Mallon, Coffey <& Mallon, for defendant in error.
   Judgment affirmed.


text:
    No. 3255.
    Railroad Company v. Wise.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Richland county.

      J. M. Collins and Cummings <& McBride, for plaintiff in error.

      T. Y. Me Cray, for defendant in error.
   Judgment affirmed.


text:
    No. 3327.
    Warden v. Campbell et al.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Muskingum county.

      Charles M. Vandenbark, for plaintiff in error. James Glenn, for defendants in error.
   Judgment affirmed.


text:
    No. 3347.
    Railroad Company v. Ferguson.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Seneca county.

      J. E. Collins, for plaintiff in error.

      Seney '<& 8chaufeTbergei% for defendant in error.
   Judgment affirmed.


text:
    No. 3354.
    Deem et al. v. Milliken et al.

      (Decided November 12, 1895.)
    Error to the Circuit Court of Preble county.

      J. W. King, for plaintiffs in error.

      Koos c& Fisher, Marsh & Marsh and Millihin, 8hotts <& Millihin, for defendants in error.
   Judgment affirmed on reasoning of Deem V. Millikin et al, 6 O. C. C. Rep., 357.


text:
    No. 3109.
    National Bank v. McKinley, Jr. et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Stark county.

      Alfred J. Thomas and John C. McClarran, for plaintiff in error.
    Day, lynch ds Day, for defendants in error.
   Judgment affirmed.


text:
    No. 3335.
    Kirk, Christy & Co., v. West & Joy.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Trumbull county.

      George P. Hunter, for plaintiffs in error.

      Washington Hyde, for defendants in error.
   Judgment affirmed.


text:
    No. 3355.
    Woodward v. Welker.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Darke county.

      Patrick Gaynor and Safer db Robeson, for plaintiff in error.

      Allread db Biclcel, for defendant in error.
   Judgment affirmed.


text:
    No. 3362.
    Brichant v. Brouwer et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Perry county.

      Huggins db Sowers, for plaintiff in error.

      J. B. Jones, for defendants in error.
   Judgment affirmed.


text:
    No. 3373.
    Cissna et al. v. Vanmeter et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Pike county.

      John A. Eylar, for plaintiffs in error.

      John W. Washburn, for defendants in error.
   Judgment affirmed.


text:
    No. 3375.
    Railroad Company et al. v. City of Washington.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Payette county.

      J. II. Collins and Mayncwd Daugherty, for . plaintiffs in error.

      Nye Gregg, Willis M. Pine and Ridy & Patton, for defendant in error.
   Judgment affirmed.

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


text:
    No. 3388.
    Welsh, Admr., v. The Pennsylvania Company.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Trumbull county.

      Geo. P. Hunter, for plaintiff in error.

      J. B. Carey and ,F. L. Mullins, for defendant in error.
   Judgment affirmed on the authority of Seigfried v. Railway Co., 50 Ohio St., 294.


text:
    No. 3450.
    Taylor et al. v. Finney et al.
    (Decided November, 19, 1895.)
    Error to the Circuit Court of Holmes county.

      Stihoell <& Bailey, for plaintiffs in error.

      Voorhes dh Churchy for defendants in error.
   Judgment affirmed on the authority of Biddinger v. Pratt, 50 Ohio St., 719.


text:
    No. 3466.
    Fease v. Jackson.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Sandusky county.

      Frank J. Tuttle, for plaintiff in error.

      Kinney c& Runt, for defendant in error.
   Judgment affirmed.


text:
    No. 3469.
    Schlee v. The Francis Fritsch Mfg. Co.
    (Decided November 19, 1895.)
    Error to the Circuit' Court of Franklin county. George B. Okey, and James A. Allen, for plaintiff in error.
    Mallon, Goffey c& Mallon and Watson, Burr c& Livesay, for defendant in error.
   Judgment affirmed.


text:
    No. 3476.
    Baker, Admx., v. City of Lancaster.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Fairfield county.

      Brasee <& Brasee and A. I Vorys, for plaintiff in error.

      George E: Martin, for defendant in error.
   Judgment affirmed on the authority of Young v. Shallenberger, 34 W. L. B., 166.


text:
    No. 3477.
    Kraemer v. Martens.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Fairfield county.

      Brasee ds Brasee, and Thomas H. Dolson, for plaintiff in error.

      George E. Martin, M. A. Daugherty, and O. D. Martin, for defendant in error.
   Judgment affirmed on the authority of Young v. Shallenberger, 34 W. L. B., 166.


text:
    No. 3480.
    Harper v. Thomas et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Franklin county.

      L. J. Oritehfielcl, Ohcwles D. Martin, J. J. Harper and Ilem'y P. Folsom, for plaintiff in error.
    Harrison, Olds da Henderson, for defendants in error.
   Judgment affirmed.


text:
    No. 3481.
    Ballard, Ex’x, v. Thomas et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Franklin county.

      L. J. Ch-itehfield, Chcwles D. Martin, J. J. Hamper and Henry P. Folson, for plaintiff in. error.
    Harrison, Olds <& Henderson, G. P. L. Butler and O. 0. Hunter, for defendants in error.
   Judgment affirmed.


text:
    No. 3489.
    Hege et al. v. Griffith et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Fairfield county.

      P. O. Smith, Milt. Morris and Brcosee dh Brasee, for plaintiffs in error.

      George E. Mcwtin and A. I. Yorys, for defendants in error.
   Judgment affirmed.


text:
    No. 3513.
    Wright v. Barrett.
    (Decided November, 19, 1895.)
    Error .to the Circuit Court of Wayne county.

      John G. Mg Glarran and Alfred J. Thomas,. for plaintiff in error. ' .. .

      Johnson <& Taylor, for defendant" in error.
   Judgment affirmed.


text:
    No. 3550.
    Gray et al. v. Clyde, Ex’x, et al.
    (Decided November 19, 1895.)
    Error to the Circuit .Court of Ross county.,

      John G. Entrekin, for plaintiffs in error, .

      William E. Gilmore, for defendants in error. '
   Judgment reversed on the authority of Kerr v. Lydecker, 51 Ohio St., 240; and this cause is remanded to the court of common pleas with direction to sustain the demurrer to the third defense of the answer, setting up the statute of limitations; and such further proceedings as may be required by law


text:
    No. 3804.
    Robeson et al. v. Landis et al.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Darke county.

      Setter c§ Robeson, for plaintiffs in- error.;

      Martin B. Trainor, for defendants .in" error.
   Judgment affirmed.


text:
    No. 4616.
    Railway Company v. Beall, Admr.
    (Decided November 19, 1895.)
    Error to the Circuit Court of Lucas county.

      E. D. Potter Jr., Thomas Emery and George O. Greene, for plaintiff in error.

      Tim'd da Boone, for defendant in error.
   Judgment affirmed.


text:
    No. 3059.
    Armstrong, Receiver, v. Law et al.
    (Decided November 26, 1895.)
    Error to the Superior Court of Cincinnati.

      John W. Herron, for plaintiff in error.
    Paxton, Warrington <& Boutet, and William Worthington., for defendants in error.
   Judgment affirmed.


text:
    No. 3346.
    Hagerty, Auditor, v. Voss.
    (Decided November 26, 1895.)
    Error to the Superior Court of Cincinnati.
    Spiegel, BromweU da Foraker, County Solicitors, for plaintiff in error.

      Wilby da Wald, for defendant in error. •
   The questions argued only arise upon the bill of exceptions, which is not a part of the record.

Judgment affirmed.'


text:
    No. 3490.
    Green v. Scovill.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Licking county.

      Kibler & Kibler, for plaintiff in error.

      diaries K. Follett, for defendant in error.
   Judgment affirmed.


text:
    No. 3497.
    Larwill v. Trustees of the Methodist Episcopal Church.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Wayne county.

      A. D. Metz, for plaintiff in error.

      Critchfield <& Oritchfteld, for defendants in error.
   The judgments of the said circuit court and of the court of common pleas are hereby reversed on the ground that it appears from the petition and copies of deeds thereto attached, and made a part thereof, that neither said plaintiffs below nor said Methodist Episcopal Church have the right to sell or dispose of said lot twenty-five, and that the court has no right to order the sale thereof. It appearing in the journal entry of the common pleas court that J. F. Larwill is the vendee of said Nancy Q. Larwill, the only heir of said Joseph H. Larwill, gives him a standing in this case and his demurrer to the petition should have been sustained. This cause is remanded to the court of common pleas of Wayne county, with instructions to sustain said demurrer of plaintiff in-error, and for further proceedings.


text:
    No. 3498.
    Bricker v. Bricker.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Richland county.

      J. 0. Laser, for plaintiff in error.

      Skiles c& Skiles, for defendant in error.
   Judgment affirmed.


text:
    No. 3501.
    Shaul v. McCauley.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Champaign county.

      E. P. Middleton and Levi Geiger, for plaintiff in error.

      Thomas J. Frank, and Louis D. Johnson, for de- - fendant in error.
   Judgment affirmed.


text:
    No. 4335.
    Fire Association et al. v. Ranstead.
    (Decided November 26, 1895.)
    E'rorr to the Circuit Court of Summit county.

      Tibiáis <L Frank and F. IT. Waters, for plaintiffs in error.

      Oviatt, Allen <& Cobbs, for defendant in error.
   Judgment reversed on the authority of Simpson v. Building Association, 38 Ohio St., 349. Estoppels are mutual.

Judgment for the plaintiff in error.


text:
    No. 4353.
    Adams et al. v. Emmitt.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Pike county.

      •John W. Washbimi, John A. JEylar and W. II. Middleton, for plaintiffs in error.

      Lawrence T. Need, for defendant in error.
   Judgment affirmed on the authority of Farmers College v. Cary 35 Ohio St., 648.


text:
    No. 4365.
    City of Toledo v. Just.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Lucas county.
    ■ C- F. Walts, City Solicitor, for plaintiff in error.

      George P. Kirby, for defendant in error.
   Judgment affirmed on the authority of City of Toledo v. Beckler, ante, 447.


text:
    No. 4474.
    Studer et al. v. City of Columbus.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Franklin county.

      Donaldson <& Passing, for plaintiffs in error.

      Barger, Smith & Irvine, for defendant in error.
   Judgment reversed and modified on the authority of City of Toledo v. Beckler, ante, 447.


text:
    No. 4524.
    Shattuck et al. v. City of Cincinnati.
    (Decided November 26, 1895 )
    Error to the Superior Court of Cincinnati.

      F. 0. Arnpt and A. O. Shattuck, for plaintiffs in error.

      Frederick Ilertenstein, for defendant in error.
   Judgment reversed and remanded to the Superior Court for further proceedings on the authority of City of Toledo v. Beckler, ante, 447.


text:
    No. 3500.
    Gardner, Adm’r, v. Ashbrook et al.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Morrow county.

      Prophet (& Eastman and John A. Garver, for plaintiff in error.

      Olds t& Olds and Vaughan <& Kaufman, for defendants in error.
   Judgment reversed and remanded for a new trial on the authority of Slagle v. Entrekin, 44 Ohio St., 637; Braiden v. Mercer, 44 Ohio St., 339; Foster, Admx, v. Wise, Adm'r, 46 Ohio St., 20.


text:
    No. 3504.
    Foehl v. Wright.
    (Decided December 3, 1895.)
    Error to the Circuit Court' of Tuscarawas county.

      John A. Buchanan, for plaintiff, in error.

      Busk cfe Bomig, for defendant in error.
   Judgement affirmed.


text:
    No. 3506.
    Johnston v. Johnston et al.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Hamilton county.

      Walter G. Shottoell and A. 0. Barnes, for plaintiff in error.

      D. Cunningham and J. M. Garvin, for defendants in error.
   judgment affirmed.


text:
    No. 3515.
    Hall, Adm’r, v. Wilson, Executor, et al.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Franklin county.

      W. F. Hunter, for plaintiff in error.

      Henry H. -Huggins and Huggins <& Sowers, for defendants in error.
   Judgment affirmed.


text:
    No. 4384.
    Railroad Company v. Topliff.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Lucas county.

      F. B. Potter, Jr., and George G. Greene, for plaintiff in error.

      Scribner <& Hard, for defendant in error.
   Judgment affirmed.


text:
    No. 4501.
    Theide v. Railway Company.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Mahoning county.

      Z. ’ W. King and James Kennedy, for plaintiff in error.

      A;' W, Jones and W. S. Anderson, for defendant in error.
   Judgment affirmed.


text:
    No. 4507.
    Railway Company v. Klamback, Adm’x, et al.
    (Decided December 3, 1895.)
    ERRORr to the Circuit Cdurt of Lucas county. ’

      K. B. Potter, Jr., and Thomas Emery and George C. ■Greene, for 'plaintiff in error.

      Scribner <& Hurd, Goulder, Wing <& Holding, and John T. Bye, for defendants in error.
   Judgment affirmed.,


text:
    No. 4575.
    Commissioners et al. v. Pargellis.
    (Decided December 3, 1895.)
    Error to the Circuit Court of Wood county.

      Parker <& Moore, for plaintiffs in error.

      Dole <& Chase, .for defendant in error-
   judgment affirmed.


text:
    No. 3177.
    Railway Company v. Court.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Marion county.

      G. 0. Hunter and M.cNeal ds Wolford, for plaintiff in error.

      Johnston <& Young, for defendant in error.
   Judgment reversed and remanded to the court of common pleas for a new trial, on the ground that the plaintiff’s own evidence showed that he was guilty of contributory negligence.


text:
    No. 3179.
    Railroad Company v. Wisner.
    (Decided December 10, 1895.)
    Error to the Circuit Court of, Richland county.

      J. II. Collins and Cummings c§ McBride, for plaintiff in error.

      Skiles <& SMles, for defendant in error.
   Judgment affirmed on the authority of Gaines v. Transportation Co., 28 Ohio St., 418.


text:
    No. 3180.
    Bell v. Stage.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Pickaway county.

      ■ P. C. Smith, Milt. Morris and Harrison, Olds <& Henderson, for plaintiff in error.

      B. H. Bostwick and Festus Walters, for defendant in error.
   Judgment affirmed.


text:
    No. 3503.
    Hart v. Eichenlaub et al.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Franklin county.

      George L. Converse and R. II. Platt, for plaintiff in error.

      Poioell, Rickets <& Black, for defendants in error.
   Judgment affirmed.


text:
    No. 3517.
    Taylor et al. v. Courtright.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Marion county.

      Cameron c& Cameron and Porter d¿ Porter, for plaintiffs in error.

      J. W. Robinson, for defendant in error.
   Judgment affirmed.


text:
    No. 3530.
    Mower v. Wasson, Treasurer.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Wayne county.

      John McBweeney, for plaintiff in error.

      A. D. Mitz, for defendant in error.
   Judgment affirmed.


text:
    No. 3535.
    Spencer v. Spencer et al.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Hocking county.

      John S. Brasee and Heitman d> Friesner, for plaintiff in error.

      W. F. Finch, and W. F. Finch, Jr., for defendant in error.
   Judgment affirmed.


text:
    No. 3543.
    Belgin v. Little et al.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Stark county.

      W. II. Pippitt and A. A. Thayer, for plaintiff in error.

      Along & Ale Carty, Day, Lynch <& Day and A. J. Williard, for defendants in error.
   Judgment affirmed on the authority of McGinnis v. Schwab, 24 Ohio St., 356.


text:
    No. 3558.
    Railroad Company et al. v. Cummins et. al.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Ashtabula county.

      Theodore Ilall and Allen M. Cox, for plaintiffs in error.

      Herbert Williams, for defendants in error.
   Judgment affirmed on the sole ground that a municipal council has no power to vacate that part of a county road which, lies within the. municipality.

Minshall, C. J., dissents.


text:
    No. 4760.
    Railway Company v. State of Ohio.
    (Decided December 10, 1895.)
    Error to the Circuit Court of Franklin county.

      Thomas Milliken, Lawrence Maxwell and Charles Darlington, for plaintiff in error.

      J. K. Richards, Attorney General and D. K. Watson, for defendant in error.
   Judgment affirmed on the authority of The State v. Pennsylvania Co., 34 W. L. B., 15; State v. Newton, 36 Ohio St., 208.

Minshall, C. J., dissents on the ground that the evidence offered by the defendant below should have been admitted and submitted to the jury under proper instructions.


text:
    No. 3191.
    Hickle v. Valentine et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Ross county.

      J. L. Throckmorton and J. V. Lee, for plaintiff in error.

      W. IT. Safford and Robert D. McDougal, for defendants in error.
   Judgment affirmed.

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


text:
    No. 3200.
    Wilson v. Graham et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Franklin county.

      J. Y. Lee, for plaintiff in error.

      Hite <& Courtright and J. M. Tibbetts, for defendants in error.
   Judgment affirmed.


text:
    No. 3205.
    Park, Sr., et al. v. Watson.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Belmont county.

      George Dunccm and Alfred Caldwell, for plaintiffs ' in error.

      L. Danford, for defendant in error.
   Judgment affirmed.


text:
    No. 3256.
    McIlvried et al. v. Truesdell.
    (Decided December 17, 1895.)
    Error to the Circuit- Court of Cuyahoga county.

      M. LI Nason and Arnold Green, for plaintiffs in error.

      Brewer, Palmer <& Me German and Ba/rber <& Barber, for defendant in error.
   Judgment affirmed.


text:
    No. 3534.
    Courtright et al. v. Scringem et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Franklin county.

      C. T. Clark and Marriott <& Hughes, for plaintiffs m error.

      John S. Friesner, G. F. Castle and- Ira II. Crum, for defendants in error.
   J udgment affirmed.


text:
    No. 3553.
    Moore v. Schroth.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Brown county.

      G. Bambach c& Son, for plaintiff in error.

      W. D. Young, for defendant in error.
   Judgment affirmed.


text:
    No. 3557.
    Stamp et al. v. Cooper et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Knox county.

      Alfred B. Me Intire and John Adams, for plaintiffs in error.

      II II. Greer, for defendants in error.
   Judgment affirmed.


text:
    No. 3562.
    Whitworth v. Steers.
    (Decided December 17, 1895.)
    Error to'the Circuit Court of Cuyahoga county.

      E. Sowers, for plaintiff in error.

      E: P. Hatfield and James Wade, for defendant in error.
   Judgment affirmed.


text:
    No. 3565.
    The T. B. Townsend Brick and Contracting Company v. Roberts.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Muskingum county.

      Frank A. Durban, for plaintiff in error.

      Hinson da Adams and J. T. Grew, for defendant in error'.

   Judgment affirmed.


text:
    No. 4294.
    Hamilton et al. v. City of Cincinnati et al.
    (Decided December 17, 1895.)
    Error to the Superior Court of Cincinnati.

      Burch da Johnson, for plaintiffs in error.
    Hertenstein, Adler da Whittaker, Gity Solicitors, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.


text:
    No. 4473.
    Gillam v. City of Columbus et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Franklin county.

      Donaldson da Tussing, for plaintiff in error.
    Barger, Smith da Irvine, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.


text:
    No. 4480.
    McCormick v. Railroad Company et al.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Richland county.

      W. S. Kerr, for plaintiff in error.

      Williamson da Gushing and Jenner, Jenner da Weldon, for defendants in error.
   Judgment affirmed.


text:
    No. 4594.
    Board of Education v. State ex rel. Board of Education.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Warren county.

      Clark & Cunningham, for plaintiff in error.

      W. C. Thompson and IF. F. Eltzroth, for defendant in error.
   judgment affirmed.


text:
    No. 3153.
    Life Insurance Company v. Horn.
    (Decided December, 20, 1895.)
    Error to the Circuit Court of Hardin county.

      Charles M. Melhorn and Ramsey, Maanoell da Ramsey, for plaintiff in error.

      George Ii. Phelps, for defendant in error.
   Judgment affirmed.

Shauck and-Spear, JJ., dissent.


text:
    No. 3243.
    Railway Company et al. v. Railroad Company.
    (Decided December 20, 1895.)
    Error to the Circuit Court of Mahoning county.

      J. T. Brooks, Carey da Boyle and A. IF Jones, for plaintiffs in error.

      T IF Sanderson, D. B. Kurtz and D. T. Watson, for defendant in error.
   Judgment affirmed; the questions argued are not so presented by the record as to be capable of consideration by this court. ■'


text:
    No. 3563.
    Haney v. Burns, Executor.
    (Decided December 20, 1895.)
    Error to the Circuit Court of Ross county.

      James II. Moore and William II. Safford, for plaintiff in error.

      J. O. Douglas, for defendant in error.
   Judgment affirmed. .


text:
    No. 3567.
    Railway Company v. Wartenbee.
    (Decided December 20, 1895.)
    Error to the Circuit Court of Muskingum county.

      Frank A. Durban and Frank II. Southard, for plaintiff in error.

      Poioer c& Poioer, for defendant in error.
   Judgment affirmed.


text:
    No. 2451.
    The Isaac Harter Company v. Edwards.
    (Decided June 25, 1895.)
    Motion by defendant to strike from the flies bill off exceptions in cause No. 4361. on the general docket.

      Brown <& Guernsey, for plaintiff in error.

      George II. PhsT/ps, for defendant in error.
   Motion overruled for the reason that it involves the merits of the case on error.


author: Shauck, J.

text:
    Jones v. The State of Ohio.

      Indictment for rape — Section 6816; Rev. Stat. — Evidence—Relief of others as to guilt — Corroboration of r'ecollection by memorandum.

    1. An indictment under -section 6816, Revised Statutes, for carnally knowing a female child under fourteen years of age need not aver that she is not the daughter or sister of the accused. (Howard v. The State, 11 Ohio St., 328, distinguished. )
    2. On the trial of the issues joined by the plea of not guilty it is error to admit evidence whose only effect is to show that others believe the accused guilty.
    3. The recollection of a witness concerning a fact in issue cannot be corroborated by the contents of a memorandum made by himself, long after the circumstance, showing his recollection at a former date.
    (Decided January 21, 1896.)
    Error to the Circuit Court of Wayne county.
    The plaintiff in error was tried in Wayne county common pleas and found guilty upon the following count: That he “being then and there a male
    person of the age of eighteen years and upward, did unlawfully and carnally know and abuse one Mary W. with her consent, she, the said Mary W., then and there being a female child under the age of fourteen years, to-wit: of the age of' thirteen years, contrary to the form of the statute in such ease made and provided and against the peace and dignity of the state of Ohio. ’ ’
    A motion for a new trial was overruled, and sentence of imprisonment in the penitentiary for three years, and the judgment was affirmed by the circuit court.
    Rulings of the trial court upon the admission of evidence are stated in the opinion.

      John O. Morr, H. B. Smith and John Mo Sweeney, for plaintiff in error.
    Statute 6817 provides a punishment. A person convicted of a rape upon his daughter or sister or a female person under twelve years of age, shall be imprisoned in the penitentiary during life, and the person convicted of rape upon any other female person shall be imprisoned in‘the penitentiary not more than twenty years nor less than three years.
    Now the crime of rape may be committed in two ways. First, by force and against the will of the female over fourteen years of age, and when the male person is over eighteen years of age and the female person under fourteen years of age, by her consent. Next we contend that not only can it be committed two ways and each be separate and distinct crimes, but it can be committed either way upon different classes of person sand thereby make separate and distinct crimes. Whiting v. The State, 48 Ohio St., 234; Fouts v. The State, 8 Ohio St., 98,
    We find that there are four requisites to an indictment. The first is, that the special manner of the-whole fact ought to be set forth with such certainty, and so specifically, that it may judicially appear to the court what judgment is to be pronounced. Had the defendant, Jones, entered a plea of guilty, how could the court have passed sentence under that count in-the indictment? The rule clearly knocks out all idea of hearing evidence, and rightly too, because the question of relationship is one that the defendant might be entitled to a trial by jiiry.
    The second requisite to an indictment as laid down in the same authority is, “That the accused may clearly and distinctly know what charge he is called upon to answer.”
    Upon the reading of that indictment how could the defendant tell whether or not the state intended to charge him with having committed the crime upon a sister or even a .daughter?
    Thirdly, it is laid down in the same authority, “That the record must clearly furnish a bar to the defendant against a second prosecution for the same offense.
    . Looking at this count in this indictment, suppose poor Jones serves his term of three years' in the penitentiary, he is brought back charged with committing the same act upon Mary Weafler, and charging that Mary Weafler is a sister of his, can he plead this present conviction in bar ?
    Fourth, the next rule that is laid down is, “That posterity may know what law is to be derived from the record.”
    The court on the trial permits the mother to testify as to what her daughter told her and as to who her daughter told her was guilty of this alleged crime. The court also permits the prosecuting witness to give a conversation she had with Mrs. Jones, the wife of Jones, in the absence of the defendant, on the same theory that it was outcry testimony. We contend that the rule is too well settled in the case of Dunn v. State, 45 Ohio St., 249, to admit of any testimony, and that this evidence was all incompetent and very prejudicial to the defendant.
    Again, we contend that the court erred in the admission of the evidence o:| Peter Weafler and permitting him to testify from a paper purporting to be a memoranda of the time of the birth of his children, when it shows that the paper was prepared about twelve or thirteen years after the birth of his child. There is considerable conflict in the evidence as to the age of this girl. 19 Ohio St., 55; Swan’s Treatise, 121, 166; Wharton’s Evidence, vol. 1, sec. 654; Phillips’ Evidence; vol. 1, note on page 252 ; 3 Wendell, 379; Abbott’s Criminal Brief, sec. 669.

      J. K. Richards, Attorney General, and Ross IF. Funch, Prosecuting Attorney, for defendant in error.

      First — As to sufficiency of indictment. Indictment for rape. Revised Statutes, sections 6816, 6817 ; Wilson Criminal Code, 31, 35.

      There are two counts in the indictment; on the trial the jury saw fit to convict said Jones, under the first count, which is ‘ ‘with her consent, ’ ’ the second count being “without her consent.”
    That a negative averment Ms not necessary unless it enter into and become a part of the description of the offense. Hirn v. The State, 1 Ohio St., 15; Becker v. The State, 8 Ohio St., 392; Stanglein v. The State, 17 Ohio St., 453; Billingheimer v. The State, 32 Ohio St., 435.
    In the case at bar the negative averment claimed to be necessary to the sufficiency of the indictment is surely not a part of the description of the offense, because the offense is in one section and the penalty in another. It is generally safe, and all that is necessary in an indictment is to follow the language of the statute, which is certainly done in this case. Spencer v. The State, 13 Ohio 407; Davis v. The State, 32 Ohio St., 24.

      Second — As to supposed errors complained of during the trial.
    The admission of testimony as what the little girl told her mother and Mrs. Jones about this transaction is not error and is competent as outcry testimony, if you wish to call it that. McHugh v. The State, 42 Ohio St., 154; Kilbourn v. Fury, 26 Ohio St., 153; Black v. Hill, 32 Ohio St., 313; Cook v. Slate Co., 36 Ohio St., 135.
    As to error complained of in permitting Peter "Weafler to show why and how he knew the age of the girl from a piece of paper, and how he made the paper, and if you choose to call it that to refresh his .memory from this piece of paper as to the age of the girl. The court will notice that in all the citations by plaintiff in error on this subject and the Ohio decisions on refreshing memory, to-wit: 39 Ohio St., 616 ; 23 Ohio St., 130; 21 Ohio St., 653 (and not cited by plaintiff in error), are all as to records on which the witness had no other memory or the record was not made by the witness as in 3 Wendell, 379.
    As to all the errors complained of during the trial about all are as to the admissions of testimony, and even if it would be technically incompetent, it is scarcely necessary to cite this court to authority that, incompetent testimony having been received, the court will not reverse the verdict or judgment if there is • enough testimony that is competent to sustain the finding of the court or jury, as there certainly is in this case. 26 O. S. 153-162, Kilbourn v. Fury, 32 O. S., 313, Black v. Hill; 26 O. S., 135 -9, Cook v. Slate Co.

    Also error must be prejudicial in criminal as well as civil cases to be a ground of reversal. 42 O. S., 154, McHugh v. The State.

   Shauck, J.

The first contention of counsel for the plaintiff in error is that the indictment is fatally defective because it does not aver either that Mary W. is, or that she is not, the sister or daughter of the accused. In support of that view they rely on Howard v. The State, 11 Ohio St., 328. It was there held that the crime of having “carnal knowledge of a daughter or sister forcibly and against her will, ’ as defined in the fourth section of the act of March 7, 1835 (S. & C. Stat., 404), and the crime of having “carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid forcibly and against her will,” as defined in the fifth section of the same act, where distinct crimes, and not merely distinct grades of the same crime, and that in charging the latter crime, it was essential for the indictment to state that the woman or female child upon whom the offense was charged to have been committed was not the daughter or sister of the accused. The report contains only the conclusions of the court, but we suppose thejr were supported by the view that the indictment must con-, tain a complete description of-the offense, each of the sections referred to containing' a complete description of an offense and providing a penalty therefor.

But the statute governing the present case is found in sections 6816 and 6817 of the Revised Statutes. Section 6816 is as follows: “Whoever has carnal knowledge of a female person forcibly and against her will; or being' eighteen years of age, carnally knows and abuses a female child under fourteen years of age with her consent, is guilty of rape. ’ ’ The crime described in the latter clause of the section is that described in this indictment. To hold that the indictment must either aver or negative the supposed kinship, would be to add to the requirements of the statute. The case cited can have no application to the present case, because of the chang'e in the statutory description of the offense.

But counsel further contend that since the former of the sections referred to contains no penalty, and since for the purpose of ascertaining the penalty appropriate to the crime, reference must be had to section 6817, the same difficulty is met as in the former statute. Section 6817 provides : “A person convicted of rape upon his daughter, or sister, or a female child under twelve years of age, shall be imprisoned in the penitentiary during life; and a person convicted of rape upon - any other female shall be imprisoned in the 'penitentiary not more than twenty nor less than three years. ’ ’ The latter section contains no definition of the crime, but each of its clauses adopts the definition of the previous section. To the imposition of the severer penalty provided in the first clause of the latter section it is necessary that there be either the kinship or the age' of less than twelve years. To the proposition that no sentence could have been imposed, upon a plea of guilty to this indictment it is a sufficient answer that notwithstanding the omission from the indictment of either of the circumstances justifying the severer penalty provided by the first clause of section 6817. it contains the general description of the crime for which the penalty is provided'in the second clause of the latter section; that is, upon one “convicted of rape upon any other female. ”

Under the present statute there are distinct grades of the same crime. We do not agree with counsel for the state that upon a plea of guilty to an indictment of this character, the court might hear evidence to enable it to determine whether the penalty of the first clause of section 6817 or that of the second clause would be appropriate. For, upon the question of kinship or age, contemplated by the former clause, the defendant would be entitled to the verdict of a jury. In that case the affirmative averment of kinship or age would be necessary. In this case no negative averment is necessary, because without it there is a complete description of an offense for which the penalty imposed in this case is provided.

On the trial, the mother of the child was permitted to testify in answer to questions by counsel for the state and against the objections of the accused, that after the commission of the alleged offense and before the arrest she went to the residence of Jones and, not finding him at-home, inquired of his wife .concerning him; that Mrs. Jones told.her where he was, and then declared to her in substance that if the friends of the child did not send him to the penitentiary she would. If the belief of Mrs. Jones in the guilt or innocence of her husband were material, that declaration, if made, would have'justified the inference that she believed him guilty, though it would have been, impossible to learn the sources or character of the information upon which her belief was founded. But as the object of the trial was to ascertain whether competent evidence would create such belief in the minds of the jurors, her belief was not only irrelevant, but prejudicial.

It is said by counsel for the state that if the court erred in admitting this portion of the mother’s testimony, the error was cured by the testimony of Mrs. Jones that she did not make such declaration. But the incompetent evidence introduced an irrelevant inquiry, and in prosecuting that inquiry the jury may have believed either witness.

The state having offered evidence tending to show that the child was under fourteen years of age at the date of the alleged offense, the defendant offered evidence tending to show that she was then more than fourteen years of age. Thereupon, her father being upon the stand and having a memorandum of the dates of. the births of his children, the memorandum having been made by himself from memory a few months before the trial, was permitted to testify that it appeared from the memorandum that Mary was born January 3,1881. This paper had no quality which entitled it to consideration as substantive evidence. The witness had been permitted to testify fully as to his recollection of the date of her birth, and his recollection at another time was not corroborative.

For errors in the admission of evidence the judgments of the circuit court and court of common pleas ewe rever sed.