author: Spear, J.

text:
    In the Matter of the Estate of Plummer Sidwell, Deceased.

      Executrix dies before estate administered — Ser executor renders final account — Section 6115a, Rev. Stat. — Exceptions to the account by administrator de bonis non — Executor is party in fiduciary capacity — Section 6408, Rev. Stat.- — Executor may appeal without bond, when — Proper notice must be given.

    1. Where an executrix has died before the estate represented by her is fully administered, and her executor renders in the probate court a final account of such decedent’s administration in conformity with Section 6175a, Revised Statutes, and exceptions to such account are interposed by an administrator de bonis non of the original unsettled estate, such executor is “a .party in a fiduciary capacity” in such proceeding within the meaning of Section 6408, Revised Statutes.
    2. The term “the trust” in that section means the trust represented by such executor.
    •3. Where such executor desires to appeal from the judgment of the probate court sustaining the exceptions or part thereof, he is, by force of the statute, allowed the appeal without giving an appeal bond provided “he has given bond within the state for the faithful discharge of his duties,” and gives the proper written notice within the time prescribed by the statute.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Belmont county.
    One Elma Sidwell, executrix of Plummer Sidwell, died without making final settlement of the Plummer Sidwell estate, and final account of her administration of said estate was filed in the probate court of Belmont by her executor, C. H. Judkins, the plaintiff in error here. To this account exceptions were filed in that court by A. H. Mitchell, administrator de bonis non with the will annexed of Plummer Sidwell, deceased, who is the defendant in error. The exceptions were sustained in part, and from the judgment of the probate court the plaintiff in error attempted to appea l to the court of common pleas. In that court the defendant in error interposed a motion to dismiss the appeal on the sole ground that no appeal bond had been given. The motion was sustained and the appeal dismissed by the common pleas, and that judgment was affirmed by the circuit court.

      Mr. T. C. Ayers, for plaintiff in error.

      Mr. G. L. Weems and Mr. A. H. Mitchell, for defendant in error.
   Spear, J.

It is contended by plaintiff in error that he had the right of appeal without bond by virtue of that provision of the statute (section 6408, Eevised Statutes), which authorizes a trustee who has given bond to appeal without bond Avhere he “appeals im the interest of the trust.” That is, where one standing in a “fiduciary capacity” who has given a fiduciary-bond in this state for the faithful discharge of hist duties, desires to appeal in the interest of his trust, he is not required to give an appeal bond, but is allowed to .carry the case up by giving the written notice required by statute. It is conceded that the plaintiff in error gave a fiduciary bond, and that he gave the necessary written notice. Against this proposition, and in support of the judgment, the claim is that the plaintiff in error was not “a party in a fiduciary capacity” as contemplated by the statute; that his sole duty was to render a final account of Elma Sidwell’s administration of the Plummer Sidwell estate within six months after his appointment, as required by section 6175a, Eevised Statutes, and, on doing that, his responsibility ended; that it was not his account, nor the estate of Elma Sidwell, that was the subject of investigation in the probate court, but the estate of Plummer Sidwell, and hence an appeal could not be taken by such executor in the interest of the trust; that the letter as well as spirit of the statute requires-a bond for the protection of the adverse party., and that an appeal without an appeal bond would defeat this object of the statute, because the executor’s bondsmen would not be liable to the estate of Plummer Sid-well for any default of his deceased executrix.

The. proposition appears on its face plausible, but it embraces, as we think, a number of untenable assumptions, some of which we will endeavor to point-out. There is no warrant in the provisions of the statute, and apparently none in reason, for the proposition that the executor’s duty is wholly performed Avhen he files an account; the’ duty to file which is imposed by section 6175», Revised Statutes. Ilis further duty is left, as it must always be left, where an account is assailed, to be determined by the exercise of a sound, reasonable discretion. If the estate he represents appears to him, in the exercise of discretion and under the. advice of counsel, to have been unjustly assailed and the judgment rendered against it to be wrong, it is as clearly incumbent upon such party, in the faithful discharge of his duties, to use all reasonable means to defend .the estate and correct the Avrong as it would be Avere the estate in any other manner the subject of a wrong judgment. It is true that the estate under investigation, upon the 'face of the record, is that of Plummer Sichvell, deceased, but it is a wholly gratuitous assumption to assert that no other estate Avas the subject of inquiry. Necessarily the estate of Elma Sidwell, as represented by her executor, was involved. It was the very account rendered by the executor of that estate which was the subject of exception, and it was that estate which was the subject of adverse judgment True, also, is it that the statute (section 6408, Revised Statutes),,in general provides that in case of appeal a written undertaking shall be given to the adverse party, but the assumption that this general requirement overrides the exception contained in the statute and so rules this case subordinates to the general provision the clearly defined exception and begs the very question to be determined. Again, the assumption that the question at issue is to be tested by a determination of whether or not the executor’s bondsmen would be liable for the payment of the amount due in case the exceptions should be sustained by the appellate court, is unwarranted. Of course they would not necessarily be so liable, nor would the executor himself. They would, however, be liable for the faithful discharge of his duties by their principal, and that is all he Avould be liable for. The fact that, if Elma SidAvell herself were the pariv rather than her executor, she would be liable for the judgment and could not ¿ppeal Avithout bond, is urged as an important consideration. It cannot be of importance. Her appeal would not, in such case, be in the interest of the trust, but in her own interest; hence she would not come within the terms of the statute. But, as already stated, the plaintiff in error, the executor, would not himself be liable for the judgment, and hence his appeal without bond would not have the effect to vacate a judgment to which any personal liability attached. Some way it appears to be taken for granted that it, was the executor’s duty to furnish security for the debts of the estate, for that is Avhat would result if he were required to give an appeal bond. Since when, we would like to know, has it been regarded as the duty of an executor to assume the debts of the estate which he represents or to give bond for their payment? The proposition is novel at least. It has heretofore been supposed that an executor performs his entire duty to creditors when he applies the proceeds of the assets of the estate to the payment of their claims in accordance with the provisions of the statute; and a construction of the statute which would forbid to the executor the advantage of an appeal except on condition that he assume the payment of disputed claims, and furnish bondsmen to make- his obligation good, would seem strained and unreasonable. It appears further to be assumed in this proposition that, within the purview of section 6408, there cannot be more than ■one trust involved as a subject of inquiry in the same ■action. Surely there is no warrant for this claim. It is clearly inconsistent with the comprehensive terms of the preceding section which provides from what judgments and orders appeals may be taken, and from that of 6408, which applies to any person (i. e., trustee), “appealing from any judgment or order in any court, or before any tribunal,” etc. This broad language does not admit of the limitation contended for by counsel. The present case itself furnishes an instance showing that more than one trust may be the subject of inquiry, although one rather than the other may be regarded as the principal one. To sum up, we think it clear that the executor of Elma Sid-well was a party to the present litigation “in a fiduciary capacity” within the meaning of the statute. To ■hold otherwise would be to engraft an exception on -the exception of the statute where none is provided by it. When general language is used in a statute it is not the province of courts to carve out exceptions, where such are neither implied nor necessary to effect the object of the statute, and especially not to en-graft an exception on an exception.

Reliance is placed by counsel for defendant in error upon the case of Collins, Exr., v. Millen, 57 Ohio St., 289. The main question in that case was as to the-right of an executor to appeal without bond from a judgment of the probate court sustaining exceptions, to his account in which he had charged himself with the receipt of certain moneys and claiming credit for certain payments made on behalf of the trust. In the common pleas his appeal was dismissed, and that judgment was affirmed by the circuit court and by this court, the ground being that he did not appeal in the interest of the trust but in his own interest. The holding is that where such a party “appeals from a judgment affecting adversely his own pecuniary interests, he is required by section 6408, Revised Statutes, to give an appeal bond.” Manifestly the test was: did he appeal in the interest of the trust which , he represented? No other question was involved. In (he present case tbe executor did not appeal in his own interest; he had no personal interest in the controversy, but his appeal was clearly in the interest of tho trust which he represented. Neither the decision in the above case, nor the reasoning of the judge who reported it, when his entire opinion is considered, aids, the counsel’s contention.

But, aside from the foregoing, a sufficient answer is found in the statute itself. The section is: “The person desiring to take an appeal, as provided in the preceding section, shall, within twenty days after the making of the order, decision, or decree from which he desires to appeal, give a written undertaking, exe* cuted on the part of the person appealing, to the adverse party, with one or more sufficient sureties, to be approved by the probate judge, and conditioned that the party appealing shall abide and perform the order, judgment, or decree of the appellate court, and shall ,pay all moneys, costs, and damages, which may be required of or awarded against said party, by such court; when the order, decision, or decree, from which the appeal is taken,'directs the payment of money, the undertaking shall be in double the amount thereof, and in other eses, in such amount as shall be prescribed by the probate court; but Avhen the person appealing, from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving Avritten notice to the court of . his intention to appeal Avithin the time limited for giving bond.” A simple reading of these provisions would seem to be all that is necessary to show that the plaintiff in error was not required to give a_ appeal bond. As executor of Elma Sidweli he stood “in a fiduciary capacity” because the interest he represented was that of his trust and not his own. He could have no possible personal interest of a pecuniary kind involved in the controversy. He had given bond within the state for the faithful discharge of his duties, and he had given also the proper written notice, and thus came within the very terms of the exception of the statute. Of course the question is what trust is intended by the phrase “the trust.” The trust just before referred to in the section is the trust for the faithful discharge of the duties of which the executor had given bond. The rules of grammar as well as reason compel the conclusion that it is that trust which is described as “the trust.” That trust is the immediate antecedent; no other trust is specifically mentioned, and the cláim that some other tr-ust is intended is far fetched; it does violence to the plain words of the statute, and does not seem to us to be warranted by any accepted rule of construction. This conclusion is strengthened by a consideration of the history of legislation on the subject. It is stated by Bradbury, J., in .Collins, Exr., v. Millen, supra (p. 293, 4), that: “An inspection of the annual volumes of our statutes shows that from quite an early period appeals were allowed to be taken by executors and administrators who had given bond with sureties in this state without requiring of them appeal bonds, and this too, without reference to the question, whether the judgment appealed from favorably or unfavorably affected the estate.” And (p.'297), that “previously to the adoption of the Revised Statutes in 1878, the statutes permitted an executor, etc., without giving an appeal bond, to take an appeal from a judgment affecting the estate, provided he had given bond in this state with sureties.” So that the effect of the amendment, and the only effect, was to establish the distinction between an appeal in a fiduciary interest and an appeal in a personal interest, and very naturally and properly to require that an appeal in the latter interest should be accompanied by an appeal bond.

Plaintiff in error insists, also, that the administrator de bonis non had no standing in law to interpose exceptions; that his only remedy was on the bond of Elma Sidwell, deceased. This point was not made in either court below, and we do not pass upon it.

Our conclusion is that the executor, the plaintiff in error, had the right under the statute to appeal without bond, and that the circuit court and the common pleas were in error in holding otherwise. The judgments will be reversed and the cause remanded to the court of common pleas with directions to overrule the motion to dismiss the appeal and for further proceedings according to law.

Reversed.

Burket, C. J., Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    Mengert, Trustee, v. Brinkerhoff, Sr.

      Assignment to trustee — In contemplation of insolvency — Section 631(3, Rev. Stat. — Act of, April '26, 1898 — Filing of assignment in prodate court — Application dy creditors for equal denefit trust — Judgment dates dack, when — Trustee to account only for net proceeds — Trustee may de sued in individual capacity, when — Record in first case, competent evidence in second, when — Agreement of trustee, assignor and creditors good defense to sudsequent action — Defendant required to plead to all defenses, when — Assignment—Trusteeship — Evidence.
    1. A defendant in an action is required to plead all the, defenses he has, and in a subsequent action he will be concluded as to all such defenses, evefi though he failed to plead some of them in the former action.
    2. A trustee to whom an assignment has been made in trust in contemplation of insolvency with intent to prefer one or more creditors, as provided in Section 6343, Revised Statutes before the amendment of April 26, 1898, is not required to file such assignment in the probate court to he administered under our insolvency statutes, hut he may proceed under the assignment until one or more creditors make anplication to a court of competent jurisdiction to have such assignment declared a trust for the equal benefit of all the creditors.

      3. When the court by its judgment, upon such application of one or more creditors, declares such assignment to be a trust for the equal benefit of creditors, the judgment relates back to the delivery of the assignment, and binds the assigned property and its proceeds from that time.
    4. Where the trustee in such an assignment permits the prop- ' erty covered by the assignment to him, to be taken in execution for the debts of the assignor, and sold according to law, substantially as an assignee for the benefit of creditors would sell it, all being done in good faith, such trustee is liable to account only for the net proceeds of such sale.
    5. In such case where the return of an officer shows that there was included in his sale property, other than that covered by the assignment, the proceeds of the sale of such other property cannot be recovered from such trustee.
    6. Where the person to whom such an assignment has been made is designated as trustee in the application by a creditor to a court of competent jurisdiction to have, the assignment declared a trust, and judgment is entered as applied for, in a subsequent action for the recovery of the assets, such person may be sued in his individual capacity, and the record in the first case will be competent evidence in the second case.
    7. Where the trustee under such an assignment and the assignor and all his creditors, consent and agree to the disposition of the assigned property, and such consent and agreement is carried into execution, the same will be a full and complete ■ defense to an action thereafter instituted by a creditor for the purpose of having the assignment declared a trust for the equal benefit of creditors; but if one or more creditors do not so consent and agree, the assignment may be declared a trust for the equal benefit of all creditors.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Richland county.
    The controversy out of which this case grows was heretofore in this court, and is reported in Brinkerhoff v. Smith, 57 Ohio St., 611, where the facts are fully stated.
    The present case was begun by Louis C. Mengert, trustee of the estate of P. L. Harrison, an insolvent debtor, plaintiff, against Roeliff Brinkerhoff, Sr., defendant, September 1, 1897, by the filing of the following petition' in the court of common pleas, omitting caption and signatures:
    “Plaintiff says that on the fifth day of January, 1891, said P. L. Harrison, then in full life, and residing in the city of Mansfield, Ohio, was the owner of. a general stock of dry goods, notions and fixtures in the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Said stock of goods, notions and fixtures were of the value of twenty-four-.thousand dollars ($24,000.00). Said P. L. Harrison was then insolvent, and on said fifth day of January, 1891, entered into a written contract with said defendant, by the terms of which said defendant agreed to dispose of said property, goods and chattels in accordance with the terms of said written contract, and on said fifth day of January, 1891, she executed to said defendant as trustee for the Mansfield Savings Bank, Jenner & Tracy, Mollie Y. Harrison and Hiram R. Smith her chattel mortgage of that date for the sum of six thousand, nine hundred and seventy-nine dollars and sixty-two cents ($6,979.62) on said stock of dry goods, notions and fixtures. That on said day said P. L. Harrison delivered into the possession of said defendant said stock of dry goods, notions and property in accordance with the terms of said written contract and chattel mortgage, and said defendant took possession thereof in accordance with the terms of said written contract and chattel mortgage as trustee. -
    “Thereafter, to-wit, on the twenty-ninth day of July, 1891, a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrison, the Mansfield Savings •Bank, Hiram R. Smith, Eoeliff Brinkerlioff, Sr., and other defendants, the object and prayer of Avhich petition Avas to cause said transfer of said stock of goods, notions and property decreed a general assignment for the benefit of all of the creditors of the said P. L. Harrison, according to their respective rights and claims.
    “Thereafter various different creditors of the said P. L. Harrison filed ansAvers and cross-petitions to said petition. Said case Avas appealed to the circuit court in and for said county of Richland, and at the January term, 1895, Avas tried in said circuit court on its merits, and a decree Avas rendered in said circuit court, in Avhich decree, among other things, said court found that said chattel mortgage and contract were made in contemplation of insolvency, and that the conveyance of said stock of dry goods, notions and property made to said defendant as trustee, was made with the intention to prefer certain creditors of the said P. L. Harrison, named in said mortgage and contract, and said court adjudged and decreed that the conveyance of said property to said defendant inure to, the benefit of all of the creditors of said P. L. Harrison as and for an assignment of all of said property to an assignee for the benefit of said creditors in proportion to the claim of each against said insolvent estate, and that the finding, judgment and decree of said circuit court be certified to the probate court of Richland county, Ohio, for the appointment of a trustee of said insolvent estate, and such other proceedings as are authorized by law, and the costs of said action, both in the court of common pleas and in the circuit court, was adjudged against said defendant.

      “Thereafter said defendant and the Mansfield Savings Bank filed their motion in said circuit court for a new trial on the grounds' stated in said motion, which motion the court overruled, and a bill of exceptions was duly prepared, signed and filed and made a part of the record. And thereafter said defendant and the Mansfield Savings Bank filed a petition in error in the Supreme Court of the state of Ohio, the object and purpose of which was to reverse the judgment and decree of said circuit court, and said cause was heard in the Supreme Court of Ohio, and at the January term thereof, 1897, the judgment and decree of the said circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio, for execution in accordance with the judgment and decree of the said circuit court.
    “The probate judge in and for said county of Rich-land having been interested in said case as counsel, and being also the son of said defendant, was disqualified from hearing said case or passing upon any of the questions rising therein; and said case was duly certified to the court of common pleas in and for said county of Richland to carry into execution the judgment and decree of said circuit court.
    “Thereafter, to-wit, on the thirty-first day of July, 1897, the said court of common pleas appointed said Louis C. Mengert trustee of said insolvent estate, as provided by law, to receive and collect all moneys and property in the possession of said defendant or any other person or persons belonging to said estate; to receive and collect any accounts, choses in action or notes; to take possession of any personal property belonging to said estate, convert the same into money, and to do any and all acts proper for an assignee or trustee of an insolvent estate to do. Said plaintiff, L. C. Mengert, accepted said trust, gave bond and qualified as such trustee, and is now acting as the trustee of said estate.
    “Said plaintiff, on the twelfth day of August, 1897, duly demanded of said defendant possession of all the personal property, moneys and books belonging to said estate, which were turned over to or came into the possession of said defendant; but said defendant refused to turn over to plaintiff either the books or any of the money or property that so came into his possession. Plaintiff avers that said defendant converted said stock of goods, merchandise and property to his own use and to the use of the Mansfield Savings Bank, of which he is the president, and has retained the same ever since the fifth day of January, 1891, when he took possession thereof as trustee in accordance with the terms of said written contract and chattel mortgage. From the time said defendant took possession of said stock of goods, merchandise and property, on the fifth day of January, 1891, he held it in trust for all the creditors of said P. L. Harrison, as was adjudged and decreed by the circuit court of Eichland county, Ohio, and by the Supreme Court of Ohio; and although said defendant has been duly notified of the said judgment and decree of said courts, and demand made upon him for said property and moneys, he has refused to obey the same.
    “Plaintiff avers that the value of said goods, merchandise, property and money so received by said defendant is not less than $24,000.00, and that said defendant is indebted to plaintiff for the said sum of $24,000.00, with interest thereon at six per cent, from January 5, 1891.
    “Wherefore plaintiff prays judgment against said defendant for said sum of $24,000.00 and interest thereon at six per cent, from January 5, 1891.”
    The defendant filed an amended answer containing seven defenses, and an amendment to the second defense. The third, fifth and sixth defenses were held bad on demurrer by both of the lower courts, and will not be further noticed. The first, second, fourth, seventh, and the amendment to the second, are as follows:
    “First Defense. — Now comes the defendant herein and files this his amended answer to the petition of' plaintiff, leave of court being first had and obtained. The defendant for answer admits that on the fifth day of January, 1891, P. L. Harrison, then in full life and residing in the city of Mansfield, Ohio, was the owner of a general stock of dry goods, notions and fixtures iu the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Admits that P. L. Harrison was then insolvent.
    “Admits that on the fifth day of January, 1891, this defendant signed a written contract made with P. L. Harrison. Admits that afterwards a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrisdn, the Mansfield Savings Bank, Hiram R. Smith and other defendants, but that he was not a party defendant in his individual capacity in said case, that he was never made a party defendant nor entered his appearance in said case. Admits that said cause was tried in the circuit court and Supreme Court of Ohio. Admits that the decree of the circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio. Admits that the probate court in and for said county of Richland having been interested in said case as counsel and being also the son of said defendant, was also disqualified from hearing said case or passing upon any of the questions rising therein and said case was duly certified to the court of common pleas, in and for said county of Rich-land, to carry into execution the judgment and decree of said circuit court. Admits the appointment of L. C. Mengert, trustee, and that said L. C. Mengert gave bond and qualified as such trustee and is now acting as such.
    “Defendant denies that said goods were of the value of $24,000, or any other sum whatever.
    “Defendant denies each and every other allegation contained in said petition herein, not herein expressly admitted or denied.
    “Second Defense. — The defendant admits the taking of a chattel mortgage and the signing of the contract set forth in the petiticn of plaintiff herein, but avers the fact to be that at the time said chattel mortgage was taken and contract signed, Jenner & Tracy were then acting for and in behalf of and as the agents and attorneys of P. L. Harrison, M. Y. Harrison and H. R. Smith; that said chattel mortgage was taken and said contract signed with the full knowledge, consent and acquiescence of said parties acting through their attorneys and for themselves, that said chattel mortgage should be taken and held as collateral security until the Mansfield Savings Bank would be able to go to an adjoining county and procure a judgment on the two notes, securing their claim and have an execution issued to the sheriff of Richland county, Ohio, and cause a levy to be made on the stock of goods owned by P. L„ Harrison and being the same stock of goods in the chattel mortgage; that said judgments were so taken in accordance with the above mentioned agreement, in the court of common pleas of Ashland county, Ohio, and execution served thereon to the sheriff of Rich-land county, Ohio, and a levy made on said stock of goods; that this defendant gave possession of these goods to the sheriff under said execution, with the full knowledge, consent and acquiescence of Jenner & Tracy acting for themselves and for P. L. Harrison, M. V. Harrison and Hiram R. Smith; that at the time said contract was signed, it was understood by and between Jenner & Tracy, acting for themselves and M. V. Harrison, P. L. Harrison and Hiram R. Smith and the defendant, that as soon as the execution was placed in the hands of the sheriff of Richland county, Ohio, and demand was made upon defendant for the possession of said stock of goods, that said defendant was to surrender said stock of goods; that afterwards, by consent, acquiescence and agreement of all the creditors of said P. L. Harrison, the stock of goods was Turned over to the sheriff of Richland county, Ohio, upon levies he had. made upon the same; that after said stock of goods had been taken possession of by the sheriff of Richland county, all of the creditors of P. L. Harrison acquiesced and agreed that the sheriff should sell the same and hold the proceeds for the benefit of all the creditors.
    “That after the sheriff had so taken possession, he sold a part of said goods at retail, which sale lasted several months and during all of said time all of said creditors and interested parties acquiesced in said sale, and that afterwards an order was taken by the sheriff to sell the balance of said stock at public sale in bulk, and said order was so issued with the full knowledge, acquiescence and consent of all the creditors of P. L. Harrison; that from the time said good» were so sold by the sheriff, which said sale occurred in the year 1891, until the beginning of this suit by the trustee, which was commenced in the year 1897, all of the creditors and interested parties acquiesced in said sale.
    “That the object of the suit referred to in plaintiff’s petition was for the purpose of getting at the fund realized by the sheriff from the sale of said goods; that said sale was had upon executions upon judgments in favor of the Mansfield Savings Bank, Hood, Foulkrod & Co., Farley, Harvey & Co., and Brown, Durell & Co., and the amount realized was $9,151.09, and that said sheriff of Richland county, under said above arrangement, got all of said proceeds of said sale.
    “This plaintiff, as said trustee, is therefore estopped from claiming any amount for the value of said goods or in damages from this defendant for not having kept the possession of said goods; all of said creditors having. thus consented to said execution being levied and the sale of said stock of goods being made by the sheriff of Richland county, Ohio.
    “Fourth Defense. — For a fourth defense defendant says: That in the transaction set forth in the petition he acted as the agent of the Mansfield Savings Bank, and in taking said security and contract he was acting as the agent of said savings bank, and that he had no interest individually in the claim of the said bank, nor was said P. L. Harrison indebted to him; but that said mortgage and contract were taken as security to secure the claims due said bank, and it was taken upon the advice of Jenner & Tracy under the circumstances herein alleged; that none of the goods, chattels and property of said P. L. Harrison remained in his hands after the levy of the execution in favor of the Mansfield Savings Bank, Hood, Foulkrod L ■ Co., Farley, Harvey & Co., and Brown, Durell & Co., but that all of said property was taken from him by the sheriff of Richland county, by virtue of said execution, and the same sold as heretofore alleged, and defendant avers that he never received a dollar of the proceeds of said sale and in no way profited by reason thereof. He avers that he acted in good faith in the transaction, and without any purpose to hinder, delay and defraud the creditors of said P. L. Harrison.
    “Seventh Defense.; — For a further defense defendant says: That the claims of all of the creditors of «aid P. L. Harrison have been satisfied out of the fund arising from the sale of said goods mentioned in the first and second defenses, except the claims of Jennei & Tracy, H.' R. Smith, Mollie V. Harrison, Markel Pocket Book Co., and Berfield & Co., amounting in ail to about $2,000, and that this plaintiff can in no case collect more than enough to satisfy the claims of thes< said creditors.
    “Amendment to amended answer. — Now comes the defendant, Roeliff Brinkerhoff,. and by leave of court files this amendment to his second amended answer, and for second defense to the petition of plaintiffj says:
    “That on the fifth day of January, 1891, the said P. L. Harrison executed and delivered to him the chattel mortgage and contract set forth in the petition as trustee for the persons named therein, and to secure the payment of the claims therein set forth ; but he alleges that he accepted the. delivery of said mortgage and contract upon the condition that he was to hold the same as such trustee until judgment could be taken. upon the claims, of the Mansfield Savings Bank and. levy of execution made upon the property described in said mortgage and contract to satisfy said judgments; and that' upon the same day, to-wit: the fifth day of January, 1891, the Mansfield Savings Bank took judgments upon its claims for the sums of $5,015.55 and costs, and for $200.00 and .costs respectively, in the court of common pleas of Ashland county, Ohio; and', upon said day executions were duly issued upon said' judgments to the sheriff: of Richland county, and by virtue of said writs the sheriff of said county of Rich-land duly levied said executions upon said property and took possession of the same on said fifth day of January. 1891.
    “That on the sixth day of January, 1891, Brown, Durell &' Co., Hood, Eoulkrod & Co., and Parley, Harvey & Co., creditors of said P. L. Harrison, took judgments in the court of common pleas of Richland county, Ohio, upon claims aggregating $1,783.00; and the same day upon said judgments executions issued and were duly levied upon the property in question.
    “And thereafter,"by an order of said court of common pleas, made in the case of Brown, Durell & Company v. P. L. Harrison, the sheriff of said Richland county Sold said property and returned the money into court with his proceedings under said order.
    “Defendant says that the whole of said property was taken from his possession by the sheriff as aforesaid • on the fifth day of January, 1891, and that thereafter he had nothing to do with the said property or the sale thereof, but that he surrendered the same as soon as the executions were levied thereon, and that no portion of the proceeds came into his hands or were applied for Ms benefit.”
    ■ ■ The court of common pleas sustained demurrers to all these defenses except the first, and defendant excepted. The plaintiff filed the following reply:

      “For reply to the first defense of the amended answer of the defendant, and leave of court having been first obtained to reply thereto, plaintiff says:
    “That he denies that the defendant was not a party in his individual capacity in the case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith and other defendants; and denies that he, the said Roeliff Brinkerhoff, was never made a party defendant, and never entered his appearance in said case.
    “Plaintiff avers that the said Roeliff Brinkerhoff, Sr., defendant herein, was made a party defendant in his individual capacity, in the said case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith, and others.”
    The cause was tried to a jury upon the issues joined by the petition, first defense and reply, and upon the evidence, the court holding that the value of the stock of goods so transferred to Mr. Brinkerhoff was the only question to be tried and determined.
    The testimony of the plaintiff tended to prove the value at the time of the transfer to be $24,000.00. The defendant introduced the execution docket of the sheriff, which showed that he sold the goods for $10,586.80 above taxes, and that the costs were $1,291.-59, net $9,295.21, which sum the sheriff paid over to creditors.
    The appearance docket in the other case was introduced in evidence and showed that Mr. Brinkerhoff in that case was sued as Roeliff Brinkerhoff, trustee, and that the sheriff served the summons on him personally.
    The counsel for plaintiff requested the court to charge the jury to bring in a verdict for $24,000.00, and interest, as all the evidence showed that to he the value of the stock of goods. The court refused to give this charge, and plaintiff excepted.
    The defendant requested certain special charges which the court refused, but as this refusal was not held to be error by the circuit court, no further notice will be taken of the requests.
    The court excluded certain evidence offered by defendant, which exclusion the circuit court held to be error, but from the view taken of the case by this court that question becomes immaterial, except as to the amount for which real estate was sold by the sheriff.
    The court instructed the jury to retire and bring in a verdict for the plaintiff for $10,586.80, with interest to the first day of the term, making a total of principal and interest, $16,227.00, being, as the court said, the amount realized by the sheriff. To this instruction the defendant excepted, but the plaintiff failed to except thereto. The jury brought in a verdict as directed.
    The defendant offered to prove that $1,400.00 of the $10,5S6.80 shown by the sheriff’s execution docket, was the proceeds of the sale of real estate not included in the contract and chattel mortgage. The court excluded this evidence and defendant excepted.
    Motions for a new trial were filed by both plaintiff and defendant, and overruled, and judgment entered on the verdict, to all of which exceptions were duly «aved.
    A petition in error was filed in the circuit court by the defendant below and a cross-petition in error by the plaintiff below.
    The cause was heard in the circuit court on the petition in error, the judgment reversed for error in sustaining the demurrer to the second, fourth and seventh defenses, and to the amendment to the second defense, for excluding certain evidence, for directing a verdict in favor of the plaintiff below, and because the verdict and judgment were against the weight of the evidence. The record fails to show that the cause was heard or considered on the cross-petition in error, and therefore that petition will not be further noticed.
    The plaintiff below filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and also alleging that the court of common pleas erred in its refusal to charge as requested as to the value of the stock'of goods.

      Mr. John W. Jenner and Mr. T. E. Powell, for plaintiff in error.

      Messrs. Cummings & McBride; Messrs. Kerr & LaDow; and Messrs. Brucker & Cummins and Mr. R. Brinkerhoff, Jr., for defendant in error.
   Burket, C. J.

The case of Brinkerhoff v. Smith, 57 Ohio St., 610, was begun and carried forward under Sections 634.3 and 6344, Revised Statutes, as they stood before the amendment of April 26, 1898, for the purpose of having said contract and chattel mortgage declared by the court to have been made in contemplation of insolvency, with the intent to prefer one or more of the creditors of Mrs. P. L. Harrison, and to invoke the provision of said section 6343' which provides that all assignments so made in trust to a trustee shall inure to the equal benefit of all creditors, and of the next section which provides that the probate judge, after such assignment shall have been declared by a court to have been made in trust with the intent to prefer one or more creditors, shall on the application of any creditor, appoint a trustee to receive and administer the assigned property, the same as in other cases of assignments to trustees for the ' benefit of creditors. The above are the material provisions of the two sections so far as the same are applicable to the original case reported in the 57 Ohio St., report, and to this case.

Under those sections, the trustee to whom the assignment is made in contemplation of insolvency, and with intent to prefer one or more creditors, is under no duty or obligation to file the assignment in the probate court to be administered as a general assignment for the benefit of creditors, but on the contrary he may hold the property and proceed under the assignment to him until some creditor applies to a court of competent jurisdiction to have the assignment declared to have been made in contemplation of insolvency, with the intent to prefer one or more creditors. If such creditor, or any creditor who may come into the (tase, succeeds in having such assignment declared by the court to have been so made, then the judgment will relate back to the making and delivery of such assignment, and the trustee so receiving the assignment will be held to account to the trustee appointed by the probate court, for all the assets so assigned to him as, of the time of the assignment. An assignment under said section 6343 made to prefer one or more creditors, is different from an assignment made for the benefit of all creditors, as was the case in Wambaugh v. Insurance Co., 59 Ohio St., 228. Under said sections 6343 and 6344, the trust character and intent must be first declared by a court of competent jurisdiction at the suit of a creditor, while under section 6335 no such declaration is necessary, but when such trust character and intent is declared by a court, the judgment to be effective must relate back to the time of the assignment and bind the assets from the time of the delivery of such, assignment. From that time a trust character is impressed upon them, and -they mure from that time to the equal benefit of all creditors. If the trustee could deal with the property and prefer some creditors, and have the trust take effect only from the date of the judgment, the assignment could not inure to the equal benefit of all the creditors. To give effect to the statute in this regard, it is necessary to hold that the assets are bound from the time of the assignment.

When an action is begun by a creditor to have an assignment made under said section 6343 declared as having been made in contemplation of insolvency with intent to prefer one or more creditors, as was done in the original action in this matter, the trustee may defend upon the ground that the assignment was not made to him in contemplation of insolvency, or that, it was not made with intent to prefer one or more creditors, and if he makes either one of those defenses good, the judgment must be in his favor

If he fails in both of those defenses, he may still defend further and show- that he renounced the trust, and restored the assets covered by the assignment to the assignor. Robertson v. Desmond, 62 Ohio St., 487. He may also defend on the ground that he has made disposition of the property by and with the consent, acquiescence and agreement of the assignor and all the creditors. This must be so, because where all persons concerned or interested consent and agree as to their private affairs, no public interests being involved, the law will not interfere. Where all consent and agree, and the assignee acts upon such consent and agreement in the disposition of the property, and thereby changes his position to his injury, all will be estopped.

All of the above defenses could have been made in said first action by Mr. Brinkerhoff, and if he made those defenses and was defeated, he is bound by that defeat, and cannot make the same defenses in this action wherein he is sued by the trustee appointed by the court for the recovery of the assets included in the assignment or for their value.

If he failed to make said defenses, or any of them, in the first action, he is now concluded the same as if he had made them and failed, because a defendant is bound to make as many defenses as he has, and cannot make a defense in a subsequent suit which he might have made in a former one. Roby v. Rainsberger, 27 Ohio St., 674; Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596; Bell v. McColloch, 31 Ohio St., 397; Kunneke v. Mapel, 60 Ohio St., 7, 8.

In so far as the second, fourth, and seventh defenses, and the amendment to the second defense, set up the substance of the above defenses, or any parts thereof, which could have been made in the original action, the answers are bad on demurrer. The parts of said defenses, and amendment which plead that the stock of goods was taken by the sheriff under his executions in pursuance of the understanding that Mr. Brinkerhoff should accept the contract and chattel mortgage and the possession of the goods until judgments could be obtained, etc., and that he held possession only three or four hours, that he acted in good faith on advice of counsel, and never received a dollar of the proceeds, and did not intend to hinder, delay or defraud creditors, state no defense to this action nor to the original action. The facts so pleaded do not show a renouncing of the trust, nor a return of the goods to the assignor, but clearly show that he aided and assisted in diverting the goods from Mrs. Harrison and her general creditors and bestowing them or their proceeds upon a few preferred creditors. Instead ®f this being a defense, it was an aggravation. True, he might do what he did without liability in case no creditor instituted proceedings for the purpose of having the transaction declared a trust. He acted at his peril, and creditors having instituted proceedings, and having had a trust declared, and a trustee appointed, he cannot noAv, in this action, avail himself of defenses Avbich he could only make in the original action, even though he acted in good faith upon advice of counsel, and received no part of the proceeds of the sale of the goods.

The court of common pleas was therefore right in sustaining said demurrer to said defenses, and the circuit court erred in reversing the judgment on that ground.

In the first action Mr. Brinkerhoff Avas sued by the name of Roeliff Brinkerhoff, trustee, and in this action as Roeliff Brinkerhoff, and it is urged in his ftehalf that this is error. The assignment made him a trustee and it Avas proper, though not necessary, to sue him in the first action as such. But the trust having been declared by ihe court, and the stock of ¡roods having been disposed of, and lie having failed on demand to restore the assets, be became'liable 3n his individual capacity,'and he stands in one and the same relation in both actions, and the record in the first case is competent evidence against him in the second.

The circuit court reversed the judgment of the common pleas for the further reason that the common pleas, erred in the exclusion of certain evidence. After the defendant had . offered the return of the sheriff in evidence showing money made $10,586.80, costs $1,291.59, net $9,295.21, his counsel offered to prove that $1,400.00 of this sum arose out of the sale of certain real estate not included in the contract and chattel mortgage, but the court excluded the evidence, and this exclusion was held to be error by the circuit court, and we think the court was right in so holding, and that the reversal of the judgment on that ground was right. But there was no error in excluding the other testimony offered by the defendant»

The plaintiff below claimed and proved the value of the stock of goods to be $24,000.00, there being no conflict of evidence as to the value. The defendant claimed that the recovery, if any, should be limited to the amount realized by the sheriff on the sale under execution, and introduced the return of the sheriff to show that amount. The court of common pleas rev fused to charge the jury that the value of the goods, with interest, was the measure of damages, and adopted the view of the defendant, that the recovery-should be'limited to the amount realized on'the .sale upon execution, and directed the jury to bring in a verdict for that sum, with interest. There' wa,s no error in so doing, except that the amount should have been reduced by the amount for which the real estafe was sold. As the court had erred in excluding the evidence as to the proceeds of sale of the real estate^ it also erred in directing a verdict for too large a sum, or a sum which might have been reduced if the evidence as to the proceeds of the real estate had been admitted. Where the facts are conceded and the amount is certain, there is no error in directing a verdict accordingly.

This court will not usually weigh the evidence to ascertain whether the verdict is against its weight, but as the case turned wholly upon the amount of damages to be awarded, and as the common pleas adopted the proceeds of the sale on execution as the proper measure of damages, there was none but written evidence to weigh, and the court construed that, and directed the jury to bring in a verdict for the amount of the sale and interest, which the jury did, without weighing the evidence. If the court was right, it cannot be said that the verdict is not sustained by the evidence.

Summing up the whole case, the judgment of reversal is sustained and affirmed on the one ground only that the court of common pleas erred in excluding the evidence offered as to the amount of proceeds of sale of real estate included in the return of the sheriff, and all other questions passed upon by the circuit court, and upon, which its judgment of reversal is based, are ruled in favor of the plaintiff below, and the judgment, of the circuit court as to them is disapproved and not affirmed. The cause will be remanded to the court of common pleas for a new trial in accordance with this opinion and the law. In that trial the question as to the rule of damages will again arise, and while the general rule is the value of the goods, with interest, that rule does not seem to be applicable under said section 6343 where the goods have been turned over to the sheriff, and levied on and sold under proceedings, in legal effect, the same as if sold by a trustee appointed by the proper court, and where the trustee in the assignment received no part of the proceeds and no profit to himself and acted in good faith. There is no probability that a trustee appointed by the court could have realized more money for the goods than was realized by the sheriff, and there would seem to he no justice in compelling Mr. Brinkerhoff to pay more for the goods than was received for them at the sheriff’s sale. And there is authority for this holding. In Bean v. Smith, 2 Mason, 252, Justice Story said: “Will not a court of equity decree, that the fraudulent grantee shall account to the judgment creditor for the amount of the proceeds of the sale, considering them as a mere substitution for the original fund? It appears to me, that such a course is within the established doctrine and practice of the court.”

The above allows a recovery of the proceeds of the sale, and this was quoted with approval by this court in Holmes v. Gardner, 50 Ohio St., on page 175.

Another question may arise further along in this controversy, when it comes to the administration of the trust, and that is as to whether Mr. Brinkerhoff is entitled to subrogation, to the claims paid out of the proceeds of the sale of that stock of goods. We express no opinion on that question now as it is not before us, but mention it so that it may not be forgotten.

For the exclusion of the evidence as to the proceeds of the sale of real estate as above indicated, and for directing a verdict for too large a sum, and for no other reason, the Judgment of reversal by the circuit court is

Affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: By the Court.

text:
    The State of Ohio v. Peters.

      Jurisdiction of police judge or mayor — Confined to offenses in own town — Pure food laws — Prevention of cruelty to animals —Sections 3718a, 6981/ and 698Jja, Rev. Stat.

    In cases of violation of the laws to prevent adulteration of food and drinlc, the adulteration and deception in sale of dairy products, and drugs and medicines, and any violation of the law for prevention of cruelty to animals, or under Section 6984 of Revised Statutes, or section 6984a thereof, as enacted in Section 3718a, Revised Statutes, the jurisdiction of a police judge or mayor of any city or village is confined to offenses committed within his city or village.
    (Decided February 3, 1908.)
    Exceptions to the Court of Common Pleas of Wood county.
    The defendant, B. H. Peters, a grocer doing bush ness^at the village of North Baltimore, Wood county, , was arrested on complaint of an inspector of’ the Dairy and Food Commissioner, made before Hon. ,3.' E. Shatzel, mayor of the village of Bowling Green, Wood county, charging said Peters with a violation - of the Act of May 16, 1894 (91 O. L., 274), “to prevent fraud and deception in the manufacture and sale-: of oleomargarine and to promote public health in the state of Ohio.”
    Motion was made on behalf of Peters to dismiss the complaint for the reason that the offense was not alleged in said complaint to have been committed within the village of Bowling Green, of which said Shatzel was mayor. The defendant’s motion was denied, and against his objection he was put upon trial before said Shatzel, mayor of Bowling Greer, without a jury, found guilty and sentenced to pay a fine, that being the only penalty provided for violations of the act above mentioned, by persons not manufacturers.
    Thereupon, Peters prosecuted alleged error in the court of common pleas of Wood county, and such proceedings were had that the judgment of the mayor of Bowling Green was reversed for the reason that the complaint did not allege that the offense was committed within the village of Bowling Green, Wood county, Ohio. The prosecuting attorney of Wood county duly excepted to the decision aforesaid.

      Mr. J. M. Sheets, Attorney General; Mr. Elmer G. McClelland, Prosecuting Attorney; Messrs. James & Beverstock, and Messrs. James M. & Walter F. Brown, for plaintiff.

      Mr. James O. Troup, for defendant.
   By the Court.

Construing together Revised Statutes, Sections 1824 and 3718a, as amended April 3, 1888, so as to give effect to all the language in these sections, we are of the opinion that the true intent and meaning of the two sections is that the mayor or police judge of any city or village shall have final jurisdiction to hear and determine any prosecution for a misdemeanor’, unless the accused is entitled by the constitution, to a trial by jury, and his jurisdiction in such cases shall be coextensive with the eounty, except that in cases of violation of the laws to prevent adulteration of food and drink, the adulteration and deception in sale of dairy products, and drugs and medicines, and any violation of the law for prevention of cruelty to animals, or under Section 3984 of Revised Statutes, or section 6984a thereof, as macted in Section 3718a, Revised Statutes, his jurisdiction shall only be as to offenses committed “within his city or village.’'

Exceptions overruled.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, J.J., concur,


text:
    No. 7758.
    Railroad Company v. Suhrwiar.
    (Decided September 23, 1902.)
    Error to the Circuit Court of Lucas county.

      Messrs. Squire, Sanders & Dempsey; Messrs. Doyle & Lewis and Mr. C. A. Seiders, for plaintiff in error.

      Messrs. Seney & Johnson, for defendant in error.
   Judgment, reversed as per journal entry.

Burket, C. J., Davis, Shauck and Crew, JJ., concur.


text:
    No. 7528.
    Hecker v. Battenfeld, Sheriff.
    (Decided September 30, 1902.)
    Error to the Circuit Court of Marion county.

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

      Messrs. Crissinger &. Guthery, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7539.
    McDaniel v. Battenfeld, Sheriff.
    (Decided September 30, 1902.)
    Error to tlie Circuit Court of Marion county.

      Messrs'. Scofield, Durfee & Scofield, for plaintiff in error:
    ■ Messrs. Grissinger & Guthery, for defendant in error;-' -
   Judgment affirmed.'

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7550.
    Toledo et al. v. McGlynn et al.
    (Decided September 30, 1902.)
    Error to the Circuit Court of Lucas county.

      Mr. Moses R. Brailey and Mr. Charles S. Northup, for plaintiffs in error.

      Messrs. Hamilton & Kirby; Mr. H. A. Merrill and Mr. C. F. Watts, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Prick, JJ., concur.


text:
    No. 8118.
    In re Application of Edward K. Owen for a Writ of Habeas Corpus.
    (Decided September 30, 1902.)
    Habeas Corpus.

      Mr. W. E. Guerin, Jr., for plaintiff.

      Mr. J. M. Sheets, attorney general, for defendant,
   •' Prisoner discharged upon grounds stated in journal entry.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8121.
    State ex rel. Heating & Power Co. v. Lantz, City Clerk.
    (Decided September 30, 1902.)
    In Mandamus.

      Messrs. Keifer & Keifer; Mr. Walter L. Weaver and Mr. John L. Zimmerman, for relator.

      Mr. V. Y. Smith, city solicitor, and Messrs. Hagan & Kunkle, for defendant.
   Demurrer to petition sustained and petition dismissed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    Motion No. 4462.
    Beyer et al. v. Burress.
    (Decided September 30, 1902.)
    Motion by plaintiff to dispense with printing record under section 6711, as amended in cause No. 8067, on the General Docket.

      Mr. John A. Buchanan, for plaintiffs in error.

      Mr. John S. Graham, and Mr. J. H. Mitchell, tor defendant in error.
   Motion sustained and clerk of this court ordered to file the printed record heretofore delivered to him, the amendment of May 12,1902, of Section 6711, Revised Statutes, not being a valid enactment. r


text:
    No. 7296.
    Christman v. Irwin.
    (Decided October 7, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Henry J. Harrop, for plaintiff in error.

      Mr. John W. Wolfe and Mr. W. A. Hicks, for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Burket, O. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 7632.
    Memphis & Cincinnati Packet Co. v. Britton.
    (Decided October 7, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Johnson & Levy and Mr. William H. Jones, for plaintiff in error.

      Mr. E. M. Ballard, for defendant in error.
   Judgment affirmed.

Burket, a J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7793.
    Shields et al. v. Board of Education et al.
    (Decided October 7, 1902.)
    Error to the Circuit Court of Darke county.

      Mr. A. L. Clark and Mr. A. C. Robeson, for plaintiffs in error.

      Mr. W. Y. Stubbs and Messrs. Anderson, Bowman & Anderson, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Crew, JJ., concur.


text:
    No. 8146.
    State ex rel. Commissioners v. Fritz, Auditor.
    (Decided October 7, 1902.)
    In Mandamus.

      Mr. G. M. Skiles and Messrs. Donnell & Marriott, for plaintiff.

      Mr. TF. H. Boioers, for defendant.
   Demurrer to answer having been overruled the petition in this case is dismissed at costs of plaintiff. Fee of $100.00 allowed to W. H. Bowers, payable out of the county treasury of Richland county.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7738.
    Norwood et al. v. Cleneay et al.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Wm. R. Collins, solicitor of Norwood, and Messrs. Wilson, Cosgrave & Jones, solicitors of Hamilton county, for plaintiffs in error.

      Mr. R. B. Bowler; Mr. Harlan Cleveland and Mr. C. E. Schell, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew. J J., concur.


text:
    No. 7870.
    Railway Company v. Simmons.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Mahoning county,

      Mr. Thomas W. Sanderson and Messrs. ArrelyMbVeg <£ Robinson, for plaintiff in error: ■■ ■

      Messrs. Jones & Anderson and Mr. Charles Lawyer', for defendant in error.
   Judgment affirmed.

Burket, C. J., Shauck, Price and Crew,. JJ.,. concur.


text:
    No. 7889.
    Angus et al. v. Harding et al.
    (Decided October 14, 1902.)
    Error to the Circuit Court, of Seneca county.

      Messrs. Dore & Dore, for plaintiffs in error.

      Mr. H. Walter Doty, for defendants in error.
   Judgment affirmed on authority of Hixson v. Burson, 54 Ohio St., 483.

Buhket, C. J., Davis, Shauck, Price and Crew. JJ., concur.


text:
    No. 7897.
    Huron Dock Co. v. Ackerman, Admx.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Huron county.

      Messrs. C. P. & L. W. Wickham, for plaintiff in error.

      Messrs. Hurd, Brumbach & Thatcher and Mr. W. B. Btarbird, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ./concur.


text:
    No. 7901.
    Ross v. Norwood et al.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Bundy & Woods, for plaintiff in error.

      Mr. William, R. Oollins, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck. Price and Crew.. JJ., concur.


text:
    No. 8044.
    Stone et al. v. Sims, Treas., et al.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Franklin county.

      Mr. G. T. Glark, for plaintiffs in error.

      Messrs. Dyer, Williams <6 Stouffer, for defendants in error.
   Judgment affirmed.

Burket, O. J., Davis, Shauck, Price and Crew,. JJ., concur.


text:
    No. 8148.
    State ex rel. Cameron, Treas., v. Alexander, Treas.
    (Decided October 14, 1902.)
    In Mandamus.

      Mr. J. M. Sheets, attorney general; Mr. J. E. Todd and Mr. Smith W. Bennett, for plaintiff.

      Mr. P. W. Poole, for defendant.
   Peremptory writ awarded.

Burket, C. J., Davis, Shauck, Price and Crew,. JJ., concur.


text:
    No. 7314.
    Burns, Exr., et al. v. McFarland.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Richland county.

      Mr. John C. Burns and Messrs. Cummings & McBride, for plaintiffs in error.

      Mr. J. W. Jenner; Mr. J. B. Waight and Mr. C. F. Colville, for defendant in error.
   Judgment affirmed.

B drket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7233.
    Snow-Church Co. v. Savings Bank Co. et al.
    (Decided October 21. 1902.)
    Error to the Circuit Court of Wood county.

      Mr. P. C. Prentiss, for plaintiff in error.

      Messrs. Baldwin & Harrington, for defendants in error. .
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7323.
    Bower v. Baker et al.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Wood county.

      Mr. P. G. Prentiss, for plaintiff in error.

      Mr. E. D. Bloom and Mr. D. R. Jones, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7328.
    Smith et al. v. Finan.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Lucas county.

      Messrs. Griffin & Conlin, for plaintiffs in error.

      Mr. John P. Manton and Mr. Joseph P. Hanley, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7331.
    Dayton v. Paving Company.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Montgomery county.

      Mr. Edwin P. Matthews, city solicitor, for plaintiff in error.

      Messrs. McMahon é McMahon, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7501.
    Railway Company v. Ulrich et al.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. A. W. Eckert and Messrs. Hurd, Brumback & Thatcher, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Davis, Shauck, Price and Cbew, JJ., concur.


text:
    No. 7766.
    Railway Company v. Davis.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Gallia county.

      Mr. R. D. Marshall and Mr. Hollis G. Johnston, for plaintiff in error.

      Mr. R. W. Switzer; Mr. G. W. White and Mr. J. H. Thomas, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Ceew,i JJ., concur.


text:
    No. 7861.
    Woods v. The State of Ohio.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Meigs county.

      Mr. O. L. Bradbury and Mr. Manning B. Webster, for plaintiff in error.

      Mr. E. C. Fish, prosecuting attorney, and Mr. J. M. Sheets, attorney general, for defendant in error
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.

Burket, C. J., dissents.


text:
    No. 7917.
    Cleveland v. Kelly.
    (Decided October 21. 1902.)
    Error to the Circuit Court of Cuyahoga county.
    ■ Mr. M. W. Beacom and Messrs. Baker, Payer, Gage é Garey, for plaintiff in error.

      Mr. A. W. Mayers; Mr. Berkeley Pearce and Messrs. Foran, McTigue & Baker, for defendant in error.
   Judgment reversed s per journal entry.

Burket, C. J., Davis, .Shauck, Price and Crew, :JJ,, concur.


text:
    No. 7941.
    Ely et al. v. Harding.
    (Decided October 21, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Garfield, Garfield & Howe, for plaintiffs in error.

      Mr. Charles 8. Bentley, for defendant in error..
   Judgmént affirmed.

Burket, C. J., Price and Crew, JJ., concur.


text:
    No. 7947.
    The State of Ohio v. Rheyn.
    (Decided October 21, 1902.)
    Exceptions to the Court of Common Pleas of San-dusky county.

      Mr. George H. Withey, prosecuting attorney, and Messrs. Dyer, Williams & Stouffer, for plaintiff.

      Mr. Byron A. Fouche and Messrs. Finefrock & Garner, for defendant.
   Exceptions overruled because no question of law arises on the record. ■

Burket, C. J., Davis, Price and Crew, JJ;, concur.


text:
    No. 7233.
    Eberle v. Fire Insurance Co.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Monroe county.

      Mr. J. P. Sprague cG Son, for plaintiff in error.

      Mr. W. E. Moore and Mr. R. W. Barger, for defendant in error.
   Judgment affirmed..

• Burket, C. J.,- Davis, Shauck,'Price and Crew, JJ., concur.


text:
    No. 7241.
    Dickson v. Herbrand Co.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Sandusky county!

      Messrs. Meek, Dudrow cG Worst and Messrs. Finch, <£ Dewey, for plaintiff in error;

      Messrs. Bartlett cG Wilson, for defendant in crábr.
   Judgment affirmed.

Burket, C. J., Dávis and Shauck, JJ., concur.


text:
    No. 7316.
    Insurance Company v. Piper, Exrx.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Greene county.

      Messrs. Paxton & Warrington and Mr. Charles Darlington, for plaintiffs in error.

      Messrs. Little cG Spencer and Mr. Horace L. Smith. for defendant in error.
   Judgment affirmed.

Burket, C. - J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7319.
    Babcock, Hurd & Co. v. Kerns et al.
    (Decided October 28, 1902.)
    Error to the Circuit Court oí Columbiana county,

      Mr. J. M. Dickinson and Messrs. Henry & douse, for plaintiffs in error.

      Messrs. Potts é Moore, for defendants in error.
   Judgment reversed as stated in entry.

Burket* C. J., Davis, Shauck and Crew, JJ., concur.


text:
    No. 7342.
    Akron v. Himebaugh.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Summit county.

      ñíessrs. Tibiáis & Frank and Mr. Osborn Esgate, for plaintiff in error.

      Mr. Andrew J. Wilhelm and Mr. Edwin F. Yom, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew,[ JJ., concur. 1


text:
    No. 7347.
    Rapid Transit Co. v. Dagenbach, Admr.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Ashtabula county.

      Mr. Theodore Hall & Son, for plaintiff in error.

      Mr. E. J. Pinney and Mr. T. E. Hoyt, for defendant in error.
   Judgment affirmed.

Burket, C. J., Shauck, Price and Crew, JJ., concur.


text:
    No. 7349.
    Shawhan v. Railroad Company.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Scioto county.

      Mr. A. T. Holcomb and Mr. Duncan Livingstone, for plaintiff in error.

      Mr. Oscar W. Newman, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7351.
    Bank v. Briggs et al.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Hancock county.

      Mr. H. F. Burket and Messrs. Brewer, Gook <& McGowan, for plaintiff in error.

      Mr. Jason Blackford and Mr. M. B. Gary, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Crew, JJ., concur.


text:
    No. 7359.
    Tracht v. Reed et al.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Crawford county.

      Mr. 8. B. Harris; Mr. J. W. doubter and Mr. B. d. Tracht, for plaintiff in error.

      Messrs. Finley & Q-allinger; Messrs. Beer, Bennett <£ Monnett and Messrs. Johnston & Lewis, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 7242.
    Bank v. Benedict et al., Trustees.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Gray '& Tischbein and Messrs. Kramer <& Kramer, for plaintiff in error.

      Messrs. Barton & Dorger and Mr. Edward Barton, for defendants in error.
   Judgment affirmed as to $3,500 item and modified as to $5,500 item. See journal entry.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7248.
    Insurance Company v. O'Neal et al.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Jefferson county.

      Messrs. Sayler & Sayler; Mr. J. Dunbar and Mr. A. G. Lewis, for plaintiff in error.

      Mr. J ohn M. Cook and Messrs. Rogers & McCauslen, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7249.
    Insurance Company v. Falk, Exr., et al.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Jefferson county.

      Messrs. Sayler & Sayler; Mr. J. Dunbar and Mr. A. G. Lems, for plaintiff in error.

      Mr. J ohn M. Cook and Messrs. Rogers & McCauslen¡ for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7262.
    Board of Education v. Board of Education.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Sandusky county.

      Messrs. Love é Oulbert, for plaintiff in error.

      Messrs. Meek, Dudrow & Worst, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7368.
    Kreis v. Drott et al.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Goebel & Bettinger, for plaintiff in error.

      Messrs. Gray & Tischbein and Mr. Dan Them Wright, for defendants in error.
   Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287.

Burket, C. J., Spear, Davis, Shauck, Price and Crew. JJ., concur.


text:
    No. 7369.
    Sohn et al., Partners, v. Building & Loan Co. et al.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Goebel & Bettinger, for plaintiffs in error.

      Mr. Walter "Á. DeOamp, for defendants in error.
   Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7382.
    Bullock et al. v. Bullock.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Licking count}

      Messrs. G. & G. H. Follett, for plaintiffs in error.

      Messrs. Kibler & Eibler and Mr. P. F. Koonts, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7423.
    Fitzgerald v. Rinebolt.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. Charles H. Follett and Mr. Thomas E. Steele, for plaintiff in error.

      Mr. B. G. Smythe, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7424.
    Fitzgerald v. Sasser.
    (Decided November 11, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. Charles II. Foltett and Mr. Thomas E. Steele, for plaintiff in error.

      Mr. B. O. S my the, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shaucic, Price and Crew, JJ., concur.


text:
    No. 7272.
    Tenney et al. v. Cincinnati.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Hamilton county

      Messrs. Coppock £ Hertenstein; Messrs. Penn & Penn and Mr. Theodore Horstman, for plaintiffs in error.

      Mr. Charles J.-Hunt, corporation counsel; Mr. Albert Morrill; Mr. Frank H. Kunkel and Mr. Wade H. Ellis, for defendant in error.
   Judgment affirmed on authority of Grant v. Village of Hyde Park, 67 Ohio St., 166.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7367.
    State ex rel. Carew v. Lewis, County Auditor.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Hamilton county.-

      Messrs. Foralcer, Outcalt, Granger & Prior, for plaintiff in error.

      Messrs. Wilson, Gosgrave & Jones, county solicitors, for defendant in error.
   Judgment affirmed.

Bueket, C. J., Spear, Davis, Shauck, Price and Ceew, JJ., concur.


text:
    No. 7383.
    Peters v. Bogan.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Darke county.

      Mr. A. G. Robeson, for plaintiff in error.

      Messrs. Trainor & Hoffman, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Sha.uck, Price and Crew, JJ., concur.


text:
    No. 7441.
    Wilson v. Gordon & Alter Co. et al.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Darke county.

      Mr. J. I. Allread; Mr. J. G. Glark and Mr. A. G. Robeson, for plaintiff in error.

      Messrs. Anderson & Bowman, for defendants in error
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7450.
    Carrothers v. Jenner & Tracy.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Richland county.

      Messrs. Cummings & McBride, for plaintiff in error.

      Messrs. Jenner & Weldon, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7451.
    Campbell, Exr., v. Greenawalt et al.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Guernsey county.

      Mr. Fred L. Rosemond and Mr. J. W. Campbell, for plaintiff in error.

      Mr. J. W. Smalhoood and Messrs. Wells & Sheppard, for defendants in error.
   Judgment affirmed on authority of Baxter v. Boyer, 19 Ohio St., 490 and Johnson v. Johnson, 51 Ohio St., 446.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7453.
    Bank et al. v. Redd, Assignee, et al.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Ashland county.

      Messrs. Laser & Huston, for plaintiffs in error.

      Mr. J. R. Hissem; Mr. F. V. Owen and Mr. F. C. Semple, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7654.
    Kane v. Marble.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Van Wert county.

      Mr. P. R. Kerr and Messrs. Glenn & Allen, for plaintiff in error.

      Mr. G. L. Marble, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.

Price, J., did not participate.


text:
    No. 7989.
    Ross, Exr., et al. v. Cincinnati.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Coppock & Eertenstein, for plaintiffs in error.

      Mr. Charles J. Emit and Mr. Frank E. Eunkel, corporation counsel, for defendant in error.
   Judgment affirmed on authority of Grant v. Village of Hyde Park, 67 Ohio St., 166.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 8169.
    State ex rel. Attorney General v. Mansfield.
    (Decided November 20, 1902.)
    ' Information in contempt.

      Mr. J. M. Sheets, attorney general, for plaintiff.

      Mr. E. A. M. Krantz, for defendant.
   Judgment as per journal entry.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 6971.
    State ex rel. Attorney General v. Home Co-operative Union.
    (Decided November 25, 1902.)
    Quo Warranto.

      Mr. J. M. Sheets, attorney general; Mr. J. E. Todd, assistant attorney general and Mr. S. W. Bennett, for relator.

      Mr. J. W. Hutchinson; Mr. L. D. Heller and Messrs. Henderson & Sprague, for defendant.
   Report confirmed and final distribution ordered as per journal entry.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7220.
    Railway Company v. Railroad Company.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Montgomery county.

      Mr. Charles Darlington and Mr. John A. McMahon, for plaintiff in error.

      Mr John T. Dye and Mr. B. M. Nevin, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: Spear, Davis and Crew, JJ.,

text:
    No. 7326.
    Joyce v. Barron, Treas.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Franklin county.

      Mr. T. E. Powell, for plaintiff in error.

      Mr. Luke G. Byrne; Mr. Franklin Rubrecht and Mr. Roy L. Wildermuth, for defendant in error.
   Judgment reversed and so 'modified as to compel her (Mrs. Joyce) to pay 25 per cent, of the tax valuation as per journal entry.

Burket, C. J., Shauck and Price, JJ., concur.

Spear, Davis and Crew, JJ.,

concur in the reversal, but are of opinion that the assessment should be wholly set aside, there having been no notice of any kind given the plaintiff in error of the proposed street improvement and she having been thereby wholly deprived of an opportunity to be heard before the council respecting the character of the payment, and upon a claim for damages to her land arising from the change of grade of the street.


text:
    No. 7363.
    Wilson v. Gray.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Fayette county.

      Messrs. Post é Reid, for plaintiff in error.

      Mr. John Logan, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7457.
    Insurance Company v. Kostering.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Foran, McTighe & Baker, for plaintiff in error.

      Mr. R. D. Updegraff and Mr. W. C. Rogers, for defendant in error.
   Judgment is vacated and cause remanded to circuit court with instructions to consider the bill of exceptions as to weight of evidence, there being no material omission.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7487.
    Board of Infirmary Directors v. Moore.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Ross county.

      Mr. John C. Entrekin, for plaintiff in error.

      Mr. Elijah Cutright and Mr. John W. Goldsberry, for defendant in error.
   Judgment affirmed for the reason that the judgment may have been reversed on the weight of the evidence.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7777.
    The State of Ohio v. Young.
    (Decided November 25, 1902.)
    Error to the Circuit Court of Scioto county.

      Mr. Henry Bannon, for plaintiff in error.

      Mr. Noah J. Dever and Mr. Frank B. Finney, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Speak, Davis, Shauck and Price, JJ., concur.

Burket, C. J., and Crew, J., dissent.


text:
    No. 7214.
    Garlick v. Railway Company et al.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrel, McVey & Robinson and Messrs. Hine & Kennedy, for plaintiff in error.

      Messrs. Jones & Anderson and 'Messrs. Carey & Mullins, for defendants in error.
   Former judgment adhered to.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7215.
    Garlick v. Railway Company et al.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrel, McVey & Robinson and Messrs. Hine & Kennedy, for plaintiff in error.

      Messrs. Jones & Anderson and Messrs. Carey é Mullins, for defendants in error.
   Former judgment adhered to.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7456.
    Johnson v. Johnson et al.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Morgan county.

      Messrs. Barry & Weber, for plaintiff in error.

      Mr. Charles H. Fonts, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Price, JJ., concur.

Crew, J., not participating.


text:
    No. 7498.
    American Straw Board Co. v. The State of Ohio.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Seneca county.

      Mr. George E. Seney; Messrs. McCauley & Weller and Mr. D. J. Cable, for plaintiff in error.

      Mr. Milton Sayler and Mr. George E. Schoth, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Crew. JJ., concur.


text:
    No. 7294.
    Phillips v. Carter.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Marion county.

      Mr. J. F. McNeal & Son and Messrs. Scofield, Durfee & Scofield, for plaintiff in error.

      Messrs. Crissinger & Guthery, for defendant in error.
   Judgment affirmed upon all grounds stated by the circuit court. Upon the evidence as appears in the record judgment should have been entered in favor of defendant in error

Burket, C. J., Spear, Shauck and Crew, JJ., concur.

Davis and Price, JJ., not sitting.


text:
    No. 7400.
    Railway Company v. Stone.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Harrison county.

      Messrs. Dunbar & Sweeney, for plaintiff in error.

      Messrs. ErsJcine & ErsJcine and Mr. D. A. Hollingsworth, for defendant in error.
   Judgment affirmed.

Spear, Price and Crew, JJ., concur.

Burket, C. J., and Davis, J., dissent.


text:
    No. 7458.
    Schumacher et al. v. Taft et al.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey; Mr. Drausin Wulsin; Mr. J. M. Dawson and Mr. William H. Lueders, for plaintiff in error.

      Messrs. O'Hara & Jordan and Mr. Oliver B. Jones, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Dayis and .Crew, JJ., concur.


text:
    No. 7461.
    Velty v. Vulgamore.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Pike county.

      Mr. William D. Jones and Mr. F. E. Dougherty, for plaintiff in error.

      Mr. John A. Eylar and Mr. Samuel L. Patterson, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Crew, JJ., concur.

Burket, C. J., and Price, J., dissent.


text:
    No. 7523.
    Board of Education et al. v. Jackson.
    (Decided December 9, 1902.)
    Error to tbe Circuit Court of Belmont county.

      Mr. John Pollock, for plaintiffs in error.

      Mr. C. H. Judkins and Mr. A. M. Brown, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7525.
    Bank v. Merrick, Receiver.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Lucas county.

      Messrs. Swayne, Hayes & Tyler, for plaintiff in error.

      Mr. Orion W. Nelson and Mr. Marion D. Merrick, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7545.
    The State of Ohio v. Robertson.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. J. M. Sheets, attorney general; Mr. R. M. Day, prosecuting attorney, and Mr. W. O. Werntz, for plaintiff in error.

      Mr. John C. Welty, for defendant in error.
   Judgment affirmed for the reason that the reversal by the circuit court was upon the weight of the evidence.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7553.
    The State of Ohio v. Dague.
    (Decided December 9, 1902.)
    Error to the Circuit Court of Summit county.

      Mr. R. M. Wannamaker, prosecuting attorney, for plaintiff in error.

      Mr. H. C. Sanford, for defendant in error.
   Exceptions overruled. Fee of $25.00 allowed to H. C. Sanford appointed to argue against the exceptions.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8165.
    Sadler, a Taxpayer, v. Porter et al.
    (Decided December 9. 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Robert S. Alcorn, for plaintiff in error.

      Mr. W. T. Porter; Mr. Drausin Wulsin and Messrs. Wilson, Cosgrave & Jones, county solicitors, for defendants in error.
   Judgment reversed, demurrer to petition overruled and cause remanded to the circuit court for further proceedings according to law, on authority of Cincinnati v. Cincinnati Hospital, 66 Ohio St., 440, and State ex rel. Attorney General v. Spellmire, 67 Ohio St., 77.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7121.
    Toledo Real Estate & Investment Co. v. Putney, a Minor.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Lucas county.
    . Messrs. Marshall & Fraser and Messrs. Waite & Snider, for plaintiff in error.

      Mr. T. J. McDonnell, for defendant in errór.
   Judgment affirmed.

Burket, C. J., Price and Crew, JJ., concur.

Davis, J., dissents.


text:
    No. 7490.
    Railway Company v. Hollingsworth.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Warren county.

      Messrs. Runyan é Stanley and Messrs. Paxton & Warrington, for plaintiff in error.

      Mr. Thomas L. Michie; Mr. F. W. Cottle and Mr. Alexander Murry, Jr., for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7542.
    Moore v. Andress et al.
    (Decided December 16, 1902.)
    Error to the Superior Court of Cincinnati.

      Messrs. Paxton d Warrington, for plaintiff in error.

      Mr. Thornton M. Hinkle, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7584.
    Voss v. Berk et al.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Butler county.

      Messrs. Morey, Andrews d Morey, for plaintiff in error.

      Mr. W. J. Davidson ; Mr. George W. Hardacre and Mr. Israel Williams, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7582.
    Taylor v. Crawford et al.
    (Decided December 19, 1902.)
    Error to the Circuit Court of Scioto county.

      Mr. Nelson W. Evans and Messrs. Jones & Kinney, for plaintiff in error.

      Messrs. Bannon & Bannon, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, and Price, JJ., concur.


text:
    No. 7583.
    Taylor v. Reeder et al.
    (Decided December 19, 1902.)
    Error to the Circuit Court of Scioto county.

      Mr. Nelson W. Evans and Messrs. Jones & Kinney, for plaintiff in error.

      Messrs. Bannon é Bannon, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 7586.
    Cleveland v. Hewitt.
    (Decided December 19, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. M. W. Beacom and Messrs. Babcock, Payer, Gage & Carey, for plaintiff in error.

      Mr. R. S. Webb and Mr. C. W. Fuller, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.

Spear, J., dissents.


text:
    No. 7594.
    Railway Company v. Troy.
    (Decided December 19, 1902.)
    Error to the Circuit Court of Miami county.

      Mr. John T. Dye and Messrs. Gilbert & Shipman, for plaintiff in error.

      Mr. Robert J. Smith, for defendant in error.
   Judgment reversed because no notice was proven, and cause remanded for a new trial.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7459.
    Building & Loan Co. v. Pickett et al.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Lucas county.

      Messrs. Hamilton & Kirby, for plaintiff in error.

      Mr. John P. Manton and Mr. Joseph P. Hanley, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7466.
    Insurance Company v. Langworthy, Receiver.
    (Decided January 13, 1903.) .
    Error to the Circuit Court of Richland county.

      Messrs. Cummings & McBride, for plaintiff in error.

      Messrs. Twitchell & Hartman, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7484.
    Ridenour et al. v. Osborn, Admr.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Franklin county.

      Mr. C. W. Alfred, for plaintiffs in error.

      Mr. J. E. Safer, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7496.
    Custer v. Coss Co. et al.
    (Decided January 13, 1903.) •
    Error to the Circuit Court of Richland county.

      Messrs. Bruclcer & Cummins, for plaintiff in error.

      Messrs. Bell & Brinlcerhoff and Mr. John H. Coss, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7495.
    Vanderbilt v. Waugh et al.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Richland county.

      Messrs. Cummings & McBride, for plaintiff in error.

      Messrs. Jenner é Weldon, for defendant's in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7497.
    Glover v. Glover.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Williams county.

      Mr. John M. Killits, for plaintiff in error.

      Messrs. Bowersooc & Starr, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7504.
    Ball et al. v. Foster et al.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Seneca county.

      Mr. A. J. Stackhouse; Mr. A. D. Blackford; Mr. N. L. Brewer; Mr. C. L. Guernsey and Messrs. Lutes & Lutes, for plaintiffs in error.

      Messrs. Doyle & Lewis, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.

Price, J., not participating.


text:
    No. 7825.
    Hayes et al. v. Smith.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Sandusky county.

      Mr. B. A. Hayes and Messrs. Bartlett & Wilson, for plaintiffs in error.

      Mr. D. B. Love; Messrs. Finefrock & Garver and Mr. Basil Meek, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7873.
    Bank et al. v. Bank et al.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Greene county.

      Mr. Charles L. Spencer and Mr. John A. McMahon, for plaintiffs in error.

      Mr. Charles H. Kyle and Mr. Charles Darlington, for defendants in error.
   Judgment affirmed.

Burket, C. J., Speab Davis and Crew, JJ., concur.


text:
    No. 7904.
    Cockerill, Treasurer, v. Bank.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Fayette county.

      Messrs. Harper & Harper, and Mr. C. A. Reid, for plaintiff in error.

      Mr. John Logan and Mr. Mills Gardner, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7913.
    Electric Railroad Co. v. Hawkins.
    (Decided January 13, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Wilcox, Collister, Hogan & Parmely and Mr. W. W. Boynton, for plaintiff in error.

      Mr. O. L. Neff and Mr. W. C. Rogers, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7464.
    Coal Company v. Coal Company.
    (Decided January 20, 1903.)
    Error to the Superior Court of Cincinnati.

      Mr. Drausin Wulsin and Mr. John C. Healy, for plaintiff in error.

      Mr. D. D. Woodmansee and Mr. Wm. R. Collins, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7467.
    Line et al. v. Line et al.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Clark county.

      Mr. J. W. Weakly; Mr. W. H. Griffith and Messrs. Hagan cG Kunkle, for plaintiffs in error.

      Mr. John L. Plummer and Messrs. Bowman & Bowman, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur.


text:
    No. 7572.
    Jewett v. Jewett et al.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Harmon, Colston, Goldsmith & Hoadley and Mr. John Coffey, for plaintiff in error.

      Messrs. Paxton & Warrington and Mr. Thomas Jones, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7600.
    Lehr v. Lehr, Executor.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Wayne county.

      Mr. J. L. Hamyton and Mr. John McSweeney, for plaintiff in error.

      Mr. W. T. Kean, for defendant in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., con* cur.


text:
    No. 7608.
    Briggle, Admr., v. Bloomfield et al.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Stark county.

      Messrs. Welty & Albaugh, for plaintiff in error.

      Messrs. McCarty, Craine & McDowell, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7696.
    Williams v. Kightlinger et al.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Morrow county.

      Messrs. Olds & Olds, for plaintiff in error.

      Mr. L. K. Powell, for defendants in error.
   Judgment of the Circuit Court reversed and that of the common pleas affirmed.

Spear, Davis, Shauck and Crew, JJ., concur.


text:
    No. 7945.
    State ex rel. Bahmer et al. v. Commissioners.
    (Decided January 20, 1903.)
    Error to the Circuit Court of Coshocton county.

      Mr. James Glenn and Messrs. Nicholas & Merrill, for plaintiffs in error.

      Mr. T. H. Wheeler; Mr. J. M. Compton and Mr. W. A. Himebaugh, for defendants in error
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8069.
    State ex rel. Attorney General v. Railroad Co.
    (Decided January 20, 1903.)
    Quo Warranto.

      Mr. J. M. Sheets, attorney general; Mr. J. E. Todd, assistant attorney general; Mr. Ellis G. Kinkead and Mr. H., M. Daugherty, for plaintiff in error.

      Mr. Frank S. Dinsmore, for defendant in error.
   Demurrer to answer overruled and petition dismissed as per journal entry. •

Burket, C. J., Davis, Price and Crew, JJ., concur.


text:
    No. 7468.
    Foote v. Railroad Company et al.
    (Decided January 27, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. Frank Higley, for plaintiff in error.

      Messrs. Kline, Oarr, Tolies & Goff; Messrs. Horr & Lawenthal and Mr. Frank Rigley, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Crew, JJ., concur.

Burket, C. J., Spear and Price, JJ., dissent.


text:
    No. 7477.
    Gillett et al. v. Brice.
    (Decided January 27, 1903.)
    Error to the Circuit Court of Clark county.

      Mr. A. H. Gillett, for plaintiffs in error.

      Mr. James Johnson, Jr., for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7478.
    Gillett et al. v. Hall et al.
    Error to the Circuit Court of Clark county.

      Mr. A. H. Gillett, for plaintiffs in error.

      Mr. James Johnson, Jr., for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7479.
    Gillett et al. v. Sheeder.
    (Decided January 27, 1903.)
    Error to the Circuit Court of Clark county.

      Mr. A.. E. Gillett, for plaintiffs in error.

      Messrs. Keifer & Keifer, for defendant in error.
   Judgment affirmed.

Burket, O. J., Davis, Shauck, Price and Crew, JJ., concur.