author: Minshall, J.

text:
    Baltimore & Ohio R. R. Co. v. Fulton, Admr.

      Case properly removed from state to federal court — Plaintiff cannot recommence the action in state court, when.

    1. Where a case that may be, is duly removed from a state to a federal court, the jurisdiction of the state court over the cause at once ceases, and it can take no further step therein ; and if, thereafter, the case is disposed of in the federal court, otherwise than on the merits, the plaintiff can not recommence the action in the state court, although, under like circumstances, he might have done so had the cause not been removed.
    2. In such case, whatever right the plaintiff may have under any remedial rule, statutory or otherwise, to recommence the action, must be pursued in the federal court, as after removal it alone has jurisdiction of the cause and the parties.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Belmont county.

      J. H. Collins, for plaintiff in error.

      C. L. Weems and A. II. & W. Mitchell, for defendant in error.
   Minshall, J.

The question we shall consider in this case arises upon the petition and a demurrer thereto. The petition by sufficient averment states a cause of action against the defendant for the recovery of damages by the administrator of Charles B. Fulton for wrongfully causing his death on the thirteenth day of January, 1889. The suit was commenced January 19, 1894; and, as it thus appeared that the action had not been commenced within two years as prescribed by the statute giving the right, sections 6134 and 6135 Revised Statutes, the plaintiff to obviate this, further averred, that on July 7, 1891, he, as such administrator “commenced a civil action in this court, against defendant for the benefit of said parents and brothers and sisters for causing the death of said Charles B. Fulton, as aforesaid by the wrongful act, neglect and default of defendant heretofore explained, the cause of action herein being identical with that set forth in this petition. Such proceedings were had in said action that on August 3, 1891, in pursuance of the statute of the United States providing for the removal of causes from the state to federal courts, the defendant filed in this court a petition and bond for the removal of said cause into the circuit court of the United States in and for the southern district of Ohio, eastern division, in which last named court said cause was so removed and filed, and remained pending until the sixth 'day of December, 1893. The plaintiff failed therein, otherwise than upon the merits by the same being disposed of by said court as follows, to-wit: Said court dismissed said cause “under the fifth rule of said court, said rule providing that cases which have been upon the docket for three general terms shall be stricken therefrom unless good cause be shown to the contrary.”

The defendant demurred on the ground that the petition does not state sufficient facts to constitute a cause of action, and that it is insufficient in law. This was overruled and the defendant excepted.

A number of errors are assigned upon the record, but as indicated, the only one we shall consider relates to the sufficiency of the petition to entitle the plaintiff to relief on the facts stated in it. This in fact presents two questions. (1.) Whether the limitation of two years is a part of the right of action, or is merely a limitation of the remedy, so that if the plaintiff failed in the circuit court otherwise than on the merits, he might under section 4991, Revised Statutes, recommence the suit within a year thereafter, although the limitation of two years for bringing the action had then expired. And (2.) Whether, the cause having been duly removed to the federal court the plaintiff could, after it had been disposed of in that court, otherwise than on the merits, again, for any purpose, resort to the state court for relief on the same cause of action, whether the limitation of two years had or had not expired.

Much can be said in favor of the proposition that the provisions of section 4991, Revised Statutes, do not apply toa case of this kind. For whilst it may be admitted that the plaintiff failed in the circuit court otherwise than on the merits, still there is much reason and authority for saying that the limitation of two years, fixed for bringing an action, for causing death by wrongful act, is a part of the right of action itself, and not merely a limitation of the remedy, and that the action cannot therefore in any case be brought after the time limited has expired. Hill v. New Haven, 37 Vt. 501; Taylor v. Iron & Coal Co., 94 N. C., 525; Cavanagh v. Steam Navigation Co., 13 N. Y., Supp., 540; Hanna v. Railroad Co., 32 Ind., 113; Railway Co. v. Hine, 25 Ohio St., 629, 634; as apparently contra, see Meisse v. McCoy, Admr., 17 Ohio St., 225, though the point was not there made. But as we do not dispose of the case on this ground, no further consideration will be given it.

The case as originally commenced had been properly removed to the United States circuit court of the district in which it was broug’ht; the cause of action therein being, as averred, identical with the cause of action now sued on ; and it had there been disposed of, not it is true on the merits, but -had been dismissed for want of prosecution under a rule of the court.

It has been repeatedly decided that where a case has been properly removed from a state to a federal court, the jurisdiction of the former over the case immediately ceases, and it is its duty, in the language of the statute, to proceed no further in the cause — -its jurisdiction in that case ends with the removal. Any steps thereafter taken are said to be coram non judice and void. Kanouse v. Martin, 15 How., 198; Fisk v. Railroad Co., 6 Blatch, 362, 380; Hatch v. Railroad Co., id., 105; Clark v. Railway Co., 11 Fed. Rep., 355; Manufacturing Co. v. national Bank, 10 Fed. Rep., 204; Shaft v. Life Insurance Co., 67 N. Y., 544; Gordon v. Longest, 16 Pet.; 97; Desty, Removal of Causes, section 108a, 108c; Dillon, Removal of Causes, section 75a; Kern v. Huidekoper, 103 U. S., 485; Insurance Co. v. Dunn, 19 Wal., 214; Hadley v. Dunlap, 10 Ohio St., 18; Herryford v. Insurance Co., 42 Mo., 148.

We fail to perceive any good reason for holding that this- only applies so long as' the suit removed is pending, and that if the case should be dismissed by the federal court for any reason, other than on the merits, it loses the jurisdiction 'acquired by the removal, and the plaintiff is at liberty to recommence the action in the state court, where, under like circumstances, he might have done so, had the cause not been removed.

The reason of the statute should be kept in view in giving it a construction. It is remedial and must be construed liberally. Insurance Co. v. Dunn, 19 Wal., 214, 224. The constitution of the United States contains, it is true; no direct provision authorizing the removal of a ease by a defendant to a federal court. It, however,, does authorize a plaintiff in a “controversy” between himself and a citizen of another state, to bring the suit in a federal court; and congress, acting upon the reasonable presumption, that the same reason applies where a defendant is sued out of the jurisdiction of the courts of his own state, has given the defendant the right to remove the cause to a federal court: The validity of the various acts of congress authorizing the removal of a cause, though once questioned, is now well settled. The policy of the provision authorizing a removal on the ground of a diversity of citizenship, is based upon the recognized fact, that litigation between citizens of .different states, must be more or less affected, by local influences, and, therefore, in the interest of fair and impartial justice, the right is conferred on a defendant, sued out of the jurisdiction of the courts of his own state, to remove the cause, in analogy to the provision of the constitution conferring the right on a citizen of one state to sue a citizen of another state in a federal court. Thus the spirit and policy of the statute authorizing a removal on the ground of a diversity of citizenship; applies as well to any renewal of the action, after it has been disposed in the federal court, as to the period of its pendency. The federal court having acquired jurisdiction of the action by its removal from the state court, must, on principle and the reason of the statute, retain it for all purposes — • for the purpose of determining whether it should be reinstated, or recommenced, after it has been dismissed by it, or stricken from its docket, as well as for its determination on the merits. Its jurisdiction in such case does not merely embrace the suit brought and removed, but any suit thereafter brought on the identical cause of action, after the former suit has been dismissed by it; until the cause of action has been extinguished by a judgment on the merits, the cause of action, the “controversy” between the parties, remains subject to the jurisdiction of the federal court, and is forever excluded from that of the court from which it was removed, unless remanded with the consent of the defendant; and there are cases which make this a doubtful proposition, where the cause is a removable one.

No one would claim that after the ease has been ■stricken from its docket by the federal court, the state court could determine whether it should be reinstated; and, by a parity of reasoning, the state court cannot pass on the right of the «plaintiff to recommence the action after it has been dismissed by the federal court. In either of these cases the question can only be determined by the court that had full and exclusive jurisdiction of the case at the time. And if there be any remedial rule, statutory or otherwise, by which a case that has •been dismissed for failure to prosecute, after the time fixed by the statute of limitations has expired, the remedy must be sought in that court. It is properly a step, or proceeding, in the same case. If this were not so, it would not only open the way to a violation of the policy of the statute authorizing removals, but be productive of a very inconvenient practice, and much abuse. It would enable a party to permit his case to be dismissed by failing to prosecute in the federal court, with the purpose of recommencing it in the state court, and thus compel the defendant to be at the trouble and expense of again causing it to be removed, or submit to the jurisdiction of the state court.

The view we have taken finds support in the well considered case of Cox v. Railroad Co., 68 Ga., 446. It is there held that “where a case has been removed from a state court to the circuit court of the United States, the jurisdiction of the former ceases, and, after non-suit in the federal court, the case cannot be renewed in the state court within six months so as to avoid the statute of limitation.” Such right is given by statute on a non-suit in the courts of that state. A non-suit not being a decision on the merits.

Referring to the statute, which reads as follows: “If a plaintiff: shall be non-suited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing as to limitation with the original case,” the court said. “To be thus renewed it must be the same case as to cause of action and parties; and this is identically the same case in both respects. So that the question is, can a case which has been removed to the United States circuit court be renewed in the same court. We think not, because the act of removal ipso facto transfer the jurisdiction of the cause to the circuit court of the United States, and divests that of the state court. ” Citing Kern v. Huidekoper, 13 Otto, 485.

In the case before us the plaintiff averred that the cause of action in the case removed, was identical with the cause of action in his present petition. If it had not been, he could not have, been within the provisions of section 4991 Revised Statutes under favor of which he claimed the right to recommence his action in the state court.

Judgment reversed and petition below dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Silberman et al. v. Hay.

      Right of trial by jury — Subject-matter of general legislation — Act of May 29,1894, known as Cuyahoga county jury law, invalid— Constitutional law.

    1. The right of trial by jury is a subject-matter of general legislation, and laws affecting it must be uniform in operation throughout the state. Section 26, Art. 2, Const.
    2. A statute,- by the provisions of which the parties to a suit in which the issues are of right triable by jury are “deemed” to have waived the right, unless a certain time before the term at which the issues are, by the laws of the state, required to be made up, a demand is made for a jury, attended with a “deposit” of a certain sum of money for the benefit of the jury . fund, affects the right of trial by jury, and must be uniform in its operation. The Cuyahog'a County Jury Law adopted May 29, 1894, (91 Laws, 793), is, in substance, such a law; and being limited in its operation to Cuyahoga county, is invalid.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      W. G. Rogers, for plaintiffs in error.
    The first proposition upon which is alleged error, is that we were deprived of our right to a trial by jury.
    Second, That the so-called Cuyahoga County Jury Law, under which they undertook to deprive us of such right, is unconstitutional.
    That the so-called Cuyahoga County Jury Law is unconstitutional. It seems to us that, from the nature of the subject-matter, its operation and effect, this act violates section 26 of article 2 of the constitution. If acts in relation to roads and bridges and methods of punishing crime are unconstitutional because local laws on a general subject, most assuredly, it seems to us, is a law unconstitutional which undertakes to levy a tax on a certain class of litigants in one county only of the state. If it applied to all counties of the state it might perhaps be deemed general. If it applied to all litigants in one county, something might, it seems, be claimed for it, but when it applies only to a certain limited class, in only one county of the state, and is on a general subject, and that subject perhaps the one where persons would look first for uniformity, as the most desirable point on which to have uniformity, the administration of justice, there can, it seems to us, be no doubt of its unconstitutionality. Lehman v. McBride, 15 Ohio St., 573; Swan’s Revised Statutes (ed. 1854), p. 267; Allbyer v. State, 10 Ohio St., 588; Falk. Ex parte, 42 Ohio St., 638; Kelley v. State, 6 Ohio St., . 269; State v. Winch, 45 Ohio St., 663; Nye v. State, 1 C. C., 365; 1 C. D., 198; Costello v. Wyoming, 49 Ohio St., 202; Cass v. Dillon, 2 Ohio St., 617; State ex rel. v. Ellet, 47 Ohio St., 90; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    We say that any law establishing the jurisdiction of any of the courts of common pleas must be a general law whether it is as to a class of its business or a class of its litigants. The constitution, article IV, section 4.
    That must necessarily mean general law; it can not mean special. Cincinnati v. Steinkamp, trustee, 54 Ohio St., 284; State ex rel. v. Commissioners, 54 Ohio St., 333; State ex rel. v. Davis, 55 Ohio St., 15. In Gaylord et al. v. Hubbard, Treasurer, 56 Ohio St., 25, The Cleveland Board of Equalization Law was held unconstitutional. Hixson v. Burson, 54 Ohio St., 470.
    In construing a clause of our constitution it hardly' seems necessary, after the thorough discussion in the Hixson-Burson case, to cite authorities from other states. But we will call your Honors attention to one, the case of Commissioners v. Bank, Col. (40 Pac. Rep., 894), where almost the precise question here raised was passed upon by that court.
    We further say that this law is in contravention of sections 1 and 2, of article 12, of the constitution, which provides: Section 1, no poll tax, etc. Section 2, “laws shall be passed taxing by a uniform rule, etc.” And on the question that this is a tax, we' cite the court to the definition given by Bouvier in his Law Dictionary “Tax.” “A contribution imposed by government on individuals for the service of the state.” State v. Hipp, 38 Ohio St., 226.
    • By the provisions of this act, section 2, the sum of $5 deposited with the clerk of the court shall be appropriated towards the payment of jury fees generally, and to the extent that that goes into the county treasury, that litigant especially contributes towards the tax in that behalf.
    By section 5189m each juror is paid his fees by the county treasurer, and that is paid from the general fund. The $5 paid by this class of litigants, in one county especially makes it a special contribution by him towards the service of the government, and therefore his tax is not levied by a uniform rule. He is already taxed on his property, and he pays in addition a special tax in this way. Ry. Co. v. State, 49 Ohio St., 189.
    ■ And so, in this case, the expense of a jury is $2 per man per day. And in some cases Cuyahoga county has paid for the trial of a single ease upwards of $300 jury fees. How can there be said, then, to be any relation between the $5 required under this law and the $24 per diem paid to the jury called in the case. Wasson v. Commissioners, 49 Ohio St., 622.

      Emil Joseph, for defendant in error.
    The act of 91 O. L., 793, is not a law of a general nature within the meaning of the constitution. In McGill v. The State, 34 Ohio St., 228, the act of 74 O. L., 218, was held constitutional although its provisions applied solely to the selection of jurors for the county of Cuyahoga. State ex rel. v. Commissioners, 35 Ohio St., 458; Bronson v. Oberlin, 4 1 Ohio St., 476; State ex rel. v. Shearer, 46 Ohio St., 275.
    The act complained of does not deprive litigants of the right to trial by jury, but prescribes the circumstances under which “a jury shall be deemed waived in all cases appealed, etc.” The act therefore simply enlarges the scope of sections 5130 and 5204, Revised Statutes of Ohio,. the constitutionality of which has never been questioned. Bonewitz v. Bonewitz, 50 Ohio St., 373.
    Similar laws of other states governing the selection of jurors have been held constitutional. Randall v. Kehlor, 60 Me., 37; Adams v. Corriston, 7 Minn., 365; Cushman v. Flanagan, 50 Texas, 389; Bailey v. Joy, 132 Mass., 356; Vitrified Wheel Co. v. Edwards, 135 Mass., 591; Vierling v. Stifel Brewing Co., 15 Mo., App., 125; Foster v. Morse, 132 Mass., 354.
   Minshall, J.

The suit below was brought in the common pleas court' of Cuyahoga county, by Levi Hey against the defendants, Silberman & Co. to recover a balance due on an account for certain iron sold and delivered. The latter claimed that the iron was not of the quality ordered; and also claimed damages in the sum of $100.00. The amount claimed by the plaintiff was $181.95. . The issues having been made up, when the case came on for trial, the defendants demanded a jury, which was denied them under the provisions of what is termed the Cuyahoga County Jury Law, which was passed and took effect May 19,1.894 (91 Laws, 795). In this case, according to this law, the defendants, to be entitled to a jury, should have demanded a juiy in writing at least five days before the commencement of the term after the issues should have been made up according to the statutes of the state, and have deposited with the clerk, five dollars to be appropriated to the payment of jury fees. This was not done, but under the general law of the state the defendants were entitled to a jury without having filed such written demand or making the deposit of any sum whatever.

The plaintiffs in error claim that the statute under which they were denied a jury trial is unconstitutional, and that the judgment should be reversed for this among other reasons.

We entertain no doubt of the invalidity of this law. It is true that there is an attempt to give it the character of a general one, by making it applicable to “all counties which now contain, or which may contain a city of the second grade of the first class.” But, if its subject-matter is not a proper subject of local legislation, this attempt to give it the form of a general law, can be of no avail, as has been frequently decided by this court. It is manifestly a local law,- intended to apply to Cuyahoga county, and can apply to no other.

The constitution requires that all laws of a general nature shall be uniform in their operation throughout the state; and it is well settled that the “general nature” of a law must be determined by its subject matter; if this be general the law must be general, but if the subject-matter be of a local nature, a local law applicable to the subject-matter may be enacted. But as to the nature of the subject-matter the legislature is not the exclusive judge. If it were otherwise then this important provision of the constitution would be little more than directory, instead of mandatory, as it ■ undoubtedly is. The greatest respect will always be given the determination of the legislature in enacting the law, but where its validity is properly challenged on this ground, it is the duty of the court to pass on it, and if clearly satisfied that the provision has been violated, in making that a locai, which should have been, if enacted at all, a general law, it is within the power of the court, and its duty, to declare it invalid.

It is sometimes a question of some nicety to distinguish between that which is local and that which is general as regards the subject-matter of a law; and where there is room for a fair difference of opinion in regard to it, the doubt arising from such difference should be resolved in favor of the law. In this ease we are unable to perceive any ground for such a difference. There is probably in the entire field of legislation, no subject of a more general nature, undoubtedly none of more general interest, than the right of trial by jury. It is regarded as a birth right of Englishmen, and among American citizens as one of their constitutional guaranties. It is guaranteed to all the citizens of this state by the provision of its constitution, that the right shall be “inviolate.” At the adoption of the constitution of Ohio every litigant in a suit, such as that between the parties below, had a right to demand a jury trial without depositing any sum of money, or making the demand at any particular period, before the ease was called for trial; and this .remains so in every county in the state, except that of Cuyahoga, if the act above referred to is a valid law. No local circumstances are suggested for this difference, and we are unable to conceive of any. If in suits where less than $300 are demanded, or on appeal from the probate court, or from the docket of a justice of the peace, public policy requires that the right to a jury should be made to depend upon a demand therefore made a certain time before the issues should have been made up and the deposit of a certain sum of money with the clerk of the court, what reason of a local nature exists, why this should be so in Cuyahoga county, that does not exist in any or all the counties of the state ? No answer suggests itself to this question, that would not also permit of a difference in the law of procedure, or of a variety on many other subjects of legislation that have heretofore been universally regarded as of a general nature. Undoubtedly there is more litigation in a large county like Cuyahoga, than in some others. But this difference can, and has been, provided for by increasing the judicial force of the sub-division in which the county is situated.

It is claimed that this law should be sustained on the authority of Mc Gill v. The State, 34 Ohio St., 228. That case when examined will be found to relate to an enactment quite different from the one before as in this case. It does not in any way affect the right of trial by jury. It simply provides a mode for the return of thejnames off electors for jury service iu Cuyahoga county, different from the general law. The mode of selecting electors for jury service, has never been regarded as an essential element in the right of trial by jury. Different modes have been adopted and prevailed at different times. In fact, as pointed out by the learned judge, delivering the opinion in the case, the general law at that time, was not uniform in its provisions on the subject — the selection being in general made by the trustees of the townships, acting as judges of election, and in other cases by town council, thus adapting its provisions to local requirements. Local circumstances, such as the situation of large cities with their corrupting influences in certain counties, may, in the interest of a fair and impartial jury trial, make the selection of electors for jury service a matter of local concern, and require legislation not required in, and inapplicable to, the other counties of the state. This was the view taken by the court in deciding the case. It adjudged that a special law under such circumstances was proper and sustained the act in question. Our constitution does not require all laws to be uniform in their operation throughout the state; the requirement simply embraces all laws of a general nature, clearly implying that those not of a general nature need not operate uniformly throughout the state. Conceding the case of Mg Gill v. The State, to have been rightly decided, and there is no purpose here to question it, still it must, as we think, readily appear from what has been said, that it does not control this case. The law here in question affects the right of trial by jury — a subject of general interest throughout the state; the law considered in the McGill case simply affects the mode of selecting electors for jury service; and, in this regard, local circumstances may in the interests of the integrity of the system require special legislation.

Judgment reversed and new trial granted.


text:
    No. 4782.
    Northwestern Natural Gas Company v. Davis et al.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Hancock county.

      Doyle, Scott c§ Lewis and H. F. Burket, for plaintiff in error.

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


text:
    No. 5267.
    Pennington v. McClelland.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Seneca county.
    FToble, Keppel <& FToble, for plaintiff in error.

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


text:
    No. 5306.
    Klumpp, Exrx., v. Klumpp, Exr., et al.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Trumbull county.

      Tuttle & Fillius and T. W. 'Sanderson, for plaintiff in error.

      Taylor' & Upton, for defendants in error.
   Judgment affirmed.


text:
    No. 5311.
    Cadwallader Milling Company v. Myers, Admx.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Seneca' county.

      ■A.. J. Stackhouse and Seney da Sayler, for plain» tiff in error.

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


text:
    No. 5326.
    Vincent v. Taylor.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Fayette county.

      Hanper da Harper, for plaintiff in error.

      Mills Gardner, for defendant in error.
   Judgment affirmed.


text:
    No. 5338.
    Curry et al. Partners v. Kohler et al.
    (Decided October 4, 1898)
    Error to the Circuit Court of Tuscarawas county.

      Lusk ds Romig, for plaintiff m error.

      A. W. Patrick and Neely & Patrick, for defendants in error.
   Judgment affirmed.


text:
    No. 5342.
    Lehrke et al. v. Tyler et al.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Wilson <& David, for plaintiffs in error.

      Hadden <& Parks Pros., for defendants in error.
   Judgment affirmed.


text:
    No. 5353.
    Village of Dennison v. Daugherty.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Tuscarawas county.

      T. H. Poller, for plaintiff in error.

      Healea do Greene, for defendant in errpr.
   Judgment affirmed.


text:
    No. 5548.
    Ashley, exrx., v. Hull Et al.
    (Decided October 4, 1898.)
    Error to the. Circuit Court of Licking county.

      Edward Kibler, for plaintiff in error.

      J. A. Flory, and J. JB. Jones, for defendants in error.
   Judgment affirmed by consent of parties, and at costs of plaintiff in error.


text:
    No. 5602.
    Pavey v. Hull et al.
    (Decided October 4, 1898.)
    Error to the Circuit Court of Licking county.

      Mills Gardner and Charles G. Pavey, for plaintiff in error.

      J. JB. Jones; J. A. E'lory and Edxoard Kibler, for defendants in error.
   Judgment affirmed by consent of parties, and at costs of plaintiff in error.


text:
    No. 6021.
    Hull v. Ashley exrx.,
    (Decided October 4, 1898.)
    Error to the Circuit Court of Licking county.

      J. A. Flory and J. B. Jones, for plaintiff in error.

      Edward Kibler, for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed by consent of parties and at costs of plaintiff in error.


text:
    No. 5331.
    Anderson et al. v. Kirkbride et al.
    (Decided October 11, 1898.)
    Error to the Circuit Court of Sandusky county.

      A. Skransewfky; Garver da Ga/rver and./ L. Hart, for plaintiffs in error.

      Finefroch db Garver ; Bartlett & Wilson and F. E* Wright, for defendants in error.
   Judgment affirmed.


text:
    No. 5522.
    Hopple et al. v. City of Cincinnati.
    (Decided October 11,1898.)
    Error to the Circuit Court of Hamilton county.

      Bv/reh da Johnson and William M. Ampt, for plaintiffs in error.

      Ellis G. Einkead, and George H Kattenhorn, Corporation Counsel, F. W Broivne and Kramer da Kramer, for defendant in error.
   Judgment affirmed.


text:
    No. 5526.
    City of Cleveland v. Baldt.
    (Decided October 11, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Minor G. Norton and Ford, Boyd, da Growl, for plaintiff in error.

      H. H Poppleton and Billman & Billman, for defendant in error.
   Judgment affirmed.


text:
    No. 5855.
    Thomas et al. v. Cambana.
    (Decided October 11, 1898.)
    Error to the Circuit Court of Trumbull county.

      Thomas W. Sanderson, for plaintiffs in error.

      Fee <& Wilkins and Charles Fillius, for defendant in error.
   Judgment affirmed.


text:
    No. 6045.
    Kernochan, admx., v. Railroad Company.
    (Decided October 11, 1898.)
    Error to the Circuit Court of Crawford county.

      P. W. Poole; Beer, Bennett <& Monnett saxáFinley dé G ailinger, for plaintiff in error.

      S. O. Bayless; John T. Bye, and Harris, Sears dt Monnett, for defendant in error.
   Judgment affirmed.


text:
    No. 5251.
    Woolley v. Arnold et al.
    (Decided October 18, 1898.)
    Error to the Circuit Court of Hamilton county.

      Cobb <& Howard, for plaintiff in error.

      Oliver B. Jones and Morrow ds Oldham, for defendants in error.
   Judgment affirmed.

Counsel fee of $200.00 and $15.00 as expenses allowed attorneys for the guardian.


text:
    No. 5337.
    Dunlavy v. Dennison Deposit Bank.
    (Decided October 18, 1898.)
    Error to the Circuit Court of Tuscarawas county.
    ' Orson Lusk and F. 8. Bomig, for plaintiff in error.

      Bailey & Douthitt and T. H. Loller, for defendant in error.
   Judgment affirmed.


text:
    No. 5603.
    Trustees of Otterbein University v. Sutton, Admr.
    (Decided October 18, 1898.)
    Error to the Circuit Court of Seneca county.

      Seney <& Sayler and J. M. Sever, for plaintiff in error .

      Mo Oauley & Weller and Lester Sutton, for defendant in error.
   Judgment reversed and judgment for plaintiff in error on authority of Ohio Wesleyan Female College v. Love’s Exr., 16 Ohio St., 20, and Irvin, Admr., v. Lombard University, 56 Ohio St., 9.


text:
    No. 5904.
    Keim et al., Receivers v. Martin.
    (Decided October 18,1898.)
    ERROR to the Circuit Court of Cuyahoga county.
    Kline, Carr, Tolies, & Goff, for plaintiffs in error.

      For an <& McTighe; L. Rood Loomis and J. P. Pawley,tor defendant in error.
   Judgment affirmed.


text:
    No. 5277.
    Edge et al. v. Scott et al.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Miami county.

      LL. S. Williams and A. F. Broomhall, for plaintiffs in error.

      Clyde c& McPherson; George 8. Long, and M. K Gantz, for defendants in error.
   Judgment affirmed.


text:
    No. 5279.
    Edge et al. v. Scott et al.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Miami county.

      M. LL. Williams and A. F. Broomhall, for plaintiffs in error.

      Clyde <& McPherson; George 8. Long and M. K. Gantz, for defendants in error.
   Judgment affirmed.


text:
    No. 5290.
    Becker v. Hamilton.
    (Decided, October 25, 1898.)
    Error to the Circuit Court of Erie county.

      H. Z. Peéke and F. P. Colver, for plaintiff in error.

      'Wickham,, Guerin & French and Charles L. Hubbard, for defendant in error.
   Judgment affirmed.


text:
    No. 5291.
    Becker v. Meyer.
    (Decided. October 25, 1898.)
    Error to the Circuit Court of Erie county.

      H. I. Peeke and F. P. Colver, for plaintiff in error.

      Wickham, Guerin db French and Charles Z. Hubbard, for defendant in error.
   Judgment affirmed.


text:
    No. 5292.
    Becker v. Second National Bank of Sandusky.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Erie county.

      H. Z. Peeke and F. P. Colver, for plaintiff in error.
    Wickham, Guerin db French and Charles Z. Hubbard, for defendant in error.
   Judgment affirmed.


text:
    No. 5293.
    Becker v. Second National Bank of Sandusky.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Erie county.

      H. Z. Peeke and F. P. Colver, for plaintiff in error.

      Wickham, Guerin & French and Charles Z. Hub-hard, for defendant in error.
   Judgment affirmed.


text:
    No. 5294.
    Good Templar Lakeside Building Company v. Fillabaum et al.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Ottawa county.

      H. Z. Peeke, for plaintiff in error.

      S. P. Alexander, for defendants in error.
   Judgment affirmed.


text:
    No. 5327.
    Winn, Admr., v. Drach et al.
    (Decided October 25, 1898.)
    Error to the Superior Court of Cincinnati.

      S. T Crawford, for plaintiff in error.

      Yon Seggern, Phares & Dewald, for defendants in error.
   Judgment affirmed.


text:
    No. 5339
    Lockwood et al. v. Marvin et al.
    (Decided October 25, 1898.)
    ERROR to the Circuit Court of Erie county.

      Bentley da JStewart; Stewart da Bowley and Andrews Bros., for plaintiffs in error.

      S. A. Wildman; Horace Andrews; Phinney c& Merrill and Grayson Mills, for defendants in error.
   Judgment affirmed.


text:
    No. 5358.
    Todhunter v. Priddy.
    (Decided October 25, 1898,)
    Error to the Circuit Court of Payette county.

      Post da Beid, for plaintiff in error.

      Hidy da Sanderson, for defendant in error.
   Judgment affirmed.


text:
    No. 5364.
    Conner v. Conner et al.
    (Decided October 25, 1898.)
    ERROR to the Circuit Court of Payette county.

      D. J. Worthington; H. M. Daugherty and Pfye Gregg, for plaintiff in error.

      Post da Beid, for defendants in error.
   Judgment affirmed.


text:
      No. 5366.
    State ex rel. Sidney Moore v. Adams, Treasurer.
    [Decided October 25, 1898. ]
    Error to the Circuit Court of Delaware county.

      J. S. Jones da Sons, for plaintiff in error.

      George Ooyner, for defendant in error.
   Judgment affirmed on authority of State ex rel. Steinbeck v. Treasurer, etc., 22 Ohio St., 144.


text:
    No. 5383.
    Hunter v. Hunter.
    (Decided October 25, 1898.)
    ERROR to the Circuit Court of Sandusky county,

      Richards da Heffner, for plaintiff in error.

      J. H. Rhodes and Garver do Garver, for defendant in error.
   J udgment affirmed.


text:
    No. 5384.
    Wood et al. v. Railway Company.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Belmont county.

      W. B. Francis, for plaintiffs in error.

      George Duncan-, Squire, Sanders da Dempsey and Swayne, Hayes dt Tyler, for defendant in error.
   Judgment affirmed.


text:
    No. 5393.
    Graham et al. v. Burggraf et al.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Auglaize county.

      Goeke, Gulliton <& Smith, for plaintiffs in error.

      Layton é¡ Stueve and William II. Cunningham, for defendants in error.
   Judgment affirmed.


text:
    No. 5394.
    Yellow Poplar Lumber Co. v. Coe.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Lawrence county.

      John Hamilton, for plaintiff in error.

      A. B. Johnson, and E. E. Oorn, for defendant in error.
   Judgment affirmed.


text:
    No. 5395.
    Yellow Poplar Lumber Co. v. Steinle et al.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Lawrence county.

      John Hamilton, for plaintiff in error.

      W. L>. Gorn, for defendants in error.
   Judgment affirmed.


text:
    No. 5396.
    Stewart v. Village of Barnesville.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Belmont county.

      G. A. Colpitts, for plaintiff in error.

      Petty <& preio, for defendant in error.
   Judgment affirmed on authority of Alliance v Joyce, 49 Ohio St., 7.


text:
    No. 5397.
    Hinton v. Village of Barnesville.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Belmont county.

      G. A. Colpitts, for plaintiff in error.

      Petty & Crew, for defendant in error.
   Judgment affirmed.


text:
    No. 5398.
    Agar v. Village of Barnesville.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Belmont county.

      G. A. Colpitts, for plaintiff in error.

      Petty S Crew, for defendant in error.
   Judgment affirmed.


text:
    No. 5719.
    Pennsylvania Company v. Hammond, Admr.
    (Decided October 25, 1898.)
    Error to the Circuit Court of Mahoning county.

      J. B. Carey and W. C. Boyle, for plaintiff in error.

      M. A. Norris and James Kennedy, for defendant in error.
   Judgment affirmed.


text:
    No. 5276.
    Carter, Admx., v. City of Zanesville et al.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Muskingum county.

      King <& Browning, for plaintiff in error.

      Cha/í'les G. Griffith ; C. A. Maxwell and Durban <& McDermott, for defendants in error.
   Judgment affirmed.


text:
    No. 5305.
    Frenzer et al. v. Smith.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Mercer county.

      Armstrong dh Johnson, for plaintiffs in error.

      LeBlond, Loughridge <& Schlosser. for defendant in error.
   Judgment affirmed.


text:
    No. 5359.
    Rankin, Admr., v. Blaine et al.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Fayette county.
    • Mills Gardner and Post .da Reid, for plaintiff in error; /

      Humphrey Jones and H H Sanderson, for defendants in error.
   On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed, and proceeding to render such judgment as the circuit court should have rendered upon the facts found in the record, this court construes the will of said Cyrus Rankin to require that at least the sum. of $5,209.29 of the fund be kept on hand and unexpended and loaned out for the benefit of the widowL the interest at six per cent, to be paid to her annually, and it is therefore found as matter of law that the true balance in the hands of said Reuben Rankin, Admr., of the estate of Smith Rankin, deceased, after the payment of costs, .taxes, expenses and compensation was on the fifteenth day of September, 1892, the said sum of five thousand, two hundred and nine dollars and twenty-nine cents, which amount said administrator is ordered and adjudged to pay over to said Humphrey Jones or his successorsout of the funds of said estate with six per cent, interest thereof from the fifteenth day of September 1892, less any sum that may have been paid to said Humphrey Jones during this litigation of the date of such payment


text:
    No. 5374.
    State of Ohio v. Love.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Washington county.

      F. S. Monnett, Attorney General and J. C. Preston., for plaintiff in error.

      L. W. Fllenwood, for defendant in error.
   Judgment affirmed.


text:
    No. 5401.
    Railroad Company v. Mitchell and Rowland Lumber Company.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Lucas county.

      Alexander L. Smith, for plaintiff in error.

      Cummings <& Lott, for defendant in error.
   Judgment affirmed without passing upon the liability of the railroad company for the expense of the crossing.


text:
    No. 5406.
    Morris et al. v. Ackerson et al.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Clarke county.

      Pringle <& Johnson, for plaintiffs in error.

      John L. Zimmerman, and Osca/r T. Martin, for defendants in error.
   Judgment affirmed.


text:
    No. 5309.
    Oil Well Supply Company v. Kelly.
    (Decided November 15, 1898.)
    Error to the Circuit Court of ¡Hancock county.

      Cable <& Parmenter and Doty do Kibler, for plaintiff in error.

      George H. Phelps, for defendant in error.
   Judgement affirmed.


text:
    No. 5323.
    Logan Trustee etc. v. Horney et al.
    (Decided November 15, 1898.)
    Error to the Circuit Court of Fayette county.

      John Logan, for plaintiff in error.

      Mills Gardner and Van Deman do Chaffin, for de^ fendants in error.
   Judgment affirmed.


text:
    No. 5324.
    Incorporated Village of Milan et al. v. Kelley.
    (Decided November 15, 1898.)
    Error to the Circuit Court of Erie county.

      Theodore Alvord, for plaintiffs in error.

      Wickham, Guerin do French, for defendant in error.
   Judgment affirmed.


text:
    No. 5332.
    Davis v. Pittsburg & Wheeling Coal Company.
    (Decided November 15, 1898.)
    Error to the Circuit Court of Belmont county.

      Tollman c& Armstrong, for plaintiff in error.

      Newell E. Eennon, for defendant in error.
   Judgment affirmed.


text:
    No. 5068.
    Phoenix Insurance Company v. Luce et al.
    (Decided November 22, 1898.)
    Error to the Circuit Court of Lucas county.

      Doyle <& Lewis, for plaintiff in error.

      Clarence Brovm and Frederick L. Geddes, for defendants in error.
   Judgment affirmed.

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


text:
    No. 5280.
    Citizen’s National Bank v. Third National Bank.
    (Decided November 22, 1898.)
    Error to the Circuit Court of Champaign county.

      Warnoch <& Fiohelberger, for plaintiff in error.

      Gottschall, Crawford da Limbert, for defendant in error.
   Judgment affirmed.


text:
    No. 5321.
    Milwaukee Mechanics Insurance Co. v. Carnahan et al.
    (Decided November 22, 1898.)

      Thomas A. Logan; Boss do Kinder and II. F. Bur-feet,- for plaintiff in error.

      Pendleton do Whiteley, for defendants in error.
   Judgment affirmed.


text:
    No. 5351.
    Ohio Oil Company v. Sweigert.
    (Decided November 22, 1898.)
    Error to the Circuit Court of Auglaize county.

      Layton do 8tveve, and Wheeler d¡ Brice, for plaintiff in error,

      Qoelce do Oulliton, for defendant in error.
   Judgment affirmed.


text:
    No. 5795.
    Germania Fire Insurance Company v. Carnahan et al.
    (Decided November 22, 1898.)
    Error to the Circuit Court of Hancock county.

      Thomas A. Logan; Boss <& Kinder, and FL. F0 Bwrket, for plaintiff in error.

      Pendleton do Whiteley, for defendants in error.
   Judgment affirmed.


text:
    No. 5796.
    Michigan Fire And Marine Insurance Co. v. Carnahan et al.
    (Decided November 22, 1898.)
    Error to the Circuit Court of Hancock county.

      Thomas A. Logan; Ross do Kinder, and H. F. Burket, for plaintiff in error»

      Pendleton c& Whiteley, for defendants in error.
   Judgment affirmed.


text:
    No. 5974.
    Dankert v. Maclaren et al.
    (Decided November 22, 1898.)
    Error to the Circuit court of Lucas county.
    Hurd, Brumback do Thatcher, for plaintiff in error.

      Smith do Baker, for defendants in error.
   Judgment affirmed.

Minshall, J.„ dissents.


text:
    No. 5518.
    Central Trust Company v. Burke et al.
    (Decided November 29, 1898.)
    Error to the Circuit Court of Franklin county.

      Harrison, Olds, Henderson do Harrison, for plaintiff in error.

      Burke do Lngersolls; J. B. Foraker; Henry Craw- • ford and Booth, Keating do Peters, for defendants in error. . .
   Judgment affirmed.


text:
    No. 5941,
    Broadstone, Ex’r v. Baldwin et al.
    (Decided November 29, 1898.)
    Error to the Circuit Court of Greene county.

      Keifer db Keifer and M. A. Broadstone, for plaintiff in error.

      Snodgrass <& Sehnebly, for defendants in error.
   Judg-ment affirmed.


text:
    No. 5346.
    Huffman, Ex’r, et al. v. Traveling Men’s Beneficial Association.
    (Decided December 6, 1898.)
    Error to the Circuit Court of Montgomery county.
    Gottschall, Orawford db Limbert, for plaintiffs in error.

      Dickson do Clark, for defendants in error.
   Judgment affirmed.


text:
    No. 5347.
    Johnson, Admr., v. Tucker et al.
    (Decided December 6, 1898.)
    Error to the Circuit Court of Lucas county.

      Curtis T. Johnson and W. H. A. Read, for plaintiff in error.

      George A. Bassett; Lyman W. Wachenhevmer; M. D. Merrick and Smith do Baker, for defendants in error.
   Judgment affirmed.


text:
    No. 5898.
    State ex rel. Attorney General v. President And Trustees Ohio University.
    (Decided December 6, 1898.)
    Quo Warranto.

      F. S. Monnett, Attorney General and Beer, Bennett da Monnett, for plaintiff.

      Grosvenor, Jones da Worsted; Charles Townsend; J. M. Welch and Jewett da Wood, for defendant.
   Demurrer to petition sustained and petition dismissed.


text:
    No. 6043.
    State ex rel. Attorney General v. Ratterman et al.
    (Decided December 6, 1898.)
    Quo Warranto on rehearing.

      F. S. Monnett, Attorney General; John Warring-ton; W. H. Ampt; and I). J. Ryan, for plaintiff.

      Foiled da Kelley; Peck da Shafer and Goechel da Bettinger, for defendants.
   Former judgment adherred to.

Bradbury, Shaucx and Burket, JJ., dissent.


text:
    No. 6061.
    Welch v. Steele.
    ((Decided December 6, 1898.)
    Error to the Circuit Court of Harrison county.

      A. O. Ba/rnes and James Moore, for plaintiff in error.

      Milton Taggart and W. G. ShoPwell, for defendant in error.
   Judgment affirmed.


text:
    No. 5225.
    Hoover et al. v. Smith et al.
    Decided December 13, 1898.)
    Error to the Circuit Court of Tuscarawas county.

      S. Hambleton and Healea <& Greene, for plaintiffs in error.

      Richards ds Me Cullough, for defendants in error.
   Judgment affirmed.


text:
    No. 5226.
    Hoover et al. v. Reymer et al.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Tuscarawas county.

      8. Hambleton and Healea <& Greene, for plaintiffs in error.

      Richards de Me Gullough, for defendants in error.
   Judgment affirmed.


text:
    No. 5341.
    Street Railway Company v. Smith.
    (Decided December 13, 1898.)
    Error to to the Circuit Court of Belmont county.

      J. C. Heinlein and' George Duncan, for plaintiff in error.

      W. B. Francis and James O. Tallman, for defendant in error.
   Judgment affirmed on the authority of Street Ry. Co. v. Cumminsville, 14 Ohio St., 523.


text:
    No. 5361.
    Brocket, a minor v. Gates Ex’r et al.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      A. J. Michael and O. E. Pennewell, for plaintiff in error.

      George S. Foster and Boynton da Horr, for defendant in error.
   Judgment affirmed.


text:
    No. 5416.
    Railway Company v. Earle et al.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Summit county.

      Jones da Anderson, for plaintiff in error.

      II. E. Loomis and E. F. Voris, for defendants in error.
   Judgment affirmed.

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


text:
    No 6072.
    Beard, Admr. v. Railroad Company.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Licking county.

      J. A. Elory, for plaintiff in error.

      Ei'bler da Eibler, for defendant in error.
   Judgment affirmed.


text:
    No. 6112.
    Meinings, Sr. Admr. v. Railroad Company.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Miami county.

      Long (& Kyle, for plaintiff in error.

      R. D. Marshall and A. F. Broomhal, for defendant in error.
   Judgment affirmed.


text:
    No. 5296.
    Putman et al. v. Phillips, Admr., et al.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Ross county.

      Archibald Mayo, for plaintiffs in error.

      John C. Entrekin; John P. Phillips and W,E. Evans, for defendants in error.
   Judgment affirmed.


text:
    No. 5372.
    Fidelity Fire and Marine Insurance Co. v. Gostomski.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      James M., Williams, for plaintiff in error.

      Frank A. Beecher; Ghas. M. Le Blond and Kline, ' Carr, Tolies <& Goff, for defendant in error.
   Judgment affirmed.


text:
    No. 5387.
    Kennon, Trustee v. Jones.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Belmont county.

      A. . W. Kennon, and T. W. Shreve, for plaintiff in error.

      F. B. Sedgwick and L. J. O. Drennen, for defendant in error.
   Judgment affirmed.


text:
    No. 5390.
    Union Central Life Insurance Company v. Hanselman.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Brown county.

      White & Campbell and Ramsey, Maxwell <& Ramsey, for plaintiff in error.

      Moore <& Parker, for defendant in error.
   Judgment affirmed.

Spear C. J. and Shauck, J., dissent.


text:
    No. 5426.
    Standard Life and Accident Insurance Company v. Crane et al.
    (Decided December 20, 1898.)
    Error to the Superior Court of Cincinnati.

      Follett da Kelley, for plaintiff in error.,

      C. W. Baker, for defendant in error.
   Judgment affirmed.


text:
    No. 5436.
    Stockwell et al. v. General Electric Company et al.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      E. Sowers, for plaintiffs in error.

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


text:
    No. 5438.
    Calderwood, Assignee v. Van Lue.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Darke county.

      D. P. Irwin, for plaintiff in error.

      8. V. Hartman, for defendant in error.
   Judgment affirmed on authority of Andrews, Assignee v. Johns, ante 65.


text:
    No. 5441.
    Railway Company v. Woodruff.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Hardin county.

      George E. Grane, for plaintiff in error.

      James Watt, for defendant in error.
   Judgment affirmed.


text:
    No. 5444.
    Press Post Publishing Company v. Brenneman.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Franklin county. John J. Lentz and George D. Jones, for plaintiff in error.

      J. D. Karns, for defendant in error.
   Judgment affirmed.

Spear, C. J., dissents.


text:
    No. 5445.
    Springer Bros. v. Henry et al.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Stark county.

      D.F.Rogers and David, Fording, for plaintiffs in in error.

      J. D. Lewis and J. W. Craine, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 5469.
    Werk v. Louisville Banking Company.
    (Decided December 20, 1898.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      Outoalt <& Granger, for defendant in error.
   Judgment affirmed.


text:
    No. 5470.
    Werk v. Barrett.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      Foiled do Kelley and Ernst Bhem, for defendant in error.
   Judgment affirmed.


text:
    No. 5391.
    Flentke v. Bell.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Hancock county.
    Jason, Blackford do Byal, for plaintiff in error.

      George El. Phelps, for defendants in-error.
   Judgment affirmed.


text:
    No. 5404.
    Matson v. Myers et al.
    (Decided December 23, 1898.)
    Error to. the Circuit Court of Richland county.

      Sidles <& Skiles and E. W. Cummins, for plaintiff in error.

      Lastr do LLuston, for defendants in error.
   Judgment affirmed.


text:
    No. 5408.
    Jeffries et al. v. Lindsey et al.
    (Decided December 23, 1898)
    Error to the Circuit Court of Franklin county.

      E. E. Corwin, for plaintiffs in error.

      Albert da Dillon, for defendants in error.
   Judgment affirmed.


text:
    No. 5442.
    Geiger, Executor v. Bratten.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Williams county.

      Potter da Emery, for plaintiffs in error.

      John M. Eillits, for defendant in error.
   Judgment affirmed.


text:
    No. 5478.
    O. S. Kelly Company v. Lobenthal et al.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Crawford county.

      Echoard Voll/rath, for plaintiff in error.
    Beer, Bennett da Monnett and W. J. Geer, for defendants in error.
   Judgment affirmed.


text:
    No. 5481.
    Lynch, an infant, v. Cogswell, Executor.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Gilbert <& Hills, for plaintiff in error.

      Kline, Carr, Tolies <& Goff and George A. Groot, for defendant in error.
   Judgment affirmed.


text:
    No. 5484.
    Masten v. Village of Norwood et al.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Hamilton county.

      Richard Hingson, for plaintiff in error.

      William K. Bundy and Rendigs, Foraker <& Dins-more, for defendants in error.
   Judgment affirmed.


text:
    No. 5485.
    Wagner v. City of Canton.
    (Decided December 23, 1898.)
    Error to the Circuit Court of Stark county.

      C. C. Bow and Nat. C. McLean, for plaintiff in error.

      IT. B. Webber and Ed. L. Smith, for defendant in error.
   Judgment affirmed.


text:
    No. 5460.
    Herbig, Admr., v. Bell et al.
    (Decided January 10,1899.)
    Error to the Circuit Court of Coshocton county.

      J. M. Compton and 8. E. Nicholas, for plaintiff in error.

      Voorhees <& Voorhees and E. W. James, for defendant in error.
   Judgment affirmed.


text:
    No. 5464.
    Moxham v. Oakes.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Lorain county.

      F. M. Stevens ; E. C. Johnson and Squire, Sanders (& Dempsey, for defendant in error.
   Judgment affirmed.


text:
    No 5473.
    Brindle et al. v. Miller et al.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Ashland county.

      McCray & Kenny and G. 1. Coarrd, for plaintiffs in error.

      Laser, Brickerdb Workman, for defendant in error.
   Judgment affirmed.


text:
    No. 5505.
    Oswald Brothers v. Mansfield et al., Trustees.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Wood county.

      Baldwin <£> Harrington, for plaintiffs in error.

      B. B. Moore; Sidles <& Sidles and L. Bruoker, for defendants in error. - ' .

   Judgment affirmed.


text:
    No. 5511.
    Second National Bank v. Moderwell et al.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Crawford county.

      Beer, Bennett & Monnette, and Harris <& Sernas-, for plaintiffs in error.

      Ban. Babst; Isaac Cahill; Anson Wickham and Scofield, Durfee c& Scofield, for defendants in error.
   Judgment affirmed.


text:
    No. 5514;
    Central Union Telephone Co. v. Carr et al.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Richland county.

      Cummings c& McBride, for plaintiff in error.

      ■Tenner, Jenner <& Weldon, for defendants in error.
   Judgment affirmed.


text:
    5516.
    Cooper & Co. v. Springfield Malleable Iron Co.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Knox county.

      A. B. Mclntire and J. D. Gritohfield, for plaintiff in error.

      Critchfield & Devin and J. B. Wright, for defendant in error.
   Judgment affirmed.


text:
    No. 5960.
    Minner v. Long.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Muskingum county.

      W. H. Ball and J. T. Grew, for plaintiff in error.

      8. M. Winn, for defendant in error.
   Judgment affirmed.


text:
    No. 5986.
    Franklin, Admr., v. Davis, Treasurer, et al.
    (Decided January 10, 1899.)
    Error to the Circuit Court of Licking county.

      Kibler <& Kibler, for plaintiff in error.

      J. B. Jones and O. W Miller, for defendants in error.
   Judgment affirmed.


text:
    No. 5409.
    Gass v. United States Life Ins. Co.
    (Decided January 17, 1899.)
    Error to the Superior Court of Cincinnati.

      Burch da Johnson, for plaintiffs in error.
    ■ Ramsey, Maxwell dá Ramsey, for defendant in error.
   Judgment affirmed.


text:
    No. 5412.
    Brigel et al. v. Kleiner, Admr., et al.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Hamilton county.

      Gharries W. Baker, for. plaintiffs in error.

      Maxwell da Ramsey and KitPredge da Wilby, for defendants in error.
   Judgment affirmed.


text:
    No. 5458.
    Calvin v. Mt. Hope College Company.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Columbiana county.

      J. M. Dickinson, for plaintiff in error.

      Potts da Moore and Louis T, Fcwr, for defendant in error.
   Judgment affirmed.


text:
    No. 5528.
    Reis et al v. Greenville Gas Company.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Darke county.

      Anderson & Bowman, for plaintiffs in error.

      Marts do Bupe and A. C. Bobeson, for defendant in error.
   Judgment affirmed.


text:
    No. 5382.
    Sampson v. Mutual Building and Investment Company.
    (Decided January 24, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      William Howell, for plaintiff in error.
    Ga/rfield, Garfield do Howe and Morris Black, for defendant in error.
   Judgment affirmed.


text:
    No. 5434.
    O’Neil v. Dyas, Ex’rx.
    (Decided January 24, 1899.)
    Error to the Circuit Court of Summit county.

      Charles Baird and Edwin F. Voris, for plaintiff in error.

      Grant do Sieber,, for defendant in error.
   On consideration whereof, the court being of opinion that the case was not appealable it is ordered and adjudged by this court, that the judgment of said circuit court be and the same hereby is reversed for error in overruling the motion of plaintiff in error to dismiss the appeal, and for rendering- judgment against plaintiff in error.

And proceeding to render the judgment which said circuit court should have rendered. It is considered and adjudged that said motion to dismiss appeal be and the same is hereby sustained, and said attempted appeal is dismissed.

Judgment affirmed.


text:
    No. 5463.
    Cummings, Guard., v. City of Toledo.
    (Decided January 24, 1899.)
    ERROR to the Circuit Court of Lucas county.

      Cummings <& Lott, for plaintiff in error.

      William A. Mills and Charles K. Friedman, for defendant in in error.
   Judgment affirmed.


text:
    No. 5482.
    Jeffrey v. Yoxtheimer et al.
    (Decided January 24,1899.)
    Error to the Circuit Court of Medina county.

      G. W. Lewis and George Hayden, for plaintiff in error.

      Barrna/rd & Richards, for defendants in error.
   Judgment affirmed.


text:
    No. 5503.
    Hoch et al. v. Wilkins.
    (Decided January 24, 1898.)
    Error to the Circuit Court of Marion county.
    Schofield, Durfee <& Schofield and D. F. Grissinger, for plaintiffs in error.

      Johnston db Young, for defendant in error.
   Judgment affirmed.


text:
    No. 5420.
    Hudson, Special Constable, v. Doville, et al.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    White, Johnson, McOaslin db Gannon, for plaintiff in error.

      Orestes G. Finney, for defendants in error.
   Judgment affirmed.


text:
    No. 5421.
    Higbee, Exr., v. Doville et al.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    White, Johnson, McCaslin c& Gannon, for plaintiff in error.

      Grestes O. Finney, for defendants in error.
   Judgment affirmed.


text:
    No. 5440.
    Schmitt, Alias, Etc., et al. v. Schnell et al.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      Hesserimueller <& Bernis, for plaintiffs in error.

      Heisley <& Selzer and W. S. Xerruish, for defendants in error.
   Judgment affirmed.


text:
    No. 5530.
    Williams, Exr., et al. v. Henderson et al.
    (Decided Jannary 31, 1899.)
    Error to the Circuit Court of Brown county

      G. Bembdeh <& Sons, for plaintiffs in error.

      W. I). Young, for defendants in error.
   Judgment affirmed.


text:
    No. 5539.
    Parr, Exr., v. Brown.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Licking county.

      Xibler <& Xibler, for plaintiff in error.

      J. B. Jones, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on authority of Westfall v. Dungan, 14 Ohio St., 276.


text:
    No. 6213.
    Wardwell, Receiver, v. Dafferner.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Stark county.

      Baldwin d> Shields, for plaintiff in error.

      J. A. Ambler and Olark, Ambler <& Clark, for de fendant in error.
   Judgment affirmed.


text:
    No. 5452.
    Ashey v. City of Toledo.
    (Decided February 3, 1899.)
    Error to the Circuit court of Lucas county.

      Clayton IV. Everett and Noah II. Swayne, for plaintiff in error.

      William A. Mills, City Solicitor, and C. F. Watts, for defendant in error.
   Judgment affirmed.


text:
    No. 5461.
    Yocum, Admr., v. Scott et al.
    (Decided February 3, 1899.)
    Error to the Circuit Court of Wayne county.

      Bouoh (& Yocum, for plaintiff in error.

      Benjamin Eason and A. D. Metz, for defendants in error.
   Judgment reversed and modified judgment entered.


text:
    No. 5471.
    Farmers Bank of Loudonville v. Phifer et al.
    (Decided February 3, 1899.)
    Error to the Circuit Court of Ashland county.

      J. C. Laser, for plaintiff in error.

      F. V. Owens; Campbell, Senyple and J. B. LLissem, for defendants in error.
   Judgment affirmed.


text:
    No. 5472.
    Moss, Admr., v. Railway Company.
    (Decided February 3, 1899.)
    Error to the Circuit Court of Fairfield county.

      Brasee da Brasee and John G. Beeves, for plaintiff in error.

      C. O. Hunter, for defendant in error.
   Judgment affirmed.


text:
    No. 6277.
    Salmons v. Milton Coal Company.
    (Decided February 3, 1899.)
    Error to the Circuit Court of Jackson county.'

      F. C. Powell, for plaintiff in error.

      J. M. Mg Gillivray, for defendants in error.
   Judgment affirmed.


author: Bartley, C. J.

text:
    Reuben H. Thurston and Thomas Hays v. William Ludwig.
    A verbal agreement, to be effectual as a waiver, variation, or change in the stipulations of a prior written contract between the parties, must rest upon some new and distinct legal consideration, or must have been so far executed or acted upon by the parties that a refusal to carry it out would operate as a fraud upon one of the parties.
    Petition in error to reverse the judgment of the district court of Crawford county.
    The original action was assumpsit, brought by the plaintiffs in error against the defendant in error, in the court of common pleas of Crawford county, March 17, 1852. The plaintiffs declared on a written contract as follows, viz:

      “ This is to certify that ffm. Ludwig agrees to deliver to Thurs-ton & Hays from 300 to 500 good merchantable stock hogs, none to :2] weigh less than 70 lbs., to be delivered in *Delaware, Ohio, from 1st to 5th of March next, for which Thurston & Hays agree to give :$3.10 per hundred gross weight on delivery.
    ■ “ Vm. Ludwig,
    “Thurston & Hats.
    “ Buctrus, January 13, 1852:”
    The defendant plead the general issue, with a notice, that, on the trial, he would give in evidence and insist in bar of the action, that .after the execution of the contract declared on, and on the same day, to wit, on the 13th day of January, 1852, said contract was varied by a verbal agreement between the plaintiffs and the defendant, whereby the plaintiffs for a good and sufficient consideration, promised to make the defendant an advancement of money on said written contract, before the 5th day of March, 1852, to wit, on the 1st ■day of February, of that year; and that in default of such advancement of money, the defendant was discharged from all liability on ¡said written contract; and that the plaintiffs neglected and refused to make such advancement of money to the defendant; whereby the defendant has become discharged from all liability to the plaintiffs •on said written contract.
    After a trial in the common pleas, the cause was apipealed to the district court. And at the August term of the district court, 1852, the intervention of a jury having been waived, and the cause -•submitted to the court, the pilaintiffs, to maintain the issue on their part, gave in evidence the written contract declared on, and also evidence proving the failure of the defendant to deliver the hogs; that, at -the time specified for the delivery, stock hogs, such as the .contract ■called for, were worth at Delaware from $3.70 to $3.75 per hundred weight gross. And it appieared in the evidence, that after the written contract had been executed between the parties on the 13th January, 1852, the defendant, Ludwig, told the plaintiff, Thurston, 3] that he would *oxpect an advancement of money on the contract before the delivery of the hogs, insisting that it was customary .among stock dealers to do so. To this Thurston replied, that it was not his custom, and that he did not expect to make any such an ■advance. Ludwig, however, insisted' on the advance, and Thurston finally said that he would either go himself or send to Bucyrus, ¡sometime about the 1st of February, and would then advance to Ludwig $150 or $200 on the contract. This parol agreement was not, however, either inserted in the written contract, or reduced to writing. It also appeared in evidence, that plaintiffs, Thurston & Hays, were partners in business in Delaware, Ohio ; and that about the last of January, or the 1st of February, after the making of this contract, the son of the plaintiff, Thurston, was sent to Ludwig, to make a contract for the purchase of more hogs, and also to see about the prospect of the delivery of those already contracted for, when Ludwig declined to contract for the delivery of any more hogs, but said that he would have those already contracted for, ready for delivery at the time specified ; but said nothing about the advance of money on the contract by Thurston. It also appeared, that about the last of February, Thurston sent a man to Ludwig to make further inquiry about the hogs, and to assist in driving them to Delaware, when Ludwig refused to deliver the hogs, assigning as his reason therefor, that Thurston had not kept his promise to make an advance of money on the contract.
    Upon this state of facts, the district court found for the defend^ ant, whereupon the plaintiffs moved the court for a new trial, on the ground that the finding by the court was against both the law and the evidence in the case, and that the finding should have been for the plaintiffs; but the court overruled the motion, and gave judgment for the ^defendant; and the plaintiffs took their bill [4 of exceptions, embodying the facts of the case.
    It is now assigned for error, that the district court erred in overruling the motion for a new trial; and also erred in rendering judgment for the defendant.

      Peleg Bunker & James R. Hubbell, for plaintiffs.

      Stephen R. Harris, for defendant,
   Bartley, C. J.

The single question presented by this case is, whether the written contract of the parties was altered by a verbal agreement. The written contract expressly provided for payment for the hogs by the plaintiffs, at the time of delivery, which was to be between the 1st and the 5th of March, succeeding the time of the making of the contract on the 13th of January, 1852. It appears, that immediately after the execution of the written contract, the defendant, Ludwig, insisted that, according to a custom among stock dealers, he ought to have some money in advance; and the plaintiff, Thurston, at first declined, but finally promised the defendant, that he would make him an advance of $150 or $200 about the 1st of February. The district court regarded this verbal promise as a valid alteration of the written contract between the-parties, and as creating a condition precedent to the obligation of the defendant to deliver the hogs. "Was there error in the action, of the court in this regard?

It is well settled, as a general rule, that all par.ol negotiations between the parties to a written contract, anterior to, or contemporaneous with, the execution of the instrument^ are to be regarded as either merged in it, or concluded by it. Accordingly, it is held, that parol evidence is incompetent to show terms or conditions at variance with, or in addition to, a written agreement, which the 5] parties agreed to ^verbally, prior to, or at the time the contract was reduced to writing, but which were not inserted in the instrument. Powell v. Edmonds, 12 East, 6; Ridgeway v. Bowman, 7 Cush. 268; Small v. Quincy, 4 Greenl. 497; Chitty on Contracts, 110. And it appears to be equally well settled, that, subsequent to the execution of a-written contract, it is competent for the parties,, by a new contract, although not in writing, either to abandon, waive, or annul, the prior contract, or vary, or qualify the terms of it, in any manner. And where the verbal contract only changes or modifies some of the terms of the original contract, it embraces by reference, all the written stipulations of the original undertaking, and is to be proven by the verbal agreement taken in its connection with the written contract. But where a written contract is thus either totally abandoned and annulled, or- simply altered or modified in some of its terms, it is done, and can only be done, by a distinct and substantive contract between the parties, founded on some valid consideration. And among the multifarious verbal negotiations of parties in reference to their mutual stipulations in written contracts to draw the line of distinction between' those which are valid and effectual as alterations or modifications of the terms of written contracts, and those which are mere solicitations, or nuda pacta, and, therefore, of no binding validity, requires, sometimes, much nicety of discrimination. And it is to be regretted that the reported adjudications bearing upon this distinction, are not all entirely perspicuous and consistent. The general language employed by some of the elementary authors touching this subject, to the effect that the-parties to a written contract, may by parol agreement waive, abandon, or discharge a written - contract, in whole or in part, or alter or modify any of its terms,' has led some to the inconsiderate conclusion, *that it could be done without any new and valid [(> ■consideration. This, however, is a mistake. A valid consideration is an essential and indispensable element in every binding agreement. If a written contract be altered by verbal agreement, such .agreement must have the essential ingredients of a binding contract; and although it may have reference to, and, indeed, embody the terms of the written contract, yet it must be founded on a new .and distinct consideration of itself.

When the verbal agreement of parties amounts to a waiver or discharge of mutual stipulations in a written contract, either in whole, or in part, the discharge of each by the other, from the obligations of the contract, may furnish a sufficient consideration. Forbearance, or extrinsic considerations may exist to furnish sufficient legal foundation for an alteration, by verbal agreement, of the stipulations in a prior existing contract. An agreement by one person to discharge another from the obligations of a written contract, as a matter purely ex gratia and in the nature of a donation, would be of no binding validity as a mere executory agreement, and to be effectual, must be fully executed by an actual release, or surrender of the contract in writing. There is a class of cases, how■ever, where a written contract may be altered or modified by a mere verbal agreement of the parties, which, at its inception, or as a mere executory agreement, would have no binding effect, yet by being acted upon by the parties until it would work a fraud or injury to refuse to carry it out, becomes binding and effectual as a contract. But ■a verbal agreement to have the effect to alter or modify the terms of a prior written contract, must be a valid and binding contract of itself, resting upon some new and distinct consideration. And it can not be supported on the supposition that it is founded on the continuation *or extension of the consideration of the prior or writ- [7 ten contract, which was complete of itself, and so far as it went, fixed the rights of the parties.

In the ease of Gross v. Nugent, 5 Barn. & Adolph. 65, in which the doctrine, that a written contract may be annulled, or its terms altered by subsequent verbal contract, is laid down by Lord Denman in the broadest language, it is not pretended that it can be done, otherwise than by a “ new contract ” which, of course, must be founded on a new and distinct consideration.

The case of Lattimore v. Harsen, 14 Johns. 330, was a case in which the-plaintiffs, in a suit'to enforce a verbal contract, had subjected themselves to a penalty‘for the nOn-fulfillment of a written _ contract; and finding the contract a hard one, chose to pay the penalty rather than perform the contract, 'and'thereupon, the other party preferring the fulfillment of the contract to the payment of the penalty, verbally agreed that if the plaintiffs would go on and perform the work, they should be paid therefor, whatever it was reasonably worth, with which the plaintiffs complied. Here was a new and distinct contract, and'founded upon a new and distinct consideration. The performance of the work under the first contract, was abandoned, and being more beneficial'to the defendant even than the penalty incurred, furnished a good consideration for the new contract. And the court place the decision strictly on the ground of a sufficient new consideration. Substantially to the same effect is the case of Monroe v. Perkins, 9 Pick. 298, where one, by an instrument under seal, agreed to erect a building- for a fixed price, which proved to be an inadequate compensation, and having performed part of the work, refused to proceed further, whereupon the obligee promised, that if the party would go on and 8] complete the work, he should be paid for *his labor and materials what they were reasonably worth, and the work was done. Here the employer had aright of action on the written contract which was broken ; but he chose, in view of the benefit of the work, to make a new contract for its performance.

And the case of Cummings v. Arnold, 3 Met. 486, stands upon the same principle; also the case of Dearborn v. Cross, 7 Cow. 48; Randolph v. Perry, 2 Porter (Ala.), 376; Perrine v. Cheesman, 6 Halst. 177.

There is a class of cases, where parol evidence has been admitted in connection with written evidence, where it is apparent from the writing itself, that it does not embody the whole contract of the parties, or where the verbal agreement is not inconsistent with, but supplementary to, the written agreement. The case of Jeffry v. Walton, 1 Starkie, 213; falls within this class, where in the hire of a horse, a written stipulation on a card existed, merely regulating the time' of hiring and the rate of payment, parol evidence was admitted, showing additional terms in the agreement. Also Wallace v. Rogers, 2 N. H. 506, where articles are sold accompanied by a bill of parcels fixing the quantity, price, etc. Hoggins v. Plympton, 11 Pick. 99; and Brodford v. Manly, 13 Mass. 139, are to the same effect. To this class, also belongs the case of White v. Parkin, 12 East, 582. The principle of these cases must be distinguished from that which is applicable to the case before us.

There is a still more extensive class of cases, in which parol evidence has been admitted to vary the terms of a prior written contract, where the verbal agreement, as a mere executory contract, would, at its inception, be wholly ineffectual, but which acquires validity and becomes binding from having been executed or acted on by the parties. Under the rule in this class of cases, oral evidence is ^admissible to show, that by subsequent agreement, [9 the time for the performance has been enlarged or the place for the performance changed from that fixed by the written contract. 1 Greenl. Ev., sec. 304. Keating v. Price, 1 Johns. Cases, 22.

But an oral agreement to enlarge the time, or change the place of performance fixed by a written contract, must be subsequent to the time of the execution of the latter, and constitute an independent agreement of itself, acquiring its binding effect, either from an existing consideration at the time, or from having been acted upon by the parties, until it could not be disregarded by one party without working an injury to the other party. In the case of Lefevre v. Lefevre, 4 Serg. & Rawle, 241, it was held that parol evidence was admissible to prove, that after the execution of a deed conveying a right to a water-course through the granted land, by courses and distances, a verbal agreement was entered into between the parties for their-mutual accommodation, altering the route of the water-course. And this evidence was admitted expressly on the ground, that the parties had acted on the verbal agreement, so that the original contract could no longer be enforced without a fraud upon one party. To the same effect is Grossman v. Fuller, 17 Pick. 174; also Richardson v. Cooper, 25 Maine, 450; Bailey v. Johnson, 9 Cow. 115; Lynd v. Beech, 7 Howard’s Pr. 113.

Upon a full review of the whole subject, it appears to be well established, that a verbal agreement, to be effectual and binding as an alteration of the express terms of a prior written contract between the parties, must be supported by a new and valid consideration. And that a mere executory contract, of the kind to constitute an exception to this rule, must have been acted upon so far, that a refusal to carry it out would work a fraud on one of the parties.

*The application of this view of the law to the case before us, removes all difficulty in making a satisfactory disposition of it. The verbal promise of Thurston was manifestly unsupported by any valid consideration, as disclosed by the evidence. The parties had just settled the terms of their written contract, completed the execution of it, by which Ludwig had bound himself to deliver the hogs, in consideration of the undertaking of Thurston & Hays to pay the stipulated price, at the time of delivery in March. The time and place of payment were fixed by the express terms of the written contract. The custom of the country, if any such actually existed as that spoken of by Ludwig, could not have affected the express terms of the written contract. What .conceivable consideration can be assigned to support Thurston’s promise as a binding obligation ? Ludwig had not refused a compliance with the written contract which he had just executed. Why should Thurston, except as a mere matter of accommodation, or favor, resting in his own discretion, promise an advance of $150 or $200 to Ludwig, one month before the stipulated time of payment, and that too, without security, when the terms of his written contract secured him against any such a risk ? Asa consideration for this promise, Ludwig was not required to deliver any more hogs, nor of a better quality, nor at any other time or place, nor at a less price, nor wait any greater length of time for the balance of the money. In short, Thurston was to take nothing for the fruits of' his promise, to which he was not entitled, and which he had not a' •right to expect at the time, from the performance of the written contract by Ludwig. The proposed advance, therefore, so far as the evidence discloses it, was a naked promise of an accommodation or favor, resting in the option of Thurston ; and it appears to 11] *have been so treated by the parties at the time. The written contract which had just been signed, was before them when the promise of the advance was made. If intended as a stipulation in their contract, why was it not inserted or indorsed on the contract at the time ? Why did Ludwig take his duplicate copy of the contract, -at the very time of the promised advance, and separate from Thurston without a change in the writing, which he carried away with him as the evidence of the agreement ? And it is not made to appear, that Ludwig ever made any request of Thurston for the advance. On the contrary, when Thurston, about the first of February, and near the time when the promised advance was to have been made, sent his son to Ludwig to inquire about the delivery of the hogs, instead of requesting the advance, he did not even inquire about it, but said that he had the hogs, or the most of them, and would be ready to deliver them at the time specified. If the solemn stipulations of a written contract could be altered by a mere naked verbal promise under such circumstances, that certainty, which is the greatest guaranty of safety among business men, arising out of written contracts, would be greatly weakened. And evidence of loose and inconsiderate conversations, often not fully understood or accurately remembered, would be resorted to in many cases, to show waivers or variations in the stipulations of parties, with a view of avoiding the binding obligations of written contracts.

We are unanimous in the opinion that there was error in the proceedings of the district court.

Judgment reversed, and cause remanded.

Swan, Bkinkerhoee, Bowen, and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    *John Doe ex dem. Robert Irwine v. Jacob B. Brown.
    A bill of exceptions, appearing from the transcript of the record to have been filed after term, by order of one of the judges of the district court, can not be deemed a part of the record.
    In error from Knox county.
    The statement of this case will be found in the opinion of the court.

      Israel, Galusha & Dunbar, for plaintiff.

      Vance & Smith, for defendant.
   J. R. Swan, J.

This case was tried in the district court of Knox county, at May term, 1853, and a verdict and judgment then entered in favor of the defendant, the court having overruled a motion for a new trial. Afterward, on the 26th day of May, 1854, a bill of exceptions was ordered to be filed as of May term, 1853, by one of the judges of the district court, and the bill is appended to the record of the ease. This cause is now before us on petition in error, and the errors assigned are based upon what appears in the bill of exceptions so filed.

We can not deem the bill of exceptions a part of the act of the district court at their May term, 1853. It was filed about a year after that term. Under what circumstances, or whether under any circumstances, a bill of exceptions may, by order of a court, at a subsequent term, be made available by a nunc pro tunc order, it is not necessary in this case to determine.

Bills of exceptions are frequently made up and signed after a 13] trial, and sometimes after the adjournment of the *court; but in such cases the parties are concluded by the record, which shows that the bills were perfected on the trial, and then formed a part of the record. There is no objection to this practice. But in the case before us it appears from the record that the bill of exceptions was filed by order of one of the judges of the district court about a year after the trial; and whether in or out of term does not appear. The grounds upon which he directed the bill to be filed are also omitted.

The errors being assigned upon matter not in the record, the judgment below must be affirmed.

Bartley, C. J., and Brinkerhoee, Bowen, and Scott, JJ., concurred.


author: Brinkerhoff, J.

text:
    Lycurgus G. Bane and another v. Henry B. Wick and others.
    Where a cause on demurrer to bill has been once determined by this court, or the late court in bank, and, demurrer being overruled, afterward comes up on bill, answer, and testimony, which do not substantially vary the case as it stood on demurrer, this court will follow the prior decision, unless very clearly satisfied that it was erroneous.
    “This case, reported in 19 Ohio, 328, doubted.
    In chancery, from Trumbull county.

      M. Birchard, M. Butliff, and John Hutchins,- for complainants.,

      B. P. Banney, Hitchcock, and Wilson & Wade, for defendants.
   Brinkerhoff, J.

This is a case in chancery- reserved in *thó [14-county of Trumbull. The same case, on demurrer to the bill, was-decided by the late court in bank, and is reported in 19 Ohio, 328. ' The demurrer being overruled, leave was taken by the defendants to answer, and the case was then remanded to the county from which it was reserved, for further proceedings. Answers-were subsequently filed and testimony was taken; but neither answers nor testimony materially alter the case or vary the questions-presented when it stood on demurrer. These questions arise out of the construction of the will of Henry Wick, deceased. A copy of the will and a general statement of the case are given in the report before mentioned, and it is therefore unnecessary that we-should now do more than refer to them.

The testator evidently drew the will himself, and seems to have-been an illiterate man,’ unqualified to draft legal instruments requiring preciseness of expression, and wholly unaccustomed to a clear or systematic arrangement of his ideas on paper. From-these causes there is so much indistinctness, ambiguity, and obscurity of expression in the instrument, that, after much and careful consideration, we have found it almost, if not quite, impossible to give it an interpretation entirely satisfactory to our own minds. And although, if the case were now before us as an original one, and irrespective of any authoritative determination of the questions it presents, some of us might have arrived at conclusions-differing from those announced by our predecessors, yet none of us are so clearly satisfied of error in the previous determination of the case, as to feel ourselves justified in overruling it.

There will, therefore, be a decree for complainants on. the principles settled in the opinion of the court in the reported ease be* fore mentioned.

Bartley, C. J., and Swan and Bowen, JJ., concurred.