text:
    No. 3700.
    Hulitt v. Heatherington, Treas.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Highland, county.

      Henry M. Huggins and E. H. Huggins, for plaintiff: in error.

      B. Q. Morroio and H B. Ba/ois, for defendant in error.
   Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2321.
    Brown & Co. v. Hill Bros. & Co.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      1. J. Miller, for plaintiffs in error.

      G. W, Oowen and Stoing d¡ Morse, for defendants in error.
   Judgment affirmed.


text:
    No. 2326.
    Coller v. Bloch et al.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Wood county.

      Trou/p <& Bunn, for plaintiff in error.

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


text:
    No. 2339.
    Reis v. Amann.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Ross county.

      Ed. U. Wiedler and W. 3. Wiggins, for plaintiff in error.

      Albert Douglas , Jr., for defendant in error.
   Judgment affirmed.


text:
    No. 2488.
    Gillett et al v. Stiles.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Clark county.

      B. A. Harrison and A. II. Gillett, for plaintiffs in error.

      John L. Zimmerman and Webb W. Whitmeyer, for defendant in error.
   Judgment affirmed.

Minshall J., dissents.


text:
    No. 2663.
    Grimes v. Latimer et al.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Stark county.

      WilUam J. Piero and Thomas F. Twrner, for plaintiff in error.

      John M. -Oraine, for defendants m error,
   Judgment affirmed.


text:
    No. 2671.
    Van Tine, Jr., Adm’r, v. Miller.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Wayne county.

      Johnson & Taylor, for plaintiff in error.

      MoCfl/wre c& Sm/yser, for defendant in error.
   Judg’ment affirmed.


text:
    No. 2672.
    Hicks v. Alkire.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Madison county.

      X. 8. Murray and D. G. Badger, for plaintiff in error.

      William Glande, and Me Cloud c&' Gonverse, for de- ■ fendant in error.
   Judgment affirmed.


text:
    No. 2675.
    Lane et al. v. Wilcox et al.
    (Decided March 20, 1894.)
    ERROR to the Circuit Court of Licking county.

      Kibler <& Kibler, for plaintiffs in error.

      Henderson, Kline & Tolies and Charles H Follett, for defendants in error.
   Judgment affirmed.


text:
    No. 2679.
    Jacque v. State.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      J. G. Hutchins, for plaintiff in error.

      W. B. Neff, for defendant in error.
   Judgment affirmed.


text:
    No 2681.
    Benty v. The State.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      J. G. Hutchins, for plaintiff in error.

      W. JB. Neff, for defendant in error.
   Judgment affirmed.


text:
    No. 2682.
    Graul v. The State.
    (Decided March 20, 1894.)
    ERROR-to the Circuit Court of Cuyahoga county.

      J. G. Hutchins, for plaintiff in error.

      V. B. Neff, for defendant in error.
   Judgment affirmed.


text:
    No. 2683.
    Spirnagle v. The State.
    (Decided March 20, 1894.)
    ERROR to the Circuit Court of Cuyahoga county.

      J. O. Hutchins, for plaintiff in error.

      W. B. Neff, for defendant in error.
   Judgment affirmed.


text:
    No. 2710.
    Lewis v. Williams.
    (Decided March 20, 1894.)
    ERROR to the Circuit Court of Licking county.

      Charles K. Follett, for plaintiff in error.

      Jesse A. Flory, for defendant in error.
   Judgment affirmed.

Spear, J., dissents.


text:
    No. 2714.
    Columbia Handle Company v. Banwell.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      P. H. Kaiser, for plaintiff in error.

      Smith da Blalte, for defendant in error.
   Judgment affirmed.


text:
    No. 2717.
    Railroad Company v. Snyder.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Huron county.

      J. H. Collins, for plaintiff in error.

      Col/oer da King, for defendant in error.
   Judgment affirmed.


text:
    No. 2718.
    Railroad Company v. Talbot et al.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Erie county.

      J. U. ColUns and F. J). Gunsa/ullus, for plaintiff in error.

      Colver da Colver, for defendants in error.
   Judgment affirmed.

Burket and Spear, J. J., dissent.


text:
    No. 3328.
    State ex rel. Dubs, et al. v. Esher, et al.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    • W. B. Neff, prosecuting attorney, J. E. Ingersoll and White, Johnson dé McOaslin, for plaintiffs in error.
    Boyton, Rale dé Rorr, Chas. E. Penn&iuell, O.M.di A. W. Barber and Judd, Richie dé Esher, for defendants in error.
   Judgment affirmed on the opinion of the circuit court by Upson, J., 6 O. C. C. Rep., 312.

Burket, J. not sitting.


text:
    No. 3921.
    Brown, Auditor v. State ex rel., Buxton, et al.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      Theodore Rorstmcon, for plaintiff in error.

      Swing dé Morse and Miller ds Renner, for defendants in error.
   Judgment affirmed.


text:
    No. 2341.
    Hazzard v. Allen.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Ong <& Hamilton, for plaintiff in error.

      George G. Bowden and P. H Ka/iser, for defendant in error.
   Judgment affirmed.


text:
    No. 2343.
    Bundy et al. v. Austin et al.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Jackson county.

      John T. Moore, James Tripp and J. J. Ha/rper, for plaintiffs in error.

      Wells A. Hutchins and J. W. Bannon, for defendants in error.
   Judgment reversed and judgment on the facts for defendants below.

Bradbury, J., dissents.


text:
    No. 2356.
    Union Biblical Seminary v. Conn, Adm’r, etc.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Defiance county.

      John W. Winn and K. V. Haymaker, for plaintiff in error.

      Enos da Johnston and L. B. Peaslee, for defendant in error.
   On consideration, the court is of the opinion that the petition of the plaintiff below states a cause of action, and that the circuit court erred in holding that it did not; but, that court having also held that the verdict is against the weight of the evidence, which is not reviewed in this court, the judgment of the circuit court is affirmed.


text:
    No. 2603.
    Railroad Company v. Vennum.
    (Decided March 27, 1894.)
    ERROR to the Circuit Court of Belmont county.

      Joel W. Tyler and JF. K. Ilennon, for plaintiff in error.

      T W. Bh/reve, for defendant in error.
   Judgment affirmed.


text:
    No. 2661.
    Warman v. State.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Hamilton county.

      Baker <& Gooclhue, for plaintiff in error.

      J. II Bromwell, John B. Bruoe and J. K. Bieha/rds, Attorney General, for defendant in error.
   Judgment affirmed.


text:
    No. 2673.
    Pagels, Adm’r, et al. v. Powell, Adm’r.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Franklin county.

      O. T Olcvrh, for plaintiffs in error.

      Marriott <& Hughes, for defendant in error.
   Judgment affirmed.


text:
    No. 2688.
    Pausch et al. v. Jones et al.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Licking county.

      Dennis <& Dennis, for plaintiffs in error.

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


text:
    No. 2690.
    Railroad Company v. Hawkins.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Belmont county.

      Joel W. Tyler and JT. K. Kennon, for plaintiff in error.

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

Dickman, C. J., and Btjrket, J., dissent.


text:
    No. 2707.
    Larimore et al. v. Elliott et al.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Darke county.

      J. M. JEToel, Q. W. Studebaker and Scoter <& Bobe-< son, for plaintiffs in error.

      Anderson db Bowman, for defendants in error.
   Judgment affirmed.


text:
    No. 2723.
    Hedges et al. v. Taylor et al.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Richland county.

      Jabez Dickey, for plaintiffs in error.

      Douglass <& Douglass, for defendants in error.
   Judgment affirmed.


text:
    No. 2731.
    Kidd v. McGary.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Belmont county.

      J. W. Shannon and (7. W. Oarroll, for plaintiff in error. *

      L. D. Danford and J. F. Chcvrlesiuorth, for defendant in error.
   Judgment affirmed.


text:
    No. 2358.
    Bricklayers’ Union, No. 1, et al. v. Parker et al.
    (Decided April 10, 1894.)
    ERROR to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiffs in error.

      Bateman & Ucwrper, for defendants in error.
   Judgment affirmed.


text:
    No. 2369.
    Insurance Company v. France.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Summit county.

      Oviatt, Allen da Gobbs, for plaintiff in error.

      J. V. Welsh, for defendant in error.
   On consideration, it is ordered and adjudged by this court that the judgment of the circuit court be reversed, for the reason that there is no evidence in the record tending to show that the plaintiff in error gave its consent in writing or otherwise for the taking of additional insurance on the property of defendant in error; and for instructing the jury as is done m the eleventh paragraph of the court’s charge, that if they found that the agent of the plaintiff in error gave his consent that she should have additional insurance, and she in good faith believing that she had the necessarjr consent of the company to have such additional insurance, .and procured it, the company would be estopped to set up that the consent had not been given; for there is no evidence tending to show that the agent gave such consent. And for 'like reasons the judgment of the court of common pleas is reversed, and this cause is remanded to that court for a new trial.


text:
    No. 2380.
    Coal Company v. Kollar.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Tuscarawas county.

      O. P. Sperrco, O. P. Humphrey and J. F. Wilkin, for plaintiff in error.

      A. W. Patrick, -Jas. G: Patrick, A. I. Neely and Powell, Picketts & Black, for defendant in error.
   Judgment affirmed.


text:
    No. 2381.
    Coal Company v. Davis.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Tuscarawas county.

      O. P. Sperra, O. P. Humph/rey and J. F. Wilkin, for plaintiff in error.

      A. W. Patrick, Jas. O. Patrick, A. L. Neely and Poioell, Picketts <& Black, for defendant in error.
   Judgment affirmed.


text:
    No. 2382.
    Bricklayers’ Union, No. 1, et al. v. Moores & Co.
    (Decided April 10, 1894.)
    Error to the Superior Court of Cincinnati.

      Oha/rles W. Baker, for plaintiffs in error.

      Bateman c& Hcurper, for defendants in error.
   Judgment affirmed.


text:
    No. 2691.
    Thompson v. Osborn et al., Admrs.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Holmes eoufity.

      William Reed, Oritchfield <& TIuston and. D. T Simpson, for plaintiff: in error.

      Voorhees <& Hunt and. O. F. Voorhees, for defendants in error.
   Judgment affirmed.


text:
    No. 2695.
    Webb v. Odle.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Scioto county.

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

      Ha/rper, Sea/rle ds Milner, for defendant in error.
   Judgment affirmed.


text:
    No. 2727.
    Harnish, Guardian, et al. v. Devor et al.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Darke county.

      Mazidin B. Trainor, for plaintiffs in error.

      H M. Oole, for defendants in error.
   Judgment affirmed.


text:
    No. 3635.
    State ex rel. Board of Directors v. Board of Directors.
    (Decided April 10, 1894.)
    Error to the Circuit Court of Henry county.

      Pa/rker do Moore, for plaintiff in error.

      James P. Bagan and Cahill do Donovan, for defendant in error.
   Judgment affirmed.


text:
    No. 2318.
    Fleming v. Turney.
    (Decided April 17, 1894.)
    ERROR to the Circuit Court of Pickaway county.

      Harrison, Olds do Henderson and Henry P. Folsom, for plaintiff in error.

      P. C. Smith, Milt. Morris and Festus Walters, for defendant in error.
   Judgment affirmed.


text:
    No. 2596.
    Miller et al., Trustees, v. Inskeep, Treas., et al.
    (Decided April 17, 1894.
    Error to the Circuit Court of Logan county.

      S. A. Miller, for plaintiffs in error.

      Plvun do Johnston, West do West and D. S. Hoimshell, for defendants in error.
   Judgment affirmed.


text:
    No. 2627.
    Railway Company v. Wilkin.
    (Decided April 17, 1894.)
    Error to the Circuit Court of Tuscarawas county. •

      J. Dunbar, for plaintiff in error.

      J. F. Wffl&in, for defendant in error.
   Judgment affirmed.


text:
    No. 2735.
    Brulport v. Wise.
    (Decided April 17, 1894.)
    Error to the Circuit Court of Brown county.

      Moore c& Marhley, Milton Fox and B. M. Ditt/y, for plaintiff in error.

      White dt Stevenson, for defendant in error.
   Judgment affirmed.


text:
    No. 2749.
    Stevens v. Swerlein, Guard., etc.
    (Decided April 17, 1894.
    Error to the Circuit Court of Wyandot county.

      D. D. Clayton, for plaintiff in error.

      D. D. Ha/re and T. F. Qo-isell, for defendant in error.
   Judgment affirmed.


text:
    No. 3646.
    McPherson v. Furnas, Aud., et al.
    (Decided April 17, 1894.)
    Error to the Circuit Court of Miami county.

      CUyde & McPherson, for plaintiff in error.

      Long <& Kyle, and Broomhall <& Qantz, for defendants in error.
   Judgment affirmed.


text:
    No. 3664.
    Schumacher Milling Company v. Schoner.
    (Decided April 17, 1894.)
    Error to the Circuit Court of Summit county.
    Oviatt, Allen c& Gobbs, for plaintiif in error.
    Marvin, Sadler c& Atterholt, and Tibbals <& Frank, for defendant in error.
   Judgment affirmed.

Burket, J., dissents.


text:
    No 3666.
    Insurance Company v. Kukral et al.
    (Decided April 17, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      John O. Winship, for plaintiif in error.

      L. A. Willson and WilUam A. Babcock, for de- ■ fendants in error.
   Judgment affirmed.


text:
    No. 2794.
    Caldwell v. Railroad Company et al.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Mahoning county.

      Illne Clark and W. S. Anderson. for plaintiif in error.

      Thomas W Sanderson and A. W. Jones, for defendants in error.
   Judgment affirmed.


text:
    No. 3731.
    Railway Company v. Lewis.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Belmont county.

      J. J. Jacobs and George Duncan, for plaintiff in error.

      L. Danford, F. B. Sedgwick and IK T. Lewis, for defendant in error.
   Judgment affirmed.


text:
    No. 2737.
    Insurance Company v. Harris.
    (Decided May 1, 1894.)
    Error to the Circuit Court of Clinton county.

      Wilson c& Gregory, for plaintiff in error.

      Walker <& West, for defendant in .error.
   Judgment affirmed.


text:
    No. 2768.
    Daniels et al. v. Steube, Adm’r.
    Decided May 1, 1894.)
    Error to the. Circuit Court of Miami county.

      M. Jl. & W. D. Jones, for plaintiffs in error.

      A. L. Marshall, for defendant in error.
   Judgment affirmed.


text:
    No. 2784.
    Bright v. Miller et al.
    (Decided May 1, 1894.)
    Error to the Circuit Court of Darke county.

      Allread da Bichel, for plaintiff in error.

      Anderson da Boioman and W. S. Meeker, for defendants in error.
   Judgment affirmed.


text:
    No. 2812.
    City of Cincinnati v. Seasongood
    (Decided May 1, 1894.)
    Error to the Circuit Court of Hamilton county.

      Mor siman, Galvin, YYhittalaer dá Van Borne, for plaintiff in error.

      W. M. Ampt, for defendant in error.
   Judgment affirmed on the authority of Lewis Seasongood v. The City of Cincinnati, 5 O. C. C. Rep., 225.


text:
    No. 2814.
    Harrison v. Building & Loan Association.
    (Decided May 1, 1894.)
    Error to the Circuit Court of Hamilton county.

      B. S. Aston, for plaintiff in error.

      Smith da Kuhn, for defendant in error.
   Judgment affirmed.


text:
    No. 3739.
    Carkin, Stickney & Cram v. Johnson.
    (Decided May 1, 1894)
    Error to the Circuit Court of Ashtabula county.

      Allen <& Rosemmeig and Iloyt <& Munsell, for plaintiffs in error.

      D. Galbraith, Northxomj & Williams and Taloott Bros., for. defendant in error.
   -Judgment affirmed.

Spear, J., dissents.


text:
    No. 3788.
    Hinsch v. City of Cincinnati et al.
    (Decided May 1, 1894.)
    Error to the Circuit Court of Hamilton county.

      W. M. Anypt and F. G. Ampt for plaintiff in error.

      Theodore Horstman, corporation counsel, for defendants in error.
   Judgment affirmed


text:
    No. 3817.
    Keck et al. v. City of Cincinnati et al.
    (Decided May 1, 1894.)
    ERROR to the Circuit Court of Hamilton county.

      W. M. Ampt and F. G. Aoiypt, for plaintiffs in error.

      Theodore Horstman, corporation counsel, for defendants in error.
   Judgment affirmed.


text:
    No. 2205.
    Homer v. McCandless et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Mahoning county.

      George F: Arrel and Frank Jacobs, for plaintiff in error.

      Jared Luxley, James P. Wilson and Thomas W. Sanderson, for defendants in error.
   Judgment affirmed.


text:
    No. 2762.
    National Bank v. Murray et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Scioto county.

      B. Li. Bowler, for plaintiff in error.

      W. A. ILutchins, for defendants in error.
   Judgment affirmed.


text:
    No. 2793.
    Rawson et al. v. White, Exx, et al.
    (Decided May 8, 1894.)
    Error to the Circuit' Court of Sandusky county.

      James AL Williams, Lemuel A. Bussell and Bufus P. Banney, for plaintiffs in error.

      Pratt c& Wilson, Buckland Bitckland and JohnAL. Lemmon, for defendants in error.
   Judgment affirmed.


text:
    No. 2796.
    Clements v. McClure.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Allen county.

      P. B. Kerr, for plaintiff in error.

      Hutchinson <& Becker, for defendant in error.
   Judgment affirmed.


text:
    No. 2829.
    Reymer et al. v. Hoover et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Tuscarawas county.

      James A. H. Bicharás, and J. T. McOollough, for plaintiffs in error.

      8. Hambleton and Healea <& Goleen, for defendants in error.
   Judgment affirmed.


text:
    No. 2838.
    Moreland, Guard., v. Moorhead et al. Ex’rs.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Holmes county.

      Gritchflelá & Huston, for plaintiff in error.

      W. Stillwell, for defendants in error.
   Judgment affirmed


text:
    No. 2839.
    Smith et al. v. Hoover et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Tuscarawas comity.
    • James A. D. Richards, and J. T. McCollough, for plaintiffs in error.

      8. Uambleton and Healea <& Green, for defendants in error.
   Judgment affirmed.


text:
    No. 2845.
    Kirk & Co. v. Insurance Company.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Hamilton county.

      Follett c& Kelley, for plaintiffs in error.

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


text:
    No. 3135.
    Homer v. Campbell, Adm’r.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Mahoning county.

      George F. Arrel and Frank Jacobs, for plaintiff in error.

      Ja/red Huxley, J. R. Wesor, U A. ■ Justice and Thomas IE 8anderson, for defendant in error.
   Judgment affirmed


text:
    No. 3212.
    Slain v. Railroad Company et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Montgomery county.

      Bevin (& Kumler, for plaintiff in error.

      Cha/i'les DmBngton, for defendants in error.
   Judgment affirmed.


text:
    No. 3820.
    Reilly et al. v. City of Cincinnati et al.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Hamilton county.

      Miller cts Benner, for plaintiffs in error.

      Theodore Ilorstman, Corporation Counsel, for ■ defendants in error.
   Judg’ment affirmed.


text:
    No. 3869.
    Moran v. State.
    (Decided May 8, 1894.)
    Error to the Circuit Court of Cuyahog’a county.

      Jay P. Danoley and James M. Jones, for plaintiff in error.

      V. B. Beff, for defendant in error.
   Judgment affirmed.


text:
    No. 2186.
    Insurance Company v. Trustees.
    (Decided May 15, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Estep, Dickey, Carr Goff, for plaintiff in error.

      T. E. Burton and George L. Dake, for defendants in error.
   Judgment affirmed.


text:
    No. 2437.
    Willard, Exr., v. National Bank.
    (Decided May 15, 1894.)
    Error to the Circuit Court of Lawrence county.

      A. B. Johnson, for plaintiff in error.

      Henry 8. Neal, for defendant in error.
   Judgment affirmed.


text:
    No. 2801.
    Spaulding v. Bank.
    (Decided May 15, 1894.)
    Error to the Circuit Court of Jefferson county.
    Z. J. G. Drennen, for plaintiff in error.

      T. JP. Spencer, for defendant in error.
   Judgment affirmed.


text:
    No. 2823.
    Allen v. Baldwin.
    (Decided May 15, 1894.)
    ERROR to the Circuit Court of Clark county.

      Keifer da Keifer for plaintiff in error.

      Little da Spencer, Snodgrass <& Schnebly and John L. Zimmerman, for defendant in error.
   Judgment affirmed.


text:
    No. 2831.
    Selby v. Taylor.
    (Decided May 15, 1894.)
    Error to the Circuit Court of Morrow county.

      Andreio da Simms, for plaintiff in error.

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


text:
    No. 2854.
    Smith, Adm’r, v. Kniseley.
    (Decided May 15, 1894.)
    Error to the Circuit Court, of Ross county.

      W. II. Safford, for plaintiff in error.

      Albert Douglas, Jr., for defendant in error.
   This court finds that the circuit court erred in overruling the motion of plaintiff in error to dismiss the appeal, taken by said defendant in error, from the court of common pleas to the circuit court. It is theréfore ordered, adjudged and decreed that the judgment of the circuit court be and the same is hereby reversed. And proceeding to render such judgment as the circuit court should have rendered, it is ordered and adjudged, that the motion of plaintiff in error to dismiss said appeal, be and the same is hereby sustained and said appeal is hereby dismissed.


text:
    No. 2869.
    Carver v. Humphrey.
    (Decided May 15, 1894)
    Error to the Circuit Court of Franklin county.

      George B. Okey and Booth da Keating, for plaintiff in error.

      Jones da Jones, for defendant m error.
   Judgment affirmed.


text:
    No. 3710.
    Railway Company v. State ex rel. Humphrey.
    (Decided May 15, 1894)
    Error to the Circuit Court of Cuyahoga county.

      Estep, Dickey, Garr da Goff and O. G. Getzen-Danner, for plaintiff in error.

      T. E. Burton and George L. Dake, for defendant in error.
   Judgment affirmed.


text:
    No. 2393.
    Andrews v. Watson.
    (Decided May 22, 1894)
    Error to the Circuit Court of Mahoning county.

      Sanderson <& Norris, for plaintiff in error. ■

      B. B. Mu/rray and W. S. Anderson, for defendant in error.
   Judgment affirmed.


text:
    No. 2841.
    Methodist Episcopal Church v. Wolcott
    (Decided May 22, 1894.)
    Error to the Circuit Court of Ashtabula county.

      Northway <& Williams, for plaintiff in error.

      A. O. White, for defendant in error.
   Judgment affirmed.


text:
    No. 2863.
    Bulen et al. v. Moses et al.
    (Decided May 22, 1894.)
    Error to the Circuit Court of Franklin county.

      G. J. Mcwriott, for plaintiffs in error.

      James Oaren, Gilbert II. Barger, Flmheel Smith and Allsworth G. Irvine, for defendants in error.
   Judgment affirmed.


text:
    No. 2879.
    McKirnan, Treas., v. Counterman et al.
    (Decided May 22, 1894.)
    Error to the Circuit Court of Mercer county.

      James L. Price and PI. A. Milter, for plaintiff in error.

      Armsfrong & Johnson, for defendants in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 2883.
    Eaton et al. v. Insurance Company et al.
    (Decided May 22, 1894.)
    Error to the Circuit Court of Hamilton county.

      John W. Wolfe and Ilicks <& Malsbary, for plaintiffs in error.

      O. L. Bogle, F. 8. Hastings and O. D. Robertson, for defendants in error.
   Judgment affirmed.


text:
    No. 2403.
    Mannix et al. v. Miller et al.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Hamilton county.

      Follett (& Kelley, Mallon, Ooffey <& Mallon, and Jordan, Jordan c& O' Marra, for plaintiffs in error.

      8. A. Miller and Gustave Tafel, for defendants in error.
   Judgment affirmed.


text:
    No. 2423.
    Mannix et al. v. Miller et al.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Hamilton county.

      Ramsey, Maxioell ás Ramsey and William L. Avery, for plaintiffs in error.

      8. A. Miller and Gustave Tafel, for defendants in error.
   Judgment affirmed.

Dickman, C. J., and Spear, J., dissent as to the judgment on Peterson, Pollock & Co. note.


text:
    No. 2431.
    Cameron v. Village of Winton Place et al.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Hamilton county.

      Matthews da Cleveland, for plaintiff in error.

      Lewis W. Irwin, F. C. Am/pt and Champion <& Williams, for defendants in error.
   Judgment affirmed.


text:
    No. 2444.
    Sater, Adm’r., v. Kocher.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Hamilton county.

      Milton Sater, for plaintiff in error.

      Harmon, Colston, Goldsmith da HoadVy and P. W. Francis, for defendant in error.
   Judgment affirmed.


text:
    No. 2834.
    Campbell v. Woodward.
    (Decided June 5, 1894.)
    ERROR to the Circuit Court of Warren county.

      A. G. McBurney, Joseph D. Miller and Morey, And/í'ews d¡ Morey, for plaintiff in error.

      Seth Broiun and Patrick Gaynor, for defendant in error.
   Judgment affirmed.

Dickman, C. J. and Burket, J., dissent.


text:
    No. 2873.
    Hillerman v. Pounds, Sheriff.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Stecvrns & Kelley, for plaintiff in error.

      E. G. Johnson, Boynton, Hale <& Horr, for defendant in error.
   Judgment affirmed.


text:
    No. 2876.
    Miller v. Atherton.
    (Decided June 5, 1894.)
    ERROR to the Circuit Court of Licking county.

      Killer <& Kibler, for' plaintiff in error. •

      J. A. Elory and J. W. Oiuens, for defendant in error.
   Judgment affirmed.

Williams and Minshall, J.J., dissent.


text:
    No. 2897.
    Gilbert et al. v. Lewis & Romey et al.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Hancock county.

      Whiteley and Pendleton, for plaintiffs in error.

      A. c&J. Blackford and A. J. Owens, for defendants in error.
   Judgment affirmed.


text:
    No. 2903.
    Rush et al. v. Rush et al.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Ashland county.

      McCray c6 Winbigler, for plaintiffs in error.

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


text:
    No. 2905.
    Brubaker v. McGuire.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Ashland county.

      P. M. Campbell, C. P. Winbigler and P. Pwlam, for plaintiff in error.

      J. T Me Cray and J. S. Wertmcm, for defendant in error.
   Judgment affirmed.


text:
    No. 2906.
    Slawson, Adm’r, v. Gardner, Adm’r.
    (Decided June 5, 1894.)
    Error to the Circuit Court of Morrow county.

      Mitchell t& Bruce, for plaintiff in error.

      John A. Garver, for defendant in error.
   Judgment affirmed.


text:
    No. 2921.
    Black v. Herbert et al.
    (Decided June 5, 1894.)
    ■ Error to the Circuit Court of Columbiana county.

      Elmer 'E. Blcich and j. IE. c& II. Morrison, for plaintiff in error.

      II. B. Ilill, for defendants in error.
   Judgment affirmed.


text:
    No. 2371.
    Topliff et al. v. Topliff.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Sherman, Hoyt & Dustin, Virgil B. Kline, Samuel E. WilUamson and A.' II. Davis, for plaintiffs in error.
    Boynton, Hale <& Ilorr and Stevenson Bwrke, for defendants in error.
   Judgment affirmed.


text:
    No. 2399.
    Johnson et al. v. Cromwell et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Seneca county.

      John M. Lemmon, Seney c& Schcmfelberger and Mc-Cauley <& Weller, for plaintiffs in error.

      J. F. Bunn, Noble c& Adams and N. L. Brewer, for defendants in error.
   Judgment affirmed.

Dickman, C. J., and Spear, J., dissent.


text:
    No. 2421.
    Simmons v. City of Toledo et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Lucas county.

      Pratt <& Wilson and Baker, Smith <& Baker, for plaintiff in error.

      0..S. Brumback, F. D. Potter, Jr., F. II. Hurd and Jolvp F. Kumleo', for defendants in error.
   Judgment affirmed.


text:
    No. 2445.
    Burgoyne, Jr., Adm’r, v. Moore.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Hamilton county,

      J. J. QUdden and II. L. Burgoyne, for plaintiff in error.

      Stephens, Lincoln <& Smith and Smith <& Martin, for defendant in error.
   Judgment affirmed.


text:
    No. 2446.
    Rhoner, Adm’r, v. Railroad Company et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Summit county.

      Baird <& Voris, John J. Hall and B. W. Sadler, for plaintiff in error.

      N. D. Tibbals and William E. Talcott, for defendants in error.
   Judgment affirmed.


text:
    No. 2531.
    Gibson v. Bean et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      E. Sotoers, for plaintiff in error.

      P. H Kaiser and Boynton d> IJorr, for defendants in error.
   Judgment affirmed.


text:
    No. 2562.
    Fitch et al. v. Bolton.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      William B. Sanders, James Fitch and Benj. G. Starr, for plaintiffs in error.

      Foster & Lawrence and Boynton & Llorr, for defendant in error.
   .1 udgment affirmed.


text:
    No. 2907.
    In Reapplication of Florence E. Virgien.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Hamilton county.

      Lowrey Jackson, for complainants in error.

      Jordan II. Thomas, for respondents in error.
   Judgment affirmed.


text:
    No. 2929.
    Walling v. Humble, Adm’r.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Pickaway county.

      Festus Walters and A. T. Walling, for plaintiff in error.

      II P. Folsom, for defendant in error.
   Reversed, and judgment for plaintiff in error, on authority of James M. Kerr et al. v. Chandes E. Lydecker, Adm’r ante., 240.


text:
    No. 2935.
    Kirk, Christy & Co. v. Chandler.
    (Decided June 12, 1894.)
    ERROR to the Circuit Court of Trumbull county.

      George P. Hunter and George M. Tiottle, for plaintiffs in error.

      Cha/iles Fillmis, for defendant in error.
   Judgment affirmed.


text:
    No. 2936.
    Koppes et al. v. Cooper et al.
    (Decided June 12, 1894.)
    ERROR to the Circuit Court of Huron county.

      G. T. Stewart, for plaintiffs in error.

      Andreios Bros, and S. A. Wildman, for defendants in error.
   Judgment affirmed.


text:
    No. 2944.
    Hunt et al. v. Hunt et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Belmont county.

      J. II. Collins and Betty <Jk Smith, for plaintiffs in error.

      A. W. Kennon, for defendants in error.
   This court finds there is error in the judgment of the circuit court in this case as appears in the record. It is therefore ordered and adjudged that the judgment of the circuit court be and the same is hereby reversed. And proceeding to render such judgment as the circuit court should have rendered upon said record, this court puts the following construction upon said will and codicil taken together, that is to say: That at the date of the death of said Philip Hunt, May 2, 1882, the amount of said notes at that date should be ascertained and then fifty dollars should be deducted from such amount in behalf of James R. Hunt, and also fifty dollars in behalf of said Jesse W. Hunt, and that after said two sums of fifty dollars each be so deducted, the balance then left of said notes bear interest up to the first day of April, 1889, the elate of the death of said Eleanor Hunt, widow of said Philip Hunt.

It is therefore ordered, adjudged and decreed, that said administrator make said deductions of fifty dollars each in behalf of James R. and Jesse W. Hunt, and then charge interest on said notes up to the first day of April, 1889, and then proceed and make distribution of said estate as provided in said will and codicil.

It is further ordered that said administrator out of the assets of said estate pay all costs of this case in this court, and in the courts below, and this case is remanded to'the circuit court.


text:
    No. 2949.
    Palmer v. Booco.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Fayette county.

      O. A. :Palmer, for plaintiff in error.

      Sandm'son c& Spangler, for defendant in error.
   Judgment affirmed.


text:
    No. 2960.
    Sutter v. Bainbridge et al.
    (Decided June 12, 1894.)
    Error to the Circuit Court of Lorain‘county.

      S. Burke and E. G. Johnson, for plaintiff in error.

      J. O. Rale and P. R. Boynton, for defendants in error.
   Judgment affirmed.


text:
    No. 2271.
    Andrews et al. v. McLaughlin et al.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Sanderson c& Norris, for plaintiffs in error.

      Estep, Dickey, Carr <£ Goff, for defendants in error.
   Judgment affirmed.


text:
    No. 2769.
    Irons v. Dunlap et al.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Ross county.

      C. B. Foster and Albert Douglas, Jr., for plaintiff in error.

      Laxorence T. Neal, for defendants in error.
   Judgment affirmed on the authority of Howard v. Brower, 37 Ohio St., 402; Crabill v. Marsh, 38 Ohio St., 331; Shahan v. Swan, 48 Ohio St., 25.


text:
    No. 2858.
    Insurance Company v. Avers.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Sandusky county.

      Bw'tlett & Wilson, for plaintiff in error.

      Finefrock & Gci/rver, for defendant in error.
   Judgment affirmed.


text:
    No. 3083.
    State v. Iron Company.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      James M. Williams, for plaintiff in error.

      Henderson, Kline c& Tolies, and F. A. Quail, for defendant in error.
   Exceptions to the ruling of the court sustaining the demurrer to the indictment overruled.

Minshall, J., dissents.


text:
    No. 3715.
    State ex rel. Attorney General v. Building and Loan Company.
    (Decided June 19, 1894.)
    Quo Warranto.

      J. IL Richards, Attorney-General, for the relator.
   Judgment of ouster.


text:
    No. 3741.
    State ex rel. Attorney General v. Building and Loan Company.
    (Decided June 19, 1894.)
    Quo Warranto.

      J. K. Richmrls, Attorney-General, for the relator.
   Judgment of ouster.


text:
    No. 3819.
    Martin, Adm’r, v. Railway Company.
    (Decided June 19, 1894.)
    Error to the Superior Court of Cincinnati.

      Oliver B. Jones and Ilvram D. Peek, for plaintiff in error.

      Ramsey, Maxioell da Ramsey, for defendant in error.
   Judgment affirmed.


text:
    No. 4040.
    Electric Light and Power Company v. Street Railway Company et al.
    (Decided June 19, 1894.)
    ERROR to the Circuit Court of Lucas county.

      Doyle, Scott d Lewis and King d Tracy, for plaintiff in error.

      Hurd, Brumback d Thatcher, Baker, Smith d Baler and John F. Kumler, for defendants in error.
   Judgment reversed on the authority of The Kinsman St. R. R. Co. v. The Broadway and Newburg St. R. R. Co., 36 Ohio St., 239; The Toledo Consolidated St. Ry. Co. v. The Toledo Electric St. Ry. Co., 50 Ohio St., 603.

Petition dismissed and judgment for the plaintiff in error.


text:
    No. 3538.
    Bushnell v. State.
    (Decided June 22, 1894.)
    Error to the Circuit Court of Hamilton county.

      Shay d Logan, for plaintiff in error.

      John O. Schwartz, Prosecuting Attorney, and J. K. Pichards, Attorney- General, for defendant in error.
   On consideration, it is ordered and adjudged by this court that the judgment of the Court of Common Pleas, together with 'the judgment of the affirmance of the Circuit Court, be and the same is hereby reversed for errors appearing in the record, and that this case be remanded to the Court of Common Pleas for a new trial, and for further proceeding’s according’ to law.


text:
    No. 3807.
    Frankel et al. v. Davy, Aud., et al.
    (Decided June 22, 1894.)
    ERROR to the Circuit Court of Mahoning county.

      J. A. L. Oam/pbell and M. A. Norris, for plaintiffs in error.

      Kennedy d Graham, for defendants in error.
   Judgment reversed on the authority of Metz v. Hagerty, ante, 517.


text:
    No. 3808.
    Gorltz, etc., v. Davey, Aud., et al.
    (Decided June 22, 1894.)
    Error to the Circuit Court of Mahoning counter.

      Norris c& Campbell and T M. Sanderson, for plaintiffs in error.

      Kennedy <& Graham, for defendants in error.
   Judgment reversed on the authority of Metz v. Hagerty, ante, 517.


text:
    Schrader et al. v. State.
    (Decided October 2, 1894.)
    Error to the Circuit Court of Monroe county.

      J. P. Spriggs & Son and Hunter, Mallory & Jeffers, for plaintiffs in error.

      George G. Jennings and George B. Okey, for defendant in error.
   Judgment affirmed on the authority of Calvin v. The State, 12 Ohio St., 60; Proseck v. The State, 38 Ohio St., 606; Clark v. Petty, 29 Ohio St., 452.


text:
    No. 3712.
    Railroad Company v. Strubble.
    (Decided October 2, 1894.)
    Error to the Circuit Court of Wood county.

      B. P. Marshal and F. A. Baldioin, for plaintiff in error.

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


text:
    No. 3795.
    Davies, Adm’r, v. Railroad Company.
    (Decided October 2, 1894.)
    Error to the Circuit Court of Belmont county.

      W. T. Lewis and L. Dcmforcl, for plaintiff in error.

      1V. K Kennon and J. M. Tyler, for defendant in error.
   Judgment affirmed.


text:
    No. 3908.
    Kelly et al. v. Briggs et al.
    (Decided October 2, 1894.)
    Error to the Circuit Court of Marion county.
    TÉ Z. Davis, for plaintiffs in error.

      8. G. Kingman and MeWeal <& Wolforcl, for defendants in error.
   Judgment affirmed.


text:
    No. 3879.
    Andrews Brothers Company v. Rudge, Adm’r.
    (Decided October 9, 1894.)
    Error to the Circuit Court of Mahoning county.

      Thomas W. Sanderson, for plaintiff in error.

      William A. Maline and A. J. Woolf for defendant in error.
   Judgment affirmed.


text:
    No. 3833.
    Cook, Adm’x, v. Railway Co.
    (Decided October 9, 1894.)
    Error to the Circuit Court of Athens county.

      Oharles Townsend and L. M. Jewett, for plaintiff in error.

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


text:
    No. 3920.
    Monypeny v. Metz.
    (Decided October 9, 1894.)
    Error to the Circuit Court of Franklin county.
    ' J. T. Holmes, George 8. Peters and II II. McMahon, for plaintiff in error.

      Heitmann té Friesner, and James A. Miles, for defendant in error.
   Judgment affirmed.


text:
    No. 3976.
    Railroad Company v. Koechley.
    (Decided October 9, 1894.)
    Error to the Circuit Court of Huron county.

      John M. Lemmon and Scomuel F. Williamson, for plaintiff in error.

      8. M. Young and George Cook Ford, for defendant in error.
   Judg-ment affirmed.


author: Burket, J.

text:
    State ex rel. v. Archibald, Sheriff.

      Court of insolvency — Power to establish — Election of judge— Pleading — Act of May 21,1894, (91 Ohio Laws, 844).

    1. There is nothing in either the seventh or eighth sections of the fourth article of the constitution of this state, to prevent the establishment of a court of insolvency under the act of May 21, 1894, entitled “An act to _ establish a court of insolvency in counties containing a city of the first grade of the first class, and for the relief of the probate court in such counties.” 91 Ohio Laws, 844.
    2. It does not appear on the face of said act, nor when read in connection with. other acts in pari materia, that the date therein fixed for the election of the judge of the court of insolvency, is an error or mistake; neither does it appear that it was the intentioii of the legislature that such judge should be elected on the day of the general election in November, 1894.
    3. The force and legal effect of a statute can not be altered or changed by averment in a pleading.
    (Decided October 16, 1894.)
    Mandamus.
    The petition in this case avers that Mr. Fay is an elector of Hamilton county and interested in the election of a judge of the court of insolvency. That the defendant, who is sheriff of said county, refuses upon request to issue his proclamation for the election of a judge of said court of insolvency in said county of Hamilton at the general election to he held on the first Tuesday after the first Mon-in November, A. D. 1894, and that said sheriff claims that the election for such judge is to be held on the first Tuesday after the second Monday in November, 1894.
    The relator gives a copy of the title and first and second sections of the act of the general assembly passed May 21, 1894, establishing the court of insolvency, and avers that it was the intention of the legislature that the election should be held on the first Tuesday after the first Monday in November, 1894, and not on the first Tuesday after the' second Monday in November as provided in said act.
    To this petition the sheriff demurred, and the case was submitted to this court upon such demurrer.

      Thomas McDougall, for relator.
    Spiegel, Bromwell c& Foralcer, for defendant.
   Burket, J.

In argument it is claimed that the act of May 21, 1894,-entitled “An act to establish a court of insolvency in counties containing a city of the first grade of the first class, and for the relief of the probate court in such counties, ”91 Ohio Laws, 844, is unconstitutional, for the reason that said act attempts, as is claimed, to confer jurisdiction on said court of insolvency and upon the judge thereof, which by the constitution belongs exclusively to the probate court.

The act in question, by its first section, establishes the court of insolvency, to consist of one judge to be- elected by the electors of such county.

By the ninth section, the court of insolvency is given original jurisdiction in all cases, matters and things relating to the administration of assignments in trust for the benefit of creditors. And it is therein provided that the court of insolvency, shall have, in every respect, the same jurisdiction, possess the same powers, discharge the same duties, and incur the same penalties as are now or may hereafter be enforced or enjoined by the constitution and laws of the state upon the judge of the probate court. The judge of the probate court is authorized to transfer to the court of insolvency any and all cases now pending in the probate court arising under the act regulating the mode of administering assignments in trust for the benefit of creditors; and all laws now in force or that may hereafter be enacted, regulating the mode and manner of proceedings in such cases by the probate court, shall be held and deemed to extend to the court of insolvency.

By the tenth section the probate judge is authorized to transfer to the court of insolvency in his county, any other case or cases which in his opinion the business of the probate court may require, such case or cases when so transferred to be thenceforth considered in the court of insolvency, and to be proceeded in as if the same had been originally commenced in that court, and after such removal such case shall not be considered in the probate court, and all laws now in force or hereafter enacted, regulating the-mode.and manner of procedure in- such cases by the probate court, are to be held and deemed to extend to the court of insolvency, unless the same are or shall be plainly inapplicable.

By the twelfth section,, all laws conferring powers, authority and jurisdiction in cases and proceeding’s, upon the probate court, giving such court power to hear and determine cases and to preserve order and punish contempt, regulating’ the practice and forms of process, prescribing the force and effect of the judgments, orders and decrees, and authorizing or directing the execution thereof, are to be held and deemed to extend to the court of insolvency as fully as they extend to the probate court, unless the same are - inconsistent with this act, or plainly inapplicable.

The fourteenth section provides that in case of the absence or disability of the judge of the probate court, that court may be held by the judge of the court of insolvency.

■ The fifteenth section provides that in case of the absence or disability of the judge of the court of insolvency, such court may be held by the probate judge..

These are the only sections pointed out as conflicting with the constitution of this state.

Is any of the power, jurisdiction, authority or duty, by this act conferred upon the judge of the court of insolvency, within the exclusive jurisdiction of.the .probate court under the constitution?

Section eight, of article IV, of the constitution is in these words : “The -probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriag’e licenses, and for the sale-of land by executors, administrators and guardians, and such other jurisdiction, in any county or counties, as may be provided by law.”

While this section gives jurisdiction to the probate court in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, it does not say that such jurisdiction shall be exclusive. And the various decisions of this court holding such jurisdiction to be exclusive, are based upon the statute which expressly makes the jurisdiction in that regard exclusive. We find no case holding that this section of the constitution confers exclusive jurisdiction upon the probate court.

In the case of Hagany v. Cohnen, 29 Ohio St., 82, this court held that the act -of January 9, 1871, conferring jurisdiction upon courts of common pleas .to .appoint guardians of the property of persons incapable of taking care of and preserving their property by reason of intemperance and habitual drunkenness, is not in conflict with this section of the constitution. From that case it clearly appears that this court, as then constituted, did not reg’ard the jurisdiction of probate courts exclusive as to the appointment of guardians.

That the g’eneral assembly does not construe said section of the constitution as conferring ex-elusive jurisdiction, is shown by section 535, Revised Statutes, in which the jurisdiction, in all probate and guardian matters, in which the probate judge is interested, is conferred upon the court of common pleas. This provision was in the statute of 1853 organizing the probate court. In 1854 such jurisdiction was transferred from the court of common pleas to the probate judge of an adjoining county. In 1863 it was restored to the court of common pleas, where it has ever since remained. A like legislative construction is found in section 524, which confers jurisdiction upon the judges of the court of common pleas to take proof of wills -and approve bonds in case of sickness or unavoidable absence of the probate judge.

But as this question of exclusive jurisdiction under the constitution is one of great importance, and was not fully argued, it is thought best not to pass upon it in this case. Aside from that consideration, it is pérfectly clear that the general assembly has ample power, under the constitution, to establish a court of insolvency, and to confer upon such court jurisdiction in the administration of assignments in trust for the benefit of creditors; to make inquests of the amount of compensation to-be made to the owners of real estate, when appropriated by corporations; to hear and determine cases for the sale of lands by executors, administrators and guardians ; for the completion of real contracts on petition of executors and administrators ; in habeas corpus; and to grant marriage licenses, and licenses to ministers of the gospel to solemnize marriages.

The act in question is for the relief of the probate court, and as the probate court now has jurisdiction of .the matters just enumerated, the transferring of such matters to the court of insolvency would g’reatly relieve the probate court, even though it should retain exclusive jurisdiction in probate, testamentary and guardian matters. There is therefore a clear field and ample business for the court of insolvency without invading this alleged exclusive jurisdiction of the probate court. If it should be found that some of the powers, authority or duties conferred by this act, are too broad, and invade any exclusive jurisdiction of the probate court, it would be held as to the excess, that it is “plainly applicable,” as expressed at the end of the 10th and 12th sections.

Thus pruned down by the words “plainly inapplicable,” there is abundant warrant for the establishment of the court of insolvency, and the act is not in conflict with either the 7th or 8th section of the fourth article of the constitution.

In the next place it is urged by counsel for relator, that the election for the judge of the court of insolvency should be held on the first Tuesday after the first Monday in November, 1894, and not on the first Tuesday after the second Monday in November.

The second section of the act is as follows :

“Section 2. The first election for such judge shall be held on the first Tuesday after the second Monday in November, A. D. 1894, and shall be conducted in the same manner and governed by the same laws that are now in force or may' hereafter be enacted regulating the election of judges in this state. His term of office shall commence on the ninth day of February, A. D. 1895, and shall continue for the term of five years, and a successor shall be elected on the first Tuesday after the second Monday in November, A. D. 1899,' and every five years thereafter. And in ease the office of any judge shall become vacant before the expiration of the regular term for which he shall havé’been elected, the vacancy shall be filled by appointment of the governor, until the office shall be filled by a successor duly elected and qualified. And in' case a successor shall not have been previously elected, such successor shall be elected on the first Tuesday after the second Monday in November that next occurs more than thirty days after the vacancy shall have happened.”

By this act the general assembly established a new court and provided for the election of a judge thereof; and it clearly had the power to fix the time and manner of such election. As to the manner, it provided that such election should be conducted in the same manner, and governed by the same laws, that are now in force, or may hereafter be enacted regulating the election of judges in this state. Judges in this state are elected on the first Tuesday after the first Monday in November, and as the election of the judge of the court of insolvency is to be governed by the same laws as govern the election of other judges, it would follow that the election for this new judge should be held 'on the same day,' were it not otherwise plainly and expressly provided in this act.

A plain, specific and definite provision in a statute, cannot be overcome by a general indefinite reference to another act.

It is urged that the first Monday in November was intended, and that the second Monday is an error or mistake. The second Monday is mentioned three times in this second section. The election for 1894 is to be held on the first Tuesday after the second Monday in November, the sueeessor to be elected in 1899, is to be elected on the same day of the month, and any vacancy which may occur is to be filled by election to be held on the same day in November. Thus repeatedly naming the second Monday, indicates design rather than error or mistake.

The petition in effect avers that the second Monday is an error or mistake of the legislature, and that the first Monday was intended. To this petition there is a general demurrer. The demurrer does not admit the truth of the allegation as to the error or mistake, nor as to the intention of the legislature, because the force and legal effect of a statute cannot be altered or changed by averment in a pleading.

If there is no error or mistake in this statute, it must be construed and enforced according to its letter. If there is such error or mistake, and the intention of the legislature can be ascertained, the error or mistake should be corrected by the court.

That courts have power to correct errors and mistakes in -statutes, cannot be doubted; but such errors and mistakes must be manifest beyond doubt, either on the face of the act, or when read in connection with other statutes in pari materia.

When it thus appears beyond doubt that a statute, when read literally as printed, is impossible of execution, or will defeat the plain object of its enactment, or is senseless, or leads to absurd results or consequences, a court is authorized to regard such defects as the result of error or mistake, and to put such construction upon the statute as will correct the error or mistake, by carrying out the clear purpose and manifest intention of the legislature. The error or mistake, as well as the proper correction, must appear beyond doubt from the face of the act, or when read in connection with other acts in pari materia.

The supreme court of Pennsylvania states the rule in these words: “The power is undoubted, but it can only be exercised when the error is so manifest, upon an inspection of the act, as to preclude all manner of doubt, and when the correction will relieve the sense of -the statute from actual absurdity, and carry out the clear purpose of the legislature. ’ ’ Lancaster Co. v. Frey, 128 Pa. St., 593.

An eminent text writer states the rules thus:

‘ ‘ The power to make such corrections is well es- ‘ tablished, but it is exercised only where the error is so manifest as to leave no doubt of the judicial mind as to the actual intent of the legislature. ” 23 Am. & Eng. Ency. of Law, 422.

The following cases are to the same effect: Jenks v. Langdon, 21 Ohio St., 362; Tappan v. Tappan, 6 Ohio St., 64; Cohen v. Cleveland, 43 Ohio St., 195; Sawyer v. State ex rel. Horr, 45 Ohio St., 343; Haney v. State, 34 Ark, 263; People v. Hoffman, 97 Ill., 234; Moody v. Stephenson, 1 Minn., 401; Graham v. Railroad Co., 64 N. Car., 631; Ex parte Hedley, 31 Cal., 108; Burch v. Newbury, 10 N. Y., 374; Lancaster Co. v. Frey, 128 Pa. St., 593; People v. King, 28 Cal., 265.

The ease at bar does not come within the prin- • ciple of any of the above cases.

The reasoning of the judge delivering the opinion in Sawyer v. State ex rel. Horr, 45 Ohio St., 343, does not support, but is against the claim of the relator in this case. The act there in question had few, if any, characteristics in common with this act.

That act was an amendment to a general statute. This one is an independent act. There the registration of voters would be incomplete on the day fixed for the election. Here the registration will be full and complete. There, there was no machinery provided for holding the election. Here the machinery is full and ample. There other circuit judges were to be elected at the general election in November. Here there is no other judge of the court of insolvents to be elected in this state. There the act could not be executed for want of election laws. Here it can be fully and effectually executed according to its very letter»

The act here in question shows no error or mistake, either on its face or when read in connection with other acts in pa/ri materia; it can be carried into effect according to its letter; the object of the act — the relief of the probate court — will be as effectively accomplished if the election is held on the thirteenth as it would be if held on the sixth of November; no change will be made in the beginning or ending of the term of the judge. There is, therefore, no good reason for holding that there is an error or mistake in the act.

While a court might see no good reason for holding two elections only one week apart, the general assembly may have had substantial and satisfactory reasons therefor.

Even granting that there may be a latent mistake in the act, yet, in case of so much doubt, it would make a dangerous precedent for the judiciary to undertake its correction. It is safer to endure temporary inconvenience, than to lay the foundation for future judicial usurpation.

The demurrer is sustained and the petition diS' missed.


author: Williams, J.

text:
    Moody v. Insurance Company.

      Fire insurance policy — Construction—Pleading—Performance of conditions precedent — Breach of conditions subsequent — Occupancy of building defined.

    1. A policy of fire insurance -which, has been regularly issued, and has not expired, or been canceled, must, in the absence of a showing to the contrary, be treated as a valid and effective policy, upon which the assured is prima facie entitled to recover. when the loss occurs, and the requisite steps to establish it have been taken.
    2. The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giving notice and making proof of the loss; furnishing the certificate of the magistrate when required by the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, or doing, or omission to do some act, are matters of defense, and to be available must be pleaded, and their breach alleged.
    3. When the action is upon such a policy, issued since the passage of the act of March 5, 1879, “to regulate contracts of insurance of buildings and structures” (Revised Statutes, sections 3643, 3644), and there has been no intentional fraud on the part of the insured, an answer which alleges the breach of a condition that the insurer shall not be liable “ for loss or damage in or on vacant or unoccupied buildings unless consent for such vacancy or non-occupancy be indorsed” on the policy, is insufficient unless it is also averred that the risk was thereby increased; and if the allegations of the answer be put in issue, whether the building insured became vacant, or unoccupied, or the risk was increased, are questions for the jury, upon both of which the defendant has the burden of proof.
    4. To constitute occupancy of a buildiug insured as a “dwelling house,” it is not essential that it be put to all the uses ordinarily made of a dwelling, or to some of those uses all .of the time, or that the whole of it be employed in that use; nor will the building be considered as unoccupied upon its ceasing to be used as a family residence, where the household goods remain ready for use, and it continues to be occupied by one or more members of the family who have access to the entire building for the purpose of caring for it, and who do care for it and make some use of it as a place of abode.
    (Decided October 16, 1894.)
    Error fco the circuit court of Ashtabula county.
    The original action was upon .a policy of insurance, by the terms of which the defendant insured the plaintiff to the amount of five hundred dollars, against loss or damage by fire, on his dwelling house in Ashtabula county, for the period of three years from the 1st day of January, 1887. ■
    The building was totally destroyed by fire on the 28th. day of September, 1888. After alleging the issuing of the policy, and the destruction of the property, the petition avers that the plaintiff duly performed all of the conditions of the policy on his part to be performed; that he gave the defendant' due notice, and furnished proof of the loss as required by the policy; but that the defendant refused to pay the loss, for the amount of which the petition prays judgment. The answer denies that the plaintiff performed all of the conditions of the policy on his part to be performed, and pleads for a second defense — “That it is one of the conditions of said policy that no liability shall exist thereunder for loss or damage in or on a vacant or unoccupied building, unless consent for such vacancy or unoccupaney be indorsed on said policy; and the defendant avers that the building described in its said policy issued to the plaintiff was vacant and unoccupied at the date of the fire which destroyed or injured the same, and no consent of this defendant for such non-occupancy was indorsed on its said policy; that said vacancy and non-occupancy had existed for several months prior to the said fire, and by reason of the premises defendant’s said policy became inoperative and invalid.”
    The allegations of the second defense were controverted by reply, and a jury was empannelled to try the issues. The plaintiff testified in his own behalf to the total destruction of the property by fire, the notice thereof to the defendant, and proof of the loss. On his cross-examination, counsel for the defendant sought to show that at the time of the fire the building was unoccupied. The plaintiff’s counsel objected to that line of cross-examination, but his objection was overruled, and he excepted. The court further held that under the issues, the burden was upon the plaintiff to prove that when the fire occurred the building was occupied. To that ruling the plaintiff excepted. Upon the conclusion of the plaintiff’s evidence, counsel for the defendant moved the court to instruct the jury to return a' verdict in its favor, because the’evidence failed to show occupancy of the property when the loss occurred. The court sustained the motion and instructed the jury accordingly. The evidence, and stipulation of the policy on that subject will be referred to in the opinion. Judgment was rendered on the verdict so returned, and that judgment was affirmed by the circuit court; to reverse which, error is prosecuted here.

      Edward H. Fitch and F. R. Smith, for plaintiff in error.
    Section 5091 of the Revised Statutes, provides for pleading conditions precedent.
    In Insurance Co. v. McGookey, 33 Ohio St., 555, it is held that this form of pleading is sufficient. I

      also cite this case upon the proposition that the condition of the policy as to vacancy was a condition subsequent, and not precedent, and must be plead as a defense, and if relied on, the burden of proving it must be on the defendant, 27 Ohio St., 424; 1 Handy, 242; Thompson v. Insurance Company, 43 Wis., 463.
    In an action on an insurance policy the petition need notneg-ative conditions which avoid the policy, nor aver the performance or non-performance of conditions subsequent. London & L. Fire Ins. Co. v. Crunk, 23 S. W., 140; 91 Tenn., 376.
    There was evidence, which we think was sufficient to prove, but at all events clearly tending to prove, that the house was not vacant or unoccupied at the time of the fire.
    It would seem that it could not be questioned that there was such evidence, and at least some evidence that it was the duty of the court to submit to the jury, under the repeated holdings of the supreme court of Ohio. 40 Ohio St., 108; 28 Ohio St., 9; 18 Ohio, 335; Hughes v. Leban, 1 C. C. Rep., 9; 64 N. H., 140.
    We claim that in any event this was a question of fact and not of law. It was for the jury and not for the court, and like any other fact where there was any pertinent evidences at all, the court was required to submit it to the jury under proper in-instructions, and had not the power or authority to treat it as a question of law which the court itself could decide. Dick v. Railway, 38 Ohio St., 393; 12 Cushing (Mass.), 169; Stockstill v. Railway, 24 Ohio St., 86; White v. Insurance Co., 83 Me., 279; Luce v. Ins. Co., 105 Mass., 297.
    The court erred in overruling the motion of the plaintiff for a new trial, and in rendering’ judgment for the defendant company.
    In this connection we claim that the verdict is not sustained by the evidence.
    That the evidence introduced is sufficient to show, within the requirements of this policy, that said house was not in fact vacant and unoccupied, but was in fact and in law an occupied building. Doud v. Ins. Co., 141 Pa St., 47; Ins. Co. v. Kepler, 95 Pa. St., 494.
    This house was not unoccupied or vacant as those words are used in a legal sense, or in the common acceptance, or as defined by lexicographers. Bouvier’s Law Dictionary; 92 Ill., 64; 78 Ill., 167; Flanders on Ins., 283, 290, and cases cited; Lancy v. Insurance Company, 82 Me., 494; White v. In. Co., 83 Me., 279; Doud v Insurance Company, 141 Pa. St., 47; 59 Me., 582.

      A. C. White, for defendant in error.
    The evidence as to the manner in which the building was used at the time of the fire did not tend to show that it was occupied within the meaning of the policy. Therefore, the question of occupancy was for the court. Berry v. The State, 31 Ohio St., 219; Improvement Co. v. Munson, 14 Wall., 448.
    There was no conflict in the evidence and no dispute over the facts. The whole question was for the court. Arcade Hotel Co. v. Wiatt, 44 OhioSt., 40; Bossenhorst v. Wilby, 45 Ohio St. 333; Collins v. Railway Co.,49 N. W. R., 848; Myer et al. v. Houck et ux., 52 N. W. R., 235.
    The house was not occupied within the meaning of the policy. Wells v. Insurance Company, 42 Ohio St., 519; 85 N. Y., 169; 50 N. J. L., 427; 78 Ill., 167; 65 N. H., 401; 122 Mass., 298; 136 Mass., 491; 3 N. W., 500; 25 N. W., 785; 28 N. W., 462; 39 N. W., 87; 47 N. W., 350; 53 N. W., 448.
   Williams, J.

1. The policy of insurance upon

which the plaintiff sought to recover in the action below, provides, among its many conditions, that “no liability shall exist under this policy for loss or damage in or on vacant or Unoccupied buildings, unless consent for such vacancy or non-occupancy be indorsed hereon. ” The answer alleges that the house insured by the policy was burned while it was unoccupied; and, though that allegation was denied, the court required the plaintiff to take the burden of proving that the building was occupied. That action of the court is assigned for error, and presents the first question for consideration.

The court went upon the theory that the provision of the policy above quoted constitutes a condition precedent, the performance of which was put in issue by the denial of the averments of the petition. In an action on a policy of fire insurance the plaintiff may plead generally, as was done in this case, the due performance of all the conditions precedent, on his part, and when the allegation is controverted the burden is undoubtedly upon him to show such performance. But we do not understand the clause of the policy in question to be a condition of that kind. An unexpired policy of fire insurance, which has been regularly issued, and remains uncanceled, must, in the absence of a showing to the contrary, be regarded as a valid and effective policy, upon which the assured is prima facie entitled to recover when the loss occurs, and the steps necessary to establish it have been taken; and hence, the conditions precedent in such a policy include only those affirmative acts on the part of the assured, the performance of which is necessary in order to perfect his right of action on the policy, such as giving notice and making proof of the loss, furnishing’ the certificate of a magistrate when required by the terms of the policy, and, it may be, in some cases, other steps of a like nature. Those clauses usually contained in policies of insurance, which provide that the policy shall become void, or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event, or the doing, or omission to do some act, are not in any proper sense conditions precedent. If they may be properly called conditions, they are conditions subsequent, and matters of defense, which, together with their breach, must be pleaded by the insurer to be available as a means of defeating a recovery on the policy; and the burden of establishing’ the defense, if controverted, is, of course, upon the partyvpleading it. This precise question has not heretofore received the consideration of this court, but it has been raised in other states under various clauses of insurance policies. In the case of Lounsbury v. Insurance Co., 8 Conn., 459, the question was presented in an action on a policy of fire insurance which provided ‘ ‘that the insurers would not be liable for loss or' damage, happening by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power; also, that if the building insured should be used, during the term of insurance, for any occupation, or for the purpose of storing therein any goods, denominated hazardous or extra-hazardous in the conditions annexed to the policy, (unless otherwise specially provided for) the policy should cease and have no effect. ’ ’ It was held, these were not conditions precedent to the plaintiff’s right of recovery, but were matters of defense to be taken advantage of by pleading. The court in that case say: “All these conditions, if such they may be called, are inserted in the policy by way of proviso, and not at all as conditions precedent. They are introduced for the benefit of the defendants; and they must be taken advantage of, if at all, by pleading. ’ ’ In Newman v. Insurance Co., 17 Minn., 123, it is held that: “Under a stipulation in a policy, that if the risk be increased by any means, whatever, within the control of the insured, the insurance shall be void, the assured is not to plead and prove, affirmatively, thatfit has not been thus increased, but if it has, it is a matter of defense to be alleged and proved by defendant.” And in Daniels v. Insurance Co., 12 Cush., 426, Chief Justice Shaw lays down the rule in general terms, that if the insurers rely “either upon the falsity of a representation, or the failure to comply with an executory stipulation, it is upon them to prove it; and it is a question of fact for the jury, in either aspect.”

The following among other cases hold the same doctrine: Insurance Co. v. Carpenter, 4 Wis., 20; Mueller v. Insurance Co., 45 Mo., 84; Insurance Co. v. Crunk, 91 Tenn., 376; Spencer v. Insurance Association, 37 N. E. Rep., 617; Insurance Co. v. Sisk, 36 N. E. Rep., 659.

Any other rule would be highly inconvenient, if not impracticable.- The clause of the policy under which the defendant sought to be relieved from liability is but one of a great number of conditions, for the violation of any of which the insurer might also claim to be relieved; and if the issue raised by the denial that the plaintiff performed all the conditions precedent on his part, imposed upon him the burden of proving there had been no violation of that particular clause, it also imposed upon him the burden of proving there was no breach of either of the other conditions, and for want of such proof as to either, he must fail, although in fact neither was the subject of any real controversy. This would be an unreasonable requirement, not only operating as a hardship on the plaintiff, but in most cases unnecessarily prolonging the trial. Especially should the rule be as we have stated it, under our code system of pleading, a prominent object of which was to so simplify the issues, that the evidence mig’ht be confined to the real matter of dispute, thus expediting the trial of causes and facilitating the business of the courts. The vacancy, or want of occupancy of a building is as much an affirmative fact, as its occupancy, and as capable of proof; and the burden upon that subject, under the issues in this case, was, we think, upon the defendant.

2. The court also erred in its direction to the jury. As we have seen, it was not incumbent upon the plaintiff to show the house was occupied; the burden being upon the defendant to prove that it was vacant and unoccupied. Beside, the evidence before the jury fairly tended to prove occupancy of the building within the meaning of the policy. It showed that the plaintiff, who was the owner of the property, occupied the building as a dwelling house when the policy was issued, and until the following March, when he rented it and placed his tenant in possession, who continued therein until the next spring. It was then let to another tenant who moved his household goods into it; and those used by his married daughter and son-in-law for housekeeping were also placed in the house. The goods were such as are generally used by..a family for housekeeping.' Members of both families occupied the house to a limited extent. They slept there occasionally, and did some work there, such as quilting. Some member of the family was there every day, sometimes only once, but often twice a day, and the tenant and his family so used the property, had full control of it, ■ and carefully watched and eared for it up to the time it was burned, though they usually slept and took their meals in a house near by, which belonged to the tenant.

What constitutes vacancy or non-occupancy of a building, is a question of law; butwhéther a building is vacant .or unoccupied, or not, within the meaning of the law, is a question of fact for the jury. To constitute occupancy of a dwelling house, it is not essential that it be continuously used by a family. The family may be absent from it for health,’ pleasure, business or convenience, for reasonable periods, and the house will not, on that account, be considered as vacant or unoccupied. In the case of the Insurance Co. v. Kiernan, 83 Ky., 468, it is held, “that the condition in a policy on’ a house described ‘ as occupied as a family residence, ’ containing a condition that it shallbeeome void if the house ‘shall become vacant or unoccupied, ’ the words ‘ occupied as a family residence ’ must be regarded as but a. representation as to the then use of the house, and the condition as but an undertaking- by the insured that thé house shall hot be without an occupant during the time covered by the policy; and the condition is not broken or violated or the policy become void ‘ upon the house ceasing- to be occupied’ as a family residence, it continuing to be occupied by one person, who had access to the entire building for the purpose of caring for it.” The same doctrine is declared in Richards on Insurance, section 56, and in May on Insurance, section 247, where the authorities on the subject are cited. No rule is better settled than that such conditions in policies should receive a strict construction, and, when ambiguous, be construed most strongly against the insurer, for the reason, that they are prepared by, and inserted for the benefit of the insurer.

The condition o.f the policy in the present case . is not more specific, or comprehensive, in its requirements concerning the occupancy of the building insured, than the one involved in the Kentucky case. It declares that no liability shall exist under the policy for loss or damage to an unoccupied building, but does not stipulate that the insured building shall be used as a dwelling, or require any particular mode of occupancy. Strictly construed, occupancy for any lawful purpose would satisfy the condition, and preserve the obligation of the policy. At all events, it was not essential that the building should be put to all the uses ordinarily made of a dwelling, or to' some of those uses all of the time; nor that the whole house should be subjected to that use. Nor does it follow as a matter of law, that a dwelling house is to be considered as unoccupied, merely because it has ceased to be used as a family residence, where the household goods remain ready for use, and it continues to be occupied by one or more members of the family who have access to the entire building for the purpose of earing for it, and -who do care for it, and make some use of it as a place of abode.

Again, we think the court erred in the instruction given the jury, for another reason. The policy was issued since the adoption of the act of March 5, 1879, “to regulate contracts of insurance of buildings and structures” (Revised Statutes, sections 3643, 3644), which provides that “in the absence of any change increasing the risk without the consent of the insurer, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurers receive a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid.” The statute being in force when the policy was issued, became a part of the contract of insurance, and controls its construction and operation. The condition of the policy in regard to the occupancy of the building is therefore so qualified by the statute, that, in the absence of intentional fraud on the part of the insured, to make the change from occupancy, to disuse or want of occupancy available as a defense, it must appear that the risk was thereby increased. Insurance Co. v. Leslie, 47 Ohio St., 409. It is well settled that the risk is not necessarily, or prima facie increased, by the insured property becoming vacant or unoccupied. Biddle on Ins., sec. 654, May on Ins., 247; Richards on Ins., p. 166; Insurance Co. v. Hannawold, 37 Mich., 103. Baker v. Insurance Co., 46 Mich., 610; Lockwood v. Ins. Co., 47 Conn., 553. And, therefore, when the insurer pleads such change as a defense to an action on the policy, the answer must allege that the risk was increased on account of it, unless the insured was guilty of fraud. No doubt the vacation or disuse of an insured building may in some cases materially increase the risk; in others it may not increase it any; and in some instancesthe circumstances may be such that the risk is lessened. Whether it is increased or not, in any case, must depend upon the situation’and surroundings of the building, the use which had been made of it, the care taken of it, and all the other circumstances, and is a question for the jury when put in issue. The second defense in the answer in this case is defective, in that it fails to allege the risk was increased by the change resulting from the breach of the condition pleaded; it tendered no material issue. That defense being insufficient, and the plaintiff having given evidence of the performance of the conditions precedent on his part, he might properly have had the verdict; no claim being made that he had been guilty of any intentional fraud.. Por each of the errors pointed out, the judgment of the common pleas, and of the circuit court will be reversed and the cause remanded.

Judgment accordingly.