text:
    No. 9947.
    The Toledo, Bowling Green & Southern Traction Co. v. Holsinger et al., Partners, et al.
    Decided October 8, 1907.
    Error to Circuit Court of Hancock county.

      Messrs. J. A. & E. V. Bope, for plaintiff in error.

      Messrs. Axline & Betts; Mr. W. L. Carey, Jr., and Messrs. Ross & Kinder, for defendants in ej;ror.
   Judgment reversed on authority of Klunk v. Hocking Valley Railway Co., 74 Ohio St., 125.

Price, Crew, Summers and Davis, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10393.
    Emerson v. The Forest City Railway Co. et al.
    Decided October 8, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Messrs. Garfield, Howe & Westenhaver. and Mr. Gilbert H. Stewart, for defendants in error.
   Judgment affirmed.

Sha'uck, C. J., Price, Crew, Sum:mers, Spear and Davis, JJ., concur.


text:
    No. 10450.
    The Aetna Life Insurance Co. v. Dorney, an Infant, by etc.
    Decided October 8, 1907.
    Error to the Circuit- Court of Hancock county.

      Messrs. Poe & Poe, for plaintiff in error.

      Messrs. Bope & Bope and Messrs. Blackford & Blackford, for defendant in error.
   Judgment of the circuit court reversed and that of common pleas affirmed.

Sitauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10470.
    The Wabash Railroad Co. v. Beaudry, Admx.
    Decided October 8, 1907:

      Error to Circuit Court of Lucas county.

      Messrs. Smith & Beckwith, for plaintiff in error.

      Mr. O. S. Brumback, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9927.
    The Village of Newcomerstown v. Dickerson.
    Decided October 15, 1907.
    Error to Circuit Court of Tuscarawas county.

      Messrs. Lindsay & Murphy, for plaintiff in. error.

      Mr. J-. H. Mitchell, for defendant in error.
   Judgment affirmed.

Price, Spear and Davis, JJ., concur.


text:
    No. 10280.
    The State, ex rel. Will v. Taylor, Prosecuting Attorney, et al.
    Decided October 15, 1907.
    Error to Circuit Court of Franklin county.

      Mr. J. S. Gill and Mr. M. E. Thrailkill, for plaintiff in error.

      Mr. G. S. Peters; Mr. E. L. Taylor, Jr.; Mr. A. T. Seymo%ir and Mr. K. T. Webber, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10346.
    Hieatt v. Simpson et al.
    Decided October 15, 1907.
    Error to the Circuit Court of Hamilton county.

      Mr. W. T. Porter, for plaintiff in error.

      Messrs. Worthington & Strong and Messrs. Outcalt & Foraker, for defendants in error.
   Judgment reversed and judg-' ment for plaintiff in error.

Shauck, C. J., Summers and Davis, JJ., concur.


text:
    No. 10360.
    Jones, Sheriff, v. Morris.
    Decided October 15, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. W. L. Dickson and Mr. F. F. Dinsmore, for plaintiff in error.

      Mr. M. H. Rulison; Mr. E. M. Ballard and Mr. L. B. Sawyer, for defendant in error.
   Judgment affirmed on ground that order of common pleas court was void for want of power to 'make it.

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


text:
    No. 10386.
    Richards, Receiver, v. Williams.
    Decided October 15, 1907.
    Error to Circuit Court of Stark county.

      Mr. Atlee Pomerene; Mr. S. W. Bennett and Mr. P. A. Reece, for plaintiff in error.

      Messrs. Webber & Turner, for defendant in error.
   Judgment affirmed, one ground of reversal in the circuit court being that the judgment of the court of common pleas, was against the weight of the evidence.

Summers, Spear and Davis, JJ., concur.


text:
    No. 10482.
    The Detroit, Toledo & Ironton Railway Co. v. Pettiford.
    Decided October 15, 1907.
    Error to Circuit Court of Jackson county.

      Mr. A. L. Smith; Mr. John Robbins and Messrs. Keifer & Keifer, for plaintiff in error.

      Mr. E. C. Powell and Mr. Irvine Duncan, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Crew, Summers and Davis, JJ., concur. Price, J., dissents.


text:
    No. 10497.
    The Columbus, New Albany & Johnstown Traction Co. v. Cashner.
    Decided October 15, 1907.
    Error to Circuit Court of Franklin county.

      Mr. D. J. Ryan and Mr. Geo. H. Jones, for plaintiff in error.

      Mr. W. H. Jones and Mr. C. F. Pryor, for defendant in error.
   Judgment affirmed.

Price, Crew and Summers, JJ., concur.


text:
    No. 10505.
    The Standard Table Oil Cloth Co. v. Rees, Jr., Admr.
    Decided October 15, 1907.
    Error to Circuit Court of Trumbull county.

      Mr. T. PI. Gillmer and Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Mr. T. J. Gillmer; Mr. A. L. Phelps and Mr. Charles Koonce, Jr., for defendant in error.
   Judgment vacated and cause remanded to the circuit court with direction to determine the weight of the evidence.

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


text:
    No. 10588.
    Burr et al. v. Parker, Treasurer, et al.
    Decided October 15, 1907.
    Error to Circuit Court of Lucas county.

      Mr. B. A. Hayes; Mr. E. D. Potter and Mr. P. E. Potter, for plaintiffs in error.

      Mr. C. S. Northrup, city solicitor, and Mr. O. W. Nelson, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10640.
    Wulfekoetter, Jr., Admr, v. Koehnken, Admr.
    Decided October 15, 1907.

      Error to Circuit Court of Hamilton county.

      Mr. Albert Bettinger and Mr. J. Shroder, for plaintiff in error.

      Mr. O. W. Kuhn, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10685.
    The State of Ohio v. Kinzel.
    Decided October 15, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. S. V. McMahon, prosecuting attorney, for plaintiff in error.

      Messrs. McKisson & Minchell, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10773.
    Pope v. Parker, Treasurer, et al.
    Decided October 15, 1907.
    Error to Circuit Court of Lucas county.

      Mr. E. D. Potter and Mr. P. E. Potter, for plaintiff iii error.

      Mr. C. S. Northrup, 'city solicitor, and Mr. O. W. Nelson, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10774.
    The National Malleable Casting Co. v. Parker, Treasurer, et al.
    Decided October 15, 1907.
    Error to Circuit Court of Lucas county.

      Mr. E. D. Potter and Mr. P. E. Potter, for plaintiff in error.

      Mr. C. S. Northrup, 'city solicitor, and Mr. O. W. Nelson, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9784.
    The Semler Milling Co. v. The Merchants’ National Bank of Indianapolis, Indiana.
    Decided October 22, 1907.
    Error to Circuit Court of Butler county.

      Mr. Aaron Wesco and Mr. Alex. F. Hume, for plaintiff in error.

      Messrs. Slayback & Harr, for defendant in error.
   Judgment affirmed.

Spiauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10056.
    Silvieus v. Morrison et al.
    Decided October 22, 1907.
    Error to Circuit Court of Ashtabula county.

      Mr. Herbert Williams, for plaintiff in error..

      Messrs. McGiifert & Ullman, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10169.
    McKelvey v. The City of Youngstown.
    Decided October 22, 1907.
    Error to Circuit Court of Mahoning county.

      Messrs. Moore & Craver and Mr. D. B. Miller, for plaintiff in error.

      'Mr. F. L. Oesch and Mr. S. S. Conroy, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10542.
    Muhlhauser v. Wagner.
    Decided October 22, 1907.
    Error to Circuit Court of Hamilton county.

      Messrs. Cohen & Mack, for plaintiff in error.

      Messrs. Closs & Luebbert and Messrs. Strieker & Johnson, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ., concur.


text:
    No. 10626.
    Breuer et al. v. The City of Cincinnati et al.
    Decided October 22, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Powel Crosley and Messrs. Little ford & Ballard, for plaintiffs in error.

      Mr. Jesse Lovuman, city solicitor, and Mr. G. H. Kattenhorn, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9901.
    The Pennsylvania Company v. Loftis.
    Decided October 29, 1907.
    Error to Circuit Court of Stark county.

      Mr. C. C. Bow and Messrs. Carey & Mullins, for plaintiff in error.

      Messrs. Craine & Snyder, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9998.
    Steed v. The Carter Oil Co.
    Decided October 29, 1907.
    Error to Circuit Court of Monroe county.

      Mr. George G. Jennings, for plaintiff in error.

      Messrs. Mallory, Jeffers & Sears and Mr. Chas. G. Carter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10028.
    Fischer et al. v. Semones, doing business as The Tennessee Spoke Co., et al.

      Decided October 29, 1907.
    Error to Circuit Court of Crawford county.

      Messrs. Van Deman, Burkhart & Shea; Messrs. Herron, Gatch, Herron & James and Mr. John F. Wilson, for plaintiffs in error.

      Mr. T. E. Powell; Mr. T. J. Keating; Mr. M. R. Patterson; Mr. D. C. Barker; Mr. F. C. Amos; Mr. W. J. Geer and Mr. R. K. Ramsey, for defendants in error;
   Judgment affirmed.

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


text:
    No. 10029.
    Stewart v. The Baltimore & Ohio Railroad Co.
    Decided October 29, 1907.
    Error to Circuit Court of Fayette county.

      Mr. Humphrey Jones, for plaintiff in error.

      Mr. F. A. Durban and Mr. H. B. Maynard, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10146.
    Wissel v. Pierson.
    Decided October 29, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Chas. L. Hopping and Mr. W. A. Hicks, for plaintiff in error.

      Mr. S. B. Hammel and Mr. F. M. Coppock, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10297.
    Spencer et al. v. The City of Xenia et al.
    Decided October 29, 1907.
    Error to Circuit Court of Greene county.

      Mr. Chas.
      L. Spencer, for plaintiffs in error.

      Mr. W. L. Miller, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10324.
    Smith, Administrator, v. Snyder et al.
    Decided October 29, 1907.
    Error to Circuit Court of Clark county.

      Messrs. Cochran- & Cochran and Messrs. Beard & Summers, for plaintiff in error.

      Messrs. Keifer & Keifer and Mr. C. K. Shunk, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10453.
    Beatty et al. v. The State, ex rel. Backus.
    Decided October 29, 1907.
    Error to Circuit Court of Mahoning county.

      Mr. S. L. Clark and Mr. J. R. Johnston, for plaintiffs in error.

      Mr. W. S. Anderson and Mr. W. W. Zimmerman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9946.
    Sunbury Co-operative Creamery Co. v. Marriott et al.
    Decided November 6, 1907.
    Error to Circuit Court of Delaware county.

      Mr. C. T. Marshall, and Messrs. Overturf & Hough, for plaintiff in error.

      Messrs. Marriott, Freshwater & Wickham, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 10045.
    The Cleveland Electric Railway Co. v. Foster.
    Decided November 6, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. Alex. H. Martin and Mr. W. C. Ong, for defendant in error.
   Judgment reversed for error in refusing the sixth instruction requested on authority of The Cleveland City Railway Co. v. Conner, 74 Ohio St., 225.

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


text:
    No. 10052.
    Heavener v. The New Pitts-burg Coal Co.
    Decided November 6, 1907.
    Error to Circuit Court of Hocking county.

      Mr. H. E. Sparnon; Mr. TI. D. Cochran and Mr. T. D. Price, for plaintiff in error.

      Messrs. Grosvenor, Jones & Worst ell; Mr. V. C. Lowry and Messrs. Arnold, Morton & Irvine, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10106.
    The Mahoning Gas Fuel Co. v. Stafford, Admr.
    Decided November 6, 1907.
    Error to Circuit Court of Mahoning county.

      Messrs. Norris, Jackson & Rose and Mr. R. B. Murray, for plaintiff in error.

      Mr. W. S, Anderson; Mr. I. B. Miller and Mr. E. IT. Moore, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 10109.
    The Mahoning Valley Railway Co. v. McIntosh.
    Decided November 6, 1907.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson, Rowland & Harrington, for plaintiff in error.

      Messrs. Norris, Jackson & Rose, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shaucic, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10254.
    The Lima Electric Railway & Light Co. v. Hicks.
    Decided November 6, 1907.
    Error to Circuit Court of Allen county.

      Mr. John W. Warrington; Mr. W. B. Richie and Messrs. Cable & Parmenter, for plaintiff in error.

      Messrs. Ridenour & Halfhill and Mr. W. H. Leete, for defendant in error.
   Judgment reversed upon grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming and not reversing the judgment of the court of common pleas. And proceeding to render the judgment which the circuit court should have rendered, this court is of opinion that the trial court committed error in refusing to give to the jury the instruction requested by defendant below, to be found on page 430 of the printed record in this court, to-wit: “Where there are two or more methods or ways in which a servant may perform his duty, and he voluntarily chooses the one most hazardous, knowing it to be such, he does so at his own risk.”

This court is also of opinion that the remarks of counsel for plaintiff below to the jury in his closing argument, which were objected to and excepted to at the time by opposite counsel, and which are alleged as grounds for new trial, were improper as being outside of the record, not justified by any evidence in the case, and calculated to prejudice the jury against the defendant.

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


text:
    No. 10425.
    Richards, Receiver, v. Wert.
    Decided November 6, 1907.
    Error to Circuit Court of Van Wert county.

      Mr. Hiram C. 'Glenn; Mr. Smith W. Bennett and Mr. Patterson A. Reece, for plaintiff in error.

      Messrs. Saltzgaber, Hoke & Osborn, for defendant in error.
   Judgment of circuit and common pleas courts reversed and cause remanded for a new trial. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming the judgment of the court of common pleas of said county, and the judgment of the court of common pleas of said county is reversed for error in directing the jury to return a verdict for the defendant in said cause, there being evidence, other than the books of the corporation, tending to prove that the defendant was a policy-holder. And this court proceeding to render the judgment that the court of common pleas should have rendered, it is ordered that the motion for a new trial be sustained and that the verdict be set aside and a new trial awarded.

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


text:
    No. 10421.
    The Cleveland City Railway Co. v. Powell.
    Decided November 6, 1907.
    Error to Circuit Court of Geauga county.

      Messrs. Squire, Sanders & Dempsey; Mr. J. P. Dawley and Mr. N. H. Bostwick, for -plaintiff in error.

      Messrs. Slogan, McMillin & Pattis on, for defendant in error.
   Judgment reversed for error in charge, on authority of Klunk v. The Hocking Valley Railway Co., 74 Ohio St, 125.

Shauck, C. J./ Price, Crew, Summers and Davis, concur.


text:
    No. 10123.
    Brenner et al. v. Fisher et al.
    Decided November 12, 1907.
    Error to Circuit Court of Williams county.

      Mr. C. L. Newcomer, for plaintiffs in error.

      Mr. C. A. Bower sox and Mr. Edward Guadern, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10304.
    Brown et al. v. Pangle, Administrator.
    Decided November 12, 1907.
    Error to Circuit Court of Allen county..

      Mr. Kent W. Hughes, for plaintiffs in error.

      Messrs. Motter, Mackenzie & Weadock; Mr. H. A. Reeve and Mr. John F. Lindemann, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10319.
    Gutensohn, Administrator, v. Petry.
    Decided November 12, 1907.
    Error to Circuit Court of Tuscarawas county.

      Messrs. Healea & Healea and Messrs. Bailey & Douthitt, for plaintiff in error.

      Mr. C. C. Milligan and Mr. P. S. Olmstead, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10331.
    Kinney v. The Cincinnati, Lebanon & Northern Railroad Co. et al.
    Decided November 12, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Mathews & M err ell, for plaintiff in error.

      Mr. Frank H. Kemper; Messrs. Maxwell & Ramsey and Messrs. Kramer & Kramer, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10335.
    Amity Oil Co. v. Wyssbrod et al.
    Decided November 12, 1907.
    Error to Circuit Court of Hancock county.

      Messrs. Phelps & David, for plaintiff in error.

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

Price, Summers and Davis, JJ., concur.


text:
    No. 10372.
    Van Nest et al. v. Askin et al.
    Decided November 12, 1907.
    Error to Circuit Court of Seneca' county.’

      Mr. Willis Bacon, for plaintiffs in error.

      Mr. G. M. Hoke and Messrs. Dore & Dore, for defendants in error.
   Judgment affirmed.

Shaucic, C. J., Crew and Spear, JJ., concur.


text:
    No. 10454.
    Sanford v. The Dayton & Troy Electric Railway Co.
    Decided November 12, 1907.
    Error to Circuit Court of Miami county.

      Messrs. Long & Kyle, for plaintiff, in error.

      Mr. E. H. Kerr; Mr. A. F. .Broomhall and Messrs. McMahon & McMahon, for defendant in error.
   Judgment affirmed as a reversal by the circuit court on the weight of the evidence.

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


text:
    No. 10506.
    Swing, Trustee, v. The Ohio Cultivator Co.
    Decided November 12, 1907.
    Error to Circuit Court of Huron county.

      Mr. S. M. Young; Mr. S. W. Bennett and Mr. P. A. Reece, for plaintiff in error.

      Mr. Jesse Vickery, for defendant in error.
   Judgment reversed.

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


text:
    No. 10611.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Haun, Admr.
    Decided November 12, 1907.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Messrs. Mansfield & Long, for defendant in error.
   Judgment affirmed.

Price, Crew and Summers, JJ., concur.


text:
    No. 10401.
    Ritchie et al. v. Howland.
    Decided November 19, 1907.
    Error to Circuit Court of Summit county.
    , Mr. W. E. Young, for plaintiffs in error.

      Messrs. Tibbals & Frank and Mr. F. H. Watters, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Summers and Spear, JJ., concur.


text:
    No. 10693.
    The City of Akron v. Everhart et al.
    Decided November 19, 1907.
    Error to Circuit Court of Summit county.

      Mr. Clyde F. Beery, city solicitor, and Mr. S. D. Kenñeld, for plaintiff in error.

      Messrs. Voris, Vaughan & Vaughan and Mr. Fred E. Smith, for defendants in error.
   Judgment affirmed.

Price, Spear and Davis, JJ., concur.


text:
    No. 10224.
    The Baltimore & Ohio Railroad Co. v. Linn, Administrator, et al.
    Decided November 26, 1907.
    Error to Circuit Court of Holmes county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Messrs. J. & G. E. Hiiston; Mr. W. Stilwell; Messrs, Carey & Mullins and Mr. Geo. W. Sharp, for defendants in error.
   Judgment reversed. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment’of the said circuit court, in so far as it affirms the judgment of the court of common pleas against the Baltimore & Ohio Railroad Company, be, and the same hereby is, reversed for the following reasons: 1. Said circuit court erred in not reversing the judgment of the court of common pleas for error in instructing the jury that the defense of contributory negligence must be proven by defendant to the “satisfaction” of the jury by a preponderance of the evidence; 2. For error in instructing the jury, “In the light of the evidence did the presence and assistance of this person at the time in question contribute in any way to the injury of deceased complained of? If it did and the deceased had knowledge of his incompetency or unfitness as an assistant and he made no complaint thereof to the defendant, his employer, it would be negligence on his part, and can not now be charged to his employer, and can not be considered by you as a matter of negligence charged against defendants. If, however, he did not know of the unfitness of said assistant in the work he was doing, if so he was, and his employer had such knowledge and did not make it known to deceased, the employment of said assistant and putting him to work with deceased, would be negligence on the part of the defendant employer; and if the presence of said assistant and his assistance in the work contributed with other acts of negligence complained of to the injury and death of decedent, then defendants would be liable.” 3. For misconduct of the counsel- for plaintiff during the introduction of the evidence. This court further finds that said circuit court did not err in reversing the judgment of the court of common pleas against The Cleveland, Akron & Columbus Railway Company, and the judgment of the said circuit court in that behalf is therefore affirmed, and the cross-petition in error herein of Olive Linn, Administratrix, is dismissed; and this cause is remanded to the Court of Common Pleas of Holmes county for a new trial.

Si-iauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10226.
    The Portsmouth Street Railroad & Light Co. v. Widdig, Administrator.
    Decided November 26, 1907.
    Error to Circuit Court of Scioto county.

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

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

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


text:
    No. 10345.
    Neff, Administrator, v. The Glens Run Coal Co.
    Decided November 26, 1907.
    Error to Circuit Court of Jefferson county.

      Mr. J. S. Paisley and Mr. E. L. Finley, for plaintiff in error.

      Mr. P. P. Lewis, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, .JJ., concur.


text:
    No. 10362.
    The Park Investment Co. v. The International Fence & Fireproofing Co. et al.
    Decided November 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Henderson, Quail & Siddal, for plaintiff in error.

      Messrs. Hoyt, Dustin & Kelley and Mr. Horace Andrews, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ.,concur.


text:
    No. 10431.
    The Grimes Candy Co. v. Menuez.
    Decided November 26, 1907.

      Mr. A. B. Strimple and Mr. H. L. Peeke, for plaintiff in error.

      Messrs. Williams & Ramsey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10223.
    The Cincinnati & Columbus Traction Co. v. The Norfolk & Western Railway Co.
    Decided December 3, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. C. B. Matthews, for plaintiff in error.

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

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


text:
    No. 10238.
    The Pennsylvania Co. v. Partington, Aministrator.
    Decided December 3, 1907.
    Error to. Circuit Court of Stark county.

      Messrs. Carey & Mullins, for plaintiff in error.

      Mr. Oscar Abt and Messrs. Craine & Snyder, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 10239.
    Eager et al., doing business as People’s Bank, v. Seward.
    Decided December 3, 1907.
    Error to Circuit Court of Fulton county.

      Messrs. Files & Paxson and Mr. J. M. Sheets, .for plaintiffs in error.

      Messrs. Handy & Wolfe and Mr. U. G. Hahn, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10241.
    The I. & E. Greenwald Co. v. The Iron Moulders’ Union of North America et al.
    Decided December 3, 1907.
    Error to Superior Court of Cincinnati.

      Mr. E. G. Kinkead and Mr. C. P. Williams, for plaintiff in error.

      Messrs. Outcalt & Foraker; Mr. Smith Hickenlooper and Mr. I. W. Heintsman, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10164.
    Board of County Commissioners v. McAdow, Admx.
    Decided December 10, 1907.
    Error to Circuit Court of Putnam county.

      Messrs. Handy & Unverferth, for plaintiff in error.

      Messrs. Bailey & Bailey and Messrs. Risser & Smith, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 10245.
    Busch v. The Winton Motor Carriage Co.
    Decided December 10, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Carr, Stearns & Chamberlain, for plaintiff in error.

      Mr,. Sterling Parks and Mr. W. PL McMorris, for defendant in error.
   Judgment of reversal affirmed. Final judgment reversed, and cause remanded to the court of common pleas for a new trial. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court reversing the judgment of the court of common pleas be, and the same is, hereby affirmed at the costs of the plaintiff in error. It is further ordered' and adjudged by this court that the following and final judgment rendered by the circuit court, to-wit: “And considering that the evidence as to the tender back was undisputed and consisted of a series of letters offered by both parties, upon the conceded facts of the case the court proceeds to render the judgment the common pleas court should have rendered, and it is considered and adjudged that the petition of the plaintiff below be, and the same' is, dismissed and that the plaintiff in error recover of defendant in error its costs,” be, and the same is, hereby reversed and held for naught and the plaintiff in error restored to what he lost by said judgment; and further,- that plaintiff in error recover of defendant in error his costs made in this court, and this cause is remanded to the court of common pleas for further proceedings and as to an inquiry whether there was a warranty of the speed of the automobile, and if so, as to the damages for the alleged breach of such warranty.

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


text:
    No. 10249.
    The Supreme Tent of the Knights of the Maccabees of the World v. Raedel.
    Decided December 10, 1907.
    Error to Circuit Court of Muskingum county.

      Messrs. Hoyt, Dustin & Kelley and Mr. J. J. Adams, for plaintiff in error.

      Mr. S. M. Winn and Mr. J. C. Bassett, Jr., for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on authority of Tisch v. The Protected Home Circle, 72 Ohio St., 233, and Shipman v. Home Circle, 174 N. Y., 398.

Shauck, C. j., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10261.
    The Euclid-Park National Bank v. The Central Trust Co.
    Decided December 10, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Carr, Stearns & Chamberlain, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Mr. J. A. Thompson, for defendant in error;
   Judgment affirmed.

’ Shauck, C. J., Price, Crew, Summers, Spear and Davis, concur.


text:
    No. 10263.
    Haines, Administrator, v. The Cincinnati Interurban Co.
    Decided December 10, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. H. D. Peck; Mr. S. B. Hammel and Messrs. Peck, Shaffer & Peck, for plaintiff in error.

      Messrs. Kinkead, Rogers & Ellis, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10289.
    The Colonial National Bank v. The Central Trust Co.
    Decided December 10, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. M. B. & H. H. Johnson, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Mr. J. A. Thompson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10292.
    Corser et al. v. Dean.
    Decided December 10, 1907.
    Error to Circuit Court of Sandusky county.

      Messrs. Seager & Gossard and Mr. H. C. DeRah, for plaintiffs in error.

      Messrs. Hunt & Gam and Messrs. Kinney ', O’Farrell & Rimelspach, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10312.
    The State of Ohio v. Barringer.
    Decided December 10, 1907.
    Error to Circuit Court of Sandusky county.

      Mr. M. W. Flunt, prosecuting attorney, and Mr. J. D. Finch, for plaintiff in error.

      Mr. C. A. Strauch and Messrs. Kinney, O’Farrell & Rimelspach, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


text:
    No. 10367.
    Follett v. King.
    Decided December 10, 1907.
    Error to Circuit Court of Franklin county.

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

      Messrs. Booth, Keating & Peters, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10476.
    The State of Ohio v. Bates.
    Decided December 10, 1907.
    Error to Circuit Court of Allen county.

      Mr. B. F. Welty, prosecuting attorney, for plaintiff in error.

      Mr. A. S.

      Graham and Messrs. Klinger & Secrest, for defendant in error.
   Judgment affirmed on the ground that evidence did not establish a common law marriage. Whether such marriage, if proved, would be a predicate for the indictment not considered.

Price, Crew and Summers, JJ., concur.


text:
    No. 10009.
    The State, ex rel. Linn, A Taxpayer, v. Wright, Auditor, et al.
    Decided December 17, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. J. C. Mansfield and Mr. P. H. Kaiser, for plaintiff in error.

      Mr. C. W. State; Mr. J. L. Cannon; Mr. F. F. Klingman and Mr. C. M. White, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 10051.
    Ellis et al. v. Hadley et al., Commissioners.
    Decided December 17, 1907.
    Error to Circuit Court of Llamilton county.

      Mr. L. I. Dolle, for plaintiffs in error.

      Mr. W. H. Sheldon, prosecuting attorney, for defendants in error.
   Judgment affirmed.

Sitauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 10076.
    McDonnell, Administratrix, v. The Erie Railroad Co.
    Decided December 17, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Meyer & Mooney, for plaintiff in error.

      Messrs. Cushing & Clarke and Mr.

      Herbert D. Palmer, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Summers, JJ., concur.


text:
    No. 10081.
    Wallace et al. v. Bii-il.
    Decided December 17, 1907.
    Error to Circuit Court of Lucas county.

      Mr. Ciirtis T. Johnson, for plaintiffs in error.

      Mr. W. J. Gill, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Summers, JJ., concur.


text:
    No. 10306.
    Schierberg v. Cloud et al.
    Decided December 17, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Joseph B. Kelly and Messrs. Kelley & Hauck, for plaintiff in error.

      Mr. A. B. Dunlap; Mr. F. F. Dinsmore; Mr. Jesse Lowman and Messrs. Ireton, Collins, Schoenle & Poor, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10321.
    Heston et al. v. Barlow et al.
    Decided December 17, 1907.
    Error to Circuit Court of Lucas county.

      Mr. G. F. Wells, for plaintiff-in error.

      Messrs. Chittenden & Chittenden and Mr. W. T. S. O’Hara, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.

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


text:
    No. 10366.
    The Eldridge & Higgins Co. v. Kelly.
    Decided December 17, 1907.
    Error to Circuit Court of Franklin county.

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

      Mr. J. F. Rogers, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10417.
    Home Insurance Co. v. Mautz.
    Decided December 17, 1907.
    Error to Circuit Court of Marion county.

      Messrs. J. F. & L. B. McNeal and Mr. J. W. Mooney, for plaintiff in error.

      Messrs. Scofield, Durfee & Scofield, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 10439.
    Manton et al. v Perry.
    Decided December 17, 1907.
    Error to Circuit Court of Lucas county.

      Mr. J. P. Mantón, for plaintiffs in error.

      Messrs. King & Tracy, for defendant in error.
   Judgment affirmed on authority of The Bowman Lumber Co. v. Anderson et al., etc., 70 Ohio St., 16.

Shauck, C. J., Crew and Summers, JJ., concur.


text:
    No. 10027.
    Link v. Droste.
    Decided December 20, 1907.
    Error to-Circuit Court of Mercer county.

      Mr. J. D. Johnson, for plaintiff in error.

      Mr. I. F. Raudabaugh and Mr. C. F. Droste, for defendant in error.
   Judgment of the circuit court reversed and that of common pleas affirmed.

Shauck, C. J., Price, Summers, Spear_ and Davis, JJ., concur.


text:
    No. 10112.
    Imler v. Treasurer of Van Wert County et al.
    Decided December 20, 1907.
    Error to Circuit Court of . Van Wert county.

      Messrs. Saltzgaber, Hoke & Osborn, for plaintiff in error.

      Mr. H. W. Blachly, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10121.
    Hunter v. Treasurer of Van Wert County et al.
    Decided December 20, 1907.
    Error to Circuit Court of Van Wert county.

      Messrs. Saltzgaber, Hoke & Osborn, for plaintiff in error.

      Mr. H. W. Blachly, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10379.
    Nightingale v. Zengel et al.
    Decided December 20, 1907.
    Error to Circuit Court of Montgomery county.

      Messrs. Kennedy, Munger & Kennedy and Messrs. Wright & Ozias, for plaintiff in error.

      Mr. B. F. McCann; Mr. O. F. Davisson; Mr. J. V- Jones and Mr. W. H. H. Ecki, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10384.
    The Huebner Toledo Breweries Co. v. Singlar et al.
    Decided December 20, 1907.
    Error to Circuit Court of Lucas county.

      Messrs. J. M. & W. F. Brown; Messrs. FI. W. & A. J. Seney and Mr. Geo. P. Hahn, for plaintiff in error.

      Messrs. Fell & Schaal, for defendants in error.
   Judgment reversed and demurrer to petition overruled.

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


text:
    No. 10440.
    The Toledo Railways & Light Co. v. Gravell.
    Decided December 20, 1907.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. W. A. Cutler and Mr. C. A. Thatcher, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ., concur.


text:
    No. 10325.
    Robison, Executrix, v. The Northern Central Life Ins. Co. et al.
    Decided January 7, 1908.
    Error to Circuit Court of Lucas county.

      Mr. Orville S. Brumback, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Summers, JJ., concur.


text:
    No. 10357.
    The Wellston & Jackson Belt Railway Co. et al. v. Klein.
    Decided January 7, 1908.
    Error to Circuit Court of Jackson county.

      Mr. T. S. Hogan and Mr. C. 0. Hunter, for plaintiffs in error.

      Messrs. Flodge & Wolfe and Mr. S. F. White, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 10416.
    Hynicka, Treasurer, v. The Cincinnati, New Orleans & Texas Pacific Railway Co.
    Decided January 7, 1908.
    Error to Superior Court of Cincinnati.

      Messrs. Ireton, Collins, Schoenle & Poor and Mr. A. B. Benedict, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & IToadley, for defendant in error.-
   Judgment affirmed.

Si-iauck, C. J., Price, Crew, Summers, Spear and Dávis, JJ., concur.


text:
    No. 10430.
    The Village of New Lexington v. Childs et al.
    Decided January 7, 1908.
    Error to Circuit Court of Perry county.

      Mr. W. A. Allen and Mr. T. B. Williams, for plaintiff in error.

      Mr. John Ferguson, for defendants in error.
   Judgment affirmed.

Price, Spear and Davis, JJ., concur.


text:
    No. 10434.
    Ely et al. v. Ely.
    Decided January 7, 1908.
    Error to Circuit Court of Lorain county.

      Messrs. E. G. & H. C. Johnson, for plaintiffs in error.

      Mr. Clayton Chapman and Mr. Harry Pounds, for defendant in error.
   Judgment affirmed.

Price, Crew and Sum:mers, JJ., concur.


text:
    No. 10437.
    The Baltimore & Ohio Railroad Co. v. Campbell.
    Decided January 7, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kline, Tolies & Goff, for plaintiff in error.

      Messrs. McGrath & Stern, for defendant in error.
   Judgment .reversed and judgment for plaintiff in error on authority of P. F. W. & C. Ry. Co. et al. v. Bingham, Admx., 29 Ohio St., 364; C. H. & D. R. R. Co. v. Aller, 64 Ohio St., 183; C. A. & C. Ry. Co. v. Workman, Admr., 66 Ohio St., 509; Ann Arbor R. R. Co. v. Kinz, etc., 68 Ohio St., 210; Railroad Co. v. Harvey, 77 Ohio St., 235.

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


text:
    No. 10458.
    The Semler Milling Co. v. The Ohio Grain Dealers’ Mutual Fire Association.
    Decided January 7, 1908.
    Error to Circuit Court of Butler county.

      Mr. Aaron Wesco and Messrs.' Cabell & Kohn, for plaintiff in error.

      Messrs. Shepherd & Shaffer and 'Mr. J. W. Mooney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10464.
    Jolly et al., Partners, v. The Baltimore & Ohio Railroad Co.
    Decided January 7, 1908.
    Error to Circuit Court of Richland county.

      Messrs. Jenner & Weldon and Mr. L. C. Stilwell, for plaintiffs in error.

      Messrs. Cummings, McBride & Wolfe and Mr. F. A. Durbin, for defendant in error.
   Judgment reversed and final judgment as shown by journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error in reversing the judgment of the court of common pleas of said county and in remanding the. case to said court for a new trial. And this court proceeding to render the judgment that said circuit court should have rendered, “It is ordered and adjudged by the court that the plaintiffs in the action, defendants in error herein, recover of the defendant in the ac-’ tion, plaintiff in error herein, upon the undisputed facts, the sum of $2,788.87, with interest thereon from February 15, 1900, together with their costs herein, and in said court of common pleas, and judgment is rendered against the defendant for its costs herein and in said court of common pleas.”

Si-iauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10058.
    McNaughton v. Wiggins, Admr., et al.
    Decided January 14, 1908.
    Error to Circuit Court of ■ Clark county.

      Messrs. Keifer & Keifer, for plaintiff in error.

      Mr. James Johnson, Jr., for defendants in error.
   Judgment affirmed on authority of Geiger v. Worth, 17 Ohio St., 564.

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


text:
    No. 10266.
    The County Auditor et al. v. The Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co.
    Decided January 14, 1908.
    Error to Circuit Court of Greene county.

      Mr. W. L. Miller, for plaintiffs in error.

      Mr. Charles Darlington, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10327.
    North et al. v. Smith.
    Decided January 14, 1908.
    Error to Circuit Court of Darke county.

      Mr. W. Y. Stubbs, for plaintiffs in error.

      Messrs. Meeker & Gaskill and Messrs. Anderson, Bowman & Anderson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10378.
    Schott v. The Ohio Farmers’ Insurance Co.
    Decided January 14, 1908.
    Error to Circuit Court of Hamilton county.

      Mr. William Thorndyke, for plaintiff in error.

      Mr. Lee Elliott and Messrs. Archer & Osier, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, Jj., concur.


text:
    No. 10491.
    Andress v. Greenfelter, Guardian, et al.
    Decided January 14, 1908.
    Error to Circuit Court of Crawford county.

      Mr. W. J. Geer, for plaintiff in error.

      Mr. C. H. Henkel and Mr. J. W. McCarron, for defendants in error.
   Judgment affirmed on authority of Baltimore & Ohio Railroad Co. v. Ambach, 55 Ohio St., 553.

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


text:
    No. 10072.
    Raynolds, a Taxpayer, v. The City of Cleveland et al.
    Decided January 21, 1908.
    Error to Circuit Court of Cuyahoga county.

      .Messrs. Collister & Halle and Messrs. Kline, Tolies & Goff, for plaintiff in error.

      Mr.

      N. D. Baker; Messrs. Garfield, Howe & Westenhaver; Messrs. Blandin, Rice & Ginn, and Mr. G. IT. Stewart, for defendants in error.
   Judgment affirmed on ground of laches.

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


text:
    No. 10365.
    The Columbus Macadam Co. et al. v. Kissinger.
    Decided January 21, 1908.
    Error to Circuit Court of Franklin county.

      Mr. E. L. Taylor, Jr; Mr. T. J. Keating and Mr. W. J. Ford, for plaintiffs in error.

      Mr. E. E. Corwin and Mr. T. J. Duncan, for defendant in error.
   Judgment affirmed, the question of misconduct' of counsel not being properly raised by the record.

Si-iauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


text:
    No. 10394.
    German-American Insurance Co. v. Wagner.
    Decided January 21, 1908.
    Error to Circuit Court of Athens county.

      Mr. J. W. Mooney and Mr. L. N. Jewett, for plaintiff in error.

      Mr. J. P. Wood, Jr., for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Spiauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


text:
    No. 10507.
    McMahon, by etc., v. The Youngstown Manufacturing Co.
    Decided January 21, 1908.
    Error to Circuit Court of Ma-honing county.

      Messrs. Anderson, McNab & Anderson, for plaintiff in error.

      Messrs. Seaton
      dr Paine and Mr. T. H. Gillmer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10578.
    Williams v. Harris.
    Decided January 21, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. White, Johnson, Mc-Caslin & Cannon, for plaintiff in error.

      Messrs. Klein & Harris, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ., concur.


text:
    No. 10622.
    The Cincinnati Traction Co. v. Kurz, a Minor, etc.
    Decided January 21, 1908.
    Error to Circuit Court of Hamilton county.

      Messrs. Outcalt & Hickenlooper and Mr. J. W. Heintzman, for plaintiff in error.

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

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


text:
    No. 10660.
    White v. The Little Miami Light, Heat & Power Co.
    Decided January 21, 1908.
    Error to Circuit Court of Clermont county.

      Mr. H. S. Stevenson and Messrs. Stephens, Lincoln & Stephens, for plaintiff in error.

      Mr. L. J. Dolle and Mr. W. C. Taylor, for defendant in error.
   Judgment affirmed on authority of Giesy v. Railroad Co., 4 Ohio St., 308.

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


text:
    No. 10729.
    Murphy et al. v. Shepherd et al., Receivers.
    Decided January 21, 1908.
    Error to Circuit Court of Hamilton county.

      Mr.Wade H. Ellis, attorney-general; Mr. W. EL Miller; Mr. H. K. Rogers and Mr. Charles F. Williams, for plaintiffs in error.

      Mr. L. A. Ire-ton; Mr. Drausin Wulsin and Mr. W. C. Shepherd, for defendants in error.
   Judgment affirmed.

Si-iauck, C. J., Price, Crew, Spear and Davis, JJ., concur.


text:
    No. 10486.
    Noble, doing business as F. F. Noble & Co. v. The Trustees of The Cincinnati Southern Railway.
    Decided January 28, 1908.
    Error to Superior Court of Cincinnati.

      Mr. W. A. Flicks and Mr. W. F. North, for plaintiff in error.

      Mr. W. T. Porter, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10552.
    The Cincinnati Traction Co. v. McKee.
    Decided January 28, 1908.
    Error 'to Circuit Court of Hamilton county.

      Messrs. Kittredge & Wilby, for plaintiff in error.

      Mr. C. W. Baker and Mr. Thorne Baker, for defendant in error.
   Judgment affirmed.

Si-iauck, C. J., Price, Crew and Spear, JJ., concur.


text:
    No. 10608.
    The State of Ohio v. Taylor.
    Decided January 28, 1908.
    Error to Circuit Court of Franklin county.

      Messrs. Webber,

      McCoy, King & Game, for plaintiff in error.

      Mr. G. Duewell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10609.
    The State of Ohio v. Furr.
    Decided January 28, 1908.
    Exceptions to the Court of Common Pleas of Franklin county.

      Messrs. Webber, McCoy, King & Game, for plaintiff.

      Mr. M. B. Earnhart, for defendant.
   Exceptions overruled.

Shauck, C. J., Price and Davis, JJJ concur.


text:
    No. 10621.
    Kell v. The Board of Commissioners of Clermont County.
    Decided January 28, 1908.
    Error to Circuit Court of Clermont county.

      Messrs. Frasier & Hicks, for plaintiff in error.

      Mr. C. C. Kearns, prosecuting attorney; Mr. N. G. Cover and Mr. W. C. Bishop, for defendant in error.
   Judgment affirmed.

Spiauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10635.
    The Cincinnati Chamber of Commerce Mutual Insurance Co. et al. v. Menge, Administrator.
    Decided January 28, 1908.
    Error to Superior Court of Cincinnati. Mr. W. T. Porter, lot plaintiffs in error.

      Messrs. Galvin & Bauer, for defendant in error.-
   Judgment affirmed on the ground that the plaintiffs in error are concluded by the judgment of the trial court.

Price, Crew and Spear, JJ., concur.


text:
    No. 10681.
    The Electric Porcelain Co. v. Duke.
    Decided January 28, 1908.
    Error to Circuit Court of Columbiana county.

      Messrs. Seaton & Paine; Mr. J. B. Morgan and Messrs. Brooks & Thompson, for plaintiff in error.

      Mr. W. F. Tones and Mr. Charles Boyd, for defendant in error.
   Judgment affirmed.

Si-iauck, C. J., Price, Crew, Spear and Davis, JJ., concur.


text:
    No. 10738.
    The State of Ohio v. Brown.
    Decided January 28, 1908.
    Error to Circuit Court of Summit county.

      Mr. H. M. Hagelbarger, prosecuting attorney, and Mr. W. E. Young, for plaintiff in error.

      Mr. W. E. Snyder and Mr. Floyd Shannon, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 10753.
    The State of Ohio, ex rel. Grafton et al., v. Anderson et al., Commissioners.
    Decided January 28, 1908.
    Error to Circuit Court of Jefferson county.

      Mr. Ernest T. Finley, for plaintiffs in error.

      Mr. W. R. Alban, for defendants in ' error.
   Judgment affirmed.

Si-iauck, C. J., Price, Crew and Summers, JJ., concur.


text:
    No. 10105.
    The Youngstown & Sharon Street Railway Co. v. Dennison.
    Decided February 4, 1908.
    Error to Circuit Court of Trumbull county.

      •Messrs. Norris, Jackson & Rose, for plaintiff in error.

      Mr. Charles Fillius
      and Mr. M. B. Leslie, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10119.
    The Ashtabula Rapid Transit Co. v. Smith et al.
    Decided February 4, 1908.
    Error to Circuit Court of Ashtabula county.

      Messrs. Hoyt, Munsell & Hall, for plaintiff in error,

      Mr. Herbert Williams, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10435.
    Jackson, a Taxpayer, etc., v. The City of Nelsonville et al.
    Decided February 4, 1908.
    Error to Circuit Court of Athens county.

      Messrs. Grosvenor, Jones & Worst oil; Messrs. Addison, Sinks & Babcock; Mr. T. H. Hogsett; Mr. Miller Outcalt and Mr. H. J. Booth, for plaintiff in error.

      Mr. Emmett Keenan, city solicitor; Mr. C. W. Juniper and Messrs. Lewis & Sayre, for defendants in error.
   Judgment reversed, because at time of entering upon the enlarging of the electric plant the statute contained no authority for furnishing electricity to citizens.

Price, Crew, Spear and Davis, JJ., concur. Summers, J., dissents.


text:
    No. 10457.
    Carlisle et al. v. The City of Cincinnati et al.
    Decided February 4, 1908.
    Error to Circuit Court of Flamilton county.

      Mr. Herman M err ell, for plaintiffs in error.

      Mr. Jesse

      Lowman; Mr. G. H. Kattenhorn; Mr. E. M. Ballard and Mr. A. H. Morrill, for defendants in error.
   Judgment affirmed. The question as to surface grading not being before us, the same is not passed on.

Price, Summers and Davis, JJ., concur.


text:
    No. 10699.
    The Youngstown Iron Sheet & Tube Co. v. Holleran.
    Decided February 4, 1908.
    Error to Circuit Court of Mahoning county.

      Messrs. Jackson & Rose, for plaintiff in error.

      Mr. J. R. Johnston; Mr. Frank Jacobs and Mr. A. B. Calvin, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10871.
    The Low Fare Railway Co. v. Isom.
    Decided February 4, 1908.
    Error to Circuit Court of Cuyahoga county.

      Mr. W. H. Boyd; Mr. G. H. Stewart and Messrs. Garñeld, Howe & Westenhaver, for plaintiff in error.

      Messrs. Squire, Sanders ■& Dempsey; Mr. J. G. White; Messrs. M. B. & H. H. Johnson and Mr. T. H. Hogsett, for defendant in error.
   Judgment affirmed.

Sitauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9923.
    Thomas et al. v. Bowler et al.
    Decided February 11, 1908.
    Error to Circuit Court of Hancock county.

      Messrs. McConica & Dwiggins; Mr. Edward Beverstock; Mr. W. W. Campbell and Messrs. Ross & Kinder, for plaintiffs in error.

      Messrs. Phelps & David and Messrs. Henry W. & Allen J. Seney, for defendants in error.
   On rehearing; former judgment adhered to.

Crew, Summers and Spear, JJ., concur.


text:
    No. 9928.
    Poor, Executor, v. Barr.
    Decided February 11, 1908.
    Error to Circuit Court of Hamilton county.

      Messrs. Hollister & Hollister; Mr. Thomas Hollister and Mr. B. P. Hollister, for plaintiff in error.

      Mr. F. E. Niederhelman, for defendant in error.
   On rehearing; former judgment adhered to.

Price, Crew and Spear, JJ., concur.


text:
    No. 10445.
    Boner v. Braddock et al.
    Decided February 11, 1908.
    Error to Circuit Court of Knox county.

      Mr. L. C. Stillwell and Mr. F. V. Owen, for plaintiff in error.

      Mr.' Columbus Ewalt and Mr. Rollin Mclntire, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10448.
    Dickinson v. The Baltimore & Ohio Railroad Co.
    Decided February 11, 1908.
    Error to Circuit Court of Summit county.

      Messrs. Smith & Meyers and Mr. G. M. Anderson, for plaintiff in error.

      Messrs. Allen, Waters, Young & Andress, for defendant in error.
   Judgment affirmed.

Sitauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10452.
    The Aetna Insurance Co. v. The American Tobacco Co.
    Decided February 11, 1908.
    Error to Circuit Court of Brown county.

      Messrs. Stephens, Lincoln & Stephens; Mr. Rufus L. Fite; Mr. C. H. Stephens and Mr. C. FI. Stephens, Jr., for plaintiff in error.

      Mr. G. Bambach; Messrs. Tarbell & Tarbell and Mr. J. R. Moore, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 10671.
    The State of Ohio v. Hughes et al.
    Decided February 11, 1908.
    Error to Circuit Court of Erie county.

      Mr. E. S. Stephens, prosecuting attorney, for plaintiff in error.

      Messrs. Kline, Tolies & Golf; Mr. R. K. Ramsey and Messrs. Hunt & Gam, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10672.
    The State of Ohio v. Webster et al.
    Decided February 11, 1908.
    Error to Circuit Court of Erie county.

      Mr. E. S. Stephens, prosecuting attorney, for plaintiff in error; Mr. R. K. Ramsey; Messrs. Kline, Tolies & Goff; Messrs. Waight & Moore and Messrs. Booth, Keating & Peters, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10716.
    The Telling Bros. Ice Cream Co. v. Moodie.
    Decided February 11, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Dawley & Meals, for plaintiff in error.

      Messrs. Klein & Harris and Mr. J. A. Thompson, for defendant in error'.
   Judgment affirmed.

Spiauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 11131.
    The State, ex rel. Hechler, v. Fitzgerald et al.
    Decided February 11, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Beardsley & Morgan and Mr. F. J. Wing, for plaintiff in error.

      Mr. Wade H. Ellis, attorney-general; Mr. W. H. Miller; Mr. J. H. Price and Mr. F. L. Taft, for defendants in error.
   Judgment affirmed. The board of deputy supervisors being without authority to ignore the committee recognized by the state central committee and named in this case in the order of the state

supervisor.

Crew, Summers, Spear and Davis, JJ., concur. Shauck, C. J., and Price, J., not participating.


text:
    No. 10091.
    Swinehart v. The Crown Oil Co. et al.
    Decided February 18, 1908.
    Error to Circuit Court of Wood county.

      Mr. W. G. Elliott, for plaintiffs in error,

      Mr. E. D. Bloom and Mr. W. H. McMillen, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10139.
    Nichols v. The City of Cleveland.
    Decided February 18, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. N. D. Baker, city solicitor, and Messrs. Estep, Payer, Wilkin & Carey, for defendant in error.
   Judgment affirmed.

Si-iauck, C. J., Price- and Crew, JJ., concur.


text:
    No. 10148.
    The McDermott Stone Co. v. Lute, an Infant, etc.
    Decided February 18, 1908.
    Error to Circuit Court of Scioto county.

      Mr. N. J. Dever and Mr. J. M. McGillivray, for plaintiff in error.

      Mr. T. K. Funk, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ., concur.


text:
    No. 10155.
    Woolley, an Infant, by etc. v. The Cincinnati Traction Co.
    Decided February 18, 1908.
    Error to Superior Court of Cincinnati.

      Mr. Byron M. Cien Dening, for plaintiff in error.

      Messrs. Kittredge & Wilby, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10160.
    Winchell v. Hopkins et al.
    Decided February 18, 1908.
    Error to Circuit Court of Portage county.

      Mr. I. T. Siddall, for plaintiff in error.

      Mr. W. J. Beckley, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10456.
    The Zanesville Railway, Light & Power Co. v. Hunter.
    Decided February 18, 1908.
    Error to Circuit Court of Muskingum county.

      Mr. J. J. Adams and Mr. F. A. Durban., for plaintiff in error.

      Mr. A. A. George, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Si-iauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10460.
    The Wills Creek Coal Co. v. Stage.
    Decided February 18, 1908.
    Error to Circuit Court of Guernsey county.

      Mr. R. T. Scott, for plaintiff in error.

      Messrs. Leppage, Wells & Stewart, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10461.
    Miller et al. v. Miller.
    Decided February 18, 1908.
    Error to Circuit Court of Guernsey county.

      Mr. R. T. Scott, for plaintiffs in error.

      Mr. J. J. Adams and Mr. A. L. Jones, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10479.
    The Cincinnati & Columbus Traction Co. v. Burch et al.
    Decided February 18, 1908.
    Error to Superior Court of Cincinnati.

      Mr. C. B. Matthews, for plaintiff in error.

      Messrs. Kittredge & Wilby and Mr. C.

      W. Baker, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10982.
    Guilbert, Auditor, et al. v. The State, ex rel Andrews.
    Decided February 18, 1908.
    Error to Circuit Court of Franklin county.

      Mr'. Wade H. Ellis, attorney-general, and Mr, S'. W. Bennett, for plaintiffs in error.

      Mr. W. E. Touvelle; Mr. Charles Kinney and Mr. J. M. Sheets, for defendant in error.
   Judgment affirmed.

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


author: Davis, J.

text:
    Hoffmaster v. Black et al.

      Payment on note — To one not possessing debt securities — Raises no presumption of agency, when — Effect of designation of place of payment — ■Burden of proof of agency.

    1. Payment to a person who has not possession of the securities which evidence the debt, properly indorsed, does not raise a presumption of agency in such person to receive payment of the debt or any part of it; and this is so even if the place of payment is designated in the contract, if the person to whom payment shall be made is not designated.
    a. When payment is made to a person not having possession of the securities properly indorsed, the burden of showing that such person was authorized to receive payment for the creditor rests upon the party.who makes the claim of payment.

      3. Where in such case the creditor accepts payments of interest through the medium of an unauthorized person, such conduct does not imply an agency in such unauthorized person to receive payment of the principal or any part thereof.
    (No. 10138
    Decided March 3, 1908.)
    Error to the Circuit Court of Mahoning county.
    On February 19, 1897, the defendants in error made and delivered to one Frank P. Hood, or order, their promissory note for $850, payable in two years after date, with eight per cent, interest. Included in the note was the following: "Principal and interest payable at the office of F. P. Flood, No. 5 East Federal street.” Within two weeks after the execution and delivery of the note to Hood, he transferred the note and a mortgage which had been given to secure the same, to the plaintiff in error for value and in due course of búsiness. The note was duly indorsed and the mortgage duly assigned to the plaintiff in error by Plood. The note and mortgage thus indorsed and assigned, were then and there delivered to the plaintiff in error and remained in his . possession from the time of his purchase until the commencement of this case. The assignment upon the mortgage was never recorded upon the record of the mortgage in Mahoning county, nor were the makers of the note and mortgage notified by the plaintiff in error that he owned and held the same. The interest upon the note was paid at Hood’s office and by him paid over to the plaintiff in error, who credited the same upon the note up to August 19, 1903. Hood, having died insolvent, it was discovered by the plaintiff in error that the defendants claimed to have paid $350 to apply on the principal of said note on the 14th day of February, 1900, at Hood’s office, to a Miss Jurey, who was acting for Mr. Hood, and a receipt of Hood in the handwriting of Miss Jurey is a part of the record. It is not claimed that the plaintiff in error ever received any part of this $350, and he testifies that he never authorized or directed Hood or Miss Jurey to collect the principal, or any part of the same, on this note and mortgage, and that he did not know of the payment of this $350, and this testimony is not expressly contradicted; but the defendants claim that the agency of Hood is established by conduct. The suit having been brought to recover the amount due on said note and to foreclose the mortgage securing the same, the facts already stated appeared upon the trial. The court of common pleas found in favor of the plaintiff. The circuit court reversed the judgment of the court of common pleas for the reason, “that the use of said words in said promissory note made said F. P. Hood agent of the plaintiff below to collect the money named and made payable upon said note, notwithstanding said Frank P. Hood did not have possession of said note and mortgage.” This proceeding is to reverse the judgment 'of the circuit court and to affirm the judgment of the court of common pleas.

      Mr. R. B. Murray and Mr. S. M. Thompson, for plaintiff in error.
    When a negotiable promissory note is made payable at a particular office, such fact does not constitute the party in charge of such .office the agent of the holder of such note to receive the money thereon, unless such note is in the possession of such party. Hollinshead v. Investment Co. et al., 42 L. R. A., 658; Williams v. Walker, 2 Sanford’s Ch. (N. Y.), 325; Ward v. Smith, 7 Wall., 450; Klindt v. Higgins et al., 95 Ia., 529; 7 Cyc., 1028; Adams v. Improvement Commission, 44 N. J. L., 638; Dwight v. Lens, 77 N. W. Rep., 546; Fortune v. Stockton et al., 182 Ill., 454; McNamara v. Clark, 85 Ill. App., 439; Corey v. Hunter, 10 N. Dak., 5; Thompson v. Buehler, 95 N. W. Rep., 854; Hills v. Place, 48 N. Y., 520.
    The collection of interest on a promissory note does not authorize the collection of the principal of the note unless possession of the note is held by the agent or express authority so to do is proven. Antioch College v. Carroll, 11 O. D. Re., 220; Hitchcock v. Kelley et al., 18 O. C. C., 808; Smith, Exrx., v. Kidd, 68 N. Y., 130.

      Mr. Emil I.- Anderson and Mr. A. M. Henderson, for defendants in error.
    If the transferee of a note, by his conduct, permits the maker to' believe that the ownership has not been changed, and the maker has in fact no notice of the transfer, payment to the payee will discharge the instrument. 7 Cyc., 1038; Morgan v. Neal,. 65 Pac., 66; Fowle v. Outcalt, 64 Kans., 352; 67 Pac., 889; Graza v. Manchke, 23 S. W. Rep. 836.
    Express authority is not necessary to render payment to a person as agent effectual, but authority to receive payment may be implied from the facts and circumstances existing prior to or in connection with the payment, and the holder of paper may be estopped to deny the authority of one whom he has clothed,'intentionally or through negligence, with ostensible authority. 7 Cyc., 1031; Quinn v. Dresbach et al., 16 Pac., 765; Reid et al. v. Kellogg, 8 S. Dak., 596; Thomson v. Shelton et al., 68 N. W. Rep., 1055; Enright v. Beaumond, 68 Vt., 249; Bank v. Johnson et al., 30 Fed. Rep., 588.
    The maker’s contract is to pay at the place where the note is made if no other place is named; and where he provides funds at such place which are lost by th,e negligence of the holder in presenting the note, the maker may be discharged. Banking Assn. v. Zorn, 14 S. C., 444; Smith v. Mead, 3 Conn., 253.
   Davis, J.

The circuit court reversed the judgment of the court of common pleas upon the ground, as stated in the journal entry, that the words, “Principal and interest payable at the office of F. P. Hood, No. 5 East Federal street,” contained in the note, “made said F. P. Flood agent of the plaintiff below to collect the money named and made payable upon said note, notwithstanding said Frank P. Hood did not have possession of said note and mortgage.” This has very much the appearance of an invitation to reverse, inasmuch as the controlling questions now presented have been decided and reported .at least twice, in the lower courts of this state (Hitchcock v. Kelley, 18 O. C. C., 808; Antioch College v. Carroll, 25 W. L. B., 289), and this judgment of the circuit court is distinctly contrary to an array of authorities so uniform, direct and abundant, that we shall not even attempt to enumerate all of them. Reference to many of the cases will be found in the places cited below. Daniel on Negotiable Instruments, Sec. 326; 7 Cyc., 1035, art. Commercial Paper, by Randolph, and notes 80 and 81; 1 Am. & Eng. Ency. Law (2d ed.), 1026; 22 Ibid, 520, 521, n. 7; Kohl v. Beach, 107 Wis., 409, 414-415. The principle on which these cases have been decided was stated in Lord Holt’s time in Whitlock v. Waltham, 1 Salk., 157, as follows: “If the scrivener be entrusted with the custody of the bond, he may receive the interest; and though he fails, yet the mortgagee shall bear the loss. * * * So it is also in such case if he receive the principal and deliver up the bond; for, being entrusted with the security itself, it shall be presumed that he is entrusted with a power over it, and with a power to receive the principal and interest; and the rather because the giving up of the bond upon payment of the money is a discharge thereof; otherwise if the obligee take away the bond, for then he hath no power to receive the money.” Modern cases have gone farther than this and have held that even the possession of negotiable securities, unindorsed, is not conclusive evidence of authority to receive payment. Mechem on Agency, Sec. 373; Doubleday v. Kress, 50 N. Y., 410. The burden, therefore, rests on the party making payment to show that the one receiving payment was authorized. This is particularly so if, in the meantime, as in this case, the note has passed into the hands of a bona fide indorsee before maturity. The contract of the maker is to pay to the payee or his order. By the terms of his contract he is bound to take notice of the fact that his obligation is liable to turn up in the hands of another party at maturity. The mere designation of the place at which payment shall be made does not of itself alter the obligation of the maker as to the person to whom, or through whom, payment shall be made. He is still bound to see for himself that payment is made to the legal holder, whether he be the original payee or an indorsee, or to his authorized agent. He can not safely pay to any person at the designated place who, in the absence of the securities properly indorsed, can not show authority to receive payment for the party entitled to the money. Doubleday v. Kress, 50 N. Y., 410; Williams v. Walker, 2 Sandf. Ch. R., 325; Cowing v. Cloud, 16 Colo. App., 326; Richards v. Waller, 49 Neb., 639; Gilbert v. Garber, 62 Neb., 464; Hollinshead v. Stuart & Co., 8 N. Dak., 35; Stolzman v. Wyman, Ibid, 108; Corey v. Hunter, 10 N. Dak., 5; Adams v. Hackensack Improvement Commission, 44 N. J. L., 638.

The law of the case being so well defined, and the plaintiff having denied that he ever authorized or directed Hood, the.original payee, or his clerk, Miss Jurey, to receive payment of the principal, or any part of the same, and he having also denied that he knew of the payment of $350 on the principal, it was plainly incumbent on the defendants to show that the plaintiff had either expressly or impliedly made Hood and Miss Jurey his agents. On the contrary, no claim of express authority is made, and it is conceded that Hood never had possession of the note or the mortgage after they >were transferred to the plaintiff, and the defendants say that they had asked for them “dozens of times” at Hood’s office and they were never produced.

But it is shown that interest was paid semiannually and was receipted for by “F. P. Hood, Ag’t,” that it was regularly paid over to plaintiff by Hood, and was credited by plaintiff on the note on the several dates up to August 31, 1903; but it is not shown that plaintiff ever saw any of Hood’s receipts for interest of that he ever knew that Hood had signed receipts therefor as “Ag’t.” The significant fact does appear, however, that from the time of the payment of the $350 to Hood, the receipts given by Hood to the defendants are for the exact amount of interest on the principal remaining unpaid, while the credits indorsed on the note by plaintiff are for the full amount of interest on the principal of the note without deduction, indicating that Hood was concealing from the plaintiff the payment of the $350, and that he made up the interest to the full amount out of his own pocket. Now it is claimed that these circumstances constituted Hood the agent of the plaintiff for the purpose of receiving payment of both principal and interest.

It is hardly necessary to discuss the proposition that the ratification of one unauthorized act is not a ratification of another and entirely distinct act; or that the acceptance of the results of a series of unauthorized acts of the same kind is the creation of an implied agency to do an entirely different thing. To state the proposition in a concrete form, the plaintiff having recognized the course of dealing as to payment of interest through Hood may be presumed to have authorized him to collect interest; but no implied agency to collect the principal, or any part of it, could arise therefrom. These are accepted principles in the law of agency. Baldwin v. Burrows, 47 N. Y., 199, 211; 1 Am. & Eng. Eney. Law (2d ed.), 1002. There was no recognition of the act of Hood in collecting a part of the principal, because the plaintiff did not know that the money had been paid to Hood, nor that the latter was deceiving the defendants by assuming to act for him. The cases are numerous and directly to the point that an authority to receive interest does not imply an authority to receive payments on the principal. Whitlock v. Waltham, I Salk., 157; Williams v. Walker, 2 Sandf. Ch. R., 325; Smith, Exrx., v. Kidd, 68 N. Y., 130; Cox v. Cutter, 28 N. J. Eq., 13; Ilgenfritz v. Mut. Benefit Life Ins. Co., 81 Fed. Rep., 27; Palmer v. Wistanley, 23 Up. Can. C. P., 586; Walsh v. Peterson, 59 Neb., 645; Guilbert v. Garber, 62 Neb., 464; Stolzman v. Wyman, 8 N. Dak., 108; Corey v. Htmter, 10 N. Dak., 5. In a case in which it appeared that the scrivener, not having possession of the security, had' received not only the interest but part of the principal also and paid it to the obligee, it was held that such circumstances did not imply that the scrivener had any authority to receive a part of the principal which he received and did not account for. Wostenholm v. Davies, Freeman Ch. R., 289.

When the defendants made payments to Hood without requiring the production of the securities, it was no more than if they had entrusted such payment to a messenger boy. That which reached the plaintiff was good payment. That which did not reach the plaintiff was at their own risk.

The judgment of the circuit court is reversed, and that of the court of common pleas is affirmed.

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


author: Spear, J.

text:
    The Cleveland, Akron & Columbus Railway Company v. South et al.

      Power of railroad company to appropriate private property — May be exercised only at time of railroad construction, when.

    The power of a railroad company to appropriate private property for the purpose of diverting a stream from its natural location or bed, and acquiring land for the new channel made necessary by reason of such diversion, may be exercised at the time of the construction of the road, and for that purpose, but not after-wards in the making of improvements to the road-bed.
    (No. 10251
    Decided March 3, 1908.)
    Error to the Circuit Court of Knox county.
    The controversy out of which this error proceeding arises originated by a proceeding commenced in the probate court of Knox, by The Cleveland, Akron & Columbus Railway Company, to appropriate lands owned by the defendants in error. Upon the preliminary hearing the court found all jurisdictional questions in favor of the plaintiff save as to the right to appropriate, and on that issue found as a fact that the land so sought to be appropriated “is intended to be used for the purpose of diverting a stream of water from its natural channel or bed, and for the purpose of making a new channel to convey the waters of the stream when so diverted or changed,” and, as matter of law, held that the statute does not authorize a railway company whose road has been constructed across a stream and operated for a number of years, as is the case of plaintiff’s road, to then divert the stream from its natural location or bed, and to appropriate land for the new channel made necessary by reason of such diversion of the stream. The petition was thereupon dismissed. Error being prosecuted to the common pleas by the plaintiff, the judgment of the probate court upon the controlling question was affirmed. This judgment of affirmance was affirmed by the circuit court, and the Company brings error.

      Messrs. Waight & Moore, for plaintiff in error.

      Mr. W. A. Hosack, for defendants in error.
   Spear, J.

The power to appropriate private property for general railroad purposes is given by section 3281 of the Revised Statutes, but whatever right a railroad company has to appropriate the property of others for the purpose of diverting a stream from its natural channel or bed is controlled by section 3284. Pertinent provisions of this' section are: “A company may, whenever it is necessary in the construction- of its road to cross a road or a stream of water, divert the same from its location or bed; but the company .shall, without unnecessary delay, place such road or stream in, such condition as not to impair its former usefulness.” The language of this statute is so plain as to hardly call for construction. By its terms the power to appropriate is limited to the necessity arising at the time of the construction of the road. And the rule which applies to the meaning of such a statute would seem to be as plain as any rule of law can be. It is that, the grant being a part of the sovereignty of the state, is presumed to embrace in its terms all that it was intended to grant at all; so that, as held in Minturn v. Larue, 23 How. (U. S.), 435, “only such powers and rights can be exercised under them as are clearly comprehended within the words of the act or derived therefrom by necessary implication,” doubtful claims as to power being always resolved against the corporation. This rule has been so repeatedly held and enforced by our courts that it seems needless to enlarge upon it, and a brief -reference to some of the cases will suffice. Thus we find in Moorhead v. The L. M. Rd. Co., 17 Ohio, 340, that it is held that, “private acts of incorporation, which confer power to subject private property to public use, should be strictly construed,” and that the act of incorporation which gave power to the company to appropriate land for the construction of its road did “not confer upon the company a right to relocate their road after completing it upon the first location, and to condemn to the uses of the road private property.” Birchard, C. J., in the opinion, observes, this: “The corporators had the power to locate and construct a railroad.^ They could exercise this right but once without a further grant. To accomplish this object a most important attribute of sovereignty was bestowed upon them by the legislature — the extraordinary reserved power of subjecting the property of private individuals to a public use. If it was intended that this should be a continuing power, one that might be exercised, and re-exercised again and again, as often as might ■ suit the convenience of this company, the legislature should have so declared in express terms. They have not done so.” The same principle was recognized and applied in Currier v. The M. & C. Rd. Co., 11 Ohio St., 228, the syllabus holding that “grants of corporate power, being in derogation of common right, are to be strictly construed — particularly where the power claimed is a delegation of the sovereign power of eminent domain.” A like holding was had in Atkinson v. The M. & C. Rd. Co., 15 Ohio St., 21. The same rule of construction is reaffirmed in Miami Coal Co. v. Wigton, 19 Ohio St., 560; also in Platt v. Pa. Co., 43 Ohio St., 228. And, as applied to municipal corporations, the rule of strict construction is recognized and enforced in Ravenna v. Pa. Co., 45 Ohio St., 118.

Perceiving no reason to change this rule established by our predecessors, and being of opinion that it has proper application to the facts of this case, we hold that, neither by the express terms of the statute nor by necessary implication, is any authority given the Company to make appropriation of private property for the purpose intended, the power given by the statute for that purpose having been exhausted by the exercise thereof in the construction of the road.

Attention is called to the case of Lorain County v. The L. S. & M. S. Ry. Co., 12 O. C. D., 805, as an authority in support of the contention of plaintiff in error. Without stopping to analyze that case we are not disposed to acquiesce in the reasoning and conclusion of the learned circuit court as applied to the facts of the case at bai. It is to be borne in mind that the provision respecting the diverting of streams from their location and bed is a special provision separate and distinct from the provisions for the building of side-tracks, depots, etc. The provision respecting the diverting of streams stands exactly as it stood when enacted in the general incorporation act of May 1, 1852. The case of Moorhead v. The L. M. Rd. Co., supra, had been the declared law of Ohio for a number of years when the act above referred to was enacted. The section has, in other respects, been a number of times amended by subsequent acts of the general assembly; so that, the attention of that body having been thus called to the terms of the section, and presumably to the construction given language of similar import in previous enactments giving authority of a similar character, it is reasonable to presume that had it been intended to confer the power to appropriate private property for the purpose indicated in section 3284, as a continuing power, one which might be exercised again and again, as often as a railroad company might desire, the general assembly would have so declared in express terms.

Judgment affirmed.

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


author: Crew, J.

text:
    Hammond v. The State of Ohio.

      Trusts — Valentine law — Section 4427-6, Revised Statutes — Evidence of the trust — General reputation not sufficient — Invalidity of section of lava — Section 1, Article XIV, of United States constitution — Rights of property.

    The last provision of Section 4427-6, Revised Statutes, by which it is enacted that: “The character of the trust or combination alleged may be established by proof of its general reputation as such,” is unconstitutional and void, in that it prescribes a rule of evidence which is violative of the constitutional guaranty contained in Section 1, Article XIV, of the constitution of the United States, that no person shall be deprived of “life, liberty, or property, without due process of law.”
    (No. 10518
    Decided March 3, 1908.)
    Error to the Circuit Court of Allen county.
    The facts in this case so far as they are pertinent to the question considered and determined herein, are stated in the opinion.

      Messrs. Richie & Richie and Messrs. Ridenour & Halfhill, for plaintiff in error.

      It is the rule in Ohio that evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can not properly be received against him until the fact of a conspiracy is prima facie proved. Goins v. State, 46 Ohio St., 457; Clawson v. State, 14 Ohio St., 234; Patton v. State, 6 Ohio St., 468; Preston v. Bowers, 13 Ohio St., 1; Rufer v. State, 25 Ohio St., 465.
    The very essence of the crime is that the defendant belonged to or acted with a trust or combination of the character condemned by the act, and this essence of the crime it is provided, need not be established by legal evidence or positive proof, but simply by reputation. Upon this point the accused is not brought “face to face” with the witnesses. This provision tends to deprive the accused of his rights, liberty and property without “due process of law.” Cooley on Constitutional Limitations, 356; People v. Cannon, 139 N. Y., 32; State v. Beswick, 13 R. I., 211; State v. Karts, 13 R. I., 528; Kirby v. United States, 174 U. S., 47; Railroad Co. v. McCann, 54 Ohio St., 17; Railway Co. v. Erick, 51 Ohio St, 146; Rich v. Flanders, 39 N. H., 305.

      Mr. B. F. Welty, prosecuting attorney, for defendant in error.
    When a conspiracy is shown the acts and declarations of each conspirator, in furtherance of the common object, are admissible against the others. Jones on Evidence, Vol. I, Section 255; Metcalfe v. Conner, 12 Am. Dec., 340; Benford v. Sanner, 80 Am. Dec., 545; 20 Am. Digest, Century Ed., Section 994, p. 1306.
    The legislature is vested with power to provide by statute the degree of proof necessary in criminal cases.
    The power to prescribe the rules’ of evidence, includes, as does the greater'the less, the power to enact that a relevant circumstance shall be presumptive evidence of an alleged fact. Some of the rules of evidence consist of presumptions of law and presumptions of fact. Many of them have been adopted from motives of public policy, and for the promotion of the public good. The doctrines of presumptive evidence are as much under the control of the legislature as are the other rules of evidence. Howard v. Moot, 64 N. Y., 262;. State v. Allen, 6 Ohio Dec., 45; De Monte v. Pabst, Auditor, 14 Ohio Dec., 97; Roth v. State, 3 O. C. D., 663, 7 C. C. R., 62; 51 Ohio St., 209; State v. Beach, 43 N. E. Rep., 949; Santo v. State, 2 Ia., 165, 63 Am. Dec., 487; Commonwealth v. Smith, 166 Mass., 370, 44 N. E. Rep., 503; State v. Altoffer, 3 Ohio Dec., 388, 2 N. P., 97; State v. Higgins, 13 R. I., 330; State v. Anderson, 5 Wash., 350, 31 Pac., 969; State v. Wilson, 9 Wash., 550, 37 Pac., 424; State v. Kyle, 14 Wash., 550, 45 Pac., 147; 2 McClain Criminal Law, Chapter 63, p. 375, Section 1215; State v. Main, 31 Conn., 572; 2 Wigmore on Evidence, Sections 1353, 1354; Railroad Co. v. Kreager, 61 Ohio St., 312; Railroad Co. v. Mathews, 165 U. S., 1; Jones v. Brim, 165 U. S., 180; Daggs v. Insurance Co., 136 Mo., 382; Robertson v. People, 20 Colo., 279, 38 Pac., 326; State v. Buck, 25 S. W. Rep., 573; Commonwealth v. Williams, 6 Gray, 1; Board v. Merchant, 8 N. E. Rep., 484; People v. Cannon, 34 N. E. Rep., 759; State v. Wilson, 1 Atl. Rep., 415; 8 Cyc., 1090; 4 Elliott on Evidence, Section 2793; Walker v. Moors, 122 Mass., 501; 2 McClain on Criminal Law, 1145, p. 307; King v. State, 17 Fla., 183; State v. Mack, 41 La. An., 1079; Territory v. Chartrand, 1 Dak., 379; Territory v. Stone, 2 Dak., 155; Cook v. State, 22 Tex. App., 511; Morris v. State, 28 Tex., 603.
    Evidence of general reputation, reputed ownership, public rumor, general notoriety, and the like, though composed of the speech of third persons not under oath is original evidence and not hearsay, the subject ox the inquiry being the concurrence of many voices to the same fact. 1 Green-leaf on Evidence (15th ed.), p. 147, Section 101.
   Crew, J.

At the April term, 1906, of the court of common pleas of Allen county, the plaintiff in error, Harry G. Hammond, was indicted for engaging, with others, in a conspiracy against trade, contrary to .the provisions of Sections 4427-1 to 4427-12, Revised Statutes, inclusive. He was tried upon said indictment, was found guilty, and adjudged by the court to pay a fine of five hundred dollars and the costs of prosecution, and to stand committed until said fine and costs were paid. This judgment was affirmed by the circuit court. On the trial of said indictment in the court of common pleas the state, to maintain the issue on its part, was permitted by the court, over the objection of counsel for the accused, to propound to divers witnesses the following question: “You may state whether or not you have the means of knowing the general reputation of The Canton Bridge Company, as to whether or not The Canton Bridge Company together with other bridge companies and persons doing business in Allen county, Ohio, have been organized in a trust for the purpose of dealing in highway bridges and bridge materials and preventing competition in the sale of highway bridges and bridge material from the first day of January, 1904, to the 25th day of May, 1906.” To this interrogatory the several witnesses each answered in substance, that there was reputed to be such combination or trust. The' foregoing question was put by counsel and permitted by the court, under favor, and because of, thé provisions of Section 4427-6, Revised Statutes, which reads as follows: “In prosecutions under this act, it shall be suffi-j cient to prove that a trust or combination, as\ defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement,! or any written instrument on which it may have] been based; or that it was evidenced by any written; instrument at all. The character of the trust or] combination alleged may be established by proof; of its general reputation as such.” While many1 of the provisions of the so-called Valentine antitrust law have heretofore been reviewed and passed upon by this court, there is presented to us in this case for the first time, the question of whether or not the last paragraph of the above Section 4427-6, whereby it is provided that, “The character of the trust or combination alleged may be established by proof of its general reputation as such,” is a valid and constitutional provision. After careful consideration of this question, we are of opinion that it must be answered in the negative. It may be conceded that within proper constitutional limits, the legislature has the general power to prescribe rules of evidence and methods of proof — to determine what may or may not be competent evidence in a particular case — and, with certain qualifications, has perhaps the power to enact and prescribe that in criminal prosecutions certain facts, when duly established, shall be held to be presumptive or prima facie evidence of guilt. But this power is not without its limitations, one of which is, that the legislature may not arbitrarily create a conclusive presumption of guilt against the accused, as to any element of the crime charged, by giving artificial and evidential force and effect to certain facts which otherwise would be wholly irrelevant and inconclusive. It has well been said, that presumptions of law — at the best uncertain instruments in the investigation and discovery of truth — are especially dangerous in the administration of criminal justice when used to control or impair the natural fundamental presumption of innocence, their effect being, to give' to evidence a technical probative force beyond that which it would naturally and ordinarily possess in producing conviction in the minds of the jury. It is said in State v. Beswick, 13 R. I., 219: “In-i deed, to hold that a legislature can create artificial presumptions of guilt from facts which are not! only consistent with innocence, but which are not even a constituent part of the crime when com- j'í mitted, is to hold that it has the power to take. ¡¡, away from a judicial trial, or at least substantially reduce in it, the very element which makes it judicial. To hold so is to hold that the legislature has power to bind and circumscribe the judgments of courts and juries in matters of fact,.and in an important measure to pre-determine their decisions and verdicts for them.” The provision of the statute under consideration in the present case, does not, it will be observed, provide merely that a presumption or inference shall arise, or may be drawn, from proof of the general reputation of the unlawful or criminal character of the alleged trust or combination. But it enacts in express terms, that its unlawful and criminal character may be established by proof of its general reputation. Thus the statute in terms makes proof of the general reputation of the trust or combination, not only competent evidence against the accused, but sufficient and conclusive evidence of the unlawful and criminal character of the combination to which he may belong. This in effect is to deprive the accused of the protection of the cardinal presumption that every person is to be presumed innocent until he is legally proven guilty, a presumption which attends the acchsed throughout his trial, and has reference and relation to every fact that must be established in order to prove his guilt beyond a reasonable doubt. If the general assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz.* the unlawful character of the trust or combination, may be shown and made certain, by proof of common rumor, or general reputation, and the guilt of the accused be thus established, it is difficult to see why it may not, with equal right, provide that murder, arson, or any other crime, may be thus established by proof that the person accused thereof is generally reputed to be the person who committed the same; a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice, that none would yield assent to it. It is a matter of common and universal knowledge that bad reputation may,- and often times does, originate in malice, from mistake, or irresponsible rumor, and once suggested or set going, the rapidity with which such a reputation gathers vigor and volume is proverbial. Hence, as is very fittingly and appropriately said by Durfee, C. J., in State v. Kartz, 13 R. I., 531: “To introduce into the law the principle that a person can be punished for what other people say about him, is to render all the constitutional safeguards of life, liberty and property unavailing for his protection; for it is impossible to say to what purposes so pernicious a principle may not be applied if it is once permitted to take root.” To concede to the legislature the power to provide, in prosecutions under the act here in question, that the unlawful character of the combination to which the defendant belongs, may be established — that is, made certain — by proof of its general reputation as such, is to grant that the legislature has power to, and may, in a criminal case, prescribe a rule of conclusive evidence as to a vital and controlling fact, that shall be binding alike upon court and jury. This the general assembly may not do. In the present case we are of opinion that the last paragraph of Section 4427-6, whereby it is provided that, “The character of the trust or combination alleged may be established by proof of its -, general reputation as such,” is invalid, in that it not only permits the conviction of a defendant upon purely hearsay evidence, but it in effect de- , prives him of the benefit of the presumption of: innocence, as to a vital and essential fact which the state is bound to affirmatively establish by competent evidence, by substituting for proof of such fact — proof merely of general reputation as to its existence. This, we think, is not “due process of law,” but is violative of Section 1, Article XIV, of the constitution of the United . States, which provides that: “No state shall make I or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It follows that the judgment of conviction in this case should be set aside and the case remanded to the court of •common pleas for a new trial. Inasmuch as the case must go back for retrial, it is perhaps proper that we should state, in view of the doubtful character of certain evidence admitted by the court of common pleas, other than that above referred to, that the rule is, that the acts and declarations of a conspirator in the absence of an alleged co-conspirator, can be given in evidence against the latter only after the fact of conspiracy has been established; and until the conspiracy is shown by other and independent evidence the acts and declarations of an alleged co-conspirator are inadmissible to establish the connection with such conspiracy of one charged as a co-conspirator.

Judgment reversed.

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.