author: Spear, J.

text:
    The Iroquois Company v. Meyer.

      Definition of "owner” in section 4275, Revised Statutes — Includes lessee, zvhen — Gambling lazsis.

    The word “owner” in section 4275, Revised Statutes, relating to gaming, includes one who is a lessee as well as the owner of the fee. Hence the interest of a lessee of premises who sublets the same to one who, with the knowledge and permission of such lessee, uses the same for gaming purposes, may be subjected to the satisfaction of a judgment recovered against such sub-lessee for money lost therein at gaming.
    (No. 10979
    Decided June 25, 1909.)
    Error to the Circuit Court of Franklin county.
    The defendant in error, Nathan Meyer, brought action in the common pleas of Franklin against the plaintiff in error The Iroquois Company and one Leslie H. Webb to recover for money lost at gambling. His petition in substance averred the recovery, at the June term, 1905 of said court, of a judgment for $1,001.36 against a firm known as Killits & Co. under the gambling statutes of the state for money lost by him and paid to them, during a period from April 1, 1902, to October 1, 1902, at and in a certain building' then owned by Webb and in the possession of The Iroquois Company under a lease from Webb which stands on certain real estate owned by defendants as lessor and lessee aforesaid respectively, giving description of same.
    “At the time of said transactions and stakings of said money and losing and paying of the same to said firm, the defendants herein each knowingly permitted the room in said building in which said money was so lost to be used- for gaming purposes.”
    Thereupon each defendant interposed a motion to strike from the petition the last foregoing paragraph, the one given above in quotation marks.
    This motion was sustained by the common pleas, and, the plaintiff not desiring to further plead, the petition was dismissed and judgment- for costs rendered against plaintiff.
    On error to the circuit court that judgment was reversed, and The Iroquois Company brings error in this court.

      Mr. James A. Allen and Mr. Herbert M. Myers, for plaintiff in error.
    Section 4275 and the other sections in Chapter 5, are in derogation of the common law and must be construed strictly. Kahn, Jr., v. Walton, 46 Ohio St., 210; Hooker v. DePalos, 28 Ohio St., 261. The statute is in the nature of a penalty or forfeiture Avithin the meaning of the code. Cooper ■v. Rozvley, 29 Ohio St., 547. This section must be-read with a close adherence to the literal meaning óf the words. No word shall be given an extended meaning by implication beyond the sense which Avas obviously intended by the legislature. Sutherland on Statutory Construction, sections 349, 350; Felix v. Griffiths, 56 Ohio St., 39.
    In view of the strict and conservative interpretation of the language of this statute we cannot read into it the Avord lessée and mean the same as OAvner of the building and the real estate upon which it stands. The interest of the lessee of property is not the same as that of the owner of the property. The former interest is a chattel, while the latter interest is realty. A permanent leasehold estate renewable forever is realty and is subject to all the laws and rules which attach to land and a judgment lien attaches. Section 5374, Revised Statutes,; Loring v. Melendy, 11 Ohio, 358. A determinate leasehold estate is a chattel, and a judgment at law would not have a lien upon such an interest. Buckingham’s Exrs. v. Reeve, 19 Ohio, 405. A levy must be made and sold upon execution the same as any other chattel. Acklin v. Waltermier, 19 C. C, 372.
    We should construe the language of sections 4275 and 4276 together, because these sections are in pari materia. Under section 4276, the legislature expressly addresses its attention to leases and lessees, and it is therein provided that the premises which are occupied for gaming and lottery purposes shall be surrendered to the lessor, and the lease or agreement under which they are so occupied shall be absolutely void.
    It is evident, when we regard the provisions of section 4276, we can only give a meaning of the word “owner” in section 4275, as one who has the actual and absolute ownership of the soil and the building upon it, because if we construe it to mean lessee, or owner having a determinate interest, and becoming null and void by virtue of section 4276, we have the anomaly of a statute containing provisions absent of vitality. In other words, a section of the laws, enacted for the prevention of an evil, prescribes the punishment, and another section of the same laws prescribes a means of obviating that punishment without affecting the evil.

      The terms “owner” and “owning” depend somewhat for their signification upon the connection in which they are used. In the construction of statutes to ascertain the proper meaning of such terms, regard must be had to their various provisions, and such effect given as these provisions clearly indicate they were intended to have, and as will render the statute operative. Railroad Co. v. Walker, 45 Ohio St., 585; Chotean v. Thompson, 2 Ohio St., 114; Dutro v. Wilson, 4 Ohio St., 101.
    We adopt this rule as our guide in interpreting the word “owner” as used in the gambling statutes. It is evident that if we wish to render section 4275 operative, and give it such effect as its provisions, as well as its spirit and purpose clearly indicate, a determinate leasehold interest would not avail, as no judgment lien would attach to it as a matter of law, and especially, would this be true if this interest was subject to forfeiture as provided in section 4276.
    The gambling statutes declare a penalty or forfeiture against the owner of the building and land for allowing such conditions to exist, and in. construing these statutes, no person is to be made subject to them by implication and all doubts concerning their interpretation are to be preponderate in favor of the accused. State, ex rel., v. Boyce, 43 Ohio St., 50.
    The courts apply the law with great strictness where forfeitures are claimed. They are odious in law because they necessarily work a sacrifice of the rights of the party whose estate is forfeited. 'Mathers v. Bull, 6 N. R, 43.
    ■ The law governing mechanics’ liens, assessment statutes, and other laws of a like nature, are remedial in character and should be given a liberal construction. Bullock v. Horn, 44 Ohio St., 420; Hubble v. Renick, 1 Ohio St., 171; Azierbach & Co. v. Szvadner, 18 C. C., 389.
    The word “owner” means the person who holds the freehold interest in the property and not the lessee. Davis v. Cincinnati, 36 Ohio St., 24.

      Messrs. Bates & Meyer and Mr. Elmer E. Murphy, for defendant in error.
    In the time of Charles II it was held that a gambling statute, being to suppress the use of excessive gaming, should be construed in the most extensive manner that could be to answer that end. Edgebury v. Rosindale, 2 Levinz, 94.
    The statute in question is a remedial statute and is to be liberally construed in furtherance of its apparent object. Grace v. M’Elroy, 1 Allen, 563.
    It was held to be a remedial and not a penal statute in Wall v. Stock Exchange, -168 Mass., 282; Mendosa v. Levy, 98 App. Div., 326, 90 N. Y. Supp., 748; O’Keefe v. Weber, 14 Ore., 55; except when the action is by a stranger or informer. Jacob v. Clark, 115 Ky., 255. •
    We submit then when the action is by the person ag'grieved and not by an informed it is not penal in the sense that it is to be construed as if punishing a crime, but at most it is a new cause of action unknown to the common law and as such is doubtless not to be enlarged by construction, but on the other hand its purpose is not to be frustrated by a narrow or technical reading.
    The following authorities on the so-called civil damage laws in intoxicating liquor acts bear out the same rule: Mead v. Stratton, 87 N. Y., 493, •41 Am. Rep., 386; Gardner v. Day, 95 Me., 558, 50 Atl. Rep., 892; Schroder v. Crawford, 94 111., 357, '34 Am. Rep., 236; Reinhardt v. Fritzsche, 69 Hun, 565, 23 N. Y. Supp., 958.
    It is simply an action of tort founded on the statute, Campbell v. Harmon, 96 Me., 87, 51 Atl. Rep., 801, and should be liberally construed to effect the beneficent purpose for which it was enacted. Currier v. McKee, 99 Me., 364, 59 Atl. Rep., 442.
    It follows from the above that the word owner in the statute need not to be narrowed to one having a fee simple title, but means the one having the control of the occupancy, and this is borne out by the language of the last half of the next section, section 4276.
    Besides the interpretation of “owner” in Railroad Co. v. .Walker, 45 Ohio St., 577, it was construed to cover a lessee in Hemm v. Williamson, 47 Ohio St., 493.
    And also held of owner of a factory in fire-escape laws. Lee v. Smith, 42 Ohio St., 458; Schott v. Harvey, 105 Pa. St., 222.
    So where an action is given against the owner of a dog for damages means against one who possesses or harbors it.. Schultz v. Griffith, 103 la., 150.
    So where a statute makes the driver of a vehicle, who fails to turn out to the right and collides with another vehicle and injures its owner, liable to the latter in treble damages, owner was held to include one who hired the injured vehicle. Camp v. Rogers, 44 Conn., 291.
    The similar section under the liquor laws was held constitutional in Mullen v. Peck, 49 Ohio St, 447.

      Our theory is that “owner of the building” in section 4275 means the one in whose control it is for the time being, although he is owner only for years or life or other interest less than'a fee, and his interest can be subjected if he knowingly permits his sub-lessee to gamble, thus restraining the words “and the real estate upon which it stands” to his interest in such real estate.
   Spear, J.

The question involved is a simple one and depends upon the proper construction of section 4275, Revised Statutes. That section is as follows: “The property, both real and personal, of a defendant, against whom a judgment is rendered under this chapter, either for fines, costs, or to recover money, or other thing of value, lost or paid, shall be liable therefor, without exemption, and such judgment shall be a lien thereon until paid; if the owner of the building in which the money was lost knowingly permits it to be used for gaming purposes, such building, and the real estate upon which it stands, shall be liable therefor in the same manner; and the guardian or trustee of a minor, insane person, or idiot, who permits any property under his charge to be used for gaming purposes, and the same becomes liable on account thereof, shall be liable to his ward for the amount thereof.”

The concrete question relates to the word “owner.” Does it embrace, within the meaning of this section, one who is a lessee of the building? It was the judgment of the learned judge of the court of common pleas that such lessee is not an “owner” and hence not affected by the statute, and of the learned circuit court that the lessee is, within the meaning of this statute, an “owner.” We are of opinion that the judgment of the circuit, court gives the proper construction to this statute.

One ground urged in support of the action of the trial court upon the motion to strike out is that the statute being in its nature one for a penalty, and being in derogation of the common law, should receive a strict construction. It is not doubted that, as held in Felix v. Griffiths, 56 Ohio St., 39, where by legislation a well established rule of the common law is attempted to be modified or abrogated, the scope should not be extended beyond the plain' import of the words used if reasonable effect can otherwise be given to it. But it is equally well settled, we suppose, that where a statute is designed to give a substantial remedy for an admitted evil, the language should be given a fair construction in order to advance the remedy and correct the evil sought to be abated. That our gambling statutes are of the character above indicated there can be no question, for, by the holding of all the courts which have had the duty imposed to consider the subject for many years gambling has been regarded as a vice to be prevented and suppressed in the interest of the public morals and the public welfare. Nor is there any doubt that the owner of a building in which gambling with his knowledge and acquiescence is carried on may be reached by making his property liable. But the matter of a liberal construction on the one hand or a strict construction on the other does not seem to us as of very great importance in the present case because by either the result would we think be the same. Any intelligent construction of the word “owner” embraces one who is in possession of property by right with the power of control. As given by Bouvier’s Law Dictionary, an owner is one “who has dominion of a thing, real or personal, corporeal. or incorporeal, which he has a right to enjoy and do with as he pleases.” The distinction is recognized that while there can be but one absolute owner of a thing there may be qualified ownership of the same thing, and attention is called to Ohio decisions relating to our mechanic’s lien laws to the effect that the word “owner” includes the possessor of the leasehold as well as the owner of the fee on the ground that any other construction would be subversive of the policy and intent of the act and in a great degree render it useless. See Choteau et al. v. Thompson et al., 2 Ohio St., 114, and Dutro v. Wilson, 4 Ohio St., 101. Like construction was given regarding the .statute as to grade crossings of railroads, where the term “owning the tracks” occurs, in B. & O. Rd. Co. v. Walker, 45 Ohio St., 577. This conception of the substantial meaning of the word “owner” is illustrated in the case of Hemm v. Williamson, 47 Ohio St., 493, where it is applied to our watercraft law. This construction is consistent also with the decision of this court in Mullen v. Peck, 49 Ohio St., 447, and with other adjudications involving our liquor statutes.

It is further contended that the word “owner” in section 4275 should be held to mean only one who has absolute ownership because section 4276 gives to the absolute owner the power to abrogate a lease where the lessee permits gambling. If the word be used to include a lessee, it is insisted, we would, have'a section enacted for the prevention of an evil and another section of the same law prescribing a means of obviating the punishment without affecting the evil. This means only that circumstances might arise where the aggrieved party might be deprived of a substantial remedy. If the supposition be correct, it would, we think, still fail as an argument. Because under some circumstances there might be a failure of remedy-hardly affords a reason for depriving the injured party of a right to recover under circumstances which do afford a remedy.

It is urged, also, that a lessee cannot be held an owner because his interest being but a chattel interest cannot be the subject of a lien. The trouble with this objection is that the section does not undertake to create a lien on the leasehold interest. It but authorizes the interest to he subjected to payment of the judgment by proper proceeding.

The suggestion that to hold the lessee would be to deprive him of his property without due process of law is sufficiently answered by Mullen v. Peck, supra.

In the present case, Webb leased the building to The Iroquois Company. That company leased a room in the building to Killits & Company. In that room Killits & Company conducted a gambling establishment at which the plaintiff below, Meyer, lost his money at gambling. If the averment of the petition ordered stricken out is true the interest of The Iroquois Company is liable to be subjected to the judgment as well as that of Webb.

Judgment affirmed.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Frisbie v. The City of Columbus.

      Ordinance of city of Columbus — To license and regulate use of motor vehicles — Annulled by act of April 2, 1906 — Not revived by act of May 2, 1908.

    The ordinance of the city of Columbus passed March 20, 1905, to license and regulate the use of the streets of the city by persons who use vehicles thereon, in so far as it applies to motor vehicles, was annulled by the act passed April 2, 1906 (98 O. L., 320), and was not revived by the repeal of that act by the act passed May 9, 1908 (99 O. L., 538).
    (No. 11789
    Decided June 25, 1909.)
    Error to the Circuit Court of Franklin county.
    The facts are stated in the opinion.

      Mr. C. D. Saviers, for plaintiff in error.

      Messrs. Marshall, Weinland & Hoover, for defendant in error.
   Summers, J.

This was an action brought by a taxpayer to enjoin the enforcement of an ordinance of the city of Columbus, passed March 20, 1905, to license and regulate the use of the streets of the city by persons who use vehicles thereon, in so far as it applies to automobiles or motor vehicles.

The city filed a general demurrer, which was sustained and 'the petition dismissed and on error in the circuit court the judgment was affirmed.

The ordinance provides that no vehicle shall be used upon the streets without a license. The annual fee for an automobile used by one or two persons is five dollars, used by three or more persons seven dollars and a half, and used in hauling goods or freight seven dollars. ' The ordinance provides for the keeping of a register of automobiles, requires an identification tag to be displayed, and provides that money received from fees shall be applied to the expenses of issuing the licenses and furnishing the tags, and the remainder to the improvement of the streets.

This ordinance is supposed to be authorized by paragraph 9, Section 7, of the Municipal Code of 1902, Section 1536-100, Revised Statutes, which confers upon municipal corporations the power: “9. To regulate the use of cárts, drays, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; and to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway cars within the corporation.”

It is difficult to construe that paragraph in connection with Chapter 12 of Title 12, Section 1536-327, et seq., Revised Statutes.

But, in view of subsequent legislation as to automobiles, it is not necessary to do so, in the determination of the questions raised in the present case.

The automobile has but recently come into common use. Its use is not restricted to a particular locality or city, but extends from city to city all over the state, and to other states, and the number of hors'es likely to be frightened, and the dang-erous speed with which many cars were operated, led to the enactment of ordinances regulating its use. These regulations were so various, and in some instances so unreasonable, and in view of the ■ fact that outside of his own city it was impracticable for the operator to learn what the regulations were until after he had violated them, that the necessity fór a law, making uniform regulations that might be known and undersood by all, was apparent. Accordingly in 1906 a law was passed (98 O. L., 320), that provided for an annual license, the registration of the car and its identification by a number attached. It regulated the speed and manner of operating the car and prescribed, brakes, lights and signals, and then provided: “Section 19. Subject to the provisions-of this act, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring- of.any owner or operator of a motor vehicle any license or permit to use the public highways, or excluding or prohibiting any motor vehicle whose owner has complied with section two of this act from the free use of such highways, except such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and" light carriages, or except as herein provided, in any way affecting the registration or numbering of motor vehicles or prescribing- a slower rate of speed than herein specified at which said vehicles may be-operated, or the use of the public highways, contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no validity or effect.”. •

This act is, substantially, a copy of the New York motor vehicle law (L. 1904, Ch. 538), Laws of New York, 1904, which law it is held, in City of Buffalo v. Lewis, 192 N. Y., 197, “was clearly designed as a new, complete and general enactment to take the place of all the previous statutes, ordinances or rules relating to the use of motor vehicles upon the streets and highways of this state and must be held to have repealed all former statutes relating to such subject-matter, even if such former acts are not in all respects repugnant to its provisions. The common council of the city of Buffalo had, therefore, no power, in 1907, to enact an ordinance in pursuance of the provision of Chapter 31 of the Laws of 1904, amending Section 17 of the city charter (L. 1891, Ch. 105), and authorizing it to enact an ordinance imposing a tax upon the . owners of motor vehicles for the privilege of operating them upon the streets of such city, since the provisions of the statute in question must be considered as repealed by the subsequent enactment of the Motor Vehicle Law, and that statute expressly provides that with certain exceptions, not applicable to the question under consideration, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license, or permit, to use the public highways contrary to or inconsistent with its provisions.”

The Ohio law of 1906, as appears from that part of Section 19, above quoted, expressly declares tha all such ordinances and regulations shall be of no validity or effect.

But it is said that the act of 1906 is unconstitutional on the grounds stated by the attorney general, annual report of the attorney general of Ohio, 1906 and 1907, page 48, and that it has been declared unconstitutional in Feasel v. The State of Ohio, 6 N. P., N. S., 321. The unconstitutionality of the law is not apparent, and conceding that it is so defectively drawn that its penal provisions can not be enforced, it does not follow that the provisions of Section 19 were inoperative. Those provisions did not merely suspend but annulled the ordinance, and the repeal of the act of 1906 by the act of 1908 (99 O. L., 538), does not revive the ordinance.

Having reached this conclusion it is not necessary to determine whether municipalities under the statutes as they exist since the passage of the law of 1908, “To provide for the registration, identification and regulation of motor vehicles” (99 O. L., 538), may regulate and license automobiles.

Judgments reversed.

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


author: Crew, C. J.

text:
    Mader et al. v. Apple et al.

      Making of will — Will written upon blank form — Space left between last clause — And testimonium clause — No testamentary provision after signature of testatrix — Will held in conformity with Section 5916, Revised Statutes-

    The will of B. was written upon a blank form folded in the middle and containing three ruled pages; in said will, after the printed heading, there is written, and consecutively numbered, numerous testamentary clauses and a clause naming the executor of said will, these occupy the whole of the first and a portion of the second page of said form, then a blank space is left of about twenty-three and one-half inches between the last of said above clauses and the testimonium clause, which latter clause is found at or near the bottom of page three; immediately beneath and at the end of said testimonium, clause, in the space and on the line left and provided for that purpose B., the testatrix, signed her name, then follows immediately the attestation clause signed by two witnesses; no testamentary provision of any kind is found in said will after the signature of the testatrix. Held: That said will is signed at the end thereof as required by Section 5916, Revised Statutes.
    (No. 11588
    Decided June 25, 1909.)
    Error to the Circuit Court of Shelby county.
    The facts of this case so far as pertinent to the present inquiry are as follows: On August 8, 1907, a paper writing purporting to be the last will and testament of Hannah M. M. Baumgarten, deceased, was admitted to probate by the probate court of Shelby county, Ohio, and letters testamentary were issued thereon to Henry A. Apple as executor. On the 6th day of September, 1907, the present plaintiffs in error, Edward C. Mader et al., commenced an action in the court of common pleas of said Shelby county to contest said will. Thereafter an issue was made up as required by Section 5861, Revised Statutes, and the following order was entered upon the journal of said court of common pleas: “And now, to-wit, this 17th day of February, A. D., 1908, this cause came on for hearing, and it appearing to the- court that the plaintiffs seek to set aside a certain paper writing purporting to be the last will and testament of Hannah M. M. Baumgarten, deceased, late of Shelby county, Ohio, which has been admitted to probate in said county, and no issue being made by the pleadings, it is now ordered the validity of said will be and hereby is put in issue between the parties hereto, and that it be ascertained by the verdict of a jury whether, said writing is, or is not, the last will and testament of the said Hannah M. M. Baumgarten, deceased.”- On the trial of said issue in the court of common pleas the proponents offered and introduced in evidence the will, the record thereof, and the order of probate and rested.Thereupon the contestants — plaintiffs in error here — moved the court to direct the jury to return a verdict in said cause that said paper writing was not the valid last will and testament of Hannah M. M. Baumgarten, deceased, for the reason that the same was not signed b}'- her- at the end thereof as required by the statute. The court sustained said motion and directed the jury to return such verdict, which was accordingly done. ^A motion for new trial was made and overruled and the court entered judgment upon said verdict “that the said paper writing produced at the trial purnorting to be the last will and testament of the said Hannah M. M. Baumgarten, deceased, is not the last will and testament of the said Hannah M. M. •Baumgarten, deceased.” The proponents of said will — the defendants in error here — prosecuted error to the -circuit court of Shelby county where the judgment of said court of common pleas was reversed and the cause remanded to that court for a new trial. The present plaintiffs in error now-ask that this judgment of the circuit court be reversed, and that the judgment of said court of common pleas be affirmed. Some additional facts are stated in the opinion.

      Mr. Percy R. Taylor; Mr. Charles C. Marshall and Mr. Andrew J. Hess, for plaintiffs in error, cited and commented upon the following authorities :

      Glancy v. Glancy, 17 Ohio St., 135; Baker v. Baker, 51 Ohio St., 217; Irwin v. Jacques, 71 Ohio St., 395; Sears v. Sears, 77 Ohio St., 104; In re Seaman’s Will, 146 Cal., 455; In re Blake, 136 Cal., 306; Soward v. Soward, 1 Duvall ('Ky.), 126; Smee v. Bryer, 6 Moo. P. C, 404; 1 Rob., 616; In re Corder, 1 Rob., 669; Ayres v. Ayres, 1 Rob., 466; In re Gilman, 38 Barb., 364; Younger v. Dufñe, 94 N. Y., 535; In re O’Neil, 91 N. Y., 516; Sisters of Charity v. Kelly, 67 N. Y., 409; In re Conway, 124 N. Y., 455; In re Whitney, 153 N. Y., 259; In re Andrews, 162 N. Y., 1; In re Fults’ Will, 59 N. Y. Supp., 756; In re Murphy’s Will, 62 N. Y. Supp., 785; Wineland’s Appeal, 118 Pa. St., 37; In re Morrow’s Estate, 204 Pa. St., 479; 30 Am. & Eng. Ency. Law (2 ed.), 583; Williams on Executors, 68.

      Messrs. O’Donnell & Billingsley; Messrs. Hos-kins & Mills and Mr. J. D. Barnes, for defendants in error, cited and commented upon the following authorities:

      Armstrong v. Armstrong, 29 Ala., 538; Cook v. Parsons, Prec. Gh., 184; Kolowski v. Fausz, 103 111. App., 528; Coles v. Trecothick, 9 Yes. Jr., 249; Miles’ Will, 4 Dana (Ky.), 1; Allen v. Everett, 12 B. Mon. (Ky.), 371; Upchurch v. Upchurch, 16 B. Mon. (Ky.), 102; In re Kirkpatrick, 22 N. J. Eq., 463; People v. Murray, 5 Hill (N. Y.), 468; Merritt v. Clason, 12 Johns. (N. Y.), 102; Clason v. Bailey, 14 Johns. (N. Y.), 484; In re Booth, 127 N. Y., 109; Adams v. Field, 21 Vt., 256; Ramsey v. Ramsey, 13 Gratt. (Va.), 664; Jarman on Wills (5 Am. ed.), 249; Glancy v. Glancy, 17 Ohio St., 135; Irwin v. lacques, 71 Ohio St., 395; Baker v.. Baker, 51 Ohio St., 217; Sears v. Sears, 77 Ohio St., 104; In re Gilman, 38 Barb., 364; In re Dayger, 47 Hun, 127; In re Murphy’s Will, 62 N. Y. Supp., 785; Younger v. Duffle, 94 N. Y., 535; In re Morrow’s Estate, 204 Pa. St., 479, 54 Atl. Rep., 313; Underhill on Wills, Section 184; Wineland’s Appeal, 18 Pa. St., 37; In re Blake’s Estate, 136 Cal., 306, 68 Pac. Rep., 827; In re Seaman’s Estate, 146 Cal., 455, 80 Pac. Rep., 700; Beech on Wills, 31; Rood on Wills, Section 259; Schorder on Wills, Section 312; Page on Wills, Section 183; Soward v. Soward, 1 Duvall (Ky.), 126; Smee v. Bryer, 6 Moo. P. C, 404; Ayres v. Ayres, 1 Rob., 466; In re Carver, 3 Curteis, 29; In re Gore, 3 Curteis, 758; Favorite v. Booher’s Admr., 17 Ohio St, 548; Ives v. McNicoll, 59 Ohio St., 402; Gale v. Priddy, 66 Ohio St., 400; Gray v. Askezv, 3 Ohio, 466; Paine v. Mason, 7 Ohio St., 198; Hilliard v. Gas Coal Co., 41 Ohio St., 669; Kulp v. Fleming, 65 Ohio St. 321; Swan’s Statutes, 1840, page 992; Section 5916, Revised Statutes.
   Crew, C. J.

The instrument here in controversy was written upon a blank form containing three ruled pages, and in language and arrangement is as follows:

“in the name of the benevolent father of ALL, AMEN :
“I, Hannah Mary Magdaline Baumgarten, of the Township of Loramie, County of Shelby, and State of Ohio, being of lawful age, and being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, hereby revoking all former wills made by me.
“First: — My Will is that all my just debts and funeral Expenses shall be paid out of my Estate as soon after my decease as shall be found convenient.
“Second: — I give, devise and bequeath to my sister, Mary Catherine Apple, the following described real estate, situated in the county of Shelby, State of Ohio, and in the Township of Loramie, described as follows: Being part of section number twenty-four (24), town number ten (10), range four (4) east, and being the west half of the south half of the north-east quarter of said section number 24, containing 40 72-100 acres; also a second tract, same being the west half of tzvo hundred acres of the east side of the south half of said section twenty-four (24), said half herein devised containing 100 acres; both tracts containing 140 72-100. To have and to hold in fee simple to her and her heirs forever.
“Third: — The remainder of my estate, both real and personal, I desire converted into money by my executor hereinafter named as soon as convenient, and the same after payment of debts and costs of administration of my estate be divided into six equal parts, one part to be paid to each of the following named person or their heirs, viz.: Mary Christena Batty one share, Mary Catherine Apple one share, Frederick Baumgarten one share, Rosanna Roagner one share, Minnie B. Roath one part, and to the children of my deceased sister, Dorette Upperman, one share or part.
“Fourth: — I hereby nominate and appoint my respected brother-in-law, Henry A. Apple, executor of this my last will and testament, hereby empozvering him to collect or compromise all debts due or owing to me, to sell at public or private sale upon such terms as he may see ft any real estate of which I may die seized, which is not hereinbefore devised to my sister, Mary Catherine Apple, and deeds to the purchaser to make the same as I could if living, and after having converted my estate, not specif catty devised, into money, distribute same among legatees named. I hereby request that my said executor be not required to give bond as such.
.“in testimony whereof I have hereunto set my hand at--this tenth day of November, in the year -of our Lord, One Thousand, Nine Hundred and Three.
Her “Hannah Mary Magdaline •L' Baumgarten. mark.
“The foregoing instrument was signed by the said - in our presence and by her published and declared as and for her Last Will and Testament; and we have hereunto subscribed our Names as Attesting Witnesses, at her request, and in her 'presence, and in the presence of each other; this tenth day of November A. D. 1903.
A. Wehneman.
“Wm. Freshour.”

The written parts of the foregoing will we have italicized, and that which is not in italics was printed matter. On the first page of said paper there was a printed heading and under this heading, on the same page, were written all the dispositive clauses of said will. Immediately following these was the clause nominating an executor of said will, the whole of which latter clause was also written-upon said first page except the words “executor .be not required to give bond,” which, for want of space on said first page, were written at the top of the second page occupying all of the first and a part of the second line on said second page. The remainder of said second page was entirely blank, and the third page was also blank down to the testimonium, clause, a space of about twenty-three and one-half inches. The testatrix signed her name, by mark, immediately after and beneath said testimonium clause on the blank line obviously left for the signature of the person executing such will. Then follows immediately, in due form, the attestation clause signed by two witnesses. Nothing further appears upon said will. The present record presents for our determination but a single question, namely: is the fqregoing instrument purporting to be the last will and testament of Hannah Mary Magdaline Baumgarten, signed by her at the end thereof as required by Section 5916, Revised Statutes, which provides as follows: “Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.” It is the contention of counsel for plaintiff in error that because of' the blank space left in said will between the clause nominating the executor, and the testimonium clause, that said will is not signed by testatrix at the end thereof as enjoined and required by the above statute. Such claim, we think, upon the undisputed facts of this case, is without merit and should not be sustained. The result of the authorities upon the subject of what constitutes a signing at the end of the will -is summed up, and the rule correctly stated in Underhill on Wills, Section 185, where it is said: “In construing statutory requirements that the will shall be signed by the testator ‘at the end thereof/ the courts have held that a will is signed at the end when the signature follows all disposing portions of the will. The fact that a blank space is interposed between the dispositive portions of the will and the signature of the testator is never material. The signature of the testator need not immediately follow the last word of the will. It is required, however, that the signature of the testator shall come after all the dispositive portions of the will; and where this is not the case the will is not signed at the end.” In Beach on Wills, Section 31, it is said: “Formerly a blank space between the dis-positive portion of the will and the testator’s signature invalidated the instrument, but as the law now stands, neither an hiatus between the dispositive parts, nor between them and the subscription, will affect its validity.” If then, space between the dis-positive clauses of a will does not invalidate it, certainly a blank space intervening between the last dispositive provision of the will and the testimonium clause, cannot and should not have that effect. While the leaving of a blank space such as found in this will was imprudent, in that it afforded an opportunity for fraudulent practice, nevertheless, the leaving of such blank is not of itself sufficient to invalidate the will. By usage and custom, in every orderly constructed will, the testimonium clause is universally recognized and adopted as the formal conclusion and end of such will, unless from the instrument itself a contrary intent appears; and it is only the space between this testimonium clause and the signature of the party executing such will, that the law regards, and that the statute was intended to regulate, it being perfectly manifest from such instrument itself, when so constructed, that the testimonium clause is intended as the end thereof. Sears v. Sears, 77 Ohio St., 104. When therefore, as in the present case, the testatrix has adopted, as she had perfect right to do, the testimonium clause as the end of her will, and has signed her name immediately thereunder in the space, and on the line provided for that purpose, and there is no provision as to the disposition of property, or testamentary provision of any kind, after her signature, such signing must be taken and held to be at the end of the will.

Judgment affirmed.

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


text:
    No. 10697.
    The Board of Education of Clinton Township School District v. The State, ex rel. The Home for Friendless Children.
    Decided March 9, 1909.
    Error to Circuit Court of Knox county.

      Mr. J. A. Schaefer, for plaintiff in error. Mr. Calvin V. Trott, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10747.
    Murphy v. Goodman.
    Decided March 9, 1909.
    Error to Circuit Court of Marion county.

      Messrs. Copeland & Bartram, for plaintiff in error. Mr. H. Edmund Hill, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10748.
    Holmes v. Blackford.
    Decided March 9, 1909.
    Error to Circuit Court of Harrison county.

      Mr. Cyrus Hiding; Mr. D. Cunningham and Mr. R. H. Minteer, for nlainti^ in error.
      Mr. Albert O. Barnes and Mr. D. A. Hollingsworth, for defendant in error.
   Judgment reversed and” judgment of court of common pleas affirmed.

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


text:
    No. 10749.
    Young v. Foulk, Admr.
    Decided March 9, 1909.
    Error to Circuit Court of Putnam county.

      Messrs. Bailey &' Leasure, ior plaintiff in error. Messrs. Watts & Moore and Mr. A. A. Slaybaugh, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10750.
    Pharis et al. v. Welch.
    Decided March 9, 1909.
    Error to Circuit Court of Putnam county.

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

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


text:
    No. 10787.
    Creed v. Brigel, Admx., et al.
    Decided March 9, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Lawrence Maxwell, Jr., and Mr. Joseph L. Lackner, for plaintiff in error. Mr. Willard B. Stier; Messrs. Dempsey & Nieberding and Messrs. Closs & Luebbert, 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 be and the same is hereby reversed, for error in affirming the judgment of the court of common pleas wherein said court of common pleas overruled the demurrer of the plaintiff in said court to the third defense contained in the answers of Casper Becker, Ida Keck, Administratrix of Michael Keck, deceased, and Catherine M. Brigel, Administratrix of Leo A. Brigel, deceased, and dismissed the second amended petition of the plaintiff. This court rendering the proper judgment does sustain said demurrer to said third defense, at the costs of the defendants in error. Cause remanded to the court of common pleas.

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


text:
    No. 10788.
    Creed v. Brigel et al.
    Decided March 9, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Lawrence Maxwell, Jr., and Mr. Joseph L. Lackner, for plaintiff in error. Mr. Willard B. Stiers; Messrs. Dempsey & Nieberding and Messrs. Closs & Luebbert, 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 be and the same is hereby reversed for error in affirming the judgment of the court of common pleas, wherein said court of common pleas overruled the demurrer of the plaintiff in said court to the second defense contained in the answers of Casper Becker and Ida Keck, Administratrix of Michael Keck, deceased, to the amended petition, and wherein said court of common pleas overruled the demurrer of plaintiff to the third defense in the answer of Catherine M. Brigel, to the amended petition. And this court rendering proper judgment does sustain said demurrers to said defenses at the costs of defendants in error. Cause remanded to court of common pleas.

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


text:
    No. 10793.
    McLaughlin Brothers v. The American Express Company.
    Decided March 9, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Addison, Sinks & Babcock, for plaintiff in error. Messrs.. Henderson, Live say & Burr, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10799.
    The New York, Chicago & St. Louis Railroad Co. v. Clark, Guardian.
    Decided March 9, 1909.
    Error to Circuit Court of Putnam county.

      Messrs. Watts & Moore and Mr. John H. Clarke, for plaintiff in error. Mr. Daniel M. Bailey and Messrs. Bailey & Leasure, for defendant in error.
   Judgment reversed, and judg-

ment of the court of common pleas affirmed.

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


text:
    No. 10815.
    Lewandowski v. The Cleveland-Steel Casting Company.
    Decided March 9, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. J. M. Downey and Mr. Walter C. Ong, for plaintiff in error. Messrs. Kline, Tolies & Goff, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10926.
    Ryan v. The City of Cincinnati et al.
    Decided March 9, 1909.
    Error to Superior Court of Cincinnati.

      Mr. William J. Hood and Mr. Harry R. Weber, for plaintiff in error. Messrs. Ireton, Collins, Schoenle & Poor; Mr. George H. Kattenhorn; Mr. Edward M. Ballard and Mr. Geoffrey Goldsmith, for defendants in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 10929.
    Haker et al. v. Mitchell et al.
    Decided March 9, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Tanney & Barber, for plaintiffs in error. Messrs. Miller & Linder, for defendants in error.
   Judgment affirmed.

Summers, Spear and Sitauck, JJ., concur.


text:
    No. 10933.
    The City of Cincinnati v. Schrenk.
    Decided March 9, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Jesse Lowman and Mr. George H. Kattenhorn, for plain-' tiff in error. Mr. Michael'G. Heintz, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 10816.
    The Glens Run Coal Co. v. Fithen.
    Decided March 16, 1909.
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Lewis and Messrs. Cushing & Siddall, for plaintiff in error. Mr. E. E. Erskine and -Mr. Carl H. -Smith, for defendant in error.
   Judgment affirmed.

Grew,' C. ]., Summers and Price, JJ., concur.


text:
    No. 10820.
    Briggs et al. v. The Board of County Commissioners of Franklin County et al.
    Decided March 16, 1909.
    Error to Circuit. Court of' Franklin county.

      Mr. G. J. Marriott and Mr. O. J. Mitchell, for plaintiffs in error. Messrs. Webber, McCoy, King & Game, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10822.
    Hays et al. v. Roebuck et al.
    Decided March 16, 1909.
    Error to Circuit Court of Fayette county.

      Mr. Scott Bonham and Mr. John Logan, for plaintiffs in error. Mr. Humphrey Jones and Messrs. Creamer & Creamer, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10866.
    Williams et al. v. Pugh, Treasurer.
    Decided March 16, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Carpenter & Voorhee-s, for plaintiffs in error. Messrs. Webber, McCoy, King & Game, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10930.
    Carnell v. The Dr. Geo. Leininger Chemical Company.
    Decided March 16, 1909.
    Error to Circuit Court of Montgomery county.

      Mr. D. B. Van Pelt, for plaintiff in error. Messrs. Rowe, Shuey, Matthews & James, for defendant in error.
   Judgment reversed. . Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of said circuit court be and.the same is hereby reversed for error in affirming the judgment of the court of common pleas, and this court proceeding to render the judgment which said circuit court should have rendered, it' is ordered and adjudged, that the judgment of the court of common pleas be, and the same is hereby reversed, for error in overruling the motion for a new trial, on the ground that said court erred in holding that said goods had been accepted by the defendant, and for error in holding that the defendant had no right to reject and return the goods. The receipt of the goods and the sale of a few articles was not an acceptance. If the five hundred books specified in the memorandum were to be special books, such as defendant described, then the defendant could, after the plaintiff’s refusal or failure to supply them, return the goods and the defendant in such case is not liable.

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


text:
    No. 11079.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. The Barron-Boyle Company.
    Decided March 16, 1909.
    Error to Circuit Court of Hamilton county.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error. Mr. Charles L. Hopping and Mr. Wm. M. Tugman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10756.
    The Young Men’s Christian Association of Cincinnati v. Archibald.
    Decided March 23, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Charles C. Benedict and Mr. Robert S. Ftilton, for plaintiff in error. Mr. Wade Cushing, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10758.
    The Niles Boiler Co. v. French Market Grocery Company.
    Decided March 23, 1909.
    Error to Circuit Court of Trumbull county.

      Messrs. Smiley & Weiss and Mr. Joseph Smith, for plaintiff in error. Mr. Charles-Fillius, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10759.
    Jones v. Bramblage.
    Decided March 23, 1909.
    Error to Circuit Court of Meigs county.

      Mr. Hollis C. Johnston, for plaintiff in error. Mr. F. C. Russell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10825.
    The Cincinnati Traction Co. v. Rulison, Admr.
    Decided March 23, 1909.
    Error to Circuit Court of Hamilton county.

      Messrs. Outcalt & Hickenlooper and Mr. J. W. Heintzman, for plaintiff in error. Mr. John M. - Thomas, Jr., for defendant in error.
   Judgment affirmed,

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


text:
    No. 10942.
    In re Application of The Columbus, Marion & Bucyrus Railroad Company to cross the tracks of The Toledo, Walhonding Valley & Ohio Railroad and The Pennsylvania Company.
    Decided March 23, 1909.
    Error to Circuit Court of Marion county.

      Mr. I. H. Eymon, for plaintiffs in error. Messrs. Williams, Williams & Taylor and Messrs. Scoñeld, Durfee & Scoñeld, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 10943.
    Coffelt et al. v. McConnell.
    Decided March 23, 1909.
    Error to Circuit Court of Wyandot county.

      Messrs. Finley & Gallinger; Mr. Alfred S. Leuthold and Messrs. Meek & St alter, for plaintiffs in error. Mr. W. R. Hare and Messrs. Carter & Goodrich, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 10953.
    The Village of Silverton v. Davis.
    Decided March 23, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Frank H. Rep-pert and Messrs. Painter & Rhyno, for plaintiff in error. Mr. Charles M. Leslie and Mr. Frank F. Dinsmore, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 10954.
    The Village of Silverton v. Davis.
    Decided March 23, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Frank H. Rep-

      pert and Messrs. Painter & Rhyno, for plaintiff in error. Mr. Charles M. Leslie and Mr. Frank F. Dinsmore, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11172.
    Prettyman v. Board of County Commissioners et al.
    Decided March 23, 1909.
    Error to Circuit Court of Madison county.

      Mr. A. T. Cor dr ay and Mr. M. E. Thrailkill, for plaintiff in error. Mr. C. R. Hornbeck; Messrs. Murray & Emery and Mr. H. B. Welsh, prosecuting attorney, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11296.
    Brown v. Bonnell et al.
    Decided March 23, 1909.
    Error to Circuit Court of Hamilton county.

      Messrs. Horstman & Horstman, for plaintiff in error. Mr. Charles W. Baker, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11334.
    The Pennsylvania & Ohio Railway Co. v. Peck.
    Decided March 23, 1909.
    Error to Circuit Court of Ashtabula county.

      Mr. H. E. Starkey and Mr. Charles Lawyer, for plaintiff in error. Mr. D. F. Anderson and Messrs. Anderson, Anderson & Barnum, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11382.
    Rowland v. The State of Ohio.
    Decided March 23, 1909.
    Error -to Circuit Court of Lorain county.

      Messrs. Blandin, Rice & Ginn, for plaintiff in error. Mr. W. B. Wheeler and Mr. Charles Hammond, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11392.
    The State of Ohio v. Bercaw.
    Decided March 23, 1909.
    Exceptions to the Common Pleas Court of Williams county.

      Mr. Edward Gaudern, prosecuting attorney, for plaintiff in error. Mr. John W. Winn, for defendant in error.
   Exceptions overruled.

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


text:
    No. 11596.
    In the Matter of the Application of Addie Sutter for a Writ of Habeas Corpus.
    Decided March 23, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. S. V. McMahon, prosecuting attorney, and Mr. W. A. Carey, assistant prosecuting attorney, for plaintiff in error. Mr. O. W. Broadwell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10763.
    Davis v. Renick.
    Decided March 30, 1909.
    Error to Circuit Court of Pickaway county.

      Mr. Clarence Curtain, for plaintiff in error. Mr. Milt Morris and Mr. Harry B. Weaver, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10766.
    Stearns et al. v. Norton, Admx., et al.
    Decided March 30, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Gideon C. Wilson and Mr. Wm. Hartley Pugh, for plaintiffs in error. Mr. Frank M. Coppock and Messrs. Rulison, Morris, Sawyer & Rose, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10769.
    The Union Savings Bank & Trust Co. et al. v. Douglas.
    Decided March 30, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. W. W. Symmes, for plaintiffs in error. Mr. George T. Poor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10844.
    Shinew et al. v. The Board of County Commissioners et al.
    Decided March 30, 1909.
    Error to Circuit Court of Wood county.

      Messrs. Baldwin & Harrington, for plaintiffs in error. Mr. J. E. Ladd and Mr. E. G. McClelland, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10847.
    The Stewart Iron Co. v. The Fourth National Bank of Cadiz et al.
    Decided March 30, 1909.
    Error to Circuit Court of Knox county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error. Messrs. Lynch & Day; Messrs. Baldwin & Harrington; Mr. J. B. Waight; Mr. Constant Southworth; Mr. John R. Schindel;

      Messrs. Willis on & Day; Messrs. D. F. & J. D. Ewing; Mr. F. V. Owen and Mr. C. B. Matthews, for defendants in error.
   Judgment modified as shown 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 modified so as to order the payment of the amount so adjudged to be due to the said Stewart Iron Company,. Limited, as a part of the operating expenses of said receivership prior to the payment of any claims accruing to creditors of said Coxey Steel & Silica Sand Company, and in all other respects said judgment is affirmed.

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


text:
    No. 10852.
    Longbrake v. Zugschwert et al.
    Decided March 30, 1909.
    Error to Circuit Court of Hancock county.

      Messrs. Meehan & Foster, for plaintiff in error. Mr. Marion G. Foster; Mr. Albert Zugschwert; Mr. Henry W. Seney and Mr. W. H. Kinder, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10863.
    Yates et al. v. French, Trustee.
    Decided March 30, 1909.
    Error to Circuit Court of Columbiana county.

      Mr. S. W. Ramsey, for plaintiffs in error. Messrs. Metzger & Smith, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10916.
    The Aetna Life Insurance Co. v. Penn et al.
    Decided March 30, 1909.
    Error to Superior Court of Cincinnati.

      Mr. James J. Muir and Messrs. Paxton & Warrington, for plaintiff in error. Mr. W. A. Hicks and Mr. W. F. North, for defendants in error.
   Judgment reversed. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of said superior court in general term be and the same hereby is reversed for the reason that said insurance company did not declare said policy to be forfeited, nor did its refusal to receive premium due on June 26, 1886, and until it had made an investigation of Elijah G.'Penn’s habits as to the use of intoxicating liquors, especially with the consent of said Penn, amount to a forfeiture of said policy, and that said insurance company had the right to withdraw its refusal to receive the premium as aforesaid at any time before it received notice of an election by the other parties to the contract to rescind the contract or abide by the refusal to receive, its payment. And this court proceeding to render the judgment which the said-superior court in general term ought to have rendered, it is hereby ordered and adjudged that the petition of the plaintiffs below be dismissed.

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


text:
    No. 11177.
    Shidler et al. v. The State, ex rel. Plank.
    Decided March 30, 1909.
    Error to Circuit Court of Ashland county.

      Mr. George J. Frye,- -prosecuting attorney, and Mr. W. S. Kerr, for plaintiffs in error. . Mr. H. A. Mykrantg and
      Mr. C. P. Winbigler, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10772.
    Davidson v. Webb et al.
    Decided April 6, 1909.
    Error to Circuit Court of Knox county.

      Mr. W. O. Bowers and Mr. F. V. Owen, for plaintiff in error. Mr. Columbus Ewalt, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10780.
    McKee v. Mikesell et al.
    Decided April 6, 1909.
    Error to Circuit Court of Licking county.

      Messrs. Smythe & Smythe, for plaintiff in error. Mr. James R. Fitzgibbons, for defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 10789.
    Shipman v. Stone.
    Decided April 6, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. L. Bernard Ware, for plaintiff in error. Messrs. Plowland & Niman, for defendant in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 10868.
    The Board of Education of Superior Township v. Scott.
    Decided April 6, 1909.
    Error to Circuit Court of Williams county.

      Mr. Edzvard Gaudern, prosecuting attorney, and 'Mr. R. L. Starr, for plaintiff in error. Mr. Charles E. Scott; Mr. Charles A. Bowersox and Messrs. Newcomer. & Gebhard, for defendant in' error.
   Judgment reversed, and judgment of the court of common pleas affirmed.

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


text:
    No. 10969.
    Edwards v. O’Rourke.
    Decided April 6, 1909.
    Error to Circuit Court of Knox county.

      Messrs. Waight & Moore and Mr. W. A. Hosack, for plaintiff in error. Mr. Wm. M. Koons and Mr. Wm. G. Koons, for defendant in error.
   Judgment reversed, and judgment of the court of common pleas affirmed.

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


text:
    No. 10971.
    Montgomery et al. v. Solomon.
    Decided April 6, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Marriott, Belcher & Connor, for plaintiffs in error. Mr. Fred C. Rector, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11220.
    Atley v. The Board of County Commissioners et al.
    Decided April 6, 1909.
    Error to Circuit Court of Clinton county.

      Messrs. Post & Reid; Mr. H. H. Sanderson and Messrs. Rogers & Dempsey, for plaintiff in error. Mr. Joe T. Doan, prosecuting attorney, and Messrs. Smith & Clevenger, for defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 11425.
    Kimball, Trustee, v. The City of Toledo et al.
    Decided April 6, 1909.
    Error to Circuit Court of Lucas county.

      Mr. Clarence

      B. Hadden and Mr. Charles F. Watts, for plaintiff in error. Mr. Charles S. Northup, city solicitor, and Mr. Orion W. Nelson, for defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 10790.
    Weaver v. King et al.
    Decided April 13, 1909.
    Error to Circuit' Court of Licking county.

      Messrs. Jones & Jones and Mr. L. B. Houck, for plaintiff in error. Messrs. Kibler & Montgomery, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10794.
    Kerst v. Albright.
    Decided April 13, 1909.
    Error to Circuit Court of Darke county.

      Messrs. Anderson, Bowman & Anderson and Messrs. Robeson & Yount, for plaintiff in error. Mr. T. C. Miller and Mr. E. C. Wright, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10798.
    Wilkins, for himself and others, v. The Board of Education of Riley Township School District et al.
    Decided April 13, 1909.
    Error to Circuit Court of Putnam county.

      Messrs. Bailey &' Leasure, for plaintiff in error. Messrs. Handy & Unverferth and Messrs. Risser & Smith, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10800.
    Ginn, Assignee, v. Brown et al.
    Decided April 20, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Blandin, Rice & Ginn, for plaintiff in error. Mr. E. Jay Pinney and Messrs. Ford, Snyder & Tilden, for defendant in error.'
   Judgment affirmed.

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


text:
    No. 10804.
    The D. L. Adams Co. v. Federal Glass Co.
    Decided April 20, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Outhwaite, Linn & Thurman and Mr. J. W. Newton, for plaintiff in error. Messrs. Arnold, Morton & Irvine and Mr. Q. R. .Lane, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10809.
    The State, ex rel. Hagelbarger, Prosecuting Attorney, v. The Mutual Life Insurance Co.
    Decided April 20, 1909.
    Error to Circuit Court of Summit county.

      Mr. H. M. Hagelbarger, prosecuting attorney; Messrs. Kohler & Kohler and Mr. F. S. Monnett, for plaintiff in error. Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10813.
    Henry, Admr., v. The Ironton Portland Cement Co.
    Decided April 20, 1909.
    Error to Circuit Court of- Lawrence county.

      Mr. P. C. Booth and Mr. J. O. Yates, for plaintiff in error. Mr. A. R. Johnson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10818.
    Schwarz et al. v. Pesta.
    Decided April 27, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. W. B. Neff and Mr. Max P. Goodman, for plaintiffs in error. Mr. J. W. Sykora and Mr. Cornelius Maloney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11322.
    Hodge et al., Commissioners, v. Dunlap.
    Decided April 27, 1909.
    Error to Circuit Court of Champaign county.

      Mr. C. B. Heiserman and Mr. L. D. Johnson, for plaintiffs in error. Mr. T. J. Frank and Mr. J. E. Bowman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11341.
    The Youngstown & Southern Railway Co. v. Sheridan.
    Decided April 27, 1909.
    Error to Circuit Court of Mahoning county.

      Mr. A. W. Jones; Mr. Thomas L. Robinson and Messrs. Hine, Kennedy & Manchester, for plaintiff in error. Mr. M. A. Norris and Mr. Sr S. Conroy, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11404.
    Prescott et al., Partners as the Saginaw Bay Co., v. Koblitz.
    Decided April 27, 1909.
    Error to Circuit Court of Cuyahoga coun'ty.
    - Messrs. A. A.-& A. H. Bemis, for plaintiffs in error. Messrs. Ford, Snyder & Tilden and Mr. Harry Koblitz, for defendant in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 11414.
    Republic Iron & Steel Co. v. Toth et al.
    Decided April 27, 1909.
    Error to Circuit Court of Mahoning county.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error. Mr. W. R. Stewart and Mr. M. A. Norris, for defendants in error.
   Judgment affirmed.'

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


text:
    No. 11569.
    Carland et al. v. Feller.
    Decided April 27, 1909.
    Error to Circuit Court of Lucas county.

      Messrs. King, Tracy, Chapman & Welles and Messrs. Lloyd & Rettig,. for plaintiffs in error. Messrs. Potter' & Potter, for defendant 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 be and the same hereby is reversed for error in affirming and not reversing the judgment of the court of common pleas of Lucas county. And proceeding to render the judgment which the circuit court should have rendered it .is considered and adjudged that the judgment of the court of common pleas of Lucas county in the case be and the same hereby is reversed for error in overruling the objection of defendant below to the question propounded to the witness, Patrick J. Flanagan, at page fifty-three of the printed record, to this effect: “At the time or times that you sent the Italian, Pete, to Mr. Flynn as a helper to do the blasting, state whether or not in your judgment, from your knowledge of the man, Peter was a competent man; that is, a safe and fit man to be trusted with operating the electric battery in firing the blast?” and in not sustaining the objection of the defendant below and in admitting the answer of the witness thereto and overruling the motion of the defendant' below to strike out said answer.

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


text:
    No. 10695.
    Crosby et al. v. Crosby et al.
    Decided May 4, 1909.
    Error to Circuit Court of Ashtabula county.

      Mr. B. H. Rickard, for plaintiffs in error. Messrs. Calvin, Hogue & Goddard and Mr. H. E. Starkey, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10821.
    The Cincinnati Northern Railroad Co. v. Piatt.
    Decided May 4, 1909.
    Error to Circuit Court of Darke county.

      Mr. A. L. Clark; Mr. John C. Clark and Mr. L. J. Hackney, for plaintiff in error. Mr. Martin B. Trainor, for defendant in error.
   Judgment reversed, and court of common pleas affirmed.

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


text:
    No. 10830.
    Guthrie v. Shappell et al.
    Decided May 4, 1909.
    Error to Circuit Court of Allen county.

      Messrs. Richie & Richie and
      Messrs. 'Becker & Becker, for plaintiff in error. Messrs. Ridenour & Halfhill, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10855.
    Ritchie v. The West Hill Land Co.
    Decided May 4, 1909.
    Error to Circuit Court of Summit county.

      Mr. W. E. Young, fox-plaintiff in error. Messrs. Stuart & Stuart, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10884.
    Wiggers v. The Cincinnati Traction Co.
    Decided May 4, 1909.
    Error to Superior Court of Cincinnati.

      Mr. Charles M. Cist and Mr. Guido Gores, for plaintiff in error. Messrs. Kinkead, Rogers & Ellis, for defendant in' error.
   Judgment affirmed.

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


text:
    No. 11311.
    The Cambridge Glass Co. v. Mullen, a minor, etc.
    Decided May 4, 1909.
    Error to Circuit Court of Guernsey county.

      Messrs. Rosemond & Bell and Messrs. Turnbaugh & Eagleson, for plaintiff in error. Mr. Robert T. Scott, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11353.
    The State of Ohio v. Ford.
    Decided May 4, 1909.
    Error to Circuit Court of Geauga county.

      Mr. William G. King, prosecuting attorney, for plaintiff in error. Mr. N. H. Bostwick and Mr. W. H. Boyd, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11393.
    The Gilchrist Transportation Co. v. Pearson.
    Decided May 4, 1909.
    Error to Circuit Conrt of Cuyahoga county.

      Messrs. Sea-ton, & Paine for plaintiff in error. Messrs. Skiles, Green & Skiles; Mr. R. B. Newcomb; Mr. A. G. Newcomb and Mr. Frank M. Cobb, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11415.
    Wilkinson et al. v. Reynolds, Auditor, et al.
    Decided May 4, 1909.
    Error to Circuit Court .of Jefferson county.

      Mr. Ernest L. Finley, for plaintiffs in error. Mr. W. R. Al-ban and Mr. A. C. Lewis, for defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 11432.
    Ransom v. Taylor et al.
    Decided May 4, 1909.
    Error to Circuit Court of Erie county.

      Mr. H. L. Peeke, for plaintiff in error. Mr. FI or ace Andrews and Mr. A. V. Andrews, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11490.
    Weyrick v. The State of Ohio.
    Decided May 4, 1909.
    Error to the Circuit Court of Allen county.

      Mr. W. E. Young, for plaintiff in error. Mr. H. M. Hagelbarger, prosecuting attorney, for defendant in error.'
   Judgment reversed upon the ground that the act of April 2, 1906 (98 O. L., 197), “To provide for the protection, preservation and propagation of fish,” being Section 6968-7, Revised Statutes, may not be so construed as to apply to devices in the possession of the owner of a part of a privately owned natural lake, to be used by him for catching fish therein. Judgment for plaintiff in error.

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


text:
    No. 11102.
    The Herancourt Brewing Co. v. Frank.
    Decided May 11, 1909.
    Error to Superior Court of Cincinnati.

      Mr. C. D. Robertson; Mr. Adam Kramer and Mr. F. M. Gorman., for plaintiff in error. Messrs. Strieker & Johnson, for defendant in error.
   Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.


text:
    No. 11233.
    Westwater v. The Columbus, Sandusky & Hocking Railroad Co. et al.
    Decided May 11, 1909.
    Error to Circuit Court of Franklin county.

      Mr. James-G. Westwater, for plaintiff in error. Messrs. Stewart & Stewart; Mr. F. C. Rector; Mr. T. E. Powell; Messrs. Albery & Westfall; Messrs. Herron, Gatch & James; Mr. Theodore Leonard; Mr. W. O. ILenderson; Messrs. Outhwaite, Linn & Thurman; Messrs. Safer & Seymotir; Mr. F. N. Sinks; Mr. J. F. Rogers; Mr. F. Etving Martin; Mr. J. FI. Vercoe; Mr. Emmet Tompkins; Messrs. Crum, Raymund &

      Hedges; Mr. C. O. Hunter; Mr. John J. Stoddart; Mr. Alex. T. Smith and Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11234.
    Marriott (Consolidated) et al. v. Bancroft, Exrx., et al.
    Decided May 11, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Stewart & Stewart; Mr. Fred C. Rector; Mr. T. E. Powell; Messrs. Albery & Westfall and Messrs. Herron, Gatch & James, for plaintiffs in error. Messrs. Safer & Seymour; Messrs. Henderson, Livesay & Burr; Mr. John J. Stoddard; Mr. J. H. Vercoe; Messrs. Crum, Raymund & Hedges; Messrs. Harmon, Colston, Goldsmith & Hoadly; Mr. D. H. Sozvers; Mr. Theodore Leonard; Mr. W. L. Merwine and Mr. E. L. Taylor, Jr., for defendants in error.
   Judgment affirmed.

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


text:
    No. 11235.
    Marriott (Consolidated) et al. v. Gunn et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11236.
    Marriott (Consolidated) et al. v. King et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as. No. .11234, herein.)


text:
    No. 11237.
    Marriott (Consolidated) et al. v. Everett et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11238.
    Marriott (Consolidated) et al. v. Todd et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11239.
    Marriott (Consolidated) et al. v. The Massachusetts Mutual Life Insurance Co. et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11240.
    Marriott (Consolidated) et al. v. Felton et al., Exrs., et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11241.
    Marriott (Consolidated) et al. v. Taylor et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11242.
    Marriott (Consolidated) et al. v. Bellows et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11243.
    Tuller v. Marriott (Consolidated) et al.
    Decided May 11, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Outhwaite, Linn & Thurman; Mr. C. O. Hunter; Messrs. Gumble & Gumble; Messrs. Wilson & West; Messrs. Sater & Seymour; Mr. John F. Rogers and Mr. Frederick N. Sinks, for plaintiff in error. Messrs. Stewart & Stewart; Mr-. F. C. Rector; Mr. T. E. Pozvell and Messrs. Herron, Gatch & James, for defendants in error.
   Judgment of the circuit court reversed and appeal dismissed.

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


text:
    No. 11244.
    Marriott (Consolidated) et al. v. United States Express Co. et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11245.
    Marriott (Consolidated) et al. v. Turney et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11246.
    Marriott (Consolidated) et al. v. Converse et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11247.
    Marriott (Consolidated) et al. v. Joyce, Jr., Exr., et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11248.
    Marriott (Consolidated) et al. v. Livesay et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11249.
    Marriott (Consolidated) et al. v. Neil, Trustee, et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11250.
    Marriott (Consolidated) et al. v. Leonard et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11251.
    Marriott (Consolidated) et al. v. Covert et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11252.
    Marriott (Consolidated) et al. v. Ransom et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11253.
    Marriott (Consolidated) et al. v. Martin et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.).


text:
    No. 11254.
    Marriott (Consolidated) et al. v. Firestone et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11255.
    Marriott (Consolidated) et al. v. Shedd et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11256.
    Marriott (Consolidated) et al. v. Neil et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11257.
    Marriott (Consolidated) et al. v. Shedd et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11258.
    Marriott (Consolidated) et al. v. Swan et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No 11234, herein.)


text:
    No. 11259.
    Marriott (Consolidated) et al. v. Miller et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11260.
    Marriott (Consolidated) et al. v. Butler et al.
   (Date of decision, court of error, counsel of parties. judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11261.
    Marriott (Consolidated) et al. v. Little et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11262.
    Marriott (Consolidated) et al. v. Schmidt et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11234, herein.)


text:
    No. 11263.
    Marriott (Consolidated) et al. v. Sessions, Admr., et al.
    Decided May 11, 1909.
    Error to Circuit Court of Franldjn county.

      Messrs. Stezvart & Stezvart; Mr. F. C. Rector; Mr. T. E. Powell; Messrs. Albery & Westfall and Messrs. Herron, Gatch & James, for plaintiffs in error. Messrs. Ricketts & Cope and Mr. Theodore Leonard, for defendants in error.
   Judgment of circuit court reversed and appeal dismissed.

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


text:
    No. 11264.
    Hughes v. Marriott (Consolidated) et al.
    Decided May 11, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Gumble & Gztmble; Messrs. Sater & Seymour; Mr. C. O. Hunter; Mr. John F. Wilson; Messrs. Outhwaite, Linn & Thurman; Mr. J. F. Rogers and Mr. Frederick N. Sinks, for plaintiffs in error. Messrs. Stewart & Stewart; Mr. Fred C. Rector; Mr. T. E. Powell and Messrs. Herron, Gatch & James,
      for defendants in error.
   Judgment of circuit court reversed and appeal dismissed.

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


text:
    No. 11265.
    The Columbus & Hocking Coal & Iron Co. v. Marriott (Consolidated) et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11264, herein.)


text:
    No. 11266.
    Linn v. Marriott (Consolidated) et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11264, herein.)


text:
    No. 11267.
    Sinks v. Marriott (Consolidated) et al.
   (Date of decision, court of error, counsel of parties, judgment and concurrences, same as No. 11264, herein.)


text:
    No. 11478.
    Kemper, Admr., v. The Apollo Building & Loan Co. et al.
    Decided May 11, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. W. A. Hicks and Mr. Dennis F. Cash, for plaintiff in error.' Mr. Willis M. Kemper; Mr. D. D. Woodmansee; Mr. Thomas C. Welch; Mr. Owen N. Kinney; Mr. J. H. Charles Smith; Mr. Wm. Walker Smith, Jr.; Messrs. Pogue & Pogue; Mr. Charles M. Leslie; Messrs. Roettinger & Gorman; Mr. William C. McLean; Mr. Frank H. Kem

      per and Mr. David Davis, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10837.
    Brown v. Brown et al.
    Decided May 18, 1909.
    Error to Circuit Court of Huron county.

      Mr. S. M. Young, for plaintiff in error. Messrs. McKnight & Thomas, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10843.
    Darby, Admr., v. The City of Cincinnati.
    Decided May 18, 1909.
    Error to Superior Court of Cincinnati.

      Mr. Thomas H. Darby, for plaintiff in error. Mr. Edzvard M. Ballard and Mr. Dudley V. Sutphin, city solicitors, for defendant in error.
   Judgment affirmed.

Spear, Davis and Spiauck, JJ., concur.


text:
    No. 10846.
    The Newark Natural Gas & Fuel Co. v. Forry, Receiver.
    Decided May 18, 1909.
    Error to Circuit Court of Licking county.

      Mr. S. M. Douglass and Mr. J. R. Fitzgibbon, for plaintiff in error. Mr. Charles C. Forry; Mr. E. S. Randolph and Messrs. Flory & Flory, for defendant in error.
   Judgment affirmed.

Sum:mers, Spear, Shauck and Price, JJ., concur.


text:
    No. 10850.
    Hoffman v. M. A. Hanna & Co.
    Decided May 18, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. J. M. Dozvney and Mr. Walter C. Ong, for plaintiff in error. Messrs'. Sea-

      ton & Paine, for defendant in error.
   Judgment reversed and judgment of court of common pleas affirmed.

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


text:
    No. 10853.
    The Reeves Coal Co. v. Smith.
    Decided May 18, 1909.
    Error to Circuit Court of Tuscarawas county.

      Mr. J. G. Patrick and Messrs. Hostetler & Hostetler, for plaintiff in error. Messrs. Richards & McCullough, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10854.
    Luttig et al. v. McGee.
    Decided May 18, 1909.
    Error to Circuit Court of Columbiana county.

      Mr. John E. Scott and Messrs. Metzger & Smith, for plaintiffs in. error. Messrs. Taylor & Harris, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10878.
    Wight et al. v. Otis et al.
    Decided May 18, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. E. J. Estey; Mr. H. J. Caldwell and Messrs. Squire, Sanders & Dempsey, for plaintiffs in error. Messrs. White, Johnson, McCaslin & Cannon; Mr. John E. Ensign and Mr. Louis J. Esty, for defendants in error.
   Judgment reversed and judgment of court of common pleas affirmed.

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


text:
    No 10908.
    The Columbus, Delaware & Marion Electric Railroad Co. v. Price.
    Decided May 18, 1909.
    Error to Circuit Court of Delaware county.

      Messrs. Williams, Williams & Taylor and Messrs. Marriott & Freshwater, for plaintiff in error. Messrs. Overturf & Plough, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10913.
    Ingram v. The National Union et al.
    Decided May 18, 1909.
    Error to Superior Court of Cincinnati.

      Mr. Joseph T. Harrison and Mr. C. B. Matthews, for plaintiff and cross-petitioners in error. Mr. C. W. Baker and Mr. George P. Kirby, for The National Union, defendant in error.
   Judgment affirmed.

Summers, Davis and Shauck J}., concur.


text:
    No. 10917.
    Dallet v. The Lake Shore & Michigan Southern Railway Company.
    Decided May 18, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Foran, Pearson & Poto ell and Mr. W. D. McTighe, for plaintiff in error. Mr. John H. Clarke and Messrs. Cook, McGowan & Foote, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10951.
    O'Brien v. Hare, Admr.
    Decided May 18, 1909.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & St alter, for plaintiff in error. Mr. Thomas Beer; Mr. Elza Carter and Mr. W< R. Hare, for defendant in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 10965.
    Day et al. v. Gogreve.
    Decided May 18, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Henry Baer; Mr. Charles J. Fitzgerald and Messrs. Powell & Smiley, for plaintiffs in error. Mr. Chris. Von Seggern and Messrs. Burch & Johnson, for defendant in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 10967.
    Monnette et al. v. Epley et al., Commissioners, et al.
    Decided May 18, 1909.
    Error to Circuit Court of Marion county.

      Mr. Charles C. Fisher; Messrs. Scoñeld, Durfee & Scoheld; Messrs. Mouser & Quigley and Messrs. Copeland & Bartram, for plaintiffs in error. Mr. John H. Clark; Messrs. Crissinger & Guthery and Mr. W. N. Harder, for defendants in error.
   Judgment affirmed. Action prematurely commenced.

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


text:
    No. 11297.
    Coppock v. Harris et al.
    Decided May 18, 1909.
    Error to Superior Court of Cincinnati.

      Mr. F. M. Coppock and Mr. W. A. Hicks, for plaintiff in error. Mr. William R. Collins, for defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 11298.
    Benham et al. v. Harris et al.
    Decided May 18, 1909.
    Error to Superior Court of Cincinnati.

      Mr. F. M. Coppock and Mr. W. A. Hicks, for plaintiffs in error. Mr. William R.

      Collins, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11299.
    Benham et al. v. Harris et al.
    Decided May 18, 1909.
    Error to Superior Court of Cincinnati.

      Mr. F. M. Coppock and Mr. W. A. Hicks, for plaintiffs in error. Mr. William R. Collins, for. defendants in error.
   Judgment affirmed.

Summers, Davis and Shauck, JJ., concur.


text:
    No. 11752.
    The State, ex rel. Curran, v. Sayre, Auditor, et al.
    Decided May 18, 1909.
    Error to Circuit Court of Franklin county.

      Mr. George B. Okey, for plaintiff in error. Messrs. Webber, McCoy, King & Game, prosecuting' attorneys, for defendants in error.
   Judgment affirmed.

Summers, Si-iauck and ’ Price, JJ., concur.


text:
    No. 10857.
    Tousley v. The Brooklyn Savings & Loan Assn.
    Decided May 25, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Smith, Taft & Arter, for plaintiff in error. Mr. Morton W. Cope, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10874.
    The Board of Commissioners of Crawford County v. The Board of Commissioners of Huron County et al.
    Decided May 25, 1909.
    Error to Circuit. Court of Huron county:

      Mr. C. H. Rinkley, prosecuting attorney, and Mr. J. R. McKnight, for plaintiff in error. Mr. Louis W. Wickham, prosecuting attorney, for defendants in error.-
   Judgment affirmed.

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


text:
    No. 10875.
    Smith et al. v. The Board of Commissioners of Huron County et al.
    Decided May 25, 1909.
    Error to Circuit Court of Huron county.

      .Mr. E. K. Trailger and Messrs. McKnight & Thomas, for plaintiffs in error. Mr. Louis W. Wickham; Mr. C. H. Henkel and Mr. C. LL. Huston, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10876.
    Ferguson et al. v. The Board of Commissioners of Huron County et al.
    Decided May 25, 1909.
    Error to Circuit Court of Huron countjd

      Mr. E. K. Trauger and Messrs. McKnight & Thomas, for plaintiffs in error. Mr. Louis W. Wickham; Mr. C- IT. Henkel and Mr. C. H. Huston, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10877.
    The City National Bank of Dayton v. Kennedy, Admr., et al.
    Decided May 25, 1909.
    Error to Circuit Court of Montgomery county.

      Mr. D. P. Van Pelt, for plaintiff in error. Mr. O. F. Davisson;. Messrs. Y o%mg & Young; Messrs. Carr) Allaman, Kennedy & Retter and Messrs. Gottschall & Tiirner, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10907.
    The Preferred Masonic Mutual Accident Assn. et al. v. Harrington.
    Decided May 25, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Frank T. Lodge; Messrs. Boyce & Boyd and Mr. M. C. Slutes, for plaintiffs in error, Mr. Michael G. Heints, for defendant in error.
   Judgment vacated, and cause remanded to circuit court with instructions to consider the deposition of Warner as part of bill of exceptions.

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


text:
    No. 10923.
    The Northern Ohio Railway Co. v. Cauffield, Admr.
    Decided May 25, 1909.
    Error to Circuit Court of Summit county.

      Messrs. Tibbals & Frank and Mr. John B. C'ockrum, for plaintiff in error. Mr. Charles C. Benner and Mr. Edwin F. Voris, for defendant in error.
   Judgment reversed and judgment for plaintiff in error on authority of Railroad Co. v. Harvey, 77 Ohio St., 235.

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


text:
    No. 10934.
    Sandrowitz, Admr., v. The Hollenden Hotel Company.
    Decided May 25, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr.

      Frederick P. Waither; Mr. E. C. Schwan and Mr. C. N. Sheldon, for plaintiff in error. Messrs. Sea-ton & Paine and Messrs. Kline, Tolles & Goff, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10935.
    Miller, by etc., v. The Nicola Brothers Company.
    Decided May 25, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. E. C. Schwan and Mr. C. N. Sheldon, for plaintiff in error. Messrs. Jenkins, Russell & Eichelberger and Messrs. Goulder, Holding & Masten, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11708.
    The State, ex rel. Herrick et al., v. Searcy, Mayor of Portsmouth.
    Decided May 25, 1909.
    Error to Circuit Court of Scioto county.

      Messrs. Milner, Miller & Searl, for plaintiffs in error. Mr. Horace L. Small, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10879.
    Hamilton, Admr., v. Stewart et al.
    Decided June 1, 1909.
    Error to Circuit Court of Allen county.

      Mr. R. L. Armstrong and Mr. James D. Johnson, for plaintiff in error.- Mr. M. A. Hoagland, for defendants in error.
   Judgment' affirmed.

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


text:
    No. 10882.
    Basinger v. Kiene.
    Decided June 1, 1909.
    Error to Circuit Court of Putnam county.

      Messrs. Bailey & Le asure, for plaintiff in error. Messrs. Risser & Smith, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10883.
    Bokenkotter, Admr., v. The Cincinnati, Lebanon & Northern Railway Company et al.
    Decided June 1, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. George E. Mills and Messrs. Littleford & Ballard, for plaintiff in error. Messrs. Maxwell & Ramsey, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10906.
    The State, ex rel. The Drake Coal Co. v. McFadden et al.
    Decided June 1, 1909.
    Error to Circuit Court of Richland county.

      Messrs. Smith, Taft & Arter and Messrs. Cummings, McBride & Wolfe, for plaintiff in error. Mr. Wade H. Ellis, attorney general; Mr. O. E. Harrison and Mr. Smith. W. Bennett, for defendants in error.
   Judgment affirmed.

Summers, Spear and Shauck, JJ., concur.


text:
    No. 10910.
    Snedden v. The Cleveland Machine Knife Company.
    Decided June 1, 1909.
    Error to' Circuit Court of Cuyahoga county.

      Mr. Frank L. Kuhn, for plaintiff in error. Messrs. Smith, Taft & Arter, for defendant in error.
   Judgment affirmed.

Summers, Spear and Shauck, JJ., concur.


text:
    No. 10914.
    The Union National Bank of Cleveland v. Gill et al.
    Decided June 1, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Treadway & Marlatt, for plaintiff in error. Messrs. Elliott & Elliott; Mr. C. K. Fauver; Mr. M. L. Thomsen; Messrs. Judson & Weld; Messrs. Hills & Van Deveer and Messrs. Herrick & Hopkins, for defendants in error.

   Judgment of the circuit court modified so as to permit all creditors of the corporation to participate in the fund arising from unpaid stock subscriptions. In all other respects the judgment of the circuit court is affirmed.

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

Summers and Spear, JJ., do not concur in the affirmance of the judgment against The Union National Bank.


text:
    No. 10936.
    The City of Cincinnati et al. v. Buerger.
    Decided June 1, 1909.
    Error to Superior Court of Cincinnati.

      Mr. Walter A. DeCamp and Messrs. Outcalt & Hickenlooper, for plaintiffs'in error. Mr. Charles J. Fitzgerald and Mr. Prescott Smith, for defendant in error.
   Judgment, affirmed.

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


text:
    No. 10938.
    Kaiser v. Walsh, Assistant Milk Inspector.
    Decided June 1, 1909.
    Error to Circuit Court of Hamilton county.

      Messrs. Renner & Renner and Mr. Eugene Heim, for plaintiff in error. Mr. Edward M. Ballard and Mr: Albert H. Morrill, city solicitors, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 10952.
    The City of Cincinnati v. Boggs, an Infant, by etc.
    Decided June 1, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard and Mr. Albert H. Morrill, city solicitors, for plaintiff in error. Mr. William Littleford, for defendant in error.
   Judgment affirmed.

Summers, Davis and Sitauck, JJ., concur.


text:
    No. 10999.
    McLaughlin Brothers v. Centerburg & Croton Percheron Horse Company.
    Decided June 1, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Addison, Sinks & Babcock, for plaintiff in error. Mr. F. V. Owen and Mr. E. M. Baldridge, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11401.
    The Lake Erie & Western Railroad Co. v. Newbright, Admx.
    Decided June 1, 1909.
    Error to Circuit Court of Allen county.

      Mr. John B. Cockrum; Messrs. Richie & Richie and Mr. W. H. Leete, for plaintiff in error. Messrs. Ridenour & Halfhill and Mr. O. O. Barr, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10847.
    The Stewart Iron Co. v. The Fourth National Bank of Cadiz et al.
    Decided June 8, 1909.
    Error to Circuit Court of Knox county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error. Messrs. Lynch & Day; Messrs. Baldwin & Harrington; Mr. J. B. Waight; Mr. Constant Southworth; Mr. John R. Schindel; Messrs. Willison & Day; Messrs. D. F. & J. D. Ewing; Mr. F. V. Owen and Mr. C. B. Matthews, for defendants in error.
   On rehearing. Former judgment modified as stated in journal entry.

This cause being heard upon the application of counsel for the defendant in error, Clarence Jami-son and others, the holders of labor claims, for a further modification of the decree and order of distribution of the circuit court herein, and for an order giving-' to said claims preference over the judgment of The Union National Bank; the court being fully advised in the premises upon consideration does overrule and refuse said application.

Thereupon it being made to appear to the court by the receiver, that by reason of this court having allowed the judgment of The Stewart Iron Company, Limited, as an operating expense of said receiver; and the fact that said receiver has only received three per cent, interest on the funds in his hands since the order of distribution of the circuit court herein; there is not sufficient funds in the receiver’s hands to pay in full the indebtedness represented in class “A” and “B” as shown in printed record, page 191, with the claim of The Stewart Iron Company, Limited,' added in class “B”; the order of distribution of the circuit court is further modified in this, to-wit:

1. Said receiver is ordered to pay in full the indebtedness in class “A.”

2. Said receiver is ordered to pay the- indebtedness represented in class “B” in preference to the claim of the defendant in error, Clarence Jamison, and others, known as labor claims; said receiver is ordered to pay the indebtedness represented in class “B” in the following order of priority:

1. The receiver’s certificates, with interest at three per cent, since the date of entry of the circuit court.

2. Operating expenses, .with interest at three per cent, since the date of entry of circuit court.

3. The judgment of The Stewart Iron Company, Limited, with interest at three per cent, since the date of the entry of circuit court.

Said receiver in making payments of indebtedness in class “B” shall use the $2,000.00 forfeited by first purchaser; the $1,150.00 from sale of personal property at Massillon, Ohio; the $3,000.00 from sale of personal property in Mt. Vernon, Ohio, if necessary to pay indebtedness in class “B” in full as herein ordered; otherwise the order of distribution of the circuit court is approved, and except as herein and hereinbefore modified the former judgment is adhered to.

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


text:
    No. 11545.
    Jacobs, Admr., v. The Wellston Iron & Steel Company.
    Decided June 8, 1909.
    Error to Circuit Court of Jefferson county.

      Mr. Albert E. Jacobs and Messrs. Belcher & Conner, for plaintiff in error. Mr. E. JJ. Willis arid Mr. Timothy S. Hogan, for defendant in error.
   Judgment reversed, and judgment of the court of common pleas affirmed.

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


text:
    No. 10856.
    Roth et al., Trustees, et al. v. Beech.
    Decided June 15, 1909.
    Error to Circuit Court of Medina county.

      Mr. N. H. McClure and Mr. Frank Heath, for plaintiffs in error. Messrs. Licey & Licey and Mr. Arthur Van Epp, for defendant in error'.
   Judgment affirmed on authority of The Alma Coal Co. v. Cozad, Treasurer, 79 Ohio St., 348.

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


text:
    No. 10912.
    Dye et al. v. George et al., Commissioners of Hancock County, et al.
    Decided June 15, 1909.
    Error to Circuit Court of Hancock county.

      Messrs. J. A. & E. -V. Bope, for plaintiffs in error. Mr. W. L. David, for defendants in error.
   Judgment affirmed.

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