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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
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 FORMS 
 
 OF 
 
 INSTRUCTIONS TO JURIES 
 
 JUDGMENT ENTRIES 
 
 COVERING CIVIL AND CRIMINAL 
 
 CASES IN ALL COURTS OF 
 
 RECORD IN OHIO 
 
 / 
 
 By EDGAR B. KINKEAD 
 
 (OF THE COLUMBUS BAR) 
 
 AUTHOR OF "CODK PLEADING" 
 
 CINCINNATI 
 
 W. H. ANDERSON & COMPANY 
 
 1897
 
 
 
 Copyright, 1897, by W. H. Anderson & Co.
 
 PREFACE. 
 
 IN *.he preparation of this volume an earnest endeavor has 
 been made to follow and carry out suggestions made to 
 the author, and it is hoped that the expectations of friends 
 of the enterprise may be realized, and that it may prove use- 
 ful to bench and bar. The Forms of Instructions have been 
 gathered from the reports, records of unreported cases in the 
 Supreme Court, and from instructions given by various trial 
 judges in cases which have not all been reviewed by the 
 higher courts. Some have been taken from other states, and 
 others have been prepared by the author to make the compi- 
 lation more complete. The effort has been to select only 
 such charges as have been directly approved, or those which 
 will prove reliable under test. The kind assistance of the 
 various judges who have aided in the work, as well as the 
 words of encouragement offered by others, will always be 
 cherished. 
 
 I have endeavored to make the Judgment Entries as full 
 and complete as possible, covering all courts of record in the 
 state. Forms are only suggestive guides to be followed with 
 judgment and discretion, and when so used serve a useful 
 purpose. My associate, Wellington L. Merwine, has ren- 
 dered valuable assistance in the compilation of the Judg- 
 ment Entries. 
 
 Edgar B. Kinkead. 
 Columbus, Ohio, June, 1897.
 
 TABLE OF CONTENTS. 
 
 / 
 
 Part I. 
 
 FORMS OF INSTRUCTIONS TO JURIES. 
 
 PAGE 
 
 Introductory or Opening Remarks — Province of Court and Jury . . i 
 
 Accomplice 6 
 
 Accord and Satisfaction— Settlement and Composition 8 
 
 Account ii 
 
 Agency 1 1 
 
 Aider and Abettor 12 
 
 Alienation of Affection 15 
 
 Animals 20 
 
 Arrest ' 24 
 
 Assault and Battery 25 
 
 Alibi — See Evidence 33 
 
 Banks, Bank Deposits and Bank Checks 34 
 
 Bastardy 37 
 
 Bills and Notes 38 
 
 Breach of Promise to Marry 47 
 
 Burglary 51 
 
 Chattel Mortgage 54 
 
 Common Carriers 55 
 
 Contracts — Building Contracts 66 
 
 Death by Wrongful Act — See also Negligence 75 
 
 Deeds jj 
 
 Ejectment — Adverse Possession 79 
 
 Elevators s j 
 
 Embezzlement 85 
 
 Eminent Domain — Appropriation of Property 88 
 
 Estoppel roo 
 
 Evidence — Witnesses roi 
 
 False Claim under R. S. Sec 7075 122 
 
 False Imprisonment 124 
 
 Fraud — False Representations 127 
 
 (.ambling Contracts 140 
 
 Grand Jury 1^2 
 
 Homicide 157 
 
 i
 
 11 TABLE OF CONTENTS. 
 
 PAGE 
 
 Insanity 182 
 
 Intoxicating Liquor 185 
 
 Insurance — Fire — Accident — Life 193 
 
 Landlord and Tenant 216 
 
 Larceny 219 
 
 Libel and Slander 223 
 
 Malicious Prosecution 251 
 
 Malpractice 256 
 
 Marriage 257 
 
 Municipal Corporations — Care of Streets — Sidewalks and Sewers 
 
 — Injuries from Change of Grade 261 
 
 Negligence 287 
 
 GENERAL DIVISIONS. 
 
 (1) Opening Statements 287 
 
 (2) General Principles — Applicable to all cases 290 
 
 (3) Railroads — Duties to Passengers 304 
 
 (4) Railroads — Rules Governing Employees 318 
 
 (5) Railroads and its Employees 320 
 
 (6) Railroads — Duty to block Frogs 351 
 
 (7) Injuries at Railroad Crossings 355 
 
 (8) Miscellaneous Cases Pertaining to Railroads 366 
 
 (9) Miscellaneous Cases not Pertaining to Railroads .... 373 
 
 (10) In Mines and Mining 383 
 
 (11) Measure of Damages 389 
 
 (12) Street Railways 397 
 
 Nuisance 422 
 
 Offenses against Chastity 429 
 
 Partnerships 433 
 
 Perjury 437 
 
 Rape and Assault to Commit 44° 
 
 Robbery , 445 
 
 Sales 450 
 
 Statute of Limitations 468 
 
 Streets — See also Municipal Corporations . 471 
 
 Sureties 476 
 
 Tender 477 
 
 Wills 478 
 
 Work, Labor, and Services 49°
 
 FORMS 
 
 OF 
 
 INSTRUCTIONS TO JURIES. 
 
 PROVINCE OF COURT AND JURY. 
 
 No. i. Relations of court, jury, and attorney — Instruc- 
 tion as to zeal of counsel. — For fear that the heated, over- 
 wean ing zeal of counsel may tend to lead some of you away 
 from the dignity and importance of a judicial trial, and your 
 positions and duties as jurors, you are admonished that you 
 should not by any means be mislead from the calm, staid, 
 intelligent, impartial consideration of the matter submitted 
 to you. The discharge of your duties is a matter of very 
 grave moment, not only to the parties to the suit, but to the 
 public welfare. The amount involved is of great consequence 
 to the parties, but the righteousness of the proceedings of this 
 court is of much greater importance. 
 
 The duties of the court and yourselves are decidedly dif- 
 ferent from those of the attorneys, who frequently in their 
 zeal, on the spur of the moment, go beyond what they would 
 approve in their deliberate moments. 
 
 it is one of the fundamental maxims of our profession, 
 that the lawyer must be true to his client, loyal to his every 
 interest, and that he must permit no stone to be unturned in 
 his efforts to see that the right of his client is properly vin- 
 dicated, and if some do exercise more zeal than judgment, 
 a zeal that never ought to affect you, and never ought to 
 affect the court. Your duty is to determine from the evi- 
 dence in the case, what the facts are and where the rights of 
 the parties lie", irrespective of party, without fear, feeling, or 
 favor. Both parties to this contention and the public look to 
 
 r
 
 2 PROVINCE OF COURT AND JURY. 
 
 you, gentlemen, to discharge your duty in a dignified, self- 
 respecting manner, to discharge it so that confidence may be 
 properly reposed in your final determination of the issues 
 submitted to you ; and that the dignity and righteousness of 
 the administration of public justice by the court be exalted, 
 and loyally be upheld by you. The court as the representa- 
 tive of the law desires that you should enter upon your 
 deliberations and discharge your duties in that spirit, and 
 only in that spirit. 
 
 Voris, J., in Quinn v. Ewuart, Summit Co. Com. Pleas. 
 
 No. 2. Introductory in criminal case — Province of jury- 
 to ascertain truth — Province of court — Of attorneys. — You 
 have heard the evidence offered before you on both sides of 
 the case. From that evidence you learn what the facts are; 
 you extract the truths of the case. That is your province. 
 But you are not able by those facts, those truths, alone, to 
 arrive at a verdict ; because there is something else that enters 
 into the verdict, and that is the law that is applicable to the 
 facts, to the truths. These two elements enter into and make 
 up every verdict of a jury. It is from the court, and from no 
 one else, that you receive the law. 
 
 It is the express duty of the court — commanded by statute 
 — to charge you as to the law of the case ; to inform and in- 
 struct you what are the elements of the crime of which the 
 prisoner is accused ; what is the measure or quantity of the 
 evidence necessary to convict him ; what evidence is insuffi- 
 cient to convict him; and for what purpose some, or all, of the 
 evidence introduced is to be applied by you ; and it is your 
 imperative duty to conform your findings to these instructions. 
 
 It is the privilege of the court, in charging you, to sum 
 up the evidence, to review the facts, in order to aid you in 
 the ascertainment of the truth, but not to usurp your province 
 and prerogative ; for there is nothing which the court may 
 say that can absolve you from the duty of finding the facts 
 for yourselves. 
 
 Therefore, if, in this charge, there should be a review -of 
 any of the facts, you will remember that it is not binding on 
 you in the manner that the instructions touching the law are, 
 but that it is only advisory, to aid you ; and that you are left 
 with entire freedom, and a perfect obligation resting upon you, 
 to decide the questions of fact for yourselves. 
 
 This is a case of unusual magnitude. It is not surprising 
 therefore that the attorneys, in their anxiety and zeal, should 
 have urged upon you some topics and considerations which
 
 PROVINCE OF COURT AND JURY. 3 
 
 have no pertinence to the case, and which should have no 
 influence upon the mincls of oath-respecting jurors when they 
 come to determine the case. 
 
 The attorneys had a wide range of discussion. They had 
 the fullest freedom of argument before you upon every question 
 of fact, and before the court upon every question of law. It 
 was their privilege to analyze the evidence; to arraign the 
 conduct of the prisoner and O. (the deceased), and all others 
 concerned in the transaction which has been investigated ; to 
 characterize and impugn their motives, if the evidence justi- 
 fied it ; to assail the credibility of the witnesses who were, 
 either directly or indirectly, impeached; and to give full 
 play to their wit and imagination in the illustration and 
 adornment of their argument. But this does not mean that 
 they had the right to make statements of facts not sustained 
 by the evidence or to urge upon you considerations outside 
 the case. 
 
 Open and explicit appeals were made by them to your 
 sympathy, to your commiseration; pathetic allusions were 
 made to the distressed and sorrowing families of those who 
 were concerned in the transaction under investigation. 
 
 You must exclude from your minds, promptly, manfully, 
 and absolutely, all impressions and convictions which may 
 have found lodgment there, either consciously or uncon- 
 sciously, that are not made by the evidence or the law. When 
 you come to the consideration of this case upon its merits, 
 ^you should not permit the suggestions, allusions, statements, 
 and arguments about the distress and sorrow of the families 
 interested, and about the contents of said articles to have any 
 weight or influence upon your minds. Lay them aside as 
 wholly irrelevant to the issue, which must be considered and 
 determined by you strictly upon the evidence introduced and 
 the law given to you by the court. With the consequences of 
 your verdict you should not be concerned. The evidence, 
 with such reasonable deductions as may properly be drawn 
 therefrom, together with the law of the court's charge, should 
 alone be looked to in reaching your conclusions and in 
 arriving at your verdict. 
 
 With the dispensation of mercy you have nothing to do. 
 You are ministers of justice and not of mercy. The admin- 
 istration of mercy is a function that belongs to the Governor 
 of the state, aided by the Board of Pardons. 
 
 [n a civilized state like this, it is absolutely essential to 
 the preservation of social order that the law should be en- 
 forced, and especially in cases where acts of violence have 
 been done. The laws must be obeyed, violators of the law
 
 4 PROVINCE OF COURT AND JURY. 
 
 must be punished ; and you as jurors would be faithless to 
 your trust if you should return a verdict of acquittal in this 
 case when the facts demand a conviction of the prisoner. 
 
 It is equally important that innocence should not be 
 punished. You were impaneled, not for vengeance, but to 
 subserve the ends of public justice; and you would be dis- 
 loyal to your obligations if you should find the prisoner guilty 
 when the evidence required his acquittal. 
 
 This much has been said to impress you with a sense of 
 the responsibility which you owe to your consciences and 
 oaths, that your verdict should be honest, intelligent, and 
 in conformity to the evidence and the law. 
 
 David F. Pugh, Judge, in State v. Elliott, Franklin Co. Com. Pleas. 
 
 No. 3. Appropriate remarks in the beginning of a 
 charge. — "The court knows of no more important public 
 duty than you are now engaged in. You constitute an in- 
 dispensable part of the court whose offices are just as impor- 
 tant and dignified as those of the judge presiding. The 
 courts thus constitute and are the supreme power that finally 
 determines all litigated contentions, and to whose power all 
 the people and every public officer of the state must yield. 
 Hence you see that the people justly take a deep interest in 
 the determinations of the jury trials. Public confidence is 
 strengthened Or shaken as the jurors discharge intelligently 
 or loosely their duties. I make these suggestions because I 
 want to impress upon your minds that the final duty which 
 you are about to perform is one of very great importance, and 
 one that deeply concerns the public welfare as well as the 
 litigating parties. You have been carefully selected from 
 the citizens of the county because of your special fitness and 
 qualification to discharge these important duties. It is fair 
 to say that the experience of mankind goes to show that the 
 candid, impartial judgment of ten or eleven men is a safer 
 guide than that of one or two, equally candid, intelligent, 
 and impartial men; and, while one or two men may be right 
 in their convictions, yet it is safer for them to consider well 
 the sources of their convictions before they finally decide 
 against the agreement. Yet every juror should feel that it is 
 his duty not to yield a well-grounded conviction because it 
 does not accord with the convictions of his fellow jurors. 
 Both parties to this action are entitled to the independent and 
 best judgment of each juror. A disagreement should not be 
 had when an agreement can be reasonably secured by an im- 
 partial, candid, and fair concurrence of the individual judg-
 
 PROVINCE OF COURT AND JURY. 5 
 
 ment of each juror. You may well remember that if this 
 jury disagree, that this contention must be settled finally by 
 a jury of twelve men, in no respect better qualified to try the 
 issue of fact than you are, and upon no better presentation of 
 the case to them. An honest, candid, and independent dis- 
 cussion leads to truth, heated controversy, to disagreement." 
 
 By Judge A. C. Voris, Summit Co. Com. Pleas. 
 
 No. 4. Another form of opening statement. — Before you 
 enter upon the discharge of your duty in the premises, it is 
 encumbent upon the court to assist you by giving you certain 
 instructions upon the law that it considers applicable to this 
 case. There can be no doubt whatever in your minds as to 
 whether the court is correct or not in its conclusions and 
 instructions respecting the law. It is the duty of the court 
 to instruct you in this respect, and it is your duty to act in 
 accordance with those instructions. If the court should err 
 in its statement of the law, it does not concern you, for there 
 is a remedy provided for reviewing the action of the court by 
 a higher tribunal, and correcting any errors that may have 
 been made. You must, therefore, take the law as given you 
 by the court. 
 
 You are the tryers of the facts, and in that respect the 
 court has no supervision over you. The individual judgment 
 of the juror acting candidly is the only guide for him in 
 determining the facts in this case from the evidence. If the 
 court has made any statement of fact resulting, or to be drawn 
 from the testimony, it is an oversight and should not be con- 
 sidered by you. The court has no right or business to inti- 
 mate to you any conclusion of fact drawn from the testimony 
 that you are to consider, nor have you any right to form an 
 opinion whatever as to what the court may think of the facts, 
 or as to which had the approval in this case. Very frequently 
 jurors will watch very closely to discover, if possible, what 
 may seem to be the vent of the court's mind upon the facts, 
 so as to discover what the court thinks about them. This 
 you must steadily refrain from doing, as it matters not what 
 the court may think about the facts. The law very properly 
 has made twelve men an essential constituent part of the 
 
 court, whose duty in determining the facts is as important as 
 that of the court trying the rase and determining the law 
 applicable to it. And yOU air to exercise in all your deliber- 
 ations, judgment of candid, intelligent men, who are anxious 
 only to get at the truth. You should he especially careful 
 that you he guided, in the conclusion to which you come, by
 
 ACCOMPLICE. 
 
 the evidence submitted to you and the instructions of the 
 court and nothing else. The public welfare depends more 
 upon the intelligence and impartiality and just deliberation 
 of the jurors in the cases submitted to them than upon the 
 discharge of any other public duty that falls to your lot. If 
 you discharge your duties well, if you challenge the respect 
 of the community by the justice, intelligence, and impartial- 
 ity of your decision made, you will command the respect and 
 confidence of the people in our courts. It is of prime conse- 
 quence that jurors should be grave, that they expect, and, 
 while respecting a sense of public justice, that they exalt the 
 administration, so that neither party shall have any cause to 
 feel that their case has not been impartially and fairly con- 
 sidered. 
 
 ACCOflPLICE. 
 
 No. 5. Accomplice defined. — An accomplice is one who 
 is in some way concerned in the commission of a crime, 
 though not as a principal ; and this includes all persons who 
 have been concerned in its commission, whether they are 
 considered, in strict legal propriety, as principals in the first 
 or second degree, or merely as accessories before or after the 
 fact. (4 Bl. Com. 331.) Or one of many equally concerned 
 in a felony, the term being generally applied to those who 
 are admitted to give evidence against their fellow criminals 
 for the furtherance of justice which might otherwise be 
 eluded. 
 
 Cross v. People, 47 111. 158. 
 
 No. 5a. Accomplice defined — Offering immunity from 
 prosecution. — Under an ancient practice, which is part of the 
 common law of this state, the prosecuting attorney was au- 
 thorized to promise an accomplice that if he would give his 
 testimony freely and truthfully, without prevarication or 
 fraud, he should be protected from prosecution, "for that 
 or any other previous offense of the same degree." The 
 prosecuting attorney was vested with the discretion, till the 
 court should interfere and compel him to determine whether 
 or not (naming witness) as an accomplice, should be permit- 
 ted to turn "state's evidence," as it is sometimes phrased; 
 and whether, if he does, he is afterwards entitled to be no 
 further prosecuted. He did not have to be indicted. In an
 
 ACCOMPLICE. 7 
 
 old authority it is put in this way: "The party that is to be 
 a witness is never indicted, because that doth much weaken 
 and disparage his testimony. " 
 
 Pugh, Judge, State v. Abbott, et al., Franklin Co. Com. Pleas, I Hale, 
 P C. 305. 
 
 See Allen v. State, 10 O. S. 287; Lee v. State, 21 O. S. 151. 
 
 No. 6. Credit to be given testimony of an accomplice.— 
 
 The fact that (naming witness) was an accomplice, if that is 
 a fact, did not make him incompetent as a witness ; the tur- 
 pitude of his conduct does not disqualify him to be a witness. 
 The admission of an accomplice as a witness is said to be 
 justified by the necessity of the case, but with the wisdom of 
 the practice you are not concerned. 
 
 "The rule is founded on necessity, since, if accomplices were not ad- 
 mitted, it would frequently be impossible to convict the greatest offenders." 
 2 Hawkins' Pleas of Crown, Sec. 94, Ch. 46; 47 111. 160. 
 
 The degree of credit which ought to be given to the testi- 
 mony of a witness who has turned state's evidence is a matter 
 exclusively within your province to decide. It has sometimes 
 been said that a jury ought not to believe such a witness' 
 testimony unless it is corroborated by other evidence, and, 
 undoubtedly, great caution in weighing such testimony is 
 dictated by prudence and sound reason. The law expressly 
 concedes, however, that you may, if you see fit, act upon the 
 testimony of an accomplice without any corroberation ; but, 
 on the other hand, it seems to be a duty incumbent upon 
 judges to advise the jury not to convict upon the testimony 
 of an accomplice alone, and without corroboration, and it is 
 now so generally the practice to give the jury such advice, 
 that its omission would be regarded as an omission of duty. 
 You are advised not to convict the defendant upon the testi- 
 mony of (naming witness) unless you find it is corroborated. 
 You are instructed not to give credit to his testimony unless 
 it is confirmed by other evidence, either undisputed or well- 
 established facts or circumstances, or by the testimony of 
 truthful witnesses. The corroborative evidence must tend to 
 confirm the testimony of the accomplice upon a point material 
 to the issue, in the sense that it tends to prove the guilt of 
 the defendant. 
 
 Pugb fudge, in State v. Abbott, Franklin Co. Com. Pleas. 
 
 Authorities holding that the testimony of an accomplice must be cor- 
 roborated: .Lowerv v. State, 72 Ga. 649; State v. Diet/., 67 la. 220; Anderson 
 v State 20 Tex. App. 312. " The evidence of accomplices in crime should
 
 8 ACCORD AND SATISFACTION. 
 
 be very cautiously received, and should in all cases be suspiciously scruti- 
 nized by a jury." Noland v. State. 19 O. 131, 135. The jury may be 
 charged that the defendant may be found guilty upon the testimony of an 
 accomplice, who is corroborated as to one or more material facts by other 
 reliable evidence. Brown v. State, 18 O. S. 497- The degree of credit to be 
 given an accomplice is a matter for the jury. It is highly proper that the 
 fury should require his testimony to be corroborated ; but there is no rule 
 of law requiring a jury to refuse to convict upon the uncorroborated testi- 
 mony of an accomplice. The judges should in their discretion advise the 
 jury not to convict upon such testimony of an accomplice. This is so gen- 
 erally the practice that its omission is regarded as an omission of duty. 
 Allen v. State, 10 O. S. 288, 305. See Bouvier's Die. under "Accomplice." 
 
 ACCORD AND SATISFACTION — SETTLE- 
 riENT AND COMPOSITION. 
 
 No. 7. A suit made upon amount due upon bond. — "If 
 
 the jury believe from the evidence, that the plaintiff and 
 defendant accounted together as to the indebtedness evi- 
 denced by the bond sued on, and so accounted freely and 
 without concealment or fraud by either, and that, as a result, 
 the bond was so paid and discharged as that the defendant 
 was then entitled to said bond, then it is not material to 
 inquire into the consideration so paid and accepted in the 
 discharge thereof. But if you believe from the evidence, 
 that the transaction was not so executed, final and conclusive, 
 that the defendant was then and there entitled of right to said 
 bond, then all pretended payments claimed which are shown 
 to have been paid in confederate money, or other illegal or 
 unlawful currency, are null and void, and should be totally 
 disregarded by the jury. ' ' 
 
 From Washington v. Burnett, 4 W. Va. 84-5. 
 
 No. 8. Settlement of action for damages — Client may- 
 compromise without consent of attorney.— If you have 
 * found upon these propositions in favor of the plaintiff, then 
 you will proceed to inquire and determine the other question 
 made by the pleadings in the case. That is, as to whether 
 or not a settlement, adjustment or compromise of this matter 
 was made, between the plaintiff and defendant as alleged in 
 the supplemental answer of defendant, and upon this^ ques- 
 tion, I say to you as a matter of law, that the plaintiff in this 
 action had a right to settle, adjust and compromise the action 
 which had then been commenced without the counsel, advice 
 or consent of his attorney, and without reference to the views
 
 SETTLEMENT AND COMPOSITION. 9 
 
 or wishes of J., his then attorney, in regard to the same. 
 In order to constitute a valid settlement, it must have been 
 understood between the parties at the time it was made, that 
 is, their minds must have met upon the proposition which 
 was made with reference to a settlement on the one hand and 
 the acceptance thereof by the other. The plaintiff claims 
 that no such settlement was made, and it is a question of fact 
 that is submitted to you for your consideration. Look over 
 all the testimony in the case, if you find a settlement was 
 made as claimed by the defendant, and that the same was 
 complied with upon their part, then you need inquire no 
 further, but should return a verdict for the defendant. But 
 if on the other hand, you find that a settlement was not thus 
 made, but was brought about as is claimed by the plaintiff, 
 by fraud practiced upon him, and by reason of false repre- 
 sentation made to him at the time, and that he was induced 
 by reason of the fraud thus practiced, and representations 
 thus made, to enter into an arrangement, agreement and set- 
 tlement which was then made, if you find one to have been 
 made, this would not constitute a settlement between the 
 parties, and upon this proposition you should find for the 
 plaintiff. 
 
 The burden of proof upon the question of settlement is 
 upon the defendant, but so far as the introduction of the 
 paper writing by the defendant is concerned, or the paper 
 purporting to have been executed and signed by him, it 
 would be prima facie evidence of the making of such settle- 
 ment, that is, if you find that he signed the paper-writing 
 that is offered in evidence, and in determining the question 
 as to whether or not fraud was practiced upon him, upon that 
 question, the burden of proof would rest upon the plaintiff, 
 and you must remember that fraud is not to be presumed — it 
 must be shown and established by a preponderance of the 
 evidence upon the part of the plaintiff, proven as any other 
 fact in the case. 
 
 From Pennsylvania Co. v. Lombardo, 49 O. S. 1. 
 
 No. 9. Accord or compromise by creditor with debtor. 
 
 — It is claimed l>v the defendant that there was made what is 
 called a composition of the debt at the time the payment of 
 tijyZ percent was made on it, and that lie is thereby dis- 
 charged of the balance. 
 
 "Where several creditors, with the knowledge of each 
 other, agree on the faith of each other undertaking to give 
 time to, or accept a composition or percent from a debtor,
 
 IO ACCORD AND SATISFACTION. 
 
 in discharge of his debts, the agreement will be binding on 
 all the creditors who are parties to it." 
 
 If the plaintiff, with the knowledge of other creditors, 
 agreed with the other on the faith of each other's undertak- 
 ing, to accept %-]]/ 2 percent of the debt in discharge of the 
 whole debt, the agreement so made is binding, and discharges 
 F. from the balance. But it is for the defendant to prove, 
 by a preponderance of the evidence, that such a composition 
 and agreement to discharge the defendant, F., from the bal- 
 ance- was made by creditors, to which the plaintiff was a 
 party. 
 
 As to the matter of an accord or compromise, by an indi- 
 vidual creditor with his debtor, by which it may be agreed 
 to accept a part, in satisfaction of the whole, discussed by 
 counsel : In order to constitute a defense for the defendant, 
 on that ground, in this case, the defendant must prove, by a 
 preponderance of the evidence, 
 
 First : That such an agreement to receive a part in satis- 
 faction of the whole debt was made between the plaintiff and 
 defendant, or by parties authorized to and for them in the 
 matter. 
 
 Second: That there was a consideration for such agree- 
 ment. The payment in part only, as 87^ percent of the 
 amount at the time due, is not such a consideration. The 
 verbal promise of said McC. to pay the balance on December 
 1, or other named time, if made, was not such a consideration. 
 The payment of the account in said bank to the credit of 
 the account then kept in the said name, " M. F. Special," 
 to the parties then holding checks in said bank, signed 
 " M. F. Special," pro rata, if done, was not such a consid- 
 eration. 
 
 There must be some benefit or advantage derived by the 
 plaintiff from the agreement, other than the payment of a 
 part only of what is due him, to constitute a sufficient con- 
 sideration. (For example, Swan's Tr. 323.) 
 
 "The payment of a less sum than is due before a debt is 
 due ; or payment of a less sum at another place than is stip- 
 ulated, in satisfaction of the whole debt; or the acceptance of 
 security for a part of the debt, in consideration of which the 
 creditor agrees to lose the balance ; or an agreement to receive 
 a part of the debt in money and the residue in specific arti- 
 cles : in all these cases the creditor derives a benefit from the 
 arrangement, and there is therefore sufficient consideration. ' ' 
 
 Martin Frey, Plaintiff in Error, v. G. W. Gragg, Defendant in Error, 
 S. C.
 
 ACCOUNT — AGENCY. II 
 
 ACCOUNT. 
 
 No. 10. Account — Note given for an open account — 
 Effect — As a defense when suit brought upon the account 
 because notes not due. — When a note is given for an open 
 account, it does not distinguish or discharge the account 
 unless such is the express agreement of the parties, and the 
 burden of showing such an agreement is upon the debtor. 
 In the absence of such agreement, the acceptance of a note 
 merely extends the time for the payment of the debt ; and if 
 the note is not paid when due, suit can then be brought either 
 upon the note or on the account; and, further, if for any 
 reason the contract extending the time for the payment of 
 the debt is lawfully annulled or rescinded before the note: 
 matured, then suit may be brought upon the account at once, 
 and if the plaintiff in this case had a legal right to disregard 
 the notes and sue upon the account, it was not necessary for 
 the plaintiff to return the notes before the suit, but the law 
 would be satisfied if they returned the notes at any time up 
 to the day of the trial. 
 
 Samuel P. Hunt, Judge, in Bel ford, Clarke & Co. v. The H.-A. lath. 
 Co. Affirmed. Supreme Court, No. 2,662, Hamilton County. 
 
 AGENCY. 
 
 No. 11. What constitutes an agent. — You arc instructed 
 that an agent is one who acts for another by the authority of 
 the principal, one who is entrusted with the concerns of 
 another, and whatever he does as such agent, within the 
 scope of the authority conferred on him by the principal, is 
 as much tin- acl of the principal as if done by the principal 
 himself. In such case his acts are the acts of the principal. 
 
 No. 12. Ratification of agency. — The prior appointment 
 of, or the subsequent ratification of tlu- acts of a third person 
 as agent, will confirm and establish the authority of the agent, 
 and generally, if the party receives and holds the proceeds of 
 the beneficial results of tlu- contract, with knowledge of the 
 material fa-ts, he will not he permitted to deny the authority 
 of the agent, for it is in fact the ratification of the contract.
 
 13 AIDER AND ABETTOR. 
 
 The member can not in general adopt a part and disavow a 
 part of the contract of the person who proposes to be his 
 agent. This should be received, however, with the qualifi- 
 cation that the member must have knowledge of the material 
 facts to bind him. 
 
 Voris, J., in Vallev Railroad Company v. The Thomas Lumber ari 
 Building Co., Summit'Co. Com. PI. Affirmed by Circuit Court. 
 
 Ratification is a question of fact for the jury. Middleton v. R. R. Cc, 
 62 Mo. 579: Fisher v. Stephens, 16 111. 397. A principal can not adopt part 
 without adopting the whole. Winpenny v. French, 18 O. S. 469 -,34 O. S. 
 450. Full knowledge is necessary. Wilson v. Forder, 20 O. S. 89, 97. Z 
 will not be implied from acts done in ignorance. Grant v. Ludlow, 8 O 
 S. 1, 19 ,240. S. 67. 
 
 I; :>. 13. Agent — Right to recover where double agency- 
 known to principals. — If the defendant employed the plaintiff 
 to act as his agent in the exchange of property mentioned in 
 the petition for a farm owned by another, or employed him 
 to aid and assist in such exchange, and agreed to pay him a 
 certain percent as commission on the property, and at the 
 same time knew that the plaintiff was the agent of the owner 
 of the farm which defendant was seeking to obtain, and that 
 plaintiff was acting as the agent of said owner, and the de- 
 fendant assented thereto and agreed to pay the commission, 
 and the owner of the farm knew that plaintiff was acting as 
 agent of the defendant in the exchange, and assented thereto, 
 agreeing to pay the plaintiff the commission stipulated in the 
 written contract of agency, the plaintiff is entitled to recover. 
 
 From Bell v. McConnell, 37 O. S. 396. 
 
 AIDER AND ABETTOR. 
 
 No. 14. Homicide — Aider and abettor when present 
 without knowledge. — "It is not sufficient to establish the 
 guilt of a defendant in aiding and abetting the principal in 
 the commission of the homicide charged in the indictment, 
 that he was present with others where the alleged killing was 
 done, for he may have been present not knowing that any 
 crime was about to be committed ; and if he was not there in 
 furtherance of an understanding or common purpose to com- 
 mit some unlawful act, and was in company with the prin- 
 cipal without knowledge that the commission of an offense 
 was contemplated by the principal or any of his co-defendants,
 
 AIDER AND ABETTOR. 1 3 
 
 he is not responsible for the acts of the principal or his other 
 co-defendants if he, the defendant, did not participate in the 
 commission of the crime charged. ' ' 
 
 From Goius v. State, 46 O. S. 457. 
 
 No. 15. To constitute an aider and abettor — There must 
 have been previous conspiracy or an overt act. — In the 
 absence of a conspiracy, one who is present when a homicide 
 is committed by another upon a sudden quarrel, or in the 
 heat of passion, is not guilty of aiding and abetting the hom- 
 icide, although he may have become involved in an inde- 
 pendent fight with others of the party of the deceased, unless 
 he does some overt act with a view to produce that result, or 
 purposely incites or encourages the principal to do the act ; 
 and so in this case, if you find the defendant on trial, although 
 present at the time of the shooting, knew nothing of his son 
 H. having a revolver, or intending to shoot, and took no part 
 in the killing, and done no overt act to produce that re- 
 sult, then he is in no way responsible, and must be acquit- 
 ted, unless you find from the evidence, and beyond a reason- 
 able doubt, that the shot was fired by H. in pursuance of a 
 conspiracy previously formed by them. 
 
 Approved in Woohveaver v. State, 50 O. S. 277, 287. 
 
 No. 16. Aider and abettor — a full charge in homicide. 
 — It is one of the fundamental, as it is one of the most famil- 
 iar, principles of criminal law, that when a criminal act is 
 done by one of two accused persons, as, for instance, shooting 
 and taking the life of a third person, and the other accused 
 person is present when the criminal act is done, and by 
 words, acts or gestures, aids, assists and encourages the other 
 to do the criminal act, then both are responsible and guilty 
 as principles; and that is true, notwithstanding the fact may 
 be that a previous conspiracy had not, by them, been formed 
 to kill the pel -on who was then killed. 
 
 To constitute one who is present, and who becomes involved in a fight, 
 which results in death of th< nist, an aider and abettor, it should 
 
 appear either that there was 1 prior conspiracy, or that he purposely in- 
 cited or encouraged tht slayer, or did some oz'ert act himself, with intent 
 to cause the death 0/ his antagonist Woolweaver v. State, 50 S. 277. 
 
 The charge as we hive given, might be modified to comply with the 
 decision just quoted; although the remainder, is a compliance with the 
 ruh See No is for a direct charge upon this point
 
 14 AIDER AND ABETTOR. 
 
 And it is also true, notwithstanding the two accused per- 
 sons lawfully came together at the time and place of the 
 shooting. The fact that they lawfully came together, then 
 and there, could not, in law, diminish or mitigate the crim- 
 inality of the shooting, if it was criminal, which was after- 
 wards done. According to old definitions, he who actually 
 commits or takes part in the actual commission of a crime, 
 is a principal of the first degree, and he who aids or abets the 
 actual commission of the crime is a principal of the second 
 degree. Since our statute, which places both of these classes 
 in the same category, was passed, the old definitions are of 
 no practical use except to explain the meaning of terms used. 
 The reason of this law making both of the persons named 
 guilty is that the will of the accused person, who did not do 
 the shooting, contributed to the result produced by the shoot- 
 ing, the death of the person shot. His guilt, therefore, is 
 the same as if he himself did the criminal act. The revolver, 
 or pistol, or gun out of which the fatal shot was fired, was 
 the pistol, or revolver, or gun of both of them, although only 
 one of them owned, held and directed it when it was fired. 
 
 To render the accused person who simply gives aid and 
 encouragement, but did not do the criminal act, responsible 
 and guilty, it is not necessary that he should have been 
 strictly, actually, and immediately present when and where 
 the shooting was done, in the sense that he was an eye or ear 
 witness to what passed. 
 
 Warden v. State, 24 O. S. 143. 
 
 If he was sufficiently near to give the aid and encourage- 
 ment and help to the other, that was enough. His mere 
 presence, however, was not sufficient to make him an accom- 
 plice. He must have done something more. He must have 
 incited, or assisted, or encouraged the other person to do the 
 criminal act in one of the ways mentioned. In this instruc- 
 tion the court has only elaborated and expounded to you a 
 statute of the State of Ohio, which declared: ' Whoever aids, 
 or abets, or procures another to commit any offense, may be 
 prosecuted and punished as if he were a principal offender." 
 
 D. F. Pugh, Judge, in State v. Elliot, Franklin County.
 
 ALIENATION OF AFFECTION. 1 5 
 
 ALIENATION OF AFFECTION. 
 
 No. 17. Alienation of affection of wife. — In his petition 
 plaintiff claims that he had the confidence and affection of 
 his wife up to the time of the wrongful acts and conduct of 
 this defendant ; and he claims that the defendant alienated, 
 destroyed and won away from him these affections and con- 
 fidence that his wife had for him and that he enjoyed. 
 
 I mav say to you that the affections and the confidence of 
 a man's wife are something of value and for the loss of which 
 the law gives the right to recoyer. The burden, however, is 
 upon the plaintiff and he must show by a preponderance of 
 the evidence that the defendant did alienate, destroy and win 
 away from him that affection and confidence she had for him; 
 and if he fails to show by the evidence he can not recover 
 and you should find for the defendant. This question, as I 
 have indicated, is purely one of fact about which these par- 
 ties are earnestly and seriously contending. 
 
 The plaintiff insists that by the evidence he has produced 
 in court as he had shown, in the way that the law requires he 
 must show before he can recover — that is, by a preponder- 
 ance of the evidence — that this defendant did, as alleged in 
 his petition and as claimed by him, alienate the affections of 
 his wife. On the contrary, this defendant just as seriously 
 and earnestly denies and contends that the plaintiff not only 
 has not shown as required, and as the court has instructed 
 von he must, but in fact, he has utterly failed in establishing 
 the averments in this particular as claimed. The acts by 
 which it is claimed the affections of plaintiff's were alieu- 
 
 I must have been unlawful in and of themselves; they 
 must have also caused plaintiff's wife to be unfaithful in her 
 marital obligation to him. 
 
 Gillmer, J., in John Cottle v. Samuel Kellogg, Trumbull County C. P. 
 S. 621 ; 24 W. L. B., 121 ; Cooley <>n Torts, 262, 
 263, 264. 
 
 No. 18. Same continued. — Defense that husband mis- 
 treated wife.— It is claimed by the defendant that he has 
 produced evidence tending t<> show that the plaintiff drove 
 his wife away from him on account of his cruel treatment of 
 her. This evidence, gentlemen, if true, would not be a de- 
 fense in the action, provided that you find that the defendant
 
 1 6 ALIENATION OF AFFECTION. 
 
 did alienate the affections of plaintiff's wife; but it is evi- 
 dence that you should take into consideration, if you come 
 to that question, in mitigation of any damages that you think 
 the plaintiff has sustained. It was introduced for that pur- 
 pose, and for that purpose should be considered by you, and 
 by way of rebutting the claim of the plaintiff that his wife's 
 affections were alienated by the defendant. It is the claim 
 'of the defendant that this plaintiff drove his wife away on 
 account of his cruel acts towards her; drove her from his 
 house and home, and that this was the reason and on that 
 account she left and not by reason of any acts or conduct of 
 his that caused her to separate from him. 
 
 Gillmer, J., in Cottle v. Kellogg, Trumbull County C. P. The bad char- 
 acter of the husband will not mitigate damages, unless he is guilty of 
 unchastity or other wrong to the wife. Norton v. Warner, 9 Conn. 172. 
 
 No. 19. Measure of damages. — If, under these instruc- 
 tions, however, you find the issues joined for the plaintiff, 
 then your next inquiry will be as to the measure of damages 
 this plaintiff has sustained on account of the wrongful acts 
 of this defendant, alleged in his petition, by which he lost 
 the affection and confidence of his wife. This will include 
 not only the loss of the wife's affections, but for the comfort 
 of the wife's society. If you shall find that the defendant 
 seduced the plaintiff's wife, then you should include also dis- 
 honor of the marriage-bed; the mortification and sense of 
 shame produced to the husband through the knowledge and 
 results of such seduction, and also loss of the wife's services 
 if she separated from her husband through such seduction. 
 
 It is difficult to lay down any precise rule for you to as- 
 certain or measure the amount of compensation or damages 
 that the plaintiff would be entitled to, provided that you find 
 for the plaintiff. 
 
 The jury should, however, exercise their own judgment 
 and common sense in determining what amount of damages, 
 if any, would be a fair compensation to the plaintiff for what- 
 ever injury they may find from the evidence he has suffered 
 on account of the wrongful acts alleged and averred in his 
 petition. 
 
 Gillmer, J., in Cottle v. Kellogg. See 2 Addison on Torts, 762 (591), 
 764 ; Matheis v. Mazet, 164 Pa. St. 580. 
 
 No. 20. Alienation of affections. — Another charge. — 
 
 There are a few propositions which it will be important for
 
 ALIENATION OF AFFECTION. 1 7 
 
 you to consider and determine, to some of which I will now 
 direct your attention. In considering the case, you can take 
 the«matters up in the order which I use, or in some other order 
 that shall seem best to you. ist. Are the plaintiff and his 
 wife living separate and apart from each other? 2d. If they 
 are living separate and apart from each other, did the defend- 
 ant cause such separation? 3d. Did the defendant have 
 sexual intercourse with the plaintiff's wife? 4th. Was the 
 defendant at the time of the commencement of this action 
 living with plaintiff's wife in adulterous intercourse? 5th. 
 If vou find from the evidence that the defendant caused the 
 separation between plaintiff and his wife, or was guilty of 
 any of the acts of adultery charged in the petition, was the 
 plaintiff damaged thereby? 6th. If you find from the evi- 
 dence that the plaintiff has been damaged by said acts of the 
 defendant, what is the amount of plaintiff's damages, caused 
 by defendant's acts? Now, gentlemen of the jury, the plain- 
 tiff claims that there is a separation of the plaintiff and his 
 wife, caused by the conduct and acts of the defendant. 
 Plaintiff claims that the defendant has enticed the plaintiff's 
 wife away from him, and alienated her affections from the 
 plaintiff; and that the conduct of the defendant caused the 
 separation of plaintiff and his wife. On the other hand, the 
 defendant claims that, if there is a separation between the 
 plaintiff and his wife, it was caused by the ill treatment of 
 the plaintiff towards his wife, and the other acts of the plain- 
 tiff towards his wife. The defendant denies that he has en- 
 ticed the plaintiff's wife away from him, or alienated her 
 affections from the plaintiff, or in any manner caused their 
 separation. If, therefore, you find from the evidence that the 
 plaintiff and his wife have separated from each other, it will 
 be important for you to determine from the evidence the 
 cause of separation of said parties. Did they separate on 
 account of the acts and conduct of the defendant or from some 
 other cause? And in determining the cause of the separation 
 it would be proper for you to look to and consider the conduct 
 and acts of the parties and their families, their relations to 
 each other, the conduct of the defendant towards the plain- 
 tiff's wife and family, and the conduct and treatment of the 
 plaintiff towards his own wife and family, and his general 
 treatment of them, and the time when and manner in which 
 the plaintiff left his family, if he left them. These facts in 
 connection with all the other vidence in the case should be 
 considered by you. 
 
 It is important for you to carefully consider all the facts 
 and circumstances surrounding these parties, and from all
 
 18 ALIENATION OF AFFECTION. 
 
 the evidence given you in the case determine whether the 
 plaintiff and his wife separated and remained apart on account 
 of the acts and conduct of the defendant, S., or from some 
 other cause. 
 
 It is a question for your careful consideration and deter- 
 mination from all the facts and circumstances of this particu- 
 lar case, as shown by the evidence given you on the trial. 
 
 It is not incumbent upon the defendant to show the cause 
 of the separation, nor that it was caused by the misconduct 
 of the plaintiff. If the defendant did not cause the separation, 
 nor prevent the wife from going back to her husband, nor 
 have sexual intercourse with plaintiff's wife, then the defend- 
 ant would not be liable in this case. 
 
 Nye, J., in Wagoner v. Shaw, Medina C. P. It is not necessary that the 
 wife should have been seduced. An action lies for alienation of affections 
 merely. 
 
 No. 21. Same continued — Burden and character of proof 
 of adultery. — Now, gentlemen, you have listened to the evi- 
 dence in this case patiently, and the question as to whether 
 the defendant has had sexual intercourse with the plaintiff's 
 wife at any time is for your determination, after due consid- 
 eration of all the facts and circumstances of this case, as 
 shown by the evidence. The burden is upon the plaintiff to 
 prove said acts by a preponderance of the evidence. If he 
 has failed to establish that fact by the weight of the evidence, 
 then your decision on that point should be against the plain- 
 tiff. It is not claimed on the part of plaintiff that he has 
 produced any witness who has testified to seeing any act of 
 adultery between the defendant and plaintiff's wife, but the 
 plaintiff claims that he has shown such facts and circum- 
 stances as will warrant the conclusion that adultery was 
 committed. The burden is upon the plaintiff to show such 
 a state of facts as will satisfy you of their truth by a prepon- 
 derance of the evidence. 
 
 Nye, J., in Wagner v. Shaw, Medina Co. Com. PL
 
 ALIENATION OF AFFECTION. IQ 
 
 No. 22. Same continued — Character of evidence. — The 
 author gives this as a charge which he believes to be a proper 
 statement of the rule of evidence governing this matter : 
 
 The jury are instructed that in cases of this kind, where 
 an illegal act is charged or involved in the civil suit, the 
 same rules of evidence generally applicable in civil suits pre- 
 vail, as against those which should be followed if you were 
 investigating the criminal charge involved in a criminal 
 case. Adultery is made a crime by our laws, and if you were 
 trying that issue under an indictment, you would be required 
 to find the defendant guilty thereof beyond a reasonable 
 doubt. Not so in a civil proceeding as here, where it is 
 charged, as in this case, that the defendant has committed 
 adultery with the wife of the plaintiff, you are not required 
 to be satisfied for the purposes of this suit beyond a reason- 
 able doubt, that the defendant has been guilty of adultery 
 with the wife of the plaintiff, that you are only to look to 
 all the evidence, and if you believe and are satisfied from a 
 preponderance of the evidence that the defendant committed 
 adultery with plaintiff's wife, then upon that point, as one 
 of the facts in this case, you may find for the plaintiff. 
 
 There certainly can be no doubt but that the rule that the doctrine of 
 reasonable doubt of criminal cases does not apply to civil issues. The 
 ^reat weight of authority and the better view is that in civil issues the re- 
 sult should follow the preponderance of evidence, even though the result 
 imputes the crime. This rule has been adopted in Ohio. Lyon v. Fleah- 
 mann, 34 O. S. 151; Shaul v. Norman, 34 O. S. 157; Jones v. Greaves, 26 
 2. This is at least the case in all cases aside from those enormous 
 crimes, Id. See fully opinion in 34 O. S. 1 51-156, and authorities cited. 
 It is treated very fully 111 Wharton's Kv. Sec. 1246; 1 Greenleaf's Ev. 
 13c, note. 
 
 No. 23. Same continued — Proof adultery. — The jury 
 are instructed that it is not essential that sexual intercourse 
 be proved by direct testimony; that circumstantial evidence 
 is legal and competent, and if it is of such a character as to 
 satisfy you of the adulterous relations existing between defen- 
 dant and Mrs. W., it is entitled to the same weight as direct 
 testimony. What is meant by circumstantial evidence is the 
 
 if of such facts and circumstances connected with or sur- 
 rounding the commission of the acts charged as tend to show 
 the guilt or innocence of the parties charged. It is not 
 necessary to prove by direct testimony the fact of adultery,
 
 2 ANIMALS. 
 
 but to warrant the jury in finding the defendant and Mrs. W. 
 were guilty of adultery the circumstances ought to be such as 
 would lead a careful and guarded man to the conclusion that 
 the act of adultery had been committed. The jury ought to 
 be satisfied from the evidence given in the case, that the parties 
 to said alleged adulterous act had the opportunity of commit- 
 ting the act, and also that they were of a disposition and had 
 the inclination to commit the act of sexual intercourse. The 
 /mere fact that the defendant and Mrs. W. had the opportu- 
 nity of committing adultery would not be sufficient of itself 
 to prove adultery without any disposition or inclination on 
 the part of the parties to said act. In considering this branch 
 of the case it would be proper for you to consider the charac- 
 ter of the defendant and of Mrs. W., and determine whether 
 they or either of them are persons of a character or inclina- 
 tion to commit the acts of sexual intercourse, or adultery, 
 with each other. Has the plaintiff shown such facts and cir- 
 cumstances as will warrant you in finding that they have 
 been guilty of acts of adultery with each other? This is a 
 question for your careful consideration and determination 
 from all the facts and circumstances which have been given 
 you in the evidence in this case. 
 
 Nye, J., in Wagoner v. Shaw, Medina Co. C. P. See Wharton's Law 
 Ev., Sees. 225, 415, 1246. This is a decided departure from the old view, but 
 is in entire harmony with Ohio decisions, ante, No. 22, note. In this 
 country, the limitation that uncorroborated testimony as to adultery in 
 divorce cases is insufficient has never been accepted. See fully Wharton's 
 Cr. Ev., Sec. 389. 
 
 ANIMALS. 
 
 No. 24. Scienter — Proof of. — "To enable the plaintiff 
 to recover he must prove that the dog was accustomed to bite 
 mankind, and that it must also be proved that the defendant 
 had knowledge that he was so accustomed to bite ; that if a 
 single instance of biting mankind previous to the act com- 
 plained of in the declaration was fully and satisfactorily 
 proved to the jury and a knowledge of such act on the part 
 of the defendant was proved in like manner, that had been 
 held sufficient to warrant a jury in finding a verdict for the
 
 ANIMALS. 21 
 
 plaintiff in cases of this kind; but that the force of such testi- 
 mony would depend much upon the circumstances attending 
 the transaction, as, whether they indicated a disposition to 
 bite without provocation, or the contrary." 
 
 Arnold v. Norton, 25 Conn. 92. Thompson on Trials, Sec. 1493. The 
 Statute in Ohio which abrogated the common law rule (13 O. S. 485) has 
 since been repealed. 
 
 No. 25. Owner of domestic animal liable for any injury- 
 committed by it when. — The owner of a domestic animal is 
 not in general liable for an injury committed by such animal 
 while in a place where it rightfully may be, unless it be shown 
 that the animal was vicious, and that the owner has knowledge 
 of such vicious propensity. But if the animal breaks into 
 the close of another, and there damages the real and personal 
 property of the one in possession, the owner of the trespassing 
 animal is liable without reference to whether such propensity 
 was known to the owner. 
 
 Morgan v. Hudnell, 52 O. S. 552. 
 
 If the defendant's horse was at the time trespassing in 
 plaintiff's field, on plaintiff's land, or on the land of a third 
 party where plaintiff was pasturing his horse by the month, 
 for a consideration paid by plaintiff to such owner, and there 
 attacked and killed plaintiff's horse, defendant is liable for the 
 injury, whether he knew or not of the vicious propensity of 
 his horse. 
 
 If the jury find that the defendant's horse was in pasture 
 on his wife's premises, and while there broke over her part 
 of the partition fence, separating her said lands from the field 
 in which plaintiff's horse was being rightfully pastured by 
 him, then the defendant's horse was unlawfully in the place 
 where the plaintiff's horse was on pasture, and, in such case, 
 if the jury find that he killed plaintiff's horse, the defendant 
 is liable to plaintiff for the injury, whether his horse was in 
 fact vicious or not, and whether he knew of such viciousness 
 or not. 
 
 Given by Win. !•'.. Evans, Judge, in Morgan v. Hudnell, Ross County, 
 and approved iu 52 O. S. 552. 
 
 No. 26. Permitting ferocious dog to be at large — When 
 at large — Knowledge of ferocious character — What amounts 
 to keeping. — "A ferocious dog, known to the keeper to be 
 accustomed to bite mankind, is to be regarded as at large, 
 within the common import of those terms, when he is so free
 
 22 ANIMALS. 
 
 from restraint as to be liable to do mischief to man, and this, 
 such a dog is always liable to do when not physically re- 
 strained. Yon will, therefore, determine from the evidence 
 whether or not the defendant properly restrained the dog in 
 question as the keeper. of a vicious and ferocious dog is bound 
 to keep it from doing injury at his peril." 
 
 If you find from the evidence that the dog in question was 
 i vicious and ferocious, and known as such to the defendant, 
 and you further find that the defendant was the head of her 
 family, having possession and control of a house or premises, 
 and she suffered or permitted the dog to be kept on her said 
 premises, in the way such domestic animals are usually kept 
 — as a member of the family, so to speak (in so far as a house- 
 dog may be termed a member of one's family) — such head of 
 a family, the defendant herein, is to be regarded the keeper 
 and harborer of such dog, and it makes no difference whether 
 the defendant was the owner of the dog or not. ' ' 
 
 Given by Gilbert Harmon, Judge, by request in O'Farrell v. Alberty, S. 
 C. No. 3291, Lucas County. Charge affirmed by Circuit and settled and 
 dismissed in Supreme Court. 
 
 One who knowingly and wrongfully suffers a ferocious dog to go 
 freely about his premise's where he is also fed and housed is liable for in- 
 juries done by such dog, regardless of the question of ownership. Fram- 
 mel v. Little, 16 Ind. 251 ; 1 Cummings v. Riley, 52 N. H. 36S; Marsh v. 
 Jones, 21 Vt. 378; Meibus v. Dodge, 38 Wis. 300; Barrett v. Madden & M. 
 R. R. Co., 3 Allen (Mass.) 101 ; 3 Loomis v.Terry, 17 Wend. 496; See Nor- 
 deck v. Loeffler, 2 W. L. B. 258. 
 
 Ownership is sometimes implied by mere possession, and so, likewise, 
 it is presumed that the owner of the dog is the person who keeps or har- 
 bors it. And the ownership may be shown as a circumstance indicative of 
 the keeping of the animal. 2'Sh. & Red. on Neg. Part 7: — Chap. XXX, 
 §626—636 ; Buddington v. Shearer, 20 Pick. 477; Grant v. Ricker, 74 Maine 
 .487 ; Dickson v. McCoy, 39 N. Y. 400 ; Sullivan v. Scripture, 3 Allen (Mass.) 
 564; Smith v. Jaques, 6 Conn. 580; Oakes v. Spaulding, 40 Verm. 347. 
 
 No. 27. Injury from dog continued — Defense — Fasten- 
 ing dog — Giving warning, etc. — The defendant may show in 
 her defense that this dog was properly secured there upon 
 the premises, was secured so that he could not come at any- 
 one to commit any damage, and in that connection you must 
 find as to the relations of the plaintiff there to the defendant 
 and her premises : If the plaintiff was there at work on the 
 premises with Mrs. O's knowledge and consent, then he 
 would have a right to go about the premises in a reasonable 
 way, to carry out and dispatch the business that he was_ em- 
 ployed to do ; and if, in going about in that way, he was bitten 
 by a dog, then he would have a right to recover ; though, if 
 you find, as I have already said, that this dog was properly 
 secured, was kept there securely shut up by the defendant, or 
 with her knowledge, knowing that it was so kept so that he
 
 ANIMALS. 23 
 
 could not come at anybody, and if Mr. A., the plaintiff, was 
 told not to go there, and he understood that the dog was 
 there, and knew that it was dangerous to go there — knew 
 why he was forbidden to go there and understood it — then, 
 if he went where the dog was securely shut up and kept safely 
 — knowing that he was dangerous — if that is shown and made 
 out by the evidence — by a preponderance of evidence — then 
 the plaintiff can not recover. 
 
 Gilbert Harmon, Judge, in O'Farrell v. Albertv, S. C. No. 3,291, Lucas 
 County. 
 
 No. 28. Same continued — As to vicious character. — 
 
 Then you should go further and inquire as to what the char- 
 acter of this dog was ; look into the evidence on that point 
 and determine and find if he was a vicious, ferocious dog and 
 dangerous to men, women, or children — accustomed to bite 
 mankind; see if the plaintiff has proved that fact; it is 
 necessary for the plaintiff to prove that by a preponderance 
 of evidence before he can recover. If you find that, then go 
 further and inquire whether, before this time, April 12, 1890, 
 Mrs. O. knew of that disposition of the dog — knew that this 
 dog was accustomed to bite mankind — knew that he was 
 vicious, dangerous, and ferocious, or either, or, in other words, 
 that he was accustomed to bite men. If she knew that, why 
 then, on that point, you must go still further and find and 
 inquire whether the plaintiff was bitten by that dog; has he 
 proved it by a preponderance of all the evidence in the case. 
 
 Gilbert Harmon, Judge, in O'Farrell v. Albertv, S. C. No. 3291. Ap- 
 proved by Circuit Court, settled in Supreme Court, Lucas County. 
 
 No. 29. Same continued — As to ownership of dog. — 
 Now look into the evidence as to whether M. (). kept this 
 dog, and I say to you, gentlemen, that it is not necessary, in 
 order that she can be held to be the keeper of the dog, that 
 she was the owner. The petition does not allege that she 
 was the owner, and it is not necessary to be proved that she 
 was the owner ; if she kept and harbored that dog, that is 
 sufficient on that point; and upon that you will look into the 
 evidence and consider it. If you find it to be shown that she 
 was the owner of the premises where the dog was kept — that 
 she had control there, was, as far as that family was concerned, 
 at the head, the head of the family — controlled the premises 
 and had a right to say and did say what was to be kept there, 
 and what should be, and if she, knowing that the dog was 
 there, staying there, and had Keen \nv a long time, permitted
 
 24 ARREST. 
 
 her son to take — allowed the dog to be and remain there, 
 then she was, so far as this case is concerned, the keeper of 
 the dog, on that point. 
 
 Gilbert Harmon, Judge, in O'Farrell v. Alberty, S. C. No. 3291. See 
 cases ante, p. 22, note. But see Nordeck v. Loeffler, 2 W. L,. B. 258. 
 
 ARREST. 
 
 No. 30. Arrest without warrant — Duty of village mar- 
 shal. — ''Under the laws of Ohio, the marshal of a village is 
 bound to arrest any person in the act of committing any 
 offense against the laws of the state, and forthwith bring such 
 person before the mayor, or other competent authority, for 
 examination or trial. 
 
 "If the person arrested is, as a matter of fact, in the act 
 of committing such offense at the time of the arrest, and the 
 officer has information or knowledge which induces him to 
 reasonably believe, and at the time of the arrest he does 
 believe, that such offense is being committed, and the arrest 
 is made on that account, it is sufficient to justify the arrest 
 without warrant." 
 
 From Ballard v. State, 43 O. S. 340. 
 
 No. 31. Arrest by policeman — What force may be 
 
 used. — "If the defendant was a policeman of the town, as he 
 insists he was, the law clothed him with the same authority 
 to make arrests within the town as is vested in a sheriff, and 
 if he could have kept B. in custody and prevented deceased 
 from rescuing him without striking, it was his duty to do so. 
 Were there bystanders? If so, he had authority to call them 
 to his aid, and if by doing so he could have avoided striking 
 the deceased, he should have done so, and if he failed to do 
 so, he was not justified in striking the deceased, and it will 
 be your duty to return a verdict of guilty ; but if the situation 
 was such that he could not reasonably and conveniently pro- 
 cure assistance, then he had a right to use such force as was 
 necessary under the circumstances to secure B., and if, in the 
 due exercise of that right, he struck deceased, he was justi- 
 fied." 
 
 State v. Bland, 97 N. C. 441. " The law does,not clothe a police officer 
 with authority to judge arbitrarily of the neces'sity of killing a prisoner 
 to secure him, or of killing a person to prevent rescue, and it must be 
 left to the jury to pass on the necessity for such killing." Id.
 
 ASSAULT AND BATTERY. 25 
 
 ASSAULT AND BATTERY. 
 
 No. 32. Assault and battery defined. — Any unlawful 
 beating or other wrongful physical violence or constraint 
 inflicted on a human being, without his consent, is an assault 
 and battery. 
 
 If a person only so much as lay his finger upon another, 
 without his consent, in a rude, angry, insulting, or indecent 
 manner, he commits an assault and battery. 
 
 But gently touching or laying the hand upon another in 
 a friendly way, without any harmful or evil intent, is not an 
 assault and battery. 
 
 If two neighbors meet and shake hands, no assault and 
 battery is committed. 
 
 If 'one friend steps up and lays his hand gently on the 
 shoulder of another, with the intention of speaking with him 
 or for some other proper purpose, no offense would be com- 
 mitted, but such an act as this might bean offense even though 
 done without any feeling of anger. If instead of laying the 
 hand gently on the shoulder, a great degree of violence were 
 used, so as to cause physical pain, the rudeness of the act might 
 render the party doing it liable either civilly or criminally 
 for assault and battery. 
 
 James E. Hawes, Judge, in Harper v. Hart, S. C. 1500. Assault denned 
 in Fox v. State, 34 O. S. 377. 
 
 No. 33. The effect of conviction in criminal prosecution 
 upon civil suit.— The fact that the defendant has been con- 
 victed and fined for the assault and battery is not a bar to the 
 right of the plaintiff to recover compensatory damages for 
 any injuries you may find he sustained. Before adding any 
 sum to your verdict by way of punishment and example, if 
 you find the same to be evident under our instructions to you, 
 it will be well for you to consider the punishment, fine, and 
 cost adjudged against the defendant in the criminal prosecu- 
 tion, but this evidence can be considered under no circum- 
 stani he purpose of lessening the compensation of the 
 
 plaintifl for the injuries actually sustained, but may be only 
 for the purpose of aiding you in determining whether au\ 
 other sum, and if any, how much, should be added by way 
 of punishmenl and exampli in addition to that awarded in 
 the criminal prosecul ion. 
 
 Voris, I . in ' >tto v. Mills. Summit Co. Com. Plea9 V 1 ivil remedy for 
 damages for injur} 1- no 11 an indictmenl for the same act. » « » 
 
 : w. e. j. 556.
 
 26 ASSAULT AND BATTERY. 
 
 No. 34. Civil action for damages — Self-defense. — Now 
 
 I say to you that if you find from the evidence that the de- 
 fendant committed an assault and battery upon the plaintiff, 
 without any just cause or provocation, the defendant would 
 be liable in this action. 
 
 The act of assault and battery may be justified by evidence 
 that it was done in self-defense. One man may protect his 
 person from assault and injury by opposing force to force. 
 Nor is he obliged to wait until he is struck; for, if the 
 weapon be lifted in order to strike, or the danger of any other 
 personal violence be imminent, the party in such imminent 
 danger may protect himself by striking the first blow and 
 disarming his assailant. But the opposing force or measure 
 of defense must not be unreasonably disproportionate to the 
 exigency of the case, for it is not every assault that will jus- 
 tify every battery. If the violence used was greater than was 
 necessary to repel the assault, the party is himself guilty. 
 
 3 Greenleaf 's Ev., Sec. 64. 
 
 If you find from the evidence that the plaintiff made the 
 first assault upon the defendant with his cane, the defendant 
 would have a legal right to resist such assault with such force 
 as was necessary to protect himself from the assault of the 
 plaintiff. If you find from the evidence that the plaintiff, 
 without any just cause or provocation, ran towards the de- 
 fendant and struck him with his cane, and afterwards raised 
 his cane to strike him again, and that the defendant believed 
 and had reasonable grounds to believe that he was in immi- 
 nent danger of great bodily harm, the defendant would be 
 justified in using such force as he had reasonable ground to 
 think was necessary to protect him from said danger, and if 
 he only used such force, he would not be liable in this action. 
 But if you find from the evidence that the plaintiff did make 
 the first assault upon the defendant, the defendant would not 
 be justified in using any more force to resist said assault than 
 he believed, and had reasonable grounds to believe, was 
 necessary to protect him from the assault of the plaintiff. 
 And if you find that the defendant did use more force than 
 he believed, and had reasonable grounds to believe, was 
 necessary to protect himself from the assault of the plaintiff, 
 the plaintiff would be liable for said excessive force and no 
 more. 
 
 Now, gentlemen, if you find for the plaintiff under the 
 evidence and instructions given you by the court, it will be 
 your duty to assess such damages to which you find the 
 plaintiff is entitled.
 
 ASSAULT AND BATTERY. 2J 
 
 Voris, J., in Pford v. Pixley, Summit County Common Pleas. See 
 Stewart v. State, i O. S. 66 ; i Bishop's Cr. Law, Sec. 865 ; State v. Burke, 30 
 la. 331- 
 
 No. 35. Degree of force in assault and battery. — The 
 law does not measure nicely the degree of force which may 
 be employed by a person attacked, and if he uses more force 
 than is necessary, he is not responsible for it unless it is so 
 disproportionate to his apparent danger as to show wanton- 
 ness, revenge, or a malicious purpose to injure the assailant. 
 
 Voris, J., in Pford v. Pixley, Summit County Com. Pleas; 1 O. S. 66. 
 
 No. 36. Damages recoverable in civil action. — If you 
 find from the evidence that the defendant is liable in this 
 case, the plaintiff is entitled to recover such damages as com- 
 pensation as you shall find that he has sustained. And in 
 determining said compensation you may consider the plain- 
 tiff's injuries which he has shown were inflicted by the de- 
 fendant, if any. You may consider the mental and physical 
 pain and suffering which the plaintiff has endured, if any, as 
 a result of injuries unlawfully inflicted by the defendant, as 
 I have instructed you. 
 
 The plaintiff in this case claims that he has been to ex- 
 pense in curing himself, and he asks special damages on ac- 
 count of said expenses and care, and nursing. Now I say to 
 you, if you find from the evidence in this case that the de- 
 fendant is liable, the defendant would be entitled to recover 
 
 such sum (not exceeding dollars) that he has shown 
 
 you by the evidence that he has expended or incurred in that 
 behalf, if any. He would not be entitled to recover any more 
 for any special damages than he has shown you by the evi- 
 dence to have incurred. 
 
 In assessing damages, if you find that the plaintiff is 
 entitled to recover in this action, and you further find that 
 the defendant acted maliciously, then you have the right, if 
 you think proper, to go beyond the mere compensation and 
 award exemplary or punitive damages, as a punishment to 
 
 the defendant. 
 37 O. S. 20. 
 
 The plaintiff is not entitled to this last item of damages 
 as a matter of right. It is entirely in your discretion to allow 
 it or not for the ]>iit']>om- of a punishment. If you find that 
 the plaintiff acted maliciously, you may in your estimate of 
 
 compensatory damages, take into consideration and include 
 3
 
 28 ASSAULT AND BATTERY. 
 
 reasonable fees for counsel employed by the plaintiff to prose- 
 cute this action. 
 
 In no event would the plaintiff be entitled to recover more 
 than ( dollars) the amount asked for in his petition. 
 
 Voris, J., iii Pford v. Pixley, Summit County Common Pleas. 
 
 No. 37. A person may protect himself and child. — A 
 
 man may protect his person and that of his child by opposing 
 force to force, nor is he obliged to wait until he is struck, or 
 if the weapon be lifted in order to strike, or if the danger of 
 any other personal violence be imminent, the party in such 
 imminent danger may protect himself by striking the first 
 blow and disarming his assailant. But here also the opposing 
 force or means of defense must not be unreasonable or dis- 
 proportionate to the exigency of the case. No more force is 
 to be used than necessary to prevent the violence impending. 
 Where one is assailed he may use such means as are necessary 
 to repel the assailant, or to prevent his own material injury. 
 
 D. J. Nye, Judge, in State v. Kimball. " It is conceded that parent and 
 child, husband and wife, master and servant would be excused should they 
 even kill an assailant in the necessary defense of each other," etc. Sharp 
 v. State, 19 Ohio, 379, 387. Brothers may protect each other if not at fault. 
 Smurrv. State, 105 Ind. 125; Waybright v. State, 56 Ind. 122; 1 Bishop's 
 Cr. Law, Sec. 877. 
 
 No. 38. First assault made by prosecuting witness — 
 How far defendant may go to protect himself. — If you find 
 from the evidence that the defendant made the first assault 
 upon the prosecuting witness without just cause or excuse, 
 and shot him or shot at him, such fact may be considered by 
 you in determining whether the defendant is guilty or not 
 guilty, as charged in the indictment. 
 
 If you find from the evidence that the prosecuting witness 
 made the first assault upon the defendant, or attempted to 
 make an assault upon the defendant, and you further find that 
 the defendant went no further than was necessary to protect 
 himself and child from the assault or attempted assault, then 
 the acts of the defendant would be justifiable, and he would 
 not be guilty of the crime charged. 
 
 If you find from the evidence that the prosecuting witness 
 made the first assault on the defendant, or attempted to make 
 an assault upon the defendant, and you further find that the 
 defendant went farther than was necessary, and from all the 
 facts and circumstances of the case the defendant had a right 
 to believe was necessary to protect himself and child, the de- 
 fendant would be liable for such excessive force used.
 
 ASSAULT AND BATTERY. 29 
 
 It is left for you to say whether or not the prosecuting 
 witness did make the first assault upon the defendant, and if 
 he did, if the defendant went beyond what was necessary, and 
 from all the circumstances of the case he had a right to be- 
 lieve was necessary to protect himself and child from such 
 assault. 
 
 Nye, J., in State v. Kimball; 1 Bishop's Cr. Law, Sec. S77. 
 
 No. 39. One voluntarily provoking assault may recover 
 if he afterwards withdrew. — One voluntarily provoking an 
 assault may recover when his adversary voluntarily renews 
 the conflict. If the plaintiff voluntarily brought upon him- 
 self the injuries complained of, it would seem absurd to say 
 that he should be awarded exemplary damages resulting 
 therefrom. But, though he may have provoked the battery, 
 if he afterward withdrew from the conflict, the defendant 
 could not make the provocation an excuse for following him 
 up and beating him after he had so withdrawn. 
 
 In that case, if the defendant did voluntarily renew the 
 conflict, the plaintiff in good faith endeavoring to avoid it, 
 and thereupon wrongfully beat and wounded the plaintiff, 
 and he was thereby injured so that you can see that he sus- 
 tained substantial damages therefrom, then the plaintiff would 
 be entitled to recover compensatory damages, at least, for 
 the injury so done, and if the renewal of the assault was of a 
 character to bring the act within the provision of exemplary 
 damages, it would not defeat the recovery of exemplary 
 damages. 
 
 It is the law of Ohio that one who provokes a fight may 
 recover from his antagonist for injuries inflicted by the latter 
 when he oversteps what is reasonable under the circumstances 
 and unnecessarily injures such person, but he can not recover 
 for any injuries that resulted from any reasonable resistance 
 to the attack made by the plaintiff. 
 
 Voris, I., in Otto v. Mills, Summit Co Com. PI. 
 
 It is said by Minshall, J., in Barholt v. Wright, 45 O. S. 177, r8i : "It 
 is upon the mere principle ot public policy that one who is the first assail- 
 ant m .in assault in.iv recover of his antagonist for injuries inflicted by the 
 
 be oversteps what is reasonably ary to his defensi 
 
 unnecessarily injures the plaintiff, or that, with true want of consistency, 
 permits each to bring an action in the case, the assaulted party for the as- 
 
 ■ tirst committed upon him, and the assailant, for the excess of force 
 used beyond what was necessary for self-defense." Dole v. Erskine, 35 N. 
 II on Torts, [65; Darling v Williams,35 O. S. 63; Gizler v. 
 
 Witzel, 82 111. 322. It would seem that under the code the right of each 
 combatant to damages might have determined a measure in the same ac- 
 tion. Id. Swan's p. and P. 259 N a
 
 3° 
 
 ASSAULT AND BATTERY. 
 
 No. 40. Assault by a school teacher upon pupil. — It is 
 
 claimed by the state that the defendant was a teacher in the 
 
 public schools at , and that the assault and battery was 
 
 committed upon C, who was at the time one of the pupils in 
 the school taught by the defendant. The defendant admits 
 that he was a teacher as alleged, but says that for the purpose 
 of correcting the said C, who was then a pupil in said school, 
 he did take hold of him, and did then and there administer 
 to him such corporal punishment as was necessary for the 
 proper government of the school, and that he had a right to 
 administer said punishment, and in doing what he did he 
 committed no assault and battery and no offense whatever. 
 
 You are instructed that a school teacher has a right to 
 give moderate corporal correction to his pupils for disobedi- 
 ence to his lawful commands, negligence, or for insolent 
 conduct. 
 
 Reeves' Dom. Rel. 534 ; 1 Bishop's Cr. Law, Sec. 886. 
 
 It is not an assault and battery for a teacher to correct and 
 punish a pupil in a reasonable way. But if a punishment be 
 extreme, unreasonable, or cruel, or such as would naturally 
 occasion permanent injury to the pupil, or if inflicted merely 
 to gratify an evil passion, the teacher would not be justified, 
 and would be guilty of assault and battery. 
 
 Field's L. B., Sec. 267 ; Boyd v. State, 16 Am. St. 31 ; 1 Bishop's Cr. 
 Law, Sec. 886. 
 
 The right of a school teacher «to correct his scholars has 
 been practically and judiciously sanctioned, but the punish- 
 ment must not exceed the limits of moderate correction. A 
 teacher, in the exercise of the power of corporal punishment, 
 may not make such power a pretext of cruelty or oppression, 
 but the cause must be sufficient, the instrument suitable, and 
 the manner and extent of correction, the part of the person 
 to which it is applied, and the temper in which it is inflicted 
 should be distinguished with the kindness, prudence, and 
 propriety which become the station of the teacher. There 
 are two important questions for you to consider and determine. 
 First, was the defendant justified in administering or inflict- 
 ing any punishment upon C. ? Second, was the punishment 
 which was inflicted, if any, reasonable and proportionate^ to 
 the offense of the pupil, and was it appropriate in its kind 
 and character, such as a teacher had a right to inflict ? 
 
 To apply these principles of law to this case, if you find 
 from the evidence which has been given to you that the con-
 
 ASSAULT AND BATTERY. 31 
 
 duct of the pupil on the day that the injury is said to have 
 been inflicted was such as to deserve and merit punishment, 
 then as a matter of law the defendant would have been justi- 
 fied in inflicting such punishment as the particular circum- 
 stances of that case required and deserved. 
 
 But whether the circumstances of that particular case were 
 such as to require any punishment is a question of fact for 
 you to determine from all the circumstances of the case. But 
 if you find from the evidence that the conduct of the pupil 
 was such as not to merit or deserve punishment, then as a 
 matter of law the defendant would not be justified in inflict- 
 ing any punishment whatever upon him. The defendant 
 would not be justified in inflicting corporal punishment upon 
 the person of C. without any just cause, nor unless it was 
 done for the purpose of correcting or disciplining for a viola- 
 tion of the defendant's lawful and reasonable commands as 
 such teacher. 
 
 The defendant would not be justified in inflicting corporal 
 punishment upon the pupil for the purpose of gratifying the 
 defendant's passion or malice; if it was done for the mere 
 purpose of gratifying the passion or malice of the defendant 
 and without just cause, then any punishment inflicted for that 
 purpose would be unlawful and constitute an assault and 
 battery. 
 
 If you find from the evidence which has been given to you 
 that the conduct of the pupil was such as to deserve and 
 merit punishment, and the defendant undertook and did 
 administer punishment, it was his duty to do it in a reason- 
 able and moderate manner, and to use only such means as 
 was reasonable and proportionate to the offense committed by 
 the pupil. 
 
 But if you find from the evidence that there was a just 
 cause for the punishment, and that the defendant used ex- 
 treme, unreasonable and cruel punishment, he would be 
 guilty for the excessive punishment so used. And if the ex- 
 cessive punishment was unreasonable and grossly dispropor- 
 tionate, such excess would constitute an assault and battery. 
 
 If you find from the evidence that the conduct of the 
 pupil was such as to justify the defendant in punishing him, 
 it was the duty of the defendant to use a suitable and proper 
 instrument, and administer punishment in a reasonable and 
 proper manner, and if tin- defendant punished the pupil in an 
 unreasonable and improper manner, by reason of a sudden 
 and violent passion through malice, such punishment would 
 not only be unjustifiable, but unlawful. 
 
 It is for you to determine as a question of fact from the
 
 $2 ASSAULT AND BATTERY. 
 
 evidence, under the instructions given you, whether or not 
 the conduct of the pupil was such as to justify the defendant 
 in administering to him any punishment whatever. 
 
 If you find that he was not justified in administering any 
 punishment, and you further find that the defendant unlaw- 
 fully struck, beat, wounded, or ill treated the pupil, then you 
 should so determine by your verdict. 
 
 But if you find from the evidence that the conduct of the 
 pupil was such as to merit and deserve some punishment, it 
 will be necessary for you to go further and determine from 
 the evidence whether the punishment administered was 
 reasonable and commensurate with the offense committed. 
 If you find it was, then the defendant would not be guilty. 
 
 Nye, J., in State v. Joseph Seaton, Medina Co. Com. Pleas ; i Bishop's 
 Cr. Law, Sec. 886. 
 
 No. 41. Assault with intent to rob includes assault and 
 battery. — "If the jury find that the defendant had not used 
 such force and violence as makes him guilty of assault with 
 intent to rob, he may be found guilty of assault and battery. ' ' 
 
 From Hanson v. State, 43 O. S. 376. 
 
 No. 42. Assault with intent to kill — Of what jury- 
 may find defendant guilty. — "If you should find from the 
 evidence that had death resulted from the assault, the killing 
 would have been manslaughter only, then you should find 
 him, the defendant, guilty of assault and battery only and not 
 guilty of assault with intent to kill. But if you should find 
 that such killing, had death resulted, would have been murder 
 in the first degree or murder in the second degree, then you 
 should find the defendant guilty as charged in the indictment. " 
 
 From State v. Stout, 49 O. S. 270. 
 
 The following extract is from a charge given by Judge Timothy 
 Walker, on the trial of certain persons indicted for assault with intent to 
 kill, and is quoted by the Supreme Court in the State v. Stout, supra : 
 " You will inquire whether there was an assault with intent to murder. 
 An assault is an attempt or offer, with force and violence, to do some cor- 
 poral hurt to another. If the attempt or offer be carried into effect, there 
 is more than an assault ; there is battery also, and the 'only question is as 
 to the intent. Was it to commit murder ? In other words, if M. had been 
 killed, would the prisoner be guilty of murder ? If they were attempting 
 to commit a burglary, it would have been murder in the first degree. If 
 not, and they had yet killed him maliciously, it would have been murder 
 in the second degree. Either will satisfy the statute. But if you think 
 the killing would have been manslaughter only, you can not convict. And 
 this must be the case, if you believe, either that there was no intention to 
 kill, or, if an intention, that it was the effect of passions, roused in a sudden 
 quarrel, and that there was no malice, that is, no culpable disregard of an- 
 other's rights."
 
 ALIBI. 33 
 
 Ohio v. Shields and Robinson, I W. L. J. 118. 
 
 In the opinion in the case of State v. Stout, occurs the following: 
 " The object sought in charging a jury is its enlightenment. The court 
 may, rightfully, refuse to give a correct proposition to a jury where it 
 woiiid lead to confuse them, or not contribute to their enlightenment, un- 
 less amplified and explained." 
 
 ALIBI. 
 
 No. 43. Alibi — Explained fully. — The defendant, under 
 the plea of not guilty, and as an independent defense, says 
 that he was at another place, and therefore could not have 
 taken the property named in the indictment. This is what 
 is termed in law an alibi. Alibi is a Latin word signify- 
 ing elsewhere, and in law means a defense interposed by the 
 defendant by which he attempts to prove that at the time of 
 the commission of the offense he was at some other place than 
 that where it was committed. An alibi is a legitimate and 
 proper defense to make, and if satisfactorily made is con- 
 clusive. It is obviously essential to the satisfactory proof of 
 an alibi, that it should cover the whole of the time of the 
 transaction in question, or so much of it as to render it im- 
 possible that the prisoner could have committed the act. If 
 the defendant was not at the place of the commission of the 
 alleged crime, as a matter of course he could not have com- 
 mitted the crime himself by his own hands. Whether or not 
 the defendant has proved an alibi is a question of fact for the 
 jury to determine; and in doing so yon should look to and 
 consider all the testimony upon that subject and which in 
 any way tends to prove or disprove it. 
 
 Nye, J., in State v. McBride, Lorain Co. Com. PI. See Whittaker's Code 
 Ev., pp. 106, 490. 
 
 No. 44. Character of evidence to prove. — It is not re- 
 quired that the defendant prove this defense beyond a reason- 
 able doubt, nor by .1 preponderance of evidence, to entitle 
 him to an acquittal ; it is sufficient if all the evidence raises a 
 •liable- doubt of his presence .it the time and place of the 
 commission of the crime charged; or in other words, you 
 must determine from the whole evidence whether it was 
 shown beyond a reasonable doubt that the defendant com- 
 mitted the irime witli which he is charged. 
 
 Walters v. State, ,0 O. S. 215; State v. Harden, 46 la. 623 ; State v. 
 
 Failure to prove an alibi affords no presumption of 
 i)S. 583.
 
 34 BAILMENTS — BANKS. 
 
 " But the evidence must cover all the time during which 
 the crime was committed. You should be fully satisfied by 
 a preponderance of the evidence that these defendants were 
 at H. 's, the place where they claim to have been at the time 
 the crime was committed, all the time while the crime was 
 being committed, or at such time that they could not, with 
 any ordinary exertion, have reached the place where the 
 crime was committed." 
 
 State v. Hardin, 46 la. 628. See instructions in State v. Waterman, 1 
 New 543- 
 
 BAILMENTS— See Common Carriers. 
 
 BANKS, BANK DEPOSITS AND BANK 
 CHECKS. 
 
 No. 45. Bank deposits — What officers may receive. — 
 
 The president of a national bank does not, under and by 
 virtue of the act of Congress establishing and governing 
 national banks, nor under the general rules of law applicable 
 to banks and banking, by virtue of his said office of president, 
 have power and authority to execute and issue certificates of 
 deposit of said bank, and the certificate so issued by him 
 does not, by reason of the fact that it bears his name as pres- 
 ident, bind such bank. 
 
 The only officer of a bank who, by virtue of his office, has 
 authority to receive deposits offered to a bank, and to bind 
 the bank by his certificate therefor, is the duly elected and 
 acting cashier. But the president may be authorized ex- 
 pressly, or by custom or usage in the conduct of the business 
 of said bank, to transact any or all the duties devolving upon 
 the cashier by virtue of his, the cashier's, office. It is com- 
 petent for the board of directors to clothe the president with 
 the authority and power to receive deposits and bind the bank 
 by his official signature as president to certificates of deposit 
 as effectually as the cashier may do. It is not required that 
 this authority to the president be conferred by any express or 
 formal action by the directors, but it may be implied from 
 circumstances, or a long uniform course of delay on the part 
 of the bank. If the president in his capacity as president
 
 BAILMENTS — BANKS. 35 
 
 has been in the habit of receiving deposits and issuing cer- 
 tificates therefor, which habit has existed for a considerable 
 length of time, and the directors, or a majority of them, for 
 a long time knew of such habit, making no objections thereto, 
 then an authority from them to the president to do such acts 
 may be presumed, and if these acts were frequent, long con- 
 tinued, open and notorious, the knowledge of the directors 
 may reasonably be presumed. 
 
 By Cyrus Newby, Judge, in Carlisle Barrere v. The Citizens Natl. Bank 
 of Hillsboro of Highland Co. Com. Pleas. ; 4 Thomp. Corp. Sec. 4626. 
 
 No. 46. Duty of bank directors. — It is the duty of the 
 board of directors of a bank to give such attention to its 
 business as will enable them to become acquainted with and 
 know the manner in which the business of the bank is being 
 conducted, and to ascertain whether any officers constituted 
 or appointed by them are disregarding or exceeding the au- 
 thority intrusted to them by the board ; and if the directors, 
 in a careful and prudent discharge of their duties in this 
 behalf, and by the employment of an ordinary amount of 
 care therein, could, or might have discovered that their pres- 
 ident was usurping the functions of the cashier to the extent 
 of receiving deposits and issuing certificates of the bank 
 therefor, the) - will be charged in law with such knowledge as 
 they could have thus obtained, and their silence and failure to 
 object under such circumstances, would in law amount to an 
 authority from the directors to the president to do the acts 
 he assumed to perform in that regard, and to bind the bank 
 therefor. 
 
 Cyrus Newby, Judge, in Barrere v. Citizens Natl. Bank, Highland Co. 
 L. I'- Morse on Banks, Sees. 125, [28 
 
 No. 47. Bank estopped to deny authority of officers. 
 — And if tin- directors of a bank, or a majority of them, 
 without objection or protest on their part, suffer and permit 
 the president without authority expressly conferred, to exer- 
 the duties of the cashier in the receipt of deposits and 
 issuances of certificates of the bank to an extent that would 
 justify a person with ordinary prudence and caution dealing 
 witli the brink, in the reasonable belief that the president 
 had the proper authority from the directors to receive money 
 and to perform the functions of the cashier, and if parlies 
 dealing with the president in good faith rely upon the ap- 
 pearances thus created, the bank will be estopped to deny 
 that then president possessed the authority apparently pos- 
 
 ed by him. But lie must have relied in good faith upon
 
 36 BAILMENTS — BANKS. 
 
 such appearances, and if he knew that the president was ex- 
 ceeding his authority, or if he was in possession of knowledge 
 of facts or circnmstances which would arouse the suspicion 
 of a man of ordinary intelligence and caution as to whether 
 the president was dealing for the bank within the scope of 
 his authority, under such circumstances, he would not be 
 justified in relying upon such appearances, although but for 
 such knowledge on his part he would be protected. 
 
 Cyrus Newby, Judge, in Barrere v. Citizens' Natl. Bank, Highland Co. 
 Corn. PI. 
 
 No. 48. Relation of bank directors to public — Liability 
 for defaulting officers. — The directors of a national bank are 
 guarantors to the public of the fidelity and integrity of the 
 officers and agents selected by them for the management of 
 the business of the bank, while those officers and agents may 
 be acting within a reasonable scope of their duties as such 
 officers. Where, therefore, there has been a misappropria- 
 tion or embezzlement by an officer of a bank of a deposit re- 
 ceived by such officer from a depositor for the bank by its 
 authority, the loss will fall upon the bank and not upon the 
 depositor. If an officer of the bank, therefore, be authorized 
 by the board of directors, either expressly or impliedly by 
 their acts, to receive deposits for the bank and issue certifi- 
 cates therefor ; and if the plaintiff at the bank and in the 
 usual course of business delivered to such officer to be depos- 
 ited in the bank, • money which the officer received and issued 
 certificates therefor in the money of the bank, then the plain- 
 tiff is entitled to recover from the bank the amount so 
 deposited. 
 
 Cyrus Newby, Judge, in Barrere v. Citizens' Natl. Bank, Highland Co. 
 Com. PI. 
 
 No. 49. Liability of drawer of check. — To render the 
 drawer of a check liable to the holder, it will be sufficient if 
 a demand upon the bank has been made, at the bank, during 
 the usual hours of business, and notice of non-payment given 
 to the drawer at any time before suit is brought against him 
 thereon, unless it appear that the bank has failed during the 
 delay of presentation, or the drawer has in some other man- 
 ner sustained injury by the delay of the demand, or delay of 
 notice of nonpayment. 
 
 From Frey v. Gragg, S. C. 
 
 No. 50. The nature of a check. — Rules regulating rights 
 and liabilities of parties thereto. — You are instructed that
 
 BASTARDY 37 
 
 a check is a draft or order, drawn for the immediate payment 
 of money, and that they are of such common use as to answer 
 as payment for considerable amounts of money. Certain 
 usages have grown up peculiar to this class of instruments, 
 which have become engrafted on the commercial law of the 
 land. A check is drawn upon an existing fund, and is an 
 absolute transfer or appropriation to the holder, of so much 
 money in the hands of the drawee. The drawer of a check 
 is the principal debtor, and one who places his name on the 
 back is an endorser. As between the holder or payee of a 
 check and an endorser, demand of payment within the time 
 due is essential to the liability of such endorser. Where the 
 parties reside in the same place, the holder should present the 
 check on the day it is received, or within business hours of 
 the following day. Mere delay in presenting a check in due 
 time for payment does not discharge the drawer, unless he 
 has been injured thereby, and then only to the extent of his 
 loss. A check does not have to be accepted, and when pre- 
 sented it is for payment, and is payable when presentation and 
 demand is made. 
 
 Morrison v. Bailey, 5 O. S. 13 ; Kiukead's Code Pldg., Sec. 289. 
 
 BASTARDY. 
 
 No. 51. Who is the father of the child — Evidence. — 
 
 Where the complainant is an unmarried woman, and the 
 question as to whether or not she has been delivered of a bas- 
 tard child, the court must instruct the jury what the proper 
 rule of law as to the evidence is to prove who the father of 
 the child is, which is: The plaintiff must satisfy you by a 
 preponderance of the evidence of the truth of the fact that 
 
 she- alleges, that is tlie father of her bastard child. 
 
 You must be satisfied only by a preponderance of the evi- 
 dence, and not beyond a reasonable doubt, as in criminal 
 
 In determining this question, gentlemen, you should take 
 into consideration the whole evidence, and all the facts and 
 circumstances proven on trial — giving to the several parts of 
 the evidence only such weight as you think it entitled t<>; and 
 in determining the weight to be given to the testimony of the 
 plaintiff, and of the defendant, and of the several witnesses 
 who have testified before you, you should take into considera-
 
 38 BILLS AND NOTES. 
 
 tion their interest in the event of the suit — if any such has 
 been shown ; their conduct and demeanor while testifying ; 
 their apparent bias, or fairness, if any such appears; and 
 their appearance on the witness-stand ; the reasonableness of 
 the story told by them ; their means of knowing the facts 
 they state, and all evidence and circumstances tending to 
 corroborate or contradict such witnesses — if any has been 
 proved. 
 
 In case the character of the witness is not in issue, the 
 question of character can then only be considered in determ- 
 ining what credit she may be entitled to as a witness. In 
 such case the gist or object of the action is to provide for the 
 maintenance of the child, and the sole question then is to 
 determine who the father of the child is. 
 
 Driggs, J., in Chamers v. Roscoe, Belmont Co. S. C, No. 1600. 
 
 BILLS AND NOTES. 
 
 No. 52. Action upon note — Denial of signature — Con- 
 sideration of testimony as to. — There have been offered in 
 evidence fifty signatures of J. N., which signatures are ad- 
 mitted by both parties to be the genuine signatures of J. N. 
 For the purpose of comparing these signatures, they have 
 been marked Exhibits 1 to 50, for the purpose of allowing 
 you to compare the signatures with the note in suit with the 
 admitted genuine signatures of J. N., to aid you in connec- 
 tion with the other testimony in determining whether the 
 signature of J. N. to the note in suit is the genuine signature 
 of J. N. The note in suit and the admitted genuine signa- 
 tures of J. N. will be before you in the jury room for the 
 purpose of allowing you to compare the name of J. N. on the 
 note in suit with the admitted signatures. Witnesses have 
 been called by both parties to express their opinions as to 
 whether the name of J. N., attached to the note in suit, is 
 genuine or not. These several witnesses have expressed their 
 opinion before you upon that question. You are instructed 
 that the opinion of such witnesses are competent, and may be 
 considered. The weight to be given such testimony is en- 
 tirely for you to determine. Their testimony may be given 
 more or less weight by you in proportion as you believe the 
 reasons which the witnesses give for their opinions are strong 
 or weak — as their reasons appear satisfactory or unsatisfactory
 
 BILLS AXD NOTES. 39 
 
 to you. You are the sole judges of the weight to be given to 
 the testimony *of said witnesses, and of their credibility. 
 
 Nye, J., in Ingersol v. Gaf key, Summit Co. Com. PL 
 
 No. 53. Promissory Notes — Purchase before maturity 
 without notice, of illegal consideration. — The definition of 
 the terms which I have just used, may aid you in determining 
 the questions in the case. If the purchaser pays cash for a 
 note, he acquires it in the usual course of trade for valuable 
 consideration. Before maturity is before a note, by its terms, 
 is due and payable. Therefore, if you find that the plaintiff 
 paid a cash sum for the note, before maturity, to a person 
 authorized to sell it, and obtained the note, the note being 
 payable to bearer, might pass by delivery; but the transfer is 
 not defeated or affected by the endorsement of the payee, and 
 the plaintiff would then have acquired it in the usual course 
 of trade for a valuable consideration, and would be entitled 
 to recover thereon, unless it appears from the evidence that 
 he had, at the time, notice of the alleged considerations, al- 
 ready stated and claimed to be in the note, or that he had 
 information which ought to have excited the suspicion of a 
 reasonable man thereto, and having the opportunity, failed 
 and neglected, or refused to inquire thereto, because he was 
 afraid he would thereby learn what he did not want to know. 
 It is not sufficient, if it only appears that he took the note 
 under circumstances that ought to have excited suspicion in 
 the mind of a prudent and reasonable man; but it must ap- 
 pear that he took the note under circumstances as show he 
 acted in bad faith or with a want of honesty, and in deter- 
 mining whether he so acted, you will look to all the circum- 
 stances and the evidence of the fact, if proved, as claimed, 
 that he paid less than its fair and reasonable value for the note. 
 
 If under all the circumstances, you find the plaintiff ac- 
 quired and holds the note by purchase in good faith, in the 
 usual course of trade for a valuable consideration before due, 
 without noti : h infirmities, your verdict will be in his 
 
 favor for , with six percent interest to this date. Add 
 
 ther the sum so found, that is, the interest and principal, 
 and the whole amount will be his damages. 
 
 If you are satisfied that the note was given for-seed wheat 
 at fifteen dollars per bushel and that such seed wheat proved 
 worthless as such, then your verdict would be in favor of de- 
 fendant, provided you further find that the plaintiff had 
 ' tin worthless character of the wheat and -of such 
 consideration, or had such notice as to put him on inquiry,
 
 40 BILLS AND NOTES. 
 
 and he failed to inquire, solely for the reason that he did not 
 want to know the consideration. 
 
 From Kitchen v. Loudenbeck, 48 O. S., 177. 
 
 No. 54. Promissory notes — Consideration — Delivery — 
 Denial of execution — Alteration — Expert testimony as to 
 signature. — A promissory note implies a consideration. It 
 is not valid unless delivered by the defendant to the plaintiff, 
 though, if you find the note in the hands of the plaintiff, 
 duly executed by the defendant, you may then presume that 
 it was delivered. 
 
 Upon the question of the execution of the note the burden 
 of proof is on the plaintiff, and he must satisfy you by a 
 preponderance of evidence that the defendant did sign the 
 note. If he fails to thus satisfy you, your verdict should 
 be for the defendant. Upon this question you can take into 
 consideration the testimony of the experts, persons who by 
 their experience in the comparison and observation of hand- 
 writing, are permitted to give their opinion whether the sig- 
 nature to the note in question is by the same hand as the 
 signature to the deed and will, which have been proven to 
 be the genuine signatures of the defendant. With these 
 opinions and the other evidence in the case, you are to say 
 whether the same hand wrote all signatures. You are to de- 
 termine the weight of the testimony of these experts. If you 
 are not satisfied that they are right in their opinions, your 
 verdict should be for the defendant. 
 
 (a) Alterations in date. If you are so satisfied you should 
 then consider the question of alterations. These alterations, 
 as claimed by defendant, are in the change of the date from 
 an early to a later date, and in the body of the note a change 
 in the principal. If these changes were made they are ma- 
 terial changes, and if the plaintiff, without the consent of 
 the defendant, made the alterations after the note was de- 
 livered, he has no right of action on this note. Has the note 
 been altered ? The figures at the left-hand top of the note are 
 no part of the note, and a change in these figures is not ma- 
 terial, but you may look at any alterations' in those figures 
 upon the question whether there was any alteration of the 
 date or amount in. the body of the note. Still, the question 
 is, have any alterations been made? 
 
 Upon this question the burden of proof is on the defend- 
 ant to satisfy you that these claimed alterations were made 
 after it was signed. You may look at the note to see whether 
 any alterations have been made in either particular. If you
 
 BILLS AND NOTES. 4 1 
 
 find that there is no alteration, assuming that the signature 
 of the note is the genuine signature of the defendant, your 
 verdict will be for plaintiff. If the note was altered, and the 
 burden of proof of that, as was said, is on the defendant, yon 
 will then inquire whether the alteration was before or after 
 the defendant signed the note. If you find it was altered 
 after defendant signed the note, the burden of proof will then 
 be upon the plaintiff to satisfy you that it was altered with 
 the consent of the defendant. 
 
 If the note was signed after it was altered, it is a good 
 note. If it was signed before it was altered and the maker 
 consented to the alteration, it is a good note. 
 
 Franklin v. Baker, Kx'r, 4S O. S., 296. 
 
 No. 55. Transfer of note after maturity — Effect of. — I 
 will say this to you, that if the paper was transferred after it 
 became due, and it no longer has the character of commercial 
 paper before due, if it was transferred after it was due, the 
 person to whom it was transferred steps simply into the shoes 
 of the person that transfers it to him, and the maker of the 
 paper can then urge against him, if he sues upon the paper, 
 the same claim, the same suit, that he could make against 
 the person to whom he originally gave the paper if he sued 
 upon it. 
 
 Geo. B. Solders, Judge, in Piatt v. Hazzard, Sup. Ct. No. 3276. 
 
 No. 56. Endorsement in blank explained — Transfer "be- 
 fore maturity. — This note is payable to the order of J. W. 
 T. H. gives him that note; there is nothing upon the face 
 of the note to indicate any contract made at the time. It 
 places it within the power of T. to transfer the note to any- 
 body. He has signed his name upon the back of the note and 
 nothing more, which is known as a" blank endorsement, and 
 that authorizes any person to whom he transfers it to write 
 above it a transfer to him, or a transfer to some other person. 
 In other words, this is not a restrictive endorsement ; that is to 
 strictive endorsement would be to a particular person 
 only. The note is not given to T. individually, but it is 
 given to him with the power of transferring it to anybody. 
 The law makes that paper circulate as money before due. If 
 action had been brought upon this paper by T. , then Mr. II. 
 could offset against him anything, any demand that he has 
 against him, and especially could he offsel this $925.00, as 
 the testimony indicates was due. and which the plaintiff does 
 not controvert. If that contract was made at all he could
 
 42 BILLS AND NOTES. 
 
 offset this against this note. If paper, commercial paper, 
 which this is, is transferred before due to another person, who 
 at the time pays value for it, such person holds the paper 
 free from all claims and setoffs — and in that connection I 
 wish to say to you that this man P. stands upon this paper 
 as an endorsee, holding the paper. That where the endorsee 
 of negotiable paper .pays cash therefor he is a purchaser in 
 the usual course of trade, unless the fact was that he paid for 
 /the note a sum less than the 'fair and actual value — not 
 necessarily that he should pay the actual value, that is a 
 matter of agreement — but if it is transferred before due, for 
 value paid, there being no bad faith, or want of honesty at 
 the time on the part of the person to whom transferred, he 
 takes it clear from any claim that the maker of the note 
 could urge against the person to whom he originally gave it, 
 in this case T. 
 
 Geo. B. Solders, Judge, in Piatt v. Hazzard, S. C. 3276. 
 
 "You are instructed that where a note has been endorsed 
 in blank, the holder of the same may fill the blank with the 
 name of the endorsee ; that the endorsement of the note is 
 said to be in blank when the name of the endorser is simply 
 written on the back of the note, leaving a blank over it for 
 the insertion of the name ot the endorsee, or of any subsequent 
 holder ; and that in such a case while the endorsement con- 
 tinues blank, the note may be passed by mere delivery, and 
 the endorsee or other holder is understod to have full authority 
 personally to demand payment of it, or make it payable at 
 his pleasure, to himself or to another person. ' ' 
 
 From Palmer v. Marshall, 60 111. 292. 
 
 No. 57. Liability of surety on note — How revived — 
 Effect of subsequent promise. — "If the defendant's testator, 
 having been discharged from his liability as surety upon the 
 note sued on, with a full knowledge and understanding of 
 his release as surety, promised the holder or payee to pay the 
 note, if the principal did not, he thereby revived his liability 
 as surety, and such subsequent promise was binding without 
 any new consideration to support it. ' ' 
 
 From Bramble v. Ward, 40 O. S. 267. 
 
 No. 58. Extension of note — Consideration therefor — 
 Payment of interest in advance. — "The payment of interest- 
 in advance is not of itself conclusive evidence of a contract to 
 extend the time of the payment for the term for which inter-
 
 RILLS AND NOTES. 43 
 
 est may have thus been paid, but it is a strong circumstance 
 to be looked to by the jury in determining the existence of 
 the contract claimed." 
 
 From Gard v. Neff, 39 O. S. 607. 
 
 No. 59. Alteration of note — What constitutes — Adding 
 
 words "with interest at percent." — If you find from 
 
 the evidence that after the defendant signed a note similar in 
 all respects to the one sued on, excepting that the written 
 words, "with interest at ten percent," and that these words 
 were not then in the note, but that the printed words, "with 
 interest at ten percent per annum after maturity, ' ' were in 
 the note, and that, after the defendant placed his signature 
 thereon, and without his knowledge or consent, the said 
 printed words were stricken out and the said written words 
 inserted, and that such an alteration of the note was made by 
 any holder of the note, or made with the knowledge of any 
 holder of the note, without the knowledge of the defendant, 
 it would be a material alteration, and would release him from 
 all liability on the note. And if the defendant proves this 
 by a preponderance of the evidence, the verdict must be in 
 his favor; and it would make no difference whether J., the 
 plaintiff, was or was not the owner of the note at the time 
 of the alteration, if he made the alteration after the defendant 
 signed it. 
 
 From Brooks v. Allen, 62 Ind. 401. 
 
 No. 60. Alteration of note — By adding name of third 
 person — Whether material or not. — The defendant, K., 
 through his counsel, claims as a matter of law on the undis- 
 puted facts, that there was a material alteration of the note 
 which discharges K. from liability thereon. Gentlemen, I 
 charge you that if there was a material alteration of the note 
 after its execution and delivery, with the consent of its holder, 
 but without the knowledge or consent of K., such material 
 alteration would discharge K. from any liability on the note. 
 An alteration to be material must he of the note after it is 
 signed and delivered, without the consent of the person who 
 
 cuted it. It is an undisputed fact that S.'s name was 
 placed on th<- face of the note under K.'s name, and without 
 K's consent ; that far then there is no dispute. The question 
 is, was it a material alteration? If so, K. is discharged. 
 Now, did S. sign this note as maker? I have laid down the 
 general rule, gentlemen, that when there is a material altera- 
 tion of the note, with the consent of its holder, and without 
 4
 
 44 
 
 BILLS AND NOTES. 
 
 the knowledge, procuration, or consent of the maker, it 
 releases the maker of the note. It is conceded that the sign- 
 in^ of S. 's name was without the knowledge, procuration, or 
 consent of K. Then is the signing of the name of S. under 
 the name of K. a material alteration of the note? It is a 
 material alteration if he signed it as maker. The addition 
 of the name of a third person as maker, with the privity of 
 the holder, but without the consent of the original signer, is 
 a material alteration of the note, which discharges such 
 original signer. This would not be so, however, if the third 
 person signed the note as an apparent maker through inad- 
 vertence or mistake as to any fact. In this case it is not 
 claimed by S. that there was any mistake as to any fact 
 relative to or connected with the signing of his name on the 
 note. He claims in his testimony that he signed the note 
 for the single purpose of vouching that K. was worth about 
 $3,000, but if there was no inadvertence or mistake of fact in 
 his signing, he can not dispute or vary the written contract 
 above his name which he signed. When he signed this paper 
 (the note) his contract was in writing, and he will not be 
 permitted to dispute it, unless he can show that there was 
 some inadvertence or mistake as to some fact. Having signed 
 the note on its face as an apparent maker, for a valuable con- 
 sideration, he must be held to sustain to the note the relation 
 of maker, unless he can show that there was some inad- 
 vertence or mistake of fact relative to or connected with such 
 signing. It being conceded that his name was signed to the 
 note with the privity of the holder, and without the knowl- 
 edge or consent of K. ; if he signed it as maker, it is a 
 material alteration of the note which releases K. from all 
 liability thereon, unless S. has shown that there was some 
 inadvertence or mistake of fact in signing his name as an 
 apparent maker. A mistake of law does not excuse him. 
 Every person is presumed to know the law, and he is not 
 permitted to say he did not understand the legal effect of his 
 act. Before signing his name Mr. S. was what is called a 
 "stranger" to the note. He would have been prima facie a 
 guarantor of the note if he had placed his name on the back 
 of it , in that case there would be a presumption that he was 
 a guarantor. But, being a stranger to the note, and signing 
 - it on its face, signing the written contract, the written con- 
 tract must be held to govern, unless he shows that there was 
 some mistake of fact, not of law, in such signing. No one 
 pretends to say that he didn't read the contract. No one 
 pretends to say he meant to sign it any place but where he 
 did sign it. If you find that the defendant, S., for a valuable
 
 BILLS AND NOTES. 45 
 
 consideration, signed the note as maker, he is liable on the 
 same, unless he can show some legal reason why he should 
 not pay it. 
 
 John A. Price, Judge, in Smucker v. Wright, Sup. Ct. No. 1845. 
 
 No. 61. Alteration of note by inserting words "to be paid 
 annually" — By whom made — Ratification of. — The defend- 
 ants claim that after the note described in the petition was 
 executed by said M. , and without the consent or knowledge 
 of either of them, the plaintiff altered said note by inserting 
 or causing to be inserted in said note the words "to be paid 
 annually" after the word interest. Thus by said alteration 
 changing the terms of said note, making the interest payable 
 annually instead of being payable when the note became due, 
 and that they have never since ratified said alteration. 
 
 Such alteration, if made as claimed by defendants, would 
 be a material alteration, changing the effect and operation of 
 said note, and upon said note in such case the plaintiff could 
 not recover in this action, unless said alteration has been 
 ratified by the defendants, or by one of them. 
 
 That such alteration was made as claimed the defendants 
 must prove by a preponderance of the evidence. 
 
 Such alteration, if made by a party not interested in the 
 note, and without the knowledge or consent of plaintiff would 
 not affect the note. 
 
 If said alteration of said note was made by plaintiff, as 
 claimed, and if afterward the defendants, or either of them, 
 with full knowledge of such alteration, ratified the same by 
 part payment, or by direct and unconditional promises to pay 
 said note, then said defendants, or whichever of them so 
 ratified such alteration, would be liable on said note as altered, 
 and against the defendant who ratified said alteration the 
 plaintiff can recover. Such ratification must be proved by 
 the plaintiff by a preponderance of the evidence. 
 
 I 1 win Miller v. Vollrath, Sup. Ct. No. 1 728. Judgments of lower courts 
 affirmed. 27 W. L. B. 36. Alteration 1> 1 does not vitiate. War- 
 
 ing v. Smyth, 2 Barb. Ch. 119; Bank v. Roberts; 45 Wis. 373. 1 Am. and 
 Eng. Enc. of Law 505. See also 1 Greenli 1 < Daniel's 
 
 Meg. Inst. ,a Drum v. Drum, 133 Mass. 566. 
 
 No. 62. What must be done to hold endorser of note — 
 Demand and notice — Waiver of. — It is conceded that said 
 defendant O. is the endorser of said note. In order to hold 
 
 said O. as such endorser of the note the plaintiffs must prove 
 by a preponderai : !i< evidenc Mi.it demand was made 
 
 on M. — that i 1 -. a presentation of the note and a request to 
 pay it when due on the — day of February, r8 — .
 
 46 BILLS AND NOTES. 
 
 If the demand was made on M. personally, or, if he was 
 gone from home, upon any agent of his at his home or place 
 of business whose duty it was to transact business or pay 
 money for him; if there was no agent and M. was away 
 from home, then at the house of his wife or servant, or, in 
 the absence of wife or servant, of some other person belong- 
 ing to the family, and if there was no such agent and no 
 person at home, and upon reasonable inquiry none of the 
 persons I have named could be found and M. was gone, no 
 demand was necessary. 
 
 If demand was made and payment refused, notice of such 
 demand and nonpayment, or if no demand could be made, 
 notice of nonpayment should have been communicated to 
 said O. by the first ordinary means of giving him the infor- 
 mation taking into account his whereabouts. 
 
 By mail. Walker v. Stetson, 14 O. S. 89. By the next mail after de- 
 fault. Lawson V. Bank, 1 O. S. 206. By mail if living in same town. 8 O. 
 507- 
 
 The endorser may waive demand and notice of nonpay- 
 ment, and any conduct on his part toward the plaintiff, 
 calculated to put a person of reasonable prudence off his 
 guard, or to induce such person to omit demand or notice of 
 nonpayment will dispense with the necessity of taking such 
 steps. That such demand was made and notice of demand 
 and nonpayment was given, or that the same was waived by 
 the defendant, O., the plaintiff must prove by a preponderance 
 of the evidence. 
 
 From Mills v. Vollrath, Sup. Ct. No. 1728. Judgments of lower courts 
 affirmed. 27 W. L. B. 36. As to waiver see Hale v. Danforth, 46 Wis. 554. 
 
 No. 63. Endorsement of note — Endorser entitled to 
 notice. — You are instructed that an endorsement of a note, 
 that is, the writing of one's name upon the back of the note, 
 is an absolute contract in writing by which the endorser 
 binds himself to pay the note, if on presentment the maker 
 does not, provided due notice is given of nonpayment. 
 
 In order to render one who becomes an endorser on a note 
 not liable for the payment, the note must be presented at 
 maturity to the maker for payment, and if payment be re- 
 fused, notice must be given immediately to the endorser, and 
 whether this has been done is a question of fact submitted to 
 you for determination. 
 
 Farr v. Ricker, 46 O. S. 265 .
 
 BREACH OF PROMISE TO MARRY. 47 
 
 No. 64. When maker of note entitled to demand. — You 
 
 are instructed that it is not generally necessary that present- 
 ment or demand of payment be made at a specified place of 
 the maker of a note on the day it becomes due or afterwards, 
 in order to maintain a suit against the maker. But if the 
 maker has funds at the appointed place where the note is 
 payable, and it is not duly presented, he will be exonerated 
 from the payment of any damages that may have been sus-' 
 tained and costs of suit, but will not be relieved from the 
 payment of the note. 
 
 Bridge Co. v. Savings Bank, 46 O. S. 224. 
 
 BREACH OF PROHISE TO MARRY. 
 
 No. 65. Breach of promise to marry defined — May be 
 entered into how. — A contract of marriage consists simply 
 in a promise on the part of the one to marry the other, and 
 in a promise on the part of the other to marry the one. It is 
 a mutual promise, the consideration of the one's promise 
 being the other's promise. 
 
 Contracts of marriage may, like other contracts, be either 
 express, that is, based upon actual, particular words, a direct 
 proposition on the one part, and a positive, explicit, verbal 
 acceptance of the proposition by the other, or the marriage 
 contract may arise by implication; that is to say, that such a 
 contract may come into existence, as a result of the conduct 
 and demeanor of the parties by their acts towards and treat- 
 ment of each other, by frequency of association together and 
 by other circumstances of like nature. 
 
 I). Thew Wright, J., in Hunter v. Graham, Hamilton Co. C. P. 
 May be shown by conduct. Wetmore v. Mell, 1 O. S. 26. 
 Admissions of intention to marry may In- shown. Cooper v West •, 
 W. I.. B. 431. 
 
 No. 66. What amounts to a breach. — As a general rule it 
 may be said that when an obligation is entered into to do a 
 certain thing in the future, and partly when an express time 
 is indicated within which the things shall be done, before 
 suit can be brought for the breach of an obligation, there 
 must be a request by the person who seeks to enforce the con- 
 tract of the party to perform his obligation. The marriage 
 contract is no exception to this rule of law, being regarded
 
 48 BREACH OF PROMISE TO MARRY. 
 
 bv the law simply as a civil contract. Before there can be a 
 breach of the contract there must be an express request to 
 consummate the marriage, or something which under the cir- 
 cumstances of the particular case removes the necessity of 
 that request. A man could not complain of a woman for 
 breach of promise to marry unless he requested her to keep 
 her engagement, neither can a woman complain of a man for 
 breach unless there is a request made of him. 
 
 If a man agrees to do a thing within a reasonable time 
 and afterwards upon being requested to do it refuses, then he 
 has repudiated his obligation and broken his contract. In 
 the absence of a request and in the absence of indicative cir- 
 cumstances, he may intend to keep or he may intend to 
 break his contract, but it may be important to see what his 
 intentions are. If it can be said that he intends to break or 
 keep his contract, it may be more difficult to determine and 
 to say that he has actually broken his engagement. 
 
 If the plaintiff became convinced or fearful that the de- 
 fendant did not intend to carry out his part of what was 
 understood to be their engagement to marry, she might have 
 gone to him and verbally tendered herself to him, and re- 
 quested that he should marry her in fulfillment of the con- 
 tract. That would have been a perfect and thorough com- 
 pliance with the law, and a thing eminently proper. But 
 circumstances may intervene which will remove the necessity 
 for this explicit action upon her part. 
 
 If it appears from the evidence that there was an engage- 
 ment, and that the defendant himself broke that engagement, 
 the fact appearing to the jury either by the acts or words of 
 the defendant, or by both his words and his conduct, then it 
 is not necessary that the plaintiff should have offered herself 
 to the defendant in marriage, or that she should have form- 
 ally requested him to marry her before bringing this suit. 
 The law assumes that where a man is under an obligation to 
 fulfill a contract, if he voluntarily renounces it, he puts him- 
 self in the attitude of refusing in advance to carry out the 
 contract, and that knowledge is clearly brought home to the 
 other contracting party, then the necessity for the offer or 
 request from the other party is removed and taken away, be- 
 cause it is useless. 
 
 If you find that there was a contract of marriage, and a 
 breach of that contract by the defendant, the only question 
 remaining for your determination is, Was the plaintiff dam- 
 aged by this breach, and if so, in what sum? 
 
 D. Thew Wright, Judge, in Hunter v. Graham, Hamilton Co. Com. Pleas.
 
 BREACH OF PROMISE TO MARRY. 49 
 
 No. 67. Promise made in consideration of sexual inter- 
 course. — If you find from the evidence that the defendant did 
 promise the plaintiff to marry her, but that the inducement 
 for the making of such promise by the defendant was that the 
 plaintiff should permit him to have sexual connection with 
 her, then I charge you that such promise would be void, and 
 the defendant not bound by it. An agreement to marry, 
 made by a man to a woman in consideration of having sexual 
 intercourse with her before marriage is immoral and void. 
 "As the object of the law is to repress vice and immorality, 
 and promote the welfare of society, all promises which orig- 
 inate in a breach or violation of its principles and enactments, 
 are void. This law will not therefore lend its aid to enforce 
 any contract which will lead to the commission of crime or 
 immorality, or which is subversive of public morality. " So if 
 there was a contract of marriage, but it was made on condi- 
 tion and on the consideration that the plaintiff should allow 
 the defendant to have sexual intercourse with her before 
 marriage, such contract was void and no recovery can be had 
 for its breach, it being founded on an immoral consideration. 
 
 2. Parsons Con. 68. 
 
 " But it is no defense if the promise was made after for- 
 nication ; if made with no view to a repetition of the offense, 
 or before fornication, if that was not the consideration of the 
 promise, if the consideration was the mutual promise of 
 marriage — the promise of each to marry the other — the con- 
 tract was a valid one notwithstanding there may have been 
 sexual intercourse between the parties, either before or after 
 the promise was made. If it appears that the promise was 
 made by the defendant with a view to seduce the plaintiff, 
 and that the defendant thereby did in fact seduce the plain- 
 tiff, this will be no defense, but may go to the jury in aggra- 
 vation. " 
 
 ~\Vm. E. Evans, Judge, in Little v. Gearhart; affirmed 51 O. S. 580; Sedg- 
 wick Meas. Dam. 1 \- to promise based on sexual intercourse 
 Hanks v. Naglee, 5 1 Cal si ; Boigneres v. Boulon, si Cal, 
 Steinfeldt v. Levy, [6 Abb. Pr. (N. S.) 26; Goodall v. Thurman, 1 
 H( i'l 209. 
 
 "A promise to marry is not unfrequently one of the base and wicked 
 tricks of the wily seducer to accomplish his purposes, by overcoming that 
 resistance which female virtue makes t<. his unholy designs. Whenever 
 tion follows an engagement to marry, it max well be asserted that 
 n the part of the man was intended to cover his designs 
 upon her virtue, by winning her affections and confidence. Tne fact that 
 the hypocritical suitor is prepared to destroy her chara* ter, shows conclu- 
 sively that it was not his intention to make her his wife." Goodall v. 
 Thurman, 1 I ! 
 
 In Hotchkins v, II" Barb. 117. tin- court held: "A wrong done 
 
 female, SUI h as sexual intercourse with her, by her alleged suitor.
 
 ^o BREACH OF PROMISE TO MARRY. 
 
 will not make a promise to marry, founded thereon or arising therefrom, 
 invalid or inoperative. Such a promise is not liable to the objection that 
 it encourages immorality." 
 
 No. 68. Evidence of preparation for marriage. — Evidence 
 has been offered to prove that the plaintiff made some prep- 
 arations for marriage by procuring bedding, etc., and state- 
 ments by her at the time, explanatory of such acts of prep- 
 aration. To be admissible in evidence such declarations 
 must be made at the time of such alleged act of preparation, 
 must be concomitant with them, and explanatory of them; 
 and such acts must be before the rupture between the parties, 
 before the breach of the promise. If such declarations were 
 made, but were merely narrative of a past occurrence or 
 transaction, or the acts of which they were explanatory were 
 after the rupture between the parties, they are incompetent 
 as evidence, and you will not consider them, but will treat 
 them as excluded from the case. If such declarations were 
 made and were concomitant with and explanatory of acts of 
 preparation for marriage, and such acts were before a rupture 
 between the parties, they are competent to be considered by 
 you. 
 
 William E. Evans, Judge, in Little v. Gearhart, 51 O. S. 580. Wet- 
 more v. Mell, 1 O. S. 26. 
 
 As to promisee's conduct in getting ready, see People v. Kenyon, 5 
 Parker's Cr. C. 254; and her declarations, 2 Am. and Eng. Enc. of Law, 521. 
 Declarations to strangers of the fact of the engagement are not competent 
 unless part of the res gestcz. Stribley v. Welz, 8 O. C. C. 571. 
 
 No. 69. Measure of damages. — If you find in favor of 
 the plaintiff, you will award her damages to indemnify her 
 for the loss she may have sustained by such breach of promise. 
 This would embrace the injury to her feelings, affections, and 
 wounded pride, as well as the loss of marriage. 
 
 Sedgewick Meas. Dam. 369. 
 
 There is no precise rule by which to fix the amount of 
 compensation. The measure of damages is a question for the 
 sound discretion of the jury under the circumstances of the 
 case as disclosed by the evidence. This is to be sound dis- 
 cretion uninfluenced by passion or prejudice; and the amount 
 of damages is to be.such sum as the jury, exercising such judg- 
 ment and discretion under all the circumtances of the case as 
 shown by the evidence, determine and find is proper and 
 adequate to indemnify and compensate the plaintiff for the 
 loss and injury so sustained. 
 
 Sedgewick, 369, 210.
 
 BURGLARY. 5 1 
 
 If the defendant's conduct in the matter of the promise 
 and breaking it \ if he did so ) was ruthless and wanton toward 
 the plaintiff, 
 
 Duvall v. Fuhrman, 3 O. C. C. 305. 
 
 you may, if you think it proper under all the circum- 
 stances of the case, in addition to compensatory damages, 
 award exemplary damages in such sum as you think proper 
 under the circumstances. The entire amount of the award 
 can not exceed the amount claimed in the petition. 
 
 Wm. E. Evans, Judge, in Little v. Gearhart. Judgments affirmed, 51 
 O. S. 580. Seduction may be shown to enhance damages. Matthews v. 
 Cribbett, 11 O. S. 330. Value of defendant's estate may be shown to show 
 greater loss. 8 O. C. C. 571 ; 3 O. C. C. 305; and subsequent acquisitions 
 of property may be considered. 3 O. C. C. 305. 
 
 BURGLARY. 
 
 No. 70. Burglary and larceny — Force necessary in. — 
 As to the force necessary to constitute a breaking, it may be 
 the lifting of a latch, making a hole in a wall, descending 
 the chimney, picking, turning, or opening a lock with a false 
 key or other instrument; lifting a latch or other fastening, 
 
 81 la. 93. 
 
 removing a pane of glass; pulling up or down an unfastened 
 sash ; removing the fastening of a window by inserting the 
 hand through a broken pane; pushing up a window which 
 moved on hinges and so fastened by a wedge, and other like 
 acts. It lias also been held by the highest court of this state 
 that: "The force necessary to push open a closed but un- 
 fastened transom that swings horizontally on hinges over an 
 outer door of a dwelling is sufficient to constitute a breaking 
 under our statutes, which requires a forcible breaking." 
 
 34 <>■ S. 426. 
 
 Then as a matter of law to constitute a burglary there 
 must be a forcible 
 
 The constructive breaking of the common law is sufficient under the 
 
 statute. Ducher v. State, I ' I Clark's Cr. Law, p. 234, 
 
 king which must precede the entry, 
 
 Wine v. Stat- I I 69. 
 
 but it is nol - ■• thai there should be any destruction
 
 c 2 BURGLARY. 
 
 of a building, or any destruction of the parts of the building. 
 If you find from the evidence that the doors of the car were 
 closed, and that the fastenings of the door of the car were 
 removed, and the door pushed or forced open, that would be 
 sufficient to constitute a breaking under our statute. 
 
 Nye, J., in State v. Kemp, et al., Lorain Co. Com. PI. R. S. Sec. 6835. 
 Entering dwelling by a trick has been held burglary. State v. Henry, 9 
 
 Iredell, 463. 
 
 No. 71. Burglary — Degree of force. — "If the jury are 
 satisfied beyond a reasonable doubt as to all the other elements 
 necessary to constitute a burglary except a breaking, and find 
 that the transom was closed on the night in question, though 
 not fastened, and that the defendant used sufficient force to 
 push it from its place, so that it would swing open, that 
 would be a sufficient breaking in law, and, under the circum- 
 stances, if satisfied beyond a reasonable doubt, their verdict 
 should be guilty. ' ' 
 
 From Timmons v. State, 34 O. S. 426. 
 
 No. 72. There must have been an entry. — The second 
 essential to constitute a burglary is that there must have been 
 an entry into the car named in the indictment, and as a matter 
 of law you must find from the evidence that there was entry 
 into the car of the C. C. C. & St. L. Ry. Co., the car named 
 in the indictment, before you find that the burglary was 
 committed. 
 
 And I say to you further that it would not be necessary 
 that the whole person of the burglar . . . go within the 
 car. It would be sufficient entering the car if he reached a 
 hand into the car, and it would be a sufficient entry in the 
 car if he thrust a stick, a fork, or a hook into the car with 
 intent to steal property contained therein. That would be 
 a sufficient entry, providing you find the other things neces- 
 sary to constitute the crime of burglary. 
 
 Nye J., in State v. Kemp, Lorain Co. Com. PL; R. S. Sec. 6835. Both 
 the entry and breaking are essential, though they need not be simultane- 
 ous. Malone's Cr. Briefs, 186; 1 Hale, 551. 
 
 f 
 
 No. 73. Must be in night time. — It is necessary that both 
 the breaking and the entering should be done in the night 
 time. It is night in the sense of the law when there is not 
 daylight enough left or begun to discern a man's face. Again 
 night is defined as being: "That space of time during which 
 the sun is below the horizon of the earth, during which by 
 its light the countenance of a man can not be discerned."
 
 BURGLARY. 53 
 
 Then you are instructed that the night season is that period 
 of time after the sun goes down at evening and before it rises 
 in the morning, when it is so dark that a person's face can 
 not be discerned bv the dayliglit. It was necessary, therefore, 
 that the offense must have been committed in the night season 
 to commit a burglary. 
 
 Nye, J., in State v. Kemp. Lorain Co. Com. PL; R. S. Sec. 6835. Night- 
 time by common law begins when daylight ends, or when the countenance 
 ceases to be reasonably discernible, and ends at earliest dawn, or as soon 
 as the countenance becomes discernible. Clark's Cr. Law, 237 ; People v. 
 Griffin, 19 Cal. 578; State v. Bancroft, io N. H. 105. " The jury must deter- 
 mine this question independently of a capricious test." Whart. Cr. PI. and 
 Pr., Sec. 1612 ; Lewis v. State, 16 Conn. 32. The nighttime may be shown 
 by circumstantial evidence. State v. Bancroft, 10 N. H. 105. 
 
 No. 74. Intent to steal. — The fourth thing that is neces- 
 sary to constitute the offense of burglary is that the breaking 
 and entering must have been done with an intent to steal the 
 personal property of some value of the C. C. C. & St. L. R. 
 R. Co. situated in said car. It is not necessary that anything 
 be actually stolen. The offense is complete under the statute 
 if the defendant broke and entered the car named in the in- 
 dictment, in the night, forcibly and maliciously with the 
 intent to steal property of some value situated in the car of 
 the said railroad company. But direct and positive testimony 
 is not necessary to prove the intent. It may be proved by 
 facts and circumstances. If you find from the evidence that 
 the property was stolen from the car by the defendants, you 
 may consider that fact in determining with what intent the 
 defendants entered the car, if you find they entered it. 
 
 Nye, J., in State v. Kemp ; R. S. Sec. 6835- The property intended to 
 be stolen must be property subject of larceny. State v. I.vmus, 26 O. S. 
 400. 
 
 No. 75. Breaking and entering must be malicious. — 
 The statute provides that the breaking and entering must be 
 maliciously done. Malice is any wicked or mischievous in- 
 tention of the mind; a depraved inclination to mischief; 
 intention to do an act which is wrong without just cause or 
 excuse, a wrongful disregard for the rights and safety of 
 others. In common acceptation it means ill will against a 
 
 on, but in its legal sense it means a wrongful act done 
 intentionally, without just canst.- or excu 
 
 If von find from the evidence that the defendant broke 
 and entered the car of the railroad company in the night 
 
 on with the intent to Steal personal property contained 
 in the car. the law will presume that it was done maliciously. 
 
 Nye, J., in State v. Ki-mp ; R. S
 
 54 CHATTEL MORTGAGES. 
 
 No. 76. Burglary of railroad car — Proof of incorporation 
 not necessary. — ' ' It is not necessary for the state to prove the 
 articles of association or charter of the railway corporation, 
 but it is sufficient to prove by reputation that there was, at 
 the time when the crime is alleged to have been committed, 
 a corporation known by that name, operating such road, and 
 carrying goods, stock, and passengers for hire in its cars 
 running along said company's road. A de facto existence of 
 the corporation is only necessary to be shown. ' ' 
 
 From Burke v. The State, 34 O. S. 79. It would have been necessary 
 before the code. Id. 
 
 CHATTEL MORTGAGES. 
 
 No. 77. Chattel mortgage — Essentials to validity. — 
 
 The statutes with reference to filing chattel mortgages so far 
 as they pertain to this case, are as follows: (Sec. 4150) 
 
 A mortgage or conveyance is intended to operate as a 
 mortgage of goods, and chattels which is not accompanied by 
 any immediate delivery and following by an actual and con- 
 tinued possession of the things mortgaged, shall be absolutely 
 void as against the creditors of the mortgagor, subsequent 
 purchasers, and mortgagees in good faith, unless a mortgage 
 or a true copy thereof be forthwith deposited as directed in 
 the next section. The next section provides that: "The 
 instrument mentioned in the last section shall be deposited 
 with the township clerk of the township where the mortgagor 
 resides at the time of the execution thereof, if a resident of 
 the state," etc. "The officer receiving any instrument shall 
 endorse thereon the time of receiving it, and its consecutive 
 numbers." The statute further provides that, "the mort- 
 gagee, his agent or attorney, shall, before the instrument is 
 filed, state thereon under oath that it is just and unpaid, if 
 given to secure the payment of a sum of money only." 
 
 The other section of the statute provides that: "Every 
 mortgage so filed shall be void as against the creditors of the 
 person making the same. . . . After the expiration of 
 one year after the filing of the same, unless within thirty 
 days next preceding the expiration of the said term of one 
 year, a true copy of such mortgage together with the state- 
 ment verified as provided in the last section, together with a 
 statement exhibiting the interest of the mortgagee in the
 
 COMMON CARRIERS. 55 
 
 property last aforesaid, as claimed by virtue of said mortgage, 
 is again filed in the office where the original was filed. 
 
 If yon find from the evidence given yon in this case that 
 the chattel mortgage which the plaintiff has produced and 
 offered in evidence was given for the consideration named 
 therein, and that the same was verified and filed, and verified 
 and refiled as provided by said statutes, and remained on file, 
 the same would be a valid mortgage and a lien upon the 
 property therein described, to the extent of the amount of 
 money therein named. 
 
 Nye, J., in Bebee v. Ensign. 
 
 COMMON CARRIERS. 
 
 No. 78. Carrier defined — Liability for carriage of goods 
 — Act of God, etc. — A common carrier is one that under- 
 takes, for hire or reward, to carry, or cause to be carried, 
 goods for all persons, indifferently, who may choose to em- 
 ploy him, from one place to another. The defendant ad- 
 mits that, as a common carrier, it undertook for reward to 
 carry plaintiff's goods from M. to R., K. & Co., at C, but 
 was prevented therefrom by the water-flood rendering said 
 merchandise worthless. A common carrier is responsible for 
 the safe transportation and delivery of goods received by 
 him for carriage, and can only justify or excuse a default 
 when occasioned by the act of God, or the public enemies; 
 he is not only responsible for his own acts of malfeasance, 
 misfeasance and negligence in the course of his employments, 
 but he is also regarded as an insurer against all loss or dam- 
 ages which may happen to goods whilst in his charge, for 
 the purpose of his employment, though occasioned by un- 
 avoidable accident, or by any casualty whatever, except only 
 as just mentioned, and the burden of proof is thrown upon 
 the carrier in bringing any particular case within the ex- 
 ception. 
 
 For, in the absence of proof, the loss itself raises the pre- 
 sumption of negligence on the part of the carrier. The act 
 of the public enemies is not claimed as an excuse forthe non- 
 performance of duty ; the available excuse for the nondeliv- 
 ery of the goods to the- consignee there must be the act of 
 God. 
 
 By the term "act of God" is meant something superhuman
 
 56 COMMON CARRIERS. 
 
 — something beyond the power of man to foresee or guard 
 against. It means inevitable accidents, something that hap- 
 pens without the intervention of man. Where one is pursu- 
 ing a lawful vocation in a lawful manner, and something oc- 
 curs which no ordinary skill or precaution could foresee or 
 prevent, and as a consequence the accident takes place, this is 
 called inevitable accident. A loss by fire is not a loss by act of 
 God. It means those events and accidents which proceed from 
 natural causes, and can not be anticipated and guarded against 
 or resisted ; such as unexampled freshets, violent storms, light- 
 ning and frosts. For losses occurring by any of these means, 
 a common carrier is not liable, provided he has not been 
 guilty of any want of ordinary and reasonable care to guard 
 against such loss. Whether in this case such care and dil- 
 igence were or were not used by the defendant, and whether 
 the loss resulted therefrom, are questions for you to deter- 
 mine in view of all facts and circumstances proved on the 
 trial. The burden of showing the use of ordinary care to 
 prevent the loss is upon the defendant ; this showing must be 
 a preponderance of the evidence; that is, the evidence in its 
 favor must outweigh in your minds through weight and im- 
 portance all other evidence to the contrary. Otherwise you 
 should find for plaintiff. Speaking in other words as to 
 ordinary care, if you are satisfied by a preponderance of the 
 evidence that the defendant used such care and diligence to 
 prevent the loss of the goods entrusted to it as ordinarily 
 prudent men usually exercise toward their own property 
 under like circumstances, your verdict should be for the de- 
 fendant; but if the evidence in this direction just balances 
 by your consideration with the evidence to the contrary, or 
 if such preponderance of evidence satisfies you that the de- 
 fendant did not use such care and diligence, and the loss re- 
 sulted therefrom, your verdict should be for plaintiff. 
 
 From B. & O. R. R. Co. v. Crawford. Affirmed by C. C. Settled in Su- 
 preme Court, No. 2236 (14-26). May, J. 
 
 No. 79. Limiting liability by special contract — Burden 
 of proof. — "A carrier may restrict or limit the amount of its 
 liability by a special contract accepted on the part of the 
 owner of the baggage ; and this may be done by notices brought 
 home to the owner of the baggage before or at the delivery 
 to the carrier, if assented to by the owner." 
 
 "The onus of proving any qualification of the liability of 
 the defendant as a carrier rests upon it. The notice, to be of 
 any force, must amount to actual notice. At all events to 
 exonerate the defendant as a carrier from its general liability
 
 COMMON CARRIERS. 57 
 
 it must be shown at least, by the evidence, that the plaintiff, 
 or those acting for her, assented to the demands of the notice 
 or, with a knowledge of it, acquiesced in it by making no 
 remonstrance. ' ' 
 
 "And in determining whether or not the conditions and 
 limitations were brought to the notice of the plaintiff and 
 those acting for her, you will look to all the evidence in the 
 case ; as to the manner of the delivery of the ticket and the 
 check ; whether anything was said or done calling attention 
 to them or not ; whether they were or were not read at the 
 time of or before the receipt." 
 
 From R. R. Co. v. Campbell, 36 O. S. 647. For full discussion of this 
 subject, see Kinkead's Code Pleading, Sec. 402. 
 
 No. 80. Limiting common-law liability — Burden upon 
 carrier to show loss within an exception. — You are in- 
 structed that while a common carrier is permitted by a special 
 contract made with the owner of goods entrusted to it to re- 
 strict or limit its common-law liability so as to exonerate it 
 from losses arising from causes over which it has no control, 
 and to which its fault or negligence in no way contributed, 
 it can not by such a contract relieve itself from responsibility 
 for losses caused by its own negligence or want of care or 
 skill, and the burden rests upon the carrier to show not only 
 a loss within the terms of the exception, but also that proper 
 care and skill were exercised to prevent the loss. 
 
 Graham v. Davis, | O S. 362; Hxpress Co. v. Graham, 26 O. S. 598; 
 Express Co. v. Bachman, jS i > S 1 1 1 
 
 No. 81. Not an insurer as to time — Delay caused by un- 
 avoidable accident. — You are instructed that a common carrier 
 is not an insurer as to time, but is bound to transport goods 
 to its destination within a reasonable time; and if delay is 
 caused by an inevitable accident, the carrier is not responsible 
 ilting, if it has used ordinary care under the 
 circtimstam Under such circumstances its duty is to use 
 
 all reasonable efforts to avoid all unnecessary damage to the 
 property by forwarding it to its destination by other means 
 of conveyance, or in some other way. If the goods are of a 
 perishable nature and it is unable by the exercise of ordinary 
 1 are to forward it to its place of destination in time to avoid 
 a total loss, it may sell the same for the best obtainable price. 
 If a total loss may have been prevented by sending the goods 
 
 over another route, it IS its duty to do so. 
 Express Co \ Smitl 511.
 
 e;8 COMMON CARRIERS. 
 
 No. 82. Duty of carrier as to delivery of goods. — The 
 jury is instructed that as a general rule, when the carrier has 
 done all that the law requires toward effecting a delivery of 
 the property, but is unable to accomplish it, and the. property 
 is so necessarily continued in its possession, its obligation 
 becomes that of a depository only. He is no longer an insurer 
 of the property, and may show that it was lost without its 
 fault or negligence, and if the defendant shows by a prepon- 
 derance of the evidence that it has done all that it could do 
 towards delivery of the goods, and that they were lost with- 
 out any fault on its part, it is not liable. 
 
 Railroad v. O'Donnell, 49 O. S. 496. 
 
 No. 83. Nondelivery of property — Presumptive evi- 
 dence of loss by negligence. — Should you find from the 
 evidence that the defendant received the property to be trans- 
 ported for hire as charged in the petition, then I say to you 
 it was their duty to cause the same to be safely carried to 
 the place of destination and deliver the same to the person 
 to whom they were consigned, and the fact, should you so 
 find, that these goods were not delivered is presumptive 
 evidence of loss by negligence, and in that case the burden 
 of proof is upon the defendants to show the exercise of due 
 care on their part, for the law exacts of a common carrier a 
 high degree of care. Yet if you are satisfied from the evi- 
 dence that the defendant exercised all reasonable care, and 
 that the loss, if any, was occasioned by causes over which it 
 had no control, and not from its own neglect or omission of 
 duty, your verdict must be for the defendant; but if you 
 should fail to find that the defendant did exercise all reason- 
 able care, or that the loss, if any, was occasioned by causes 
 over which it had control, or from its own neglect or omission 
 of duty, your verdict must be for the plaintiff. 
 
 J. L,. Greene, Judge, in Stevenson v. Wells, Fargo & Co. 
 
 No. 84. Duty of express companies as to delivery of 
 goods. — The undertaking of express companies is to make 
 delivery of goods entrusted to its care for carriage to the 
 consignee personally, with all reasonable dispatch; and to 
 this obligation they are held by the law with great strictness. 
 If there is delay because of some inevitable accident, it will 
 excuse such delay, but the carrier must make delivery as soon 
 as the impediment to the transportation of the property is 
 removed, or can reasonably be overcome. 
 
 Railroad v. O'Donnell, 49 O. S. 489.
 
 COMMON CARRIERS. 59 
 
 No. 85. Carrier of goods — Rule as co limitation of lia- 
 bility. — "A railroad company engaged in the business of 
 transporting live stock assumes all the responsibilities of a 
 common carrier. In the absence of any special contract 
 limiting its liability, it insures against all loss except that 
 caused by the act of God or the public enemy. 
 
 "It may limit its liability by a special contract with the 
 shipper or consignor of the property, but such special contract 
 can never relieve the railroad company from liability for its 
 own negligence." 
 
 From Kansas City R. Co. v. Simpson, 30 Kan. 647. 
 
 No. 86. Liability by contract for loss on connecting 
 lines. — "A railroad company may become liable as a common 
 carrier by contract for transportation of passengers and baggage 
 over other railroads, forming with their own a continuous 
 line; and where they do so contract, their liability is the 
 same for losses occasioned by negligence as fault while the 
 baggage is upon such other road as while it is upon their own 
 road." 
 
 From Railroad Co. v. Campbell, 36 O. S. 647. For law upon liability of 
 carrier on a connecting line, see Kinkead's Code Ply., Sec. 403. 
 
 No. 87. Duty with regard to baggage — Delivery, etc. — 
 "When a railroad company takes baggage for a passenger, 
 its liability is of the highest sort. It agrees to carry the 
 baggage safely, and insures against all sorts of risks, except 
 the act of God or the public enemy. But when the baggage 
 is landed it is the duty of the owner to call immediately, or 
 a> soon as the throng and hurry incident to the arrival and 
 departure of trains has subsided and get his property. But if 
 he fails to thus call, and the agent of the railroad company 
 takes charge of it, then the responsibility will be changed. 
 It will be tlie responsibility of a warehouseman instead of that 
 of a common carrier. The liability will be to take such care 
 of tin- property as an ordinarily prudent man would of his 
 own property under like circumstances. All the defendant 
 is required to do is to take ordinary care under the circum- 
 stances, such as men usually exercise- in their own concerns. 
 The defendant is not liable for the theft of the goods unless 
 it is the result of the want of proper care." 
 
 Prom Penna 1 "<>. v. Miller & Co., 35 O. S. 541. The judgment of the 
 Common Pleas Court in the ca9e from which the above is taken w 
 
 d b\ the Supreme Court, but the latter say in their opinion, 35 O. S. 
 p. 550, with reference t<> this portion of the charge, that " with the gem 1 al 
 rule thus stated we find no fault; and a less degrei ol car* ought not, in 
 
 opinion, to be allowed." The reversal was based upon other grounds.
 
 60 COMMON CARRIERS. 
 
 No. 88. Liability in absence of special contract. — "In 
 
 the absence of special contract limiting the liability of the 
 defendant, if the jury find that it is liable for loss of plaintiff's 
 baggage, you will assess as damages the value of the trunk 
 and such of its contents as you find was the wearing apparel 
 of herself or her child, or their necessary or usual appendages 
 or accompaniments of herself and child as travelers, with 
 interest from the demand to the first day of the present term. ' ' 
 
 From Railroad Co. v. Campbell, 36 O. S. 647. 
 
 No. 89. Contract for transportation of vegetables. — If 
 
 the defendant agreed with the plaintiffs that for a certain 
 consideration it would carry a carload of potatoes for them 
 from P. to R., and if, in pursuance of such agreement, the 
 plaintiffs delivered the potatoes to the defendant for that 
 
 purpose, on the — day of , 18 — , it was then the duty 
 
 of the defendant to forward them to the place of delivery 
 within a reasonable time, and without unnecessary delay, and 
 if it failed to do so, and the plaintiffs suffered loss or damage 
 in consequence of such unreasonable and unnecessary delay, 
 then the defendant would be liable for such loss or damage. 
 
 Therefore, if the jury find by a preponderance of the 
 evidence that the defendant agreed with the plaintiffs to 
 transport a carload of potatoes from P. to R. ; and further 
 that said potatoes, under said contract, were delivered to the 
 defendant for shipment; and if the jury further find that 
 through the negligence of the defendant the potatoes did not 
 arrive at their destination within a reasonable time after the 
 defendant received them, and in consequence of unreasonable 
 and unnecessary delay, a portion of them froze, then a prima 
 facie case is made out in favor of the plaintiffs. 
 
 If the delay was not the proximate cause of the freezing, 
 or, in other words, if the potatoes would have frozen even if 
 there had been no delay and they had arrived at their destina- 
 tion in due time, then the defendant would not be liable. 
 
 I. L. DeWitt, Judge, in B. & O. R. R. Co. v. Talbott, S. C. No. 2718, Erie 
 County. 
 
 See Hewitt v. C. & C. R. R. Co. 18 Am. and Eng., R. R. Cas. 568, where 
 company held liable for loss of potatoes by freezing, the court holding that 
 danger from cold was one which ordinary foresight could have appre- 
 hended and guarded against; that great diligence and despatch were re- 
 quired of the company in the duty of forwarding these perishable articles, 
 and if they were exposed to the danger which injured them through the 
 company's negligence, it is responsible for the damages. See also Dan- 
 iels v. Valentine, 23 O. S. 532 ; Canfield v. B. & O., 93 N. Y. 532. 
 
 No. 90. Delay in delivery of goods — Exempting liabil- 
 ity in bill of lading. — If the defendant was guilty of any un-
 
 COMMON CARRIERS. 6l 
 
 reasonable delay in the delivery of the turkeys, and it was the 
 result of its own negligence or want of care and diligence in 
 that behalf, then it is liable for whatever damages the plain- 
 tiff thereby sustained. The defendant being a common 
 carrier, it can not, by its bill of lading given to shippers, or 
 in any other way exempt itself from liability for loss or 
 damage arising from failing to deliver the goods shipped 
 within a reasonable time, or at the time stipulated by it for 
 delivery, if there is any such time, if the failure be the result 
 of its own negligence or that of its agent. 
 
 No conditions in a bill of lading can bind the shipper 
 unless where it be averred and proven by the carrier that the 
 shipper knew of such conditions and assented to them at or 
 prior to the time of shipment, and such assent must be proven 
 by the carrier. The law will not presume it ; and whether 
 there was a bill of lading given for these turkeys, and the 
 plaintiffs knew of and assented to the conditions, is a question 
 for your determination, and the burden is on the defendant 
 to prove these facts. 
 
 From American Express Co. v. Hawk, 51 O. S. 572. Charge affirmed 
 by C. C. & S. C. As to bill of lading, see Kinkead's Code Pig. Sec. 400. 
 
 No. 91. Bill of lading — Effect of between carrier and 
 shipper — Conditions in — Waiver of. — If, at the time the 
 plaintiffs delivered the potatoes to the defendant for shipment, 
 the receiving agent at P. Station signed a bill of lading 
 and gave it to the plaintiffs, who accepted it and carried it 
 away with them, such bill of lading would have all the force 
 of a written contract between the parties, although it was not 
 signed by the plaintiffs, and if it contained the condition 
 above mentioned, then no right of action could accrue to the 
 plaintiffs, unless they presented their claim for damage within 
 ten days limitation. This condition, however, could be 
 waived by the defendant. If the plaintiffs, exercising reason- 
 able diligence in the premises, were unable to discover and 
 ascertain their loss within ten days from the time of the de- 
 livery, or could not, by the exercise of diligence, determine 
 the extent of their loss and damage within the ten days' 
 limit, and if, after the expiration of said ten days, they pre- 
 sented their claim for damage to tin- defendant's agent, having 
 authority to act for it. and if, at the time the claim was pre- 
 sented to such agent, they had knowledge of the fact that the 
 time spe ified in the bill of lading, within which the claim 
 could be presented by the plaintiffs, had expired, and if they 
 •wed such claim, and proceeded to investigate it. and made 
 no objection to its adjustment and payment on the ground
 
 62 COMMON- CARRIERS. 
 
 that the time within which the claim could be presented had 
 expired, but based the refusal of adjustment and payment on 
 other grounds, then it is the opinion of the court that such 
 facts would constitute a waiver of the performance of said 
 condition on the part of the defendant. 
 
 If the defendant did not waive the performance of said 
 condition, then the plaintiffs' failure to present their written 
 /demand for damage within ten days would bar their right of 
 'recovery; but if the defendant waived it, then it is no defense 
 to this action. 
 
 The defendant also claims that said contract contains the 
 following provision: "And the liability of each of the 
 carriers which shall receive these goods for transportation 
 shall be confined to loss or damage occurring on its own line, 
 and shall cease on delivery of the goods to the next carrier. ' ' 
 
 The plaintiffs also admit that the bill of lading contains 
 this condition. 
 
 The defendant insists that it is exempt from liability on 
 the ground that the loss or damage occurred while the pota- 
 toes were on the line of another railroad, to which it, the 
 defendant, had delivered the potatoes to be carried from the 
 terminus of its road to R. 
 
 The plaintiffs claim that the loss occurred or happened 
 while the potatoes were in the possession of or under the con- 
 trol of the said defendant. 
 
 This is a question of fact, and if the jury find that the 
 potatoes were not frozen while on the defendant's line of road, 
 then the defendant is exempt from liability; and if, on the 
 contrary, they find they were frozen while on the defendant's 
 line of road, or before they were delivered to the connecting 
 carrier, then this claim made by the defendant does not ex- 
 empt it from liability. 
 
 If the jury find for the plaintiffs, they, the plaintiffs, will 
 be entitled to recover the value of the potatoes which were 
 frozen. That is, the market value at P. at the time they 
 were delivered to the defendant for shipment. 
 
 I. L. DeWitt, Judge, in B. & O. R. R. Co. v. Talbot, S. C. No. 2718. See 
 Kinkead's Code Pig., Sec. 400. 
 
 No. 92. Railroad company — Duty of, as common carrier 
 to furnish cars for transportation. — You are instructed that 
 it is the duty of the railroad company, as a common carrier, 
 to furnish cars for the transportation of freight, and it must 
 have control over its cars in order to perform its duties to the 
 public. If persons to whom shipments of goods and merchan- 
 dise are consigned might hold the cars without unloading, at
 
 COMMON CARRIERS. 63 
 
 their pleasure or convenience, and without extra costs or 
 charges, and thus deprive the railroad company of the use of 
 its cars for the transportation of other freight, it is very evi- 
 dent that both the railroad company and the shipping public 
 would suffer serious injury and loss. 
 
 Van Pelt, J., in B. & O. Railroad Company v. Swisher, 1 O. N. P. Rep. 
 
 122. 
 
 No. 93. Same continued — Duty of company to place 
 cars in suitable places for unloading. — When a car arrives, 
 it is the duty of the servants of the company to place the same 
 in a convenient place for unloading, and if it fails so to do, 
 the period of four days allowed by the rules for unloading 
 does not begin until the car is placed in a convenient and 
 proper place to unload. When a car is once placed in a suit- 
 able place for unloading, it is the duty of the servants of the 
 company to keep it so located for the four days which are 
 provided and allowed for unloading; and if the company fails 
 so to do, it can not recover for car service for such car under 
 the rule until the same is placed in a convenient place for 
 unloading, and kept in such a place for the period of four 
 days. In saying that the car must be placed and kept in a 
 convenient place for unloading during the period of four days 
 it is not meant that the car should be kept in the same spot 
 or place on the track during all of the period of four days. 
 If, in receiving their cars from day to day, and in removing 
 cars that have been unloaded, it becomes necessary to shift 
 the position of the car for freight unloading upon the side 
 tracks of the company, such shifting or changing of position 
 will not prevent the company from recovering for car service 
 if the ear is not unloaded within the four days, provided it is 
 after such shifting left in a suitable and convenient place for 
 unloading. But if the car is shifted in its position from day 
 to day, and on some days it is in a suitable place for unload- 
 ing, and on other days not, and is not at any time for the full 
 id of four days kept in a suitable place for unloading, 
 the company can not recover from the consignor any car 
 service under the rule on account and because of failure to 
 unload the car within the period of four days prescribed by 
 the rule-, but he can be held liable for car service on account 
 of his failing to unload within that time. 
 
 But if the car is placed and kept in a suitable pla< 
 unloading for the full period of foui days, and the consignor 
 fails to unload the same within that time, he will be liable 
 for car service after that period, although the cai may not at 
 all times thereafter be kept in a convenient place for unload-
 
 64 COMMON CARRIERS. 
 
 ing, unless the servants of the company thereafter unreason- 
 ably delay him in unloading by placing the car in an unsuit- 
 able place, keeping the same there longer than is reasonably 
 necessary to enable them to accommodate other shippers, and 
 to receive and remove other cars in the transaction of their 
 business. If, however, after the period of four days, the con- 
 signor is unreasonably delayed and hindered in the unloading 
 of the cars, the company can not recover service for any day 
 on which he is thus injured and delayed. 
 
 Van Pelt, J., in B. & O. Railroad Company v. Swisher, 1 O. N. P. 122. 
 
 No. 94. Same continued — Duty of company to provide 
 side tracks. — It is the duty of the railroad company operating 
 under such a rule or regulation, to provide at each of its 
 stations where such rule is in force, side tracks sufficient in 
 number and extent to accommodate its business at such sta- 
 tion, and to enable its servants to place and keep cars access- 
 ible for purposes of unloading. And if such sufficient side 
 tracks are not provided, and because of the want thereby, the 
 servants of the company are unable to keep cars in places 
 convenient for unloading for the period prescribed by the 
 rule, the company can not recover for the car service if the 
 car laid longer than the time allowed without being unloaded. 
 
 Van Pelt, J., in B. & O. Railroad Company v. Swisher ; 1 O. N. P. 122. 
 
 No. 95. Same continued — May make reasonable rules 
 concerning the car service. — It is a well-settled rule of law 
 in this state that a railroad company, as a common carrier of 
 freight, may make and enforce, all reasonable rules for the 
 convenient transaction of business between itself and those 
 dealing as shippers and consignors. 
 
 Van Pelt, J., in B. & O. Railroad Company v. Swisher ; 1 O. N. P. 122. 
 
 No. 96. Same continued — Reasonableness of rules — How 
 determined. — Whether a particular rule or regulation is or is 
 not reasonable in its requirements, is, when the facts are 
 shown, a question of law for the court, and not a question of 
 fact for the jury. You are therefore now instructed that the 
 time allowed for unloading, that is four days, was a reasonable 
 time, and that the amount charged ($1.00) per day for each 
 day over the period of four days is not excessive, and that the 
 rule or regulation in question, if you find that such a rule or 
 regulation is established by the evidence, was a reasonable 
 one, and is valid in law. 
 
 Van Pelt, J., in B. & O. Railroad Company v. Swisher; 1 O. N. P. 122.
 
 COMMON CARRIERS. 65 
 
 No. 97. Same continued — Recovery for car service — 
 Effect of rules regulating charges for car service beyond the 
 period allowed for unloading. — But the railroad company can 
 recover for charges for the service of their cars beyond the 
 period which they allow for unloading. It must show by a pre- 
 ponderance of the evidence that the defendant was notified or 
 had actual knowledge of the arrival of the cars and failed to 
 have the same unloaded for more than four days after being 
 thus notified or learning of their arrival. If this fact is not 
 shown as to some one or more of these cars the plaintiff can not 
 recover; but if it is shown, then the plaintiff must go further 
 and prove that it was operating its railroad and shipping 
 merchandise over its lines under the rule or regulation ap- 
 plicable for shipments to this place, requiring those persons 
 to whom shipments were made who, on learning of their 
 arrival, unloaded the same from the cars within a period of 
 four days thereafter, and that if they failed to so unload their 
 cars within that period that they should pay to the delivering 
 company the sum of one dollar per car per day for all the 
 time over the period of four days so allowed for the unload- 
 ing of the car. 
 
 If you should find that some time before these shipments 
 were made the number of railroad companies doing business 
 in this part of the country, including the plaintiff, B. & ( >. 
 Railroad Company, had formed or entered into a car service 
 association, and that such association, in order to secure the 
 prompt unloading of cars, had adopted such rule or regula- 
 tion, this would be the same in effect as if the plaintiff com- 
 pany had in itself adopted the same. But if you find that 
 such rule and regulation was then in force and applicable to 
 shipments to these places, includingthe shipments of coal and 
 coke, then, if such rule or regulation was reasonable, that 
 is, it" it imposes no unreasonable burdens or restrictions upon 
 those receiving shipments here, it was legal and valid and 
 may Ik- enforced by the company. . . . _ . 
 
 If the existent e of such a rule or regulation is not shown 
 the plaintiff can nut recover, for it bases its right to recover 
 ,,,1 that rule Bui if the rule be shown, and also that it was 
 applicable to shipments to this point, and that the defendants 
 on the arrival of the ears wire notified, and had obtained 
 actual knowledge of tin- fact and failed for more than four 
 days to have tin- same unloaded, or before plaintiff can re- 
 1 r it must appear that defendants had knowledge of such 
 rules or regulations at the time, and it must also be shown 
 by a preponderance ot evidence that the cars on their arrival
 
 66 CONTRACTS — BUILDING CONTRACTS. 
 
 were placed and kept upon a sidetrack of the company in 
 suitable and convenient places for unloading the same by 
 wagons and teams. 
 
 Van Pelt, J, in B. & O. Railroad Company v. Swisher, i O. N. P. 122. 
 
 CONTRACTS— BUILDING CONTRACTS. 
 
 No. 98. Construction — Words applied to trade — Con- 
 tract to furnish "new dress" for paper. — It is a general 
 rule, that in the construction of contracts language is to be 
 given its plain, popular and ordinary signification ; you are 
 tc give to the language or the words used by the parties at 
 the time of the making of the contract, their plain, popu- 
 lar and usual signification, unless it appears that the words 
 have a peculiar meaning common to a certain trade or pro- 
 profession.- If you find that the contract is as plaintiff claims, 
 that the words "new dress," as used in this contract, have a 
 peculiar meaning common only to the trade or profession of 
 publishing and printing a newspaper, you will give to these 
 words that meaning in considering this contract, the mean- 
 ing that is common to that trade or profession, that is. the 
 trade or profession of publishing and printing a newspaper. 
 You will ascertain the meaning that is to be given to the 
 words from the testimony ; you are to look to the testimony 
 and ascertain what peculiar signification these words have 
 in that trade or profession, and in considering further, if you 
 find the contract was made, you will give to these words the 
 meaning as they are used in that profession or trade. 
 
 From Gaumerv. Riley, Supreme Court, unreported, No. 1627 (13-80). 
 Driggs, J. 
 
 No. 99. Consideration. — You are instructed that what- 
 ever works a benefit to the party promising, or whatever 
 works any loss or disadvantage to the person to whom the 
 promise is made, is a sufficient consideration to support a 
 contract. One promise is a good consideration for another 
 promise. 
 
 It is necessary that the consideration of a promise be of 
 some value, but the law will not enter into the question of 
 the adequacy of the consideration, except where the inade- 
 quacy is so great as to raise the implication of fraud or 
 imposition. 
 
 See Judy v. Louderman, 48 O. S. 562.
 
 CONTRACTS — BUILDING CONTRACTS. 67 
 
 No. 100. Contracts express or implied. — Contracts are 
 either express or implied. In general, the only difference 
 between an express and an implied contract is in the mode 
 of proof. An express contract is proved by evidence of the 
 express words used by the parties. An implied contract is 
 established by proof of circumstances, showing that either in 
 justice and honesty, a contract ought to be implied, or that 
 the parties intended to contract. Whether the contract be 
 established by evidence direct or circumstantial, the legal 
 consequences must be the same. 
 
 The inference of an implied contract is eminently a prac- 
 tical matter for the application of the sense and judgment of 
 the jury, however, to be guided in that respect by our in- 
 structions to you, and the evidence, viewed in the light of all 
 the surrounding circumstances submitted to you, and keeping 
 in mind the fact that the written contract must prevail as to 
 all matters concerning which they speak, unless modified by 
 the agreement of the parties made subject to their execution 
 and delivery. 
 
 Voris, J., in Wilhelm v. Colohan. Summit Co. Com. Pleas. 
 
 No. 101. Contract made under duress or compulsion. — 
 "A contract made under compulsion may be avoided by the 
 party by whom it was executed. Compulsion, however, to 
 have that effect, must amount to what the law calls duress. 
 Mere anger, or profane words, or strong, earnest language, 
 can not constitute such compulsion as will amount to duress, 
 or enable a party to be relieved from his contract. There 
 maw however, be duress by threats. Duress by threats does 
 not exist where a party has entered into a contract under the 
 influence of the threat, or only where such threat may excite 
 or reasonably excite, a fear of some grievous wrong, as bodily 
 injury or unlawful imprisonment." 
 
 From Adams v. Stringer, 7S ln<l 1 
 
 No. 102. Illegal contract — Not a defense for agent as 
 against principal. — "If the jury shall find from the testimony 
 that, on or about the time stated in the petition, the defendant 
 
 ived from the plaintifl a certain sum of money und< 
 arrangement that the same should be invested by the defend- 
 ant in wheat trai ns, illegal in their character, for the 
 benefit of the plaintiff; that said money was so invested by 
 the defendant, and a profil realized thereon; and that before 
 the comment ement of this action said sum of money and the 
 profits so made came into and are still in the hands of the
 
 68 CONTRACTS — BUILDING CONTRACTS. 
 
 defendant; or that he received credit therefor in the final 
 settlement of his accounts with the brokers through whom 
 said business was transacted, then trie plaintiff is entitled to 
 recover said money from the defendant ; nor, in such case, 
 can the defendant avoid his liability to account for said 
 moneys by showing that, by the understanding between the 
 plaintiff and himself, said money was to be employed in 
 illegal transactions in wheat, of the nature stated in his 
 answer, and that said money was employed, and said profits 
 realized in such transactions. ' ' 
 
 From Norton v. Blinn, 39 O. S. 145. 
 
 No. 103. Patents — Action for royalties — Defense — Want 
 of consideration. — The contract under which this suit is 
 brought, in order to be binding, must be founded upon a 
 sufficient consideration. We mean by consideration, the 
 price, motive, or inducement that led the parties to enter the 
 contract. The consideration for which the defendants say 
 that they entered into the contract set out in the petition was 
 the sale and transfer by plaintiffs to them of the exclusive 
 right to manufacture and sell a patented invention of the 
 plaintiff, which plaintiffs represented to be a new and useful 
 attachment, and of great value for sewing machines, for con- 
 verting reciprocating to rotary motion, for which plaintiffs 
 had secured letters patent of the United States, and of which 
 plaintiffs were the owners. 
 
 If you find the plaintiffs' invention to be capable of being 
 applied to some practical or beneficial use, and is not frivol- 
 ous, without regard to the degree of utility, this would con- 
 stitute a sufficient consideration to support the promise of 
 defendants to pay the royalties stipulated for. But if you 
 find that it is not capable of being applied to some practical 
 or beneficial use. and is frivolous, and the attachment could 
 not be sold to the unsuspecting public wuthout committing a 
 fraud, and for which there could be no practical markets 
 where its merits were known, then the transfer of the right 
 to manufacture and sell under said letters patent would not 
 constitute a sufficient consideration to support said promises. 
 
 Voris, J., in Kremer v. Hitchcock, Summit Count}- Common Pleas. A 
 patented invention which is capable of being applied to some practical or 
 beneficial use, and is not frivolous or injurious to the well-being of society 
 is valid without regard to the degree of its utility, and an interest therein 
 constitutes a sufficient consideration for a promissory note or other con- 
 tract. Tod v. Wick, 26 O. S. 370. 
 
 No. 104. Contract to maintain and provide for. — The 
 
 court says to you as a matter of law that the burden is upon
 
 CONTRACTS — BUILDING CONTRACTS. 69 
 
 the plaintiff to show by a preponderance of the proof that the 
 defendant, S. G. , failed and refused to carry out the contract 
 in question, and refused to provide for F. G. a home in his 
 family, and failed or refused to maintain and provide for her, 
 suitable to her age and condition in life, boarding, clothing, 
 care and suitable attendance when needed. 
 
 The parties are at issue upon this question, and in con- 
 sidering the case it would be proper to determine this question 
 at the outset, the plaintiff insisting that he has established 
 this fact by the evidence in the case; on the other hand, 
 defendant earnestly denies it. It therefore becomes your duty 
 to examine all the evidence bearing upon this question and 
 determine what the fact is. 
 
 If the plaintiff fails to establish this question of fact, then 
 your labors would be at an end, and you would return a 
 verdict for the defendant. If you should find that the de- 
 fendant did take F. G. into his family, and did, so long as 
 she remained there, maintain and provide for her in all re- 
 spects suitable to her age and condition, including a home 
 in his family, boarding, clothing, care, and attendance when 
 needed, and in all respects performed gaid contract on his 
 part; and further find that F. G. voluntarily left the home of 
 said S. G. without reasonable cause, and so made it im- 
 possible for him to continue in the performance of said con- 
 tract, then, in that event, the plaintiff could not recover. 
 
 The court will say to you that upon this question as to 
 whether she voluntarily left and had reasonable and sufficient 
 cause for leaving, if it shoud appear from the evidence that 
 some trouble arose between the decedent and the daughter of 
 the defendant, or some member of the family, you should 
 inquire what knowledge this defendant had of it, and to what 
 extent, and whether or not it was a matter of frequent occur- 
 rence or just one isolated case, as bearing upon the question 
 whether or not the defendant properly treated the decedent, 
 and whether what occurred, if anything, afforded her sufficient 
 cause or reasonable cause for leaving his home. 
 
 Gillmer, J., in Watson \ rumbull Co. Com, l" 
 
 No. 105. Same continued — What is reasonable cause for 
 leaving? — I may say to you that reasonable cause must be 
 such a cause as a reasonable man would say, in view of all 
 the facts in the case and circumstances in the case, justified 
 her in leaving his home because he was not carrying out 
 
 irds her the promise of tin- contract, and suitably provid- 
 ing for her according to its terms. If she left defendant's
 
 70 CONTRACTS — BUILDING CONTRACTS. 
 
 home for a mere whim only and for a desire only to live with 
 her daughter, Mrs. H. , or because she preferred rather to live 
 with her than at Mr. G. 's, or even from persuasion on the 
 part of Mrs. H., and had no other reason for leaving, and you 
 further find that the defendant performed his part of the 
 contract while she remained in his family, and was still ready 
 and willing to perform it, then I say to you that this would 
 not be a sufficient cause for her leaving. 
 
 Gillmer, J., in Watson v. Goist, Trumbull Co. Com. Pleas. 
 
 No. 106. Action upon contract for support of parent. — 
 
 This is an action for the support, maintenance, care, nursing, 
 etc., of the mother-in-law of the plaintiff in this cause; the 
 old lady cared and nursed was the mother of the plaintiff's 
 wife. 
 
 While a child may be morally bound to care for, support, 
 and maintain a mother, who, through the long and weary 
 nights or days, has nursed the child during its infancy and 
 childhood, yet no such legal obligation rests upon him. In 
 other words, a child is not bound to support and maintain a 
 parent in his old and declining days. 
 
 Therefore, primarily, neither S. W. nor his wife, M. W., 
 was bound to support, maintain, and care for this old lady in 
 her declining years; primarily, M. C. was bound to pay the 
 plaintiff in this case for the services rendered to her during 
 her declining years, and there can be no recovery in this case 
 against the defendant, unless the plaintiff has satisfied you by 
 a preponderance of the evidence that the defendant, W. C. , 
 did promise to pay the plaintiff for the care, sustenance, 
 nursing, and support of M. C, and that by reason of this 
 promise made by the defendant, W. C, he, the plaintiff, did 
 care for, nurse, support, and maintain M. C. 
 
 If the plaintiff has satisfied you by a preponderance of the 
 evidence that the defendant did promise to pay for the sup- 
 port, maintenance, and care of this old lady, and that by 
 reason of that promise he, the plaintiff, did support, maintain, 
 nurse, and care for her, your verdict will be for the plaintiff, 
 as to this issue ; but if the plaintiff has failed to satisfy yOU 
 by a preponderance of the evidence that the defendant did 
 promise to pay for the support, care, nursing, and mainten- 
 ance of this old lady, and that in pursuance of that promise, 
 he did perform those services, your verdict must be for the 
 defendant, and your duties will then be at an end. 
 
 I may say here that no paticular form of words is necessary 
 to constitute a valid and binding contract, and add that if a
 
 CONTRACTS — BUILDING CONTRACTS. 7 1 
 
 promise is made upon one side, and entered upon and acted 
 upon by the other, this will be sufficient to make it a binding 
 contract. 
 
 In other words, it is not necessary, if one of you should 
 make a promise to pay for a particular service, that I should 
 say to you in a certain form of words that I will accept your 
 proposition ; it is enough if, after you have made the promise 
 to me, I enter upon and perform the services for which you 
 agreed to pay. In such case, if the minds of the two parties 
 actually come together at the time the promise was made, 
 and the services were performed in consideration of that 
 promise, this will be sufficient to make it a good, binding, 
 and valid contract. 
 
 If, therefore, you find that this promise w r as made by W. 
 C, and that S. W. accepted it, and that he performed the 
 services, or that they were performed by his wife and children 
 (under the restrictions that I shall hereafter speak of), and 
 that he has not been paid for them, the plaintiff would be 
 entitled to recover the reasonable and fair value of the services 
 so performed by him, his wife, or his daughter, and for the 
 value of the board and clothing and medical attendance that 
 was furnished by him. 
 
 From Wm. H. Campbell v. Woodward, Sup. Ct. No. 2834. Judgments 
 affirmed. Joseph W. O'Neall, Judge. 
 
 No. 107. Building contracts — Deviation from written — 
 Recovery for extras. — It being admitted by both parties that 
 written contracts were entered into between them, these 
 should control so far as applicable to the matters in conten- 
 tion, except as you find that they have been modified by the 
 mutual consent of the parties. 
 
 Any substantial variation or departure in construction or 
 material from that provided for by the terms of the written 
 contract, unless made with the consent and approval of the 
 defendant, though it made the completion of the job more 
 expensive than provided for in the contract, would not con- 
 stitute such extras as would entitle the plaintiff to recover 
 therefor. 
 
 To 'liable tlie plaintiffs to recover for extra expenses by 
 ■ >n of deviations from tin- plans stipulated for in the con- 
 t, it must appear that the same wen- made, and with the 
 authority of the defendant, either express or implied, and 
 under such circumstances that implied that he should pay 
 therefor. ... If you find from a preponderance of the 
 evidence, and guided and limited by these instructions to you, 
 that such extra work and material were furnished, and if you
 
 J 2 CONTRACTS — BUILDING CONTRACTS. 
 
 also further find that the defendant became obligated to pay 
 therefor, as herein defined and limited, then whatever extras 
 the plaintiffs did so actually provide would constitute a valid 
 claim, to the extent of their reasonable value, at the time and 
 place they were applied, unless the price for such modifica- 
 tions were expressly agreed upon, in which case the express 
 agreement should prevail. 
 
 If anything was omitted or changes were made to an 
 inferior and less expensive mode of construction than stipu- 
 lated for in the contract, the defendant would be entitled to 
 have the value of the omitted material and the difference in 
 the value of the less valuable material from that contracted 
 for deducted from any balance due the plaintiffs on the con- 
 tract, unless substitutions were made of other materials or 
 work in lieu thereof by the authority of the defendant, and 
 which were considered by the parties as an equivalent there- 
 for. To the extent the parties agreed upon such omissions 
 or substitutions you may consider the contract modified, and 
 in adjusting balances, allow or deduct what the evidence 
 shows would be reasonable, having reference to the stipula- 
 tions of the contract in that respect, unless you find these 
 matters to have been agreed upon by the parties as to price, 
 in which case the agreement should prevail. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. 
 
 No. 108. Same continued — Claim that work not done in 
 workmanlike manner. — If, in respect to any of the matters 
 alleged in the defendant's answer, the plaintiffs did not do 
 their work in a workmanlike manner, and according to the 
 stipulations of the contract, then the defendant would be 
 entitled to have such difference in value deducted from the 
 contract price, unless you find that the defendant accepted 
 the same as a compliance with the contracts, or settled there- 
 for as herein qualified. We include in this instruction those 
 matters agreed upon though not included in the written con- 
 tracts. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. 
 
 No. 109. Same continued — Performance or compliance. — 
 
 If the plaintiffs fully performed their part of the contract, then 
 they would be entitled to recover the full price contracted 
 for, less payments actually made. 
 
 But if the plaintiffs substantially complied with the con- 
 tract except in some slight deviations, they would be entitled 
 to recover the contract price, less the diminution in value to
 
 CONTRACTS — BUILDING CONTRACTS. J T, 
 
 the owner on account of the deviations ; or what the house 
 was actually worth less on account of these departures. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. 
 
 No. i io. Same continued — Unfinished work. — As to 
 
 unfinished work, if any, the plaintiffs are entitled to recover 
 the balance due at the contract price, less such sum as it 
 would require to construct or complete the unfinished parts. 
 And any reasonable expense made necessary by being com- 
 pelled to procure such completion. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas; 26 O. S. 101. 
 
 No. in. Same continued — Acquiescence by owner in 
 work not according to contract. — If the work was not ac- 
 cording to the contract and you find that the defendant stood 
 by and saw them prosecute the work without objection, and 
 was benefited by the labor and materials, the plaintiffs would 
 be entitled to compensation to the extent of such benefit ; 
 that is, what the same were reasonably worth, but not to 
 exceed the contract price. Or, when the same was completed, 
 but lacking in quality, the contract price is to be reduced by 
 the difference in the value of the work as it would have been 
 by the contract and as it actually was. 
 
 Defendant is entitled to have his contract, in its true spirit 
 and intent, substantially executed, except as its terms have 
 been waived by C, or his duly authorized agent in the 
 premises, and any failure on the part of plaintiff to so perform 
 entitles defendant to reduction of the contract price to the 
 extent the same was rendered thereby less valuable than con- 
 tracted for, unless defendant 1 icing advised in the premises, 
 knowing the material facts, accepted the buildings as a per- 
 formance of the contracts, or settled therefor as herein defined 
 and qualified. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. 
 
 No. 112. Same continued — Acceptance of building. — 
 The fact that the defendant had bills rendered from time to 
 time to him, and was present .1- the work progressed, paid 
 money from time to time, went into possession of said house 
 and barn, the knowledge he had of and concerning the same, 
 what he said and did concerning the character of the work 
 and material arc circumstances from which you may infer 
 whether he had or had not information as to the modifications 
 from the contract, character of the work, extras, material, 
 quality, and price thereof, and whether he did or did not 
 
 at to, or accept the- same, or settle therefor. 
 
 Voris. J., in Wilhelm v. Colohan, Summit Co. Com, Pi
 
 74 CONTRACTS — BUILDING CONTRACTS. . 
 
 No. 113. Same continued — Settlement — Conclusive in 
 absence of fraud. — We hold that if the parties got together 
 and fully settled the matters growing out of said building 
 transactions, the same would conclusively bind the parties, 
 in the absence of fraud or mistake. But if you find by a 
 preponderance of the evidence that the defendant acted with 
 reasonable prudence, and in good faith, and relied upon the 
 representations of the plaintiffs and was deceived thereby, 
 and by reason thereof agreed upon a settlement he would 
 otherwise not have made, he would not be bound thereby. 
 And we further say to you that the defendant acting in good 
 faith and not knowing to the contrary, would be entitled to 
 rely upon the representations of plaintiffs made to him in 
 that behalf. 
 
 If you find a settlement, as defined and limited by our 
 instructions to you, was actually entered into by said parties, 
 and that it was a part of said contract of settlement, that 
 plaintiffs promised the defendant that if said work had not 
 been in fact done and performed in accordance with the 
 representations and said contracts, that plaintiffs would on 
 request of defendant return to said buildings and do all things 
 required, in order to make the work as represented by plain- 
 tiffs, and as required by said contracts, then it would be obli- 
 gatory upon defendant to make such request within a reason- 
 able time, and what would be a reasonable time we leave for 
 you to say from the evidence submitted to you, before de- 
 fendant would be entitled to a reduction for failure to return 
 to said buildings and do all things'required in order to make 
 the work as represented by plaintiffs, etc. 
 
 But this instruction to you must be taken as qualified and 
 limited by the instruction we now give you. 
 
 If you further find from a preponderance of the evidence 
 that said representations by plaintiffs were false and untrue 
 as to the state of said work and material, that in substantial 
 particulars the work had not been performed in accordance 
 with the terms of said contracts, that the said extras so as 
 aforesaid charged for were estimated both in quantity and 
 value greatly in excess of the amount actually done, or of the 
 value of that which was done, and that the defendant relied 
 upon such representations and promises, and not knowing to 
 the contrary, and defendant thereafter requested the plaintiffs 
 to return to said work and complete the performance thereof, 
 as required by said contracts, and the plaintiffs neglected, 
 and ever since have neglected so to do, or you find that the 
 parties did not settle as herein defined the promise of the 
 defendant to pay said balance would not be binding on him. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas.
 
 DEATH BY WRONGFUL ACT. 75 
 
 No. 114. Action for recovery of extras in a building 
 contract. — That you may determine the matters at issue be- 
 tween the parties, you will look into the evidence and find 
 what work and material the written contract entered into for 
 the construction of the building required to be done. After 
 you have ascertained that, then you will inquire whether or' 
 not the plaintiff did anything at the request of the defendant 
 towards the construction and completion of the building, 
 other than that agreed to be done in the written contract, if 
 you find that work was done other than that or outside of that 
 provided for in the written contract, then you must ascertain 
 what it was reasonably worth. Any substantial violation or 
 departure in the construction of the building from that pro- 
 vided for in the terms of the written contract, if made at the 
 request of the plaintiff and which made the completion of the 
 work more expensive than that provided for in the written 
 contract, then that would constitute such extras as would 
 entitle the plaintiff to recover therefor to the extent of the 
 reasonable value of the extra work and material so supplied 
 at the request of the defendant. If you find that this extra 
 work was done by the plaintiff at the request of the defendant 
 and that there was no special or other contract, it should be 
 paid therefor, you are instructed that the law implies a con- 
 tract on the part of the plaintiff that he will pay the defend- 
 ant such an amount as the work is reasonably worth. 
 
 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. 
 
 DEATH BY WRONGFUL ACT. 
 
 See also Negligence. 
 
 No. 115. Action for damages for death by Homicide. — 
 '• It is to be observed that this case is to be tried in the same 
 manner, and it is to be governed by the same principles of 
 law, as if the deceased had not died of the injuries, and had 
 commenced an action for the recovery of damages for these 
 injuries, or in other words, that this action can be sustained 
 under such state of facts only as would have entitled the 
 
 ased, had he lived, to have maintained an action, and 
 recover damages for the injury which caused his death." 
 
 "If, for instance, the deceased had been wounded, and 
 had not died of his wounds, and had brought an action against 
 6
 
 ~6 DEATH BY WRONGFUL ACT. 
 
 the defendant for damages, if it appeared that deceased made 
 the first assault, and this defendant repelled it by force, em- 
 ploying no more force than was necessary to protect himself, 
 the plaintiff (deceased) could not recover; but if the defend- 
 ant went unnecessarily beyond this, and employed force en- 
 tirely disproportionate to the attack, such as to show wanton- 
 ness, malice, or revenge, he himself would become a wrong- 
 doer and would be liable for injuries inflicted beyond what 
 was reasonable and necessary. ' ' 
 
 From Darling v. Williams, 35 O. S. 58. The case from which this is 
 taken was not one of negligence, but of intentional killing. The defendant 
 denied the charge, and alleged that all he did was done in self-defense. 
 This allegation the plaintiff denies, and upon these issues the case was 
 called to trial. There was no appearance that the defendant's liability 
 arose from negligence. The injury was the outgrowth of a fight or affray. 
 Had the deceased survived and brought an action for the injury, it would 
 have been an action for assault and battery. In such action the law gov- 
 erning cases of negligence, would have been entirely inapplicable. Darling 
 v. Williams, supra. 
 
 No. 116. Same continued — What is excusable homicide. 
 — It seems to be now well settled that to justify the taking 
 of the life of an assailant in an attack, there must appear to 
 the satisfaction of the jury, first, that the defendant, if as- 
 saulted without any wrong or cause on his part, honestly and 
 truly believes that he is in imminent danger of his death, or 
 of great bodily harm ; and if, secondly, he has just and rea- 
 sonable cause to apprehend such danger, which he can not 
 avoid without taking the life of his adversary, it is excusable. 
 
 Darling v. Williams, 35 O. S. 58. 
 
 No. 117. Same continued— Right of self-defense. — That 
 every person has the right to defend himself against attacks, 
 or threatened attacks, of such character as would endanger 
 his life or limb, or to do him great or serious bodily harm or 
 injury, even to the taking of the life of the assailant ; and 
 where a person apprehends that another is about to do him 
 great bodily harm, and has reasonable grounds for believing 
 the danger imminent, he may safely act upon such apprehen- 
 sion and even kill the assailant, if that be necessary, to avoid 
 the apprehended danger. 
 
 That the necessity which permits in law, the taking of 
 life in self-defense, may be either apparent or real. It is real 
 when there is actual danger to life, or great bodily harm ; it 
 is apparent, when the circumstances, at the time of taking 
 life, to a reasonable mind, indicated the presence of actual 
 danger to life, or great bodily harm, though there is in fact 
 none.
 
 DEEDS. 77 
 
 Darling v. Williams, 35 O. S. 58. " One person can justify the taking of 
 the life of another in self-defense, only where, in the proper exercise of his 
 faculties, he believes in good faith, and upon sufficient or reasonable 
 grounds of belief, that he is in imminent danger of death, or grievous 
 bodily harm." Id.; Marts v. State, 20 O. S. 162. 
 
 "It is not, however, necessary that the danger should 
 prove real or in fact existing, for whether real or apparent, 
 if the circumstances are such as to induce a belief sufficiently 
 well grounded, that life is in peril, or that grievous bodily 
 harm is intended ; and to be threatened with a danger, he 
 may act upon appearances and slay his assailant. Yet there 
 must be reasonable ground for his belief in the clanger threat- 
 ened, arising out of the circumstances in which he is placed, 
 otherwise the act of taking the life of the assailant is entirely 
 without justification." 
 
 Darling v. Williams, 35 O. S. 62, Boynton, J. 
 
 DEEDS. 
 
 No. 118. Deed — Execution of, under duress. — "To con- 
 stitute duress which would avoid the deed, it is not necessary 
 that the threats be of legal injury alone; but if the plaintiff, 
 the wife of T. , was induced to execute the deed by the threats 
 of her husband, that he would separate from her as her hus- 
 band and not support her, it is duress and will avoid the 
 deed. 
 
 "The threats must be such as she might reasonably ap- 
 prehend would be carried into execution, and the act must 
 have been induced by the threats. It is not necessarv that 
 the threats be made at the time or immediately before sign- 
 ing, if it was within such time, and the circumstances satisfy 
 you that the threats <>v their influence properly conduced to 
 influence the plaintiff. " 
 
 From Taple • Tapley, to Minn. 158; citing 2 Greenlf. Ev., Sec. 308 ; 
 
 1 Story Eq. Jur 
 
 No. 119. Deed — Capacity to make — Declarations of 
 grantor. — Tin- court says to you that no general rule can be 
 laid down as to what constitutes undue influence in this class 
 further than this: thai in order to make a good deed 
 the man must be a i: til and feel at liberty to carry out 
 
 his own wishes and desires; and any restraints, threats or 
 intimidations brought to hear upon the grantor, which he
 
 78 DEEDS. 
 
 has not the strength of mind or will to resist if exercised so 
 as to coerce him against his desire and purpose in the making 
 of the deed, is undue influence within the meaning of the 
 law. And the amount of undue influence which would be 
 sufficient to invalidate a deed may vary with the strength or 
 weakness of the mind of the vendor ; and the influence wmich 
 would subdue and control a mind and will naturally weak, 
 or one which had become impaired by age, disease or other 
 cause, might have no effect to overcome a mind naturally 
 strong and unimpaired. And whether such undue influence 
 existed in this case must be determined by the jury from the 
 consideration of the evidence. 
 
 Evidence of the declarations of the vendor at times other 
 than the time the deed was made, and instances occurring at 
 times other than the said time, are competent as tending to 
 show the kind of a person he was, and also to show the state 
 of his mind, its strength or weakness, its susceptibility to in- 
 fluence or its capacity ; and these declarations are admitted 
 simply as to the external manifestations of the vendor's 
 mental condition and not as evidence of the truth of the 
 facts he states. 
 
 Gillmer, J., in Norris v. Western Reserve Seminary, Trumbull Co. Com. 
 Pleas. 
 
 No. 120. Covenant against encumbrances — Breach — 
 What constitutes — Damages recoverable. — As a matter of 
 law, if you find the deed was duly executed and that there 
 was the outstanding mortgage unsatisfied at the time of the 
 execution thereof, that, even if nothing had been done be- 
 yond that, would constitute a breach of the covenant against 
 encumbrances which would entitle the plaintiff to recover 
 nominal damages only. But if the person, if M., the grantee 
 in the deed, was obliged to pay anything beyond that, or any- 
 thing for the purpose of removing the encumbrances, then, 
 to that extent, or whatever he may have paid, he would be 
 entitled to recover in this case. 
 
 If the encumbrance existed at the time of the execution 
 of the deed, the breach of the covenant occurred at the time 
 the deed was executed, and the grantee would be entitled to 
 recover for whatever amount was outstanding and a lien 
 against the property at that time, with interest upon it from 
 that time up to the first day of this term, provided he was 
 obliged to pay it, or if it was paid out of the proceeds of his 
 land on which that was found to be a lien, no matter whether 
 that proceeding was instituted by the party holding the lien 
 or somebody else; or if you find in this case that proceedings
 
 EJECTMENT — ADVERSE POSSESSION. 79 
 
 were instituted and money was paid, and that amount is all 
 that was in dispute, it is necessary that you, by the testi- 
 mony, should find the amount the party was obliged to pay, 
 or what was paid on this outstanding claim out of the pro- 
 ceeds of the land of M. ; to that amount he would be entitled, 
 with interest upon it up to the first day of this term. 
 
 If you find he sustained any other damage in consequence 
 of this outstanding iien, if you find he was damaged in other 
 ways, directly, and there is direct and positive proof upon 
 the subject that he was otherwise damaged, then you may 
 take into consideration other damage, if any, which he may 
 have sustained and which are clearly shown by the proof in 
 this case. But if not, you should return a verdict, if you 
 find this was not so paid, then you should return a verdict 
 for the defendant ; but if you find it was paid out of this 
 fund, you should return a verdict for the plaintiff, and your 
 verdict should be for the amount which was found by the 
 court at the time the proceedings were had to foreclose this 
 mortgage, and which was found by this court to be a lien on 
 this property. If that amount was paid, he would be enti- 
 tled to recover at your hands that amount with interest upon 
 it to the first day of this term, from the time of such pay- 
 ment. 
 
 From Marlow v. Thomas, Supreme Court, unreported, 3To. 1918. By 
 Johnston, J., in Mahoning Co. C. P. A covenant against an incumbrance is 
 broken as soon as an incumbrance in fact exists, at least for nominal dam- 
 Kinkead's Code Pleading, Sec 480; Hall v. Plaine, 14 ( >. S. 417; 
 Rawle on Cov. 5th ed.J See. 70 and rases cited. An action for nominal dam- 
 ages may be maintained even without eviction. Stambaugh v. Smith, 23 O. 
 
 [■ 
 
 The measure oi damages for a breach of a covenant against incum- 
 brances is the amount which would be required to be paid to extinguish 
 the incumbrance, also any consequential damages directly resulting from 
 the existence of the incumbrance. Wood's Mayneoti Damages, Sees. 259 
 and 260; Delaverger v. Norris, 7 Johns. 358; Hall v. Dean, 1 5 Johns. 105; 
 2 Wheat. (TJ. S. 15; Rawle on Cov. of Title, See. 86; Kinkead's Code 
 Pleading, p. 450, note. 
 
 EJECTHENT ADVERSE POSSESSION. 
 
 No. 121. What constitutes adverse possession. — The 
 od of prescription in Ohio, by which one acquires an 
 tnent or (ilk- in land, is twenty-one years. This is called 
 adverse | n, and what constitutes adverse | on is 
 
 a question of fact for the jury to decide under proper instruc- 
 tions by the court. 
 
 Tootle v. Clifton, 22 -
 
 So EJECTMENT — ADVERSE POSSESSION. 
 
 It is not necessary to constitute adverse possession, that a 
 person shall merely be in possession for a period of twenty- 
 one years, but there are certain requisites that must accom- 
 pany that possession, which will now be explained to you. 
 The fact of possession per se, is only an introductory fact to a 
 link in the chain of title by possession, and will not simply 
 ,of itself, however long continued, bar the right of entry of 
 him who was seized, and, of course, creates no positive title 
 ■in any case. The reason of this is, that it may have been 
 possession with permission ; and if the person in possession 
 has offered to purchase the title of another claimant, it will 
 not be adverse. To have the effect of creating title by adverse 
 possession, the possession must not only have been actual, 
 exclusive, open, and notorious, ivith claim of title, but it 
 must also have been adverse during the whole period of 
 twenty-one years. It is not necessary, however, that the 
 party should live on the land, but only so he exercises abso- 
 lute control over it. To constitute adverse possession, there 
 must have been an intention on the part of the person in 
 possession to claim title, or he must have claimed it as against 
 others, by declarations or acts, that a failure of the owner to 
 prosecute within the time limited, raises a presumption of an 
 extinguishment or a surrender of his claim. 
 
 Lane v. Kennedy, 13 O. S. 46-7; Humphries v. Huffman, 33 O. S. 395. 
 
 No. 122. It need not be held under color of title. — It is 
 
 not an essential of the title acquired by adverse possession, 
 that the party should have entered under color of title, nor 
 that the possession be held under color of title. Where there 
 is possession of the requisite character, the question, whether 
 there is color of title or not, is wholly immaterial. 
 
 (Lessee of Paine v. Skinner, 8 O. 167; Yetzer v. Thoman, 17 O. S. 130; 
 McNeeley v. Langan, 22 O. S. 37.) 
 
 It is the visible and adverse possession, with an intent to 
 possess, that constitutes its adverse character, and not the 
 remote motives or purposes of the occupant. 
 
 French v. Pearce, 8 Conn. 439; Humphries v. Huffman, 33 O. S. 402. 
 
 No. 123. Meaning of continuous possession. — In order 
 that it will constitute continuous possession, you are instructed 
 that it is not essential that it shall be continuously held and 
 possessed by one person. That is, the possession will descend 
 to the heir of the possessor, without interrupting the running 
 of the statute. It is sufficient that the possession during such 
 period was in the party claiming or those under whom he
 
 EJECTMENT — ADVERSE POSSESSION. 8l 
 
 claims; and, as to third persons against whom the possession 
 was held adversely, it is immaterial, if successive transfers of 
 the possession were in fact made, whether such transfers were 
 by will, by deed, or by agreement, either written or verbal. 
 
 McNeeley v. Langan, 22 O. S. 32. 
 
 No. 124. Ejectment — Adverse possession — Occupation 
 must be of some well-defined limits. — Now I say to you on 
 that point that the law provides that when there is continu- 
 ous, uninterrupted, open, notorious, and adverse possession of 
 land by a person for twenty-one years or more, such person 
 has a right to the possession thereof; it operates to convev a 
 complete title as much as any written conveyance, and ex- 
 tinguishes the right of possession to any other, although 
 holding the paper title. By these terms, continued, uninter- 
 rupted, is meant, it must not have been abandoned or lost 
 during the twenty-one years ; by adverse is meant a possession 
 in opposition to the legal title and real owner, and the occu- 
 pation must be by sonic well-defined, certain limits, indicated 
 by a substantial and real inclosure or something of a like 
 notorious character. It must be such as leaves no doubt as 
 to what is included and as to what is intended as the limits. 
 The kind of possession described is what defendant must 
 satisfy you of by a preponderance of testimony ; that he or 
 those from whom he derives title had had for twenty-one 
 years or more; if he has done this, he is entitled to a verdict 
 at your hands. 
 
 Noble, J., in France v. Dexheimer, Sup. Ct. No. 1896, Cuyahoga Co. 
 
 No. 125. Adverse possession — Lines between owners. — 
 Although the line between these two lots may by mutual 
 mistake be laid different from the lot line, each being bounded 
 by the lot-line in their deeds, if they or those from whom they 
 claim title respectively occupied up to and acquiesced in the 
 wrong line for a period of twenty-one years or more, the 
 h being open, notorious, continued, and ex- 
 clusive, that line will be the true line between them. 
 
 The issm determined by you between the parties is, 
 
 in the first place, where- is the lot-line between these parties, 
 
 and the burden of proof is upon the plaintiff to satisfy you by 
 a preponderance of testimony that it is where she claims 
 it is. and she must establish her right to it independently of 
 any weakness of the defendant's title. She must sustain her 
 right to the strip of land by testimony which places it in her 
 independent of anyone el 1 .
 
 Sj EJECTMENT — ADVERSE POSSESSION. 
 
 It is for you to say, gentlemen of the jury, under all the 
 testimony of the case, who is entitled to this strip of land 
 under the rule of law I have given you, what is the true lot- 
 line. If the plaintiff is right as to its location, what is the 
 fact as to another line being established and acquiesced in by 
 the parties and those from whom they claim title, what do 
 the neighbors who have been acquainted with it twenty-one 
 years tell you about the original location of the fence spoken 
 of and as to its remaining in the same position substantially 
 ever since? What light does the testimony as to the position 
 of trees and surveyor's marks and monuments throw upon it? 
 Do they indicate it has remained as it was or that it has been 
 changed from time to time and the line altered in some parts. 
 All the testimony should have its proper weight with you in 
 reaching a conclusion. 
 
 Noble, J., in France v. Dexheimer, Supreme Court, No. 1896, Cuya- 
 hoga Co. 
 
 No. 126. Abandonment — What constitutes. — "The 
 question of abandonment is one of fact and intention. Ceas- 
 ing to cultivate a common field and a removal elsewhere do 
 not make an abandonment ; but to constitute an abandonment 
 by the party it must be shown that he quit the property with 
 the intention of no further claiming same, and the burden of 
 showing the abandonment rests upon the one who sues.; ' ' 
 
 From Tayon v. Laden, 33 Mo. 205. 
 
 No. 127. Adverse possession — Must extend to what. — 
 
 "Where a party enters upon land without a deed or other 
 paper title containing specific descriptions of the land by 
 metes and bounds, or without color of title to the premises, 
 claiming to hold them adversely, his possession only extends 
 to that part of the tract actually improved and occupied by 
 him, and his entry in such case, upon a part of the premises, 
 does not give him adverse possession to uninclosed and un- 
 improved woodland." 
 
 From Humphries v. Huffman, 33 O. S. 395. 
 
 No. 128. Mistake in boundary line — Nature of occu- 
 pancy. — Where one of two proprietors respectively of adjoin- 
 ing lines holds actual, notorious, continuous, and exclusive 
 possession up to a certain line, though not originally the true 
 one, for a period of twenty-one years, the statute of limitation 
 applies in his favor, and against the adjoining proprietors, 
 although such possession might have grown out of the mutual 
 mistake of the parties respectively, in respect to the locality
 
 EJECTMENT — ADVERSE POSSESSION. 8 
 
 o 
 
 of what was originally the true line between them. Then I 
 say to you as matter of law that if you find from the evidence 
 in this case that the plaintiff and those under whom he claims 
 to have had actual, continuous, and exclusive possession of 
 the land described in the petition, or any portion thereof, for 
 a period of twenty-one years before the commencement of 
 this action, he acquired title to the land so occupied as against 
 the defendant and every other adult person. 
 
 The occupancy necessary to acquire title by possession 
 is such occupancy and use of land as the nature of the par- 
 ticular land would require. If it is a farm, the occupancy 
 would have to be such as a farmer would occupy, either by 
 plowing, pasturing, mowing, or in such other ways as a 
 farmer would usually use land. If it was city property, the 
 occupancy must be such an occupancy as is usual for city 
 property. ... It will be important for you to determine 
 from the evidence where the true line between the lands 
 claimed by the plaintiff and the lands claimed by the defend- 
 ant was. This is a question of fact for you to determine 
 under all the evidence in the case. It will be important for 
 you to determine whether the defendant has occupied any of 
 the land described in the petition or not, and if he has, to 
 what extent and how much of it he has occupied. 
 
 Nye, J., in Edison v. Ranney. 
 
 No. 129. Ejectment — Declarations as to ownership. — 
 
 Some evidence has been permitted to be given to you by the 
 defendant as to what R. did and said while the owner was in 
 possession of the lands now claimed 1>\ the- defendant, by way 
 of pointing out the boundaries of said land. This testimony 
 was permitted to be given you for the purpose of showing 
 where R. claimed his north line was, while he was such owner 
 and in possession of the land which he thus claimed to own. 
 His statements and acts should be given such weight as the 
 statements and acts of owners of lands generally, and no more. 
 If you find from other evidence that the line which the said 
 R. pointed out and stated as his northerly line was not the 
 true line, then you should disregard the line which he pointed 
 out and adopt the one which vou find to be the true line 
 between the lands claimed by the plaintiff and the lands 
 claimed by the defendant. 
 
 N've-, J., 111 fvlisim v. Ran
 
 84 ELEVATORS. 
 
 ELEVATORS. 
 
 No. 130. Elevator — Damages for injury — Who liable for 
 
 Owner or lessee. — "If the plaintiff was in the employ of 
 
 the lessees of the elevator at the time of the injury, and had 
 been ever since the building in question was erected, and the 
 firm had had the entire and exclusive use and occupancy of 
 the building in question, and of the elevator, during all that 
 time, the defendant (the owner) having no right to use or 
 occupy any of it in any way, the plaintiff can not recover." 
 
 "The fact that there were boilers and engines in an ad- 
 joining store, which created the power to run the elevator in 
 question, and heat for the store and two other stores just like 
 it ; and the defendant hired the engineer and paid for the 
 running of it and the fuel, upon the agreement contained in 
 the lease that the lessees should pay for all such services, did 
 not give the use of any portion of the building or elevator 
 in question to the defendant or deprive the lessees of the 
 exclusive occupancy of it. 
 
 From Sinton v. Butler, 40 O. S, 158. 
 
 No. 131. Injury from elevator — Negligently constructed 
 — Duty of owner. — If you find that the elevator was negli- 
 gently constructed, without proper railings or other safe- 
 guards, to protect persons coming into the store to transact 
 business of the kind done there, and it so remained up to the 
 time of the accident, and that this was the proximate cause 
 of the injury to the plaintiff, and you further find that the 
 plaintiff was in the exercise of ordinary care, giving reason- 
 able attention to his business that brought him there, and 
 under these circumstances he fell into the elevator hole and 
 received the injury, then in that case the defendant would be 
 liable. 
 
 It was the duty of the defendant as owner of the elevator 
 to so use it in his storeroom, and to so guard the opening in 
 the floor, and to keep the rooms reasonably safe for those 
 going therein to transact business. And if the plaintiff went 
 into the room on business, he had the right to assume that 
 the defendant kept such storeroom and used such elevator in 
 a proper manner. . . . And if you find that the plaintiff 
 proceeded when in the store with reasonable attention to the 
 business that took him there, and acted as a man in the exer-
 
 EMBEZZLEMENT. 85 
 
 cise of ordinary care and under like circumstances would have 
 acted, and that he fell into the elevator hole, and you further 
 find that the elevator hole was not properly guarded by suit- 
 able railings or otherwise, and that this was the proximate 
 cause by which the plaintiff received his injuries, and the 
 plaintiff was not guiltyof contributory negligence, then he is 
 entitled to recover against the defendant. 
 
 The defendant had a right in the management of his 
 business to maintain an elevator in the building, and it is a 
 matter of fact for you to determine from all the evidence in 
 the case whether at the time the plaintiff went into the store 
 and met with the accident, that the defendant was guilty of 
 negligence in regard to the construction and use of the ele- 
 vator. ... If you find from the evidence that the defend- 
 ant was negligent in using the elevator, and in leaving the 
 hole open without any railing or guard, at the time the plain- 
 tiff fell into it and received the injury complained of, then 
 vou will inquire further whether the plaintiff himself was 
 negligent in walking into the hole, and in your inquiries in 
 behalf you will take into consideration all the evidence 
 in the case; the distance the elevator was from the front of 
 the store, the distance the plaintiff had to travel in going 
 from the front of the store to the elevator-shaft, whether or 
 not there was light' sufficient so that the plaintiff could have 
 by the use of ordinary care seen the open elevator-shaft hole. 
 
 It was the duty of the plaintiff to exercise ordinary care 
 to avoid danger, and if you find that in the exercise of ordi- 
 narv care he could have discovered the elevator-shaft and 
 avoided the danger, then the plaintiff can not recover. 
 
 Gillmer, J., in Kingsley v. Stiles, Trumbull Co. Com. Pleas. 
 
 EMBEZZLEMENT. 
 
 No. 132. Embezzlement — Venue where laid — Depend- 
 pending upon where intention to commit is formed. — "If you 
 find that the defendant received and had this money in his 
 m in II. County, and while it was so in his posses- 
 sion in II. County, heformed the intention — the purpose — to 
 appropriate the money to his own use, and in pursuance of 
 that purpose, so formed in H. County, he did appropriate 
 the same to his own use. either by expending the same in 
 S. County or any other county or place, or if he did not
 
 86 EMBEZZLEMENT. 
 
 expend it, but in pursuance of such intention so formed in 
 H. County, he kept the money in his own pocket with 
 the intention of permanently depriving his employers and the 
 owner thereof of said money, and, upon demand, with that 
 intention, refused to pay it over, then in either case the crime 
 would be committed in H. County. But if he received 
 and had the money in his possession in H. County and 
 carried the same into S. or any other county, and then 
 for the first time formed the purpose to appropriate the 
 money to his own use, and in pursuance of such intention he 
 did appropriate the same to his own use in such county, then 
 the crime would not have been committed in H. County. If 
 the defendant formed the purpose in H. County to convert 
 the moneys or any of them mentioned in the indictment, but 
 did not in fact convert them or any of them in H. County, 
 lie can not be convicted of embezzlement in this county. ' ' 
 
 From Campbell v. State, 35 O. S. 70. 
 
 No. 133. Embezzlement by treasurer of board of edu- 
 cation. — Embezzlement by a public officer is a fraudulent 
 appropriation to his own use of the money or goods entrusted 
 to his care by virtue of his office. Embezzlement by a public 
 officer as applied to this case, is an unlawful and fraudulent 
 appropriation to his own use of the money entrusted to his 
 care and held by him as such officer. It then becomes im- 
 portant for you to determine from the evidence whether the 
 defendant unlawfully and fraudulently converted to his own 
 
 use the sum of $ , or any part of all the public money 
 
 of the board of education of Township, which came into 
 
 his hands as treasurer of said board of education. In deter- 
 mining that question it will be proper for you to consider the 
 manner in which he kept the money, the place where he 
 kept it, what he did with it, if anything, and all the other 
 facts and circumstances given you in evidence. 
 
 Nye, J., in State v. Wideman, Medina Co. Com. Pleas. 
 
 No. 134. Embezzlement by treasurer of board of edu- 
 cation — Deposit of funds in bank which fails. — Some testi- 
 mony has been given you tending to show that the defendant 
 kept his money in the exchange bank of S. At the time it 
 is claimed that the defendant committed the offense charged 
 in the indictment in this case, it was made unlawful by stat- 
 tute for a township treasurer to deposit with any company, 
 corporation, or individual, any portion of the public money 
 held by him as such treasurer.
 
 EMBEZZLEMENT. 87 
 
 And 3-011 are further instructed that at that time there was 
 no authority or law whereby the defendant as treasurer of 
 
 the board of education of Township, was authorized 
 
 to deposit the public money belonging to the said board of 
 education in any bank. 
 
 But in this proceeding the defendant is not charged with 
 unlawfully depositing said money in said bank. You are, 
 therefore, instructed as matter of law, that if you find from 
 the evidence that the defendant did deposit said money in 
 said bank, and the same remained there until after the bank 
 went into the hands of a receiver, and the said defendant did 
 not use and convert to his own use any portion of said money, 
 he could not be found guilty in this indictment. 
 
 But if you find from the evidence that the defendant used 
 and converted to his own use the money described in the in- 
 dictment, or any portion thereof, he would be guilty of em- 
 bezzlement for such amount of money as he so used and con- 
 verted to his own use. 
 
 Nye, J., in State v. Widemau. See R. S. Sees. 6841, 7299. 
 
 No. 135. Same continued. — Using funds intending to 
 repay. — The crime charged in this indictment consists in the 
 embezzling, and in converting to his own use, the public 
 money described in the indictment. If you find from the 
 evidence that the defendant unlawfully used and converted 
 to his own use the money described in the indictment, or any 
 portion thereof, intending to replace it, the mere fact that he 
 intended to replace it would not exonerate him from such un- 
 lawful taking, using, and converting to his own use any of 
 the public money which came into his hands as treasurer of 
 
 the board of education of Township; and if he did 
 
 convert to his own use any of the money named and charged 
 in the indictment in this case, which came into his hands 
 
 as treasurer of the board of education of Township he 
 
 would be guilty of embezzlement of as much of the said 
 money as he thus converted to his own use. 
 
 Nye, J., in State v. Wide-man, Medina Co. Com. Pleas.
 
 SS EMINENT DOMAIN. 
 
 EMINENT DOMAIN— APPROPRIATION OF 
 PROPERTY. 
 
 No. 136. Appropriation for right of way for railway- 
 purposes — Right to — Constitutional provisions. — The P. , P. 
 
 & F. Railway Company, the plaintiff in this proceeding, 
 filed its petition herein to appropriate to its uses and owner- 
 ship the premises described therein, and which you have 
 already been upon and examined. It is the right of the 
 plaintiff to take this land, but before this can be done the 
 value thereof must be found and paid in money. 
 
 The constitution of our state provides that no right of 
 way shall be appropriated to the use of any corporation until 
 full compensation therefor be first paid in money, or first se- 
 cured by a deposit of money to the owner, irrespective 
 of any benefit from any improvement by such corporation, 
 which compensation shall be ascertained by a jury of twelve 
 men in a court of record, as shall be prescribed by law. 
 
 Geo. H. Shepard, Probate Judge. Approved in P., P. & F. Ry. Co. v. 
 Paine by C. C. and S. C, S. C. No. 3024. 
 
 No. 137. Same continued — Assessing compensation — 
 Rules for. — By reason of the provision of the law, made 
 under this clause of the constitution, you have been sum- 
 moned, empaneled and sworn to render full compensation to 
 this defendant for the land sought to be taken from him in 
 this proceeding. The only duty then devolving upon you 
 in this case is to ascertain and declare by your verdict, how 
 much money will make full compensation to this defendant 
 for the premises described in the petition, and which are 
 sought to be taken by the plaintiff. We say to you that the 
 premises sought to be appropriated extend to the center of 
 the river, subject to the rights of the public to use the 
 river. 
 
 We say to you that full compensation, in this case, means 
 the fair cash market value of this land as it is at the present 
 time and as you viewed it, without any regard to the causes 
 that may have contributed to make up its value. 
 
 By fair cash market value is meant as much as the owner 
 might fairly expect to be able to sell it for to others, if it 
 were not taken by the plaintiff. Such a price as it would 
 bring if put in the market. Not what it would bring at a 
 forced sale, or under peculiar circumstances, but such sum
 
 APPROPRIATION OF PROPERTY. 89 
 
 as it would bring in the market, that is to persons generally, 
 if those desiring to purchase were found who were willing to 
 pay its just and true value. We say to you that the necessity 
 of the plaintiff to have these premises, nor the unwillingness 
 of the defendant to part with them should have no consider- 
 ation in arriving at your verdict. Neither of these constitute 
 any element of market value. It is the market value as 
 contradistinguished from any special value to the plaintiff, 
 or any other corporation or to any individual. You should 
 consider the location of the premises in question, the best 
 purposes for which they are or may be used, their surround- 
 ings, their present condition, with reference to arriving at 
 fair market value. If you find that these premises have any 
 special value, for any purpose, whether it is for the purpose 
 for which it is now used or for any other purpose, which 
 affects its value in the market, you may take that into con- 
 sideration. You are under no obligation to consider the bare 
 value of the land, with the value of the filling and docks 
 thereon added. The value should be considered with refer- 
 ence to the value as a whole as it is there now, for the best 
 purposes to which it may be applied. The nature and con- 
 dition of the harbor on which these premises are located, the 
 business done on the premises and in the locality, nature of 
 the improvements on this land, its general availability, may 
 be considered by you in your deliberations. 
 
 The value is to be estimated, having regard to the existing 
 business and wants of the community, or such as may be 
 reasonably expected in the near future. 
 
 Geo. H. Shepard, P.J. Approved in P.. P. & F. Ry. Co. v. Paine, by Cir- 
 cuit and Supreme Courts. 
 
 We think a more full explanation might lie given the jury as to what 
 kind of compensation is contemplated by the constitution, and so the fol- 
 lowing is appended. 
 
 Note on Allowance 0/ Benefits. 
 
 The jury must consider the real value of the realty, may take into 
 -account not only the present purpose to which the land is applied, but also 
 any other more benefit ial use to which, in the course of events, at no remote 
 d, it may be applied, jo O. S. in. It is the actual as distinguished 
 from the speculative Loss that must guide the jury. The jury must con- 
 sider tlie I'll value of the land taken, the diminished value of the remain- 
 der, and may lor that purpose take into account, not only the purpo 
 whii h the land is or ha- been applied, hut any other beneficial purpi 
 which it may he applied, which would affect the amount of compensation 
 or damagi That iswh.it i- said ; n the Longworth 
 
 ind would il benefits from the proposed 
 
 in estimating the compensation or damages 
 awarded. In 9 W I.. B, 253, and in 29 W. !.- B 260, it is held that 
 
 to offset damages to property 
 remaining ; th nsidered. 
 
 This matter is regulated by constitutional provisions, Art. 1, S 
 and Art. 1 S< th( firsl requiring compensation to he made without
 
 QO l.MINENT DOMAIN. 
 
 deduction for benefits, when the property is appropriated to a public use, 
 and the other providing for compensation irrespective of benefits, where 
 it is taken by a corporation for a right of way, which two provisions are 
 held in Giesy v. R. R. Co., 4 O. S. 309, in legal effect to be identical. 
 
 Whether, therefore, property is appropriated directly by the public or 
 through the intervention of a corporation, the owner is entitled to receive 
 its fair market value at the time it is taken — as much as he might be able 
 to sell it to others for, if it was not taken; and that this amount (says 
 Judge Rannev. 4 O. S. 332) is not to be increased from the necessity of the 
 public, or the corporation or the public to have it, on the one hand; nor 
 diminished by any necessity of the owner to dispose of it, on the other. 
 It is to be valued precisely as it would be appraised on sale on execution, 
 or by an executor or guardian ; and without regard to an)' external causes 
 that may have contributed to make up its present value. The jury are not 
 required to consider how much, nor permitted to make any use of the fact 
 that it mav have increased in value by the proposal or construction of the 
 work for which it is taken. To allow this to be done would not only be 
 unjust, but would effect a partial revival of the very abuse which it was a 
 leading purpose of these constitutional provisions to correct. Judge Ran- 
 ney says that : " It would be unjust, because it establishes for a corporation 
 what is done for no one else — a sort of right in the property of others, to 
 the reflected benefits of its improvements ; itself submitting to no reci- 
 procitv by affording to others a compensation for the effect of their im- 
 provements upon the property of the corporation. And it is doubly un- 
 just where, as must very often happen, the increase in value accrued to the 
 benefit of the former owner, and has been bought and paid for by the 
 present holder, from whom the property is taken at a diminished price." 
 
 The language of the constitution is : " Until full compensation — irre- 
 spective of any benefit from any improvement proposed by such corpora- 
 tion." 
 
 It seems perfectly plain that this intended that the benefits which the 
 remainder of the property might derive from the advantages of the railroad, 
 should not be taken into account as against the value of the land taken. 
 But as said in R. R. Co. v. Collett, 6 O. S. 186, there are two kinds of bene- 
 fits accruing from the construction of a railroad to an owner of land through 
 which it passes. First : General benefits, or such as accrue to the com- 
 munity, or the vicinity at large, such as increased facilities for transporta- 
 tion and travel, and the building up of towns and consequent enhancement 
 of the value of lands and town lots. Second : Special benefits, or such as 
 accrue directly and solely to the owner of the lands from which the right 
 of w T ay is taken ; as when the excavation of the railroad track has the effect 
 to drain the morass, and thus to transform what was a worthless swamp 
 into valuable, arable land, or to open up and improve a water-course. 
 
 It was the express design of the constitution to exclude general bene- 
 fits from consideration. But it is perfectly reasonable that after full com- 
 pensation for the land actually appropriated for the right of way, in view 
 of all its uses and relations, without deducting for benefits of any kind, 
 the jury may in their estimate and assessment consider incidental damages 
 to other lands of the owner from the construction of the road, and make 
 allowance for incidental benefits. This the court in the 6 O. S. 186, re- 
 frained from deciding. The rule then seems to be : General benefits ac- 
 cruing from the work can not be considered to deduct the compensation. 
 Special benefits may, after full compensation allowed, be taken into con- 
 sideration to offset other damages to other lands. 
 
 No. 138. Same continued — Opinions of witnesses as to 
 value of property. — Having called your attention to what is 
 meant by "full compensation^ which the law and constitu- 
 tion guarantees to this defendant, we come now to consider 
 the means for arriving at the rest. It is a general rule in law 
 that witnesses can only state facts within their knowledge. In
 
 APPROPRIATION OF PROPERTY. 9 1 
 
 this case, however, witnesses have been called to give their 
 opinions concerning the value of the premises in question, 
 and from these opinions the jury form its opinion. You are 
 not bound, however, to take these opinions for any more than 
 you consider them worth. Opinions, like most everything 
 else, vary in value, and like other things are dependant upon 
 something else for their worth. It is the value of the opinions 
 of the witnesses that have testified in this case that you should 
 consider in arriving at the market value of the premises. We 
 say to you that one of the chief elements in the value of an 
 opinion is the knowledge which the witness has of the subject 
 matter of which he testifies. Not the knowledge which he 
 professes, but that which he actually possesses. If the witness 
 has no more knowledge of the subject than men generally 
 possess, or the juror possesses, then his opinion is no better. 
 You are, therefore, in the case now before you, to look well 
 to the foundation of the opinion, each and every witness that 
 has been called. What means has he of knowing about the 
 value of this land? What opportunities have been offered 
 him? 
 
 Another element in the value of an opinion is its freedom 
 from interest, bias, or feeling. These are so apt to mould, 
 fashion, and foster an opinion, on that, great caution should 
 be taken in receiving an opinion where these things exist and 
 abound. 
 
 We have said thus much that you may the more intelli- 
 gently understand the application of the law to the evidence 
 hi this case and which must be considered by you. 
 
 Geo. H. Shepard, P. J., in P. P. & F. Rv. Co. v. Paine, approved by Cir- 
 cuit and Supreme Courts. No. 3024 S. C. 
 
 No. 139. Same continued — Expert testimony. — The 
 parties in this case have called as witnesses what are known 
 in law an nonjirof.vsi.mal experts. This is a class of persons 
 who. by their especial means of observation or peculiar ad- 
 vantages, have better or more extended means of knowing of 
 the value of the premises in controversy, and it is your 
 province to give each and every witness produced just such 
 weight and credit as von think he is entitled. You should 
 Fully inquire into his means <»f knowledge, what oppor- 
 tunitv he lias had for observing and ascertaining the value of 
 this land, what feeling or prejudice he has in the case, what 
 interest in the proceeding. 
 
 No. 140. Same continued — How to make up verdict. — 
 
 Now then, gentlemen, tal:.- all the testimony in the case and 
 
 7
 
 92 
 
 EMINENT DOMAIN. 
 
 bring your judgment and experience as men to bear upon it. 
 There is no rule of law that requires jurors to surrender their 
 judgments implicitly to, or even to give a controlling influence 
 to the opinion of witnesses. You are to take the testimony 
 as given you and with your experience and your judgment as 
 men hew and trim until you have a harmonious verdict. Let 
 the amount of your verdict be of such an amount that this 
 defendant will have secured to him the guarantee of the con- 
 stitution, to wit : full compensation. Feeling of favor either 
 to the one side or the other should find no place in your de- 
 liberations. Let your judgment and your consciences guide 
 you. Take the testimony of the witnesses, weigh it carefully 
 and considerately and as you have sworn to do, justly and 
 impartially assess, according to your best judgment, the 
 amount of compensation due to the defendant for his premises 
 described in the petition. 
 
 Geo. H. Shepard, Probate Judge. Approved in The P. P. & F. Ry. Co. 
 v. Paine, by Circuit and Supreme Courts. Lake County S. C, No. 3024. 
 
 No. 141. Assessment of compensation for land appro- 
 priated. — You are sworn to justly and impartially assess, ac- 
 cording to your best judgment, the amount of compensation 
 due to the owner of this land in this case. This is the ques- 
 tion, and the only one for you to determine. But in the 
 determination of this question there are two ways you are to 
 consider it. First, you should find what the land actually 
 taken and used by the railroad company is worth ; that is, 
 this strip of land fifty feet in width and extending across the 
 whole tract, containing, as the petition avers, three and 30-100 
 acres of land. What is this land worth? Notasa strip 
 severed and cut out of the whole tract, but what is it^ worth 
 as a part of the whole tract, taken in connection with it, and 
 without the railroad upon it? Having found what the land 
 taken, that is, the three and 30-100 acres, is worth, then you 
 are to find how much less valuable the remaining part of said 
 land will be rendered by reason of the taking of the strip of 
 land out of it and using the same for building and operating 
 thereon a railroad, as it is now being occupied. That is, you 
 are to say what the damage is, if any, which this land -owner 
 .sustains by reason of the construction of this railroad across 
 his land. You were permitted to go and see for yourselves 
 the property of the plaintiff and the location of the railroad 
 across the same. The road having been already constructed, 
 you are the better enabled to see just how it affects the re- 
 maining part of plaintiff's land. 
 
 You are to find the actual or market value of the land
 
 APPROPRIATION OF PROPERTY. 93 
 
 taken; the actual, as distinguished from any speculative loss 
 the land-owner may sustain. This is the rule that must 
 guide you. But I say to you that you have a right to con- 
 sider and take into account not only the present use of the 
 land and its value for that purpose, but also any other more 
 beneficial purpose to which, in the course of events at 110 
 remote period, it may be applied. 
 
 A map or plat has been offered in evidence for the purpose 
 of showing the location of the property and the course of the 
 railroad through the same, and its availability for subdivision 
 into lots. For this purpose only the map is admitted and can 
 be considered as evidence by you, and in this way you may 
 consider it. 
 
 If you find from the evidence that this land, or a part of 
 it, is available for such subdivision into lots, you should take 
 this fact into account. But it is the value for so dividing, 
 and not the value of the lots when the division has in fact 
 been made. 
 
 The plaintiff is entitled to a compensatory and not a 
 speculative remuneration for the land taken, and for the 
 diminution, if any, in value to the remainder of the land oc- 
 casioned by the appropriation of the land taken for use of a 
 railroad ; and the difference between the actual value of the 
 plaintiff's property without the railroad, and the value of the 
 same property with the railroad as located, is full compensa- 
 tion, and all to which the plaintiff is entitled. In arriving at the 
 amount of compensation to be awarded to the plaintiff, you 
 must not take into consideration facts of a contingent and 
 prospective character, such as the probable amount that may 
 be derived from sales of the property when hereafter divided 
 into building lots and sold as such lots; but you must ascer- 
 tain the value of the land taken, and diminution in value .of 
 tlu- remainder, or injury thereto, occasioned by the taking in 
 view of its presenl character, situation, and surroundings. 
 
 It is the value at the time of the commencement of these 
 proceedings, that is, the present term. 
 
 The duty devolved on you in this ease is to determine and 
 - the fair market value of the land which the proof shows 
 you has been taken, as well as the diminution in value at 
 their fair market juice of the residue of the lands not taken 
 and you can not make any use of the fad that the land is 
 increased in value by the construction of the proposed railroad 
 upon it, nor can you make any use of the fact, if it be a fact, 
 that after the taking and the construction of the railroad upon 
 it, manufacturing works an- located upon a part of the tract 
 of which at the time of the taking there was no existence, 
 nor probability of such location.
 
 94 EMINENT DOMAIN. 
 
 If you find from the evidence that a portion of said tract, 
 described in the petitition as one hundred and sixty-three 
 acres, has been laid out into lots, separated from the balance 
 of the tract and sold, such lots or tracts so cut off and sold 
 should not be considered by you as a part of the property of 
 the plaintiff, or as in any way affecting his rights in this case. 
 
 1 From P. & W. R. R. Co. v. Perkins, Supreme Court, unreported, No. 
 1 710. 
 
 No. 142. Right of public to improve and use a public 
 highway — Construction of railroad in highway a new use. — 
 
 "As between tne public and the owner of land upon which a 
 common highway is established it is settled that the public 
 has a right to improve and use the public highway in the 
 manner and for the purposes contemplated at the time it was 
 established. The right to improve includes the power to 
 grade, bridge, gravel, or plank the road in such a manner as 
 to make it most convenient and safe for use by the public for 
 the purposes of travel and transportation in the customary 
 manner, which is well understood to be by the locomotion of 
 man and beast, and by vehicles drawn by animals, without 
 fixed tracks or rails to which such vehicles are confined when 
 in motion. These constitute the easement which the public 
 acquires by appropriating land for the right of way for a 
 highway, and these, in legal contemplation, are what the 
 owner is to receive compensation for when his land is appro- 
 priated for this purpose. The fee of the land remains in the 
 owner; he is taxed upon it; and-when the use or easement in 
 the public ceases it reverts to him free from incumbrance. 
 
 "In the exercise of the right of eminent domain, the state, 
 through the general assembly, may delegate to a railroad 
 corporation the power to appropriate a right of way for its 
 road along and upon a public highway. ... In such 
 case, the rights of the public and the rights of the owner are 
 entirely distinct ; and the consent, expressed or implied, of 
 one to the appropriation would not bind or affect the rights 
 of the other. . . . The railroad company, by occupying 
 the highway, constructing its track, and operating its trains 
 thereon by steam motive power, completely diverted the 
 highway from the uses and purposes for which it was estab- 
 lished. This new use, to which the highway has been di- 
 verted, imposes burdens on the land that are entirely different 
 from, and in addition to, those that were imposed by the 
 highway. The right to so divert the use, and impose addi- 
 tional burdens on the land, could only be acquired by the 
 corporation by agreement with the owner, or by appropriating
 
 APPROPRIATION OF PROPERTY. 95 
 
 and making compensation therefor in the mode prescribed by 
 law. 
 
 Daly v. State, 51 O. S. 34S. 
 
 No. 143. Appropriation for telegraph. — "Upon the 
 question as to the rights of the telegraph company, the court 
 says to you that at the time of the erection of the poles and 
 the construction of the telegraph line, whether in 1882 or in 
 1884, the land upon which this highway was situated was the 
 property of Mr. T. , subject to the right of way for public use 
 for a highway; that is, for travel and keeping it in repair as 
 a highway. 
 
 "As between Mr. T. and other individuals or corporations, 
 it could be used for no other purpose without entitling him 
 to compensation for such use, and the entry of this telegraph 
 company upon his land without compensation to him or with- 
 out an agreement between him and such corporation, if you 
 find this corporation did so enter, was not a rightful entry or 
 occupancy ; and as to the trees growing upon this land at the 
 time such company constructed its lines, as between him and 
 such corporation, he had the right to have the trees remain 
 and grow there without injury, whether such injury was 
 necessary or not to the use of the lines of such telegraph 
 company. The United States could not, nor has it attempted 
 to take away by any statute that right. Mr. T. 's right to 
 maintain the trees in the ordinary way was an absolute right, 
 and this right could be taken from him in no way until such 
 time as they acquired the right to maintain such lines by 
 prescription, which means actual occupancy for twenty-one 
 years or more, or by appropriation or agreement; and for this 
 i ompany, by its agents, without first acquiring the right, to 
 enter upon this land and to cut the trees growing thereon 
 would be proceeding without lawful authority. 
 
 Approved in Daily v. State, 51 O. S 348. 
 
 No. 144. Drainage law — Object of. — As to the first prop- 
 osition the court will instinct you that the object of the law 
 
 ■ provide means for drainage whenever the public health, 
 convenient e or welfare require it. It is not essential that the 
 public at large shall be benefited, but only that part of the 
 public affected by want of proper drainage, or by the im- 
 provement to be made. The injury from want of drainage 
 and the benefil to be derived from the ditch are necessarily 
 
 : in their nature. Public welfare, health and conven- 
 ience, in this connection are terms used in contradistinction
 
 g6 EMINENT DOMAIN. 
 
 from mere private benefit. A nuisance is said to be public 
 when it affects the surrounding community generally, and 
 impairs the rights of neighboring residents as members of the 
 public, and private when it especially injures individuals. 
 
 The mere fact that* the proposed ditch w T ould enable the 
 parties to raise more corn will not authorize a finding in favor 
 of the establishment of the ditch. 
 
 From Marsh v. Phelan, Clark Co. Approved by C. C. and S. C. 
 
 No. 145. What use will justify taking private property 
 for drainage. — The use that will justify the taking of private 
 property by the power of eminent domain is the use for the 
 government, the general public, or some portion of it, and 
 not the use by or for particular individuals, or for the benefit 
 of certain estates. The use may be limited to the inhabit- 
 ants of a small locality ; but the benefit must be in common 
 and not to a very few persons and estates. The property of 
 each individual conduces in a certain sense to the public wel- 
 fare, but this fact is not sufficient reason alone for taking 
 other property to increase the prosperity of individual men. 
 
 The drainage of marshes and ponds may be for the pro- 
 motion of the public health, and so become a public object ; 
 but the drainage of farms to render them more productive, 
 alone, is not such an object. 
 
 The fact that there are other public ditches near does not 
 affect the right to locate the proposed ditch, if the public 
 health, convenience or welfare demand the proposed ditch. 
 Neither is it the length of a proposed ditch, but the extent of 
 the drainage to be affected by it that determines the power to 
 establish it. 
 
 The location of one ditch by the trustees of the county 
 commissioners to drain certain territory will not prevent the 
 establishment of other ditches to drain the same territory, 
 provided that the public health, convenience or welfare de- 
 mands such ditch. 
 
 The jury shall take into consideration any testimony tend- 
 ing to show that the proposed ditch is located upon the line 
 of a ditch located, established and kept open by the township 
 
 trustees of Township, County, O., in determining 
 
 the question as to whether the ditch petitioned for will be 
 conducive to the public health, welfare and convenience; and 
 also, whether the route thereof is practicable. 
 
 Marsh v. Phelan. Approved by C. C. and S. C. 
 
 No. 146. Same continued — Benefits to private individ- 
 uals for cultivation not sufficient. — The mere fact that the
 
 APPROPRIATION OF PROPERTY. QJ 
 
 ditch might enable A. P. to raise larger or better crops, or 
 even to cultivate a part of his land which he could not before 
 cultivate, is a fact going to show that he would be privately 
 benefited, but this is not sufficient to authorize you to return 
 a verdict finding that said ditch will be conducive to the 
 public health, welfare or convenience. The evidence derived 
 from your view of the premises and the testimony of wit- 
 nesses must satisfy you that the establishment of said ditch 
 will be conducive to the public health, convenience and wel- 
 fare without regard to private benefits before you can return 
 a verdict in favor of the establishment of said ditch. The 
 advantage, convenience or welfare of one or more individuals 
 is not a sufficient reason for the establishment of a public 
 ditch for which private property can be taken and assess- 
 ments made to pay therefor. 
 
 Even if it appears that the proposed ditch will only ad- 
 vantageously drain the lauds of A. P., or other individuals,, 
 so that their lands will be better adapted to agriculture, or 
 rendered more valuable in any way, this will not be sufficient 
 to authorize you to find in favor of said ditch. To do so, it 
 must affirmatively appear to you from your view of the route 
 and the testimony of witnesses, that the community generally 
 about said proposed ditch will be benefited in health, con- 
 venience or welfare by the establishment of the same. If 
 said ditch does not affect the community generally, but only 
 benefits the property of certain individuals, it will be your 
 duty to find that said ditch will not be conducive to the 
 public health, convenience or welfare. 
 
 Marsh v. Phelan. Approved by C. C. and S. C. 
 
 No. 147. Drainage proceedings continued — Burden of 
 proof as to questions of use. — The burden of proof on the 
 questions as to whether the proposed ditch will be conducive 
 to the public health, convenience or welfare, is upon the 
 party seeking the establishment thereof, and if you are not 
 satisfied by a preponderance of the evidence, from your view 
 of the premises and the testimony of witnesses that the pro- 
 
 d ditch will conduce to the health, convenience or wel- 
 of the public generally in the vicinity of the same, it 
 will be your duty to find that said ditch will not be conducive 
 to the public health, convenience <>r welfare. 
 
 Marsh v. Phelan. Approved l>v C. C. and S. C. 
 
 No. 148. Same continued — Number of petitioners. — One 
 petitioner is sufficient, and in order for the ditch to be for
 
 98 EMINENT DOMAIN. 
 
 the public health, convenience or welfare, the whole land 
 from which the benefit is to be derived may be owned by one 
 person only. So, if you find, under the rules stated, that the 
 proposed ditch would better drain the land of A. P., and 
 thereby be conducive to the public health, convenience or 
 welfare, it will be your duty to find in favor of the ditch. 
 
 Marsh v. Phelan. Approved by C. C. and S. C. 
 
 No. 149. Same continued. — Determination of line of 
 construction of ditch — Considerations to be observed. — You 
 are to determine whether the route of the proposed ditch is a 
 practical one — that is, you are to say whether or not if the 
 ditch be constructed upon the line and route as determined 
 upon by the commissioners it will reasonably meet the ends 
 and objects for which the construction has been sought. 
 
 In determining this matter, you should consider the route 
 as located, in relation to the surrounding lands, the outlet 
 provided, and generally whether it will serve the purpose for 
 which it was intended, and that it will drain, or aid in 
 draining, the land near or through which it extends. 
 
 In the location of such a ditch it was not necessary that 
 the natural flow of the water be followed, but only that the 
 route determined upon be a practicable one. 
 
 The burden of proof upon the question as to whether the 
 route of said ditch is practical is upon the party seeking 
 the establishment thereof, and if you are not satisfied by a 
 preponderance of the evidence from your view of the prem- 
 ises and testimony of witnesses, that the route of the ditch is 
 practicable for the purposes sought to be attained thereby, it 
 will be your duty to find that the route of said proposed ditch 
 is not practical. 
 
 Marsh v. Phelan. Approved by C. C. and S. C. 
 
 No. 150. Same continued — Compensation for lands 
 taken. — You are to determine how much compensation is due 
 to S. M. for the lands appropriated for the construction of 
 this ditch upon the proposed route. The value of the lands 
 actually used for the ditch must be allowed her. In con- 
 sidering this question, the fact that she might receive benefits 
 from the proposed ditch can not be taken into consideration 
 in allowing or fixing her compensation. 
 
 You must allow her just such sum as will compensate her 
 for the loss of land used in the construction of the ditch. 
 
 The fair market value in cash at the time it is taken must 
 be allowed her. 
 
 There is a difference between the terms "compensation"
 
 APPROPRIATION OF PROPERTY. 99 
 
 and "damages. " Compensation means an appropriation for 
 land actually used in making and constructing the ditch. 
 Damages is an allowance made for any injury that may result 
 to the lands affected by reason of the ditch to be constructed. 
 
 You are to determine what damages, if any, are due to S. 
 M. for property affected by this proposed ditch. 
 
 In determining the damages you will consider how much 
 less valuable, if any, the remaining lands will be by reason 
 of the construction of the ditch. 
 
 Where land is appropriated for a public use, a compensa- 
 tion, not a speculative remuneration, is guaranteed by the law 
 for the land taken and for damages occasioned thereby to the 
 remainder of the premises. The differences in value of the 
 owner's property with the appropriation and that without it 
 is the rule of compensation. This difference must be ascer- 
 tained with reference to the value of the property in view of 
 the present character, situation, and surroundings. 
 
 Under the head of damages may be. considered the fact 
 whether the proposed ditch will cause any overflow of Mrs. 
 M. 's premises, or backwater upon it, or will destroy the 
 symmetry of her land, or access to, or egress from it, or any 
 actual damage that will result to her premises by reason of 
 the construction of the proposed ditch. But these damages' 
 must be actual and not speculative. If you find that her 
 premises will not be injured in any respect whatever by said 
 ditch, if located, that the laud will be benefited as much or 
 more than it will be injured by the proposed ditch, you may 
 allow her no damages. 
 
 Marsh v. Phelan. Approved by C. C. and S. C. 
 
 No. 151. Same continued — Purpose of a view of route 
 of ditch by jury. — You were ordered to view the whole route, 
 as located by the county commissioners, of the proposed im- 
 provement and tlie lands surrounding. This was for the 
 purpose of enabling you to determine the questions in this 
 cisc. and to apply your own judgments in regard to them as 
 well as to the better understanding of the evidence given, and 
 in making up your verdict you will consider both the fa< ts 
 appearing to you from the view of the premises and the evi- 
 dence adduced. 
 
 You are to determine tin questions presented to you in 
 this ease not alone on the evidence of witnesses, but also from 
 your view of the route of the proposed ditch. 
 
 Prom Marsh, el at., v Phelan, ft al., Clark County. Probate Court wa9 
 affirmed by tin.- Circuit Court, and the latter court was affirmed by thi 
 preme Court.
 
 IOO ESTOPPEL. 
 
 ESTOPPEL. 
 
 No. 152. Defined. — "Where one person, by his acts or 
 declarations made deliberately and with knowledge, induces 
 another to believe certain facts to exist, and that other person 
 rightfully acts on the belief so induced, and is misled thereby, 
 the former is estopped to afterwards set up a claim based upon 
 facts inconsistent with the facts so relied upon, to the injury 
 of the person so misled. This definition embraces all the 
 essential elements of an estoppel. It will be your duty to 
 examine the evidence, and ascertain whether all these 
 elements are proved in this case." 
 
 From Pennsylvania Co. v. Piatt, 47 O. S. 366. 
 
 No. 153. Must cause an injury. — The jury are instructed 
 that a person is not estopped from denying the truth of his 
 own statements, unless it appears that they were made in bad 
 faith, or fraudulently, or their equivalent, gross negligence, 
 or that the party setting up or claiming such estoppel has 
 been prejudiced thereby. 
 
 McKinzie v. Steele, iS O. S. 38. An act must be both injurious and 
 willful. Nye v. Denny, 18 O. S. 246 ; Penn. Co. v. Piatt, 47 O. S. 366. 
 
 No. 154. Intention — Whether necessary. — The jury is 
 instructed that it is not necessary to constitute an estoppel 
 that a party should intend or design to mislead ; it is enough 
 if the act or declaration was calculated to and did in fact mis- 
 lead another who acted in good faith and with reasonable 
 diligence. 
 
 Rosenthal v. Mayhugh, 33 O. S. 155; Beardsley v. Foot, 14 O. S. 414; 
 14 O. S. 102 ; Blair v. Wart, 69 N. Y. 113. 
 
 No. 155. Statements must be acted upon. — The jury are 
 instructed that before a party can be estopped from denying 
 the truth of any statement it must appear from the evidence 
 that such statements have been acted upon by another, and 
 that they were acted upon in ignorance, differently from what 
 he otherwise would have done, and that such person will be 
 injured by allowing the truth of the admission by the declara- 
 tion or conduct so acted upon by him to be disproved. 
 
 Penn. Co. v. Piatt, 47 O. S. 366 , 1 Greenleaf 's Ev., Sec. 209.
 
 EVIDENCE — WITNESSES. IOI 
 
 EVIDENCE— WITNESSES. 
 
 No. 156. Allegations in pleadings, requiring and not 
 requiring proof. — You are instructed that the allegations of 
 the pleadings as admitted by the answer did not require any 
 proof, but the allegations that are denied by the answer, and 
 the allegations of the answer that are denied by the reply, 
 and allegations of any new matter in the reply do require 
 proof by the respective parties. 
 
 Melhorn, J., in Carnahan v. Fire Insurance Co., Hancock Co., Com. 
 Pleas. 
 
 No. 157. General instruction as to how evidence is to be 
 considered. — In determining the issues of fact in this case, 
 you will take into consideration all the evidence bearing upon 
 the respective questions. 
 
 The evidence is not what counsel on either side said to 
 you in the opening statement they expected the testimony to 
 show; not what they have said to you in the course of the 
 argument, nor to the court in your presence; nor is it what 
 I may state to you as my recollection of the testimony in the 
 charge. 
 
 The opening statement is made to enable you to under- 
 stand the testimony as it is offered. The argument is to 
 1 you in reaching a propel conclusion, the charge is to 
 give you the law, which shall guide you in your delibera- 
 tions. The evidence is what the witnesses have been per- 
 mitted to say to von while upon the witness-stand. 
 
 You are made the sole judges of all questions of fact. 
 You must determine the facts from the evidence in the light 
 of the law as I have stated it to you. 
 
 You are the sole judges of the credit to be given to the 
 witnesses, and of the weight of the evidence. Bear in mind 
 that the court is to determine the competency, the jury the 
 weight. Courts admit evidence not by reason of its weight, 
 but because of its tendency to prove or disprove the issue; 
 leaving its truth or falsity and its weight to the jury. 
 
 You may believe or disbelieve all that a witness has testi- 
 fied to, or von may believe or disbelieve a part. 
 
 In determining the credit to which a witness is entitled, 
 and the weight which shall be given to his evidence, you 
 may properly take into account his interest in the result of
 
 102 EVIDENCE — WITNESSES. 
 
 the trial, his relation to the parties to the suit, the influence 
 he may be under, his kinship to the parties, if any, and his 
 demeanor upon the witness-stand. 
 
 A witness who goes upon the witness-stand and frankly 
 gives testimony without regard to whether it be for or against 
 the party calling him as a witness, giving testimony in 
 accordance with admitted facts in the case, or that is 
 corroborated by other witnesses, presents strong claims to 
 credence at your hands. 
 
 Upon the other hand, a witness who goes upon the stand 
 and freely gives testimony for the side calling him, but who 
 testifies unwillingly upon the other side, or who becomes pert 
 and impudent on cross examination, presents no such claims. 
 The testimony of such a witness should be carefully scruti- 
 nized by the jury. 
 
 In weighing the evidence you should take into account 
 the means or opportunities of the witness to have knowledge 
 about the matters testified to. You should also take into 
 account the probability or improbability, the possibility or 
 impossibility of the story told by the witness. 
 
 In determining the facts, gentlemen of the jury, you 
 should proceed upon the theory that all the witnesses have 
 tried to testify truthfully. If there be conflict in the evi- 
 dence, as there is in nearly every case, you should, if possible, 
 reconcile it with the truth and find the facts. 
 
 No. 158. Preponderance and weight of the evidence — 
 Meaning of. — By preponderance of the evidence is meant 
 evidence that you, in your jury room, considering the evi- 
 dence and weighing it, conclude is the evidence that you 
 believe and that influences your minds in arriving at the 
 conclusion you reach. 
 
 The weight of the evidence does not necessarily mean that 
 one side has more witnesses than another ; it simply means 
 that if, when weighing all the testimony of all the witnesses 
 with reference to their credibility, correctness of memory, 
 and to the circumstances surrounding their testimony, appear- 
 ing in the case, the evidence of one side outweighs that of 
 another, then such side is said to have the weight of the 
 testimony. The jury are the sole judges of the weight of 
 the testimony and the credibility of the witnesses. If one 
 witness testifies directly opposite to another, the jury is not 
 bound by that fact to regard the weight of the evidence as 
 evenly balanced. The jury has the right to determine from 
 the appearance of a witness on the stand, his manner of 
 testifying, his apparent candor, his apparent intelligence or
 
 EVIDENCE — WITNESSES. IO3 
 
 lack of intelligence, his relationship, business or otherwise, 
 to the party, his interest, if any may appear from the evidence, 
 his temper, feeling or bias, if any; and from this and all 
 other circumstances appearing in connection with the testi- 
 mony on the trial the jury has the right to determine which 
 witness is the more worthy of credit, and to give credit ac- 
 cordingly. But, of course, if the witnesses are otherwise 
 equally creditable, greater weight should be given to the 
 testimony of those who swear affirmatively to the fact, rather 
 than those who swear negatively as to the want of knowledge 
 or recollection. So if the witness is an employee of either 
 party and the- jury should believe that the witness has testi- 
 fied under fear of losing his employment, or a desire to avoid 
 censure or fear of offending, or a desire to please his employers, 
 such fact may be taken into account in determining the degree 
 of weight which ought to be given to the testimony of such 
 witness. But men are not under suspicion or disability as 
 witnesses simply because they are employees, and it will not 
 do to assume that the man has disregarded his oath and is 
 unworthy of bejief simply because he is an employee. It is 
 for vou to determine whether his relation has or has not in 
 any way embarrassed or restrained him from telling the truth. 
 
 Melhorn, J., in Carn.ihan v. Pa. Fire Insurance Co., Hancock Co. Coin. 
 Pleas. 
 
 Another Form. — In speaking <>f proof — preponderance of proof — it is 
 perhaps hardly necessary to say to the jury that testimony is not to be 
 measured by the number of witnesses. It is not that at all. Vou are to 
 judge ot tin character of each witness. Vou are to determine what weight 
 should he attached to any one witness's testimony. Vou have seen the 
 witnesses upon stand that have testified here. Vou have- heard the deposi- 
 tions of others read. Vou are to judge of the weight to attach to every 
 witness's testimony Vou have seen their appearance, the evidence of 
 
 candor or lack of candor shown ; the interest manifested by them or their 
 
 disinterestedness, as the case may he; and you are out of all to determine 
 how much weight shall he attached, and determine upon tin- whole volume 
 of the testimony, and the whole facts submitted to you, where the truth 
 of the matter lies; and determine out of it all whether the plaintiff has 
 established by the proof the claims h> n 
 
 to preponderance set Whittaker's Code of Ev , See. 148. 
 
 No Degrees Qj Preponderance. 
 
 There are no ol preponderant . hence language should not 
 
 ed Whicb would lead the jury to cum hide that there were degrees, or 
 
 that the eviden 11 and convincing character. Therefore, 
 
 to instruct the jury that there must he a clear or a fait preponderance, 
 would be error Russell v. Russell, 6 <> ( Effinger v. State, 9 
 
 It means greater weight, not larger number of witnesses. Holmes v. 
 
 nd 29 W I. I'.. 1 [5. 
 It is not necessai 1 preponderance of 
 
 required to justify a verdict, witl ference to the evi- 
 
 dent in id' Reip< ■■ Biting, 26 L R \ 769; 89 la S2
 
 104 EVIDENCE — WITNESSES. 
 
 No. 159. Declarations and statements — How considered 
 — Civil cases. — Declarations and statements of persons should 
 always be received by the triers of a cause with care and 
 caution, for the reason that the parties may not have been 
 understood at the time the statements were made ; . that the 
 parties who now repeat them did not fully understand them, 
 and the possibility that .they were not recollected and repeated 
 correctly in court. 
 
 But the court says to you that, when you are satisfied 
 that the declarations and statements have been made and 
 correctly given in evidence, they afford very strong and con- 
 vincing evidence and proof, for the reason that parties are 
 not supposed to make declarations against themselves and 
 interest. 
 
 Gillmer, J., in Hickox v. Ins. Co., Trumbull Co. Com. Pleas. Affirmed 
 by Circuit Court. 
 
 No. 160. Declarations or admissions of the party to the 
 suit — Another form. — You are instructed that parol proof of 
 the verbal admissions of a party to a suit, when it appears 
 that the admissions were understanding^ and deliberately 
 made, often affords satisfactory evidence; yet, as a general 
 rule, statements of the witness as to the verbal admissions of 
 a party should be received by the jury with great caution, 
 as that kind of evidence is subject to much imperfection and 
 mistake. The party himself may not have clearly expressed 
 his meaning, or the witnesses may have misunderstood him, 
 and it frequently happens that the witnesses by unintention- 
 ally altering a few of the expressions really used, give effect 
 to the statement completely at variance with what the party 
 did actually say. But it is the province of the jury to weigh 
 such evidence and to give it such consideration to which it 
 is entitled in view of all the other evidence in the case. 
 
 Gillmer, J., in Jones v. N. Y. L. E. & W. Co., Trumbull Co. Common 
 Pleas. 
 
 Declaration against interest competent evidence. Whittaker's Code 
 Ev.,Sec. 17; 1 Greenleaf Ev., Sec. 171. 
 
 No. 161. Admissions or declarations, how considered in 
 criminal cases. — You are instructed that confessions or ad- 
 missions of the defendant should be acted upon by you with 
 great care and caution ; and before there should be any con- 
 viction upon the ground of admissions, such admissions or 
 confessions should be corroborated by other testimony as to 
 the body of the crime. They may, however, be considered 
 as evidence and used in connection for that purpose with 
 other evidence in the case. In this class of testimony there
 
 EVIDENCE — WITNESSES. IO5 
 
 is always danger that the persons who make the declarations 
 or admissions may not have been fully understood. There is 
 also a liability of the person who repeats it to not remember 
 it all, or correctly repeat it afterwards. But if you are satis- 
 fied that admissions or declarations were made, correctly un- 
 derstood and repeated in court, then you are instructed that 
 that class of evidence is considered very satisfactory for the 
 reason that the party making the declarations is not presumed 
 
 to make them against his own interest You 
 
 should consider all the circumstances under which they were 
 were made, if they were made, to whom they were made, as 
 well as the recollection or want of recollection of the wit- 
 nesses in regard to any part of these alleged confessions. You 
 should consider the whole of what the defendant said at that 
 hearing; that is to say, that the whole admission, if any, 
 must be taken together. As well that part which is favora- 
 ble to the accused as that which is against him. 
 
 Gillmer, J., in State v. Robins, Trumbull Co. Com. Pleas. 
 
 No. 162. Declarations against interest in criminal 
 cases — Another form. — On the part of the state it is claimed 
 that there is evidence in the case tending to show that the 
 defendant at various times, and to various persons who were 
 before you as witnesses, made statements or admissions against 
 his interest, and which tended to show his guilt. The state- 
 ments and declarations made by the defendant and offered in 
 evidence against him, should be carefully examined and con- 
 sidered by you. These statements have been offered by the 
 state, but the exculpatory parts thereof, or parts thereof in 
 his justification, as well as those which import guilt, are to 
 be received and considered by you. You should consider the 
 entire statements or declarations, and in the light of all the 
 testimony in the case give to such statements and declarations 
 the weight which in your judgments the same are justly en- 
 titled to receive. 
 
 A considerable portion of the evidence consists of testi- 
 mony tending to show conversations in which the prisoner 
 and others are said to have participated. No class of testi- 
 mony is more unreliable and a more frequent cause of error 
 in the courts of justice than the narration of conversations 
 real or pretended. 
 
 The meaning or intention of the person in the conversa- 
 tion often depends upon gestures, mode of expression, <>r pe- 
 culiar circumstances, known perhaps but to a few present. 
 A conversation may not be fully heard; it may be imperfectly
 
 106 EVIDENCE — WITNESSES. 
 
 recollected, or inaccurately repeated, when the omission or 
 addition of a word, or the substitution of the language of the 
 witnesses, under color of bias or excitement, or the words 
 actually used might change the sense of the conversation. 
 This is apparent from the contradiction daily manifested in 
 the courts of justice in the narration of the same conversation 
 from the mouths of different persons. In considering this 
 class of testimony, you should view it with deliberate care 
 ' and scrutiny. In this connection, however, I will say to you 
 that where a statement or admission is deliberately and vol- 
 untarily made by the admission or statement there made, is 
 carefully remembered and accurately detailed, such declara- 
 tions or statements made against interest may be of the most 
 satisfactory nature. 
 
 Wm. R. Day, J., in State v. Webster, Trumbull Co. Com. PI. Conduct and 
 sayings of party accused admitted not as confession, but as source of in- 
 formation respecting the guilt or innocence of defendant. W'hittaker's 
 Ev. p. 125. 
 
 No. 163. Inferences to be drawn from conduct of parties 
 and omission to produce evidence. — In determining the ques- 
 tions involved in this case, you are at liberty to look to the 
 conduct of the parties, and if you find from a consideration 
 of all the evidence that a party has omitted to produce evi- 
 dence in elucidation of the subject matter in dispute which 
 is within his power, and which rests peculiarly within his 
 knowledge, you may draw such conclusions from it as in 
 your judgment such omission warrants; while it is not a pre- 
 sumption of law that such omission to produce evidence ren- 
 ders it probable that the party withholding it does so because 
 he knows that if it were produced it would operate to his 
 prejudice, yet the law permits you to draw such conclusions 
 or inferences, and to give to it such weight as your judgment 
 may warrant. 
 
 Newby, J., in Graham v. Graham, Highland County, Common Pleas. 
 " The ordinary presumption where a party fails to offer proof of what he 
 ought to prove, if it exist, is that the question was not asked because the 
 answer would have been unfavorable." Whittaker's Code of Ev. p. 502. 
 
 f No. 164. Credibility of witnesses. — In determining the 
 credibility of the witnesses you may consider their intelli- 
 gence, their ability to relate what they saw or heard, and the 
 circumstances by which each of them was surrounded. You 
 may also consider their manner on the witness-stand while 
 testifying. Did they show a zeal in testifying against or for 
 either side? Did they exhibit a reluctance to testify for or 
 against either side? You may also consider whether each
 
 EVIDENCE — WITNESSES. io; 
 
 -witness was corroborated or contradicted by other witnesses 
 in the case of close credibility. Yon must pass upon the 
 amount of credit you will attach to every fact. That requires 
 you to look at the testimony of each witness in its own and 
 in the light of the other facts. You may consider the relation 
 that each witness bears to the case and the interest which he 
 has in the result. If any one of them is to be affected seriously 
 by the result of the case, by your verdict, then in fixing on 
 the weight of his testimony you should consider that fact. 
 Some of the witnesses may have an interest in the conviction 
 of the defendant. The defendant may have an interest in 
 his liberty. Next to his interest in this life is his interest in 
 his liberty. That is human and applicable to all of us. Your 
 verdict may affect this interest of the state's witnesses in con- 
 viction, and it may affect the defendant's interest in his 
 libertv. Witnesses have been known to testify falsely by 
 such interests as I have just explained, and it is for you to 
 say whether any of the witnesses for the state or the defend- 
 ant have been moved to testify falsely by reason of such 
 interest. In determining the weight to be attached to each 
 and every witness' evidence, you may also consider the 
 probability or improbability of the truth of the statements 
 which thev made. You are not obliged to believe the state- 
 ments of any witness merely because he made them ; and you 
 may, if your judgment dictates, believe part and disbelieve 
 part of any witness' testimony. 
 
 Pugh, J., in State v. Abbott, Franklin Co. Com. Pleas. 
 
 Credibility is a matter of induction, to be determined by the jury, 
 under such instructions, is to the reason of the case, as may be given by 
 the court. Wharton's Cr Ev., Sec 584. 
 
 Interest — No person is disqualified as a witness by reason of interest. 
 Whittaker :. 205 Relationship, party sympathy, personal affec- 
 
 tion influence the perceptive powers as effectively as pecuniary interest. 
 
 Wharton's Cr. I'.v.. Si 6 Interest and Sympathy may always he shown. 
 
 hi. Si . :'>-?. 4 SS - 
 
 Credibility depends on capacity to observe and capacity to narrate. 
 Wharton's Cr. Ev., Sec. 377. 
 
 No. 165. Impeachment of witness. — If the jury find from 
 the evidence written or oral, or both, that any witness in the 
 is discredited or impeached as to the testimony on any 
 one material fact, then, and in that case, the jnry may in their 
 discretion regard the testimony of such witness which is not 
 corroborated or supported, as dis< redited or impeached as to 
 other statements he makes in his evidence. 
 
 Prom Dye v. Scott, ,s ( > S. 194. Limitation of number of witnesses 
 as to charactei R - S» 7287; \g S .y Court may exercise its 
 discretion in limiting the number Bunnell v. Butler, 23 Conn. 65. 
 
 The jury in some jurisdictions may be charged that " the testimony of
 
 108 EVIDENCE — WITNESSES. 
 
 an impeached witness is to be taken with great care by the jury, and, un- 
 less fully corroborated, the jury will be justified in giving it no weight 
 whatever, and it is only on such points as the witness may be corroborated 
 that the witness is entitled to credence and weight with the jury." Green 
 v. Cochran, 43 la. 545. 
 
 Whether or not a witness has been successfully impeached, 
 or how far the value of his testimony has been impaired by 
 impeaching evidence is exclusively within the province of 
 the jury. You may, notwithstanding you believe from the 
 evidence that the reputation of the witness is not good, never- 
 theless give such weight to his testimony in this case as you 
 may believe it entitled to, or you may disregard it entirely if 
 you believe it entitled to no weight. 
 
 Addison v. State, 48 Ala. 478, 482 ; State v. Miller, 53 la. 209. 
 
 No. 166. Impeachment of witness — Another form. — 
 
 You are instructed that if the general character of the plain- 
 tiff (or other witness) for truth is successfully impeached (it 
 is for you to say from the evidence whether or not he has 
 been so impeached), you are not necessarily bound to discredit 
 his testimony ; you are the judges of the credibility of the 
 witness, and all the weight to be attached to the testimony 
 of each of them, that of the plaintiff as well. You are not 
 bound to take testimony of any witness as absolutely true, 
 and you should not do so if you are satisfied from all the facts 
 and circumstances, provided on the trial that such witness is 
 mistaken in the matter testified to by him, or that from any 
 other reason his testimony is untrue or unreliable. The effect 
 of impeaching the plaintiff goes only to the weight that 
 should be given to his evidence. It is submitted to you 
 better to enable you to determine in what light to estimate 
 his testimony; but it should have no effect as to facts that 
 you find to be established from their evidence offered in the 
 case. It does not impeach his right to be protected as fully 
 as the right of any other person. The law as to its remedial 
 arrangements is wholly impartial. Society requires the pro- 
 tection of the rights of the bad man as much as it does the 
 rights of the good man. In that respect law is no respecter 
 of persons. 
 
 Voris, J., in Otto v. Mills, Summit Co. Com. Pleas. 
 
 No. 167. Circumstantial evidence — Denned by Judge 
 Day. — In criminal cases the evidence may be either direct or 
 circumstantial, or both ; if a witness sees, knows, and testifies 
 to the commission of the ultimate fact to be proven, that is 
 positive or direct evidence. But it is not always possible in
 
 EVIDENCE — WITNESSES. 109 
 
 criminal cases to establish guilt by direct and positive testi- 
 mony, nor is it necessary, and the law provides that circum- 
 stantial evidence alone, where sufficient to satisfy the mind 
 beyond a reasonable doubt, shall justify conviction. 
 
 Circumstantial evidence is proof of facts standing or 
 existing in such relation to the ultimate fact or facts to be 
 proven that such ultimate fact may be inferred or deduced 
 from such surrounding fact or facts. However, it must be 
 remembered that before there can be any legal conviction of 
 the defendant in this case, the evidence whether it be direct 
 or circumstantial, or circumstantial alone, must be so clear 
 and convincing as to exclude from your minds, and from the 
 mind of each one of you, all reasonable doubt of the guilt of 
 the defendant. Each and every circum'stance and fact from 
 which an inference is sought to be drawn against the defend- 
 ant must be proven beyond the existence of a reasonable doubt 
 before such inference can be drawn therefrom, and the 
 hypothesis of guilt should flow naturally from the facts found 
 and be consistent with them all. 
 
 Before any such inference can be drawn therefrom, and 
 such fact relied upon as the basis of any legal inference 
 against the defendant, it must be strictly and indubitably 
 connected with the main charge, to wit: The killing of the 
 deceased by the defendant. If the evidence in the case can 
 be reconciled with the innocence of the accused, you should 
 so reconcile it. It is not sufficient to entitle the jury to render 
 a verdict of guilty that the facts and circumstances established 
 by the proof coincide with, account, and therefore render 
 probable, the hypothesis of guilt; but such proof must 
 exclude to a moral certainty every reasonable hypothesis than 
 that of guilt. 
 
 Win. R. Day, J., in State v. Webster. Sec Wharton's Cr. Ev., Sec. 10; 
 Wills on L'ir. Ev. [83. 
 
 No. 168. Circumstantial evidence — Another form. — 
 What is meant by circumstantial evidence in criminal casts 
 i> proof "f such facts and circumstances connected with or 
 surrounding the commission of tin- crime charged as tend to 
 show the guilt or innocence of the party (-barged; and if 
 these fads and circumstances are sufficient to satisfy the jury 
 of the guilt of the defendant beyond a reasonable doubt, then 
 such evidenci is sufficient to authorize the jury in finding a 
 verdict of guilty. To authorize a conviction on circumstantial 
 evidence alone the ( iri um tances should not only be consist cut 
 with the prisoner's guilt, but they must be inconsistent with 
 any other rational conclusion or reasonable hypothesis, and
 
 IIO EVIDENCE — WITNESSES. 
 
 such as leave no reasonable doubt in the minds of the jury of 
 the defendant's guilt. Circumstantial evidence is legal and 
 competent in criminal cases, and if it is of such character as 
 to exclude every reasonable doubt, it is entitled to the same 
 weight as direct testimony. 
 
 Nye, J., in State v. Brant, Medina Co. Com. Pleas. 
 
 No. 169. Circumstantial evidence — Continued. — Cir- 
 cumstantial evidence is often the most convincing. 1 It is 
 difficult to fabricate the connected links in a chain of cir- 
 cumstances so as to preserve the semblance of truth. When 
 the circumstances detailed are real and natural they will cor- 
 respond with each other. When they are inconsistent with 
 each other or irreconcilable with the admitted or proven 
 facts, then results a plain and almost certain inference that 
 artifice has been resorted to and that the tale is not true. 2 
 
 1 " Circumstantial evidence is often stronger and more satisfactory than 
 direct, because it is not liable to delusion or fraud." State v. Thorne, 6 
 Law Rep. 54. 
 
 2 Gillmer, J., in Hickox v. Ins. Co., Trumbull Co. Com. Pleas. 
 
 No. 170. Negative and affirmative evidence — How con- 
 sidered. — Evidence has been offered tending to show that the 
 bell was ringing, and evidence has been offered tending to 
 show that the bell was not ringing at that time, and in con- 
 sidering the testimony upon this subject, you will consider it 
 a rule of presumption in the law of evidence that, where 
 witnesses are of equal credibility, the one who testifies to the 
 affirmative is ordinarily to be preferred to the one who testifies 
 to the negative, for the reason that the one who testifies to 
 the negative may have forgotten. It is impossible to forget 
 a thing that did happen. It is not possible to remember a 
 thing that never happened. 
 
 Johnston, J., in Youngstown St. R. R. Co. v. N. Y. L. E. & W. R. R. Co. 
 
 An instruction that the positive testimony of a witness to the existence 
 of a certain thing, and the testimony of another witness that such a thing 
 does not exist, are equallv credible, is erroneous, as it ignores ever}- well- 
 settled principle which is applied in determining the credibility of wit- 
 nesses, and lays down the rule that one witness will counterbalance an- 
 other. Smith v. M. B. & T. Ex., 30 L. R. A. 504. 
 
 An instruction that " positive testimony of a small number of witnesses 
 that they saw or heard a given thing occur will outweigh the negative tes- 
 timony of a greater number of witnesses that the}- did not see or hear it, 
 provided the witnesses are equally credible ; but in connection with this 
 instruction should be considered the relative means or opportunity of the 
 several witnesses to see or hear the occurrence, and it should be carefully 
 kept in mind that it only applies when the witnesses are credible," is 
 proper. Draper v. Baker, 61 Wis. 450. 
 
 Affirmative testimony is entitled to more weight than that which 
 states that the witness did not see or did not hear. Toledo Con. St. Ry. v. 
 Rohner, 9 O. C. C. 702. See 2 O. 415, 426; T. (11), 43.
 
 EVIDENCE — WITNESSES. Ill 
 
 No. 171. Weight to be given expert testimony as to 
 personal injury — Medical. — As bearing upon the question of 
 the plaintiff's injuries, both plaintiff and defendant have 
 called medical experts to whom hypothetical questions have 
 been put for the purpose of enlightening you upon the issue 
 between the parties in that respect ; that is, persons of expe- 
 rience in the medical profession have been called, to whom 
 questions embodying certain statements as facts in the case 
 have been put, and upon which statement of facts the witness 
 has given his opinion. This is testimony which should be 
 considered by you in determining this question between the 
 parties, and the weight to be given to it depends upon the 
 skill and experience of the physician, his learning, capacity, 
 and upon whether or not the question and statement of fact 
 contained in it, upon which the opinion is expressed, is a true 
 statement of the facts as to the plaintiff's condition, as you 
 find them to exist from the testimony in the case. If the 
 question with this statement of fact put to the witness, upon 
 which he expresses his opinion, does not embody the facts as 
 you find them to have been established by the testimony, then 
 the opinion is of little if any value in determining the issues 
 in the case. If. however, the questions embody substantially 
 the facts as you find them to exist and from the testimony, 
 then you should give to them such weight as in your judg- 
 ment, in the light of all the testimony in the case they would 
 be entitled to, in determining this question. 
 
 Lampson, Judge. 
 
 No. 172. Weight to be given opinions of experts. — Wit- 
 nesses, you know as a rule, are required to or only allowed 
 to testify as to facts within their own knowledge, but in this 
 case witnesses have been allowed to give their opinion; they 
 are what are called experts and tin- rule as to them is this: 
 They are first examined in your hearing to see if they are 
 qualified, that is. if the court will permit them to give an 
 opinion, then they may give it, but you are then the judges 
 as to what weight that opinion is entitled. 
 
 No. 173. Medical testimony as to nature of human 
 blood. — Experts, both medical and those who have made the 
 nature and properties of human blood a special study, were 
 ■lined in regard to some matters in dispute between the 
 state and the defendant. These experts were allowed to 
 testify and give their opinions on account of the special skill 
 
 and knowledge they had acquired from the study and practice 
 
 in reference to the matters to which their testimony referred.
 
 112 EVIDENCE — WITNESSES. 
 
 And notwithstanding their special skill and knowledge, 
 you are to decide upon the value of the testimony and award 
 to them, all and each of these experts, such weight as you 
 may think their testimony deserves; the credibility of wit- 
 nesses who have testified in this case, as well as the weight 
 and effect of the circumstances are solely for your considera- 
 tion and determination. 
 
 In weighing the testimony of witnesses, you should take 
 into consideration the reasonableness and probability of the 
 story they tell when on the witness-stand, their strength of 
 memory, whether they are contradicted or sustained by any 
 reliable testimony in the case, any interest which any witness 
 may have, or feelings in the case, or any proper consideration 
 developed by the proof, which may aid you in arriving at a 
 just conclusion. 
 
 William R. Day, J., in State v. Webster. See, as to identification of 
 blood, Wharton's Cr. Ev., Sec. 777a (8th Ed.). 
 
 No. 174. Effect of uncorroborated testimony of accom- 
 plice. — While there is no rule of law in this state preventing 
 the jury from convicting upon uncorroborated testimony of 
 an accomplice, still a jury should always act upon such testi- 
 mony with the greatest care and caution, subject it to the 
 most careful examination in the light of all the other evidence 
 in the case, and the jury ought not to convict on such testi- 
 mony alone, unless a full and careful examination thereof 
 has satisfied them beyond the existence of a reasonable doubt 
 of its truth and that they can safely report upon it. 
 
 Gillmer, J., in State v. Champlin. The conspiracy must be proved be- 
 yond a reasonable doubt. Ditzler v. State, 4 O. C. C. 551. 
 
 Corroboration.— The uncorroborated testimony of an accomplice may 
 be sufficient to convict (10 O. S. 287),. but is generally not entitled to much 
 weight (19 O. 131, 135), and the court should caution the jury as to its un- 
 reliability. Allen v. State, 10 O. S 287. 
 
 The jury may convict upon the uncorroborated testimony of an ac- 
 complice if it satisfies them beyond a reasonable doubt of the guilt. Com. 
 v. Scott, 123 Mass. 222; Com. v. Elliott, no Mass. 104; Com. v. Snow, n 
 Mass. 411. 
 
 No. 175. Previous good character — How to be considered 
 in criminal case. — The defendant relies upon his previous 
 good character and some evidence has been introduced upon 
 that point. That evidence you are to consider in the case 
 precisely the same as the rest of the testimony. A defendant 
 in a criminal case has the right to put in evidence concerning 
 his former good character, his previous life. It is evidence 
 tending to raise a probability that one who had such a char- 
 acter would not commit a crime. It is not, however, con-
 
 EVIDENCE — WITNESSES. 113 
 
 elusive. It is simply evidence to be considered with all the 
 other testimony for the purpose of determining whether the 
 proof, taken as a whole, establishes his guilt beyond a reason- 
 able doubt. If it does not, even this evidence may of itself 
 create a reasonable doubt, and if it does, he is entitled to the 
 benefit of that doubt. But if, when you come to take the 
 evidence of character together with all the other testimony 
 submitted for your consideration, and you are satisfied when 
 you look at it and consider and weigh the effect upon your 
 minds and judgment, if ultimately your minds are convinced 
 beyond a reasonable doubt that the defendant is guilty, not- 
 withstanding his standing and position in the community, 
 notwithstanding his previous good character, he is guilty of 
 the judgment of the law, it is your duty to so pronounce by 
 your verdict. 
 
 It is a matter of common observation and experience that, 
 owing to a latent weakness in the human character, men of 
 the best standing, men whose lives have been characterized 
 by long integrity and fidelity in all life's relations are found, 
 on occasion when temptations are presented to them, to yield, 
 to give way, and to fall into the commission of crime. It is 
 temptation which subverts human character, destroys human 
 integrity and uproots human fidelity, and under the influence 
 of it — under the impulse of the occasion — men of that kind 
 give way when it would be expected they would resist. There 
 is no intimation in making this statement that the defendant 
 has done this, but your attention is simply called to that 
 weakness of the human character, which needs no proof, be- 
 cause it is common observation and experience, and vou are 
 instructed that it is proper for you to consider it in giving the 
 proper weight and effect to the evidence touching the previous 
 character of the defendant. 
 
 Pugh, ].. in State v. Abbott, Franklin County Common Pleas. Char- 
 
 tnay be shown, m O. S. 114. Its bearing is for jury, 22 O. S. 477. 
 
 It is error, however, to charge that it is entitled to less weight where the 
 
 question is one of great criminality. [9 O. S. 264. See full discussion 
 
 Wharton's Cr. Ev., See. 57, , / 
 
 I id to reputation A short charge.- Testimony lias been of- 
 
 fered and permitted to be •.•!• 1 n to you 1- to the general reputation of the 
 defendanl foi h< lie rea onabli effect of proof of good reputation 
 
 is to raise the presumption that the accused was not likely to have com- 
 mitted the crime with which he is 1 harged. The force of this presumption 
 depends upon tl jth of the opposing evident e to produce conviction 
 
 of the truth of tl *' Good reputation is certainly no excuse for 
 
 crime, and it is .1 circumstance bearing indirectly upon the guilt of the 
 accused which the jury are to consider in ascertaining the truth of the 
 charge Th< • vidi d by the defendanl of his good reputation for 
 
 honesty is to go to the jury and be considered bj them in connection 
 with all the othi ind if they believe the defend 
 
 ant to he guilty they inns! 30 find notwithstandin ■ 1 reputation. 
 
 Nye, J., in State- v Wideman, Medina Co l om. Pleas.
 
 114 EVIDENCE — WITNESSES. 
 
 No. 176. Evidence of good reputation — Refuting charge 
 of destruction of property. — Evidence of the good reputation 
 of the plaintiff as to being a law-abiding citizen, has also been 
 offered in evidence. This was competent as tending to show 
 that it was not probable that he would have been the means 
 of destroying the property. But if the proofs would show 
 that the plaintiff burned his property in question, then evi- 
 dence as to his good reputation could not prevail against that 
 fact 
 
 Gillmer, J., in Hickox v. Ins. Co., Trumbull Co. Com. PI. Affirmed by 
 Circuit Court. 
 
 No. 177. Conduct importing guilt. — It is claimed on the 
 part of the state that there is evidence before you tending to 
 show conduct on the part of the defendant importing guilt. 
 
 The conduct and statements of the defendant at and after 
 the time of his arrest should be fairly considered by you, and 
 such allowance by you as is reasonably just, considering the 
 surrounding circumstances under which the defendant was 
 placed, and the liability of the witnesses to pervert or under- 
 stand such conduct and statements. 
 
 Wm. R. Day, J., in State v. Webster, Trumbull Co. Com. PI. Confes- 
 sions may be by acts as well as by words. Acts of a prisoner in hiding 
 stolen property, and in flight, and the conduct of an accused when in- 
 formed of the accusation. People v. McKee, 36 N. Y. 113; Jewett v. Ban- 
 ning, 21 N. Y. 27 ; Com. v. McPike, 3 Cush. 181. Confusion, embarrassment, 
 " blushing," and " terror," may be shown against accused. Wharton's Cr. 
 Ev., Sec. 751 and cases cited. In a note this quotation appears from a charge 
 by Judge Learned : " I do not think much reliance is to be placed upon the 
 manner of any man when he is suspected or accused of crime. I mean 
 whether he looks pale or flushed, or the like, for it is impossible for us to 
 tell how a man may act when he is accused of crime. Our own judgment 
 in that is not very reliable ; one of you may appear to me flushed or fright- 
 ened, and to another not so. Therefore I do not think much reliance is to 
 be placed upon the opinion of witnesses as to manner. I don't speak of 
 conduct, but as to manner." Id. See Russell v. State, 53 Mass. 367. 
 
 No. 178. Testimony as to recognition of accused. — In 
 
 considering the testimony of witnesses as to the recognition 
 of the defendant on the night of the alleged homicide, you 
 are permitted to take into consideration and consult your own 
 knowledge and experience, as to the certainty or want of 
 certainty with which the question of identity may be deter- 
 mined, and in determining the value of the testimony of the 
 witnesses as to a recognition of the defendant, you should 
 examine into the facts upon which such witnesses base their 
 testimony. You should inquire what were the opportunities 
 which such witnesses had of knowing and recognizing the 
 defendant; what means the witness had of seeing and know-
 
 EVIDENCE — WITNESSES. II5 
 
 ing the countenance and person of the defendant ; the previous 
 acquaintance which such witnesses had with the defendant; 
 whether such acquaintance was casual or otherwise, and 
 whether the witness was, at the time of the alleged recognition 
 dispassionate, collected, observant, or otherwise. Familiarity 
 with the person sought to be identified, though not essential 
 to competency, may be of much importance in determining 
 the weight to be given to the testimony of the witnesses 
 testifying to the identity of another. 
 
 Win. R. Day, J., in State v. Webster. 
 
 No. 179. Proof of alibi. — There is evidence tending to 
 show and the claim of the defendant is that at the time when 
 the alleged homicide was committed, he was in the village 
 of G., five miles or more from the house of said H. 
 
 You will look carefully into the evidence bearing upon 
 this question, and from it all determine what the truth is in 
 respect thereto. If the evidence satisfies you that the defend- 
 ant was in the village of G. at the time it is claimed by the 
 state that the homicide was committed, or if the evidence 
 upon that question, either taken by itself or taken in connec- 
 tion with other evidence in the case, raises a reasonable doubt 
 in your minds of the defendant's guilt, you should acquit the 
 defendant. The failure of the evidence to satisfy you that he 
 was in the village of G. at the time in question would not 
 afford any presumption that he was present at the time and 
 place when and where the crime is alleged to have been com- 
 mitted. 1 
 
 The defendant is not compelled to account for his where- 
 abouts on the night the alleged homicide was committed, and 
 his failure to give a satisfactory account of his whereabouts 
 at that time would not authorize an inference or presumption 
 to be drawn that he committed the crime. 8 But if at any 
 time he freely and voluntarily undertook to give an account 
 of his whereabouts on the evening of the homicide, and at 
 tlie time the state claims the crime was committed, and in 
 giving such account he made a false, untrue, or contradictory 
 statement concerning the same, and von air satisfied beyond 
 a reasonable doubt that he made such statements, it would be 
 your duty to consider as evidence that he made such false, 
 untrue, or contradictory statements, and give to each such 
 weight as you think it justly entitled t<> under all the cir- 
 cumstances, including his age, circumstances, condition of 
 mind at the timi 
 
 ■ Toler v. State. [6 : 
 
 William R. Day. J., in State v. Webster.
 
 Il6 EVIDENCE — WITNESSES. 
 
 See Wharton's Cr. Ev., Sec. 333. Burden of proof is not changed by 
 this defense. Whittaker's Code Ev., p. 406. Judge Thompson (on Trials), 
 Sec. 2436 says : " It is unavoidably logical, and hence proper, to instruct 
 the jury that the defendant can not be convicted if the evidence adduced 
 by him tending to show an alibi raises a reasonable doubt of his having 
 been present at the time and place of the crime." In Ohio the defendant 
 is not required to establish the alibi by a preponderance of evidence. In 
 accordance with the rule adopted in Walters v. State, 39 O. S. 215, the jury 
 should be charged that they must consider all the evidence in the case, 
 including that relating to the alibi, and determine from the whole evi- 
 dence whether it was shown beyond a reasonable doubt that the defendant 
 /committed the crime with which he is charged. The burden of proof is 
 not changed when the defendant undertakes to prove an alibi, and if, by 
 reason of the evidence in relation to the alibi, the jury should doubt the 
 defendant's guilt, he would be entitled to an acquittal, although the jury 
 might not be able to say that the alibi was fully proved." Toler v. State, 
 16 O. S. 583 ; 1 Bishop's Cr. Pr., Sec. 1061-1068; Whart. Cr. Ev., Sec. 333. 
 See also fully Thompson's Trials, Sec. 2436. 
 
 No. 180. Flight of defendant — Consideration of, by- 
 jury. — The flight of a person immediately after a crime is 
 committed with which he is charged is a circumstance in 
 establishing his guilt, not sufficient of itself to establish his 
 guilt, but a circumstance which the jury may consider in 
 determining the probabilities for or against him, the proba- 
 bility of his guilt or innocence. The weight to which that 
 circumstance is entitled is a matter for the jury to determine 
 in connection with all the other facts and circumstances called 
 out in evidence on the trial of this case. 
 
 From Nye, J., in State v. Dedrick, Loraine Co. Com. Pleas. This sub- 
 stantially follows an instruction approved in People v. Forsythe, 65 Cal. 
 102. 
 
 Flight of accused in the absence of a good motive is competent evi- 
 dence. It is not necessary to show that the flight was on account of the 
 charge. State v. Frederick, 69 Me. 400. Flight raises a presumption of 
 guilt. State v. Gee, 85 Mo. 647 ; State v. Brooks, 92 Mo. 542. 
 
 Abbott, J., in Donnall's Case (Trial of Robert Saule Donnall, Eondon, 
 1877), charged the jury that, "a person, however conscious of innocence, 
 might not have the courage to stand a trial ; but might, although inno- 
 cent, think it necessary to consult his safety by flight." Kennedy v. Com., 
 14 Bush. 341, is an authority against admission of explanatory matters as 
 to flight, but the accused may certainly explain. 
 
 No. 181. Consideration of improper unanswered ques- 
 tions by jury. — Gentlemen of the jury, some questions have 
 been asked of witnesses which were not permitted to be 
 answered by them. The fact that questions have been asked 
 should not be considered by you, except as they have been 
 permitted to be answered by the witnesses. You should 
 determine the case and the facts necessary to be proved to 
 establish the guilt of the defendant from the evidence which 
 has been permitted to be given to you and not thereafter 
 excluded from your consideration. 
 
 D. J. Nye, Judge.
 
 EVIDENCE — WITNESSES. 1 1 J 
 
 No. 182. Consideration of admitted facts stated in affi- 
 davit for continuance. — The defendant in this case made 
 a motion for continuance stating as the reason therefor 
 that one G. W. was a material witness for him, and without 
 whose testimony he could not safely proceed to trial. In this 
 affidavit he sets forth, as required by law, what he expects G. 
 W. would testify to if present as a witness. The state, by its 
 prosecuting attorney, says, to prevent a continuance of the 
 case, that he will admit that if G. W. were here he would 
 testify to the facts stated in the affidavit. 
 
 For the purpose of this case then you are instructed that 
 you may consider that affidavit as the testimony of the wit- 
 ness G. W. the same as if he were here, and the weight which 
 you will give that testimony is left entirely to your discretion. 
 
 D.J. Nye. Judge. 
 
 No. 183. Conflict in testimony — How treated. — When 
 there is conflict between witnesses in their testimony, the rule 
 for guidance of the jury is that preference should be given to 
 that witness who has the least inducement from interest or 
 other motives to testify falsely. Again, in determining which 
 of the witnesses are worthy of credit, you should consider 
 whether each statement is probable or improbable. You are 
 not obliged to believe the statement or statements of any wit- 
 ness who testified before you merely because the witness made 
 such statement or statements. You have a right, in the 
 exercise of your intelligence and in the light of your experi- 
 ence, to consider whether the statement or statements accord 
 with the probability of truth. And, again, in passing on the 
 credit of the witness, you should consider whether any of the 
 witnesses have been impeached. 
 
 Pugh, Judge, in State v. Abbott, et al., Franklin County Com. Pleas. 
 
 No. 184. Record evidence of deed — As to its due execu- 
 tion — Prima facie evidence. — The defendant has put in evi- 
 dencearecord from the Recorder's office of Trumbull County, 
 purporting to be a record of the paper writing in question, 
 made by the proper officer. The law has provided for the 
 keeping of thi r< 1 ord, and has made it prima facie evidem e 
 of the execution of the deed; and by this evidence the de- 
 fendants gave prima facie proof that the papei writing is in 
 law the <\w<\ and conveyance <>f J. N., deceased. 
 
 a. // may be rebutted. — 
 
 By "prima /*/,/<" evidence, the court means evidence 
 sufficient to establish this fact in the absence of other proof
 
 Il8 EVIDENCE — WITNESSES. 
 
 countervailing it ; but the record given in evidence to prove 
 the execution of the paper writing purporting to be a deed, 
 as I have said, is prima facie evidence only, which may be 
 rebutted by other evidence by which it may be shown that 
 the writing which was recorded was, in fact, lacking in all 
 or any of the qualities necessary to the due execution of the 
 writing purporting to be the deed. 
 
 Evidence has been given for the purpose of impeaching 
 this writing in several respects, and evidence has been given 
 with a view to rebut this impeaching evidence and sustain 
 the writing; and it is chiefly upon the effect of this evidence 
 for and against the writing in question that the parties are 
 now at issue before you. 
 
 It is competent for the plaintiff in this manner to impeach 
 the execution of this instrument ; or in other words, it appears 
 in evidence that upon the first day of April, 1891, that J. N., 
 the father of the plaintiff, conveyed the land in question to 
 the defendant by deed of that date, and for the consideration, 
 as expressed in the deed, of six thousand five hundred dollars. 
 The plaintiff seeks to avoid the effect of this deed by showing 
 that J. N., at the time he made and executed the deed, had 
 not sufficient mental capacity to make and execute the same. 
 
 Gillmer, J., in Norris v. Western Reserve Seminary, etc., Trumbull Co. 
 Com. Pleas. Affirmed by Circuit Court. 
 
 No. 185. Mental capacity of grantor to make deed. — 
 
 The law presumes that J. N., the grantor, had sufficient 
 capacity to make such a deed, and therefore the burden is 
 upon the plaintiff to show by a preponderance of the evidence, 
 before he can recover, that J. N., the grantor, had not suffi- 
 cient mental capacity to make the deed or instrument in 
 question. 
 
 Before a man can legally convey his property, he must 
 have memory. A man in whom this faculty is totally extin- 
 guished can not be said to possess understanding to any 
 degree whatever, or to any purpose, but his memory may be 
 imperfect, it may be greatly impaired by age or disease, he 
 may not be able at all times to recognize the names of persons 
 or families of those with whom he has been intimately ac- 
 quainted ; and he may at times ask and repeat questions that 
 have been answered, and yet his understanding may be 
 sufficiently sound for many of the ordinary transactions of 
 life, including the disposal of his property. 
 
 The question is not so much what was the degree of 
 memory possessed by the grantor, as it is this : Did he have 
 the requisite mental capacity, and was he a free agent in
 
 EVIDENCE — WITNESSES. 119 
 
 making the conveyance at the time he is said to have 
 executed it? 
 
 The power to make a valid deed is not destroyed or lost 
 by old age alone ; nor is it denied to him who has attained 
 the utmost verge of life. Old age does not always or 
 necessarily extinguish the light of intellect. It is in some 
 men more brilliant than it is in others at much earlier age. 
 The law looks only to the competency of the understanding; 
 neither age nor sickness, nor extreme distress or debility of 
 body will be sufficient to render a deed invalid, provided the 
 grantor at the time it was executed did know what was being 
 done, and did understand the nature of the act, and did have 
 sufficient mental capacity to execute the deed; but the age of 
 the individual, if considerable, is of importance and should 
 be carefully considered by you as bearing on this question. 
 
 An habitual inability to recognize neighbors and ac- 
 quaintances would be strong evidence of a sunken intellect 
 and should be carefully considered by you ; but a few 
 occasional instances of this kind may show in an old gentle- 
 man a memory weakened but not destroyed, impaired but 
 not extinguished. The want of recollection of names is one 
 of the earliest symptoms of decay of memory, but its failure 
 may exist to a very great degree and yet the solid power of 
 understanding remain 
 
 The court says to you as a matter of law that the mere 
 opinions of witnesses are entitled to little or no weight unless 
 those opinions are supported by good reasons founded on 
 facts which warrant them in the opinion of the jury. If the 
 reasons are frivolous or inconclusive, or if founded on a 
 wrong basis, the opinions of such witnesses are of but little 
 aid to the triers of the cause. Every man having sufficient 
 mental capacity, and not under any undue influence, is the 
 lawful disposer of his own property, and he has the right to 
 dispose of it as may seem best to him. 
 
 If he has sufficient mental capacity it matters little to 
 whom he disposes it; his ownership of the property entitles 
 him to do with it as he chooses; and it matters not that the 
 jury may think that it would have been better to have given 
 it to his relatives. 
 
 If Mr. X., therefore, has the legal capacity, and as I have 
 stated, if he was free from any undue influence, disposed of 
 and conveyed the land in question to Western Reserve Semi- 
 nary, of West Farmington, he had a perfect right to do so; 
 and such an act should be sustained regardless of what the 
 jury might think of the propriety of the disposition. 
 
 He must have had sufficient will -power to enable him to act
 
 120 EVIDENCE — WITNESSES. 
 
 in accordance with plans discreetly framed ; and if it should 
 appear to the jury that he had before that time formed other 
 plans for the disposition of his property, in all or in some 
 important respects different from that which the paper writing 
 in question purported to carry out, then you should consider 
 this fact as bearing upon the question whether at the time the 
 grantor made the deed in question he had sufficient mental 
 capacity to do so. 
 
 You should also consider the evidence which has been 
 offered, if any, in regard to other plans which the evidence 
 may show that the deceased had previously formed, with 
 regard to the disposition of his property, whether by will or 
 otherwise, to the persons to whom he may at other times, if 
 any, have determined to give his property, — if any such were 
 shown, bearing upon this same question. 
 
 Gillmer, J., in Norris v. Western Reserve Seminary, etc., Trumbull Co. 
 Com. Pleas. Affirmed by Circuit Court. 
 
 No. 186. Parol evidence to vary written instrument. — 
 
 It is well settled, as a general rule, that all parol — that is, 
 verbal — negotiations between the parties to a written contract, 
 such as a promissory note or other instrument anterior to, or 
 contemporaneous with, the execution of the instrument, are 
 to be regarded as either merged in it or concluded by it. 
 Accordingly, parol evidence is incompetent to show terms or 
 conditions at variance with, or in addition to, a written agree- 
 ment which the parties agreed to verbally, prior to or at the 
 time the contract was reduced to writing, but which were not 
 inserted in the instrument. But to this general rule there 
 are certain exceptions. 
 
 Thus, parol evidence is admissible to prove that the 
 written agreement, or promise, was without consideration, or 
 what the consideration in fact was ; and parol evidence is 
 admissible to show that the writing was never intended to 
 operate as an agreement at all ; that the writing was not 
 accepted as the record of any contract. 
 
 E. P. Evans, J., in Eillie v. Bates, Sup. Court, No. 1636. See 3 O. C. C. 
 94 ; 26 O. S. 33. 
 
 No. 187. Reasonable doubt. — A reasonable doubt is an 
 honest uncertainty existing in the minds of a candid, impar- 
 tial, diligent jury, after a full and careful consideration of all 
 the testimony, with an eye single to the ascertainment of 
 the truth, irrespective of the consequences of their finding. 
 It is not a mere speculative doubt, voluntarily excited in the 
 mind in order to avoid the rendition of a disagreeable verdict.
 
 EVIDENCE — WITNESSES. 121 
 
 Such a doubt is considered by the law as merely captious, 
 and as an unreasonable one. 
 
 To acquit upon trivial suppositions and remote conjectures 
 is, says an eminent jurist, a virtual violation of the juror's 
 oath and an offense of great magnitude against the interests 
 of society — directly tending to the disregard of the obligation 
 of a judicial oath, the hindrance and disparagement of justice 
 and the encouragement of malefactors. On the other hand, 
 the jury ought not to condemn, unless the evidence removes 
 from his mind all reasonable doubt as to the guilt of the ac- 
 cused, and he would venture to act upon it in a matter of the 
 highest concern and importance to his own interests. 1 
 
 A reasonable doubt wk is that state of the case which after 
 the entire comparison and consideration of all the evidence 
 leaves the minds of the jurors in that condition that they 
 can not say they feel an abiding conviction to a moral certainty 
 of the truth of the charge. ' ' 2 
 
 " " A verdict of guilty can never be returned without convinc- 
 ing evidence. The law is too humane to demand a conviction 
 while a rational doubt remains in the minds of the jury. You 
 will be justified and are required to consider a reasonable doubt 
 as existing if the material facts, without which guilt can not 
 be established, may fairly be reconciled with innocence. In 
 human affairs absolute certainty is not always attainable. 
 From the nature of things reasonable certainty is all that can 
 be attained on many subjects. When a full and candid con- 
 sideration of the evidence produces a conviction of guilt, and 
 satisfies the mind to a reasonable certainty, a mere captious 
 or ingenious artificial doubt is of no avail. You will look, 
 then, to all the evidence, and if that satisfies you of the de- 
 fendant's guilt, you must say so. If you are not fully satisfied, 
 but find only that there are strong probabilities of guilt, your 
 only safe course is to acquit. " 3 
 
 ' Judge Minshall, in the Giddings Trial. 
 
 Approved in Morgan v. State 48 1 >. S. ^77, as given by C. J. Shaw 111 
 Webs ' 
 
 !:•. fudge Birchard in Clark v. State, 12 Ohio, 495. Approved in Mor- 
 gan v. Sta1 ,377-
 
 I2 2 FALSE CLAIMS. 
 
 FALSE CLAIMS— MAKING OUT AND PRE= 
 SENTINQ TO PUBLIC OFFICERS. 
 
 No. 188. False claim under R. S. Sec. 7075. — A false 
 claim may be defined as one that is untrue. For example, if 
 a claim is made for more bricks than were furnished, or for 
 more labor in excavation than was done, such a claim is a 
 false claim. 
 
 The word fraudulent involves a somewhat different idea. 
 A fraudulent claim against the city may be defined as a false 
 claim ' ' gotten up or contrived by some person or persons 
 with intent to present it for payment, and thus to de- 
 fraud" the city. You will perceive from these definitions 
 that a false claim has not as many elements as a fraudulent 
 claim. A false claim is not a fraudulent claim ; but a fraud- 
 ulent claim is a false claim and something more added. That 
 is, it is a false claim gotten up or contrived by some person 
 or persons with the intention, with the purpose, to present it 
 for payment, and thus to defraud the party against whom it 
 is preferred. 
 
 Pugh, J., in State v. Abbott et al., Franklin Co. Common Pleas. 
 
 No. 189. Legal knowledge of a fact defined. — The term 
 legal knowledge is used because legal is not synonymous 
 with knowledge as it is understood in common or ordinary 
 talk among men. Mere negligence, or the absence of ordi- 
 nary business prudence, in the transaction of the business of 
 constructing the sewer and in presenting the claims by the 
 defendants, would not be equivalent to knowledge, it would 
 not show that they had such knowledge, guilty knowledge. 
 To warrant you in finding that the defendants, or either of 
 them, knew that the claim was either false or fraudulent, 
 you must be satisfied that they, or the ones against whom 
 you so find, were aware of such facts or circumstances in 
 relation to the claim, as would have created the belief in the 
 mind of an ordinarily prudent and intelligent person that the 
 claim was, in some respect, false or fraudulent. 
 
 "In criminal as well as in civil affairs, every man is pre- 
 sumed to know everything that he can learn upon inquiry, 
 when he has facts in his possession which suggest the in- 
 quiry. ' '
 
 FALSK CLAIMS. 123 
 
 It is not true that a person is not chargeable with any 
 more knowledge than he chooses to have ; he is not permitted 
 to close his eyes and ears, when he pleases, upon all sources 
 of information, and then excuse his ignorance by saying that 
 he did not, or does not, see or hear anything. 
 
 Making a still further application of this law to this case, 
 if you find, from the evidence, that either or all of the de- 
 fendants had knowledge or information of facts or circum- 
 stances in relation to this claim, which were sufficient to put 
 an ordinarily prudent person upon inquiry, and which were 
 of such a nature that the inquiry, if prosecuted with reason- 
 able dilligence, would certainly have led to the discoverv 
 that the claim was, in any respect, in any particular, false or 
 fraudulent, then you may presume that he or they, as the 
 case may be, knew the claim was thus false or fraudulent. 
 That state of facts, if proved, may have the same force and 
 effect as if it had been proved that he or they had actual 
 knowledge of the false or fraudulent character of the claim. 
 
 Pugh, J., in State v. Abbott, Franklin County Common Pleas. 
 
 No. 190. Intent, proof of. — There can be no crime where 
 there is no criminal intent. An act does not make the actor 
 guilty unless his intent was criminal. This wise, just, and 
 reasonable rule is firmly settled in the whole of the land, is 
 widely known and approved among men, and is recognized 
 and observed in every enlightened system of jurisprudence. 
 When an act forbidden by law is proved to have been know- 
 ingly done, no further proof is needed on the part of the state 
 to obtain a conviction in the absence of justifying or excusing 
 facts, since the law in such a case prima facie presumes the 
 criminal intent. It is not a conclusive presumption which 
 shuts out explanation and justification on the part of the de- 
 fense. The law infers the intent from the act and its charac- 
 ter. Although theact forbidden by law was knowingly done, 
 yet, if it was not done with a bad purpose, the defendant 
 may rebut the prima facie presumption by showing that the 
 act was done from a pure motive. Therefore, in this case, 
 if the state has convinced you, to the exclusion of all reason- 
 able doubt, that the defendants presented a false or fraudulent 
 
 claim for payment to the divert.,] of a< 1 'Mints, knowing it to 
 be falsi.' or fraudulent, the intent to cheal and defraud would 
 be prima facii presumed against such of the defendants as 
 did that, and the state was not required to offer proof to 
 show intent. 
 
 Hut if the facts and circumstances prcceeding the act, or 
 9
 
 124 FALSE IMPRISONMENT. 
 
 contemporaneous with and being part of the transaction itself, 
 as disclosed by the evidence, showed that the claim was pre- 
 sented from a pure motive, that is rebuttal of the presumption 
 of intent. The prima facie case made by the state in such 
 an instance and in that way does not take away the presump- 
 tion of innocence from the defendant, or deprive him of a 
 reasonable doubt in the minds of the jury. The indictment 
 charges only an intent to defraud. It is not necessary, there- 
 fore, that the state should have proved that the city had been 
 actually defrauded. If you are convinced that the defendant 
 knew the false or fraudulent character of the claim when it 
 was presented, you are not obliged to look further than that to 
 hud the intent to cheat and to defraud on the part of the 
 defendant. 
 
 Pugh, Judge, in State v. Abbott, et al., Franklin County. Indictment 
 for presenting false vouchers. This may be so framed to meet any case 
 upon the question of intent. 
 
 FALSE IMPRISONMENT. 
 
 No. 191. False imprisonment — Defined. — Trespass to 
 the person is an injury committed by one person upon another 
 with violence actual or implied, known in law as false im- 
 prisonment. To constitute the injury there are two points. 
 1. The detention of the person, and, 2. The unlawfulness 
 of such detention. Every confinement of the person is an 
 imprisonment whether it be in a common prison or a private 
 house, or even by forcibly detaining one in the street. Un- 
 lawful or false imprisonment consists in such confinement or 
 detention without sufficient authority, which authority may 
 arise from some process from the courts of justice, or from 
 some special cause warranted from the necessity of the thing, 
 such as the arrest of a felon by an officer or a private person 
 without warrant. 
 
 E. P. Evans, Judge, in Sohn v. Patton, Franklin County Com. Pleas. 
 See Kinkead's Code Pldg., Sec. 560 et seq. Cooley on Torts (2d. Ed.), p. 
 1 195, et seq. Any deprivation of the liberty of another, without his consent, 
 whether it be actual violence, threats or otherwise, constitutes an impris- 
 onment within the meaning of the law. 
 
 No. 192. Same continued — Arrest and imprisonment — 
 What constitutes. — To constitute an arrest and imprisonment 
 it is not necessary that the party making the arrest should 
 actually use violence or force toward the party arrested, or
 
 FALSE IMPRISONMENT. 1 25 
 
 that he should even touch his body. • If he professes to have 
 authority to make the arrest, and he commands the person 
 by virtue of such pretended authority to go with him, and 
 the person obeys the order, and they walk together in the 
 direction pointed out by the person claiming the right to 
 make the arrest, this constitutes an arrest and imprisonment 
 within the meaning of the law. 
 
 Any deprivation of the liberty of another without his con- 
 sent whether it be by actual violence, threats, or otherwise 
 constitutes an imprisonment within the meaning of the law. 2 
 
 1 Cooley on Torts, 169; Addison on Torts, Sec. 799. 
 
 2 From Sohn v. Patton, Franklin County Coin. Pleas, E. P. Evans, Judge. 
 Manual seizure is not necessary to constitute an arrest. Hill v. Tavlor, 50 
 Mich. 549. "It is the fact of compulsory submission which brings a per- 
 son into imprisonment." Brushaber v. Slegemann, 22 Mich. 266. As to 
 what constitutes imprisonment see Cooley on Torts, pp. 195-6. 
 
 No. 193. Same continued — Arrest by officer without 
 warrant — When. — It is expressly provided by statute in Ohio 
 ( R. S. Sec. 7130) that when a felony has been committed, 
 any person, whether an officer or a private person, may with- 
 out warrant arrest another whom he believes, and has reason- 
 able cause to believe, is guilty of the offense and may detain 
 him until a legal warrant can be obtained, and the statute 
 further provides that a sheriff, deputy-sheriff, constable, mar- 
 shal, or deputy-marshal, watchman, or public officer shall 
 arrest and detain any person found violating any law. of the 
 state, or any legal ordinance of a city or village, until a legal 
 warrant can be obtained. 
 
 From Sohn v. Patton, Franklin County Common Pleas; Evans, fudge. 
 See Cooley on Torts (2d. Ed.), pp. 199. 201, 202, 203. A right of arrest exists 
 where there are well-grounded suspicions of felony. State v West, 3 O. 
 S. 509. Where misdemeanor is committed within presence of officer he 
 
 may arrest without warrant. State v. Lewis, 50 O. S. [79. .Marshal's power 
 to arrest without warrant. R. S., Sees. 1849, 7129; Ballard v. State, 43 O. 
 
 No. 194. Same continued — Distinction between felonies 
 and misdemeanors. — The distinction between felonies and 
 misdemeanors in this state is this: Offenses which maybe 
 punished by death or by imprisonment in the penitentiary 
 are felonies; all other offenses are misdemeanors. j 
 
 Prom Sohn v. Patton, Franklin County Common Pleas; Evans, |udge. 
 
 No. 195. Same continued — Arrest of witness without 
 process. — There is no law in < >hio which authorizes an officer 
 
 to arrest, without process, a witness and hold him until lie- 
 gives bond. If the plaintiff therefore was arrested and im-
 
 126 FALSE IMPRISONMENT. 
 
 prisoned as a witness only until he gave bond for his release, 
 such arrest and imprisonment was unlawful, and is what the 
 law denominates false imprisonment. 
 
 From Sohn v. Patton, Franklin County Common Pleas, Evans, Judge. 
 
 No. 196. Same continued — Liability of several arresting 
 officers. — If the jury find from the evidence that the plaintiff 
 has been falsely imprisoned as alleged in his petition, and 
 >that he was thus falsely imprisoned by the joint acts of several 
 wrong-doers, then such wrong-doers are jointly and severally 
 liable for such joint act, and the plaintiff is under no obliga- 
 tion to sue all such wrong-doers, but he may at his election 
 proceed against any one or more of them. If you shall find 
 from the evidence that officers N. and B., and they alone, 
 falsely arrested and imprisoned the plaintiff at the time in 
 question, still if the evidence shall further show by a pre- 
 ponderance thereof that the defendant E. was then present 
 and acting in concert with the said N. and B., and was 
 wrongfully inciting them to arrest or imprison the plaintiff, 
 then the defendant E. is equally liable with the said N. and 
 B., and if N. and B. are guilty of falsely imprisoning the 
 plaintiff, then the defendant E. is equally guilty if he procured 
 them to so imprison the plaintiff, or if he aided or abetted 
 them in so doing. If you shall find from the evidence that 
 officers N. and B. , and they alone, arrested and imprisoned 
 the plaintiff, and that the defendant E. was present at the 
 time of said arrest and imprisonment, still if you shall find 
 that the said E. did not procure the plaintiff to be so arrested 
 or imprisoned, or that he did not in any way aid, abet, or 
 assist in the arrest and imprisonment, or advise or encourage 
 it, then he is not guilty. 
 
 From Sohn v. Patton, Franklin County Common Pleas, Evans, Judge. 
 
 No. 197. Same continued — Damages recoverable. — If 
 
 you shall find that the defendant is guilty as charged in the 
 petition, he is liable to the plaintiff for such damages as the 
 law denominates compensatory, although he may have acted 
 in good faith and in the honest belief that he was discharging 
 his duty as an officer ; but if you shall find that the defendant 
 arrested and imprisoned the plaintiff maliciously, then the 
 defendant is liable to the plaintiff for compensatory damages, 
 and you may, if you see proper, also assess further damages 
 as smart money, that is, exemplary damages. The compen- 
 satory damages are allowed to compensate the plaintiff for the 
 actual injury he has sustained. Exemplary damages are 
 given as smart money in the way of pecuniary punishment.
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 12/ 
 
 li you find for the plaintiff, you should allow him full com- 
 pensatory damages, that is, such as will fully and reasonably 
 compensate him for the injury he has sustained. The 
 elements for which compensatory damages may be allowed 
 include pain and suffering, if any, both mental and physical, 
 the loss of time, if any, in consequence of such false im- 
 prisonment, and injury, if any, to the reputation or social 
 position, as well as for shame and mortification caused bv the 
 false imprisonment; and also reasonable attorney's fees to the 
 plaintiff for the services of the attorneys in the prosecution. 
 And if you find that the defendant not only falsely, but that 
 he also maliciously, imprisoned the plaintiff, then you may 
 allow the plaintiff, in addition to compensatory damages, 
 such further sum by way of exemplary damages as you in 
 your judgment may think just and proper in view of all the 
 evidence and circumstances. 
 
 But if you should find from the evidence that the defendant 
 is guilty as charged, but that in making the arrest complained 
 of, and in the detention of the plaintiff, the defendant acted 
 in good faith and without malice, then such fact should be 
 considered by the jury and the damages awarded should be 
 confined to compensatory only. Exemplary damages should 
 not be allowed against an officer who makes or causes an 
 illegal arrest unless he acts in bad faith, or is guilty of some 
 oppression or misconduct. 
 
 From Sohn v. Patton, Franklin County Common Pleas, Evans, Judge. 
 
 FRAUD— FALSE REPRESENTATIONS, Etc. 
 
 No. 198. Fraud is never presumed. — "The court in- 
 structs the jury that fraud is never presumed, but must be 
 clearly proved, to entitle a party to relief on the ground that 
 it has been fraudulent; and the presumption of law is that 
 the business transat tions of every man are done in good faith 
 and for an honest purpose; and anyone who alleges that such' 
 acts are done in bad Faith, or for a dishonest purpose takes 
 upon himself the burden of showing, by specific acts and cir- 
 i umstam i 3 tending to prove fraud, that such acts were done 
 in bad faith. " 
 
 Fraud may 1"- presumed to the extent that the law presumes to intend 
 the natural results of his arts. jam. --Mil v McNally, 21 O. S. 295, 304. 
 Never presumed. Laki ■ Doud, 10 O (15,420; Bohart \ Vtkinson, 14 O. 
 228, 239; Landis v. Kelly, 27 0. S. 567, m Torts, 556, As to
 
 128 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 distinction between fraud in/act and fraud in law, see Thompson on Trials, 
 Sec. 1930, ct scq. Situations in which law presumes fraud. Id., Sec. 1936. 
 What is called fraud in fact, is always a question of fact for the jury. Id., 
 Sees. 1940, 1945. 
 
 No. 199. Remedies for fraud. — Fraud is never presumed 
 by law, but must be proven. But where there has been such 
 a fraud committed, as is charged in the petition, the law 
 gives the defrauded party two remedies. He may, at his 
 option, rescind the whole transaction and demand that the 
 parties be restored to their original relations, or he may 
 keep the property he has received and sue for the difference 
 between its real value and that amount which he has paid for 
 it. He has adopted, in this case, the latter course, and he 
 enters suit for that difference from what he says was the real 
 value of the property. 
 
 Calvin D. Wright, Judge, in Randolph v. Ammon, 51 O. S. 585. The 
 vendor may on discovery rescind the sale and sue for the value of the 
 property. Thurston v. Blanchard, 22 Pick. 18; 33 Am. Dec. 700 ; Moody v. 
 Blake, 117 Mass. 23; 19 Am. Rep. 394; or affirm the bargain and sue and 
 recover damages for the fraud. Cooley on Torts, 589, and cases. He must 
 restore goods or consideration. Curtiss v. Howell, 39 N. Y. 215 ; Gucken- 
 heimer v. Angewine, 81 N. Y. 394; Bartlett v. Drake, 100 Mass. 176; 97 
 Am. Dec. 92. As to remedy for fraud and deceit, see fully Kinkead's Code 
 Pleading, Sec. 606. 
 
 No. 200. Fraudulent representations explained and 
 defined — Fraud on old person — How proven — May be in- 
 ferred. — It is claimed that the fraudulent means used were 
 practiced in part upon the plaintiff and in part upon the 
 father, who, by reason of his great age and enfeebled condi- 
 tion of body and mind at the time, was unable to protect 
 himself against the alleged fraud and fraudulent practices of 
 the defendant, as alleged in the petition. On this subject I 
 say further to you, gentlemen, that fraud, though it is not 
 presumed in such a case as this, but must be proven, yet it 
 may be proven either by direct or circumstantial evidence; 
 that is, by the proof of certain collateral facts, from which 
 the existence of fraud may or should be inferred. It may be 
 drawn from collateral facts which are proven in the case. 
 One of the curious things about fraud is it can not be defined, 
 it has so many and varied shapes that no single definition 
 can cover them all ; and it is well that it is so, because, if it 
 had a legal definition, evil disposed persons would suit that 
 definition and go perpetrating fraud, and would also ascertain 
 the means to escape the consequences. Fraud, although it 
 is not presumed, yet it may be inferred from collateral facts 
 which are proven, and it may be then but an inference from 
 these collateral facts. 1 
 
 'John D. Nicholas, Judge, in Albright v. Thompson, 27 W. L. B. 247. 
 Judgment affirmed. See cases ante, No. 198.
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 1 29 
 
 We might go further and say : To constitute a cause of 
 action for fraudulent representations, there must be bad faith. 
 If the representations when made were believed to be true, 
 and the facts of the case were such as to justify the belief, 
 there is no fraud or deceit, and there can be no recovery. - 
 
 A representation is false and will furnish ground for re- 
 covery whether the party knew it to be false or not, if he had 
 no reason to believe it to be true when made, and it was done 
 with the intention of inducing the person to whom made to 
 act upon it, and the latter does so and sustains damage, 
 there ma} - be a recovery. 
 
 2 Tavlor v. Leith, 26 (). S. 42S. 
 .Etna Ins. Co. v. Reed, 33 O. S. 2S3. 
 
 No. 201. False representations without knowledge of 
 their truth or falsity. — "Although you may find from the 
 evidence that defendant did not know that said representa- 
 tions were untrue, yet, if you believe from the evidence that, 
 pending the negotiations for the purchase of said land, and 
 for the purpose of effecting the trade and inducing said agent 
 to make it, defendant made said representations as of his own 
 knowledge (and they were untrue), but did not know whether 
 they were true or false, and knew or had reason to believe 
 that said agent relied on said representations as true, and said 
 agent did so rely on them, and was thereby deceived and 
 induced to trade for or purchase said land, you will find for 
 the plaintiff.' 1 
 
 From Caldwell vs. Henry, 76 Mo. 254, 256. 
 
 "If the party (defendant made the representations not knowing 
 whether it was true or false, he can not In- considered as innocent ; since a 
 positive assertion <>f a fact i-. l>\ plain implication, an assertion of knowl- 
 edge concerning the fait. Hence, if a party if the defendant) have no 
 
 knowledge, he has asserted for true what he knew to he falsi-." Insurance 
 Co. v. Reed, 33 O. S low on fraud. 61 ; Stone v. Covell, 29 Mich. 
 
 359, and cases cited ; Woodfulf, 27 End. 4 ; Fisher v. Mellen, 103 Mass. 503 ; 
 n v. Ashton, 11 M. & W. 400; Nugent v. R. R. Co. 2 Disn. 302. .s Law- 
 BOu's R. & R., See. 2352, ami cases ; Jaggard on Torts, j). 565 (2d. ed. p. 582 . 
 
 No. 202. Ingredients of actionable fraud — Intention to 
 deceive — Puffing and commendation — Complainant must 
 be mislead. — "FIRST. Telling a bare, naked lie is not' 
 actionable in and of itself. < >ne of the ingredients of an 
 actionable fraud is, that the falsehood must be asserted with 
 the intention that another shall believe it true and act 
 upon it; and such intention is fradnlent, whether the person 
 
 rting the falsehood knew that it was false, or recklessly 
 stated it to be true, not knowing whether it was true or 
 false. ' ' ' 
 
 1 33 O. S. 283. See ante. No ?oi note.
 
 130 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 1 'Second. The party asserting the falsehood must, at 
 the time, intend to deceive. Fraud usually consists in 
 intention. " 
 
 "Third. The falsehood must be not only in something 
 material, but it must be in something in regard to which the 
 one party places a known trust and confidence in the other. 
 For if the falsehood be of such a nature that the party 
 deceived by it had no right to place reliance upon it, and ii ' 
 was his own folly, in consequence of his not exercising com 
 mon sense and ordinary discretion and sagacity, he can not 
 maintain an action for the injury. 2 Thus where a party, 
 upon making a purchase for himself and his partners, falsely 
 stated to the seller, to induce him to make the sale, that his 
 partners would not give more for the property than a certain 
 price, whereas, in truth, they expected and intended to give 
 more, it was held that it was the seller's own indiscretion to rely 
 upon such false assertions. The common language of purring 
 and commendation of articles, in relation to such things as are 
 equally open to the observation, examination and. skill of both 
 parties, and upon which it is understood that every buyer 
 exercises his own judgment, comes within the rule above laid 
 down; inasmuch as no one is supposed to be deceived by such 
 false assertions. A confidential relation must exist between 
 the parties." 
 
 "Fourth. The false statement must be made to, or it 
 must have been intended to operate upon, the party com- 
 plaining." 
 
 "Fifth. The party complaining of the deceit must be 
 misled by the falsehood ; for if he knows the assertion to be 
 false when made it can not be said to influence his conduct." 
 
 "Sixth. The falsehood must constitute an inducement 
 or motive to the act or omission of the party deceived. " 
 
 "Seventh. The party deceived must be misled to his 
 injury ; a damage must result from the party deceived acting 
 
 on the faith of the falsehood In general, when 
 
 the promisee is induced, by false and fraudulent representa- 
 tion, to enter into a contract that manifestly would not have 
 been made, except on the faith that such false representations 
 were true, and being false, affected substantially his rights, 
 he may repudiate such contract. s 
 
 2 See ante. No. 199. 
 
 3 Edwin T. Hamilton, Judge in Cleveland Rolling Mill Co. v. Joseph, 
 S. C. 2913, Cuyahoga Co. Quoting from Swan. 
 
 No. 203. Misrepresentation by concealment. — It is not 
 necessary that false representations be by express words, but
 
 FRAUD — FALSE REPRESEXTATIOXS, ETC. 131 
 
 they may be by mere concealment of material facts tinder 
 such circumstances as make it the duty of the party to speak. 
 Suppression of the truth where there is a duty to speak is 
 as much a legal wrong as a positive falsehood, and is action- 
 able. If, however, there is no «duty to disclose, failure to 
 tell the truth is not actionable fraud. 
 
 Jaggard on Torts, 575-77. Words not necessary. Cooler on Torts, 
 558, 565- 
 
 No. 204. Complainant must have relied upon represen- 
 tation — Damages must be shown — Representations to be sub- 
 stantially proven. — To entitle the plaintiff to recover in this 
 case, she must prove that the defendant made representations 
 to her, and to the father; that she and the father relied upon 
 them ; that whether, tinder the circumstances existing at the 
 time, she had a right to rely upon those made to her. She 
 must further prove such misrepresentations were false when 
 made, and known to be so when made. She must further 
 prove she was damaged, and pecuniarily injured thereby. If 
 she proves these things, she will be entitled to recover; other- 
 wise she will not. Look into the evidence then and deter- 
 mine — first, what representations he did in fact make. What 
 representations to herself, and what to her father, either ver- 
 bally or in writing, or in both. If none were made, that 
 would end the case. But, if any were made, you must deter- 
 mine from the evidence what the)' were. It is not necessary 
 you should find that he made each and all of the representa- 
 tions set forth in the petition, exactly as set forth therein, 
 but it will be sufficient if you find he made substantially 
 these representations. 
 
 Must have right to rely on t//< m. 
 
 If you find lie made substantially such representations as 
 alleged, you will then inquire whether she relied upon them. 
 And if you find she did. you will then inquire whether, 
 under the circumstances then existing, she had a right t<> 
 rely on them; 1 and here I will say to you, it you find she 
 resided in at tile time, and he and the father resided 
 
 here, and correspondence was opened between them, and he 
 wrote to h<-r in a brotherly spirit, and intimated a disposition 
 to protect her interests in the premises, then she had a right 
 to rely on them. If you find she had no right to rely 
 on the representations, she then would have no right to 
 recover. lint if you find she had a right to rely <>u them, 
 you will inquire, were the representations so made, false, and 
 
 'See Cooley ou Torts, 577.
 
 I32 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 if they were not, she can not recover, because she couldn't 
 recover for fraudulent representations. If the representations 
 were true, if they were not false, she can not recover. If 
 they were false, you will then inquire, were she and the 
 father deceived by them. If they were not, she can not 
 recover. But if they were, and you so find, you will inquire, 
 was she damaged then, or did she suffer pecuniary injury 
 from these representations. If not, she can not recover. But 
 if she did, and you so determine, she would be entitled to 
 recover damages for such injuries as she has shown by the 
 evidence, she has sustained thereby. 2 
 
 2 John D. Nicholas, Judge, in Albright v. Thompson, 27 W. L,. B. 247. 
 Judgment affirmed. 
 
 There is no liability if buyer relied on his own knowledge. Wilkin- 
 son v. Root, W. 686. A representation of what will or will not be per- 
 mitted to be done, is one on which the party to whom it is made has no 
 right to rely; and if he does so rely, it is his folly, and he can not ask the 
 law to relieve him from the consequences. The truth or falsehood of such 
 a representation can be tested by ordinary vigilance and attention. It is 
 an opinion in regard to the law, and is always understood as such. Fish 
 v. Cleland, 33 111. 243 ; 33 O. S. 293. 
 
 Representations must have been acted upon. Cooley on Torts, 587. 
 
 No. 205. Must be material. — "In the first place, it is 
 obvious that the fraud must be material to the contract or 
 transaction which is to be avoided because of it ; for if it relates 
 to another matter, or to this only in a trivial and unimpor- 
 tant way, it affords no ground for the action of the court. It 
 must therefore relate distinctly and directly to this contract, 
 and it must affect its very essence and substance. But, as 
 before, we must say that there is no positive standard by 
 which to determine whether the fraud be thus material or 
 not. Nor can we give a better rule for deciding the question 
 than this : if the fraud be such that had it not been practiced 
 the contract would not have been made, or the transaction 
 completed, then it is material to it ; but if it be shown or 
 made probable that the same thing w r ould have been done by 
 the parties in the same way if the fraud had not been prac- 
 ticed it can not be deemed material. Whether the fraud be 
 material or otherwise seems to be, on the decided weight of 
 authority, a question for the jury and not a question of law; 
 but it is obvious that in many cases the jury can not answer 
 this question without instructions from the court." 
 
 Edwin T. Hamilton, Judge, in The Cleveland Rolling Mill Co. v. Joseph, 
 et al. S. C. No. 291 ^, Cuyahoga Countv- Quoted from 2 Parsons on Con- 
 tracts, p. 769 (5th Ed A Must be material?' Ins. Co. v. Reed, 33 O. S. 283; 
 Connersville v. Wadleigh, 41 Am. Dec. 214. It must be a representation 
 giving occasion to the contract. Adams v. Schiffer, 11 Col. 15; 7 Am. St. 
 R. 202; Pulsford v. Richards, 17 Beav. 96. See Cooley on Torts, 5S0. Thev 
 need not form the sole inducement ; it is enough that they have formed 
 a material inducement. Matthews v. Bliss, 22 Pick. 48; Safford v. Grout, 
 120 Mass. 20; Fishback v. Miller, 15 Nev. 42S; Cooley, Torts, 5S7.
 
 FRAUD — FALSE REPRESEXTATIOXS, ETC. 1 33 
 
 No. 206. Contract must be rescinded and tender made — 
 Money or thing must be returned — Tender back of stock. — 
 If the plaintiff recovers, it is on the ground that the contract 
 is set aside for fraud ; but when a party wants to have that 
 done, and to have his money returned,' he must also return 
 what he received from the other party for his money. In 
 order for the plaintiff to recover in this case, even if he has 
 made out the fraud he claims, it was incumbent on him to 
 return or tender back to the company the certificate of stock 
 he had received. If he did not do this, he can not recover, 
 and to make such a tender sufficient it was necessary to pro- 
 duce the certificate and offer it to the representative of the 
 company, unless the production and offer of it was waived by 
 such representative. 
 
 Gentlemen : The plaintiff asks me to charge you on the 
 subject of tendering back the certificate of stock referred to, 
 before this action was commenced, and as to what would 
 amount to a proper tender, and I say to you that if at -Mr. 
 G. 's office, H. was present as the representative of the de- 
 fendant, and Mr. G., as the attorney of the plaintiff, told H. 
 the reasons why M. desired the cancellation of his stock, and 
 demanded that the company take back the stock and return M. 
 his money, and if Mr. G. had the certificate of stock there 
 ready and willing to return it, but was deterred from making 
 an actual tender of the certificate, because H. denied the 
 reasons and refused to take back the stock or entertain the 
 proposition, then it was not necessary for the plaintiff to 
 make such actual tender of the certificate by formally pro- 
 ducing it and tendering it to H. 
 
 From The Cleveland Crucible- Steel Co. v. Murdock (S. C"), Cuyahoga 
 County. 
 
 No. 207. Fraudulent purchase of goods — Complete 
 charge as to — What constitutes fraud — Generally. — A false- 
 hood, to amount to a legal fraud, must be accompanied by 
 the following circumstances: rst. The party asserting the 
 
 falsehood must know at the time he makes the assertion that 
 it is a falsehood. Hence, when a person asserts a thing which 
 he believes to be true, but which in fact is false, he is not 
 liable thenfor by reason of the fact that it is false, though 
 another may be injured and deceived thereby, though if he 
 state that to be true about which he has no knowledge and 
 no reason to believe is true, and it is false in fact, then we 
 may well question his belief in its truth, and it may be 
 equivalent to stating that which he knows to be false. 2d. 
 The party asserting the falsehood must at the time intend to
 
 134 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 deceive. 3d. The falsehood must be not only in something 
 material, but it must be in something in regard to which one 
 party places a known trust and confidence in the other. 
 4th. The false statement must be made to or it must have 
 been intended to operate upon the party complaining. 5th. 
 The party complaining of the deceit must have been misled 
 by the falsehood. 6th. The falsehood must constitute an 
 inducement or motive to the act of the party deceived. 7th. 
 The party deceived must be misled to his injury. A damage 
 must result from the party deceived acting on the faith of the 
 falsehood. 
 
 From Wilmot v. Lyon, 49 O. S. 296. " The charge given was a correct 
 statement of the law applicable to the case and is approved - " Id. 
 
 No. 208. Same continued — Fraudulent purchase of 
 goods — Vendor may abide by or rescind contract. — The 
 
 principal question, then, which will claim your attention is, 
 was the purchase of the goods in controversy in this action 
 fraudulent? If it was, then these plaintiffs had the right, 
 on the discovery of the fraud, either to abide by the contract 
 of sale or to treat the contract as wholly void and of no effect 
 — that is, as if it had never been made, so far as the parties 
 thereto and this defendant are concerned — provided they acted 
 promptly upon the discovery of the fraud ; and in the latter 
 case, on election by them so to do, plaintiffs had the right to 
 avoid the contract and pursue and take or replevin their 
 goods. If they have done this and there was fraud in the 
 sale, then they are entitled to your verdict. But if there was 
 no fraud in this sale, then the company was the sole and 
 complete owner of these goods on the completion of the sale, 
 without the power of revocation on the part of these plain- 
 tiffs, and the defendant is entitled to your verdict. 
 
 From Wilmot v. Lyon, 49 O. S. 296, where the charge was expressly 
 approved. 
 
 No. 209. Liability of corporation for fraudulent repre- 
 sentations of agents. — A corporation necessarily acts through 
 its agents and is as much, and no more, bound by the false 
 and fraudulent representations of its authorized agents as an 
 individual; and both are bound by the authorized acts of his 
 or its agents. If the directors of a company, acting as a body 
 in the course of managing its affairs, or in the course of busi- 
 ness which it is their duty to transact, induce a man, by false 
 and fraudulent representations, to enter into a contract for 
 the benefit of the company, the company is bound. But a 
 company or corporation is not bound by the statement of one
 
 FRAUD — FALSE REPRESEXTATIOXS, ETC. 135 
 
 of its stockholders, or of one of its directors or officers, unless 
 he also was an agent of the corporation and authorized to 
 make statements in its behalf. 
 
 From Wilmot v. Lyon, 49 O. S. 296, approving the charge. 
 
 No. 210. • Liability of principal for acts of agent. — But 
 
 no man can adopt and take the benefit of a contract entered 
 into by his agent, and repudiate the fraud on which the con- 
 tract was based. If the agent at the time of the contract 
 makes any representation touching the subject matter, it is 
 the representation of his principal. The principal can not 
 separate the contract itself from that by which it was induced ; 
 he must adopt the whole contract, including the statements 
 or representations which induced it, or must repudiate the 
 contract altogether. 
 
 From Wilmot v. Lyon, 49 O. S. 296. Charge approved. 
 
 No. 2ii. Same continued — Fraudulent representations 
 made in purchase of goods for principal — Liability. — If the 
 principal sends his agent into the market to buy goods for 
 him on the principal's credit, I think the agent may, at least 
 in the absence of instructions, be fairly held to be authorized 
 to make statements as to the credit and financial condition of 
 his principal. True, he would not in such case be authorized 
 to make any but truthful statements. Vet, being authorized 
 to represent his principal's credit and financial standing, if 
 he does make false and fraudulent statements as to material 
 facts to the seller, and thereby induces a person who right- 
 fully relies upon them to part with his goods by a sale to the 
 principal, that principal can not honestly or legally retain 
 the goods thus obtained by fraud from the seller, if the seller, 
 on discovery of the fraud, promptly repudiates the contract 
 of sale and demands a return of the goods, the seller at the 
 same time returning or offering to return anything which he 
 may have received in exchange therefor. 
 
 Prom Wilmot v. Lyon, 19 O. S. 296. Charge approved. 
 
 No. 212. Fraudulent concealment in the sale of goods. — 
 "A contracl for the purchase of goods on credit, made with 
 intent on the part of the purchaser not to pay for them is 
 fraudulent ; and if the purchaser has no reasonable expecta- 
 tion of being able to pay, it is equivalent to an intention not 
 to pay. But where the purchaser intends to paw and has 
 tations of being able to do so, the- contracl 
 is nol fraudulent, although the purchaser knows himself to 
 be insolvent, and does QOt disclose it to the vendor who is 
 ignorant of the fact. "
 
 136 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 If, when the agreement of purchase was made, there was 
 a fraudulent concealment, within the definition already given, 
 on the part of the company of their insolvency, knowing 
 themselves to be insolvent, it would still be fraudulent. 
 When a party thus enters into negotiations for the purchase of 
 goods, and offers to buy or is content to buy upon applica- 
 tion, and gives his promise to pay, in my judgment, whether 
 he says anything about it or not, it is understood by both 
 parties that he has a reasonable expectation of being able to 
 pay — whether he says so in words or not. 
 
 Whether, therefore, a contract of purchase, where the 
 purchaser fails to disclose his known insolvency is fraudulent 
 or not depends on the intention of the purchaser ; and whether 
 that intention was to pay or not to pay is a question of fact 
 and not a question of law. Being a question of fact, it is 
 for your solution from the evidence in the case. 
 
 In the solution of this question, though it be one of fact, 
 it is true, however, that certain presumptions arise which are 
 entitled to consideration and force. Thus, while it may be 
 said that fraud must be proved and will not be presumed — and 
 I may say here that fraud is not to be presumed — it is a sub- 
 ject of proof. The proof need not be, however, positive of 
 declared fraud, but it must be gathered from all the circum- 
 stances in the case. Thus, while it may be said that fraud 
 must be proved and will not be presumed, there is a pre- 
 sumption that every reasonable person anticipates and intends 
 the ordinary and probable consequences of known causes and 
 conditions. Hence, if a purchaser of goods has knowledge 
 of his own insolvency, and of his inability to pay for them, 
 his intention not to pay should be presumed. I would go a 
 step farther and hold that an insolvent purchaser, without 
 reasonable expectations of ability to pay, should be presumed 
 to intend not to pay. Indeed, an intention not to pay might 
 be inferred from the mere fact that the purchaser had undis- 
 closed knowledge of his gross insolvency ; but, in such case, 
 the inference may be rebutted by other facts and circum- 
 stances. 
 
 It is claimed that in good morals a purchaser knowing 
 himself to be insolvent should not accept credit from one 
 ignorant of the fact. Whether this proposition be true or 
 not it is enough to say that the law, in its practical morality, 
 does not afford a remedy for the violation of every moral 
 duty. W T hile, therefore, a purchase of goods by an insolvent 
 vendee who conceals his insolvency with intent to injure the 
 vendor is fraudulent and voidable, yet a purchase under like 
 circumstances, save only that such intent is absent, is not in 
 law. fraudulent.
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 1 37 
 
 The simple failure to disclose the fact (of insolvency), 
 however, is not equivalent to its concealment. The latter 
 implies a purpose — a design ; the former does not. If, then, 
 such knowledge on the part of the purchaser be necessary to 
 make out a fraud, it is because it becomes the predicate of an 
 intent — and intent to injure. 
 
 Now, gentlemen, what do you say upon all the facts of 
 this case? Was this company insolvent at the time of this 
 purchase? Did they know it, and did they conceal? Having 
 ,no reasonable expectation that they would be able to pay for 
 the goods, did they conceal the fact of that insolvency? If 
 they did, then I say to you, whether they said anything at 
 the time or not, did any other act of concealment or artifice 
 or not, the simple concealment of those facts, that they were 
 insolvent and that they did not intend to pay, is enough to 
 make an actionable case, and to vitiate and avoid the sale. 
 If they had an honest belief in their solvency, an honest belief 
 that they could turn these goods and pay for them, and ex- 
 pected to do it, then, whether insolvent or not, the sale was 
 not a void one. 
 
 As given by Hamilton, J., in Wilmot v. Lyon, 49 O. S. 296, and founded 
 on Talcott v. Henderson, 31 O. S. 162. The charge was vigorously at- 
 tacked, but the Supreme Court said that as gi\en it was a correct statement 
 of the law applicable to the case. As to proof of intent see Oswego Starch 
 Factory v. Landrum, 27 Iowa 573. A man intends the natural results of 
 his acts. Arnold v. Maynard, 2 Story 353. For cases holding contrary to 
 the charge, but which were considered by the Supreme Court both in the 
 Talcott and Wilmot cases and not followed, see Nichols v. Penner, 18 N. V. 
 2 95" 3°°: Lupin v. Marie, 6 Wend. 77; Convers v. Funis, 2 Mass. 236; 
 Mitchell v. Worden, 20 Barb. 253; Smith v. Smith, Murphy & C<>., 21 Penn. 
 367: Hennequin v. Naylor, 24 N. V. 139; Bidault v. Wales, 20 Mo. 546; 
 11 v. Bradlee, 9 Gill and John, 220-276. 
 
 No. 213. Liability of mercantile agency for false re- 
 ports or representations as to financial standing. — I also say 
 
 to you, as requested, that if the statement given to the 
 
 Agency was substantially true, as claimed by defendants, and 
 it was the sole r< I ition which came to the plaintiffs, 
 
 and that only through the Agency, then, in so far as the plain- 
 tiffs' claim depends upon alleged fraudulent oral or written 
 representation-, no recovery can be had by plaintiffs. But if 
 you find the statement was made to the Agency, and that it 
 was false in whole or in part, then inquire whether it was 
 given with the intent on the part of the company to have it 
 
 1 as a continuing representation among the p i the 
 
 Agency for the purpo ■ of obtaining credit for the - 
 by showing its financial standing until it should be otherwise 
 changed or modified by the company. And to determine this, 
 look to the character of the statements themselves: see
 
 15 s FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 whether the facts detailed were liable to change by lapse of 
 time, or were they of a permanent nature? What was the 
 custom and usage of the Agency in treating them as continu- 
 ing or otherwise? And what knowledge of such custom had 
 the company? What other reports, if any, did the company 
 make to the Agency covering the facts of the original state- 
 ments of 1880? And if you shall find it was not intended or 
 designed to be a continuing statement, then I say to you, 
 whether true or false, it was too remote in point of time to 
 authorize plaintiffs or anyone else, nearly four years after, to 
 rely upon its statements, and can not be the foundation of 
 recovery in this case. But if you find it was intended and 
 designed by the company as a continuing representation, and 
 was in fact so used, to the knowledge of the company, then 
 apply to it the rules of law already given, and the facts as 
 you shall find them to be, and determine whether the repre- 
 sentations therein contained w 7 ere so used as to render this 
 sale fraudulent. 
 
 No. 214. Replevin of property by vendor from assignee 
 of vendee on ground that vendee was insolvent and did not 
 intend to pay for same. — The questions for your consider- 
 ation and determination are: 1. W T as plaintiff at the time of 
 the commencement of this action the owner of, and entitled 
 to the possession of the property described in the petition or 
 any part thereof ? 2. W T hat was the value of said property 
 at the time of the commencement of this action? 3. Did the 
 defendant, H., assignee, unlawfully detain from plaintiff the 
 possession of said property or any part of it? 4. If he did so 
 unlawfully detain said property, how much, if anything, 
 were the plaintiff's damages by reason of such unlawful 
 detention. 
 
 In determining the questions in this case it is important 
 for you to consider the financial condition of W. at the time 
 of the giving of the order to the plaintiffs in this case, for the 
 shipment of the goods described in the amended petition 
 which were shipped by the plaintiffs to the said W. on 
 
 and after , 18 — , and his financial condition at the time 
 
 of the shipping and receipt of the goods His 
 
 financial condition before and after the date of the orders and 
 the shipment of the goods is not conclusive as to his financial 
 condition at the time of giving the order before shipping the 
 goods, but evidence upon that point may be considered for 
 the purpose of determining his condition at the time of giving 
 the order, and at the time of the shipping and the receipt of 
 the goods ; and in this reference is made to the goods that
 
 FRAUD — FALSE REPRESENTATION'S, ETC. 139 
 
 were shipped on and after , 18 — . On , 18 — , and 
 
 with the dates of orders and shipments made thereafter, did 
 W. have sufficient property to pay his debts in full? And if 
 not, had he sufficient property so that he could pay his debts 
 as they became due and payable? These are important 
 matters for your consideration in determining whether or not 
 W. was solvent or insolvent at the time of giving the order 
 for said goods and at the time of receiving the same. 
 
 If you find from the evidence that W. at the time of 
 giving the order for the goods that were shipped and received 
 
 on and after , 18 — , had sufficient property to pay all 
 
 his debts in full, then I say to you that there would be 
 no fraud in ordering or purchasing other goods. But if 
 you find that he had not sufficient property to pay all of 
 his debts in full, then it will be important for you to con- 
 sider and determine whether he was able to pay his debts and 
 liabilities as they matured or became payable. Again, was 
 W. in such a financial condition as to be able to pay, or have: 
 a reasonable expectation that he could pay for the goods pur- 
 chased of the plaintiffs on or after , 18 — , when the bills 
 
 therefor became due and payable? 
 
 You are instructed, as matter of law, that the intention on 
 the part of the purchaser of goods not to pay for them, 
 existing at the time of purchase and concealed from the 
 vendor, is such fraud as will vitiate the contract. 
 
 But on the other hand where no such fraudulent intent 
 exists, the mere fact that the purchaser has knowledge that 
 his debts exceed his assets, though the fact be unknown and 
 undisclosed to the vendor, will not vitiate the purchase. l 
 
 Therefore, a contract of purchase where the purchaser 
 fails to disclose his known insolvency, whether it is fraudu- 
 lent or not, depends on the intention of the purchaser, and 
 whether that intention was to pay or not is a question of fact 
 for the jury to determine. While it may be said that fraud 
 must be proved, and will not be presumed, there is a presump- 
 tion that every reasonable person anticipates and intends the 
 ordinary and probable consequences of known causes and 
 conditions. Hence, if the purchaser of goods has kuowl- 
 edgeof his own insolvency, and of his inability to pay for 
 them, his intention not to pay may be- presumed. An insol- 
 
 ' ■ A contract for the purchase of goods on 1 redit, made with the intenl 
 on the pari ol the purchase! nol to paj foi th< m, is fraudulent . and if the 
 purchasi r ba bl( 1 icpe< tation ol being able to pay, it is equr\ 
 
 alent to an intention not to pay, But where the purchaser intends to pay 
 and has reasonable expe< tations of being able to do bo, the contract is nol 
 fraudulent, although the purchaser knows himseli to be insolvent and 
 dors not disclose it to the vendor, who is ignorant of the fact." Talcott 
 v. Henderson, \i O. S. 162; Wilmot v. Lyon, 49 O. S. 296. 
 
 10
 
 I40 FRAUD— -FALSE REPRESENTATIONS, ETC. 
 
 vent purchaser without reasonable expectation of ability 
 to pay may be presumed to intend not to pay. 
 
 Applying these principles of law to this case, gentlemen, 
 at the time the said W. gave the order for the purchase of 
 goods from plaintiffs, did he in fact intend to pay for them, 
 or from his financial condition had he a reasonable expec- 
 tation of his ability to pay for said goods when the bills 
 therefor became due and payable? If you find that the said 
 W. did not in fact intend to pay for the goods, or from his 
 knowledge of his own financial condition he had no reason- 
 able expectation to pay for them, then such purchase was 
 fraudulent, and the title to the goods would not pass to the 
 said W. as between him and the plaintiff. But if you find 
 that he did expect to pay for the goods, and from the knowl- 
 edge of his financial condition he did in fact have reasonable 
 expectation that he could pay for them when the bills there- 
 for became due and payable, then he would not be guilty of 
 fraud, and the title would pass. 
 
 In determining the question as to whether or not the said 
 W. had a reasonable expectation of his ability to pay for the 
 goods when they became due and payable, it would be proper 
 for you to consider whether a man of ordinary business abil- 
 ity, situated as he was, could have reasonably expected to 
 meet the obligations as they became due. It would be 
 proper for you to consider whether the said W. on and after 
 
 , 18 — , at the time of ordering and receiving said 
 
 goods, honestly believed and expected, and from his financial 
 condition had reasonable grounds for believing that he could 
 pay for the bills as they became due and payable. The said 
 W. was permitted to testify as to what his intentions were 
 when he gave the order. This evidence was permitted to be 
 given to you for your consideration in determining what his 
 real intentions were, but it is not conclusive; you should 
 consider it in connection with all the other evidence, and 
 from it all say whether the said W. at the time he gave the 
 order intended to pay for the goods, or had a reasonable 
 expectation of being able to pay for them. 2 
 
 2 Nye, J., in Childs, Groof & Co. v. Harvey Musser, Summit Co. Com. PI. 
 
 No. 215. Effect of mortgage given upon goods fraudu- 
 lently bought. — Where a person fraudulently purchases goods 
 and executes and delivers to a third person a chattel mortgage 
 upon the property which he so acquires, the sole and only 
 consideration of which mortgage is a debt then existing, and 
 that no new consideration was paid at the time of the execu- 
 tion of said mortgage, such pre-existing debt is not such con-
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 141 
 
 sideration as would constitute such mortgagee a bona fide pur- 
 chaser of said goods. If the only consideration for the making 
 of such mortgage was a pre-existing debt, then such mortgagee 
 would acquire no greater title and right in the property so 
 procured by fraud than would a fraudulent purchaser. 
 
 Modeled from charge given by Nye, J., in Childs, Groof & Co. v. Musser. 
 
 No. 216. Chattel mortgagee may prosecute action for 
 replevin — When mortgage attacked as fraudulent. — You are 
 instructed that as matter of law ''where a mortgagor of per- 
 sonal property by the terms of the mortgage retains the 
 possession of the property until the condition is broken, but 
 with the express stipulation that if the mortgagor should 
 commit any waste or nuisance, or attempts to secret or remove 
 the property, the mortgagee should be authorized to take 
 immediate possession thereof ; and before the condition broken, 
 executions were levied upon the property at the suit of other 
 creditors of the mortgagor under which said officer was about 
 to remove said property from the possession of the mortgagor 
 and sell the same to pay said executions, the mortgagee might 
 obtain replevin for the recovery of said personal property. ' ' ' 
 Applying these principles to this case, if you find that the 
 
 plaintiff loaned to the said B. the sum of $ , and to secure 
 
 the payment thereof the said B. executed and delivered to the 
 plaintiff in good faith a chattel mortgage on the said property 
 in order to secure said money, and that the said mortgage had 
 been filed and refiled in accordance with the law, so as to 
 create said mortgage a valid lien upon said property at the 
 time of the commencement of this action; and you further 
 find by the terms of said mortgage that said B. retained the 
 possession of the property until condition broken, or until 
 the debt became due, but with an express stipulation that if 
 the said mortgagor committed any waste or any nuisance, or 
 attempted to secrete or remove the property, the mortgagee, 
 B., should be authorized to take immediate possession thereof; 
 and before the said debt became due the defendant, E., as 
 sheriff of said county, levied executions upon the said prop- 
 erty at the suit of other creditors of the said B., under which 
 the said defendant was aboul to remove said property from 
 the p id I'... and proceed to sell the same and 
 
 pay said executions, the said plaintiff, B., would have the 
 right to maintain replevin for the recovery of said personal 
 property. 5 
 
 • Vshley v. Wrigb.1 291. 
 
 Ensign, Lorain Co. Com. H
 
 142 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 No. 217. Transfer of property by one in debt. — You are 
 instructed that if a person who is in debt transfers his prop- 
 erty to another, without consideration, or good and valuable 
 consideration, without retaining sufficient property to pay his 
 debts, such transfer would be fraudulent as against the 
 creditors of the person so transfering said property. But you 
 are instructed that when a person is in debt and his property 
 is encumbered by mortgages or other liens, he has the right 
 to borrow money and give security on any or all of his prop- 
 erty to secure the payment of the money so borrowed, pro- 
 viding such transaction is a bona fide transaction and done in 
 good faith. 
 
 Nye, J., in Beebe v. Ensign, Lorain Co. Com. Pleas. 
 
 No. 218. Damages for false representations in sale of 
 horses — Injuries resulting therefrom — Knowledge and as- 
 sumption of risks. — (The action from which the following 
 instructions are taken was for the recovery of damages result- 
 ing from fraudulent representations claimed to have been 
 made by the defendant to induce the plaintiff to buy a pair of 
 carriage horses, in which it is claimed and alleged that the 
 horses were vicious and unmanageable, and dangerous to drive ; 
 that they ran away while plaintiff was driving them in a 
 reasonable manner, breaking the carriage and harness, and 
 throwing the plaintiff out and injuring him so that he lost 
 his leg. The case is founded upon false representations, and 
 yet there are questions of negligence, or rather of contribu- 
 tory negligence, on part of plaintiff involved in it.) 
 
 " It must appear by a preponderance of the evidence that 
 the alleged injuries of the plaintiff were caused by the wrong- 
 ful acts of the defendant set out in the petition, whereby the 
 plaintiff sustained his injuries, before you can say that he 
 ought to recover. If you find that the plaintiff's case is not 
 made out by such preponderance of the evidence, you need 
 go no further, but find a verdict for the defendant ; or if you 
 are satisfied from the preponderance of the evidence that the 
 injuries to the plaintiff complained of would not have occurred 
 but for the negligence or mismanagement of the plaintiff at 
 the time the injuries occurred, or if you find from such pre- 
 ponderance of the evidence that he had knowledge of the 
 vicious and ungovernable character of the horses, and, not- 
 withstanding that knowledge, negligently and unreasonably 
 exposed himself to the hazards by which he was injured, by 
 driving them when he ought to have known that it was 
 dangerous and imprudent to do so, then he would be treated 
 in law as having taken upon himself risks arising therefrom,
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 143 
 
 and can not recover for the alleged injuries to his person, 
 vehicle, or harness. For the law requires of the complaining 
 party that he should act with reasonable care and prudence 
 under the circumstances in regard to hazards known to him, 
 or that reasonably ought to be known to him, and if he acts 
 otherwise voluntarily, he can not charge the consequences of 
 his folly to another. The rule of law is that when one volun- 
 tarily encounters a known hazard, he takes upon himself the 
 risks resulting therefrom. So, we say to you, if but for his 
 folly, the injuries complained of would not have happened, 
 he can not recover. It is a rule of law as well as a sound 
 conclusion of common sense and justice, that a person can 
 not hold another for the consequences of his own folly. 
 
 Perhaps the rule would be better stated as follows : The 
 plaintiff can not recover any compensation for any damages 
 which he might reasonably have avoided by the use of ordi- 
 nary care and prudence under the circumstances. So, if he 
 voluntarily exposed himself to hazards he ought not to have 
 encountered under the circumstances, which w r ere known to 
 him, and he thereby received injuries, he can not recover 
 therefor. 
 
 So, if his injuries were the result of mere accident, he can 
 not recover therefor. But in the absence of knowledge to 
 the contrary, if the plaintiff acted in good faith, he would be 
 entitled to believe that the defendant made truthful represen- 
 tations to him respecting the horses so sold to him, and in 
 using them in a reasonable and prudent manner he would not 
 be exposed to the hazards of using vicious and ungovernable 
 horses." 
 
 Voris, J., in Sampsell v. Thurman, Lorain Co. Com. Pleas. 
 
 No. 219. Same continued — Vendor's knowledge of de- 
 fects — Duty to give notice. — It is a genera! rule that when- 
 ever a vendor has, or reasonably ought to have had notice of 
 the defects in the horses calculated to do serious harm, of which 
 the vendee has no notice, and neglects to notify the vendee, 
 he becomes liable to him for damages produced by such 
 neglect. 
 
 The fact thai the plaintiff gave no notice tO the defendant . 
 
 of the first runaway, it' you so find the fact to be, or of anyj 
 other fact, on the same coming to his knowledge, it" any, 
 ■ ting the alleged vicious and ungovernable charactei of 
 the hoi :< . ma^ ! " considered byyou in determining whether 
 he in good faith relied upon the representations of the defend- 
 ant (after thefirsl runaway) or took upon himself voluntarily 
 the risks of continuing to drive them afterwards.
 
 144 FRAUD — FALSE REPRESENTATIONS. ETC. 
 
 But the court says to you that the failure to give such 
 notice of itself does not deprive the plaintiff of the right to 
 recover. 
 
 "If you should find from the preponderance of the evidence 
 that the defendants made the representations set out in the 
 petition to induce the plaintiff to purchase the horses, that, 
 by reason thereof and relying upon them, the plaintiff, not 
 knowing anything to the contrary, purchased the horses, and 
 you further find that the horses were unsound and vicious, 
 restive, ungovernable, or worthless in harness when purchased, 
 and that the plaintiff sustained damages thereby, then you 
 should find for the plaintiff, though you should find that the 
 defendant did not know the vicious character of the horses 
 and did not intend to deceive and defraud the plaintiff." 
 
 Voris, J., in Sampsell v. Thurman, Lorain Co. Com. Pleas. 
 
 No. 220. Same continued — Measure of damages. — The 
 
 plaintiff can not recover for defects in the horses other than 
 those alleged in the petition. But it will be sufficient if you 
 find that some of them existed which constituted a breach of 
 the contract and caused the injuries complained of. In which 
 case, and should you further find that the defendants did not 
 know the vicious character of the horses, and did not intend 
 to deceive the plaintiff, but acted in good faith in making the 
 representations, then the measure of damages would be the 
 difference between the actual value of the horses when sold 
 and what the value would have been had they been as repre- 
 sented to be by the defendant, to which difference you may 
 add interest from the day of the sale to the first day of this 
 term, the sum of which difference and interest w T ill constitute 
 the amount of your verdict. 
 
 But if you should find that the defendants made said 
 representations not in good faith, but with intent to deceive 
 and defraud the plaintiff, you may add to said sum so as 
 aforesaid found such further sum as, in your judgment, guided 
 by the evidence and these instructions, as will compensate 
 the plaintiff for the injuries caused by the wrongful acts of 
 the defendants as herein defined and limited. This may in- 
 clude compensation for impaired health, mental anguish, 
 physical suffering, expenses incurred for surgical attendance 
 and nursing, bodily injury, loss of time, considering either 
 constant or probable duration, its effect upon his health and 
 physical powers, his incapacity for labor, the pursuit of his 
 profession, or other business, as you find the facts to be, upon 
 the evidence. 
 
 As a guide, you are instructed that the legal damages that
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 145 
 
 follow the wrongs complained of are only such as according 
 to common experience and the usual course of events might 
 be reasonably anticipated (23 Ohio St. 632). If in such in- 
 jur}' to his property that you may find from the evidence was 
 caused or sustained by reason of want of exercise of reasonable 
 care or prudence on the part of the plaintiff, and which he 
 would have avoided had he conducted himself with reasonable 
 care and prudence, he can not recover. 
 
 Voris, J., in Sampsell v. Thurman, Lorain Co. Com. Pleas. 
 
 No. 221. Fraudulent representations by vendor — Fraud 
 not presumed — Nature of, to be actionable. — Whether in this 
 case the defendants made the representations alleged, and 
 whether they were false, and, if they did make them, whether 
 they were made for the fraudulent purpose alleged, are ques- 
 tions exclusively for your determination from the evidence 
 submitted to you; and in determining these, you are admon- 
 ished that fraud is not to be presumed by you, except as 
 established by the evidence. 
 
 .Material representations made by a vendor of matters 
 assumed by him to be within his personal knowledge are 
 false and fraudulent in a legal sense if made with the intent 
 to deceive the purchaser, if they are untrue and are relied 
 upon by the vendee in making the purchase, and he is 
 damaged thereby, although the seller did not know them to 
 be untrue; or if he recklessly makes a false representation 
 of truth of a matter of which he knows nothing, for the 
 fraudulent purpose of inducing the purchaser to enter into a 
 contract, and the purchaser enters into it relying upon the 
 same, the vendor is as much liable as if he knew the state- 
 ment to be false at the time he made it. 
 
 Voris, J., in Sampsell v. Thurman, Lorain Co. Coin. Pleas. 
 
 No. 222. Fraud in sale of land — Preventing examination 
 of the land. — "If the jury believe from the evidence in the 
 cause that plaintiff, at or before the sale of the land in ques- 
 tion to the defendant, knowing said land to Ire subject 
 to overflow, used any artifice to mislead the mind of 
 the defendant and throw him off his guard, and to prevent 
 him from making as careful examination of the land in ques- 
 tion as a man of ordinary prudence would otherwise have 
 made; and that defendant was thereby misled and thrown off 
 his guard, and prevented from examining said land, and in 
 consequence thereof, was and remained ignorant of the fact 
 
 that said land was subject to overflow up to the time when he 
 bought said land, then, and in that case, the jury should find
 
 146 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 for the defendant and assess his damages according to the 
 measure heretofore stated by the court." 
 From McFarland v. Carver, 34 Mo. 195, 196. 
 
 No. 223. Fraudulent representations as to location, etc., 
 of city lot. — "If you believe from the evidence that, at the 
 time plaintiff purchased said lot, said defendant knew that it 
 was intended as a residence lot; and if you further believe 
 that he then and there told said defendant where and on what 
 part of said lot he wished to build his house, and what the 
 style of such house should be, and in what direction it should 
 front ; and if you believe that said defendant then and there, 
 as an inducement to plaintiff to purchase said lot for a resi- 
 dence, represented to him that there was a street on the east 
 and on the north side of him; and if you believe that by said 
 representations plaintiff was induced to purchase said lot for 
 the sum of $400 for the purpose aforesaid, and that such 
 purposes were known to the defendant ; if you believe that 
 plaintiff then and there made said purchase, and proceeded 
 to build and did build a residence in the northeast corner of 
 said lot, fronting east and north, and that such design was 
 communicated to the defendant at and before said sale ; and 
 you further believe that said representations of defendant, 
 made about a street on the north were false, and known to 
 the defendant at the time they were made to be false ; and if 
 you believe that plaintiff has been damaged thereby, then 
 you will allow him for the same." 
 
 From White v. Smith, 54 la. 233, 236, 237. 
 
 No. 224. Whether son has fraudulently persuaded parent 
 to make beneficial dispositions of property to him. — This 
 defendant had a right to importune and persuade the father 
 to make such disposition as would be most beneficial to him, 
 but in such importunity and persuasion, he must be careful 
 not to make use of any unfair means, must make no false 
 representations of the facts to the father, nor perpetrate any 
 other kind of fraud to induce him to make such disposition 
 in his favor. If the father did dispose of his property upon 
 mere incessant importunity and persuasion, unmixed with 
 fraud, in a manner that might benefit the defendant, as the 
 result of such incessant persuasion, the transaction wouldn't 
 be fraudulent on that account, couldn't be impeached for 
 fraud. If in the use of such importunity and persuasion, he 
 resorts to unfair means, or false representations of the facts, 
 or other fraudulent means, he can not be permitted to enjoy 
 the fruits of his wrong-doing or the advantage obtained bv
 
 FRAUD — FALSE REPRESENTATIONS, ETC. 147 
 
 such means. In your search for the truth in the case you 
 must weigh all the evidence before you. 
 
 John D. Nicholas, Judge, in Albright v. Thompson. 27 W. L. B. 247. 
 Judgment affirmed. 
 
 No. 225. Representations as to value of stock — Nature 
 of such statement to be actionable — Mere opinions — When 
 made. — It must be shown by a preponderance of evidence 
 that there was some actual assertion made by the defendants 
 that the stock of goods was of a certain value, and that the 
 plaintiff relied upon the same, and that the statements were 
 untrue, and that plaintiff was thereby misled to his injury. 
 
 Now, the statement or assertion that is relied upon must 
 be positive; not a mere assertion or opinion, but must be 
 intended to have the effect of influencing the mind of the 
 other party. 
 
 ( a) Men' opinions. 
 
 It must not be a mere expression of opinion on the matter, 
 or guesswork, and not intended to influence the mind of the 
 other party, but it must be a positive statement that does 
 have influence on the mind of the party to whom it is made. 
 
 Representation of mere opinion nut actionable. 5 Lawson's R. & R., 
 Sec. 2345; Drake v. Latham, 50 111., 270; Jaggard on Torts, 577; Coolev on 
 Torts, 565. 
 
 There is no particular form of words necessary ; no partic- 
 ular expression is necessary to make such a statement as I have 
 referred to, but any distinct assertion of the value of this 
 stock, or any direct assertion to lead the plaintiff to believe 
 it was of such value will be sufficient; and the statement, as 
 I have said, must have been made so as to have induced the 
 plaintiff to purchase; and, if that is so, and thereby the 
 plaintiff was induced to purchase, it is immaterial at what 
 stage of the negotiations it was made, if previous to the con- 
 clusion of the contract between the parties. If representa- 
 tions of value were not made until after the sale was con- 
 summated, of conrse it would not have been an inducement, 
 and can not be considered in the case. It must have been 
 made before the sale was consummated fully. It is neces- 
 sary also tor the plaintiff to -how that he relied on this 
 statement of the defendant in the case; for, if he made tin 
 purchase not relying on these representations, but relying 
 upon his own judgment, or that of outside parties, then he 
 can not be said to have been misled by the defendants' mis- 
 representations. 
 
 If you find from the evidence that the de- 
 fendants simply priced thru stock at $4,500, without mis- 
 representation of the same, and its value, von will be justi-
 
 148 FRAUD — FALSE REPRESENTATIONS, ETC. 
 
 fied in finding for the defendants, because a man has the 
 right to sell his property for all he can get for it, providing 
 he makes no false representations. He has the right ^ to 
 remain silent in such cases. But there are cases in which 
 silence is as much falsehood as speech, but I need not under- 
 take to define them to you. But where a party has the right 
 to remain silent and does not mislead the other party, and 
 allows the one with whom he is trading to act on his own 
 [ judgment, he is not bound to lay before the other party all 
 the & facts about the matter, and advise him about all the min- 
 ute details, but he is bound not to deceive him. 
 
 Calvin D. Wright, Judge, in Randolph v. Ammon, 51 O. S. 585. The 
 case was reversed by the Circuit Court by sustaining a demurer to the 
 petition, and this was modified by the Supreme Court, and sent back for 
 new trial, and that rule would not affect the charge. 
 
 No. 226. Proof of fraud.— You are instructed that fraud 
 is never presumed, but is to be proved like other facts, and 
 the degree of evidence is like that prevailing in ordinary 
 civil actions, and need not be proved beyond a reasonable 
 doubt 1 , but only by a preponderance of the evidence.- It 
 may be established by direct and positive evidence, and 
 may also be proved by circumstantial evidence as well as 
 positive proof; 3 circumstances maybe proven by competent 
 evidence from which the inference of fraud which is alleged 
 will naturally arise, and the jury will be justified in consid- 
 ering the fraud as proven by such inferences. The act or com- 
 mission of fraud is so much different from the ordinary run 
 of facts, that it is more difficult of proof ; it is about as diffi- 
 cult sometimes to prove fraud as it would be to prove a 
 criminal act, because the guilty party so frequently^ covers 
 up and conceals his acts. If the circumstances which are 
 proved by a preponderence or greater weight of evidence are 
 such as to convince the jury that the fraud charged has been 
 committed, they may so find. 4 
 
 1 Eames v. Morgan, 37 111. 260-2 ; Strader v. Mullane, 17 O. S. 624. 
 
 ; Id. 
 
 3 Strauss v. Kranert, 56 111. 254. 
 
 "Jones v. Greaves, 26 O. S. 2 ; Lake v. Doud, 10 O. 415; Wilson v. Del- 
 arask, 3 O. 290; Cooley on Torts, 475 (2 ed. p. 556). "Fraud is properly 
 made out by marshaling the circumstances surrounding the transaction, 
 ' and deducting therefrom the fraudulent purpose, when it manifestly ap- 
 pears as by presenting the more positive and direct testimony of actual 
 purpose to 'deceive; and indeed circumstantial proof in most cases can 
 alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy 
 and 'circumvention, and is to be traced not in the open proclamation of 
 the wrongdoer's purpose, but by the indications of covered tracks and 
 studious concealments." (Id.) " It need not be shown "conclusively." 
 Sparks v. Dawson, 47 Tex. 138. " The proof need not be positive but 
 must from the nature of things be circumstantial." Whittaker's Code of 
 Ev 417 502. The Court in Pritchard v. Hopkins, 52 Iowa, 120. charged 
 that— "The defendant must establish the existence of fraud by a prepon- 
 derance of the testimony before you can find for the defendant."
 
 GAMBLING CONTRACTS. 149 
 
 GAMBLING CONTRACTS. 
 
 No. 227. Contracts for sale of grain to be delivered at 
 future day. — Where transactions on their face are purchases 
 and sales of commodities by one part} - of and to another, the 
 burden of proof rests upon him who asserts their illegality, on 
 the ground that they are gambling transactions, to prove by 
 a preponderance of the testimony that they are in fact gam- 
 bling transactions; and to establish this, the facts and cir- 
 cumstances must be so convincing and strong that no other 
 reasonable conclusion can be drawn from them. 
 
 Contracts are not presumed to be illegal ; on the other 
 hand, they are presumed to be legal until the contrary clearly 
 appears. A contract for the sale of grain or other commodity, 
 to be delivered at a future day, is not invalidated by the fact 
 that it was to be delivered at a future day, or by the additional 
 fact that at the time of the making of the contract the vendor 
 had not the goods in his possession, or by the additional fact 
 that at the time he had not entered into any contract to buy 
 or procure the goods, nor by the further fact that at the time 
 he had no reasonable prospect of procuring them for delivery, 
 according to the tenor of the contract. In such case, if either 
 party to the contract has the right to compel a delivery or 
 receipt of the goods, it is a valid contract, although the par- 
 ties thereto thereafter settle and agree to close up the trans- 
 action by a payment of differences. Nor does the statute of 
 ( >hio apply to sales of grain or other goods for future delivery, 
 where the only option is as to the time of delivery, within 
 certain limits. The intent of that act is to prohibit trans 
 actions which arc purely options to buy or sell, where there 
 is no intention, but tin- contrary, upon the part of the parties 
 ever to deliver or receive and pay for the goods. It should 
 appear, however, in order to uphold a contract for the sale 
 and delivery of grain at a future day or time for a price 
 
 d, that it was the purpose of the parties that there should. 
 
 in fact, be a delivery and receipt of the grain. If made with 
 a bona fide intention to deliver the grain and to receive and 
 for the same, it is valid in law. 
 
 [a) Intention of the parties governs. 
 
 It is the intention of the parties at the time the contract is 
 entered into that giv< ter to the same, [n other words, 
 
 it is the key to the real transaction by which it should be
 
 ICO GAMBLING CONTRACTS. 
 
 tested. What was the intention of the parties to this contract 
 at the time it was made in respect to an actual delivery and 
 receipt of the goods contracted for? An understanding be- 
 tween the vendor and vendee, at the time the contract is 
 made, that the goods shall not be delivered or received, but 
 merely to pay and receive the difference between the price 
 ao-reed upon and the market price at the time named for its 
 delivery, brings the transaction within the statute, and it is 
 void. Nor does it matter what form the parties gave to their 
 contracts. They may be painstaking and legally exact in 
 this respect. On its face the contract may be, in all particu- 
 lars, legitimate and regular. As the Supreme Court of the 
 United States declared in the case of Irvine v. Willard, 
 "Gambling is none the less such because it is carried on in 
 the form or guise of legitimate trade. " And, in the language 
 of another high authority, I charge you that however formal 
 and correct a contract may be on its face, yet if this formality 
 is resorted to as a mere disguise, and the real understanding 
 and agreement between the parties thereto at the time it was 
 entered into was that it should not be performed according to 
 its tenor, and both the parties do not intend an actual delivery 
 of the article bargained for, but merely to settle the differences 
 between the price agreed to be paid for the article and the 
 market price at the time fixed in the contract for its delivery, 
 it is a gambling transaction within the meaning and intent of 
 our statute, and is also against public policy and wholly void. 
 
 The secret intention of one of the parties to a contract that 
 the grain shall not be delivered and received, but that settle- 
 ment shall be made as already stated, is not sufficient to render 
 the contract invalid ; it must be the mutual understanding 
 and agreement of both the parties thereto. In short, I state it 
 this way: If the intent and purpose of both the parties to the 
 contract is purely and nothing else but to wager on the rise 
 or fall of the price of grain, and no delivery or receipt of the 
 same is to be had, and not to deal in it bona fide, the transac- 
 tion is a gambling affair, and is utterly void. 
 
 From Lester v. Buell, 49 O. S. 240. 
 
 No. 228. Fact that one party acts as commission mer- 
 chant does not change relation. — If you find that, in pursu- 
 ance of directions from the defendants, or from their agent 
 authorized in the premises, the plaintiff did, in his own name, 
 make bona fide sales and purchases for future delivery for 
 defendants, by which the parties to whom the plaintiff made 
 such sales, or from whom he made such purchases, had a 
 right to compel delivery of the grain bought and sold, or
 
 GAMBLING CONTRACTS. I51 
 
 enforce a payment of damages for breach of contract, such 
 transaction is not illegal as between plaintiff and defendants, 
 although defendants never intended to deliver or receive the 
 grain sold or bought, and although the plaintiff knew at the 
 time of such intention. If, under the proof, you find the 
 transactions valid as between the defendants and their vendors 
 or vendees, such transactions are valid as between defendants 
 and their broker, commission merchant, or agent. And if 
 you find in this case that plaintiff acted merely as defendant's 
 agent, whether he assumes to make the purchase or sale as a 
 commission merchant only, will not alter the relatiou of the 
 parties, and whatever the transactions were, whether they 
 were valid or not, plaintiff can not recover for his commission, 
 and for the money advanced by him for the defendants under 
 such circumstances that an agreement to repay will be im- 
 plied. 
 
 If you find the transactions illegal and void, under- the 
 instructions which have been given you, and you further find 
 that the plaintiff acted as agent in these transactions, and 
 knew or had reason to know all about the illegal character of 
 the same, and knowingly assisted the defendants in the 
 advance of the money, and was acting in such agency to bring 
 about the gambling transactions in which he advanced the 
 money, and sought thereby to keep up and aid such transac- 
 tions, and advised and procured the same to be done by him- 
 self or by Mr. C. , and so acted in the premises as to be affected 
 by the immoralities of the transaction, he can not recover. 
 If he advised, aided and procured gambling transactions to be 
 entered into by the defendants in these alleged grain deals, 
 and was acting by himself or agents in carrying them on, 
 and did it on purpose to gamble in grain in this way, and 
 obtained from the- defendants their money in illegal and 
 gambling affairs, lie is a principal in the commission of all 
 the offenses. 
 
 Lester v. Buell ad 1 :ase9 cited.
 
 152 GRAND JURY. 
 
 GRAND JURY. 
 
 No. 229. Grand jury — General charge to. — Gentlemen 
 of the grand jury : Under the constitution of the state of 
 Ohio no person can be put upon trial for any capital or other 
 infamous crime or felony until he has first been indicted by 
 a grand jury of the county in which the crime was committed. 
 
 A grand jury is composed of not less than fifteen good and 
 lawful men summoned from the county. An indictment is 
 a written accusation of crime against one or more persons 
 presented to and preferred by the grand jury upon their oath 
 or affirmation. 
 
 Before you enter upon the discharge of your duties, it is 
 incumbent upon the court to instruct you concerning them, 1 
 and it is your duty to obey the instructions so given. An 
 outline, an abstract, of your duties is contained in the oath 
 which your foreman took and the rest of you took by adoption. 
 You were sworn to diligence, secrecy, and impartiality; or, as 
 has been summarized by another, your duty is to "inquire 
 with zeal, hear with attention, deliberate with coolness, judge 
 with impartiality, and decide with fortitude." 
 
 (a) Character of evidence to warrant indictment. 
 
 It is not your province to determine in any case whether 
 a person who may be accused of having committed a crime 
 is really guilty. It is to determine whether there is sufficient 
 evidence to put him on trial before a petit jury. Before you 
 can find a bill, you ought to be satisfied that the evidence 
 before you unexplained and uncontradicted would be sufficient 
 to authorize a petit jury to convict the accused of the crime 
 which is imputed to him. If the evidence only establishes a 
 probability of guilt, that is not sufficient ; but in determin- 
 ing this question, you have no right to assume that there will 
 be evidence upon the trial of the case before a petit jury that 
 would explain or contradict the evidence which has been 
 offered by the state before you. You are to decide the ques- 
 tion solely upon the evidence that is before you ; and if it 
 satisfies you that it is sufficient to warrant a petit jury in 
 convicting, it is your duty to indict, otherwise not. The rule 
 requiring sufficient evidence to convince beyond a reasonable 
 doubt does not apply to the deliberations and conclusions of 
 a grand jury. 
 
 1 R. S., Sec. 7193, requires that the judge call attention particularly to 
 the obligation of secrecy, and explain the law applicable to such matters 
 as are likely to be brought before them.
 
 GRAND JURY. 1 53 
 
 (b) Legal evidence only to be considered. 
 
 It is your duty not to listen to any testimony except that 
 which is legal ; that excludes hearsay, reports, rumors, or 
 conjectures, but it is competent for you to consider any legal 
 evidence which comes before you properly, whether it tends 
 to excuse or exculpate the persons who may be under charge. 
 
 (c) Looking at guilt and innocence. 
 
 Your duty even goes farther than this. While the design 
 of the law is that the grand jury's investigation shall be one- 
 sided, still, if in the pursuit of truth it is developed that 
 there is evidence within reach of the grand jury that nun- 
 explain away or qualify the charge under consideration, 
 it is competent for you to send for that testimony. It is not 
 right that any person should be indicted for an isolated frag- 
 ment of any transaction, as has been well said. No innocent 
 person should be indicted if there is evidence within reach of 
 the grand jury that would qualify or explain away suspicious 
 circumstances against him. But this does not mean — and 
 this statement I am about to make is consistent with the one 
 I have just made — it does not mean that you are to send out 
 and search for testimony that would exculpate the persons 
 who may be under charge. You are not a petit jury, and 
 you have no right to supersede the trial jury by hearing both 
 sides of a case. The evidence which you may send for to 
 explain away or qualify the evidence for the state offered 
 before you means simply that kind of testimony. It does 
 not mean that you can send for evidence which would con- 
 tradict the evidence offered for the state, and thus compel you 
 to locate the preponderance of evidence, or to determine 
 which of the witnesses whose testimony conflicts are telling 
 the truth. 
 
 1 d) ScoJ>e of inquiry. 
 
 The oath which you took, gentlemen of the jury, makes 
 it vour duty to "diligently inquire and true presentment 
 make of all such matters and things as shall be given yon in 
 charge, or may come t<> your knowledge touching the present 
 service." 2 That language is a little hit obscure and it needs 
 annotation. I >1>\ iouslv it means any matter which may he 
 given you in charge by the court, or which may be submitted 
 to your consideration by the prosecuting attorney. It includes 
 those cases in which persons have either been recognized or 
 committed to jail to await an indictment, a list of which will 
 be handed to your foreman. 
 
 ,i. This oath mi- in- ti; m to inquire into the 
 
 circum rge, th< credibility of the witnesses ; not to judge 
 
 of the merits, but 9atisfy their minds tl is probabh causi for the 
 
 1 Whai
 
 154 GRAND JURY. 
 
 This designation of the scope and subjects of your inquiry 
 also means that it is your duty to inquire into crimes of which 
 the knowledge may come to you from three other sources. 
 While you are investigating the matters that may be submitted 
 to your consideration by the court, or by the prosecuting 
 attorney, or which may come before you on this list that I 
 mention, a witness testifying may reveal facts showing that 
 another crime has been committed ; he may commit perjury 
 in testifying. You may yourselves have witnessed the com- 
 mission of some crime. From the disclosures made by your 
 fellow jurors in the jury-room you may learn that other crimes 
 have been committed. It is your duty to inquire into all 
 these matters, for they come within the purview of that para- 
 graph or portion of the oath which I have just quoted. 3 
 
 (e) Secrecy must be observed. 
 
 Your oath makes it your imperative duty, gentlemen of the 
 jury, to keep rigidly in confidence the counsel of the prose- 
 cuting attorney, his assistants, your fellow jurors, and your- 
 selves, until compelled in a court of justice to reveal it. 
 There is no obscurity in that language, and in that portion 
 of your oath. It means that you are not at liberty to com- 
 municate to any person what has been done in the grand- 
 jury room ; it means that you are not at liberty to tell any 
 person what has been done or said in the grand-jury room, 
 either by the prosecuting attorney, or by his assistants, or by 
 your fellow jurors, or by yourselves. It means that you must 
 have courage enough to refuse to permit anyone to question 
 you about the proceedings in the grand-jury room, or to 
 suggest or ask you to vote for or against the indictment of 
 anyone. 
 
 3 The grand jury shall proceed to inquire of and present all offenses 
 whatever committed within the limits of the county. R. S., Sec. 7194. This 
 seems to be the only statute in Ohio in any manner designating the scope 
 of inquiry to be made. The extent of the powers of the grand jury is not 
 well defined by statute or by the authority of precedent. Different courts 
 have arrived at variant conclusions. Taking the oath administered and 
 the provision of the statute referred to and it surely authorizes the jury to 
 investigate for themselves. That grand juries may, on their own motion, 
 institute any prosecution, see Opinion of Attorney General, 22 ; Wilson's 
 Lectures, 361; U. S. v. Tompkins, 2 Cranch C. C. 46; Prof Wharton's 5th 
 Ed Crim. Law, page 457, gives the opinion of Judge Catron, of the U. S. 
 Circuit Court, in which he maintained that : " The grand jury have the 
 undoubted right to send for witnesses and have them sworn to give evi- 
 dence generally." In Ward v. State, 2 Mo. 120, the court held that the 
 grand jury could call and request witnesses to testify generally. To same 
 effect see "State v. Wallcott, 21 Conn. 272. Our statute makes it the duty of 
 the clerk, " when required by the grand jury," to issue subpoenas, which 
 further indicates that our state is committed to the power of the grand 
 jury themselves to institute matters. 
 
 In Lewis v. Wake, 74 N. C. 194, the inquisitorial power of the grand 
 jury to invade the family privacy of the county was denied.
 
 GRAND JURY. 1 55 
 
 As a rule, legal proceedings do not avoid, but rather seek 
 daylight. The proceedings of the grand jury are an excep- 
 tion. Accusing a person of a crime which may blast his 
 reputation and cover him with ignominy is a grave matter, 
 and should not be done except for sufficient reasons and for 
 the most momentous cause. It has been the policy of the 
 common law ever since the Great Charter to protect guiltless 
 persons from accusation. One of the objects of the institution 
 of the grand jury was to first have privately examined accusa- 
 tions of crime and ascertain whether there is a probability of 
 their truth before giving them publicity in the form of an 
 indictment. 
 
 Again, it is true that in every community there is a class 
 of persons who are eager to start criminal prosecutions upon 
 inadequate evidence. Sometimes this is done from honest 
 motives; sometimes from base, malicious, and corrupt mo- 
 tives. If the grand jury were not required to keep secret 
 their deliberations, what occurs in the grand- jury room, you 
 can readily see that, at every term of court, there might be 
 a large crop of unjustly damaged reputations. 
 
 Again, when a criminal prosecution is started before the 
 grand jury, this obligation of secrecy should be observed to 
 prevent the accused from escaping justice, from escaping 
 condign punishment. If they could learn, by the grand jury 
 not keeping the secrets of the grand-jury room, that they are 
 to be indicted, opportunities would be afforded for their 
 escape. It is the usual mode of beginning prosecutions for 
 an arrest to be made upon a warrant issued by a magistrate, 
 and a preliminary examination to be had before the magistrate, 
 where the accused can meet his accuser and have counsel to 
 defend him and examine his witnesses; but the grand jury is 
 not limited by law in its investigations to cases thus initiated. 
 A criminal prosecution may have its genesis, its beginning, 
 before the grand jury. I mention that because I want to 
 further illustrate that statement I have made that it is neces- 
 sary to observe this part of your oath in order to prevent that 
 class of criminals from escaping punishment. 
 
 Again, if this obligation of secrecy was not enjoined by 
 law, and grand jurors did not keep it, there would be another 
 way in which justice might be defeated. It would enable the 
 friends of those who wen- accused before the grand jury to 
 bring to bear all possible influences to prevent the indictment. 
 
 It is then foil- obvious, gentlemen of the jury, upon these 
 
 considerations, that this duty of secrecy, although foreign to 
 
 the law and its proceedings generally, is absolutely necessary 
 
 in the investigations of the grand jury, for the protection of 
 
 11
 
 156 GRAND JURY. 
 
 the innocent and the punishment of the guilty. It is not 
 an idle obligation that yon take to keep these matters secret. 
 It is not a meaningless obligation ; it is just as obligatory 
 upon each grand juror as is the oath of a witness, to tell the 
 truth, the whole truth, and nothing but the truth. 4 
 
 (_/") Malice and improper influences. 
 
 That part of your oath which forbids you to present any- 
 one through malice, hatred, or ill will, but at the same time 
 enjoins you not to leave nnpresented any person from fear, 
 affection, or reward, or hope thereof, and also in all of your 
 presentments to present the truth, the whole truth, and noth- 
 ing but the truth, to the best of your skill and understanding, 
 demonstrates that in your conclusions you must be guided by 
 an impartial spirit. 5 
 
 (g) Influence by religious or political connections. 
 
 When you enter the grand-jury room, there are certain 
 feelings and prejudices from which you ought to divorce 
 yourselves. No grand juror has the right to permit his 
 understanding or judgment to be influenced or controlled by 
 any religious or political bias or personal feeling. No grand 
 juror has a right to start a criminal prosecution to aid or 
 defeat either side of a political, religious, or personal contro- 
 versy. No man should be indicted to gratify any other person's 
 malice. Whenever such reprehensible conduct is done by 
 grand jurors, or by a grand jury, it degrades the high char- 
 acter of the grand jury. 
 
 (h) Relations of prosecuting attorney to grand jury. 
 
 The prosecuting attorney and his assistants are constituted 
 by law the representatives of the state in all criminal prosecu- 
 tions. It is their privilege and their duty to be present with 
 the grand jury in its room, to present the accusations, "to 
 give information with relation to any matter that may be 
 cognizable by the jury, to give advice touching any matter 
 of law when required, and to examine the witnesses when 
 they deem it necessary." It is their duty to instruct you 
 touching legal matters with the utmost fairness and candor, 
 remembering that they are in charge of a tribunal before 
 whom only one side of a case can be fully heard. It is your 
 duty to follow their instructions on matters oi law, unless you 
 , are instructed to the contrary by the court ; but all questions 
 of fact you must determine solely upon the evidence. Neither 
 the prosecuting attorney nor his assistants have the right to 
 
 4 Grand juror must not disclose that an indictment has been found 
 against any person not in custody. R. S., Sec. 7204. He can not state in 
 court how he voted on any question. R. S., Sec. 7205. 
 
 SR. S., Sec. 7191.
 
 HOMICIDE. 157 
 
 advise you, to suggest to you, or to hint, or intimate how you 
 shall decide the questions of fact. 
 
 (z) Clerk may be required to issue subpoenas. 
 
 You, as well as the prosecuting attorney, have the right 
 to require the clerk of court to issue subpoenas for witnesses 
 to be brought before you to testify. You are at liberty at any 
 time to call for further instructions from the court, although 
 the instructions which the prosecutor and his assistants give 
 you will probably be sufficient for all purposes. 
 
 David F. Pugh, Judge, Franklin Co. 
 
 HOMICIDE. 
 
 No. 230. Appropriate remarks as to gravity of charge 
 and duty of jury in homicide cases. — This is a case of the 
 first importance not only to the defendant, but also to the 
 state, and the duty with which you are charged is one of the 
 most solemn and sacred that can devolve upon a citizen in 
 any relation of life. It is essential to the peace and welfare 
 of society* and good government that every guilty man be 
 punished, when his guilt is established by a measure of proof 
 required to convict of crime in a court of justice. You will 
 readily appreciate its importance to the defendant, because it 
 involves his liberty and his life. You should bring to the 
 consideration of this case your most careful consideration and 
 deliberate judgment. You should not allow your minds to 
 be influenced by considerations of sympathy for the deceased, 
 or for his family or friends, or for the defendant, or for his 
 family or friends. 
 
 You will have discharged your duty to the state and to the 
 defendant, if. when your verdict is made up, after a careful 
 consideration of the law and the evidence, you can truthfully 
 say that you have conscientiously discharged your obligations 
 
 to make it a true deliberation between the state and the 
 
 fendant. 
 
 Thi gravity of the charge and the extreme caution | 
 
 with which you have been selected admonish you that vour 
 verdict should be approached with great care, and when 
 reached, should 1»- the result of your soundest and best judg- 
 ment upon the whole case. 
 
 The law requires that you should remain in a body until 
 you agree upon a verdict, or until you are otherwise discharged
 
 I58 HOMICIDE. 
 
 by the court. During all your deliberations you must be 
 most careful to permit no one to know the state of the same, 
 and to permit no one to approach or converse with you con- 
 cerning anything that is transpiring in the jury-room. 
 William R. Day, J., in State v. Webster. 
 
 No. 231. First degree murder. — A complete charge — 
 Some preliminaries. — This indictment by its terms charges 
 said defendant under the statutes of this state with murder in 
 the first degree. The defendant having plead to this indict- 
 ment says that he is not guilty as charged therein, and you 
 are now called upon to ascertain and determine whether or 
 not the charge so made against this defendant under the in- 
 dictment is true. 
 
 (a) Plea of not guilty. 
 
 The plea of not guilty so made puts in issue and denies 
 each and every averment in the indictment, and it, there- 
 fore, devolves upon the state to satisfy you and each of you 
 bevond the existence of a reasonable doubt of the truth of 
 each of the averments in said indictment essential to con- 
 stitute the crime charged against the defendant before a 
 verdict of guilty can be rendered against him, and, unless you 
 and each of you are so satisfied, it is your duty to acquit the 
 defendant. 
 
 ( b ) Presumption of innocence. 
 
 The indictment creates no presumption of guilt against 
 the defendant. The law presumes this defendant to be inno- 
 cent, and this presumption carries with it all that a presump- 
 tion of innocence implies, and these presumptions as well as 
 the presumption of innocence follow and remain with him 
 throughout, and must be recognized by you in your delib- 
 erations. 
 
 This presumption is not an idle one, but it is intended 
 and should inure to the benefit of the defendant upon every 
 material fact which you "will be called upon to consider, and 
 it must not only be overcome and overthrown, but the state 
 must go further and satisfy you and each of you in the man- 
 ner and to the extent already stated, that the defendant is 
 guilty ; and, until this is done, the defendant is entitled to 
 your verdict. And in all doubtful cases this presumption is 
 sufficient to turn the scale in favor of the defendant. 
 
 (c) Evidence must exclude every reasonable doubt. 
 Evidence must be such as to exclude every reasonable 
 
 doubt of the guilt of the defendant of the crime charged 
 against him, and all the facts proved must be consistent with 
 his guilt and inconsistent with his innocence. And before
 
 HOMICIDE. 159 
 
 you will be authorized to render a verdict of guilty against 
 the defendant in this case, yoli must find from the evi- 
 dence adduced, and from the proof admitted upon the trial, 
 that each and every fact necessary to be proven has been 
 separately and independently established by proof that shall 
 satisfy you with a degree of certainty which will exclude 
 from your minds every other reasonable conclusion except 
 that of the guilt of the defendant. And your judgment and 
 conscience must be so satisfied that the crime charged was 
 committed by the defendant, and so satisfied as to leave no 
 other reasonable conclusion possible. 
 
 You will be justified and are required to consider a rea- 
 sonable doubt as existing, if the material facts, or any one of 
 them, without which guilt can not be established, may be 
 fairly reconciled with the innocence of the defendant ; and 
 for all purposes of law a reasonable doubt of guilt is suffi- 
 cient to command a verdict of acquittal as the clearest proof 
 of innocence. 
 
 I <£) Reasonable doubt. 
 
 By a reasonable doubt is meant an honest uncertainty 
 that may exist in the mind of any one of you after hearing 
 all the evidence in the case and carefully and impartially 
 considering the same under the directions here given you; 
 not a mere captious doubt, but a doubt for which a substan- 
 tial reason could be given, and if, after you have calmly, dis- 
 passionately, and earnestly considered all the evidence sub- 
 mitted to you, you do not feel that certainty as to the guilt 
 of the defendant which would move you to action in the 
 most important concerns of your own life, you may and 
 should consider a reasonable doubt of his guilt as existing, 
 and should return a verdict of acquittal. Strong suspicions, 
 or even strong probabilities of guilt, are not sufficient to 
 convict. Neither is a preponderance of the evidence suffi- 
 cient as in civil eases; but the proof must be such as to 
 create a clear and undoubted conviction in your minds as to 
 the guilt of the defendant. ' 
 
 / 'ential elements to be proven. 
 Before a conviction can be had under this indictment 
 
 there are certain essential elements of the crime which must 
 
 itablished by the state to your satisfaction, and satisfy 
 you and each of von beyond tli'- existence of a reasonable 
 
 'Not a captious or whimsical doubt. Morgan v. State. [8 < >. S. 371; 
 Clark v. State, 12 M01 in ingenious or artificial doubt, Mel 
 
 itor v. State, 20 W. L B 523; 6 C. ( 163 Each circumstance need not be 
 proved beyond reasonable doubt. Breck \ ( [6 Each juroi 
 
 must be satisfied b< • ond a r< ason ible doubt. State v. Town, W, 75 . Mi 
 Guire v Stat C. 551.
 
 l6o HOMICIDE. 
 
 doubt, as already stated. These essential elements of fact 
 are : The crime must have been committed by the defendant, 
 
 in the County of , in State of , on or about , 
 
 18 — ; that W. H. H., named in the indictment, was at that 
 time a living person in that county, that he is now dead, 
 
 that he died in the County of , in the State of , on 
 
 the — day of , 18 — ; that he came to his death by 
 
 reason of a mortal wound inflicted upon him by the defend- 
 ant in the manner and form, with the intent and purpose, and 
 by the means mentioned and described in the indictment. 
 These are questions of fact to be determined by you from 
 the evidence in the case, and if the state has failed to estab- 
 lish each and all of them to the satisfaction of each and all 
 of you, to the extent and in the manner already indicated, 
 the defendant could not and should not be convicted. 
 
 {/) Charge of first degree murder — Also includes lesser 
 degrees. 
 
 This indictment by its terms charges the defendant, as 
 already stated, with murder in the first degree; it also in- 
 cludes and embraces in its terms the crimes of murder in the 
 second degree, manslaughter, assault and battery, and 
 assault; and under it the defendant may be lawfully con- 
 victed of the crime of murder in the first degree, or any 
 of the lesser crimes mentioned, if in your judgment the evi- 
 dence before you, under the law here given, warrants such 
 conviction, and upon the failure of the evidence under such 
 rules as are here given you to establish his guilt as to any 
 one of them, he must be acquitted. If the evidence so war- 
 rants it, you may find him guilty of murder in the first de- 
 gree, or you may acquit him of murder in that degree and 
 find him guilty of murder in the second degree, or you may 
 acquit him entirely of murder and find him guilty of man- 
 slaughter, or you may acquit him of murder and man- 
 slaughter and find him guilty of assault and battery, or you 
 may acquit him of all the foregoing and find him guilty of a 
 simple assault, and should the evidence fail to satisfy your 
 minds beyond a reasonable doubt and to the extent already 
 stated of the guilt of the defendant of the crime of murder 
 in either degree, or of manslaughter, or of assault and bat- 
 tery, or of assault only, you should acquit him and return a 
 general verdict of not guilty. 
 
 ( g ) Murder and manslaughter defined. 
 
 Under the statutes of this state, murder in the first degree, 
 so far as it is necessary for the purposes of this case, is defined 
 as follows: Whoever purposely and with deliberate and pre- 
 meditated malice kills another is guilty of murder in the first
 
 HOMICIDE. l6i 
 
 degree,- and murder in the second degree for all the purposes 
 of this prosecution is thus defined : Whoever purposely and 
 maliciously, but without deliberation or premeditation, kills 
 another is guilty of murder in the second degree. 3 The only 
 difference between them being the presence or absence of 
 deliberation and premeditation. If these two elements are 
 present, it is murder in the first degree; if either or both 
 are present, it is murder in the second degree. Manslaughter 
 may be thus defined : Whoever unlawfully kills another, 
 except as defined in the two former definitions given, is guilty 
 of manslaughter, or it is the unlawful killing of another with- 
 out malice either express or implied, which may either be 
 voluntary upon sudden quarrel, or unintentionally, but 
 while the slayer is in the commission of some unlawful act. 
 Assault and battery consists of any intentional violence by one 
 upon the person of another ; as the bare touching of the person 
 of another in an angry, revengeful, rude, or insolent manner, 
 and even greater violence might amount to no greater crime. 
 An assault is defined to be any attempt by violence to do a 
 personal injury to another, and this may be either with the 
 hand or with a weapon, but it must not be more than an 
 attempt, it must fall short of inflicting the intended injury or 
 it would amount to something more than an assault. 
 
 i h i What is essential to conviction in the first degree. 
 
 Under this indictment it is essential to a conviction of 
 murder in the first degree, and you and each of you should 
 be satisfied beyond the existence of a reasonable doubt, and to 
 the extent already stated, that the defendant, in the manner 
 and in the form charged, and at the time and the place 
 charged, did kill said W. H. unlawfully, feloniously, and 
 purposely, and of deliberate and of premeditated malice. An 
 act is done unlawfully when done in violation of law. 
 
 (/) An act feloniously done explained. 
 
 To do an act feloniously is to do it criminally. To do an 
 act purposely means to do it intentionally, not accidentally 
 or by mischance, and this is the sense in which this term is 
 used in our statutes and in this indictment. It imports an 
 acl of the will, intention — a design to do an act. Ordinarily 
 the purpose to kill is t<> be gathered or deduced from the 
 ( ircumstances under which the killing is done. The presence 
 of intent or purpose is a question of fact to be determined by 
 you from all the circumstances and facts proven in the case.* 
 
 3 R. S., Sec. 6S0S. 
 3R. S., Se< 68] i. 
 * An intention musl )»■ present. 25 O. S. 464.
 
 162 HOMICIDE. 
 
 (/) Inflicting mortal wound with deadly weapon — Infer- 
 ence from. 
 
 If you find under the instructions here given, that the de- 
 fendant inflicted a mortal wound upon W. H. with a deadly 
 weapon, that the same was used in a manner purposely cal- 
 culated to destroy life, you may infer the intent or purpose 
 to kill from the use of such weapon. 5 
 
 (k) Person intends natural consequences of his act. 
 
 It is a general principle and you may apply it to this case, 
 that what a man does willfully he intended to do, and intended 
 the natural and reasonable consequences of his voluntary and 
 deliberate acts, unless the circumstances are such as to indi- 
 cate the absence of such intent." 
 
 (/) Deliberations and premeditation. 
 
 If you find the killing to have been done, and done un- 
 lawfully, purposely, and feloniously, before the defendant 
 can be convicted of the crime of murder in the first degree, 
 you must be satisfied as already stated, and find further that 
 the same was done with deliberate and premeditated malice, 
 and that would require you to find that the defendant had 
 formed the purpose to kill in his mind ; that, having so formed 
 such purpose, the same was by him deliberated upon and 
 premeditated before the act of killing was done. The law 
 fixes no time during which such premeditation and delibera- 
 tion shall take place. It is not necessary to be of any par- 
 ticular length of time, but you must be satisfied from the 
 proof as already stated, and to the extent stated, that the 
 defendant had formed a purpose to kill in his mind, had 
 deliberated and reflected upon it, and it is sufficient although 
 a short time had elapsed after such purpose was formed and 
 the act of killing was done, if the same was deliberated and 
 premeditated upon by the defendant. It must have been an 
 act of deliberate and premeditated malice. 7 
 
 (m) Malice. 
 
 The word "Malice" in its ordinary acceptation is apt to 
 be associated with the passions of anger, hatred, or desire 
 
 5 Gardner v. State, W. 392 ; Erwin v. State, 29 O. S. 186. A deadly weapon 
 is one which is dangerous to life when used in the manner in which it is 
 capable of the most injurious results. U. S. v. Small, 2 Curtis 241. 
 
 6 Robbins v. State, 8 O. S. 151. 
 
 7 It is error to charge that deliberation and premeditation may be ac- 
 complished in a very short time — in a moment — so swift as thought. Burns 
 v. State, 3 W. L. G. 323. The law fixes no time. Shoemaker v. State, 12 
 O.43; 2 Wharton Cr. L. 948. While malice may be inferred from the 
 act of killing, there is no presumption that it was done with delibera- 
 tion or premeditation ; this must be proved by affirmative evidence. State 
 v. Turner, W. 20; State v. Town, W. 75 ; Bennett v. State, 10 C. C. 84. See 
 Judge Birchard's charge in Clark case, 12 O. 495.
 
 HOMICIDE. 163 
 
 for revenge. In contemplation of law, malice may and fre- 
 quently does exist without ■ the presence of either of these 
 passions or desires. In law. malice signifies a willful design 
 to do another an unlawful injury, whether such design be 
 prompted by hatred or revenge, or springs from the wanton- 
 ness or depravity of the heart, disregarding all social and 
 moral duties, and fatally bent on mischief. Therefore, if you 
 and each of you are satisfied from all the evidence to the ex- 
 tent already stated that the defendant, on the — day of 
 
 , 1 88 7, in the County of , in this State, in 
 
 the manner and form mentioned and described in the indict- 
 ment, did unlawfully, feloniously, and purposely, and of 
 deliberate and premeditated malice, kill said W. H. , then he 
 is guilty of murder in the first degree under this indictment, 
 and you should so state by your verdict. If you or any of 
 you have a reasonable doubt as to the existence of any one 
 or all of these elements of murder in the first degree as charged 
 in this indictment, having been established by the evidence 
 in this case, it will be your duty to acquit the defendant of 
 the crime of murder in the first degree as therein charged. 
 
 (>i) If not found guilty of murder in the first degree, may 
 be of second. 
 
 If you find the defendant is not guilty of murder in the 
 first degree, you may then inquire further and ascertain and 
 determine whether under this indictment he is guilty of 
 murder in the second degree. As already stated, the essential 
 elements of this crime are the same as those of murder in the 
 first degree, except it is not necessary that the killing be done 
 of deliberate and premeditated malice. Therefore, if vou 
 are satisfied beyond the existence of a reasonable doubt that 
 
 the defendant, on the — day of , [8 — , in the 
 
 County of , and State aforesaid, in the manner and by 
 
 the means mentioned and described in the indictment, did 
 unlawfully, feloniously, and purposely kill W. II., but with- 
 out deliberation or premeditation, or either of them, then he 
 is guilty of murder in the second degree, and you should so 
 nport by your verdict. If, however, you have any reasonable 
 doubt as to the essentials of any one or all of these elements 
 of murder in the second having been established by 
 
 the evidence in this case-, it will be your duty to acquit the 
 defendant of the crime of murder in the second degree under 
 this indictment. In considei ing the evidence and determining 
 whether or not the defendant is guilty of murder in the second 
 degree, you should apply the same definition to the words
 
 164 HOMICIDE. 
 
 "purposely" and "maliciously," and the terms "malice" 
 and "purpose," or any other terms therein used, as have 
 already been given to you in connection with the instructions 
 as to murder in the first degree. 
 
 The law presumes any felonious killing to be murder of 
 some degree, but that presumption rises no higher than second 
 degree, unless the state, by clear and satisfactory evidence, 
 establishes the guilt of the defendant of the higher crime to 
 the extent and in the manner already stated. 8 
 
 (o) May be found guilty of manslaughter, when. 
 
 If you in your investigation of this case should find the 
 defendant not guilty of murder in the first or second degree, 
 you may inquire further and ascertain whether the defendant 
 is guilty of unlawfully killing W. H., in the manner and by 
 the means and at the time and place charged in the indict- 
 ment, and if you should be satisfied to the extent and in the 
 manner already stated that W. H. was killed by the defend- 
 ant, then you should find the defendant guilty of manslaugh- 
 ter, and should return a verdict accordingly ; but if you and 
 each of you should not be so satisfied, then you should render 
 a verdict of acquittal as to this offense. In manslaughter, as 
 already stated, the unlawful killing may be without malice, 
 either upon sudden quarrel or unintentionally whilst the 
 slayer is in the commission of some unlawful act, and the 
 same certainty of proof is required and the same degree of 
 proof as indicated as being necessary in murder in the first 
 and in the second degree before a verdict of guilty could be 
 rendered against this defendant for manslaughter. 9 
 
 ( p ) May be guilty of assatdt and battery. 
 
 If you should find the defendant not guilty of any of these 
 crimes already mentioned, you may under this indictment, if 
 the evidence in the case warrants it. find the defendant guilty 
 of an assault and battery, or of an assault only. The essential 
 elements of these offenses have already been given in the 
 definitions of the same, and need not now be repeated. These 
 offenses should be established by the same certainty of proof 
 as already indicated as being necessary in each of the other 
 crimes named, and, unless you are satisfied in the manner and 
 to the extent already stated that the defendant is guilty of 
 any one of the crimes or offenses named, it is your duty to 
 acquit him, and the presumption of innocence already spoken 
 of follows the prisoner and inures it to his benefit to the 
 
 8 The jury may determine the grade of the crime. Adams v. State, 29 
 O. S. 412. See Dresback v. State, 38 O. S. 365. 
 
 9 See Adams v. State, 29 O. S. 412. Under indictment for second de- 
 gree may be convicted of manslaughter. Wroe v. State, 20 O. S. 460.
 
 HOMICIDE. 165 
 
 extent already stated as to all the crimes and offenses here 
 named, and to each essential element necessary to constitute 
 such crimes or offenses. 
 
 (q) If the defendant was aiding and abetting. 
 
 If you find, under the directions and instructions here 
 given you, that W. H. was killed at the time and place, and 
 in the manner and by the means mentioned in the indictment, 
 it is not necessary for you to find that the blow that killed H. 
 was struck by this defendant himself, if you find that the 
 defendant was present, aiding and abetting the person who 
 struck the blow, and was there acting in concert with such 
 person with the intent and purpose of aiding him in the com- 
 mission of the offense, and in pursuance of a common design 
 and purpose previously formed. Ordinarily that person is 
 regarded as the principal who performs the act complained 
 of, and one who acts in concert with him with the intent and 
 purpose to aid in the performance of the act and commission 
 of the offense is an aider and abettor. The law, however, 
 provides that : whoever aids or abets, or procures another to 
 commit an offense may be prosecuted and punished as if he 
 were the principal offender. And, in this case, I say to you 
 as a matter of law that, if you find that a crime was committed 
 as charged in this indictment, under the directions and in- 
 structions here given you, and you should find that this de- 
 fendant with others had formed a joint design and purpose to 
 commit the same, and at the time the same was committed 
 this defendant was acting in concert with others in the com- 
 mission thereof, and with the joint intent and purpose to 
 commit the same, and that while one or the other of those 
 thus acting in concert with the defendant did the manual act 
 of committing the crime or offense of striking the blow upon 
 the forehead of W. H., in pursuance of such common design 
 and purpose, this defendant was present, aiding and abetting 
 in the accomplishment of the common design and purpose, 
 then he would be guilty of the crime or offense so committed, 
 and may be convicted as principal, under this indictment, of 
 any of the crimes and offenses therein charged. But you can 
 not under this indictment find the defendant guilty by reason 
 of any offense committed or any act done against H. H., and 
 before you can find this defendant guilty, you must find that 
 there was a common design and purpose between him and 
 the others engaged in the commission of the crime, to do the 
 act complained of, and use the weapon, if you find a weapon 
 to have been used, in the manner and for the purpose in- 
 tended by its use, and all these matters must be proven in the 
 manner and to the extent indicated as being necessary in
 
 l66 HOMICIDE. 
 
 order to establish the crime itself or the essential elements 
 thereof. 10 
 
 10 J. R.Johnston, Judge, in The State v. Charles Morgan, the famous 
 " Blinkv Morgan " case. Court of Common Pleas, Portage County, Sept. 
 7, 1887." 
 
 No. 232. Murder — Right of employee to protect himself 
 against riotous strikers attempting to stop him from work- 
 ing — May take life to protect his own. — It is claimed by 
 defendant, however, 1st. That such killing was justifiable 
 on his part in order to protect himself from being killed, or 
 from great bodily harm. 2d. That, at the time the fatal 
 shot was fired, by reason of the injuries he had received at the 
 hands of the mob, his reason was gone, he had lost the control 
 of his faculties, and was incapable of forming an intention to 
 commit a crime; in other words, he claims that he was tem- 
 porarily insane, and did not understand and appreciate the 
 nature of what he was doing and that it was wrong. 1st. 
 As to the question of self defense. It appears in evidence in 
 this case that the defendant was employed by a contractor to 
 fill the trenches in the Town of . It also appears in evi- 
 dence that the deceased, A. S. , and a number of other laborers, 
 who had been previously employed as trench diggers, had 
 gotten into a dispute with their employer and had gone on a 
 strike, and it was their combined purpose to permit no other 
 person to perform any labor upon the contract till the matter 
 in dispute between them and their employer was settled. 
 And pursuant to this purpose, they went to the place defend- 
 ant was employed and ordered him to stop work. This, it 
 seems, he refused to-do. The defendant had a right to solicit 
 employment of the contractor and was guilty of no wrong 
 when he accepted such employment and entered upon the 
 discharge of his duties; (and I say to you) the deceased, A. 
 S., and those engaged with him, when they assembled and 
 went to the defendant and ordered him to cease work, became 
 rioters and were guilty of an infraction of the laws of Ohio. 
 They had no right to demand that the defendant cease work, 
 and he was under no obligations to obey them when they did 
 so order him. And if they assaulted him to compel him to 
 desist, it was his right to repel the assault with force. He 
 was under no obligation to retreat ; and he had a right to use 
 sufficient force to compel them to desist from their assaults 
 upon him — even by taking the life of his assailants, or some 
 of them, if that was apparently necessary in order to preserve 
 his own life, or to protect himself from great bodily harm at 
 the hands of the mob. 
 
 It is claimed, however, on the part of the state, that this
 
 HOMICIDE. 167 
 
 shooting was done by defendant out of a spirit of malice, 
 wantonness, and revenge, growing out of the punishment he 
 had received at the hands of the mob. Before proceeding 
 further, I wish to say, however, that the burden is on the 
 defendant to prove to you by a preponderance of evidence, 
 cither that he was justified in killing the deceased, or that he 
 had temporarily lost the use of his faculties and did not 
 appreciate and understand the nature of the act he was per- 
 forming. By a preponderance of evidence, I mean the greater 
 weight of the testimony, or, to state it in another form, if, 
 after considering the evidence in all its bearings, you are of 
 the opinion that the probabilities are in favor of the claims 
 made on the part of the defendant, either that he was justified 
 in doing the shooting, or that he had temporarily lost the use 
 of his faculties so that he did not understand and appreciate 
 the nature of the act he was performing, then the preponder- 
 ance of the evidence would be made out, and your verdict, 
 in that event, must be not guilty. But if the evidence was 
 equally balanced, or the greater weight is with the state, then 
 the defendant would not have the preponderance of evidence 
 upon those claims. 
 
 As to the question of self-defense. The defendant had a 
 right honestly and in good faith to solicit employment, and 
 he had a right to engage in that employment, even though 
 he had information that it was the purpose of the strikers to 
 stop all persons from working. 
 
 Honest labor is a laudable employment, and no person 
 shall be discouraged from engaging therein. Not only did 
 he have a right to seek employment and engage therein not- 
 withstanding the threats of the mob, but he had a right to 
 arm himself for his own protection, however, with this quali- 
 fication always in view: the employment must have been 
 sought honestly and in good faith, with the single purpose 
 in view of performing the labor for the wages agreed upon, 
 and he must not have sought employment and engaged therein 
 mere subterfuge for the purpose of inciting an attack 
 from the mob. No person must seek and court a controversy, 
 for if he does, he must take the consequences flowing there- 
 from. Evidi nee hai b< 1 □ offer* d on the part of the defend- 
 ant tending to -how that when he turned over his scraper, 
 started to hitch a tug, and resume work, one T., a member 
 of the mob, attacked him, and that he was immediately set 
 upon by other members of the mob with deadly weapons, 
 and it is claimed on the part of the defense that he was com- 
 d to use a deadly weapon in order to save his own life, 
 or to protect himself from great bodily harm. If the defend-
 
 l68 HOMICIDE. 
 
 ant did not purposely and intentionally bring on the assault, 
 then I say, if, in the careful and proper use of his faculties, 
 he believed and had reasonable ground to believe that he was 
 in imminent danger of death or great bodily harm, and that 
 his only means of escape was by taking the life of his assail- 
 ants, or some of them, he was justified in taking the life of 
 the deceased, A. S. , even though in fact he was mistaken as 
 to the existence of danger. In times of great excitement and 
 apparent danger, where a person is called upon to act quickly, 
 the same degree of prudence and judgment is not required of 
 him that would be required had he an opportunity to deliber- 
 ate upon his act. If, under the rules I have given you, you 
 find that the defendant was justified in firing the fatal shot 
 which resulted in the death of A. S. , you need go no further, 
 but your verdict will be not guilty. If, however, you find 
 the defendant was not justified under the rules already an- 
 nounced in taking the life of A. S., then you will inquire 
 further. Had the defendant so lost the use of his faculties, 
 by reason of the injuries he had received at the hands of the 
 mob, that he did not appreciate and understand the nature of 
 the act he was performing, and that it was wrong? If he 
 was in such condition of mind by reason of the injuries he 
 had received as to deprive him of the ability to reason and to 
 consider, and to know what he was doing, and the fatal shot 
 was fired while he was in such condition, then he would be 
 guilty of no crime, and your verdict should be not guilty. 
 He is not entitled to an acquittal, however, on the ground of 
 mental incapacity, if at the time of the shooting he had 
 sufficient mental capacity and reason left to enable him to 
 distinguish between right and wrong, and understand and 
 appreciate the nature of his act and his relation to the party 
 injured. 
 
 Sheets, J., in State v. Van Skiver, Auglaize Co. Com. Pleas. 
 
 No. 233. Malice in murder. — Malice is a distinctive 
 feature in the charge of murder, for without it there can be 
 no such thing as murder. It relates to the moral qualities of 
 a man's acts. Its general use in law is to express an act done 
 without any sufficient reason where the act is wrong in itself. 
 As applied to a case of homicide it expresses that it was com- 
 mitted by the accused without any adequate reason therefor 
 and under such circumstances of cruelty as to evidence a 
 mind devoid of social duty and fatally bent on mischief. 
 And because ordinarily no man may lawfully kill another, 
 and intentional homicides are in general the result of malice 
 and evil passions, or proceed from a heart devoid of social
 
 HOMICIDE. 169 
 
 duty, in every case of intentional homicide not otherwise 
 explained by the circumstances it is presumed in the first 
 instance that the slayer was actuated by malice, and the bur- 
 den is placed upon him of showing the contrary, unless it 
 appears from the circumstances adduced against him by the 
 state. It is not necessary, however, that he should do this 
 by evidence establishing the facts on which he relies to remove 
 the inference of malice beyond a reasonable doubt. It is 
 sufficient if the circumstances on which he relies for this 
 purpose are established by a preponderance of evidence. 
 If, after weighing and considering the evidence offered by 
 the state, in connection with that offered by the defendant, 
 the jury entertain a reasonable doubt as to the existence of 
 malice, they should resolve that doubt in his favor; for when 
 such a doubt exists after hearing and weighing all the evi- 
 dence pro and con, the preponderance must certainly be with 
 the defendant. 
 
 The absence or existence of malice in the act of killing 
 marks the distinction between murder and manslaughter. 
 For though, under our statute, there may be malice in an 
 unintentional killing amounting to manslaughter, still malice 
 in such case is a very different thing from malice in an in- 
 tentional killing. For the term malice is always referable to 
 the nature of the act it is intended to characterize; a mali- 
 cious beating is one thing and a malicious killing is another 
 and different thing. 
 
 Thad. A. MinshaH, Judge in the Giddings case. Malice defined. State 
 v. Turner. W. 20; Stab- v. Gardner, 9 W, I.. J. 411. 
 
 Malice presumed from killing; Davis v. State, 25 O. S. 369; State v. 
 Turner. W. 20; State v. Town. W. 75. 1 >r by useol deadly weapon the jury 
 may infer it. Erwin v. Stati . 29 < > S. [86; Clark's Crim. Law.,].. [6o, note 
 126 and ca 
 
 " Tlie idea is not spite or malevolence to the dec< ased in particular, but 
 evil design in general, the dictate of a wicked, depraved, and malignant 
 heart ; not premeditated hatred or revenge towards the person killed, but 
 that kind of unlawful purpose which if persevered in must produce mis- 
 chief." State v. Pike, i<* N. H. 399; Com. v. Webster, 5 Cush. 295. It has 
 a broader meaning in thi ion than in ordinary language. Com- 
 
 monly it signifies hatred to an individual. Malice is express or implied. 
 Express when it is persona] malice against an individual, which intends 
 to take life. Implied malice is an evil and malignant purpose prompting 
 ' resulting in death. 
 
 No. 234. Malice — Another form. — "Malice isa necessary 
 ingredient in both murder in the first and murder in the 
 Unless tin prisoner was actuated by malice, 
 :ii not be said to have been guilty of murder in eithei 
 degree. 'It is no1 easy to give it (malice) any exact defini- 
 tion. It relates to the moral qualities of a man's acts. Its 
 general use in law is to express an act done without any suffi-
 
 I70 HOMICIDE. 
 
 cient reason, when the act is wrong in itself. As applied to 
 a ease of homicide it expresses that it was committed without 
 any adequate reason therefor and under circumstances of 
 cruelty, as to evidence a mind devoid of social duty and fatally 
 bent on mischief. ' 1 
 
 Malice in a legal sense does not necessarily mean spite, 
 hatred, ill will, revenge, or jealousy. It may, however, in- 
 clude all or any of these qualities. Whenever a wrongful act 
 which produces death is intentionally done, without just cause 
 or excuse, and the purpose to kill is deliberated upon and 
 premeditated, it is, in the absence of mitigating circum- 
 stances, murder in the first degree. ' ' 2 
 
 1 Giddings case, Judge Minshall's charge, page 422. 
 
 2 D. F. Pugh, Judge in the Elliott case, Franklin Co. Approved by Sup. 
 Ct. 1 Bishop's Cr. Law, Sec. 429, 3. 
 
 No. 235. Adequate or reasonable provocation. — While 
 the definition of an adequate or reasonable provocation is so 
 general, and perhaps somewhat indefinite, the law is explicit 
 in its enumeration of some of the facts that do not constitute 
 a legal provocation at all. Thus words of reproach, no matter 
 how grievous they may be, and contemptuous and insulting 
 actions or gestures, no matter how much calculated to excite 
 indignation, or to arouse the passions, are insufficient to free 
 the prisoner from the guilt of murder if all the material facts 
 necessary to constitute that offense have been proved. The 
 provocation to have the effect of alleviating the killing into 
 manslaughter must have consisted of personal violence done 
 by the deceased to the prisoner. Nor can the threats which 
 were said to have been made by O. against the life of the 
 prisoner be considered as a reasonable provocation to negative 
 the inference of malice and reduce the killing to manslaughter. 
 
 D. F. Pugh, Judge, in the Elliott case, Franklin Co. Approved by Sup. 
 Ct. That legal provocation means personal violence, see 26 W. L. B. 117, 
 and cases cited there. Although provocation will not excuse, it will some- 
 times furnish ground for inflicting less severe punishment in homicide. 
 Clark's Cr. L. 72. Where there is adequate provocation the offense may 
 be manslaughter. Maher v. People, 10 Mich. 212. By adequate or reason- 
 able provocation is meant a provocation, under the influence of which an 
 ordinary man of fair disposition is likely to act rashly, without due delib- 
 eration or reflection. Maher v. People, 10 Mich. 212. What is a reasonable 
 or adequate provocation is a question of fact for the jury. Provocation 
 need not be at the time of the affray, but merely so'recent as to show no 
 time for the blood to cool. 4 O. C. C. 141. One day is sufficient for cool- 
 ing time 26 W. L. B. 116. 
 
 No. 236. "Deliberation" and "premeditation" in mur- 
 der — What constitutes. — " The statute defining the crime 
 is in these words : ' If any person shall purposely, and of
 
 HOMICIDE. 17I 
 
 deliberate and premeditated malice, kill another, every such 
 person shall be guilty of murder in the first degree. ' The 
 words purposely, of deliberate and premeditated malice, as 
 applied to the act of killing, have much meaning. Pur- 
 posely implies an act of the will ; an intention ; a design to 
 do the act. It presupposes the free agency of the actor. 
 Deliberation and premeditation require action of the mind. 
 They are operations of the intellectual faculties, and require 
 an exercise of reason, reflection, judgment, and decision." ' 
 
 " By the term ' deliberate,' it is meant that the purpose 
 to kill was considered. It means that the purpose to kill 
 was not the sudden, rash conception of an enraged mind, but 
 that the mind of the prisoner was sufficiently cool and self- 
 possessed to consider and contemplate the nature of the act 
 to be done. The term ' premeditated, ' signifies that the 
 purpose to kill was thought about and considered before it 
 was put into execution. The term 'deliberation,' does not 
 mean that the purpose was brooded over, or that the prison- 
 er's mind was absolutely calm and unruffled at the time he 
 deliberated. It is only necessary that it should be sufficiently 
 composed, calm and undisturbed to admit of reflection and 
 consideration of the design. Xor do the terms 'deliberate' 
 and 'premeditate' import that the purpose to kill had to be 
 conceived, deliberated upon and premeditated any specific 
 period of time before the killing was clone. The question is 
 not how long did the prisoner deliberate and premeditate, 
 but did he deliberate and premeditate at all? 
 
 " Logically and legally some time must have intervened 
 between the conception and execution of the purpose to kill, 
 but it matters not how short the time was. The operation^ 
 of the mind are so swift and (}^vd follows thought so quickly 
 that the deliberation and premeditation, and decision and act 
 may all occur in a very brief space of time-. The time will 
 vary as the minds and temperaments of men and circum- 
 stances under which they arc- placed will vary. ' Deliberation 
 and premeditation for a moment, as well as for a week, will 
 render an intentional killing murder in the first degree.' It 
 is immaterial whether the deliberation was in forming the 
 purpose to kill, or in the continuance of the design after it 
 was formed until it was executed. The distinctive difference- 
 between murder in the- first and murder in the second degree 
 is that there- is n-» deliberation and premeditation in min- 
 der in the second There must be purpose and malice 
 as in murder in the- first degree, but the- malice need not be 
 
 of the deliberate- and premeditated character. If the purpose 
 
 •Judge Birchard in Clark v. State, 12 0. 495. 
 12
 
 IJ2 
 
 HOMICIDE. 
 
 to kill appeared and existed for the first time in the pris- 
 oner's mind in the act of killing, the killing was only mur- 
 der in the second degree. So, also, if the intention to kill 
 was formed and executed in and from a sudden transport of 
 passion, aroused by provocation, but the provocation was not 
 sufficient, in law, to reduce the killing from murder to man- 
 slaughter, it would only be murder in the second degree. ' ' ' 2 
 
 2 D. F. Pugh, Judge, iu the Elliott case. Approved by Supreme Court. 
 
 Deliberation and premeditation denned. Turner v. State, W. 20; 
 Shoemaker v. State, 12 O. 43 : Burns v. State, 3 W. L. G. 323. See Bishop's 
 Cr. Law, Sec, 728. 
 
 237. Murder — First degree — Meaning of words " pur- 
 pose," "unlawful," and " feloniously." — Under the first 
 count it is essential to the conviction of murder in the first 
 degree, that it appear that the defendant, in the manner and 
 form charged, at the time and place charged, killed the 
 said H. unlawfully, feloniously, purposely, and of deliberate 
 and premeditated malice. An act is done unlawfully when 
 done in violation of the law ; to do an act feloniously is to do 
 it criminally. The word " purpose" is used in the statute 
 in its plain and ordinary signification. It means an act done 
 intentionally, not accidentally or by mischance. It imports 
 an act of the will, intention, a design to do an act. Ordi- 
 narily the purpose to kill is to be gathered or deduced from 
 the circumstances under which the killing is done. If the 
 instrument used in inflicting the mortal wound was a deadly 
 weapon, and it is willfully and in a manner purposely calcu- 
 lated to destroy life, the jury may infer the intent or purpose 
 to kill by such use of the weapon. 1 It is a general principle 
 that what a man does willfully he intended to do, and in- 
 tends the natural consequences of his voluntary act, unless 
 the circumstances in this particular case show the absence 
 of such intent. 2 
 
 1 Bishop's Cr. Law, Sec. 680 and cases. An instruction that if the jury 
 " find from the evidence that the defendant used a deadly weapon in this 
 case, and that death ensued from the use of such deadly weapon, then the 
 law raises the presumption of malice in the defendant, and also an intent 
 on his part to kill the decedent," was held erroneous. 29 O. S. 192. 
 
 1 Wm. R. Day, J., State v. Webster, Trumbull County Common Pleas. 
 
 The " purpose " in general is proved from circumstances. Gardner v. 
 State, W. 392. See 8 O. S. 98 ; 8 O. S. 306 ; 10 O. S. 459- 
 
 No. 238. Proof of purpose to kill— Malice — Deliberation 
 and premeditation. — Now as to the proof of the purpose to kill, 
 of malice, deliberation, and of premeditation. Intention and 
 malice are of the heart and mind. Neither was probably 
 ever proved to a jury by direct, positive evidence. The only
 
 HOMICIDE. I73 
 
 possible direct witness to prove that the prisoner's purpose 
 was to kill O. and that he was actuated by malice was the 
 prisoner himself, and if he had meant to testify that his mind 
 and heart were in that condition before and at the time O. 
 was killed, he would have plead guilty, which he did not do, 
 but denied all of the incriminating circumstances which the 
 state's evidence tended to prove. The existence or absence 
 of malice and of purpose to kill is an inference which must 
 be drawn by you from all the facts in the case. The emotions 
 of the prisoner's heart and the operations of his mind at the 
 times mentioned can only be revealed to you by his acts and 
 his declarations. You have no power to ascertain the exact 
 condition of his mind and heart at the times in question; the 
 best you can do is to infer what it was from his acts and 
 declarations. In determining this you should also consider 
 what he has said here on that question in his testimony, if 
 you believe him, and also all the other evidence bearing on 
 this question. I have already said to you that a person is 
 presumed to intend what he does. When a man performs an 
 act which he knows will produce a particular result, from 
 our common experience he is presumed to have anticipated 
 and intended that particular result. The intention to kill, 
 malice, deliberation, and premeditation may be proved by 
 circumstantial evidence. The circumstances from which 
 they may be inferred are various. They may consist of pre- 
 vious threats of the prisoner to kill the man who was killed, 
 preparation of weapons, search for the man who was after- 
 wards killed, absence of provocation just before and at the 
 time of the killing, dangerous nature of the weapon used to 
 kill, 1 the manner of using it, and the subsequent expressions 
 of -ratification by the prisoner over the killing of the deceased, 
 if you find such facts have been proved. It is hardly neces- 
 sary to .I'M that tile purpose to kill, malice, deliberation, and 
 premeditation are all material facts and require to be found 
 proved, in a ease like this, beyond a reasonable doubt. '-' 
 
 ■ t'sc of deadly w< apon doea nol raise a presumption of malice and 
 intent to kill, bul the jury must consider all the circumstances, Erwin v. 
 
 • I) F. Pugh, Judge, in tin- Elliott case. 
 
 No. 239. Person presumes reasonable consequences of 
 his acts. — But the law presumes that everj person intends 
 the natural, probable, and r< asonable 1 onsequences of his own 
 acts intentionally done. "Wrongful acts, knowingl) or in- 
 tentionally committed, 'in neither he justified nor excused 
 on the ground of innocent intent. The color of the act 
 determines the complexion of the intention." To illustrate
 
 IJ4 HOMICIDE. 
 
 part of this rule, if a person voluntarily or intentionally does 
 an act, or aids, assists, and encourages another to do an act, 
 whose natural, reasonable, and probable tendency is to destroy 
 another's life, the conclusion may be drawn that he intended 
 to destroy that life. 
 
 D. F. Pugh, Judge, in the Elliott case. "As a rule of evidence, a party 
 is presumed to intend the natural consequences of his own acts." Rob- 
 bins v. State, SO. S. 131. 
 
 No. 240. Manslaughter — What is. — What are the cir- 
 cumstances which will repel the imputation and inference of 
 malice that grows out of an intentional killing, and will 
 reduce the offense from murder to manslaughter? 
 
 The absence of malice is the trait of a case of homicide 
 which makes it manslaughter. 
 
 When a person is killed "under the influence of passion, 
 or in the heat of blood, produced by an adequate or reasonable 
 provocation, and before a reasonable time for the blood to 
 cool and reason to resume its habitual control, and is the 
 result of temporary excitement by which the control of reason 
 was disturbed rather than by wickedness of heart, or cruelty, 
 or recklessness of disposition," it is only manslaughter. 1 
 
 When the killing is done under such circumstances, the 
 law in its leniency imputes it to the infirmity of human nature 
 and not to the malignity of the heart. 
 
 One of the established rules of law is that the act of kill- 
 ing, or aiding or assisting in killing, to be manslaughter 
 must be directly caused by the passion arising out of the 
 provocation. It was not sufficient that the prisoner's mind 
 was agitated by passion arising from some other provocation, 
 or provocation given by some other person. 
 
 Another rule is that the provocation must have been given 
 at the time of the commission of the offense, or so short a 
 time before that there was not time for the blood to cool and 
 reason to resume her empire over the mind. 
 
 It has been said that it (provocation) is whatever will 
 "commonly produce a degree of anger, rage, resentment, or 
 terror in a person of ordinary temper, sufficient to render the 
 mind incapable of reflection." 2 
 
 The provocation must be in itself "calculated to provoke 
 a great degree of resentment," and such as ordinarily super- 
 induces a great degree of violence. If it is so slight and trivial 
 that a great degree of violence does not usually follow, it is 
 not reasonable provocation. 
 
 1 Moher v. The People, 10 Mich. 212. 
 
 2 13 Tex. App. 563.
 
 HOMICIDE. 175 
 
 It has also been said by an able judge that, in a case like 
 this, the jury "should take into consideration all the circum- 
 stances preceding, as well as attending the commission of the 
 homicide, and inquire what would ordinarily have been the 
 conduct of men in general under like circumstances," and 
 that should the jury "find that the defendant did no more 
 than might be expected from men in general under like prov- 
 ocation, the law in its tenderness to human frailty would 
 require" 3 the jury to say that the killing was only man- 
 slaughter. 4 
 
 'Gidding case, 424. 
 
 <D. F. l'ugh, Judge, in the Elliott case. 
 
 No. 241. Self-defense — What constitutes. — Under cer- 
 tain defined circumstances, the laws of God and man give 
 the right to take life in self-defense. 
 
 "When a person in the lawful pursuit of his business, and 
 without blame, is violently assaulted by one who manifestly 
 and maliciously intends and endeavors to kill him, the person 
 so assaulted, without retreating, although it be in his power 
 to do so without increasing his danger, may kill his assailant 
 to save his own life, or prevent enormous bodily harm." l 
 
 "Homicide is justifiable on the ground of self-defense, 
 where the slayer, in the careful and proper use of his faculties, 
 bona fide believes ', and has reasonable ground to believe that 
 he is in imminent danger of death or great bodily harm, and 
 that his only means of escape from such danger will be by 
 taking the life of his assailant, although in fact he is mis- 
 taken as to the existence or imminence of the danger." - 
 
 The claim of self-defense implies, presupposes, that O. 
 was intentionally killed. It is plain that when one kills 
 another in self-defense he intends to do it, but it would not 
 be unlawful killing, although intentionally done. 
 
 Before you can aquit the prisoner on the ground of self- 
 defense, you must Ik- satisfied that several facts, which I shall 
 now enumerate and explain, were, by the evidence, proved. 
 
 1. You must be satisfied thai < >. was the assailant ; that 
 
 he began the shooting. 
 
 2. You must be satisfied that < >. manifestly and malici- 
 ously intended and endeavored to kill or do great bodily harm 
 to the prisoner and P. K., or one of them. Did < >. intend to 
 do that? And in doing it, was he actuated by malice? Or 
 was he simply defending himself? Trying to save his own 
 life? These are the questions for your determination under 
 this head. 
 
 ■ Erwin v. State, 29 O. S. [87. 
 Marts v. State-. 26 1 ■ 
 
 Darling v. Williams, 35 O, S. 59.
 
 176 HOMICIDE. 
 
 3. You must be satisfied that the prisoner, in good faith, 
 believed, and had reasonable grounds for believing that he 
 was in danger of losing life, or sustaining great bodily harm 
 from the violence of O. That belief must have been honest and 
 sincere. The bare belief, however, was not sufficient ; there 
 must have been reasonable grounds for believing that there 
 was such danger, and they must have acted under the influ- 
 ence of such belief alone. In determining whether there were 
 such reasonable grounds for the belief you are not to conceive 
 of some ideal reasonable person, but you should, as nearly 
 as possible, put yourselves in their position, with their physi- 
 cal and mental equipment, surrounded with the circumstances 
 with which they were surrounded, and exposed to the influ- 
 ences to which they w T ere exposed. Does the evidence show 
 that they had such reasonable grounds for believing that O. 
 was about to take their lives, or the life of one of them, or to 
 do great bodily harm to them or one of them, just before and 
 at the time he was killed? 
 
 4. You must be satisfied that the danger of losing their 
 lives, or the life of one of them, or of both or one of them 
 sustaining great bodily harm at the hands of O. was, at that 
 time, actually or apparently imminent and irremediable. The 
 law regards human life as the most sacred of human interests 
 committed to its protection, and there can be no successful 
 interposition of self-defense unless the necessity for taking 
 O. 's life was, at least, apparently pressing and urgent at that 
 time — unless, in a word, the taking of his life was the reason- 
 able resort of the prisoner, or one of them to save their own 
 lives, or the life of one of them, or to avert great bodily harm 
 to both, or one of them. It is true they had a right to act 
 upon appearances — upon such appearances as would induce 
 a reasonable person in their position to believe that there was 
 such immediate danger, and that if the appearance turned 
 out to be fallacious, they were not to be blamed. 
 
 5. You must be satisfied that the killing of O. was the 
 only means of escape from the danger mentioned. If O. 's 
 life was taken after the appearance of danger disappeared, the 
 claim of self-defense must not be allowed. Although O. may 
 have been the aggressor, although he may have begun the 
 shooting, yet, if you find that the danger of death, or of great 
 bodily harm from O. could have been escaped from, could 
 have been avoided, without taking his life, the prisoner can 
 not shelter himself behind the law of self-defense; it is no 
 defense in such case. 
 
 6. You must be satisfied that they were without blame, 
 without fault. The law of self-defense does not imply the
 
 HOMICIDE. 177 
 
 right of attack, nor does it permit a man to kill another for 
 revenge. 3 
 
 3 D. F. Pugh, Judge, Elliott case. Approved by Sup. Court. 
 
 No. 242. When a person may take the life of an assail- 
 ant in self-defense. — It is a part of the law of this state, as 
 well as of other states and countries, that, under certain 
 defined circumstances, a person may, in self-defense of his 
 own life, or to avoid great bodily harm, take the life of an 
 assailant. And when this right is legitimately exercised, the 
 homicide so committed, whether justifiable or excusable, 
 according to the distinction at common law, is not an unlaw- 
 ful taking of life; and is, therefore, neither murder nor man- 
 slaughter. This right constitutes the boundary line between 
 manslaughter and a lawful homicide. 
 
 It is generally agreed that the right of self-defense is 
 founded in nature and is one of the rights not surrendered to 
 society according to the theory of the social compact. But 
 in a state of society it is necessarily so far modified Dy the 
 laws as to be limited to the cases where it would result in 
 imminent danger to life, or of great bodily harm, if the only 
 remedy of the peaceable and well-disposed citizen lay in an 
 appeal to the laws, or the strong arm of the state. If the 
 exercise of the right were not thus restricted, violence would 
 beget violence, and there would be an end of civil govern- 
 ment. There must, however, be imminent danger to life or 
 of great bodily harm, before the taking of life in self-defense 
 can be resorted to by anyone in any case. 
 
 But reason suggests and the law makes a distinction be- 
 tween the case of a person driven to the necessity of taking 
 life in self-defense in a conflict provoked and incited by his 
 own wrong, and that of one reduced to such necessity in a 
 conflict that was neither sought nor provoked by him. In 
 the case when a party assaulted is in the wrong, he must, 
 before taking the life of his assailant to save his own life or 
 to avoid gnat bodily injury, flic- as far as he conveniently 
 can, either b- »me wall, ditch, or other impediment, 
 
 or as far as the fierceness of the assault will permit, for it may 
 be so fierce as not to allow him to yield a step without mani- 
 fest danger to his life or great bodily harm, and then, in his 
 defense, he may kill his assailant instantly. 1 
 
 But in a case where the assailed party is not in the wrong, 
 neither provoke! nor incited the conflict, and was assailed 
 while in the pursuit of his lawful business, he may, without 
 
 ' StofTer V. State. 1 =, O. £
 
 178 HOMICIDE. 
 
 retreating a step, kill his assailant if necessary to protect his 
 own life, or to avoid grievous bodily harm. 
 
 The danger must in either case be actual or apparent, and 
 the party killing must have honestly believed that he was in 
 danger of losing his own life, or of suffering some great bodily 
 harm, before killing his assailant. And it is not enough that 
 the party killing honestly believed that there was imminent 
 danger to himself, the circumstances must have been such as 
 would have afforded a reasonable ground for such belief. Of 
 this the jury must judge from the circumstances as developed 
 by the testimony. If the appearances were such as would 
 have alarmed a man of ordinary firmness, and have impressed 
 him that such danger was imminent ; and if the assailed party 
 honestly believed such to be the case, it is not material 
 whether the danger was real or not. Thus, to make the 
 application to this case, if you should find that the deceased 
 threatened to kill the defendant, and, suiting his act to his 
 word, hastily reached with his right hand to his hip-pocket, 
 as if to draw and use a deadly weapon, and that the defend- 
 ant, as would any man of ordinary firmness, then honestly 
 believed that the deceased intended to instantly kill or seri- 
 ously wound him, in such case it is not material to the de- 
 fendant's right of self-defense whether, as a matter of fact, 
 the deceased had or had not a weapon. 
 
 If, when violently assaulted, a party were required to act 
 at his peril in judging whether there was real ground for 
 apprehending imminent danger, before resorting to such 
 measures as the circumstance seemed to require for his safety 
 and protection, it might be as hazardous to defend himself in 
 the first instance as to risk the ultimate result of what ap- 
 peared to be a violent and malicious assault upon his person 
 and life; and he might escape from what appeared to be the 
 imminent danger to be tried and condemned as a man-slayer, 
 where, had the facts been what the circumstances indicated, 
 he would be excused. 2 
 
 2 Thad. A. Miushall, Judge, in the Giddings trial; 29 O. S. 187; 26 O. 
 S. 162 ; 35 O. S. 59. 
 
 No. 243. Homicide— Self-defense— Right to repel as- 
 sault. — "If the defendant and his co-defendants were in the 
 exercise of their lawful rights in passing along the streets at 
 the time of the conflict wherein one was killed, and neither 
 of the accused parties began the affray or attack, then the 
 defendant and those accused with him had the right to repel 
 the assault with such force as was necessary to do so, and had 
 a right to defend themselves from danger to life or great
 
 HOMICIDE. 179 
 
 bodily harm ; and if they were suddenly assailed or surrounded 
 by superioi numbers armed with weapons dangerous to life, 
 or calculated to do great bodily harm, the defendants had a 
 right to stand on their defense, to repel force by force, even 
 to the taking of life, if they believed and had reasonable 
 grounds to believe that it was necessary to do so to prevent 
 either death or great bodily harm to themselves, and it neces- 
 sary they may use such weapons as will accomplish the pur- 
 pose. " 
 
 From Goins v. State, 46 O. S. 457. 
 
 No. 244. Manslaughter — Person present doing no overt 
 act not aider. — tk If the jury find from the evidence that the 
 principal named in the indictment did take the life of the 
 deceased, but did it in a sudden quarrel, or in the heat of 
 passion, his offense would be but manslaughter; and if you 
 further find that the defendant did no overt act and took no 
 active part in the killing, but was merely present when the 
 quarrel arose or fight began, you can not in such case find 
 him guilty as an aider and abettor of the principal. 1 ' 
 
 Goins v. State, 46 O. S. 457. 
 
 No. 245. Homicide — Common defense from attack. — ' ' If 
 the only purpose made known to the defendant prior to the 
 killing of the deceased, and the only one contemplated or 
 entered upon by him, was a defense of himself and com- 
 panions from an attack by a party of men superior in numbers 
 and strength which had been threatened, and neither the 
 defendant nor his comrades were to be aggressors or attack 
 the opposing party, then such common purpose of defense 
 merely was not unlawful and criminal." 
 
 From Goins v. State, (.6 0. S. 457. 
 
 No. 246. Homicide — Son may defend parent. — A son 
 
 the right to commit an assault in the defense of his 
 
 mother, if the mother be not in the wrong. It at the time 
 
 a son does commit an assault in the defense of his mother 
 
 whili using such means as are necessary to repel an 
 
 .'.nit from entering her home, or to prevent such person 
 
 from forcibly 1 ntering her home, such assault, if so made by 
 
 the son, where he, in the careful and proper use of his facul- 
 
 in good faith believes and has reasonable ground to 
 
 believe that his mothei is in imminent danger of great bodily 
 
 harm, and that her only mean- of escape from such danger 
 
 will he l>v the son taking the life of such person, the son 
 
 does not thereby commit an unlawful act, even though in fact
 
 ISO HOMICIDE. 
 
 the son be mistaken as to the existence or imminence of 
 the danger. So, in this case, if yon are satisfied from the 
 evidence that the defendant M. M. was assaulting the deceased 
 to prevent him from entering her home forcibly and against 
 her will, and that during the time of such conflict the defend- 
 ant S. M. , in the careful and proper use of his faculties, in 
 good faith believed and had reasonable ground to believe that 
 M. M. was in imminent danger of great bodily harm, and 
 that her only means of escape from such danger was by com- 
 mitting the assault that he did commit, then S. M. is guilty 
 of neither murder nor manslaughter, and as to him, your 
 verdict must be accordingly, even though S. M. was in fact 
 mistaken as to the existence or imminence of such danger to 
 his mother. But you must be satisfied that S. M. believed in 
 good faith that M. M. was in danger of great bodily harm 
 from the decedent, there must have been reasonable grounds 
 for believing that there was such danger, and that belief must 
 have been honest and sincere ; the bare belief is not sufficient ; 
 and he must have acted under the influence of such belief 
 alone. And in determining whether there were such reason- 
 able grounds for the belief, you should, as nearly as possible, 
 according as disclosed by the evidence, put yourself in their 
 position, with their physical and mental equipments, sur- 
 rounded with the circumstances with which they were sur- 
 rounded. Does the evidence show that he had such reason- 
 able grounds for believing that the deceased was about to do 
 her great bodily harm? Consider the evidence as to the con- 
 duct of the parties at the time and immediately previous to 
 the acts which resulted in the death of the decedent. 
 
 Melhorn, Judge, in State v. Miner. The killing of a person in defense 
 of those standing in the relation of husband and wife, parent and child, 
 etc., is regarded in law as the act of the person defended, and is excused 
 to the same extent as if in fact committed by him. Clark's Cr. L., 157, and 
 cases cited ; 1 Bishop's Crim. Law, Sec. 877. 
 
 No. 247. Justifiable homicide. — Homicide is justifiable 
 on the ground of self-defense when the slayer, in the careful 
 and proper use of his faculties bona fide, believes and has 
 reasonable ground to believe that he or his family is in im- 
 minent danger of death or great bodily harm, and that his 
 only means of escape from such clanger will be by taking the 
 life of the assailant, although in fact he is mistaken as to the 
 extent or imminence of the danger ; and where one is assaulted 
 in his own home, or the house itself attacked, he may use 
 such means as are necessary to repel the assailant, or to pre- 
 vent his forcible entry or material injury to his home, even 
 to the taking of life. But a homicide in such a case would
 
 HOMICIDE. IOI 
 
 not be justified unless the slayer, in the careful and proper 
 use of his faculties, in good faith believes and has reasonable 
 ground to believe that the killing is necessary to repel the 
 assault or prevent his forcible entry. 
 
 Melhorn, J., in State v. Mary Miner, et al. Defense of self or home. 
 State v. Peacock, 40 O. S. 333. 
 
 No. 248. Evidence of previous character and reputation 
 in homicide. — The defendant has placed his previous character 
 and reputation as to being a man of peace and quiet in evi- 
 dence. If you find that previous to this difficulty he sus- 
 tained a good reputation for peace and quiet, you will weigh 
 it in his favor for what you, in your honest judgments, may 
 think it is worth. Where the question to be determined by 
 you may be close, it should be sufficient to turn the scale in 
 his favor. 
 
 It not only sheds light upon the subject of inquiry, but it 
 is also admitted as a rule of public policy, as a reward held 
 forth by the law to those who, by conformity to its com- 
 mands, establish characters for peace and quiet. Where one 
 who has established such a character by his conduct as a good 
 citizen may use it in repelling the charge of crime, he will 
 also be the more careful not only to form it, but also to retain 
 it. It is, however, only a circumstance favorable to his 
 innocence. As a general rule, a man's character for anything 
 is the outgrowth of what he is, and if by his conduct and 
 deportment among his fellows he has earned the reputation 
 of being a man of peace and quiet, it affords grounds for be- 
 lieving that Ik- is what, by his conduct, he seems to be; and 
 the impartial mind is the less ready to conclude that such a 
 one has acted contrary to what may seem to be a law of his 
 life. 
 
 The weight to be given to the hitherto good character of 
 the defendant for peace and quiet must be such as the jury, 
 under all the circumstances, think it should receive. It is 
 verv relevant to, and of much weight upon the question of 
 malice; for the existence of such a character can not consist 
 with the element of malice until it has been uprooted and 
 destroyed. It is also quite relevant to the question whether 
 tlu- defendant, in committing the homicide, acted in self- 
 defense; for here, again, he could not, without honestly be- 
 lieving that he was in imminent danger of great bodily harm 
 or loss of life, have taken the- life of his fellow if he was by 
 habit a peaceful and quiet man. 
 
 Tli.i'l. A. Minshall, Judge, in the Giddings 1
 
 1 82 INSANITY. 
 
 INSANITY. 
 
 No. 249, Insanity defined.— Insanity has been defined 
 to be a disease of the mind ; a disease of the organ that 
 thinks, but what is the mind? What is the organ that thinks? 
 It is the subtle essence which is not cognizant to the senses 
 of the outsider or the observer. It can not be subjected to 
 analysis as long as it is living. It can not be inspected by 
 either lens or microscope, or measured by any instruments. 
 "The molecular changes which accompany thought cease at 
 death," and while living, the physical functions of the brain 
 can only be guessed at. It has been claimed that insanity is 
 such a derangement of the mental faculties of the person 
 whose sanity is in question that he is unable to reason 
 correctly. But it differs so much in kind and degree that 
 medical science has never been able to formulate a definition 
 precise enough to be useful in the varying circumstances of 
 each individual case. Medical men whose labors and studies 
 are in the line of mental disorders do not agree upon a defini- 
 tion of insanity, or as to the existence of it in any particular 
 case. Dr. Hammond, in his work of Diseases of the Nervous 
 System, defines insanity to be: "A manifestation of disease of 
 the mind characterized by a general or partial derangement 
 of one or more ot the faculties of the mind, and in which, 
 while consciousness is not abolished, mental freedom is per- 
 verted, weakened, or destroyed." This is too abstract and 
 general for practical purposes. What we want is a working 
 definition, a legal definition, a definition that will aid us in 
 forming a careful judgment in this case. The law supplies 
 that want. The law's definition of insanity, however, does 
 not harmonize with the conclusions of medical science. The 
 observations and language of another judge which are apro- 
 pos in this proceeding : "On both sides of an invisible line 
 are multitudes of cases where it is impossible to say with 
 confidence whether the mind is sane or insane. But when 
 the question of responsibility is presented to a court there is 
 an imperative necessity for deciding, and the further necessity 
 ot deciding it by rule. An arbitrary line, if none can be 
 discovered, must be drawn. It must be drawn so as to be 
 certain, comprehensible, and broad ; certain enough for the 
 conduct ot life ; comprehensive enough to be clearly explained 
 to a jury of twelve plain men ; and broad enough to cover
 
 INSANITY. tS 
 
 
 
 many cases without confusing unskilled minds with minute 
 distinctions. The refinements of medical science must be 
 pretermitted. The first necessity in the administration of 
 justice must be considered, and that is the safety of the com- 
 munity, the protection of the greater and more valuable por- 
 tion of the community who are not insane. A rule must be 
 laid down which will not have the effect of letting criminals 
 escape punishment through the bewilderment of juries. 
 Tenderness to the weak, however commendable in itself, is 
 not to be so stretched as to endanger the lives or even the 
 property of the public. ' ' These are some of the reasons 
 which inspired and made a legal definition of insanity a virtue 
 of necessity and a dictate of wisdom. 
 
 Pugh, J., in State v. Ealb, Franklin County Com. Pleas. For inter- 
 esting cases defining insanity see Com. v. Rogers. 7 Mete. 500; McNagh- 
 ten's case, 10 C. & F. 200 ; State v. Felter, 25 la. 6S ; Parsons v. State, 81 
 Ala. 577 (good case collecting cases) ; Dunn v. People, 109 111. 635; Gui- 
 teau's case, 10 Fed. 161. 
 
 Must be proved by a preponderance of the evidence and not merely 
 creating a doubt. 12 O. 4S3 ; 2 O. S. 54; 10 O. S. 598; 23 O. S. 349; 31 O. 
 S. in , 4 C. C. 101. 
 
 A very instructive opinion on insanity is Clark v. State, 12 Ohio 483, 
 and Judge Birchard's instruction on page 495 of the report is a very good 
 one to follow. 
 
 No. 250. Insanity as a defense. — [Precede with part in 
 ante No. 249. ] — It is a well-understood rule of law that an 
 insane person can not be convicted of a crime. The state 
 has no interest in the conviction of an unresponsible person ; 
 it would offer no example to others, nor would it deter others 
 from committing a crime any more than would the punish- 
 ment of a dumb brute. By reason of a lack of knowledge 
 by men of science, as well as the legal fraternity, there is 
 great difficulty in defining insanity in language which will 
 include any and all cases. When insanity of a person is not 
 of a marked character, and is set up as a defense to a charge 
 of murder, courts and jury must move with caution, and 
 carefully weigh every circumstance that may shed any light 
 upon the question. It is conceded by the physicians that 
 there is a form of mental disease called transitory insanity. 
 It is said that it may be superinduced in various ways, and 
 is more likely to occur in persons of a highly nervous 
 temperament. 
 
 The perplexing question in regard to what may be termed 
 transitory insanity is, that the subject may, as is said. In- 
 sane up to the moment of committing, and immediately after 
 committing a crime. Whether such a form of insanity ex- 
 ists is a question of fact and not of law. It is a question
 
 1 84 INSANITY. 
 
 which the jury must determine from the evidence, by the 
 testimony of physicians of great experience in medical science, 
 and those in particular who have devoted themselves to 
 mental pathology, or diseases of the mind. For it is an old 
 maxim that credit is to be given to everyone for the knowl- 
 edge he possesses in the practice of his own art. 
 
 A sane man is one whose senses bear truthful evidence ; 
 whose understanding is capable of receiving that evidence ; 
 whose reason can draw proper conclusions from the truthful 
 evidence thus received; whose will can guide the thought 
 thus obtained ; whose moral sense can determine the right 
 from the wrong growing out of that thought, and whose 
 act can, at his own pleasure, be in conformity to all these. 
 One not possessed of these faculties is not a sane man. 
 
 Hence the power to determine the right from the wrong 
 in a given case, not in the abstract, but as applied to the 
 particular parts and circumstances of that case, the case in 
 which his sanity arises as a question for determination, 
 together with the power of will, adequate to accept the right 
 and reject the wrong, is a test of sanity or insanity. 
 
 One possessed of such faculties of the mind and power 
 to determine and control his acts is a rational being, a free 
 agent, a responsible subject of the law. One without these 
 faculties of mind and power of will is not a rational being, 
 and is not responsible for what he does. Courts in the main, 
 judge of the mental condition of a man from the external 
 indicia of the mind, in which they are consistent with all 
 the analogies of the law of evidence. 
 
 Then if you find, by a preponderance of proof, that 
 at the time the defendant shot and killed the deceased he 
 was laboring under some mental infirmity, rendering him 
 incapable of determining that it would be wrong to take the 
 life of the deceased because he had been the occasion of his 
 domestic troubles, that his duty to his fellowman required 
 that he should abstain from so doing, that he would be pun- 
 ished by the laws if he killed him under such circumstances, 
 and slew the deceased from the uncontrollable impulse of 
 his mental disorder, without power of reason or will to see 
 that it was wrong and abstain from doing it, not from the 
 impulse of passion excited from his domestic troubles, with 
 which the deceased had been connected, then you should 
 acquit him. 
 
 On the contrary, if you find that he did not know that it 
 was wrong and punishable by the law, if he could have re- 
 strained himself, if it was not the impulse of his mental dis- 
 order, if it was the impulse of the passion of anger, or a
 
 INTOXICATING LIQUOR. 185 
 
 feeling of malice excited by the wrongs he had suffered 
 from the conduct of the deceased, then he was legally respon- 
 sible; and if he intentionally killed W. he was guilty of 
 manslaughter, if not more, unless he killed him in the law- 
 ful exercise of the right of self-defense. 
 
 All persons arrived at the usual years of discretion are 
 presumed sane and accountable for what they do. 
 
 And when it is claimed that a party charged with crime 
 is not sane he is not amendable to the law for what he does, 
 the burden is placed on the defense by a preponderance of 
 the evidence to establish this to the jury. And if this is 
 not done the defense is to be rejected. 
 
 Thad. A. Minshall, Judge, in the Giddings trial. 
 
 No. 251. Insanity as a defense — Burden of establish- 
 ing. — " To defeat the legal presumption of sanity, which 
 meets the defense of insanity at the threshold, the burden 
 of establishing mental alienation of the accused affirmative! v 
 rests upon the accused. 1 ' 
 
 From Bergin v. The State, 31 O. S. III. This has long been the rule 
 in Ohio as shown by the following cases : Clark v. State, 12 O. 483; Leoff- 
 ner v. The State, to « >. S. 599; Silvus v. State, 22 O. S. 90; Bond v. The 
 State, 23 O. S. 349; Weaver v. The State, 24 O. S. 584. 
 
 INTOXICATING LIQUOR. 
 
 No. 252. Action by wife against person selling or fur- 
 nishing liquor to intoxicated person — Liability of person 
 furnishing. — "By statute it is made unlawful and punishable 
 for any person to furnish to any person who is at the time 
 intoxicated, or in the habit of getting intoxicated, any in- 
 toxicating liquors whatsoever, unless given by a physician in 
 the regular course of his practice. 
 
 '"This law makes it unlawful to furnish intoxicating 
 liquors contrary to its provisions. If the defendant so fur- 
 nished intoxicating liquors to the husband of the plaintiff, he 
 being at the time, to the knowledge of the defendant, intox- 
 d, or in the habit of getting intoxicated, the act or acts 
 of so furnishing liquor were unlawful. 
 
 "The defendant can only be made responsible for such 
 instance of intoxication of the plaintiff's husband as may 
 have hem caused in whole or in part by liquors which he 
 may have so illegally sold or furnished.
 
 l86 INTOXICATING LIQUOR. 
 
 "If A. B. was on a particular occasion or occasions intox- 
 icated during said period, to which intoxication the liquors 
 of defendant, so sold or furnished to A. B., did not contrib- 
 ute in whole or in part, the defendant is not responsible for 
 such intoxication. But if defendant's liquor, so sold or 
 furnished to A. B. during such period, in part caused the 
 intoxication of said A. B., the defendant would be responsible 
 for such instance of intoxication, although liquor which was 
 not obtained from defendant also in part caused or contributed 
 to such instance of intoxication. And if the liquor so sold 
 or furnished by defendant to A. B. caused his intoxication, 
 either alone or in connection with liquor not obtained from 
 defendant, in a sufficient number of instances to satisfy you 
 that A. B. was habitually intoxicated by such liquor of de- 
 fendant acting alone, and also acting with such liquor of 
 others, the jury should find that defendant caused the habitual 
 intoxication of A. B. 
 
 "But if the liquor of defendant, so sold or furnished, 
 caused in whole or in part the intoxication of A. B. in a less 
 number of instances than is required to make him habitually 
 intoxicated, yet, if defendant's liquor, thus sold or furnished 
 to A. B., caused his intoxication in one or more instances, it 
 would be sufficient, on this second point, to authorize a 
 finding for plaintiff. Whether the intoxication which may 
 have thus been caused by defendant was in but a single 
 instance, or occasional, or habitual, will be an important sub- 
 ject of consideration upon the point of injury to plaintiff's 
 means of support, or in assessing damages. 
 
 " If it be found that A. B. was intoxicated in any instance 
 or instances, as to which the jury are not satisfied that the 
 defendant's liquor, so sold or furnished to A. B., caused the 
 intoxication in whole or in part, such instances of intoxication 
 can only be considered by you upon the question whether A. 
 B. was in the habit of getting intoxicated, and the defendant 
 should not be held responsible for any injury to the plaintiff 
 which may have resulted from such intoxication." 
 
 From Sibila v. Bahney, 34 O. S. 399. See Baker v. Beckwith, 29 O. 
 S. 314. 
 
 No. 253. Action by wife for sale of, to husband — Evi- 
 dence of sales made after suit. — "If it be found from the 
 proof that defendant, since the commencement of the action, 
 has sold intoxicating liquors to plaintiff's husband in violation 
 of law, that would afford no ground whatever for a recovery 
 on the part of the plaintiff ; but if it be found that the plain- 
 tiff ought to recover for intoxicating liquors sold to her hus-
 
 INTOXICATING LIQUOR. 187 
 
 band during years previous to the beginning of this suit, 
 
 the jury has a right to consider the fact that it has been 
 repeated, and the unlawful sale to him indulged in since its 
 commencement, for the purpose of throwing light upon the 
 mind of the defendant at the time he sold the liquors during 
 the four years prior to the filing of plaintiff's petition ; the 
 jury has a right to consider it in aggravation of damages, or 
 as a reason why they should or may be increased. Her right 
 to recover can not be founded upon any such sales, but the 
 most that can be done would be to increase her recovery by 
 way of exemplar}- damages for such sales, if she is otherwise 
 entitled to a verdict." 
 
 From Bean v. Green, 33 O. S. 444. 
 
 No. 254. Intoxicating liquors — Illegal sale of — Who is 
 keeper of place. — "If the defendant had the possession, care, 
 and control of the room, and managed, conducted, and con- 
 trolled the business transacted therein, and sold liquor in 
 violation of law, then he was the keeper of the room within 
 the meaning of the statute, whoever may have been the actual 
 owner of the property. " 
 
 From Schultz v. The State, 33 O. S. 276. 
 
 No. 255. Action by wife for sale of liquor to husband — 
 Damages — Another form. — To authorize a recovery it must 
 appear that J. W., the husband of the plaintiff, was a person 
 in the habit of getting intoxicated. It must also appear that 
 the defendant knew that he was a person in the habit of 
 becoming intoxicated as it appears in the petition. It must 
 appear that the plaintiff gave notice not to sell to her husband 
 intoxicating liquors. This notice must be given in the 
 presence of witnesses or a witness. It must also appear that 
 the notice was given at the time alleged in the petition; it 
 
 need not be done at the exact time alleged, but near about 
 that time. It must appear that the plaintiff lias been damaged 
 in her means of support, or her person, on account of alleged 
 illegal sales, if any were made by the defendant to the hus- 
 band. Should you find that the defendant sold intoxicating 
 liquors to J. \Y. in violation of law, within the time chai 
 in the petition, or about the times charged in the petition, 
 and that the plaintiff sustained damages by reason of the 
 intoxication of J. \V., caused thereby to her person, prop- 
 erty, or means of support, the fact that Other persons sold 
 
 liquor to J. \V. in violation of law, within that period, and 
 which liquor may have contributed to increase the intoxi- 
 cation and consequently to enhance the injury resulting to 
 
 1.;
 
 ;rS8 INTOXICATING LIQUOR. 
 
 the plaintiff therefrom ; such facts, if shown to have existed, 
 will not exonerate the defendant from the consequences of 
 his wrongful acts ; but on the contrary, he will still be respon- 
 sible for all the injury resulting from the intoxication of 
 J. W. to the plaintiff caused by the sales of liquor. 
 
 If you can separate the damages resulting from the intox- 
 ication caused by illegal sales to the said J. W. by the defend- 
 ant from the damages resulting from the sales to J. W. by 
 others, you must do so. But if such separation can not be 
 made, you will render your verdict against the defendant for 
 all acts resulting in pecuniary damages to the plaintiff, in 
 person, property, or means of support, by reason of the in- 
 toxication of J. W. to which the sales of liquor by the de- 
 fendant contributed. 
 
 Gillmer, J., in Whittaker v. Walsh, Trumbull Co. Com. Pleas. 
 
 No. 256. Selling and furnishing intoxicating liquors to 
 habitual drunkards — What constitutes a sale. — By statute 
 in Ohio it is provided that whoever sells intoxicating liquors 
 to a person in the habit of getting intoxicated shall be 
 punished as is provided in said statute. It is further provided 
 by the statute, among other things, that whoever buys for and 
 furnishes a person who is in the habit of getting intoxicated 
 any intoxicating liquor shall be punished as is provided in 
 said statute. 
 
 You will observe that there are two kinds of offenses 
 charged in the several counts of the indictment in this case. 
 One is the selling of intoxicating liquor to a person in the 
 habit of getting intoxicated, and the other is that of furnish- 
 ing intoxicating liquor to a person in the habit of getting 
 intoxicated. 
 
 To constitute a sale a person procuring liquor must have 
 paid for the same or agreed to pay for the liquor. As matter 
 of law, the supplying of intoxicating liquor to a person in the 
 habit of getting intoxicated, to be drunk by him, is the 
 furnishing of liquor within the meaning of our statute, al- 
 though it may have been purchased by another and supplied 
 by the seller to a person in the habit of getting intoxicated 
 in pursuance of such purchase. x 
 
 If a person in the habit of getting intoxicated should go 
 into a saloon with another person, and such other person 
 should buy from the saloonkeeper intoxicating liquor for 
 himself and such habitual drunkard, to be drunk by them 
 there before the saloonkeeper, such act would be a furnishing 
 
 1 See 25 O. S. 381.
 
 INTOXICATING LIQUOR. 189 
 
 by the saloonkeeper to such habitual drunkard, although 
 such third person paid for the intoxicating liquor.* 2 
 
 2 Nye, J., in State v. Kelley, Lorain Co. Com. Pleas. _j 
 
 No. 257. Same continued — Intoxication denned. — "A 
 person may be said to be intoxicated when he is so much 
 under the influence of intoxicating liquor that he is unfitted 
 and disqualified from attending to and performing the usual 
 duties and business of life. Intoxicating liquor affects different 
 individuals in different ways. One individual it renders dull 
 and stupid, so that while he may possess the powers of loco- 
 motion his intellect is so stupefied that he is wholly incapable 
 of attending to any matter of business; another is rendered 
 excited and noisy, and for a time positively insane, although 
 he may be physically stronger and more active than when 
 sober. In this instance the effect is upon the mind, disquali- 
 fying the man intellectually from being fit to be entrusted 
 with the performance of any important business. 
 
 "On the other hand, another person will exhibit intoxica- 
 tion by losing all control over his muscular action, so that he 
 will be unable to walk or move, while his mind may be 
 tolerably clear and capable of comprehending a matter of 
 business. Still the man is physically disqualified by the in- 
 toxication from attending to his ordinary business. There 
 are other persons who are mentally and physically able to 
 drink large amounts of intoxicating liquors without losing 
 their mental ability, or all control over their muscular action; 
 but yet the effort to maintain this self-control is so great that 
 they are wholly incapable of attending to any business, or 
 performing any duty resting upon them as men and members 
 of society. There are degrees of intoxication. In order to 
 be intoxicated it is not necessary that the person should be 
 so drunk as to be wholly without the ability to think or 
 move; it is enough if he is so far affected as to render him 
 unfit and disqualified for the performance of ordinary callings 
 — so affected that it would be unsafe to trust him with the 
 driving of a trim, the care of a mill, the making of a con- 
 tract, or the sale of property, with the steering of a steam- 
 boat, with the prescribing as a physician, or the giving of 
 advice as a lawyer. A person so affected by intoxicating liquors] 
 is truly in a state of intoxication and can truly be said to be 
 intoxicated. " 
 
 Nye, J., in State v. Kelley, Lorain Co. Com. Pleas, 
 
 No. 258. Same continued — Habitual drunkard defined. — 
 This word implies more than a single act of intoxication —
 
 190 INTOXICATING LIQUOR. 
 
 more than an occasional act of intoxication. It implies a 
 
 series of acts ; acts of intoxication so often repeated that it 
 
 may be reasonably expected that the individual will become 
 
 intoxicated whenever he can obtain the means of so doing. 
 
 When a person has acquired such a taste for intoxicating 
 
 liquors, and has so far lost the control of his will that he will 
 
 v usually drink to excess whenever he can obtain it, he has 
 
 'emphatically acquired the habit of getting intoxicated. Nor 
 
 ; need the acts be repeated in rapid succession; it is enough to 
 
 constitute the habit if the person gets intoxicated whenever 
 
 the opportunity offers, although these opportunities may be 
 
 at considerable intervals in lapse of time. The habit is still 
 
 formed, the individual becomes intoxicated whenever the 
 
 means are at his command. 
 
 Nye, J., in State v. Kelley, Lorain Co. Com. Pleas. 
 
 No. 259. Intoxicating liquors — Sale within two miles 
 of agricultural fair. — Your attention is directed to the ma- 
 terial things which it is necessary for the state to make out 
 to entitle it to the verdict of guilty as charged in the indict- 
 ment. First : That the sale of intoxicating liquors was made 
 by the defendant to C. W. Second : That said sale of intox- 
 icating liquors was made within two miles of the place where 
 an agricultural fair of the County Agricultural Associa- 
 tion was being held. Third : That said offense was committed 
 
 in the County of , and State of Ohio. Fourth : That 
 
 said offense was committed on or about the day of , 
 
 18 — . If you should find from the evidence that said offense 
 was committed on or about that time, near to that time, that 
 would be sufficient so far as the date is concerned, provided 
 said offense was committed during the time that the agricul- 
 tural fair of the County Agricultural Association was 
 
 being held. The state must establish each of the foregoing 
 propositions by evidence that satisfies your minds of their 
 truth beyond a reasonable doubt. 
 
 Nye, J., in State v. Hunter, Lorain Co. Com. Pleas. 
 
 No. 260. Same continued — What constitutes a sale. — 
 
 You are now instructed upon each of the material things 
 which it is necessary for the state to make out before it is 
 entitled to a verdict of guilty at your hands. 
 
 To constitute a sale the person procuring the intoxicating 
 liquors must have paid for the same, or agreed to pay for the 
 liquor at the time he purchased it. If you find from the evi- 
 dence that the offense was committed on the evening of the 
 day of , 18 — , that would be sufficient so far as the
 
 INTOXICATING LIQUOR. 191 
 
 date is concerned, to warrant a conviction upon a count which 
 
 charges an offense to have been committed on the day 
 
 of , 18 — , providing said offense was actually committed 
 
 during the time the agricultural fair of the County 
 
 Agricultural Association was being held. This becomes a 
 question of fact for you to determine from all the evidence in 
 the case whether the said defendant did sell intoxicating 
 
 liquors to the said C. W. on the night of the dav of 
 
 , iS-. 
 
 Nye. J., in State v. Hunter, Lorain Co. Com. Pleas. 
 
 No. 261. Same continued — What constitutes sale with- 
 in two miles of agricultural fair. — If you find from the evi- 
 dence given you in this case that the County Agricul- 
 tural Society held an agricultural fair in County, which 
 
 opened its exhibits to visitors on the morning of day 
 
 of , 18 — , and continued open from day to day, every 
 
 day, until the afternoon or evening of , 18 — , except 
 
 that its grounds were closed to the public during the nights, 
 and you further find that substantially all the exhibits of said 
 
 agricultural fair remained on the grounds of said County 
 
 Agricultural Society, both day and night during said period, 
 you are instructed that the place where the said agricultural 
 fair was thus held was, in contemplation of the statutes, a 
 place where agricultural fair was being held, during all the 
 time both day and night, from the time that said agricultural 
 fair was thus opened for its exhibition to the public, from 
 
 the morning of , 18 — , or afternoon or evening , 
 
 18 — ; and the sale of intoxicating liquors within two miles 
 of the place where the agricultural fair was being held would 
 be a violation of the statute. It would, therefore, be unlaw- 
 ful to sell intoxicating liquors within two miles of the place 
 where the agricultural fair was thus being held, from the 
 time of its opening to its close. 
 
 It then becomes a question of fact for you to determine 
 from all the evidence in the case, if you find that intoxicating 
 liquors were sold by the defendant to said C. \V. as claimed 
 by the state, whether said sales, or either of them, were made, 
 during the time that said agricultural fair was being held. 
 
 Nye, J., i'i Stat.- v. Hun in Co, Com. Plea9. 
 
 No. 262. Same continued — What is intoxicating liquor. 
 — Upon the subject of intoxicating liquors you are instructed 
 that whisky is an intoxicating liquor. If, therefore, you 
 find, from the evidence which has been submitted to you in
 
 I g 2 INTOXICATING LIQUOR. 
 
 this case, that the defendant sold whisky to the said C. W., 
 the sale of whisky would be the sale of intoxicating liquors. 
 
 Nye, Judge, in State v. Hunter, Lorain County Common Pleas. 
 
 No. 263. Same continued — What is an agricultural fair. 
 
 It becomes important for you to determine from the evi- 
 dence given you in this case whether an agricultural fair of 
 
 t h e County Agricultural Society was being held at the 
 
 time the alleged sales, or either of them, are said to have been 
 made. You are instructed that "A place where industrial 
 products of the people in agriculture, manufacture and the 
 arts are received and placed on exhibition for the purpose of 
 displaying them and awarding prizes as the reward for ex- 
 cellence, is an agricultural fair. ' ' And one who sells intoxi- 
 cating liquors within two miles of the place where the agri- 
 cultural fair is being held, is liable under the state statute. 
 
 Nye J., in State v. Hunter, Lorain County Common Pleas. 
 
 No. 264. Sales by agent or barkeeper. — If you find 
 from the evidence which has been given to you in this case, 
 that there was a sale made of intoxicating liquors to said C. 
 W. by the agent of the defendant, acting in the line of his 
 duties, the defendant would be liable for the acts of his 
 agent, thus acting in the line of the agent's duty and authority. 
 If you find from the evidence that the defendant placed some 
 one, even temporarily, behind the bar to wait on customers, 
 and make sales, such person so placed there would be the 
 agent of the defendant in waiting on customers and making 
 such sales, while thus in the employ of the defendant. _ If 
 you find from the evidence that there was a person behind 
 the bar in defendant's place of business in the act of selling 
 articles there kept for sale, with the knowledge of the de- 
 fendant, that act may be considered by you in determining 
 whether said person was agent of the defendant, and acting 
 with the authority of the defendant. And if you find from 
 the evidence that some one went into the defendant's place 
 of business and went behind the bar and sold intoxicating 
 liquors without the knowledge or consent of the defendant, 
 defendant will not be liable for any sales made by such un- 
 authorized person. The defendant had a right to go into 
 his saloon at any time during the agricultural fair, and there 
 would be no liability therefor. If the defendant made no 
 sales of intoxicating liquors, either by himself or an agent 
 authorized in the matter, he could not be legally convicted. 
 
 Nye, J., in State v. Hunter, Lorain County Common Pleas.
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 193 
 
 INSURANCE— FIRE, ACCIDENT, LIFE. 
 
 ■tfo, 265. Damage for loss by fire — What must be shown 
 to varrant recovery — Loss not within exception — Amount 
 of loss — Proofs — Waiver. — The burden is upon the plaintiff, 
 in order to entitle her to recover here, first, to establish by 
 a preponderance of the evidence that this property de- 
 stroyed by fire, was not excepted by any of the provisions of 
 this policy of insurance upon which she predicates her action, 
 and to establish the amount of her loss by reason thereof, 
 and that within the time provided by the policy she furnished 
 to the company or its authorized agent proofs of loss, as re- 
 quired by the policy, or that that provision of the policy was- 
 waived by the company or its authorized agent, or by either; 
 or by the act of its authorized agent she was prevented from 
 thus complying with the conditions of the policy. These are 
 the propositions that the plaintiff must maintain to entitle her 
 to recover, and she must maintain these propositions by a pre- 
 ponderance of all the testimony in the case. 
 
 Look into the testimony and conditions of this policy and 
 ascertain whether or not the loss and damage by fire was one 
 that was not excepted by this policy; if not, then your next 
 inquiry will be. did she, at the time required by this policy, 
 furnish to this company, or its authorized agent, proofs of 
 
 such as are required by that condition of the policy ; if 
 she did not, was that provision of the policy required on her 
 part to be complied with waived by the company or any of 
 its authorized agents? If not, was she by the act of the com- 
 pany, or its authorized agents, prevented from complying 
 with it and furnishing to the company within the specified 
 time such proofs of 1' 
 
 No. 266. Same continued — Instructions as to waiver of 
 conditions — By agent. — It is admitted in the pleadings and 
 admitted in the trial that the proofs of loss were not furnished 
 within the time specified in the policy. The plaintiff seeks 
 to avoid the effeel of tailing to comply with this condition of 
 the policy by showing that it was waived by the company, 
 or by its agent, or that the defendant company, or its agent, 
 prevented her by their conduct from thus furnishing proofs 
 of loss. Xow, I say to you, gentlemen, that that provision of 
 the policy can be waived after afire — after a 1 OSS — by the
 
 194 INSURANCE — FIRE- ACCIDENT, LIFE. 
 
 company by its president, or officer, or any agent authorized 
 to act for and represent it, no matter what he may be desig- 
 nated, whether adjuster, or solicitor, or what not, it depends 
 upon his power to represent the company in the insurance 
 business whether or not he has authority to waive that pro- 
 vision of the policy. And if the agent has general authority 
 to make contracts of insurance, to fill out and issue policies, 
 to collect premiums, and to represent the company in its busi- 
 ness of prosecuting the insurance business, he has power to 
 represent it in all matters incident thereto. And if you 
 should find from the testimony that the agent, S. , had 
 authority to represent the company here in the transaction of 
 its business as an insurance company, the procuring of insur- 
 ance, the filling out and issuing of policies, making contracts 
 of insurance, and the collection and handling of its moneys, 
 he had power to represent the company in waiving the pro- 
 visions of the contract thus made by him. The burden of 
 establishing this authority of this agent is upon the plaintiff, 
 and if you should find he was thus authorized, then you will 
 look into the testimony and determine whether or not he did 
 waive the performance of this provision of this contract 
 within the fifteen days. If he did not do it by express terms, 
 did he by his act and conduct lead the plaintiff to understand, 
 by what he said and by what he did, that a strict compliance 
 with that provision of this policy was waived and would not 
 be insisted upon? Or did the adjuster, having authority to 
 adjust and settle, these losses, lead her by his conduct and 
 declarations to understand that a strict performance of that 
 provision of the policy would not be required? 
 
 From United Fireman's Ins. Co. v. Kukral, Supreme Ct., unreported, 
 No. 1699 (13-161). Judgment of C. C. affirmed, 31 W. L. B., 233. 
 
 Waiver. There is a waiver if the company notify the insured that 
 they will pay in any event. 2 C. S. C. R. 186. Investigation without wait- 
 ing for proofs is a waiver. 2 Am. L. Rec. 336. Waiver may be after as 
 well as before the time stipulated for presenting proofs. 7 C. C. 356. If 
 an agent tells the assured, after an examination of the loss, that " nothing 
 further is required," it is a waiver of the preliminary proofs of loss, even 
 though there is a clause providing that no agent has power to waive any 
 condition. Bish v. Hawkeye Ins. Co., 69 la. 184. If an agent authorized 
 to settle a loss induces the assured to forbear bringing suit, the company- 
 waives the limitation. Stevens v. Citizen's Ins. Co., 69 la. 65S. The re- 
 quirements of a policy that proofs of loss shall be given as soon as possi- 
 ble, may be waived by the insurer's conduct and negotiations. Dohn v. 
 Farmer's Joint Stock Ins. Co., 6 Lansing, 275. Evidence that the person 
 who solicited insurance used language to the insured which might have 
 induced him to postpone making and forwarding the proofs within the 
 time limited, was evidence to sustain a waiver of the condition. Norton 
 v. Renssalaer Ins. Co., 7 Cow. 645. The adjuster may waive proofs. iEtna 
 Ins. Co. v. Shryer et al., 85 Ind. 362. The adjuster may waive - and if he 
 places the refusal to pay loss wholly upon other grounds, it is a waiver of 
 the right to defend a suit on the ground that such proofs were not made.
 
 INSURANCE FIRE, ACCIDENT, LIFE. 195 
 
 Eggleston v. The Council Bluff Ins. Co., 65 la. 30S. The company mav 
 waive proofs, and proofs may then be made in the prescribed time after 
 the waiver, where it is shown that the insured, without any fault or fraud 
 on his part, is unable to procure certain of the proofs of loss required by 
 the policy of insurance, he may recover without a literal compliance with 
 the proofs of the policy in this respect, for the law will not require an im- 
 possible thing. As to waiver by act of agent in furnishing blanks for 
 proofs, see SS Pa. St. 230, 13 Phila. 551. The fire insurance^ company re- 
 ceived and retained proofs of loss without objection, and they were twice 
 asked in writing to inform the insured if it wished for any further state- 
 ment made; no reply. Held, that the insurance company waived the 
 defense. Grange Mill Co. v. Western Ins. Co., 11S 111. 396'; Continental 
 Life Ins. Co. v. Rogers, 119 111. 479. Proofs of loss, or objection to the 
 form of proof, is waived when the company bases its refusal to pay on 
 other grounds. Hartford Protection Ins. Co. v. Manner, 2 O. S. 452. Ob- 
 jections to the preliminary proofs will be considered as waived, if, after 
 they are rendered, no specific objections are pointed out, and the assured 
 is informed that his claim will be considered on the merits, and a claim is 
 rejected, finall)-, upon the grounds that the company is not, in any event, 
 liable to pay the loss. The Globe Ins. Co. v. Boyle et al., 21 O. S" 130 
 
 No. 267. Notice and proof of loss — Waiver of — How 
 made. — After reciting the substance of the conditions, pro- 
 ceed : 
 
 These conditions are binding- upon the plaintiff, and it 
 can not recover unless it has shown that it performed them, 
 or has shown waiver of such performance on their part by the 
 defendant. The notice and proof of loss must be furnished 
 or waived, too, for sixty days, before the insured is entitled 
 to payment or has a right to bring a suit for the same. If 
 the insured brings suit within the sixty days, he must fail, 
 except in the event of the company denying all liability on 
 the- policy. < In the latter event an action may be commenced 
 without waiting the time limited — sixty days. 1 
 
 Waiver of proof of loss does not make the claim due at 
 once; the company would still be entitled to the sixtv days 
 after the waiver to investigate, and for such other purposes as 
 it might want the time for, except as stated — it notifies the 
 insured that it will not pay in any event. In the latter event, 
 the condition that no action be brought within sixtv davs 
 after proofs of loss i> deemed waived. So also a denial of 
 all liability, made after inquiring into the loss, on the ground 
 that the loss is not within the policy, or that the policy is 
 void is ,1 waiver of the clause requiring proofs of loss. 
 
 A notice of the loss given immediately after the tire, or 
 
 •on thereafter as it can be done with reasonable diligence, 
 to the agent of tin- company at the place where the fire 
 occurred, or with such diligence causing notice of the loss to 
 be brought to the knowledge of the company, is a sufficient 
 compliance with the condition requiring notice of the loss to 
 be given to the company.
 
 196 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 "The requirement of preliminary proofs of loss is a formal 
 condition inserted in the policy solely for the benefit of the 
 insurer. That such proofs may be waived, in whole or in 
 part, is well settled as a legal proposition. The waiver may 
 be by the direct action of the insurer, or by his general agent 
 by virtue of his authority. The waiver may be express, or it 
 may be inferred from the denial of obligation by the insurer 
 exclusively for other reasons." 2 
 
 A waiver may be inferred from the acts and declarations 
 of the company, or of its authorized agents acting within the 
 scope of their employment. The adjuster, employed by the 
 defendant to act for it in the matter, was the agent of the 
 company, and all he did in the matter within the scope and 
 line of his employment and duties as such adjuster were the 
 acts of the company and binding upon it. 
 
 Mere silence on the part of the company will not amount 
 to a waiver of proof of loss ; nor would the sending of agents 
 to make inquiry or investigation into the matter of the loss ; 
 nor would even an attempt to compromise the matter, either 
 or all of them, in themselves amount to a waiver of proofs of 
 loss, provided nothing was done while so engaged that would 
 cause a man of ordinary judgment and discretion to believe 
 that formal proofs of loss were waived. But if such agent or 
 agents, while so engaged, act in the matter so as to cause the 
 insured to believe that proofs of loss are waived, and their 
 acts are such as would have caused a man of ordinary discre- 
 tion and judgment to so believe, and the insured, by reason 
 thereof, refrain from making such proof, such acts will 
 amount to a waiver of such proof. If the company, by its 
 adjuster or agent, proceeds to investigate the matter of the 
 loss on its merits, and by what it does causes the insured to 
 believe, and a man of ordinary judgment under the circum- 
 stances would have so believed, that it is only the amount of 
 the loss that is in dispute, and nothing else, between the 
 parties, that will amount to a waiver of proofs of loss. So, 
 as said, an absolute refusal to pay on the merits of the claim 
 or a denial of liability to pay in any event will amount to a 
 waiver. The company must not by its acts, or by the acts 
 of its agents acting within the line of their duties and author- 
 ity as such agents, do anything that will throw the insured 
 off his guard and cause him to believe that proofs of loss are 
 not wanted by the company. If such acts are such as would 
 cause a man of ordinary judgment and discretion to so believe 
 in like circumstances, and the insured so believed and acted 
 
 2 Ins. Co. v. Parisot, 35 O. S. 40-41.
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 197 
 
 on such belief, the company will be held to have waived such 
 proofs. 
 
 And if the company waived such proofs, it can not after- 
 wards recall or reclaim such waiver, and demand or insist 
 upon such proofs. If once waived, the company can not 
 afterwards insist upon the performance of the condition re- 
 quiring such proof. 
 
 From the fact, if a fact, that the company sent an agent 
 to the place of the loss to make investigation in regard to the 
 same, and from what the evidence may show, if anything, he 
 did about making such investigation; from the fact, if a 
 fact, that the company sent an adjuster to adjust such loss, 
 and from all such adjuster did in regard to the matter; from 
 the fact that the plaintiff and defendants, on April 22, 1889, 
 pursuant to the condition in the policy — set out in printed 
 matter in the third defense as amended — selected two persons 
 to appraise and estimate at the true cash value the damage 
 by fire to such of said property covered by the policy as might 
 be found in a damaged condition, as alleged in said defense; 
 the fact of such appraisement being made and reported by 
 such appraisers ; the fact, if a fact, that D. and such adjuster 
 agreed upon the loss upon other of the property covered by 
 the policy; from what the evidence shows was done and 
 passed between said adjuster and D. while about the matter 
 of attempting to adjust such loss, altogether, from all these 
 and from all circumstances disclosed by the evidence, you 
 will determine whether or not the company waived proof of 
 loss, the burden of proving such waiver by a preponderance 
 of the evidence being upon the plaintiff. If so waived sixty 
 days before suit brought, the plaintiff is entitled to a verdict if 
 it has otherwise made out its case. If such waiver was made 
 within sixty days before the suit was brought, the plaintiff 
 can not recover, unless the plaintiff proves that there was an 
 absolute refusal by the company to pay in any event/ 5 
 
 1 Win. I . ■ rertnania Fire [nsurance Co. v. Dun & Co., 
 
 Supreme Court, judgments affirmed, charge approved. 
 
 No. 268. Proof of loss — Failure to strictly comply with 
 conditions as to — By reason of destruction of policy — Duty 
 cf agent to furnish necessary information on application. — 
 If the testimony satisfies you that the policy of insurance was 
 destroyed by fire, and she did not have it in her power to 
 furnish a written description, or copy of the written portion 
 of the policy, and did not have within herself the specific 
 
 directions that the policy required to be complied with in that 
 respect, and she applied to the agent of this company for
 
 198 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 the information, or for a copy of the policy thus to enable 
 her to fulfill that condition of the policy, it was the duty of 
 that agent, and the duty of the company, to furnish her with 
 that information thus possessed by them and not possessed by 
 her, and the refusal on their part to furnish her with that in- 
 formation, if a compliance on their part at the time she asked 
 for it would have enabled ner to furnish proof of loss within 
 the time required by the policy, and she was not, by reason of 
 that refusal, able to furnish proofs of loss thus required, that 
 would be an act upon their part which would prevent her 
 from furnishing her proofs of loss, and would estop them from 
 setting up that defense. The rule in regard to estoppel is in 
 substance as alleged here, and the rule in regard to waiver is 
 simply honesty and fair dealing between the parties ; what 
 has the plaintiff a right to believe and fairly consider under 
 all the circumstances of what was said and what was done — 
 what had she a right to fairly believe and act upon under 
 these circumstances? 
 
 From United Fireman's Ins. Co. v. Kukral, Supreme Court, unre- 
 ported, No. 1699 (13-161), judgment of C. C. affirmed, 31 W. L. B. 233. 
 
 No. 269. Burden of proof in action for loss by fire — 
 Proofs of loss, etc. — The burden of proof of the material 
 allegations of the plaintiff's petition that are denied by the 
 answer is upon the plaintiff; that is to say, it being admitted, 
 as I have told you, that the policy was issued, the date, the 
 amount of insurance, the property covered, the occurrence of 
 the fire, and that in payment of the loss or damage there 
 made, it then devolves upon the plaintiff to satisfy the jury 
 by a preponderance of the evidence that notice of such fire 
 was given by the insurer immediately after the occurrence, 
 and that, as soon thereafter as possible for the plaintiff to do 
 so, the plaintiff made out and furnished to the defendants 
 proofs of loss as required by the policy you have in force. 
 
 The fact, if such you find to be the fact, that the proofs 
 of loss were made by the plaintiff to defendant company, as 
 provided by the terms of the policy, does not relieve the 
 plaintiff in the action from the burden of proof by a pre- 
 ponderance of the evidence of the amount of the loss or 
 damage sustained by the fire to the property insured. The 
 proofs of loss, if you find that any were made, are simply 
 evidence for the insured of compliance with the conditions of 
 the policy requiring them, but not of the facts contained in 
 the proofs of loss. Therefore it devolves upon the plaintiff to 
 satisfy the jury by a preponderance of the evidence of the 
 amount of loss or damage by reason of the fire to the said
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 199 
 
 property insured, and which loss or damage the policy pro- 
 vides shall be based upon the actual cash value of the prop- 
 erty at the time of such fire. If the plaintiff has by a pre- 
 ponderance of the evidence satisfied the jury upon these 
 points, then the plaintiff will be entitled to recover in such 
 sum as the jury shall find from the evidence to be the amount 
 of such loss or damage caused by the fire, unless the jury find 
 by a preponderance of the evidence the existence of certain 
 other facts, or any of them, as claimed and alleged by the 
 defendant in his answer, and of which testimony has been 
 offered tending to prove. 
 
 Melhorn, J., in Carnahan v. Penn Fire Insurance Co. Hancock County 
 Common Pleas. 
 
 No. 270. Insurance of partnership property — Question 
 whether partnership was dissolved at time insurance issued 
 — Representation as to ownership of property. — In order to 
 recover in this action the plaintiff must prove by a preponder- 
 ance of the evidence that said D. & Co. was a partnership 
 doing business in Ohio as alleged; and that, at the time the 
 policy of insurance was issued and at the time the property de- 
 scribed therein was injured or destroyed by fire, such prop- 
 erty was owned by said partnership; that said property was in- 
 jured or destroyed by fire as claimed, and the amount of such 
 injury or loss; and that the plaintiff performed all the condi- 
 tions of said policy on its part, or that the defendant waived 
 such of the conditions as were not performed by it sixty days 
 before bringing this action ; that such of said conditions as by 
 the terms of the policy were required to be performed sixty days 
 before suit brought were performed, or the performance thereof 
 was waived by the defendant sixty days before the suit was 
 brought. 
 
 The policy of insurance is the contract between the parties. 
 The indorsement upon or attached to it, specifying how much 
 id $5,000, the amount named, is upon specified classes of 
 said property, is a part of the policy. Both parties are hound 
 by and have a right to insist upon the performance of all the 
 terms and condition of the contract of insurance — the plain - 
 liii as much as the defendant, and the defendant as much as 
 the plaintiff, and either as much as an individual might do 
 under like circumstan 
 
 (a) 'Ih' plaintiff must have been^ as alleged^ a partnership 
 doing business in o/i/O. end thi ownet of the said property. 
 If, at the time the polii y of insurance was issued, the firm or 
 partnership of D. & Co. had been dissolved and was not in 
 existence, then the representation that the property was the
 
 200 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 property of D. & Co. would avoid the policy, and the plaintiff 
 can not recover ; . . . If it had not been dissolved before 
 the policy was issued, or before the fire, if it was an existing 
 partnership, and the owner of the goods, it can recover, if 
 it has in other respects made out its case under the instruc- 
 tions. If D. & Co. was a partnership for the purpose only 
 of carrying on a banking business, the fact, if a fact, that D. 
 purchased the goods for the firm of D. & Co. in consideration 
 for and in satisfaction of a judgment in favor of D. & Co. 
 against the then owner thereof, without consulting C. or 
 getting his consent thereto, did it in good faith, thinking it 
 for the best interest of D. & Co. to do so ; and the further 
 fact, if a fact, that he, thinking it for the best interest of D. 
 & Co. to do so, kept the store, of which the goods in question 
 constituted the stock, open as a going concern and sold goods 
 therefrom for a time, will constitute no defense for the de- 
 fendant in this action. 
 
 Wm. E. Evans, J., in Germania Fire Insurance Co. v. Dun & Co., Su- 
 preme Court, judgments affirmed, Fayette County. 
 
 No. 271. Vacancy of Property — Breach of condition 
 
 as to. — There is a provision connected with the clause which 
 reads: "Shall become vacant and unoccupied without the 
 written assent of the company indorsed thereon." The de- 
 fendant says that this property became vacant and unoccu- 
 pied, and that it was destroyed by fire while in that condi- 
 tion, and that that condition was not with the assent of the 
 company written or indorsed upon the policy. In order to 
 forfeit this policy under this clause, it is necessary that the 
 premises in question should be both vacant and unoccupied. 
 There seems to be a distinction drawn between occupancy 
 and vacancy of premises, 1 but the language of this policy is 
 such, being connected with the conjunction, and, that both 
 occupancy and vacancy must exist, or a want of occupancy 
 and a vacancy of the premises must exist in order to enable 
 the defendant to avail itself of this provision of the contract. 
 If no person is living in the building — in the premises — 
 sleeping there, lodging there, occupying it in the usual way 
 of a dwelling-house being occupied by persons, then it is 
 unoccupied within the meaning of this clause of the policy. 
 And the having of a few articles of furniture, whether it be 
 carpets or anything else in the house, is not such an occu- 
 pancy or use of the premises as would render it not a vacant 
 house or unoccupied dwelling-house. Therefore, if you find 
 under the proof in this case that at the time this policy was 
 issued it was occupied by a tenant of M. R., and that subse- 
 1 Moody v. Insurance Company, 52 O. S. 12.
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 201 
 
 quently that tenant moved away from the premises, and after 
 the tenant was gone, M. R., with a view to a future occu- 
 pancy of the premises by herself, commenced making prepa- 
 rations for such occupancy by placing in the building a car- 
 pet or two carpets, and a chair or two, that would not relieve 
 the plaintiff or M. R. from the force and effect of this pro- 
 vision of the contract, providing the fire which destroyed or 
 injured the premises occurred before anyone actually moved 
 into the premises, or so placed therein furniture and goods 
 that it could not be said to be vacant.- The mere intention 
 of a party to move into premises is not an occupancy in fact 
 of those premises. The intention to move the necessary 
 articles for housekeeping into the premises does not consti- 
 tute such an occupancy of the building by furniture and 
 goods as to relieve it from the charge of being vacant. If 
 you find that there was in the building at the time of the fire 
 substantial articles and furniture for housekeeping by a 
 family or by one or two persons, the place would not be 
 vacant within the meaning of this provision of the policy. 
 But if only a portion, simply an article like a carpet or two 
 carpets, or a chair or so was in there, if that is all or substan- 
 tially all there was of it, the plans simply consisting of an 
 intention to put other articles therein in the future and to 
 go there and occupy the building, that would not be such an 
 occupancy of the premises as to relieve the plaintiff from the 
 obligations of this provision of the contract, nor would it de- 
 prive, in other words, the defendant from availing itself of 
 this provision of the contract in case any fire occured while 
 the premises were in this situation and condition." 
 
 Cf. State v. Tuttgerding, 5 W. I.. B. .\*>\. A tenant's removal perma- 
 nently renders premises vacant. 42 I >. S. 519. Leaving furniture all in 
 house ready for use is not leaving it vacant. 52 O. S. 12. 
 
 5 From Hanover Fire Insurance Company v. Citizens' Savings and Loan 
 Supreme Court, unreported, No. 1562. Judgments of C. C. 
 and C. I'.; affirmed; 27 W. I.. B. 216. Charge approved. 
 
 No. 272. When is a building vacant or unoccupied. — 
 What constitutes vacancy or nonoccupancy of a building is a 
 question of law; but whether a building is vacant or unoccu- 
 pied or not, within the meaning of the law, is a question of 
 For the jury. ' 
 
 To constitute occupancy of a dwelling-house, it is not 
 lial that it be continuously used by a family. The 
 family may l ' from it for health, pleasure, business 
 
 or convenience tor reasonable periods, and the house will 
 not, on that account, be considered as vacant or unoccupied. 
 Under a police which declares that no liability shall exist 
 
 'Moody v. Insurance Company, 52 ' >. S. 12.
 
 202 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 under it for loss or damage to an unoccupied building, but 
 does not stipulate that the insured building shall be used as 
 a dwelling, or require any particular mode of occupancy. 
 Strictly construed, occupancy for any lawful purpose would 
 satisfy the condition and preserve the obligation of the policy. 
 It is not in any event essential that the building be put to all 
 the uses ordinarily made of a dwelling, or to some of those 
 uses all the time ; nor that the whole house should be sub- 
 jected to that use. Nor is a dwelling-house considered as 
 unoccupied merely because it has ceased to be used as a fam- 
 ily residence where the household goods remain ready for 
 use and it continues to be occupied by one or more members 
 of the family, who have access to the whole building for the 
 purpose of caring for it, and who do care for it and make 
 some use of it as a place of abode. - 
 
 2 Moody v. Insurance Company, 52 O. S. 12; Insurance Company v. 
 Kiernan, 83 Ky. 468 ; Richards on insurance, Sec. 56; May on Insurance, 
 Sec. 247. 
 
 No. 273. Vacancy — Waiver of forfeiture by reason of 
 vacancy of premises — Burden of proof. — If you find, gentle- 
 men of the jury, that these premises were in fact vacant and 
 unoccupied, and Mrs. R., or anyone representing her, gave 
 notice to the duly authorized agent of the defendant of that 
 feet, and you find that the agent upon receiving that notice 
 said "all right," or words to that effect, "that he would be 
 over and see her," that would constitute a waiver of this 
 provision of the policy forfeiting the same by reason of a 
 vacancy and unoccupancy of the premises ; in other words, 
 it was within the power of the company to waive this pro- 
 vision of the policy — of its contract, and this waiver could be 
 made by an agent of the company — could waive the enforce- 
 ment of that provision of the policy, could waive its endorse- 
 ment thereon, or the assent of the company endorsed thereon, 
 and if you find from the testimony that such was the case 
 before this fire and after this policy was issued and before the 
 fire occurred, that notice was given in this way to the agent 
 and he made the reply "all right," that he would be over 
 ' and see about it, and the fire occurred after the notice was 
 given and before he came to see about it, it would.be a waiver 
 of that provision of the policy and would not interfere with 
 the right of the plaintiff to recover in this action. 
 
 On the question of the preponderance of the evidence I 
 will say to you that the burden does rest upon the plain- 
 tiff to show the waiver. If you find that this property was 
 vacant and unoccupied, and the fire occurred during that
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 203 
 
 vacancy and unoccupancy of the building, if it is claimed a 
 waiver of that provision was made, the burden of proof to 
 show that waiver rests upon the plaintiff; and I will also say 
 in this connection the burden of proof rests upon the defend- 
 ant to show, and it must satisfy you by a preponderance of 
 the evidence that this building was vacant and unoccupied 
 at' the time of the fire. 
 
 From Hanover Fire Ins. Co. v. Citizens Savings and Loan Assoc'n,. 
 Supreme Court, unreported, No. 1552 | 12—741) ; judgment of C. C. and C. 
 P. affirmed, 27 W. L. B. 216, charge approved. 
 
 No. 274. Total or partial loss. — It is a question of fact 
 for you to find from the evidence whether this was a total 
 loss by the owner of this property, or whether it was only 
 partial. If you find from the evidence that it was a total 
 loss, and further find such a state of facts as prevented the 
 defendant from availing himself of this clause of the forfeiture 
 to which I have called your attention, or, in other words, 
 find that it was not vacant and unoccupied when the fire took 
 place — I say if the premises were not vacant and unoccupied, 
 and the loss was a total loss, and no fraud was perpetrated in 
 procuring this insurance, and no act had been done to increase 
 the risk after the policy was issued, this plaintiff would have 
 the right to recover the full amount named in this policy, 
 
 $ . If, however, you find that it was a partial loss 
 
 only, then the plaintiff would be entitled to recover only the 
 full value of the loss actually sustained to the building, 
 whatever the proof may show you that loss to have been. To 
 make this more clear, I will repeat it. If you find that the 
 building was totally destroyed, or rather a total loss l>v reason 
 of this fire, and that the policy was procured without fraud, 
 and nothing had been done with the premises after the issu- 
 ing of the policy to increase the risk, and the premises were 
 not vacant and unoccupied at the time of the loss, the plain- 
 tiff would be entitled to recover the full amount of the policy, 
 
 which is claimed to be $ . lint if you find that the 
 
 loss was a partial loss and not a total loss, then the recovery 
 would be simply the actual damage done to the propertv by 
 the fit 
 
 From Hanover Fire [ns. Co. v. Citizens Savings and Loan Assoc'n, Su- 
 preme Court, unreported. No 1 ss2 ; judgments of C. C. and C. I', affirmed, 
 27 W. I.. B. .'i'., 1 barge approved. 
 
 No. 275. Compromise of loss obtained under duress. — 
 The court now says to you, as a matter of law, that if you 
 find there was a contrad <>f compromise, and if the only con- 
 sideration that entered into that contract of compromise was 
 14
 
 204 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 simply the settlement and adjustment of the claim in dispute 
 between them, then that, in this case, under this evidence, 
 this plaintiff can not recover, provided you find there was 
 such a contract of compromise. But the court further says 
 to you that if you find there w 7 as such a contract of com- 
 promise made, and if any part of that contract or compromise 
 was an agreement not to prosecute this plaintiff upon the 
 charge of burning her own property, then I say to you such 
 a contract of compromise was void and is of no force and 
 effect as a defense in this case. But, as I said before, if it 
 was no part of the consideration of the contract or compromise 
 that they agreed not to prosecute her for the charged crime 
 of arson, then I say to you the plaintiff can not recover under 
 the evidence and law as applied in this case. 
 
 No. 276. Evidence as to value of property as reflecting 
 on charge of destroying property. — Evidence has been offered 
 in this case touching upon the value of the property insured, 
 and it is maintained by the defendant that the evidence shows 
 that all the property, including the land upon which the 
 buildings were situated, were not of the value for which this 
 property was insured ; on the other hand the plaintiff main- 
 tains that the property was of greater value. This evidence 
 was offered and bears upon the motives of the plaintiff, 
 whether or not it would be to his interest to have this property 
 destroyed and thus reap a benefit by the insurance, and there- 
 fore it is admitted for the purpose of showing what, if any, 
 motives the plaintiff could have had for destroying this prop- 
 erty ; would it be to the interest of this plaintiff so to do. 
 
 Gillmer, J., in Hickox v. Ins. Co., Trumbull County Common Pleas. 
 
 No. 277. Cancellation of policy. — You are instructed 
 that it was competent for the plaintiff and the defendant by 
 its agent to surrender and cancel said policy or contract of 
 insurance at any time between the date of the said policy and 
 the date of the said loss or fire. And if you find from the 
 evidence that the plaintiff and the defendant by its agent did 
 agree to surrender and cancel said contract of insurance at 
 any time between the issuance of the policy and the date of 
 the fire, then the defendant would not be liable for any loss 
 accruing after the surrender or cancellation of said contract 
 policy of insurance. And before you can find that such policy 
 or contract of insurance was surrendered by the plaintiff to 
 the defendant by the mutual consent of the parties, you must 
 find that the minds of the parties met, and that the plaintiff 
 and defendant undertook to and did make an agreement to
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 205 
 
 surrender the policy with the understanding that the same 
 was to be canceled and of no binding force or effect there- 
 after. 
 
 In determining whether there was a cancellation by the 
 mutual consent of the parties, you should look into and 
 determine from the evidence whether it was the intention 
 and understanding of the parties at the time the policy was 
 delivered by the plaintiff to the agent of the company that 
 the same was to be canceled and surrendered and of no force 
 and effect. Look into and determine what was said and done 
 between them, their conduct in relation thereto, and from it 
 determine whether there was at that time an intention on the 
 part of the plaintiff and the defendant that the contract was 
 then surrendered and canceled and of no further binding 
 force. 
 
 The defendant had a right by the terms of the policy of 
 giving the plaintiff five days' notice of its intention so to do 
 before canceling said policy without the consent of the 
 parties; and if you find the defendant did cancel the pol- 
 icy after giving the plaintiff five days' notice of its intention 
 so to do, then such policy would not be in force and the 
 plaintiff would not be entitled to recover herein. But before 
 the defendant could cancel the policy under the provisions 
 thereof it must give the plaintiff five days' notice of its inten- 
 tion so to do, and must have returned to the plaintiff the 
 unearned premium thereon, unless there was some waiver of 
 the notice so required and of the return of said unearned 
 premium. 
 
 The plaintiff had the right to waive the five days' notice, 
 but whether he did so is a question of fact for you to de- 
 termine. . . . It is not necessary to put a written can- 
 cellation upon the policy in order to complete its cancellation. 
 The cancellation of the policy might be made without placing 
 any writing thereon. 
 
 Nye, J., in Leonard v. Queen In- 
 
 No. 278. Recission — Necessary party to suit for. — "If 
 each policy- was respectively made out on the application of 
 a person other than plaintiff, and was made payable to such 
 
 on, then such person is a necessary party to the surrender, 
 relea ion of the policy issued to him or her, and if 
 
 it be further found that the policy was not surrendered, 
 released, or rescinded by such party, but continued in force 
 and binding on the company, then the plaintiff can not 
 recover. " 
 
 From Insurance Co. v. Rodgers, 33 < > S. 533.
 
 206 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 No. 279. Insurance — Fire — Defense — False representa- 
 tions as to value of property — Burden of proof as to. — It 
 
 may be a difficult matter to formulate a charge that will 
 answer in all cases where there are false representations made 
 to procure insurance, but the following is a case of frequent 
 occurrence and is therefore given as found in the judge's 
 charge from which it is taken. 
 
 "As a ground of defense it is alleged by the defendant that 
 the plaintiff, in order to obtain the insurance from the defend- 
 ant company and other companies, to induce the defendant 
 company to issue the policy sued on, and to take the risk 
 
 equal to part of the item described in the policy, 
 
 falsely and fraudulently represented to the defendant that the 
 plaintiff kept in his store building an average stock of mer- 
 chandise to the value of $ — , and kept and carried store 
 
 furniture and fixtures to the cash value of $ , and the 
 
 cash value of the property in the store building was more 
 than $ . The defendant avers that these representa- 
 tions were false, that the plaintiffs at the time they were made 
 knew them to be false, and that they were made for the pur- 
 pose of procuring an excessive insurance, and for the pur- 
 pose of defrauding the insurance companies, including the 
 defendant company. The defendant says that the real value 
 of the property at the time the policy was issued and at all 
 
 times thereafter did not exceed $ , which the plaintiff 
 
 well knew, and the defendant did not know, but that the 
 defendant, relying upon the representations and believing them 
 to be true, was thereby induced to issue the policy which he 
 otherwise would not have done. ... To establish this 
 defense claimed by the defendant the burden of proof is upon 
 the defendant. It must satisfy you by a preponderance of 
 the evidence that the plaintiff did make these representations 
 alleged ; that they were false, and that the plaintiff at the 
 time they were made knew them to be false, that the defend- 
 ant did not know that they were false, and that they were 
 made to induce the defendant to issue the policy, and, if the 
 defendant did so satisfy you, the plaintiff can not recover and 
 your verdict should be for the defendant. But if you find 
 that the plaintiff did not make such representations, or, if 
 made, that they were true and not false or fraudulent, then 
 this defense fails. If you find from the evidence that the 
 defendant concurred with his co-insurers on the property 
 insured and fixed the value of the insurance as claimed by 
 the plaintiff, the defendant can not, under these circumstances 
 and in the absence of any fraud on the plaintiff's part, com-
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 20J 
 
 plain of the value so fixed on the said property in so far as 
 claiming fraud on the plaintiff's part in this respect. 
 
 Melhorn, J., in Carnahan v. Penn Fire Insurance Co., Hancock County 
 Common Pleas. As to overvaluation, see 6 O. C. C. i. 
 
 No. 280. Defense — When fraudulent concealments or 
 misrepresentations were made. — The facts in the - case from 
 which the following instructions are taken appear in many 
 such actions about as follows: 
 
 "That the policy provided that if the party insured con- 
 cealed or misrepresented, either in writing or otherwise, any 
 material fact or circumstances concerning the insurance, or in 
 case of any fraud or false swearing by the insured, touching 
 any matter relating to the insurance, whether before or after 
 the loss, it should be void, and also that as soon as possible 
 after the fire the party insured should render a particular ac- 
 count, proved, signed, and sworn to by the insured, stating his 
 knowledge and belief as to the origin of the fire, also the full 
 value of the property covered by the policy at the time and 
 immediately preceding the loss, and the amount of loss or 
 damage sustained. It was charged in this case that a false 
 statement was made by the plaintiff, and that the plaintiff 
 falsely swore to the statement, and that the provisions of the 
 policy were therefore violated. 
 
 Von are instructed that in order to constitute a valid 
 defense under the condition of the policy, and in relation to 
 the concealment and misrepresentations, or fraud, or false 
 swearing by the insured, it must appear from the evidence 
 that it was in relation to some material fact or circumstances 
 concerning the insurance, and that it was done by the plain- 
 tiff firm, or by its members, or either of them, willfully or 
 knowingly, and that it was the intention to deceive and defraud 
 the officers and agents of the defendant company. If you 
 find from a preponderance of the evidence that the plaintiff 
 firm by its members, or either of them, by concealing or 
 misrepresenting or falsely swearing touching any material 
 fact or circumstances concerning this insurance, as claimed 
 by the defendant, this in law would be such fraud upon the 
 defendant as would render the policy void. 
 
 Fraud and false swearing, in order to prevent recovery, I 
 must be intentional with the parties defrauding, and it may 
 be with referenc< to any material matter concerning the- in- 
 surance, it may be by overvaluing the loss, or by under- 
 valuing what they have, or it may be swearing to a loss of 
 property which was not in existence, and in many other ways. 
 If the insured, with reference to the quantity and value of
 
 208 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 the goods insured, made a claim which he knew to be false, 
 and to defraud the defendant, he can not recover anything. 
 If you find then from the preponderance of the evidence that 
 the allegations contained in this defense are true, then the 
 plaintiff can not recover and your verdict should be for the 
 defendant. " 
 
 '] Melhorn, j., in Carnahan v. Penn Fire Insurance Co., Hancock County 
 ' Common Pleas. 
 ; Doctrine of concealment applies to fire insurance. The insured must 
 
 not misrepresent or designedly conceal, unless the fact is of unusual peril, 
 
 and not discoverable by the insurer. Ins. Co. v. Harmer, 2 O. S. 452;. Ins. 
 
 Co. v. Ins. Co., 5 O. S. 45c. The materiality of the fact concealed is for the 
 
 jury. 2 O. S. 452. 
 
 No. 281. Insurance — Fire — False representations as to 
 other insurance. — The false representations material to the 
 risk that would avoid the policy must be to some existing 
 fact affecting the property insured at the time the risk was 
 taken, or during the existence of the policy. And we say to 
 you that any substantial representation as to the fact whether 
 the property to be insured was or was not insured, and was 
 or was not covered by other valid subsisting insurance, would 
 be material to the risk, and any substantial misrepresentations 
 in these respects, intentionally or fraudulently made by the 
 plaintiff to the agent to induce him to issue a policy, and if 
 the policy was issued by reason of such misrepresentations, 
 the defendant, relying thereon and not knowing them to be 
 false, would avoid the policy. 
 
 When verbal representations are made material to the risk, 
 it is not sufficient that they be false to avoid the policy ; it 
 must appear that they are both false and fraudulent to have 
 that effect. If they were honestly made, though they may 
 be untrue in fact, the policy is not thereby rendered void. 
 But material representations made by plaintiff to the agent 
 issuing the policy, which she assumed to be within her per- 
 sonal knowledge, or which she made recklessly, not knowing 
 them to be true, are false and fraudulent in the legal sense, 
 if made with an intent to deceive the insurer, if they were 
 untrue in fact, and were relied upon by the insurer in absence 
 of knowledge to the contrary upon his part in taking the risk, 
 although the plaintiff did not know them to be. false. 
 
 If nothing was said before the making and delivery of 
 policy by either party as to encumbrances or rather insurance 
 on the property insured, the company will be presumed to 
 have waived these conditions of the policy, if the insured 
 acted in good faith. 1 
 
 1 A clause prorating recovery in case of other insurance is not an assent 
 to obtaining other insurance. 28 O. S. 69. Such condition is waived if the 
 interrogatory in the application is left unanswered. 24 O. S. 345.
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 20Q 
 
 ( a ) Good faith of plaintiff. 
 
 As bearing upon good faith of plaintiff the- value of the 
 property insured has been permitted to remain before you, 
 but unless you find from a preponderance of the evidence that 
 the plaintiff was guilty of intentional fraud in respect to the 
 matter wherewith she is charged with fraud in the defend- 
 ant's answer, it can not be used by you to reduce the amount 
 of recovery below the amount for which, the dwelling-house 
 was insured, if you find the plaintiff entitled to recover. 
 
 If you should find from a preponderance of the evidence 
 that the plaintiff was so guilty of intentional fraud as herein 
 defined and set up in the answer to the charge of insurance 
 or mortgage incumbrance, then she can. not recover for any 
 loss to her house. 
 
 If you should find against the plaintiff upon the insurance 
 upon the dwelling-house, if you should find that the risk was 
 taken at the solicitation of the agent and not of the plaintiff, 
 and that she made no intentional fraudulent misrepresenta- 
 tions respecting the household furniture and other personal 
 property covered by the policy, you may find for her for the 
 
 value of such personal property, not exceeding $ , as 
 
 you find from the evidence was covered by the policy and was 
 destroyed by the fire, with interest thereon from .- 
 
 - Voris, J., France v. Norwich Union Fire Insurance Co., Summit Coun- 
 ty Common Pleas. 
 
 No. 282. Same continued — Return of premium. — If you 
 find that the plaintiff was guilty of intentional fraud as herein 
 limited and defined (Ante No. 281), the defendant need not 
 offer to return the premium paid on this policy for interest 
 on its invalidity because of the fraud set up in its answer. 
 
 Voris, J., in France v. Norwich Union Fire Assoc'n, Summit County 
 Common Pleas. 
 
 No. 283. Fraudulent proofs of loss. — "The jury are in- 
 structed that if they believe from the evidence that the policy 
 sued on contained a provision that all fraud, or attempt at 
 fraud, by false swearing or otherwise, shall cause a forfeiture 
 of all claims under the policy, and that, if they further believe 
 from the evidence that plaintiffs have fraudulently offered to 
 defendant proofs of loss under the policy, containing material 
 statements in regard to the loss under said policy, which the 
 plaintiffs knew to be false at the time the same were offered, 
 you will find for the defendant.' 1 
 
 From Shulter v. Ii Mo. 237.
 
 2IO INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 No. 284. Insurance — Fire — Ownership of property. — 
 
 The defendant claims that the policy of insurance issued upon 
 in this case was void and never took effect because the plain- 
 tiff at the time the policy was issued was not the owner of the 
 property insured. You are instructed therefore that if the 
 owner had no insurable interest in the property, no interest 
 therein at the time the policy was issued, the policy would 
 be void. But if you find from the evidence that he had an 
 insurable interest in the property, the policy would not be 
 void, unless you further find that the plaintiff, at the time he 
 procured said policy, falsely and fraudulently represented his 
 interest therein to the agent of the company. And if you 
 find from the evidence that at the time the policy was issued 
 the plaintiff had the legal title to the property and was in 
 possession thereof, the mere fact that a man of some other 
 name claimed an interest therein would not of itself vitiate 
 the policy. 
 
 If you find that the plaintiff at the date of the policy was 
 the absolute owner of the property, then he would have an 
 insurable interest therein. And if the plaintiff at the date of 
 the policy had a legal title to the property and was the owner 
 thereof, but that he was under obligations to account to some 
 other persons for a portion of the proceeds thereof, he would 
 still have an insurable interest therein. 
 
 But unless you find from the evidence that he falsely 
 represented to the agent of the defendant company at the time 
 of the issuing of said policy the true nature of his title and 
 interest therein, said policy would not be void. 
 
 Nye, J., in Leonard v. Queen Ins. Co. 
 
 No. 285. Insurance — Fire — Defense as to provision re- 
 quiring the production of books for examination. — The 
 
 following instructions may cover the usual provisions in 
 policies touching the matter of the production of books for 
 the examination. 
 
 The burden of proof upon this issue is upon the defend- 
 ant, and unless it satisfies you by a preponderance of the evi- 
 dence that what it alleges as to the production of books and 
 vouchers in this matter on the part of the insured, as required 
 by the policy, is true, this defense is not maintained. It was 
 the duty of the plaintiff to comply with this provision of the 
 policy and produce for examination its books, accounts, in- 
 voices, which it then had, upon the request of the defendant. 
 But only such books and other vouchers as were reasonably 
 in the power of the insured to furnish need be furnished. If 
 you find from the evidence that the plaintiff did this, and he
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 211 
 
 was ready and willing so to do, it would be a compliance on 
 his part with this provision of the policy. 
 
 If, however, you should find that the plaintiff, having 
 books of account and other vouchers, refused to furnish them 
 or permit their inspection at a reasonable time and place, or 
 if you find that books of account, bills, and other vouchers, 
 or any of them, were by the plaintiff fraudulently kept from 
 the defendant for the purpose of rendering it impossible for 
 the defendant to determine the amount of stock and loss, 
 then the plaintiff can not recover. 
 
 Melhoru, J., in Caruahan v. Fire Insurance Co., Hancock County Com- 
 mon Pleas. 
 
 No. 286. Insurance — Fire — Defense — That large quanti- 
 ties of oil and petroleum were stored, and drawn at night in 
 violation of the policy. — After reciting the facts as to the 
 provisions of the policy, the position of the parties as shown 
 by their pleadings, it may then be charged as follows: 
 
 The burden of proof to establish this defense is upon the 
 defendant, and if you find by a preponderance of the evidence 
 that the plaintiff, shortly before the fire, caused to be carried 
 into the building in which the insured property was kept a 
 large quantity of coal-oil or petroleum, which was not used, 
 and which was not intended to be used for lighting filestore, 
 or for sale therein, and was not kept for either purpose, as 
 provided in the policy, and that the oil was drawn from the 
 barrel in which it was kept and stored in the night time and 
 not bv daylight, by the direction or with the knowledge of 
 the plaintiff, this would invalidate the policy, unless the 
 storing of such oil as it appears from the evidence was brought 
 to tlie defendant's knowledge, and the companies consented 
 to Mich storing of oil in the building. If the jury find from 
 th<- evidence that coal-oil or petroleum was brought into the 
 -tore by the plaintiff, or by oik- of its members, for the purp< >se 
 of defrauding the defendant, ami for tin- purpose of increasing 
 any loss or damage that might accrue to said property by fire, 
 and that by ad or procurement of the plaintiff linn, or one- 
 of its members, the oil was put upon the flooi of the building 
 containing the insured property, or upon the goods, or both, 
 and that by igniting or burning, caused a large part of the 
 
 damage- or loss which accrued from the lire, if you find such 
 tin- fact, the- plaintiff can not recover. It must affirm- 
 atively appear that, if any such ad as this was done, il was 
 dom- by the plaintiff firm, i ither by one or both of its mem- 
 bers, o] by some one with the knowledge ami direction of the 
 members of the plaintiff linn, or either of them, and nnhss
 
 212 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 it does so appear the plaintiff can not be held responsible for 
 such act, and the plaintiff's right to recover would not be lost 
 by reason thereof. 
 
 Melhorn, J., in Carnahan v. Penn Fire Insurance Co., Hancock County 
 Common Pleas. 
 
 No. 287. Insurance — Fire — Defense — That fire was 
 caused by willful act of procurement. — After reciting the 
 charge as made by the pleadings and the position of the 
 plaintiff thereon that the fire was caused by the willful act or 
 procurement by the plaintiff, the instruction may proceed as 
 follows : 
 
 To establish the truth of this charge the burden of proof 
 is on the defendant. 
 
 The rule that applies to criminal acts when the party is 
 charged with the unlawful act of burning property that the 
 jury must be satisfied beyond a reasonable doubt of the truth 
 of the charge does not apply in civil cases. The jury are 
 permitted to find for or against the respective parties in the 
 action by a preponderance of the evidence. The defendant 
 must satisfy you by a preponderance of the evidence that the 
 allegations contained in its answer upon this ground of de- 
 fense are true, and unless this is done you can not find in 
 favor of the defendant upon this issue. 
 
 Melhorn, J., in Carnahan v. Penn Fire Insurance Co., Hancock County 
 Common Pleas. 
 
 No. 288. Insurance — Steamboat — Negligence of owner's 
 agent — Seaworthiness of boat. — "If she was in a seaworthy 
 condition, and sufficiently manned for such a boat so lying 
 up, and the loss was occasioned by the mere negligence and 
 want of proper care of her watchman and those having the 
 care of her, the plaintiff will be entitled to recover, if he has 
 proven all other necessary facts, for such negligence is a peril 
 insured against. But if the negligence consisted in allowing 
 the boat to become unseaworthy, and she was lost thereby, 
 there can be no recovery. 
 
 "The boat need not have been sufficiently seaworthy to 
 ' perform a voyage, but it must have been for her preservation 
 under all ordinary circumstances while tied up during such 
 period of non-user, and if she encountered a peril insured 
 against which she would have safely resisted if seaworthy, 
 but in consequence of being unseaworthy was sunk by en- 
 countering a peril insured against, then the plaintiff can not 
 recover. 
 
 "And further, if the boat was seaworthy when laid up v
 
 INSURANCE — FIRE, ACCIDENT, LIFE. 217, 
 
 but thereafter her seams were suffered to become open by 
 exposure, which the plaintiff failed to have properly caulked, 
 and she was not in a safe and seaworthy condition requisite 
 for her safety when tied up, then the plaintiff can not recover. 
 "The boat must have been kept in such condition as to 
 be reasonably sufficient to withstand the ordinary perils attend- 
 ing a boat so laid up at that time and place. If she was not 
 so kept, the plaintiff can not recover, no matter what peril 
 she may have encountered. If she was, and encountered 
 wind or waves by which she broke her spars, was driven 
 against the bank, and careened so as to be thrown on her side 
 in such a way as to take in water at her seams which were 
 far enough above the water-line so as not to endanger her 
 safety while lying up under ordinary circumstances, and sunk 
 in consequence thereof, then the plaintiff can recover, if he 
 had provided and kept at the boat a force of men sufficient to 
 take care of the boat under ordinary perils, whether all such 
 men were directly in his employ and pay or not." 
 
 From Insurance Co. v. Parisot, 35 O. S. 35. 
 
 No. 289. Insurance — Accident — Proof of claim. — The 
 case from which the following instruction was taken alleged 
 that immediately after the accident and death due proof and 
 proper notice thereof, together with full name and address of 
 the insured, was given to the defendant. That on a certain 
 day named, due and affirmative proof of death, resulting from 
 external, violent, and accidental means, was furnished to the 
 defendant. 
 
 If you find from the evidence that blank forms were pro- 
 vided by the company for plaintiff, and the same were filled 
 out, sworn to before a notary public by plaintiff and others, 
 and transmitted t<> II.. state agent for the company, by mail, 
 and the same were received by the company, and thereupon the 
 company in reply thereto notified the plaintiff by the letter, 
 
 "exhibit A," that her claim under accident policy Xo. , 
 
 written by this company on the life of G. S., has been dis- 
 allowed, you may treat the condition of the policy as a proof 
 of death of th<- insured, as having been complied with on the 
 part of the plaintiff, oi that the defendant waived further 
 proofs of death. 
 
 Voris, J., in Worstler v. Travellers' Ins. Co . Summit Count} Common 
 Pleas, 
 
 No. 290. Insurance — Accident — What necessary to en- 
 able recovery for death upon. — To enable the plaintiff to 
 recover, it must appear from a preponderance of the evidence
 
 214 INSURANCE — FIRE, ACCIDENT, LIFE. 
 
 that the death of the insured resulted from bodily injuries, 
 occurring during the term of the insurance, through external, 
 violent, and accidental means independent of all other causes, 
 and that his death resulted from such injuries alone within 
 ninety days. 
 
 The burden is upon the plaintiff to establish by such pre- 
 ponderance of the evidence that his death resulted from such 
 injuries, and that she made other allegations in the petition 
 controverted by the defendant's answer. 
 
 If the alleged fall was the proximate cause of his death, 
 though he may have had internal disease or bodily infirmity 
 at the time of such fall, but from which he would not have 
 died but for the injuries resulting from the alleged fall, so 
 that you can say that his death did not result wholly or partly, 
 directly or indirectly, from disease or bodily infirmity other 
 than that resulting from the injury, then the fact that he had 
 such disease or bodily infirmity at the time of the alleged 
 injuries would not be sufficient to defeat his right to recover. 
 
 By proximate cause is meant a cause from which the death 
 of the insured, in the natural and ordinary course of events, 
 would be likely to follow ; but if the death did result wholly 
 or partially, directly or indirectly, from disease or bodily 
 infirmity existing at the time of the fall, so that you can say 
 from the evidence that such disease or bodily infirmity was 
 the proximate cause of his death, she can not recover. 
 
 Voris, J., in Worstler v. Travellers' Ins. Co., Summit County Common 
 Pleas. 
 
 No. 291. Consideration — Adequacy or sufficiency not 
 inquired into. — Was this a sufficient or adequate considera- 
 tion for the assignment from J. L. to plaintiffs? While it is 
 necessary that the consideration for the assignment be of 
 some value, yet the law will not enter into an inquiry as 
 to the adequacy or sufficiency of the consideration for the 
 assignment, but will leave the parties to be the sole judges 
 of the benefits to be derived from this contract, unless the 
 inadequacy or insufficiency of consideration is so great as of 
 itself to prove fraud or imposition. 
 
 Horace L. Smith, Judge, in Sabin v. Corcoran, 52 O. S. 636. See Judy 
 v. Louderman, 48 O. S. 562. 
 
 No. 292. Insurance — Application for — Statements, how- 
 treated. — The plaintiff (widow) is bound by the policy and 
 statements made by her husband. Dr. M. O'H., which are 
 a part of the contract. The application and statements 
 therein are warranties, and are binding on her as if made by
 
 INSURANCE — FIRE. ACCIDENT, LIFE. 215 
 
 her, if by its terms the application did warrant. The in- 
 surance company had a right to make such application to be 
 a part of the policy, and had a right to rely upon such war- 
 ranties. The statement in his application that he had never 
 been rejected was material, and was warranted to be true 
 by him ; and it would be a fraud on the defendant for him to 
 state that he had never been rejected. But if at the time the 
 company received this last application it knew that Dr. 
 M. O'H. had been rejected by it in the past, then that fact 
 would not operate in this case to debar the recovery; for the 
 company, in such case, issuing the policy with the knowl- 
 edge of the untrue fact, is barred from setting it up as a 
 defense. 
 
 So, too, as to representations and warranties as to his 
 health and his relatives ; he warranted these statements true, 
 and the}- were matters upon which the company had a right 
 to rely. However, bearing upon all these answers and war- 
 ranties, Section 3625 of the statutes of this state provides and 
 says that no answer made in his application for a policy 
 shall bar the right to recover, unless it be proved that the 
 answer was willfully false and fraudulent ; that it was material, 
 and induced the company to issue the policy, and but for 
 that, the policy would not have been issued. This is giving 
 the substance or meaning of the statute referred to, and is 
 stated by me as the law 7 governing this case. 
 
 I have said to you that all these answers were material ; 
 but unless they or some of them were willfully false, and 
 made by Dr. M. O'H., and induced the company to issue the 
 policy, and but for such answer the policy would not have 
 been issued, then any such untrue answer could not operate 
 as a bar to recovery herein. 
 
 G. I". Robinson, Judge, in Total Abstinance Life Association of Amer- 
 ica v. O'Harra. Dismissed in Supreme Court No. 3357. Charge approved 
 
 by Circuit Court, Portage County. 
 
 No. 293. Insurance — Life — Misrepresentations made by 
 the insured. — "A misrepresentation or false statement made 
 in his application for insurance-, by a person whose life is 
 insured, respecting a materia] fact, avoids the policy issued 
 upon that application, and this whether the misrepresenta- 
 tion was made innocently or designedly. If. therefore, the 
 jury believed from the evidence that the insured, in his ap- 
 plication for the policy or certificate here sued on, stated that 
 lie had no serious illness, or stated that he had not had dur- 
 ing the last seven years any disease or severe sickness, and 
 that either of those statements were false in any respect, and
 
 2l6 LANDLORD AND TENANT. 
 
 are deemed by the jury material, then whether the insured 
 intended to deceive or not, the said policy or certificate is 
 void, and the jury should find for the defendant, unless they 
 further believe that the avoidance of the policy or certificate 
 has been waived by the defendant. ' ' 
 
 Schwarzbach v. O. V. Protective Union, 25 W. Va. 640. 
 
 No. 294. Same continued — What constitutes a waiver 
 of misrepresentations. — " There can be no waiver of the 
 avoidance of a policy by reason of material false statements 
 or misrepresentations in the application, unless the acts 
 relied upon as showing the waiver were done with full 
 knowledge of the facts. While, therefore, the receipt of 
 premiums or assessments with full knowledge on the part of 
 the defendant of facts working a forfeiture of the policy, 
 might constitute a waiver of such forfeitures, yet the receipt 
 of such premiums or assessments in ignorance of such facts 
 would not constitute a waiver. ' ' 
 
 Schwarzbach v. O. V. Protective Union, 25 Va. W. 640. 
 
 LANDLORD AND TENANT. 
 
 No. 295. Duty of landlord as to walks in and about 
 premises — Injury from walk. — It is the duty of a landlord 
 who lets premises to which there is a common walk, which 
 remains under his own control and is not let to any of the 
 tenants, to use reasonable care and diligence in keeping that 
 walk in repair ; and if, by his failure to use that sort of care 
 and diligence, the walk gets out of repair, and a party is 
 injured by reason thereof, without having been guilty of any 
 negligence which contributed to the injury, then he or she 
 would be entitled to recover. 
 
 If the walk upon which the plaintiff is alleged to have 
 been injured was a common way, and was under defendant's 
 control, it was his duty to see to its condition, and the fact, 
 if such were the fact, that the plaintiff did not inform defend- 
 ant of its unsafe condition does not necessarily preclude 
 plaintiff's recovery. 
 
 The renting or leasing of a house will include everything 
 belonging to it, or which is reasonably necessary to its enjoy- 
 ment. It will also include all usual and accustomed ways to 
 the house. Whenever a house is rented or leased, all the
 
 LANDLORD AND TENANT. 21 7 
 
 means to which the lessor is entitled to attain the use and 
 enjoyment of the house pass by the renting or leasing to the 
 tenant. These are called appurtenances and pass to the 
 tenant by the renting or leasing of a house without being 
 made. If you find from the testimony and from all the cir- 
 cumstances of the case that so much of the yard and the walk 
 
 therein, in the rear of No. Street as would be included 
 
 within the lines of the house so numbered prolonged, are 
 reasonably necessary to the enjoyment of that house, then so 
 
 much of the yard in the rear of No. Street, and the 
 
 walk therein, included between the lines of the house pro- 
 longed, were included in the renting of the house to the 
 plaintiff, and were under her care and control, and she can 
 not recover in this action, although other tenants of the 
 
 blocks of buildings of which said No. Street is one 
 
 have a right of way over the walk. 
 
 The fact that other tenants of the row had a right of way 
 in the walk extending through the yard of each of the others 
 does not necessarily show that the custody and control of such 
 part is not in the tenant through whose yard it passes. 
 
 From Thomas J. Emery v. .Mary A. Dee, Supreme Court, 27 W. L. B. 
 160, No. 1542. H. D. Peck, Judge. 
 
 No. 296. Same continued — Defects in walk known to 
 plaintiff — Effect of. — The plaintiff admits that she knew of 
 the defects in the walk. Her knowledge of the defects is a 
 prominent fact in the case to be taken into consideration with 
 all the other facts and circumstances in determining the 
 question whether her own negligence contributed to the acci- 
 dent by which she claims she was injured. And if you should 
 find that by her own carelessness she did contribute to the 
 accident, she can not recover. 
 
 The law does not measure degrees of carelessness, and if 
 you find that the plaintiff in any material degree contributed 
 by her carelessness to the injury, she can not recover. 
 
 Knowing the defective condition of the walk when she 
 rented the premises, plaintiff was therefore bound to use such 
 increased care in using the walk as its defective condition 
 required, and she can not excuse herself for the want of such 
 care by the plea that she was not responsible for the defects 
 themselves. 
 
 1 rom Emery v. Dee, Supreme Court, No. nr,. 
 
 No. 297. Action for rent under lease — Defense that 
 building was rendered unfit for occupancy by fire — Extent 
 of destruction necessary. — The question, then, is whether in
 
 2 I 8 LANDLORD AND TENANT. 
 
 this case there was such a destruction or such an injury to the 
 premises by the fire and the water — by what occurred at that 
 time resulting from the fire— as that it became unfit for occu- 
 pancy ; because, to justify a lessee in abandoning premises, or 
 insisting upon the termination of a lease, the injury or de- 
 struction must go to the extent of rendering the premises unfit 
 for occupancy. It must amount to such destruction as that 
 the premises are unfit for occupancy ; not that there must be 
 an absolute wiping out of the building — its absolute destruc- 
 tion from the face of the earth — but it must be such an injury, 
 or the injury must go so far toward total destruction, as that 
 it is no longer suitable to be used for commercial purposes, 
 or for such purposes as it was fairly and reasonably designed 
 to accommodate in its original construction. Mere temporary 
 inconvenience occasioned by a fire would not justify or 
 authorize a tenant to vacate premises, nor would it have the 
 effect to terminate the lease. Mere inconvenience, the mere 
 cessation or interruption to business for a day or two, would 
 not have that effect. It must go to the extent of rendering 
 the premises untenantable, so that the situation requires a 
 removal elsewhere. 
 
 Now, it is hardly within the province of the court to 
 indicate, I think, just what state of facts would justify a 
 removal, or would justify the terminating of a lease. I only 
 propose, in a general way, to give you general rules for your 
 guidance. As I say, mere temporary inconvenience, a mere 
 wetting of the walls by itself, standing alone, as a circum- 
 stance, the wetting of the floors, the mere putting out of the 
 fire by flooding a cellar, if it could be removed within a short 
 time, if the effects could be overcome within a short time — 
 any one of these things alone would not constitute such 
 destruction, or such an injury to the premises as would justify 
 a lessee in terminating a lease. Those are all circumstances 
 to be considered, however, together with other things, with 
 a view of determining whether the, building, as a structure, 
 has undergone such injury and such destruction as a whole 
 that it is no longer a structure suitable for the business for 
 which it was designed. If this fire was of such extent and 
 so destroyed these premises as a whole (and I now refer in 
 what I say to the premises as a whole), if they were injured 
 to such extent that there was a burning away of the roof or 
 of the windows, that is spoken of as to make these premises 
 as an entirety unfit for occupancy, unfit to be used in a com- 
 mercial business, then it was the right of the lessees to vacate 
 the premises and terminate this lease; it was their right to 
 insist upon its being terminated, if such a condition of things
 
 LARCENY. 219 
 
 occurred. If there was such a destruction or such injury, if 
 it went to the extent that the building as a whole was un- 
 tenantable, unfit for occupancy, then they would have the 
 right, we think, under the statute, under this lease, to insist 
 upon its termination. 
 
 Carlos M. Stone, Judge-, in Weil, Joseph & Co. v. Gilchrist. Judgment 
 affirmed. R. S. Sec. 41 13. The injury contemplated by the statute is a 
 total destruction. Suydam v. Jackson, 54 N. Y. 450; Stitphen v. Seebass, 
 12 Daly, 139; Hillard v. Coalles, 41 O. S. 662. 
 
 LARCENY. 
 
 No. 298. Larceny defined. — The statute under which this 
 indictment is brought provides that "whoever steals anything 
 of value is guilty of larceny (R. S. Sec. 6856), and shall be 
 punished as is provided in the statute. " It may aid you in 
 arriving at a just and proper verdict by defining some of the 
 terms involved in the crime charged in this indictment. 
 
 To steal is to take and carry away feloniously personal 
 goods of another; 1 to take without right or leave. Larcenv 
 is the wrongful taking and carrying away by any person of 
 the mere personal goods of another from any place, with a 
 felonious intent to convert them to his (the taker's) own use, 
 and make them his own property without the consent of the 
 other. Again, larceny is defined to be the wrongful or 
 fraudulent taking and carrying away without color of right 
 the personal goods of another, from any place, with the 
 wrongful intent to convert them to his (the taker's) own use, 
 and make them his property without the consent of the owner. 
 
 Again, I say to you, larcenv is the taking and removing 
 by the trespass of personal property, which the trespasser 
 knows to belong to another, with the felonious intent to 
 deprive him of his ownership therein. 8 
 
 'The word "steal" implies a carrying away. State v. Mann, 25 
 
 •Nye, Judge, in State v. Michke, Lorain County Common Pleas. For 
 definition see 2 Bish. Cr. Law, See. 758; Clark's Cr Law, 241; Hawley's Cr, 
 
 Law, iSS. 
 
 No. 299. Grand larceny — Essential or material allega- 
 tions in indictment to be proved. — ( Precede by statement of 
 
 allegations of the indictment. ) Material allegations of the 
 indictment and the things which it is necessary for the state 
 to prove before it would be- entitled to a conviction at your 
 15
 
 22 LARCENY. 
 
 hands are as follows: First. That the personal property 
 named in the indictment or some part of it was stolen. 
 Second. That the defendant here on trial committed the 
 offense. Third. That the said property was the property of 
 E. M. Fourth. That said offense was committed within the 
 
 Comity of , State of Ohio. Fifth. That the offense 
 
 was committed on or about the day of , iS — . 
 
 No. 300. What constitutes a taking and carrying 
 away. — i n order to constitute the offense of larceny there 
 must be an actual taking or severance of the thing from the 
 possession of the owner, for, as every larceny includes a 
 trespass, if the party be not guilty of a trespass in taking the 
 goods, he can not be guilty of a felony in carrying them 
 away. l 
 
 There must also be a carrying away of the goods taken. 
 When this is done the offense is complete, the crime is com- 
 mitted, and can not be purged by a return of the goods, though 
 the possession be retained but for a moment. 2 
 
 The felony lies in the very first act of removing the prop- 
 erty ; therefore the least removing of the entire thing taken, 
 with an intent to steal it, if the thief thereby for an instant 
 obtain the entire possession of it, it is an asportation, though 
 the property be not removed from the premises of the owner, 
 nor retained in the possession of the thief. 8 
 
 ■ Eckels v. State, 20 O.S. 512; Roscoe's Crim.Ev. 587; 2 Russ. on Crimes 5. 
 
 2 Id. 3 Greenleaf ' s Ev., Sec. 156; 2 Russ. on Crimes 6. 
 
 3 Eckels v. State, 20 O. S. 512-13. The thing need not be taken into the 
 manual possession of the thief. Lem. Doss v. State, 21 Tex. App. 505. 
 
 No. 301. Return of property upon being discovered does 
 not change offense. — The jury are instructed that if the de- 
 fendant had actually taken the money into his hand, and 
 lifted it from the place where the owner had placed it, so as 
 to entirely sever it, he would be guilty of larceny, though he 
 may have dropped it into the place in which it was lying, 
 upon being discovered, and never have had it out of the 
 drawer. 
 
 Eckels v. State, 20 O. S. 508. 
 
 No. 302. What constitutes larceny of property where 
 the owner voluntarily parts with its possession. — You are 
 
 instructed that to constitute larceny in a case^ where the 
 owner voluntarily parts with the possession of his property, 
 two other conditions are essential. 1. The owner, at the 
 time of parting with the possession, must expect and intend 
 that the thing delivered will be returned to him or disposed
 
 LARCENY. 221 
 
 of under his direction for his benefit. 2. The person taking 
 the possession must, at the time, intend to deprive the owner 
 of his property in the thing delivered. But where the owner 
 intends to transfer, not the possession merely, but also the 
 title to the property, although induced thereto by the fraud 
 and fraudulent pretenses of the taker, the taking and carrying 
 away do not constitute a larceny. In such case the title vests 
 in the fraudulent taker, and he can not be convicted of the 
 crime of larceny for the simple reason that, at the time of 
 the transaction, he did not take and carry away the goods of 
 another person, but the goods of himself. 
 
 From Kellogg v. State. 26 O. S. 15, 18-19. See State v. Coombs, 55 Me. 
 477 ; Beatty v. State-, 6i Miss. [8; Suapp v. Com., 82 Ky, 173. As to manner 
 of taking see Clark's Cr. Law 248. 
 
 No. 303. Grand larceny committed by destruction of 
 property — Intent — How proved. — The state claims that the 
 defendants here on trial took the property named in the in- 
 dictment and carried it and conveyed it away and destroyed 
 it by burning it up. 
 
 The state further claims that defendants took said prop- 
 erty with intent to convert it to their own use and then destroy 
 it, for the purpose of depriving the owner of said property. 
 
 On the other hand, the defendants deny that they took 
 the property with intent to convert it to their own use, and 
 they further deny that thev took the property at all, and they 
 deny that they burned or destroyed the property, and deny 
 that they had anything whatever to do with it. 
 
 Now, gentlemen, if von find from the evidence given you 
 in this case that the defendants took the property named in 
 the indictment, or any portion thereof, it will be important 
 for you to determine with what intent they took said property. 
 
 Intent can rarely be proved by the direct evidence of the 
 condition of tin- person's mind, hence the presence or absence 
 of intent must be gathered by considering all the facts and 
 circumstances, to determine whether the acts were accompa- 
 nied by a criminal purpose or an honest purpose. 
 
 If you find from the evidence that tin- defendants here on 
 trial feloniously took the property named in the indictment, 
 with intent to convert it to their own use, without the con- 
 sent of the ownei thereof, then I say to you that such an act 
 would constitute a larceny of the property so taken. 
 
 to you if you find from the evidence given 
 
 von in this ease that the defendants here on trial feloniously 
 toot said property with intent to destroy it, and thus deprive 
 the owner of it without the owner's consent, such act would 
 constitute larceny of said property.
 
 222 LARCENY. 
 
 If you find from the evidence that has been given you on 
 the trial of this case that the defendants here on trial took 
 said property, it will be important for you to determine with 
 what intent they took it. If you find from the evidence that 
 the defendants took said property without the consent of the 
 owner and failed to return it, that fact may be considered in 
 determining with what intent the defendants took the prop- 
 erty at the time they took it. 
 
 Again if you find from the evidence that the defendants 
 took said property without the consent of the owner thereof, 
 and soon thereafter destroyed it by burning it up, that fact 
 may be considered by you in determining with what intent 
 they took said property. 
 
 Nye, Judge, in State v. Mischke, Lorain County Common Pleas. 
 
 No. 304. Larceny — Of lost money — What essential to 
 constitute. — "Though the money was actually lost and the 
 defendant found it, and at the time of finding supposed it to 
 be lost, and appropriated it with intent to take entire dominion 
 over it, yet really believing that the owner could not be 
 found, that was not larceny and he can not be convicted. 
 The intent to steal must have existed at the time of the 
 taking. It is not enough that he had the general means of 
 discovering the owner by honest diligence. He was not 
 bound to inquire on the streets or at the printing offices for 
 the owner, though if, at the time of the taking, he knew he 
 had reasonable means of ascertaining that fact, that might be 
 taken as showing a belief that the owner of the money could 
 be found. In order to convict, it must be shown that the 
 taking of the property was with felonious intent; that is, 
 with intent to steal under the definition given ; and it is not 
 sufficient that subsequently after finding the money it was 
 converted to his own use with felonious intent. The intent 
 must have existed at the time of the finding. ' ' 1 
 
 If a person finds goods that have actually been lost, and 
 believing at the time, or having good reason to believe, that 
 the owner can be found, but takes possession with intent to 
 appropriate the same to his own use, he is guilty of larceny. 2 
 
 1 From Brooks v. The State, 35 O. S. 46. For another charge and au- 
 thorities see Thompson's Trials, Sec. 2202. 
 
 2 Baker v. State, 29 O. S. 184 : Regina v. Thurborn, 1 Dennison C. C. 387 ; 
 Regina v. Wood, 3 Cox C. C. 453 ; Clark's Cr. Law 255. 
 
 No. 305. Value of property must be proved. — Before the 
 defendant can be convicted, you must be satisfied that the 
 property claimed to have been stolen is of some value. If the
 
 LIBEL AND SLANDER. 223 
 
 state has failed to affirmatively prove that the property was 
 of some value, then it is the duty of the jury to acquit the 
 defendant. This fact must be proved as other facts. 
 
 State v. Krieger, 6S Mo. 98. 
 
 LIBEL AND SLANDER. 
 
 No. 306. Libel per se — Defined. — Libel may be denned 
 as follows: "Any false and malicious writing (and I include 
 printing in the term ) published of another is libelous per se 
 when its tendency is to render him contemptible or ridiculous 
 in public estimation, or expose him to public hate or con- 
 tempt, or hinder virtuous persons from associating with him, 
 or which accuses him of a crime punishable by the laws of 
 the state, or charges him with conduct, the natural or ordinary 
 results of which would be to prevent him from engaging in 
 and pursuing his vocation or profession (as a teacher for 
 instance), or otherwise, and thereby deprive him of the earn- 
 ings thereof, and which he otherwise would have obtained." 
 By publishing it is meant that the matter must be communi- 
 cated to some other person or persons than its author. But 
 the terms should not be restricted to this definition alone. 
 We also use the term publication as signifying the matter 
 published, as well as the act of publishing, and sometimes 
 such an act of publishing as is wrongful. 
 
 Voris, Judge, in Carrier v. Findley et al. For definitions see Kin- 
 kead'9 Pig., Sec. 752; Watson v. Trask, 6 O. 533; Cooley <>n Torts, 225-26. 
 
 No. 307. Libel defined in Dean v. Commercial Gazette 
 Co., by Judge Sam'l F. Hunt, Hamilton County — Touching 
 upon rights of newspaper — Liberty of press, etc. — Giving 
 most of his charge. — "The Bill of Rights in the Constitution 
 of ( >hio d( clares that every citizen may freely speak, write, 
 and publish his sentiments on all subjects, being responsible 
 for the abuse of that right, and no law shall be passed to/ 
 
 in or abridge the liberty of speech or of the press. The 
 publisher of a newspaper has exactly the same right and is 
 responsible to exactly the same extent for the abase of that 
 right as any other citizen. His right and responsibility 
 in the matter of a publication are no more and no less 
 than that of others under like circumstances. A libel has 
 been defined to be a wrong occasioned by writing or effigy.
 
 224 LIBEL AND SLANDER. 
 
 It has been held in reference to an individual injury to be a 
 false and malicious publication against one, either in print 
 or writing, or by pictures, with intent to injure his reputa- 
 tion, and to expose him to public hate, contempt, or ridicule. 
 Indeed everything written or printed which reflects on the 
 character of another and is published without lawful justi- 
 fication or excuse is a libel, whatever the intention may have 
 been. Any written words are defamatory which impute to 
 another that he has been guilty of any crime, fraud, dishon- 
 esty, immorality, vice, or dishonorable conduct, or has been 
 accused or suspected of any such misconduct, or which sug- 
 gests that the person is suffering from an infectious disorder, 
 or which has a tendency to injure him in his office, profes- 
 sion, calling, trade, or reputation. 
 
 A libel consists in the abuse of that constitutional right 
 by maliciously writing or printing, of and concerning another, 
 any language or representation which is false, and the natural 
 tendency and effect of which is to injure such other person 
 in his character and reputation or business in the community 
 where he lives and is known, or in any way to lessen him in 
 public esteem. 
 
 It will be your duty to take the article submitted in evi- 
 dence, read it carefully in whole and detail, and decide as 
 men of judgment and experience if it had such a tendency 
 and effect as contended for by the plaintiff or any of these 
 tendencies and effects, so far as the reputation and character 
 of the defendant are concerned ; or whether, on the other 
 hand, as claimed by the defendant, it can not be fairly said 
 to have had such tendencies or effect, or any of them. 
 
 If in your judgment the publication of the article in 
 question had no such tendencies and effect as have been men- 
 tioned, it will be your duty to return a verdict for the defend- 
 ant without proceding further in the case. 
 
 If, however, by reason of the publication of the article 
 in question, you should find that the plaintiff was injured in 
 his character and reputation, and has been injured as claimed 
 in the petition, then your verdict must be for the plaintiff, 
 because it is a presumption of law that anything stated in 
 such publication derogatory or injurious to the character and 
 reputation of the plaintiff is false, and the law further pre- 
 sumes that the defendant, in publishing the same, intended 
 to cause whatever injury naturally would and did result from 
 such publication. 
 
 As to damages. — 
 
 It will be your duty further to consider whether your ver- 
 dict, if for the plaintiff, shall be for nominal or substantial
 
 UBEL AND SLANDER. 225 
 
 damages. In this connection it will be necessary to deter- 
 mine whether, under all the circumstances disclosed by the 
 evidence, the plaintiff has suffered a real or substantial injury 
 as alleged in the petition, or whether he has suffered only 
 what is termed in law a nominal injury. Nominal damages 
 may be presumed from the publication of libelous matter, 
 but the amount of such nominal damages must be left to the 
 good judgment of the jury to be exercised upon all the evi- 
 dence. The amount awarded for nominal damages must rest 
 in the sound discretion of the jury and may not exceed one- 
 cent. 
 
 The plaintiff contends that he has been greatly damaged 
 by reason of such publication. If you find that the plaintiff 
 has not suffered any real or substantial injury, he is entitled 
 only to such nominal damages as I have indicated. If the 
 plaintiff suffered real or substantial damages as alleged, then 
 he is entitled to receive such a sum as in your judgment 
 would fairly compensate him for such loss. It may be re- 
 garded, too, as settled in this state that in actions of tort, 
 involving malice, fraud, insult, or oppression, the jury may,, 
 in estimating compensatory damages, take into consideration 
 the reasonable counsel fee of the plaintiff in prosecuting this 
 action for the redress of his injury as against the wrong-doer, 
 even when there are mitigating circumstances not amounting 
 to a justification. 
 
 In order that you may pass intelligently upon the question 
 of damages, if any damages are to be awarded, it will be 
 proper for you to consider the character and reputation and 
 standing of the defendant. The extent of an injury to a 
 person's reputation or character must depend partly on the 
 nature of the publication itself, and partly on the character 
 and reputation of the party involved. The law presumes 
 every man's reputation to he good until the contrary is made 
 to appear. 1 If you find the publication a libel, as the term 
 has been defined, it will be left to vou, after all, to say to 
 what extent under all the circumstances and evidence his 
 character and reputation have been damaged thereby, .subject 
 only to tin- propositions of law which have been given to you 
 by the court. ' 
 
 There is no way of reaching an accurate conclusion in 
 
 like the one on trial except through the good judgment 
 
 of the jury. The law therefore permits tin- jury to take 
 
 such a view of all the facts and circumstances properly in 
 
 evidence in the assessment of damages, and measure such 
 
 1 Kinke u Pleading, p. 724, and note 2; Blakeslee v. Hughes, 50 
 
 1 1 - 490.
 
 226 LIBEL AND SLANDER. 
 
 damages accordingly as may have been shown by the publi- 
 cation itself. 
 
 You are to consider whether the publication complained 
 of was made only with such malice as the law implies from 
 the mere doing of a wrongful act, which is recognized in the 
 law as "implied malice," or with an actual evil intent or 
 express purpose to injure; or that it was not only false but 
 known to be so by the defendant at the time of the publica- 
 tion itself, or recklessly made without inquiry or information 
 upon which the defendant was fairly justified in relying 
 in its publication. It may appear to you on the contrary, 
 that while the defendant may not convince you that he 
 should escape the actual consequences of the alleged libelous 
 matter, if wrongful in fact, yet there was no actual malice 
 on the part of the defendant, no real or conscious intent to 
 injure, no bad motive; that, though in fact false, the defend- 
 ant in making the publication acted upon information on 
 which he was fairly justified in relying; that there was more 
 or less truth, or a greater or less approach to the truth in this 
 publication to palliate to a greater or less degree, or excuse 
 in a greater or less measure the publication itself. You may 
 consider all those circumstances. It is no defense, nor even 
 a justification, for a newspaper to publish a communication of 
 and concerning another libelous of itself, but at the same 
 time it is proper for the jury to consider all the cirumstances 
 connected with such publication in mitigation of damages. 2 
 
 2 Approved by Supreme Court 
 
 No. 308. Libel — Liberty of speech and press — Ex- 
 plained. — As to the liberty of speech and the press, the people 
 of Ohio are so jealous of the right of free speech and the free 
 press, that we have provided in our constitution: "That 
 every citizen may freely speak, write, and publish his senti- 
 ments on all subjects, being responsible for the abuse of the 
 right ; no law shall be passed to restrict or abridge the liberty 
 of speech or of the press. " . 
 
 While calling your attention to the constitutional pro- 
 vision, we must not omit to say that this liberty to freely 
 speak, write, and publish one's sentiments on all subjects is 
 not inconsistent with the protection due to private character, 
 and is coupled with an express declaration of its responsibility 
 for its abuse. It has been well defined as consisting in the 
 right to publish with impunity the truth with good motive 
 and for justifiable ends , but this liberty or privilege can not 
 be justified when it is exercised to publish libelous matter to 
 the injury of another. So far as this action is concerned,
 
 LIBEL AND SLANDER. 227 
 
 this comprehends the privilege of the defendant publishing 
 company to publish the article in contention. ' 
 
 Xo person or newspaper has any right to trifle with the 
 reputation of any person, or by carelessness or recklessness to 
 injure the good name, profession, or business of another by the 
 publication of libelous matter. It can not do so without answer- 
 ing for the libel in damages; and the greater the influence of, 
 the author, if a private individual, and the greater the influence 
 and circulation of the paper, if by a newspaper, the greater 
 the wrong, and makes the duty more imperative to be careful 
 and circumspect in the matter of the publication. No popular 
 greed for defamatory news can be an excuse for its publica- 
 tion ; and in no way can it relieve the defendant from legal 
 liability attaching to such publication. The newspaper bus- 
 iness like any other must be conducted with due regard to 
 the rights of others. It is a wise rule of law that everyone 
 should conduct himself and his own business affairs in such 
 a reasonable and prudent manner that others be not injured 
 thereby, and the prudence required is commensurate with the 
 hazards occasioned. 
 
 Publishers of newspaper articles are subordinate to this 
 rule. As already stated, the truth is privileged when pub- 
 lished from good motives and for justifiable ends, but the 
 truth not having been interposed as a defense in this action, 
 the only effect to be given to the evidence offered as to the 
 truth of the alleged libelous matter is to reduce the amount 
 of damages. But this evidence can not operate to defeat 
 recovery for, at least, nominal damages. . . . To reduce 
 your verdict on this ground to nominal damages the proof of 
 the truth of the matter charged should cover the whole of it. 
 That is it should be as broad as the charge and show that the 
 whole of it is truthful, for if any part of it should appear from 
 the evidence to be false, and that part caused injury to the 
 plaintiff, he would be entitled to recover compensatory 
 damages at least.' 
 
 on Torts, 255, 217 a*- to liberty of press. 
 • Voris, |ii<k" . in Carrier v. Findley, Summit County Common Pleas. 
 
 No. 309. Reasonable criticism may be made by news- 
 paper. — The right to ex< aable criticism should he 
 extended liberally to the newspaper press. 
 
 Just criticism, though severe, may be a great conservator 
 of the chi rad morals of the people. To truthfully and 
 
 fairly hold up to public view and condemnation, conduct that 
 is wrongful and detrimental to social well-being is a very 
 useful and important office of the newspaper press; you are
 
 228 LIBEL AND SLANDER. 
 
 therefore instructed that whenever the object of any news- 
 paper publication fairly considered is not to injure reputation, 
 but to correct and to hold up to public condemnation that 
 which is hostile to morality and official integrity, does not 
 come within the definition of libelous matter, so long as the 
 author or authors keep themselves reasonably and in good 
 faith within the line of truthful and wholesome criticism. 
 
 Voris, Judge, in Carrier v. Findley, Summit County Common Pleas. 
 
 No. 310. Publishing information received from others — 
 Liability therefor. — A person receiving information from 
 others, which if true would be injurious to the character or 
 reputation of another, is not justified in publishing that 
 information to the prejudice of that other person merely 
 because he believes it to be true; he must not only have good 
 reason to believe it to be true, but he must have published it 
 from justifiable motives, and if it turns out to be untrue, and 
 he acted without due diligence, and another is injured thereby, 
 he can not therefore escape liability. 
 
 There is no legal immunity in favor of anyone repeating 
 libelous matter. He who republishes such matter takes the 
 risk of its untruthfulness and liability for what injury it may 
 cause. 
 
 Voris, Judge, in Carrier v. Findley, Summit County Common Pleas ; 
 Cooley on Torts, 259 (* 220). Giving with the publication the name of 
 the author is no protection. Haines v. Welling, 7 O. 253 ; Fowler v. Chi- 
 chester, 26 O. S. 9; Dole v. Lyon, 10 Johns. 447. 
 
 No. 311. Publication made to whom. — To constitute a 
 libel, publication must be made to a person or persons other 
 than the person against whom the libelous words are pub- 
 lished. 
 
 It would not be libelous for the defendant to send to the 
 plaintiff a communication which would be libelous if sent to 
 a person other than the plaintiff. 
 
 Nye, Judge, in Stevens v. McBride, Summit County Common Pleas. 
 
 No. 312. Slander and libel — Defamatory words must be 
 spoken to some person. — In legal contemplation, defamatory 
 words do not constitute slander, unless they are spoken to 
 some person or persons other than the individual concerning 
 whom they are uttered. To say to one's face any derogatory 
 or evil thing respecting him is no defamation, nor is it a 
 publication in a legal sense to speak slanderous words to a 
 person in a public place, and in the presence of or near to 
 other people, if in fact the words thus spoken are not heard
 
 LIBEL AND SLANDER. 229 
 
 or understood by anyone excepting the individual to whom 
 they are addressed. 
 
 If, therefore, you should find from the evidence that the 
 defendant in this case did use the language imputed to him 
 by plaintiff, and that he uttered the same in the presence of 
 the plaintiff and various other persons, but you further find 
 that the words so spoken by him were not heard or under- 
 stood by any one excepting the plaintiff, to whom they were 
 addressed, then you are instructed as a matter of law that 
 the acting of the defendant in so using said words was not 
 slander, and the plaintiff can not recover, and your verdict 
 should be for the defendant. 
 
 D. F. Pugh, Judge. Lennon v. Rice, Franklin County Common Pleas. 
 
 No. 313. Words must impute a crime. — To entitle the 
 plaintiff to a verdict it must appear that the words which the 
 defendant spoke imputed to the plaintiff the commission of 
 some crime. If the defendant accused the plaintiff of being a 
 thief, or charged her of having stolen property of his, these 
 words did charge the commission of a crime if there were no 
 qualifying or modifying words used at the same time and in 
 connection with the terms "thief, " or "steal," or "stole, " 
 because stealing — larceny — is -an indictable offense. But if 
 the accusation is or was that the latter took money or any 
 other property of the former, it does not impute a crime, 
 unless other language is used to expand its meaning that far. 
 That is, if you should find from the evidence that the de- 
 fendant did not use the word "thief," or did not charge the 
 plaintiff with having stolen the property or having com- 
 mitted a theft, but simply used language that she took the 
 property, then such words would not in and of themselves 
 constitute slanderous words, unless other words were used in 
 connection with them to expand them so as to mean that he 
 charged her with a crime. 
 
 Pugh, Judge. Lennon v. Rice, Franklin County Common Pleas. See 
 Kinkead's Pig., Sec. 753. 
 
 No. 314. Libel — Charge of altering certificate — Mean- 
 ing of words for jury. — We can not say as a matter of law 
 that the charge of altering the certificate, contained in the 
 alleged arti< '■ iminal, there being no published declara- 
 
 tion that it was done with the intent to defraud, and no innu- 
 endo in the amended petition charging that intent. But we 
 leave it to you to say, as a matter of fact, from the evidence, 
 whether its effect was, or was not, to render the plaintiff 
 contemptible in public estimation, or to injure his good
 
 23O LIBEL AND SLANDER. 
 
 name ; whether or not the natural and ordinary effect would 
 be to prevent him from engaging in his profession as a 
 teacher, or be injurious to his feelings.' 
 
 Among other things, R. S. , Sec. 7991, defines forgery as: 
 "Whoever falsely alters any certificate authorized by the 
 laws of this state with the intent to defraud is guilty of 
 forgery. 
 
 Voris, Judge, in Carrier v. Findley, Summit County Common Pleas. 
 
 No. 315. Privileged communications — Whether ex- 
 tended to member of examining school board. — As to the 
 
 privilege of the members of the examining board, I will say to^ 
 you that a member of the board of county examiners is a 
 public officer who performs duties of the highest order. The 
 law makes it obligatory on him to make an intelligent, 
 honest, and thorough examination into the qualifications of 
 every individual who teaches in the public schools of the 
 county. The statute is emphatic on this point. No one 
 can become such a teacher "until he or she has obtained 
 from the board of examiners a certificate of good moral char- 
 acter, and that he or she is qualified to teach orthography, 
 reading, writing, arithmetic, geography, English grammar, 
 and the history of the United States, and possesses an adequate 
 knowledge of the theory and practice of teaching, and, if 
 required to teach other branches, that he or she has the requi- 
 site qualifications; provided that after January 1, 1889, no 
 person shall be employed as a teacher in any common school 
 who has not obtained from such a board a certificate that he 
 is qualified to teach physiology and hygiene, and further if 
 at any time the recipient of the certificate be found intem- 
 perate, immoral, incompetent, or negligent, the examiners, 
 or any two of them, may revoke the certificate. 
 And when any recipient is charged with intemperance or 
 other immorality, the examining board shall have power to 
 send for and examine witnesses under oath." ' 
 
 The power so conferred, and the duties so imposed, create 
 the right to make the most searching inquiry into the con- 
 duct, manners, qualifications, morals, intellectual potency 
 of all persons holding certificates, or applying for one. This 
 official discretion should be exercised with sincere, intelli- 
 gent, and courageous fidelity, and every such teacher or ap- 
 plicant enters as a candidate or upon his public duties as 
 teacher upon the express understanding that his whole con- 
 duct, in the respects enumerated, is open .to the scrutiny of 
 the examiners and to the fair criticism of the newspaper 
 press. 
 
 1 R. S. Sec. 4074.
 
 LIBEL AND SLANDER. 23 1 
 
 To this end the communications and actions of the exam- 
 ining board in the legitimate discharge of their duties, exer- 
 cised in good faith and reasonably, are privileged and should 
 be fully protected. So any inquiries or communications 
 made by a member of a school board in the honest and faith- 
 ful discharge of his duties, to enable him to act advisably in 
 respect to the qualifications of the plaintiff as a teacher, and 
 in respect to the certificate he held, or in respect to an ex- 
 pected examination for certificate, should be fully protected, 
 unless he went beyond the domain of reasonable official con- 
 duct. And this protection should extend in this case to com- 
 munications made to the state board of examiners. 
 
 You are also instructed that if he found a teacher teach- 
 ing in the public schools without a certificate, that it would 
 be proper for him to call the attention of the board of educa- 
 tion of the proper township to that effect. But it was no 
 part of his official duty to publish in the newspapers of and 
 concerning the plaintiff, any matter or thing implying praise 
 or demerit, or respecting teachers or applicants for certifi- 
 cates. If he does so he does it at his peril, as if he sustained 
 no official relation to the public. His acts in that respect 
 would be determined from the same standard as that applied 
 to any unofficial person. In this respect he stands on the 
 same footing, and incurs the same liability, that private per- 
 sons do, but in the legitimate discharge of his official duties, 
 exercised in good faith and upon reasonable grounds, his 
 communications are privileged. 
 
 A teacher or a candidate for examination as such, comes 
 
 ire the board of examiners with his habits and associa- 
 tions, mental and moral qualifications, in fact his whole- 
 character open for their careful, intelligent scrutiny; the 
 board could not discharge its official duties unless the door 
 was open to them t<> eater upon a careful, and, where char- 
 acter is called in question, a searching inquiry as to the 
 qualifications <>f the teacher or candidate. To this end, not 
 only must freedom of inquiry, discretion, and communication 
 In- had a-> to all reasonable means df information, but there 
 must be exemption afterwards from liability for words written 
 or spoken in good faith and in the honest belief of the truth, 
 the making of which, if tnw, will be justified by the occa- 
 sion, though it should turn out that it was untrue. All that 
 tin- law requires in such cases is that the- officers should act 
 in good faith and reasonably under the circumstances. 
 
 'Voris.Jud rrier v. Pindleyet al, As to privileged 1 ises, see 
 
 Cooley on Tort-.
 
 232 
 
 LIBEL AND SLANDER. 
 
 No. 316. Libel — Reports of judicial proceedings — Privi- 
 lege, — You are instructed that a full, fair, and impartial 
 report of the judicial trial had in open court, where the 
 parties interested have an opportunity of ascertaining and 
 vindicating their rights, may be published with impunity, 
 providing that they are unaccompanied by malicious, de- 
 famatory comment. Reports of judicial preceedings in the 
 absence of express malice, if fair, true, and accurate, and 
 nothing more, are privileged ; but as soon as any attempt is 
 made at comment, or misstating the truth, the privilege is 
 lost. ... 
 
 The publication complained of in the plaintiff's petition 
 purports to be a report of the utterances of the judge of the 
 court made in connection with, and as a part of, the judicial 
 opinion delivered in the case then pending in court, wherein 
 this plaintiff was plaintiff, and P. D. was defendant. Such 
 matter, if fairly and truthfully reported and published, is 
 privileged, provided it was done without malice and fairly 
 stated what the court said on that subject. The defendants 
 had the right to publish as part of the proceedings of the 
 trial what the court said in delivering its opinion and deciding 
 the case, provided it was done fairly and truthfully and with- 
 out malice. 
 
 The burden is upon the plaintiff to show by a preponder- 
 ance of the evidence that the alleged libelous matter contained 
 in the publication is false. It must appear from the evidence 
 that the court, in passing and delivering its opinion in the 
 case of D. v. D., did not express the opinion attributed to it 
 in the publication complained of, or that it did not fairly and 
 truthfully report the case, or what the court said in delivering 
 its opinion, before the defendant can be held liable. 
 
 The fact that this publication was a report made through 
 a correspondent, and the claim that the correspondent pro- 
 cured the statement from another person, in no manner lessens 
 the wrong of the defendant for the words which are libelous, 
 malicious, and untrue. 
 
 Gillmer, Judge, in Doyle v. Scripps Pub. Co., Trumbull' County Com- 
 mon Pleas. As to privileged communications see Kiukead's Pldg., Sec. 
 754 ; Cooley on Torts, 246 (210) et seq. Where the answer claims the 
 publication to be privileged, and issue is joined thereon, whether or not 
 1 the same is privileged is for the jury under proper instructions. Post 
 Pub. Co. v. Moloney, 50 O. S. 71. Whether the facts which render the pub- 
 lication privileged are established by the evidence is a question for the 
 jury. Id. 85. 
 
 No. 317. Libel — Publication from report of examining 
 committee of county treasurer. — If you find that the extracts 
 so published were parts of a public record, and you should
 
 LIBEL AND SLANDER. 233 
 
 also find that the same were published from good motives and 
 for justifiable ends, the defendant would have the right to 
 publish the same and the law would protect him in that right ; 
 and in determining the motives of the defendant, you should 
 consider all the evidence before you, including the report 
 itself, which is in evidence, and, if there were portions of this 
 report which were exculpatory in their character, and these 
 were omitted by the defendant in the publication, you may 
 consider this omission in determining the motive which 
 prompted the defendant in making the publications of the 
 extracts so published by him. . . . The defendant urges 
 that the matters complained of were based upon these extracts, 
 and were fair and proper comments thereon. This is denied 
 by the plaintiff, and this brings you to the consideration of 
 the language complained of in the petition. If you have 
 found that the extracts referred to were parts of a public 
 record, and were published in the manner and for the purposes 
 stated, then as a matter of law the defendant would have the 
 right to make any fair and proper comments upon the extracts 
 so published, and which would be fairly warranted by giving 
 to the language embodied in the extracts its fair and natural 
 import, signification, and meaning; but he would have no 
 right to go beyond that and give to the report by his com- 
 ments a meaning and signification not warranted by the 
 language used in the report. And if in such a publication of 
 such comments in the report he so distorted the language 
 thereof, or the natural import and meaning of that report, 
 and the language used therein, in such manner as to wrong- 
 fully impute to the plaintiff malfeasance in office, or charged 
 him with having unlawfully or wrongfully appropriated to 
 his own use the money of the county whilst he was in office, 
 or with having conspired with others so to do, and that the 
 same was false, and you SO find from the evidence, then the 
 publication would be libelous and the plaintiff would be 
 entitled to reco -1 
 
 Johnston, Judge, in McMaster v. Caldwell. 
 
 No. 318. Comments upon report made with good mo- 
 tives, etc. — But if the defendant, in publishing comments 
 upon extracts from the report, acted from good motives and 
 for justifiable ends, and his comments thereon were fairly 
 warranted by the language of the report, then the defendant 
 would be- justified in s<, publishing such comments, and the 
 plaintiff would not be entitled to recover in this action. 
 To show that defendant published such comments for justifi- 
 able ends he must satisfy you from a preponderance of the
 
 234 LIBEL AND SLANDER. 
 
 evidence that the same was published by him in good faith, 
 for the purpose of protecting the interests of society and to 
 produce purity in public affairs, or .some other kindred pur- 
 pose, whereby the general welfare of the community was to 
 be promoted, and if you are so satisfied, then this would 
 establish the fact that the same was done. from good motives, 
 and this would constitute a defense to this action. 
 J. R.Johnston, Judge, in McMaster v. Caldwell. 
 
 No. 319. Statements made to officer in discovering 
 crime, privileged. — Statements or inquiries made to an officer 
 of the law or to others for the purpose of discovering a crime 
 or of bringing a guilty person to justice are privileged and do 
 not constitute slander, provided they are made on reasonable 
 grounds, in good faith, honestly, and without malice, even 
 though in fact they may be false and unfounded. You are, 
 therefore, instructed, gentlemen, that you can not in your 
 deliberations, for the purpose of establishing the plaintiff's 
 charge of slander against the defendant, consider any state- 
 ment or statements made by the defendant to the police 
 officers for the purpose of securing an officer with respect to 
 his suspicions that plaintiff had stolen or taken from his 
 residence linen or other articles of value, provided such state- 
 ments were made without malice, and in an honest belief in 
 their verity, and were also made for the purpose of securing 
 the assistance of the officer with a view to the promotion of 
 justice. 
 
 Pugh, Judge. Lennon v. Rice, Franklin County Common Pleas. 
 
 No. 320. Construction of words and understanding of 
 meaning by hearers. — All of the words which it is charged 
 the defendant uttered, having been spoken in one conversation 
 at one time and place, they must be construed and interpreted 
 together, and in connection with the surrounding circum- 
 stances. To constitute slander, the words used so taken and 
 construed and in connection with the surrounding circum- 
 stances must have been understood by a third person or 
 persons who heard them, if there were such persons, in the 
 ' evil sense which the law requires ; that is, as imputing the 
 commission of a crime. Prima facie, they will be "presumed 
 to have been understood according to their common import, 
 and as they would naturally impress the minds of the hearers 
 or as the defendant meant them." It is a question whether 
 the words used by the defendant, even if they were thus set 
 out in the petition or their equivalent, are not ambiguous. If 
 they are of doubtful meaning, and do not fairly and reason-
 
 LIBEL AND SLANDER. 235 
 
 ably, when taken and construed together, imply that the 
 plaintiff was a thief, or had stolen the property, it can not be 
 said that they were slanderous. 
 
 Pugh, Judge. Leunon v. Rice, Franklin County Common Pleas. 
 
 No. 321. Effect of adding excusable words. — If the^ 
 words uttered by the defendant meant that the plaintiff com- 
 mitted an indictable offense, and that the plaintiff added to 
 these words that the plaintiff was irresponsible mentally, or 
 insane, or words to that effect, these words taken all together 
 do not constitute slander ; if you find that to be the significa- 
 tion of all the words which were used by the defendant, then 
 you are instructed that they charge merely an offense which 
 was excusable. To charge a person with such an excusable 
 offense is not actionable as slander. 1 
 
 If the charge of a crime was not qualified or modified by 
 other words used in connection therewith, they were slander- 
 ous and imputed a crime of a serious nature. If that was 
 their import, they were calculated to cause great injury to 
 the feelings and reputation of the plaintiff. Indeed the law 
 deems language which imports such a crime when spoken in 
 the hearing of a third person, or persons, as defamatory, as 
 actionable in itself, and it will presume as the court and 
 jury must presume, without any proof, that the plaintiff's 
 reputation was thereby impaired. 2 
 
 ' The Court said in this connection that he was in doubt as to whether 
 or not the Court or jury should pass on the meaning of the words set 
 forth in the petition or proof, but finally committed the matter to the jury. 
 
 'Pugh.Judge, in l.ennon v. Rice. Franklin County Common Pleas. 
 
 No. 322. Libel — Meaning of words for jury. — It will be 
 necessary for you to determine from the letters themselves 
 whether the words and language used therein, imputing to 
 the plaintiff that he has been guilty of any crime, fraud, dis- 
 honesty, or dishonorable conduct, or which have a tendency 
 to injure him in his office, profession, calling, or trade. If 
 von find from the evidence that the language used in said 
 letters, or either of them, is such as to fairly and properly 
 charge or impute to said plaintiff that he has been guilty of 
 any crime, fraud, dishonest, or dishonorable conduct, or 
 which li ndency to injure him in his office, profession, 
 
 or calling, then they are libelous. Whether or not the lan- 
 guage complained of as libelous will bear the meaning ascribed 
 
 to it by the inniu ndo, whether such was the meaning intended. 
 
 is a question of fact for the jury. 
 
 Nye, fudge, Stevens v. McBride, Summit County Common Pleas. 
 Whether language will beai the meaning claimed in the innuendo is a 
 
 L6
 
 236 LIBEL AND SLANDER. 
 
 question for the Court, and whether that meaning was intended is for the 
 jury. State v. Smiley, 37 O. S. 30; Boyle v. State, 6 O. C. C. 163; Gohen v. 
 Cincinnati Volksblatt, 31 W. L. B. in ; Dougherty v. Miller, W. 36; Getch- 
 ell v. Tailor's Exchange, 26 W. L. B. 233. 
 
 No. 323. Libel — Meaning of words. — It is for the jun- 
 to determine from the testimony the meaning of the words 
 which are charged to have been published of the plaintiff; 
 and in determining their meaning, you should construe them 
 in their plain and ordinary sense, and take them to mean 
 what persons of ordinary intelligence would take them to 
 mean. 1 Having thus determined their meaning, you should 
 then say, was that meaning such as was reasonably calculated 
 to injure the plaintiff's reputation, or expose him to ridicule; 
 distrust, contempt, or hatred. - 
 
 1 Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239. 
 
 2 Wright, Judge, in Horton v. Enquirer Company. 
 
 No. 324. Kinds of malice in slander. — There are two 
 kinds of malice that may enter into a slander case. They 
 are malice in law, sometimes called imputed or legal malice, 
 and actual malice. Legal malice does not mean that the 
 defendant had actual ill-will, or hatred, or a feeling of revenge, 
 or an unfriendly feeling against the plaintiff. If the slander- 
 ous words were spoken voluntarily and without legal excuse, 
 they were, in the eye of the law, spoken maliciously. The 
 law presumes a wrongful intention — malice — when the words 
 are shown to have been uttered without justification. 
 
 Legal malice may be presumed without direct proof. 
 Without evidence legal malice is inferred when the slanderous 
 words were not spoken on a justifiable occasion. If the words 
 were spoken on a justifiable action, for instance, to an officer 
 or others for the purpose of ascertaining about a supposed 
 crime, if there was a legal excuse for speaking them, legal 
 malice can not be inferred. 
 
 Actual malice signifies actual ill-will, hatred, revenge, 
 jealousy, and the like. This kind of malice must be proved 
 as any other fact is, by evidence. The law does not presume 
 it, and the jury can not infer it without evidence to warrant 
 such an inference. 
 
 To entitle the plaintiff to recover compensatory damages, 
 it is not necessary that she should prove that the defendant 
 was actuated by actual malice in speaking slanderous words. 
 
 Pugh, Judge, in Lennon v. Rice, Franklin County Common Pleas. 
 
 No. 325. Damages — Kinds of. — The question of damages 
 will have to be considered by you in case you find for the
 
 LIBEL AND SLANDER. 237 
 
 plaintiff upon all the issues. There are two kinds of damages 
 — compensatory and exemplary or positive damages. The 
 object of the law in allowing the first kind of damages is to 
 make the plaintiff whole for outraged feeling and for the 
 injury to his character or reputation, whereby he was com- 
 pelled to appear in one of the tribunals of his country and 
 vindicate his character against aspersions upon him. If the 
 evidence satisfies you that the defendant spoke the words set 
 out in the petition, or words substantially like them in mean- 
 ing, that he spoke them in the hearing of a third person, or 
 persons, that he uttered them maliciously, in the sense of 
 legal malice, and if you find that there are no mitigating 
 circumstances, then he is entitled to such compensatory 
 damages as in your judgment will make him whole for the 
 injury to his reputation, and for outraged feelings, and in- 
 cluding also a reasonable attorney's fee for prosecuting this 
 suit. 
 
 It is true that there is no arithmetical standard for com- 
 puting these damages. Character has no price in the market 
 as property has, by which the damages can be measured. It 
 may not be easy to say what the damages are, but that does 
 not relieve the jury from ascertaining and declaring what they 
 are if the injury has been to the plaintiff. Of course it is not 
 the idea of slander suits that the plaintiff is to make money 
 or to speculate upon his reputation. Much is left to your 
 sound judgment and discretion acting upon the evidence, and 
 there is nothing that the court can say that will aid you. It 
 is for you to say how much the plaintiff's reputation has been 
 damaged. In estimating the damages it is your duty to take 
 into consideration mitigating circumstances, if any have been 
 proved. If the words were not spoken with actual malice, 
 
 onal ill-will, hatred, or some such feeling, you can only 
 allow compensatory damages. But if you find thai t/Le alleged 
 slanderous words were uttered with actual malice, then you 
 may add exemplary damages. The whole are assessed, if 
 at all, on the ground of public police, and not because the 
 plaintiff has any right to the smart money, as it is often 
 called. Tin- object of the law, as the term implies, is to 
 punish the wrong-doer in dollars and cents, and t<> give a 
 warning to prevent a repetition of tin- wrong or a similar 
 wrong bv others. The amount is left to your judgment. 
 
 From Lennon v. Rice, Franklin County Common Pie 1 Pugh [u 
 1 ompensatory damages cover injury to feelings, loss of business, expenses 
 in vindicating character, 1 Disney 4S2. ; mental suffering from loss <>f 
 reputation, 21 W. I.. I;. 292.
 
 238 LIBEL AND SLANDER. 
 
 No. 326. Libel — Counsel fees allowed in compensatory- 
 damages. — "If the defendants published a paper in manner 
 and form as alleged, and injury resulted to the plaintiff from 
 and by reason of such publications, he will be entitled to 
 recover such damages as he has directly sustained ; and in 
 estimating compensatory damages the- jury may take into 
 consideration and include reasonable fees of counsel employed 
 by the plaintiff in the prosecution of his action. If the pub- 
 lication was made with a bad motive or wicked intention, the 
 jury may go beyond mere compensation and award vindic- 
 tive, or punitive damages — that is, damages by way of pun- 
 ishment. " 
 
 From Finney v. Smith, 31 O. S. 529. Costs in clearing up the charge 
 may be included. W. 316; 1 Disney 482. 
 
 No. 327. Extent to which libel is published as affecting 
 damages. — The extent to which a libel is published may 
 affect the amount of damages for injury done. If the libel is 
 published to a large number of persons, and in a public place, 
 that would have a tendency to cause a person against whom 
 the libel is published more injury than if published to a 
 single person and in a private house. 
 
 Nye, Judge, in Stevens v. McBride, Summit County Common Pleas. 
 
 No. 328. What constitutes libel to one in his business. — 
 
 The defendant, for a second defense, pleads that the article 
 
 in question appeared on the — day of , A. D. 18 — , in 
 
 the , in what is known as the six o'clock edition, an 
 
 edition of comparatively small circulation ; that the matter 
 contained in the article would have appeared on the following 
 
 day in the editions of the — day of , except the six 
 
 o'clock edition, according to the course of business in the 
 office of t he defendant, but for the agreement entered into by 
 plaintiff and defendant by which the plaintiff, on the — day 
 
 of , aforesaid, and after said publication, through his 
 
 authorized attorney, appeared at the office of the defendant 
 and thereupon agreed with defendant that if defendant would 
 not publish said article on the — day of , that the plain- 
 tiff would consider the matter of the publication of the — to 
 be adjusted and settled, and that he would make no claim 
 against defendant by reason of said publication, and that the 
 defendant, in accordance with said agreement, withdrew said 
 article from further publication. 
 
 A reply has been filed which puts in issue the second 
 defense in the amended answer. 
 
 The first question for you to decide, therefore, is whether
 
 LIBEL AND SLANDER. 239 
 
 the article in question amounts to a libel upon the plaintiff, 
 and to this end it will be necessary to determine what consti- 
 tutes a libel. 
 
 The Constitution of the State of Ohio, in Section 11 of 
 the Bill of Rights, provides that every citizen may freely 
 speak, write, and publish his sentiments on all subjects, being 
 responsible for the abuse of that right, and no law shall be 
 passed to abridge or restrain the liberty of speech or of the 
 press. The publisher of a newspaper has exactly the same 
 rights and is responsible to exactly the same extent for the 
 abuse of that right as any other citizen. His right and 
 responsibility in the matter of a publication are no less than 
 that of others under like circumstances. 1 A libel may be 
 defined to be a wrong occasioned by writing or effigy. It has 
 been held, in reference to an individual injury, to be a false 
 and malicious publication against one, either in print or 
 writing, or by pictures, with intent to injure his reputation, 
 and expose him to public hate, contempt, or ridicule. In- 
 deed, everything, printed or written, which reflects on the 
 character of another, and is published without lawful justifi- 
 cation or excuse, is a libel, whatever the intention may have 
 been. Any written words are defamatory which impute to 
 another that he has been guilty of any crime, fraud, dis- 
 honesty, immorality, vice, or dishonorable conduct, or has 
 been accused or suspected of any such misconduct, or which 
 suggests that the person is suffering from an infectious dis- 
 order, or which has a tendency to injure him in his office, 
 profession, calling, or trade. 
 
 A libel consists in the abuse of that constitutional right 
 by maliciously writing or printing, of and concerning another, 
 any language or representation which is false and the natural 
 tendency and effect of which arc to injure such other person, 
 as in this case, in his business standing and reputation in the 
 community where he lives and is known, or in his trade or 
 business, and hold him up to ridicule or contempt, or in any 
 way to lessen him in public esteem. 
 
 It will be yur duty to take the article submitted in evi- 
 dence, rrad it Carefully as a whole and in detail, and decide 
 
 as men of judgment and experience whether, as contended by 
 the plaintiff, it had such a tendency and effect, or any of 
 them, so far as the business reputation of the plaintiff or his 
 calling or his trade are concerned, or whether, on the other 
 hand, as i laimed by the defendant, it can not be fairly said 
 to have had such tendencies or effect, or any of them. 
 
 If in your judgment the publication of the article had no 
 
 1 Cooley on Torts, 256
 
 240 LIBEL AND SLANDER. 
 
 such tendencies or effect as have been mentioned, it will be 
 your duty to return a verdict for the defendant without pro- 
 ceeding further in the case. 
 
 If, however, by reason of the publication of the article, 
 vou should find that the plaintiff was injured in his reputation 
 and trade, and has suffered a diminution of his business as a 
 
 1 retail clothier, and has been otherwise injured in his business 
 reputation, then your verdict must be for the plaintiff, be- 
 
 ! ' cause it is a presumption of law that anything stated in such 
 publication which is derogatory to the business reputation 
 and trade of the plaintiff as alleged is false, and the law 
 further presumes that the defendant, in publishing the same., 
 intended to cause whatever injury naturally would and did 
 result from such publication. 2 
 
 2 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed (in 
 favor of Kahn), 52 O. S. 662. 
 
 No. 329. Measure of damages to one in his business. — 
 
 It will be your duty next to consider whether your verdict, if 
 for the plaintiff, shall be for nominal or for substantial 
 damages. In this connection it will be necessary to deter- 
 mine whether, under all the circumstances disclosed by the 
 evidence, the plaintiff has suffered a real and substantial injury 
 to his trade or business reputation, or whether he has suffered 
 only what is termed in law as a nominal injury. Nominal 
 damages may be presumed from the publication of libelous 
 matter, but the question of the amount of such nominal 
 damages must be left to the good judgment of the jury to be 
 exercised upon all the evidence. The amount awarded for 
 nominal damages must rest in the sound discretion of the jury 
 and may not exceed one cent. 
 
 The plaintiff contends that he has been greatly injured in 
 his business reputation, and has lost a large number of cus- 
 tomers, and has suffered a diminution of his business to a 
 great extent and has been otherwise injured in his reputation. 
 If you find that the plaintiff has in fact not suffered any real 
 or substantial injury in these respects, he is entitled to 
 nominal damages only to vindicate his right. 
 
 If the plaintiff suffered real or substantial injuries, as 
 alleged, then he is entitled to receive such a sum as in your 
 judgment would fairly compensate him for such loss. It may 
 be regarded as settled in this state that in actions of tort in- 
 volving malice, fraud, insult, or oppression, the jury may, in 
 estimating compensatory damages, take into consideration the 
 reasonable counsel fee of the plaintiff in prosecuting this 
 action for the redress of his injuries against the wrong-doer,
 
 LIBEL AND SLANDER. 24.I 
 
 even when there are mitigating citrcnmstances not amounting 
 to a justification. 
 
 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed (in 
 favor of Kahn), 52 O. S. 662. 
 
 No. 330. Measure of damage to business continued — 
 Character and extent of business — And business reputation to 
 be considered — In order that you may pass intelligently upon 
 this question of damages, if any damages are to be awarded, it 
 will be proper for you to consider the character and extent of 
 the business in which the plaintiff was engaged, as well as his 
 previous reputation in such trade or business. The extent of 
 an injury to one in his trade or business, or in his reputation 
 in relation to such trade or business, must depend partly on 
 the nature of the publication itself and partly on the character 
 and extent of his business or trade. For instance, a man's 
 reputation in business may be so good as to be firmly estab- 
 lished in public confidence so that it can not well be injured 
 by any such publication as that of which the plaintiff com- 
 plains; or it may be so bad as to be incapable of serious 
 injury therefrom ; or, while good, yet not so firmly established 
 in public esteem as to prevent injury resulting to it. The 
 law presumes every man's reputation as a tradesman to be 
 good until the contrary is made to appear. The testimony on 
 that subject must be carefully weighed and considered. If 
 you find the publication a libel, as the term lias been defined, 
 it will be left to you after all to say to what extent, under all 
 the circumstances and evidence, his reputation in business 
 has been damaged thereby, and to what extent he has been 
 damaged in his trade and business, subject only to the prop- 
 ositions of law which have been suggested by the court. 
 
 A man's known reputation in the- community, or general 
 estimation in which he is held in the business community 
 where he lives and moves and is known, while it is the re- 
 sultant of the opinion of all, it is not the individual opinion 
 of any particular person or persons. You will decide what 
 the known reputation of the plaintiff was at the time of this 
 publication, for in view of all the evidence you are limited 
 to his business reputation, and you van not go into particular 
 acts. 
 
 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed. 52 
 
 O. S. 1 
 
 No. 331. Measure of damage to business continued — 
 Effect of absence of malice — Mitigating circumstances — Ef- 
 fect of acting upon fairly reliable information — There is no
 
 242 LIBEL AND SLANDER. 
 
 way of reaching a correct conclusion in cases like the one on 
 trial except through the good judgment of the jury. The 
 law, therefore, permits the jury to take such a view of all the 
 facts and circumstances properly in evidence in the assess- 
 ment of damages and as may appear fairly from the pre- 
 ponderance of the evidence. It may appear to you that the 
 publication complained of was made only with such malice 
 as the law implies from the mere doing of a wrongful act, 
 which is recognized in the law as " implied malice"; or 
 with an actual evil intent or express purpose to injure ; or 
 that it was not only false, but known to be so by the defend- 
 ant at the time of the publication itself, or wantonly made 
 without inquiry or information upon which the defendant 
 was fairly justified in relying; or that there was nothing in 
 the character, conduct, or position of the plaintiff to palliate 
 or excuse such publication. It may appear to you, on the 
 contrary, that while the defendant may not convince you that 
 he should escape the actual consequences of the alleged libel- 
 ous matter, if wrongful in fact, yet there was no actual malice 
 on the part of the defendant, no real or conscious intent to 
 injure, no bad motive; that though in fact false, the defendant 
 in making the publication acted upon information on which 
 he was fairly justified in relying ; that there was more or less 
 truth, or a greater or less approach to the truth in this publi- 
 cation, or that there was something in the business reputation 
 of the defendant, or in the methods of doing business, or in 
 the character of the business itself, or in any reports which 
 may have existed in police circles, or in the letter as intro- 
 duced in evidence — any such information may have reached 
 the defendant prior to the publication itself — to palliate in a 
 greater or less degree, or excuse in a greater or less measure, 
 the publication itself. . 
 
 In case you find all or any of the circumstances last men- 
 tioned to have existed, while they do not make out a complete 
 defense to entitle the defendant to a verdict, if you first find 
 the publication in fact to be libelous, they are yet matters 
 which you have a like discretion to consider and diminish your 
 assessment of damages accordingly, in case you award dam- 
 ages to this plaintiff at all. These, in legal definition, are 
 , termed mitigating circumstances. 
 
 In ascertaining whether there were mitigating circum- 
 stances, or whether there were aggravating circumstances, it 
 will be proper for you to consider all the evidence, direct and 
 circumstantial, in order that you may reach a correct con- 
 clusion. It is the province of the court to instruct you of the 
 law ; it is the province of the jury to analyze and weigh the
 
 LIBEL AND SLANDER. 243 
 
 evidence. It is the province of the court to pass upon the 
 competency of the testimony ; it is the province alone of the 
 jury to weigh that testimony. 
 
 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed. 52 
 O. S. 662. 
 
 No. 332. Measure of damages — Effect of agreement to 
 accept retraction of publication — The defendant in its 
 amended answer pleads as a second defense that an agreement 
 was entered into by the plaintiff and defendant through coun- 
 sel. It is a good defense to an action for libel that if, after 
 the publication, the plaintiff agreed with the defendant to ac- 
 cept the publication of an apology in full for his cause of 
 action, and that such an apology had been published. The 
 burden of proof, however, in a defense such as is alleged in 
 the amended answer, is upon the defendant to show that such 
 an agreement was made, and that there was a good consider- 
 ation for the same, and that it was carried out in good faith, 
 and that the plaintiff so agreed to accept such retraction in 
 full satisfaction of any claim which he may have had by rea- 
 son of the publication. The evidence on this point must be 
 governed by the proposition of the law as I have indicated it. 
 
 From The Cincinnati Times-Star Co. v. Kahn. Judgments affirnu-d, 
 (in favor of defendant in error 1, 52 O. S. 662. An offer to retract may be 
 shown in mitigation. Newell, Def. p. 907; 144 N. Y. 144. 
 
 No. 333. Slander of candidate for office. — There has 
 been testimony submitted for your consideration tending to 
 prove that whatever the defendant did say of the plaintiff and 
 his business was said of him as a candidate to an elective 
 . and in commenting on the character of his fitness, 
 abilities, and qualifications for the office for which he was a 
 candidate. A candidate for office puts the character of his 
 fitness, abilities, and qualifications in issue. His conduct 
 and acts, whatever they may be, may be freely commented 
 on and boldly censured, and statements made of a candidate 
 for office in good faith by a voter, when made by one who 
 has a reasonable ground to believe them true, and docs so 
 believe them to be true, arc' privileged, and no recovery can 
 be had, unless the proof clearly shows them to have been 
 maliciously made; but malicious defamatory assaults on his 
 private character, falsely imputing to him crime, can not be 
 justified on the ground of criti( ism, nor claimed to be privi 
 leged. The charactei and reputation of a person who is a 
 candidate for offiice is as sacred then as at any other time, and 
 if one without probable cause states what is false and asper-
 
 244 LIBEL AND SLANDER. 
 
 sive, he is liable therefor, as falsehood and the absence of 
 probable cause amount in law to proof of malice. 
 
 You will therefore carefully examine all the testimony 
 before you, that you may know all the circumstances and con- 
 ditions under which the words were spoken by the defendant, 
 should you find they were spoken by him, the motive, object, 
 and purpose, if any, he had in speaking them, and if you find 
 such statements to have been made in good faith by him about 
 the plaintiff as a candidate for office, that at the time he so 
 made them he had a reasonable ground to believe them to be 
 true, and did so believe them to be true, then such statements 
 would be privileged and your verdict will be for the defend- 
 ant. 
 
 J. L. Greene, Judge, in Nichols v. Fenn, 51 O. S. 5S8. Judgment 
 affirmed. 
 
 A newspaper may discuss properly the habits and qualifications of a 
 candidate for office. Hunt v. Bennett, 19 N. Y. 173 ; State v. Balch, 31 Kan. 
 465. It will be liable if it makes a false accusation of crime. Bronson v. 
 Bruce, 59 Mich. 467. 
 
 No. 334. Libel against one in his business as a brick- 
 layer and contractor — By a bricklayer's union. — It is libelous 
 to falsely and maliciously charge a journeyman bricklayer, 
 who holds himself out as capable of such service and seeking 
 employment, to be an inferior workman, and it is likewise 
 libelous to falsely and maliciously charge one who holds him- 
 self out as a bricklaying contractor (capable and seeking such 
 contract work as his occupation and business), as being a 
 contractor who employs inferior bricklayers to do his work 
 and thereby imposes on the owners of buildings for whom he 
 does work as such contractor. 
 
 The law presumes the reputation of plaintiffs to be good 
 in respect to their trade or profession, and that they employ 
 men who have the usual, ordinary skill of the trade they are 
 serving in, until the contrary appears in proof. 
 
 If you find that the defendants did in fact maliciously 
 
 issue and distribute this circular, that it is false as to the 
 
 essential charge, that the plaintiffs employed "inferior labor" 
 
 and "inferior bricklayers," then the plaintiffs are entitled to* 
 
 ' recover damages therefor. 
 
 The law authorizes you to assume that when one makes 
 a false and libelous charge against another, which tends to 
 do him an injury, he did so in malice. 
 
 The defendants have offered proof as to the character of 
 some of the work done by plaintiffs and their men before the 
 issuing and distribution of the circular, which was not ad- 
 mitted to prove the truth of the circular because they did not v
 
 LIBEL AND SLANDER. 245 
 
 by their answer, make issue as to its truth, but it was admitted 
 and is competent and proper to be considered as to the mo- 
 tive, malice, if any, on good faith they had in issuing and 
 distributing the circular. If they honestly knew or had 
 heard of said work, and believed in good faith that it was 
 inferior work, and work caused by plaintiffs employing in- 
 ferior workmen, then you should consider that fact as in 
 mitigation of damages. 
 
 If the jury find for plaintiffs on the proof according to 
 the law as I have stated it, you should give such verdict 
 as will fairly and justly compensate them for the injury issu- 
 ing and distribution of such libelous charge reasonably caused 
 them as to their reputation, in respect to their trade and 
 occupation, and for such annoyance and distress of mind as 
 they may have suffered in consequence of such publication. 
 
 And if you find there was malice in the purpose and act 
 of the publication, you may also include in the verdict what 
 you estimate as reasonable attorney fees for prosecuting this 
 cause of action. 
 
 And if the publication was done in such excessive degree 
 of malice as that, in your judgment, compensatory damages 
 are not a sufficient loss and punishment for the act done, then 
 you may include in your verdict also such sum of money 
 as you consider just to be recovered in the name of the 
 plaintiffs for their benefit, as by way of a punishment of 
 defendants, and to prevent a repetition of like publication. 
 
 But, gentlemen of the jury, have a care that your verdict 
 in this respect is just and reasonable, remembering that the 
 law entrusts you with a large discretion in this respect. As 
 punitive damages you can allow nothing, or whatsoever sum 
 you deem just. 
 
 ( )n this question as to motive, malice, and the degree of 
 it, consider all the facts in proof, including the original con- 
 troversy of the parties and the matters between them occurring 
 prior to the publication of this circular. 
 
 Morris I.. Buch waiter, Judge, in B ' Union v. Parker. 
 
 An agreement between a number of persons not to work for a certain 
 
 manufacturer, with a view t<> oppress or disable him in his business, or 
 
 constrain him to submil to rules in its conduct, is unlawful. He ha 1 
 
 right to manage his own affairs without interference from others accord- 
 
 ' hi- own will and <li acretion. 
 
 The following authorities sustain plaintiffs' right to damages for the 
 conspiracy to destroy their business, and to an injunction againsl a r< pi 
 tition of tin- wi mplained of, and show that the trial court com 
 
 mitted no error against the defendants below, either in its general charge 
 or refusal of special charges: Crump v. Commonwealth, 84 Va 
 
 m i'i -. . Richmond Typo. Union, Va. Law Journal, April [887; S. C. 
 .• 1 Central L.J. 289; Car ird, 1 06 Mass. 1; Walker v. Cronin, 
 
 107 Mass. 555; Sherry v. Pi rkins, 1 17 Mass. 212; State v. Donaldson,
 
 246 LIBEL AND SLANDER. 
 
 J. Law, 151 ; Van Horn v. Van Horn, 52 N. J. Law, 284; State v. Stewart, 
 59 Vt. 273; State v. Glidden, 55 Conn. 46, approved 20 Irish Law Times, 
 305 ; Mapstrick v Ramge, 9 Neb. 390 ; Brace v. Evans, 3 Ry. and Corp. L. 
 J. 561; Old Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48; Emack 
 v. Kane, 34 Fed. Rep. 47; Case}- v. Typographical Union, 45 Fed. Rep. 135; 
 Coenr D'Alene, etc. Min. Co. v. Miner's Union, 51 Fed. Rep. 260; Toledo, 
 etc. Ry. Co. v. Penna. Co., 54 Fed. Rep. 730, 746. 
 
 No. 335. Same continued — Combination and conspiracy 
 by the union to impoverish — By circulation of libelous cir- 
 cular. — The plaintiffs claim that the defendants, the 
 
 Union No. 1, of , composed of three or four hundred 
 
 members (then including the individual defendants), have 
 
 from the — day of , 18 — , to the date of the filing of, 
 
 their petition herein on the — day of , 18 — , endeavored 
 
 to coerce them to submit the conduct and management of 
 their business to the dictation and control of the said defend- 
 ants' union, as provided by the constitution and by-laws set 
 out in the amended petition; and that, in consequence of 
 plaintiffs ' refusal, the defendants, its officers, agents, and 
 members, including the individual defendants, unlawfully 
 combined and conspired together to impoverish the plaintiffs, 
 to diminish their gains and profits in their business of brick- 
 layers and contractors, and as dealers in materials therein, to 
 prevent them from carrying on and to break up and destroy 
 their said business. 
 
 And they further aver that, to accomplish the object of 
 
 said unlawful combination, the said Union maliciously 
 
 adopted the circular letter as set out fully in the petition, 
 and that it and the other defendants caused the same to be 
 printed and circulated to various dealers in and manufacturers 
 of building materials, including the patrons and customers 
 of the plaintiffs. That they sent agents and committees to 
 notify the plaintiffs' patrons and customers, verbally and by 
 circular, then dealing with them, selling and delivering 
 material necessary in their business, and to others, that they 
 should withdraw their patronage and not deal with plaintiffs. 
 
 And it is also charged that in furtherance of said conspir- 
 acy, when plaintiffs' patrons and customers failed to submit 
 to said demands, the said defendants pursued a like purpose 
 by like methods against them and their business and trade in 
 the particular builders' material as supplied to their respective 
 customers. 
 
 That defendants, with the same purpose and by like 
 methods, interfered with their workmen in their service, 
 under contract for a period of service, induced them to quit 
 plaintiffs, and deterred others from becoming their employees. 
 
 That with the same purpose and by like methods they
 
 LIBEL AND SLANDER. 247 
 
 induced persons with whom plaintiffs had contracts for build- 
 ing work and for materials to break them, and deterred and 
 prevented others from giving them contract work ; all to the 
 damage of the plaintiffs in the sum of $ . 
 
 All these claims and charges by plaintiffs the defendants 
 deny. 
 
 In this contest the proof has taken a wide range, including 
 necessarily many matters of controversy as to facts and as to 
 the purpose, intent, and motive which characterized the acts 
 done and the meaning of the things said by the parties. 
 
 The controversy submits to us the consideration of this 
 rule of law: If the defendants combined together to commit 
 an act unlawful either as in the sense of being criminal or in 
 violation of plaintiffs' private rights for which they would 
 have a right of recovery in damages, or if they combined to 
 do a lawful act by means of acts unlawful, either criminally 
 or civilly, then, in either such event, the combination is 
 illegal. 
 
 If men conspire together to do an unlawful act, or to do a 
 lawful act by unlawful means, then one knowing the purpose 
 thereof, entering into such conspiracy, is bound by all the 
 things said and done by any of their number in carrying out 
 the purpose of such conspiracy, so long as he remains therein 
 and does not withdraw. 
 
 Morris L. Buchwalter, Judge, in Bricklayers' Union No. 1 v. Parker, S. C. 
 Judgments affirmed. 
 
 No. 336. Same continued — Right to conduct one's own 
 business — Right of workmen and unions. — The plaintiffs had 
 the legal right to conduct their business of contracting brick- 
 layers by the purchase of their material of such persons as 
 they deemed best, in the honest promotion of their trade and 
 occupation. 
 
 They likewise had the same freedom and right in the 
 employment of their workmen, and in fair competition with 
 others of their trade-, t<> obtain contracts for work. Likewise 
 had the several workmen, members of the defendant union, 
 in the honest pur] looking to their individual welfare, 
 
 the right to work for whom they preferred, and, if not undei 
 contract for stipulated time, t<> quit tlu- service of anyone and 
 go to the service of another, or to rest from labor. 
 
 And it is the province of the law to protect all alike, the 
 owner, the materialman, the contractor, and the laborer, be 
 they members <>!' s<,-<;i]]ed "unions" or not, be they skilled 
 or unskilled. The law makes no distinction between them 
 because of the service or occupation of either. Every man's
 
 248 LIBEL AND SLANDER. 
 
 labor and skill are his own property, often they are his sole 
 dependence and means of support for himself and family, and 
 they are his only certain and satisfactory means in the ac- 
 cumulation of property. 
 
 It is essential to the laborer's welfare and manhood that 
 he and his labor shall be free; the laborer, as the employer, 
 who very frequently is only one step in the way of prosperity 
 removed from the laborer for wages, has the same need for 
 freedom of action in his field of service. 
 
 Sometimes in their competition they come into conflict ; 
 but they must remember that each may, in the pursuit of his 
 occupation, do whatsoever he will, only so long as it does not 
 infringe upon the equal freedom and right of the other. 
 Workmen have the right to organize into unions for the com- 
 mon benefit of their members, for the purpose of advancing 
 their skill, for mutual charities, and may bind themselves by 
 rules, constitutions, and by-laws within the scope of such 
 purposes of organization. They may, for their own interests, 
 make reasonable regulations as to how and whom they will 
 instruct in the skill of their trade, and they can not be com- 
 pelled to teach others against their will. They may persuade 
 others not to enter their trade, they may refuse to work with 
 or instruct those not registered in their union; and they may 
 with an honest purpose refuse to work with men obnoxious 
 to their interests, men expelled for reasons in good faith to 
 them, or with men who refuse to join them, or refuse to work 
 for any particular employer or contractor ; they have a right 
 to select their employer, and they may in combination refuse 
 in good faith to work for any man justly obnoxious to them. 
 
 They may, with like honest purpose to promote their 
 united good, fix hours of labor per day and rate of wages, 
 uniform or modified in rate, and they may encourage others 
 to their order. 
 
 They may combine for the honest purpose of benefiting 
 their order by encouraging favorable terms to their employers 
 in the purchase of material, and to procure contracts for such 
 contractors as employ members of their union ; but they be- 
 come engaged in illegal enterprise whenever they agree to 
 accomplish their purpose by threats, intimidation, violence, 
 or like molestation, either towards the apprentice, the expelled 
 member, the non-union workman, the contractor and em- 
 ployer, the materialman, or the owner who proposes to make 
 a contract. 
 
 The like rule of legality or illegality applies to the con- 
 tractor or employer as the purposes for which he may become 
 and act as a member of the so-called "Boss Contractors' 
 Union."
 
 LIBEL AXD SLANDER. 249 
 
 The threat may be by word, gesture, sign, or tone, and 
 when you consider whether any particular line of conduct or 
 things said or done had menace or threat in it, you must 
 consider all the circumstances under which the things are said 
 or done, what reasonably was the intent sought to be con- 
 veyed by the person uttering the word or doing the thing. 
 
 Morris L. Buchwalter, Judge, in Bricklayers' Union v. Parker, S. C. 
 Judgments affirmed. 
 
 No - 337- Same continued — Measure of damages. — If the 
 distribution of the various circulars in proof, the various calls 
 of certain of the defendants, and their demands upon the 
 materialmen, were part of a combination by defendants to 
 coerce the plaintiffs into a discharge of their apprentice, their 
 brother, and the other non-union men, and the employment 
 of union men, against their will, or otherwise with the intent 
 to impoverish them and break up their contracting business, 
 and you further find that defendants did threaten the respec- 
 tive materialmen, customers, and patrons of the plaintiffs 
 with injury to their property by loss of a large portion of 
 their trade if they refused to comply with defendants 1 demand ; 
 'that such threat or threats did reasonably put said material- 
 men in fear, and you further find that by reason thereof de- 
 fendants did intimidate said materialmen so as to cause them 
 to refuse to trade with and sell to the plaintiffs, or caused 
 any of them to deal with plaintiffs on different conditions and 
 terms than theretofore, to the damage of the plaintiffs, then 
 the plaintiffs are entitled to recover such damages from the 
 defendants. 
 
 If the plaintiffs are entitled to recover upon each of the 
 matters separately submitted to you, your verdict should be 
 made up as follows: 
 
 For inducing workmen to quit the service of plaintiffs, 
 such damage-, under all the proof, as fairly compensates them 
 for the direct loss of such service. That loss would be the 
 expense and value of time in procuring workmen to take 
 their places, difference of wages, if any, shown by the proof, 
 for the equivalent service, and any direct damage by delay 
 
 of work necessary in making the exchange of bands. 
 
 injury, if any, by reason of defendants 1 conduct with 
 materialmen, such damage as fairly compensates for loss of 
 time, any extra cost, if any, for the time, sand, and brick, 
 and their delivery, over what they would have cost them 
 without any interference by defendants. 
 
 And if you find for plaintiffs as to the brickwork of the 
 Little Sisters of the Poor, the amount should be damages as
 
 2^0 LIBEL AND SLANDER. 
 
 fairly compensate for the loss of the work or contract, which 
 should be estimated by deducting reasonable and probable 
 cost, or what it was then worth to perform the contract, from 
 the amount of plaintiffs' bid therefor. 
 
 In estimating what it was worth, or what it would then 
 cost, you are to assume that the work would have been con- 
 ducted in what you deem would have been the reasonably 
 prudent and ordinary way. You should also take into 
 account the services of the plaintiffs to superintend it, and 
 the ordinary risks and conditions of such enterprises. 
 
 And by way of damages to be included in any amount you 
 may find interest at the rate of six percent per annum from 
 
 the time when such damage accrued to the — day of , 
 
 1 S — , the beginning of this term of court. 
 
 If you find compensatory damages for the plaintiffs, and 
 you further find that the defendants caused the injuries com- 
 plained of maliciously, then you may add thereto, as com- 
 pensatory damages, such sum as you think just for plaintiffs' 
 expense in employing counsel to prosecute this cause of 
 action. No testimony is admissible to prove the value, but 
 you have had opportunity to estimate the same by actual 
 observation of the service rendered by their attorneys. 
 
 And now, if, in the judgment of the jury, the defendants 
 were actuated by such excessive degree of malice that mere 
 compensatory damages are not, in your opinion, sufficient loss 
 to and punishment of the defendants, then the law authorizes 
 you to include, as part of your verdict, such sums of money 
 as you justly think ought to be recovered in the name and for 
 the benefit of the plaintiffs, as exemplary or punitive damages. 
 The law leaves it wholly to the discretion of a jury whether 
 any sum whatever, and if any, how much, should be added 
 therefor. 
 
 You will see to it that your care to administer justice in 
 this respect will be in proportion to the large discretion which 
 the law imposes on you, remembering that when you take 
 from one to give to another as a punishment, it must only be 
 in such sum as is just. 
 
 Morris L. Buchwalter, Judge, in Bricklayers' Union No. i v. Parker, S. C. 
 Judgments affirmed.
 
 MALICIOUS PROSECUTION. 25 1 
 
 MALICIOUS PROSECUTION. 
 
 No. 338. Malicious prosecution of criminal action — 
 Questions to be considered by jury — Burden of Proof. — The 
 real inquiry for your consideration is narrowed down to the 
 following questions : 
 
 Did the defendant institute the criminal prosecution set 
 out in petition, and thereby cause the arrest of the plaintiff 
 without probable cause, as the term is hereafter defined? 
 Was he actuated by malice, either actual or implied? Did 
 plaintiff suffer damages by reason thereby? 1 
 
 To enable the plaintiff to maintain this action it must 
 appear by a preponderance of the evidence that both malice 
 and want of probable cause concurred, and the burden of 
 proof rests upon the plaintiff to maintain both the allegations 
 of malice and want of probable cause.- It will be sufficient 
 for you to find any disputed fact proved if it be supported by 
 a preponderance of the evidence. 3 
 
 1 See Cooley on Torts, 208 ; 181). 
 
 • Cooley on Torts. 213 (184). 
 Voris, Judge, in Weber v. Vial!, Summit County Common Pleas. 
 "An action for tort will lie when there is a concurrence of the following 
 circumstances: 1. A suit or proceeding has been instituted without proh- 
 able cause- therefor. 2. The motive in instituting it was malicious. 3. 
 The prosecution has terminated in the acquittal or discharge of the ac- 
 cused." Cooley on Torts, 208 iSi). 
 
 No. 339. Malicious prosecution — Probable cause defined. 
 — Probable cau>c- is defined to be a reasonable ground for 
 suspicion, supported by circumstances sufficiently strong in 
 this case to warrant an impartial and reasonably cautious 
 man — that is, a man of ordinary caution — in the belief that 
 the plaintiff was guilty of the offense with which he was 
 
 charged, and set out in detail in the petition in dispute. 
 The true inquiry foryou to answer is not what were the facts 
 tin- guilt or innocence of the plaintiff, but what ought 
 the defendant ha on to believe in reference thereb 
 
 tlu- time he instituted the criminal proceedings and cai 
 the arrest of the plaintifl 
 
 So we say to you, that in determining whether the de- 
 fendant had probable cause or not, you should consider the 
 
 1 The burden of proof t-> -.how want <>f probable cause rests upon tin 
 plaintiff. Cooley on Tori and will no rred from mer< 
 
 failure of th< ' ion. M. 
 
 17
 
 252 MALICIOUS PROSECUTION. 
 
 question in reference to the facts and circumstances relating 
 thereto, and which influenced him in causing the arrest and 
 preferring the charges, as they were known, and as they 
 reasonably appeared to be at the time, and not by the facts 
 and circumstances as they have been developed since. 2 
 
 If you find there was probable cause, as thus defined, 
 then you need go no further, and your verdict should be for 
 the defendant ; but if you should find from the evidence that 
 the defendant maliciously caused the arrest and preferred the 
 charges against the plaintiff, without probable cause to be- 
 lieve that he was guilty of the offense alleged against him, 
 then you should find for the plaintiff. If you believe from 
 the facts and circumstances proved on the trial, that the de- 
 fendant had not probable cause as defined, and that he did 
 prefer the charges alleged in the petition and thereby 
 caused the arrest and prosecution of the plaintiff, then you 
 may infer malice from such want of probable cause. 3 But 
 this inference is not conclusive, and must be considered in 
 relation to the other evidence submitted to you bearing upon 
 this issue, 4 so you are to take into consideration all the cir- 
 cumstances given you in evidence relating to this branch of 
 the case in determining whether defendant was actuated by 
 malice or not, and you should be controlled by the prepon- 
 derance of the evidence. 5 
 
 In common acceptation, malice means ill-will against a 
 person, or express malice, but in the legal sense it denotes a 
 wrongful act done intentionally and without just cause. 6 
 
 2 Cooley on Torts, 211 (182) notes 3 and 4. 
 
 3 Cooley on Torts, 214 (185); Holliday v. Sterling, 62 Mo. 321; Hark- 
 rader v. Moore, 44 Cal. 144; Roy v. Goings, 112 111. 662. 
 
 4 Cooley on Torts, 214 (185) and cases cited. 
 
 s See Cooley on Torts, 214 (185). The burden is upon plaintiff to prove 
 malice, Cooley on Torts, 214; Jordan v. R. R. 81 Ala. 220 ; Hinson v. Powell, 
 109 N. C. 534. 
 
 6 Voris, Judge, in Weber v. Viall, Summit County Common Pleas. 
 Probable cause is a reasonable ground of suspicion supported by circum- 
 stances sufficiently strong to warrant a belief that the person accused is 
 guilty. Ash v. Marlow, 20 O. 119. It depends upon the defendant's actual 
 and reasonable belief. White v. Tucker, 16 O. S. 468, 470. Want of proba- 
 ble cause must be shown — the fact of acquittal does not show it ; John v. 
 Bridgman, 27 O. S. 22, 39. Want of probable cause, without malice, is not 
 sufficient to authorize the action. Emerson v. Cochran, in Pa. St. 619. As 
 evidence of malice the question of probable cause is whollv for the jury. 
 Hicks v. Faulkner, E. R. 8 Q. B. D. 167; Quartz Hill Co. v. Eyre, L. R. 11 
 O. B. D. 674. If facts are disputed, the question is for the jury; if undis- 
 puted, for the Court. Cooley on Torts, 209 (181). " It is generally the 
 duty of the Court, when evidence has been given to prove or disprove the 
 existence of probable cause, to submit to the jury its credibility, and what 
 facts it proves, with instructions that the facts found amount to proof of 
 probable cause or that they do not," Stewart v. Sonneborn, 98 U. S. 1S7.
 
 MALICIOUS PROSECUTION. 253 
 
 No. 340. Advice of counsel. — The defendant has inter- 
 posed the defense that he acted in good faith, and upon the 
 advice of a reputable attorney. As to this defense you are 
 instructed that the advice of counsel constitutes a defense to 
 this action. 1 If the defendant gave to his attorney a full and 
 honest presentation of the facts bearing upon the guilt or 
 innocence of the accused within his knowledge, or which by 
 reasonable diligence could be ascertained by him, and which 
 he has reasonable cause for believing he was able to prove, 
 if the defendant acted in good faith and in accordance with 
 the attorney's advice, it would make no difference whether 
 the attorney was mistaken in his opinion and belief as to the 
 existence of probable cause, or whether the facts communi- 
 cated to the counsel constituted the offense (embezzlement) 
 or not. The mistakes or errors of the counsel, so consulted, 
 can not lay the foundation for damage against the defendant, 
 if in other respects he is not liable under the instructions 
 just given to you. 8 
 
 1 Barlight v. Tammany, 38 Am. St. 856; Johnson v. Miller, 82 la. 693; 
 Jaggard on Torts, p 621. "A prudent man is therefore expected to take 
 such advice (of counsel) ; and when he does so and places all the facts be- 
 fore his counsel, and acts upon his opinion, proof of the fact makes out a 
 case of probable cause,"' etc. Cooley on Torts, 212. 
 
 2 Voris, Judge, in Weber v. Viall, Summit County Common Pleas. All 
 facts must have been communicated, 20 O. 119; 4 W. L. B. 1107 ; 16 O. S. 
 46S ; 30 W. L. B. 120, see Jaggard on Torts, 621. It is a question for the 
 jury whether he acted bona fide on the opinion, believing that he had a 
 cause of action. Cooley on Torts, 212 (No. 1S4), note 2. 
 
 No. 341. Effect of discharge by examining magistrate. 
 — The fact that the examining magistrate discharged the 
 plaintiff because he did not find him guilty of the charge on 
 which he was arrested, and the failure of the defendant to 
 further prosecute the case, would be prima facie evidence 
 that the criminal prosecution and arrest was without proba- 
 ble cause, and not conclusive evidence thereof. l By prima 
 facie evidence it is meant such evidence as creates a pre- 
 sumption that these facts are established by it in the absence 
 of any evidence to the contrary. In other words, it is of suf- 
 ficient weight to establish the disputed facts until they are 
 rebutted or overcome by evidence to the contrary. But this, 
 presumption must yield to the weight of the evidence sub- 
 mitted to you, taking the whole of it.-' 
 
 1 Parkhursl v, Masti ller, 57 [a. 17 1 ; Hale v. Boylen, 22 YV. Va. 234 ; Bar- 
 ber v. Gould, 20 Hun 146; Sharp ■ (bhnston, 76 Mo. 660. 
 
 •Voria, fudge, in Weber v. viall, Summit Comity Common Pleas. The 
 I of the magistrate is evidence al leasl to show the facts of the dis- 
 charge of the plaintifl [ohn v. Bridgman. 27 O. 6. 22; Cooley on Torts, 
 21 v It is not such • is will alone sustain an action for malicious 
 
 prosecution. Thorpe v. Balliett, 25 111. 339.
 
 254 MALICIOUS PROSECUTION. 
 
 No. 342. The prosecution must have terminated. — You 
 
 are instructed that before the plaintiff can recover for the 
 malicious prosecution of a criminal charge, it must appear 
 from the evidence that the prosecution is at an end ; and it 
 must also appear that the plaintiff was acquitted of the 
 charge. ' 
 
 The defendant having had his day in court in the trial of 
 the charge complained of, it is but reasonable to require that 
 he shall, by the result of the trial, show the criminal charge 
 to be untrue before he can prosecute another action on the 
 ground that such charge was maliciously made. 2 
 
 1 Fortrnan v. Rottier, 8 O. S 550; Cooley on Torts, 215 (186) ; Cardinal 
 v. Smith, 109 Mass. 159 ; O'Brien v. Barry, 106 Mass. 300. 
 
 2 Id. As to what kind of a determination will be sufficient to found 
 suit on, see Jaggard on Torts, 610-11 ; Cooley on Torts, 215 (186). 
 
 No. 343. Measure of damages. — If you find the issues for 
 the plaintiff, he will be entitled to recover compensatory dam- 
 ages at least. Compensatory damages with reference to this 
 subject means such sum as in your judgment, guided by the 
 evidence, the plaintiff ought to receive for the injuries caused 
 by the wrongful acts charged in the petition, and that you 
 can fairly say from the evidence was the direct and ordinary 
 result thereof to his reputation on account of mental suffer- 
 ing of the plaintiff, if such you find, and you may include as 
 compensatory damages such amount as he was compelled to 
 pay in the defense of the criminal action, and for reasonable 
 time lost by reason of the arrest, and the defense he was 
 required to make. You may also include reasonable counsel 
 fees incurred by the plaintiff in the prosecution of this case. 
 It is a matter very much in the discretion of the jury, but 
 this discretion must be exercised reasonably, so as to com- 
 pensate for the injury actually sustained and nothing more, 
 unless you find this a case for exemplary damages. 
 
 But if you find from the evidence that in committing the 
 wrongs complained of it involved the ingredients of actual 
 malice, intentional insult, and oppression on the part of the 
 defendant, and the plaintiff had conducted himself in a rea- 
 sonable manner under the circumstances, you may go beyond 
 the rule of mere compensation and award exemplary or 
 punitive damages; that is, such damages as will compensate 
 him for the wrong done, and to punish the defendant, and to 
 furnish an example to deter others. 
 
 If you find this a case that warrants exemplary damages, 
 the law fixes no limit to your discretion in that behalf as to 
 the amount, except that it requires at your hands that your 
 discretion in that respect should be fairly, reasonably, judi-
 
 MALICIOUS PROSECUTION. 255 
 
 ciously and impartially exercised. It should be exercised 
 without feeling, resentment or hasty consideration. And 
 what, under all the circumstances, should be reasonable 
 punishment is the true test. 
 
 Nye, Judge, in Weber v. Viall, Summit County Common Pleas. 
 
 No. 344. Malicious injunction — Probable cause for com- 
 mencing. — The mere commencing of said suit by the defend- 
 ants against the plaintiffs, and obtaining said injunction 
 against the plaintiffs, would not, and does not, give the 
 plaintiffs a right to maintain an action against the defend- 
 ants for malicious prosecution and for damages. In addition 
 to that, the plaintiffs must satisfy you by a preponderance of 
 evidence that the said injunction was obtained by the defend- 
 ants maliciously, and without probable or reasonable cause. 
 These two points you are to decide as reasonable men, upon 
 the evidence. Probable cause for the obtaining said injunction 
 is such a state of facts, known to and influencing the defend- 
 ants, as would lead a man of ordinary caution and prudence, 
 acting conscientiously, impartially and reasonably, and with- 
 out prejudice, upon the facts within the parties knowledge, 
 to believe or entertain a strong suspicion that they had the 
 right to obtain and maintain the injunction. If you find 
 that the defendants in this matter acted upon a reasonable 
 ground of suspicion, that the plaintiffs had no right on said 
 premises, while they, the defendants, had full right, sup- 
 ported by circumstances sufficiently strong in themselves to 
 warrant a cautious man in the belief that defendants had 
 a right to obtain and maintain said injunction, then they 
 may find that there was probable cause for obtaining said 
 injunction. 
 
 Probable cause does not depend upon the actual state of 
 the case, but upon the reasonable belief of the defendants 
 that they had a right to obtain and maintain said injunction; 
 but this belief will not constitute a defense to this action, 
 if all the circumstances under which defendants acted 
 clearly show that there was no probable cause for their acts 
 
 in this behalf, and that their belief was groundless and could 
 not have been formed without the grossest ignorance and 
 negligence. That is to say, taking into consideration all tin- 
 facts relating to and going to make up the claim of title of 
 plaintiffs in said twcntY-tho which was known to 
 
 the plaintiffs, did they honestly believe, and had they r< 
 to believe that plaintiffs had no title to any interest in said 
 twenty-three acres thai the right to open mines thereon 
 
 and mine coal.' If they did so believe and had reason so
 
 256 MALPRACTICE. 
 
 to believe from the facts of which they had knowledge, then 
 you will find for the defendants on this cause of action. 
 Otherwise you will proceed next to the question of malice. 
 
 Samuel F. Hunter, Judge, in Newark Coal Co. v. Upson, 40 O. S. 17. 
 Approved. For interesting and instructive case and note on subject, see 
 Williams v. Hunter, 14 Am. Dec. 597, 601 ; Cooley on Torts, 187. _ 
 
 No action can be brought to recover damages for the malicious prose- 
 cution of a civil suit where no rights of ttie plaintiff have been violated 
 by seizure of property or invasion of liberty. Bartholomew v. Met. Life 
 Ins. Co., 1 Oh. Dec. 267. (Hamilton, Judge, Cuyahoga C. P.) 
 
 MALPRACTICE. 
 
 No. 345. Care required of a physician. — You are in- 
 structed that a surgeon or physician who offers his services 
 to the public that he impliedly agrees with those who employ 
 him that he possesses that reasonable degree of learning, skill, 
 and experience which is ordinarily possessed by persons 
 engaged in that profession, sufficient- to qualify him to engage 
 in that profession. A surgeon assumes to exercise the ordin- 
 ary care and skill of his profession, and is liable for injuries 
 resulting from his failure to do so. 1 
 
 The implied contract which the physician or surgeon thus 
 enters into does not extend to an agreement that he will cure, 
 but only that he will employ such reasonable skill and dili- 
 gence as are ordinarily exercised in his profession by physi- 
 cians. The law does not, however, require the highest degree 
 of skill and science. The standard must be a practical and 
 attainable one. 2 
 
 He does not undertake for extraordinary care or extraor- 
 dinary diligence any more than he does for uncommon skill. 
 
 In stipulating to exert his skill and apply his diligence 
 and care, he contracts to use his best judgment. 3 
 
 'Geiselman v. Scott, 25 O. S. 86; Jaggard on Torts, 910; Cooley on 
 Torts, 778 (649). 
 
 2 Jaggard on Torts, 912 ; Cooley on Torts, 778 (649). 
 
 3 Leighton v. Sargent, 27 N. H. 460. "As the promise is not different in 
 the case of the physician and surgeon from what it is in the case of the 
 attorney, etc., one general rule may be given." Cooley on Torts, 777 (648). 
 
 No. 346. Contributory negligence of patient. — If you 
 
 shall find that the defendant directed the plaintiff to observe 
 absolute rest as part of the treatment to said foot, and that 
 direction was such as a surgeon or physician of ordinary skill 
 would adopt or sanction, and the plaintiff negligently failed
 
 MARRIAGE. 257 
 
 to observe such direction, or purposely disobeyed the same, 
 and that such neglect or disobedience approximately contrib- 
 uted to the injuries of which he complains, he can not recover 
 in this action, although he may prove that the defendant's 
 negligence and want of skill also contributed to the injury. 
 This grows out of the doctrine that a party who has directly, 
 by his own negligence or disregard of duty, contributed to 
 bring an injury upon himself, can not hold other parties who 
 have also contributed to the same responsible for any part 
 thereof, nor does it make any difference that one of the parties 
 contributed in a much greater degree than the other; the 
 injured party must not have contributed at all. 
 
 Approved in Geiselman v. Scott, 25 O. S. 86. 
 
 MARRIAGE. 
 
 No. 347. What constitutes marriage. — In the case of 
 Stowell B. Dudley v. Lucius M. Warren, et al. (title in su- 
 preme court), the trial court refused to give certain requests 
 as to what constitutes a valid marriage, and the circuit court 
 reversed the trial court for error in its action in refusing re- 
 quests, holding that : 
 
 "The court erred in refusing to charge the jury as re- 
 quested by the plaintiffs, that, in determining the fact whether 
 M. W. and K. W. were husband and wife, the jury are not 
 authorized to determine that question upon the evidence of 
 repute alone, but are to determine it by all the evidence sub- 
 mitted to them by the court, giving to all of such evidence 
 such weight as in their judgment it is entitled." 
 
 The judgment of the circuit court was affirmed by the 
 supreme court without report. ' We give the requests which 
 were refused by the trial court, and which should have been 
 given. 
 
 "'If the jury find thai K. W. and M. W. (openly and 
 mutually entered into a contract to become husband and wife, 
 and thereafter) cohabited together through a series of years as 
 man and wife, thai E. took and bore the name of W. in the 
 communities in which they resided together, that the children 
 of !•'.. were deemed by M. W. to be his children, and were 
 acknowledged by him to be such; that M. W. bore himself 
 towards said children as a father; that they were educated, 
 
 ' See 27 \V. L. B. 272.
 
 258 MARRIAGE. 
 
 supported, and provided for by him as his children ; if the 
 jury further find that E. and M. conducted themselves toward 
 each other as man and wife, and that the relations between 
 them were apparently respectable and orderly, then a pre- 
 sumption of marriage between the parties arises, and these 
 circumstances are sufficient to warrant an inference by the 
 jury of a marriage between E. and M. W. 
 
 " In determining the fact whether M. W. and E. W. 
 were husband and wife, the jury are not authorized to deter- 
 mine that question upon the evidence of repute alone, but are 
 to determine it by all the evidence submitted to them by the 
 court, giving to all of such evidence such weight as in their 
 judgment it may be entitled. 
 
 " To constitute a valid marriage in the State of Ohio 
 no ceremony or form of celebration of marriage is required. 
 
 " In the State of Ohio the mutual consents of the parties 
 then to become husband and wife, interchanged between 
 themselves and followed by cohabitation, is sufficient to con- 
 stitute a marriage. 
 
 "It is not necessary in order to prove a marriage that 
 an actual exchange of consents be proven to have taken place 
 between the parties, but the jury may presume that consents 
 were exchanged if the relations existing between a man and 
 woman are apparently matrimonial." 2 
 
 2 The part of the charge inserted in parenthesis probably cures a de- 
 fect in the request and under Carmichael v. State, 12 O. S. 553, is good. 
 See Johnson v. Dudley, 4 Oh. Dec. 243, 248, holding that where parties 
 originally came together under a void contract, the marriage may be 
 proved by acts of recognition, cohabitation, birth of children. 
 
 No. 348. What constitutes marriage. — You are all aware 
 of the usual and ordinary form by which marriages are cele- 
 brated, and of such marriages there is little trouble as to 
 proof. But while marriages are usually celebrated in this 
 formal manner, the law says that marriages may be con- 
 summated without such formal ceremony, and if the necessary 
 requisites exist to constitute such marriages, then it is a 
 marriage, a good and binding one. How may a marriage be 
 consummated without the usual form? I say to you if a man 
 and woman agree to be husband and wife, and live together 
 as husband and wife, hold themselves out to the world as 
 husband and wife, and thereby acquire the reputation in the 
 community as being husband and wife, the law recognizes 
 them as husband and wife, though there never was any formal 
 ceremony — that is, the law says that marriage is a civil con- 
 tract, and that a man and woman may between themselves 
 enter into such a contract, and if they do so enter into such a
 
 MARRIAGE. 259 
 
 contract and live together as husband and wife, the law- 
 recognizes them as legally husband and wife, and children 
 born to them would be legitimate children. l 
 
 "A simple agreement between one man and one woman, 
 who may lawfully so contract, that they will take one an- 
 other's husband and wife thenceforth, and that thev will 
 sustain this relation thenceforth so long as they both shall 
 live, with the mutual understanding that neither one nor 
 both can rescind the contract or destroy the relation followed 
 by cohabitation ; when they do this, they are married. And 
 their marriage is just and valid in Ohio, as though a chime 
 of bells played a wedding march, and a half dozen bishops 
 and clergymen assisted at the celebration before a thousand 
 people." - 
 
 1 I". P. Green, Judge, in Stowell B. Dudle\- v. Lucius M. Warren, Su- 
 preme Court, No. 2871. 
 
 2 Approved in State v. Miller. 12 O. C. C. 62, 66. 
 
 There is no subject fraught with so much uncertainty as to what con- 
 stitutes a valid marriage. Blackstone says : "Any contract made, per 
 verba de presenti (by words of the present time), or by words in the pres- 
 ent tense, and in case of cohabitation per verba de futuro also (by words 
 of future acceptance 1 between persons able to contract, was before the 
 late act deemed a valid marriage to many purposes, and the parties might 
 be compelled in the spiritual courts to celebrate it in facie ecclesiae." 
 
 Kent says: "No peculiar ceremonies are requisite by the common 
 law to the valid celebration of the marriage. The consent of the parties is 
 all that i^ required, and as marriage is said to be a contract jure gentium 
 (by the law of nations), that consent is all that is required by natural or 
 public law." Nuptiasnon concubitus.sed consensus facit. (" Consent, not 
 consummation, maketh the mai "This says Kent is the language 
 
 of the common law and canon law, and of common reason." This lan- 
 guage would indicate, therefore, that consent merely is sufficient to con- 
 stitute a marriage, and that if parties consent and then cohabit, that that 
 constitutes man I 
 
 Blackstone's language indicates that consent by words of the present 
 tense, without a formal ceremony, would constitute a lawful marriage, and 
 as would also by words of future acceptance, followed by cohabitation. 
 And Kent's Commentaries stem to agree with that law. He says (p. 86, 
 
 2 Vol. 1 : "If tb' be made per vet I'd de presently and remains with- 
 
 ihabitation, or if made per verba de futuro, and be followed by cohab- 
 itation, or consummation, it amounts to a valid marriage in the absence ol all 
 civil regulations to tin- contrary, and which the parties 1 being competent as 
 and consent can not dissolve, and it is equally binding as if made 
 in facie ii'l' \iae." This was tin- doctrine of the common law , ami also of 
 the canon law, which governed marriages in England prior t<> the mar- 
 I [. 
 emed to have been considerable conflict between the civil 
 and ecclesiastic authorities in som< "t th< English cases, the intervention 
 of a priest and umed to be a matei 1 il 1 ircum- 
 
 d in other 1 ases that a 
 promise to marry foil owe l i>- cohabitation, and where there was noilli.it 
 . ami it was ]>■ ■ ar that a marriage was intended, was :i 
 
 valid marriage. Shelford on Marriage and I' 
 
 Again the rule of the common law seems to have been that it was not. 
 sary that the consent should have been given in the preseno oi a cler- 
 gyman in order to give it validity, though it was considered a verj becoming 
 al suitable to the solemnity ol the occasion. The consenl of the
 
 26o MARRIAGE. 
 
 parties could have been declared before a magistrate, or simply before 
 witnesses, or subsequently confessed or acknowledged, or the marriage 
 could have been inferred from continual cohabitation and reputation as 
 husband and wife, except in cases of civil actions for adultery, or in public 
 prosecutions for bigamy or adultery, in which cases actual proof of the 
 marriage was required. Kent's Com., p. 88. 
 
 Blackstone, it will be remembered, says that consent in words of the pres- 
 ent tense, or acceptance in the future, followed by cohabitation, for many 
 purposes constituted a valid marriage. This statement of Blackstone was 
 very thoroughly considered in Ohio in the case of Duncan v. Duncan, 10 
 O. S. 186, in which Brinkerhoff, C. J., said: "What these many purposes 
 for which a marriage per verba de futuro were valid were, does not seem 
 very clear ; and whatever they might have been, it seems now to be pretty 
 well settled that they did not embrace a right to dower on the part of the 
 wife, not the right to administer on his estate, or to her property, on the 
 part of the husband, nor the legitimacy of the offspring, nor the avoiding 
 of a subsequent marriage pending the first." 
 
 This view by the Ohio Supreme Court is supported too by some of the 
 old English cases. So that after all, with all of the uncertainty which seems 
 to exist in the English law, and the looseness of the common law on this 
 subject, it seems that although we many times see the statement that co- 
 habitation will constitute marriage, or will evidence marriage, even though 
 it did, there were none of the usual incidents or rights consequent upon 
 such marriage, so that there would be really no marriage without some sort 
 of a formal ceremony. And the statement is made in a note to Kent's 
 Commentaries that " if it was held by the House of Lords that by the law of 
 England, even before the marriage act, a contract by words in the future 
 was never a valid contract of marriage ; that the civil contract and the 
 religious ceremony were both necessary to a perfect marriage by the com- 
 mon law." Citing Catherwood v. Calson, 13 M. & W. 261. 
 
 In another note in Kent, p. 87, citing the case of Beamish v. Beamish, 
 9 H. E. C. 274, it is said: "In England it is settled that to constitute a 
 valid marriage by the common law, it must have been celebrated by a 
 clergyman in holy orders." 
 
 In the case of Holz v. Dick, 42 O. S. 23, the parties were married in 
 due form of law but without the consent of the parents, and it was held 
 that where such a marriage was followed by cohabitation after the age of 
 consent, it then constitutes a valid marriage. A marriage good at com- 
 mon law is good unless the statute contains express words of nullity. 12 
 O. S. 555. A marriage not in accordance with form, but where they openly 
 and mutually consent to a contract of present marriage, and thereafter 
 cohabit, constitutes a marriage. Carmichael v. State, 12 O. S. 553. See 
 Johnson v. Dudley, 4 Oh. Dec. 243, 249. 
 
 No. 349. Legitimacy of children. — In order to make 
 children of parents who have not been formally married legiti- 
 mate the parents must live together as husband and wife — a 
 man and woman may live together and raise a family of 
 children and such children be illegitimate bastards — it is not 
 the living together and raising of children that make the 
 children legitimate, but it is living together as husband and 
 wife, and not living together in a state of fornication. It is 
 living together as husband and wife, holding themselves out 
 to the world as husband and wife, having the reputation in 
 the community of being husband and wife. The law pre- 
 sumes that all children are legitimate, presumes that a man 
 and woman would not live together in a state of fornication, 
 but this presumption will not make children legitimate. To
 
 MUNICIPAL CORPORATIONS. 261 
 
 make them legitimate they must be born to persons living 
 together as husband and wife. If persons live together as hus- 
 band and wife, holding themselves out to the world as such, 
 and having the reputation of being husband and wife, then 
 the children born to them would be legitimate, although 
 there had been no marriage, no formal ceremony of marriage. 
 
 E. P. Green, Judge, in Dudley v. Warren, S. C. 2S71. 
 
 No. 350. Marriage in another state forbidden by laws of 
 such state — Followed by cohabitation in Ohio. — If you find 
 that such marriage did take place in Alabama, it being ad- 
 mitted that such marriage between a master and his slave — it 
 being admitted that E. was at that time the slave of M. — was 
 forbidden by the laws of Alabama and is null and void, yet if 
 they, M. and E., live together as husband and wife in the 
 State of Alabama, and children were born to them, and though 
 these children would be illegitimate and bastards, if you 
 should further find that they afterwards lived in Ohio together 
 as husband and wife, under the rules that I have given you, 
 then the children so born in Alabama would be legitimate by 
 the subsequent marriage of their parents. 
 
 E. P. Green, Judge, in Dudley v. Warren. 
 
 MUNICIPAL CORPORATIONS. 
 
 No. 351. Dedication of property for public street — Req- 
 uisites of — "Three things are necessary to be shown to 
 establish its dedication. The owner must have intended to 
 dedicate the property for a street, and to give up his private 
 rights in it, which are inconsistent with its use as a street by 
 the public at large. And he must have evidenced and carried 
 out this intention by some unequivocal act, such as throwing 
 it open to the public, fencing it out, making or recording a 
 plat showing it marked as a street, silling lots upon such plat, 
 and conveying them by deeds referring to tin- plat. If you 
 find that the owner so intended to dedicate it as a public 
 Street, and carried out such intention by acts necessary for 
 that purpose, then tin- village coun< il must have accepted the 
 dedication, there being no evidence of any acceptance by the 
 public before the incorporation of the village; and the passage 
 of an ordinance recognizing the street and providing for its 
 occupancy and improvement by the corporation is a sufficient
 
 2 62 MUNICIPAL CORPORATIONS. 
 
 acceptance of the dedication of the street by the village 
 council, if before that time the owner, on his part, had done 
 all that was necessary to its dedication, as before mentioned." 
 
 From Railway Co. v. Village of Carthage, 36 O. S. 631. Intention to 
 dedicate express or implied, and acceptance by municipality are essential. 
 Millikin v. Bowling Green, 3 Oh. Dec. 204 (C. C). 
 
 No. 352. Interest of abutting owner in street. — If the 
 
 lands of the plaintiff, mentioned and described, abut upon 
 
 Street, he has, in addition to the general interest which 
 
 the public has in the street, an incidental title to certain 
 facilities, easements, and franchises, one of which is the right 
 of ingress and egress to his lot, which is as much property as 
 
 the lot itself, and if you find that his lands abut upon 
 
 Street, and that this right or easement has been substantially 
 impaired by the defendant in the location and operation of 
 its railroad along the street, if you find it has so done, and 
 that by the location of the railroad track by the defendant in 
 the street in front of his premises, that he has sustained special 
 damage by having the ingress and egress to his lot substan- 
 tially impaired, you may and- should take this into considera- 
 tion in determining the amount to which he would be entitled. 
 
 From Railroad Co. v. Stubbings, Supreme Court, unreported, No. 2467. 
 The interest of an abutting owner is a property right in the nature of an 
 incorooreal hereditament, protected as property by the constitution. Craw- 
 ford v. Delaware, 7 O. S. 459 ; Street Ry. v. Cumminsville, 14 O. S. 523. An 
 abutter's right of access is property, McNulta v. Ralston, 5 O. C. C. 330. 
 "An abutting property owner on a public street of a municipality has a 
 right and interest in the street, in the nature of an easement, appurtenant 
 to his lot, and as much his private property as the abutting lot itself." 
 Pratt, Judge, in Toledo Bending Co. v. Mfg., etc., Co., 3 Oh. Dec. 430. 
 
 No. 353. Establishment of street by general use.— In 
 
 determining the lines and location of Street, adjoining 
 
 the property of plaintiff, it is not necessary that legal pro- 
 ceedings should be shown to have been had to establish this 
 street, but if you find from the testimony that the same had 
 
 been in general use as a street in the City of for a public 
 
 road for a period of 21 years prior to the time the same was 
 occupied and used by the defendant, as claimed in the petition, 
 if you find it was so used and occupied by the defendant, this 
 would constitute in law an establishing of the same as a public 
 street, and would entitle the plaintiff to all the rights and the 
 same rights therein as though the same had been regularly 
 laid out and established by the proper authorities. And in 
 
 determining the location of Street, you should consider 
 
 only the evidence relating to the use thereof by the public, 
 so far and to such an extent that it is proven that the same
 
 MUNICIPAL CORPORATIONS. 263 
 
 was actually and necessarily used and traveled by the public, 
 and the fact that the public travel was diverted to the water 
 of the canal for the mere purpose and convenience as a water- 
 ing place for stock would not necessarily establish the laying 
 out of the street upon that portion of the traveled track that 
 was so used and only so used. 
 
 From Railroad Co. v. Stubbings, Supreme Court, unreported, No. 2467. 
 
 No. 354. Municipal corporation — Streets — When may- 
 be improved. — Streets are essentially permanent physical con- 
 ditions of city existence, and, when appropriated to the public 
 as part of a street system, imply that as fast as the needs of 
 the public require they will be improved in a manner adequate 
 to reasonably meet the public requirements; but it would be 
 unwise and frequently very oppressive to make such improve 
 ments faster than the ability of the abutting owners would 
 make practical, and this is especially true as the more ex- 
 pensive permanent street improvements are paid for largely 
 by local assessments. The fact that the municipality reason- 
 ably delays making or authorizing the expensive improve- 
 ments is not to be treated as a waiver on its part of its right 
 or intention to properly improve the street when it becomes, 
 in its discretion, reasonably proper so to do, and as the needs 
 of the public require; and what is reasonable is wholly within 
 the discretion of the municipal authorities, so long as such 
 discretion is reasonably exercised under the circumstances of 
 the given case and within the provisions of the statute. 
 
 Voris, Judge, in Sanford.v. Tin- City of Akron, Summit County Com- 
 mon Pleas. Affirmed by Circuit Court, April term, 1S96. A citizen can 
 not control the method of improvement, Parsons v. Columbus, 50 O. S. 460. 
 
 No. 355. Streets — Care of by municipality — Streets in- 
 cludes what — City not insurer. — The law requires that the 
 
 City of , being a municipal corporation, shall have the 
 
 care, supervision and control of the streets, and shall canst 
 them to be kept open and in repair, and free from nuisance. 
 This obligation includes, of course, as a part of the streets, 
 the sidewalk- and crosswalks, and, therefore, imposes upon 
 the city the dut; eping the sidewalks and crosswalks 
 
 open and in repair, and in a reasonably safe and suitable con- 
 dition for pedestrians passing along the same. This requires 
 a reasonable vigilance in view of all the surroundings, and 
 does not exact or require that which is impracticable. When 
 the municipal authorities have done that which is reasonable 
 in this regard, they have discharged the entire obligation 
 imposed by the law. It is to be said also that the city is not
 
 264 MUNICIPAL CORPORATIONS. 
 
 bound at all hazards to have knowledge of defects in side- 
 walks. • The city is not an insurer of the safety of its public 
 ways and sidewalks, or of the lives and limbs of persons 
 passing over and along them. It is the duty of the city to 
 exercise ordinary care and prudence in the taking care of its 
 streets, and this includes sidewalks ; and by ordinary care I 
 mean that degree of care which persons, which individuals of 
 ordinary prudence, are accustomed to use and employ under 
 the same or similar circumstances, in order to conduct the 
 enterprise in which they are engaged to a safe and successful 
 termination, having due regard for the rights of others, and 
 for the objects to be accomplished. In general terms, then, . 
 such is the duty of the city in the care, supervision, control, 
 and maintenance of streets. 
 
 Carlos M. Stone, Judge, in City of Cleveland v. Storer, S. C. 4422. See 
 Cooley on Torts, 746 (625). A street includes sidewalks. Dillon's Mu- 
 nicipal Corporations, Sec. 780, n. The city is bound to see that the side- 
 walk conforms to the grade of the street. Toledo v. Higgins, 5 Oh. 
 Dec. 485. 
 
 No. 356. Duty of pedestrians upon streets. — On the 
 
 other hand, it was the duty of the plaintiff as a pedestrian 
 upon the street to exercise ordinary care in passing along the 
 street and over this crossing — over the crosswalk — and the 
 same rule as to ordinary care in this instance means precisely 
 what it means in the other. He is to exercise that degree of 
 care that men of ordinary prudence are accustomed to use and 
 employ. It was then his right to go along the street in 
 reliance that the city had properly discharged its duty; he 
 had a right to pass along the street in the belief that the city 
 had performed its duty, and that its sidewalk was in a reason- 
 able and suitable condition for him to pass over. That 
 reasonable diligence on the part of the passerby along the 
 sidewalk doesn't require that he shall be on the alert every 
 moment searching for a defect here or there. It doesn't 
 mean that at all ; nor does it mean that he may shut his eyes 
 and take his chances on any possible condition of things. It 
 is not that. It is relying upon the city's keeping its streets 
 in a reasonably fair condition. He may walk along relying 
 upon that condition of things, that supposed condition of 
 things; he may proceed upon the theory that the sidewalk is 
 in a reasonably safe condition, using that care and that dis- 
 cretion that prudent men are accustomed to use in passing 
 along a highway. 
 
 Carlos M. Stone, in City of Cleveland v. Storer, S. C. 4422. Police 
 power of city as to cross streets and crossings. Dillon's Municipal Corpo- 
 rations, Sec. 393.
 
 MUNICIPAL CORPORATIONS. 265 
 
 No. 357. Defective street becomes a nuisance when. — 
 Now, the word "nuisance" in this provision of our statute I 
 choose to define in these words: A nuisance is something 
 done or omitted to be done which has the effect of preju- 
 dicially and unwarrantably affecting the rights of another per- 
 son, and works a damage or injury to such other person. If this 
 sidewalk had become out of repair, was defective in the par- 
 ticulars claimed, if it had become dangerous, unsafe to cross 
 over, maintained there by the city with knowledge of its 
 defects and dangerous character, then that was the maintain- 
 ing of a nuisance within the meaning of the law, and if a 
 person was injured without fault on his part, under such cir- 
 cumstances, he would have a right of action predicated upon 
 the nuisance so maintained. 
 
 Carlos M. Stone, Judge, in City of Cleveland v. Storer, S. C. 4422. See 
 different form, No. 5bj, post. What are nuisances and power and duty of 
 city to abate. Dillon's Municipal Corporations, Sec. 374 and n. 
 
 No. 358. Notice of defects in streets. — If you find the 
 city had actual notice of this defect, or if such defect had 
 existed for such a period of time as that the city, in the exer- 
 cise of reasonable care, ought to have known it, etc. , a word 
 upon that proposition : If there occurs a defect in a street 
 upon such short notice or under such circumstances as that the 
 city had no knowledge of it, and in the exercise of ordinary 
 care could not know it — could not be expected to know it — 
 then no liability arises against the city for that reason. So, 
 it is requisite as one of the things to be established, either 
 that the city had actual notice of the defect, or that it had 
 existed for such a length of time and under such circum- 
 stances and surroundings as, in the exercise of ordinary care, 
 it must be held to have known it, ought to have known it, 
 because it was bound to have known it by reason of its long 
 existence. Notice to an officer of the city, charged with the 
 duty of looking after these things is notice to the city. The 
 city acts through its properly constituted officers and agents. 
 Some have i harge of one department of the city government, 
 and some have charge of others, and so I say, notice to a duly 
 appointed officer, whose duty it is to look after sidewalks and 
 walks, whose duty it is to see that theyarekept in repair, 
 notice to such an officer is notice to the city. And so it is 
 notice to the- municipality where the defective condition lias 
 existed for such a period of time as that, in the exercise of 
 ordinary care, ought to have known it. That is what is 
 known as constructive notice. It is constructive notii 1 
 distinguished from actual notice.
 
 266 MUNICIPAL CORPORATIONS. 
 
 Carlos M. Stone, Judge, in City of Cleveland v. Storer, S. C. 4422. As 
 to what is notice to city of defect, see City of Lafayette v. Allen, 81 Ind. 
 166. If a- city fails to keep its streets in safe condition for public use, it 
 will be liable for any injury caused thereby. Dillon's Municipal Corpora- 
 tions, Sec. 980. 
 
 No. 359. Instruction as to knowledge of city — Another 
 form. — You will first consider whether the sidewalk was out 
 of repair and in such a condition as to be dangerous ; then 
 whether the city knew it. If the sidewalk was out of repair 
 and in a damaged and defective condition, and had been for 
 a sufficient length of time so that the city might be presumed 
 to know of it, then the city had notice. It is not necessary 
 to show positively that some one went to the official whose 
 duty it was to look after these streets and sidewalks and told 
 him about the dangerous condition of these sidewalks. But 
 you must find, if you find there was a dangerous sidewalk, 
 that it was so apparent that it might be observed by persons 
 passing over it in that condition, and that it had been so for 
 a sufficient length of time, so that it is fair to presume that 
 the city and its officials in the course of their duty, in its care 
 of the streets, should have known of it and had time to repair 
 it, before you may find that the city had notice. 
 
 Gorman, Judge, in City of Toledo v. Wilhelmena Clopeck, Supreme 
 Court, unreported. Judgment affirmed. 
 
 No. 360. Streets — Liability of city for mere slipperi- 
 ness. — The city is not liable for the mere slipperiness of the 
 sidewalk. If this crosswalk was in a reasonable state of 
 repair, so that you are able to say that the city was without 
 fault in the premises, then there was no negligence on the 
 part of the city in maintaining this crosswalk or plate in the 
 condition that it was in, and this accident nevertheless 
 happened, if it happened because of the slippery character of 
 the walk, resulting from this slight fall of snow during the 
 night previous, or from sleet, or an icy condition of the walk, 
 the plaintiff would not be entitled to recover. But if this fall 
 was due to the fault of this sidewalk — due to the faulty con- 
 dition of it, rather — if the city was negligent in the care of 
 it, if it had permitted it to become out of repair, to become 
 unsafe and dangerous, and this fall was the result of that 
 condition, and the plaintiff, without fault, received this fall 
 because of that condition of things, then he would be entitled 
 to recover, we think, even though that dangerous condition 
 was enhanced by the fact that snow had fallen upon it the 
 night before. In other words, the plaintiff is not prevented 
 from recovering in this action, even though the slippery con- 
 dition of the sidewalk incidentally caused by the fall of the
 
 MUNICIPAL CORPORATIONS. 267 
 
 snow added to the condition of things there, made it more dan- 
 gerous. He is not prevented from maintaining his action if 
 the jury find from the testimony in this case that the fall was 
 due to the defective condition of the sidewalk, and without 
 which defect the accident would not have happened, and if 
 you further find, as I have already indicated, that the city 
 had knowledge of the defective character of the sidewalk, or 
 that it existed for such a length of time as, in the exercise of 
 ordinary care, ought to have known it, the city would be 
 held liable. 
 
 Carlos M. Stone, Judge, in City of Cleveland v. Storer, S. C. 4422. As 
 to liability for mere slipperiness, see Chase v. Cleveland, 44 O. S. 505 ; Dil- 
 lon on Mun. Corp. Sec. 1006. 
 
 The court, in the 44th ( ). S 514. upon this subject of ice and snow, 
 says: " In all northern cities and towns storms of snow and sleet, pro- 
 ducing ice and resulting in slippery walks, are of frequent and con- 
 stant-recurrence* during the winter season, and accidents of the charac- 
 ter complained of are also frequent. Such dangers are apt to exist in 
 many places at the same time, and at points widely separated from one 
 another. They appear at many points to-day, disappear to-morrow, and 
 like dangers appear at other places the next day. They are affected by 
 changes of weather, which are likely to occur at any time, and frequently 
 many times within a few hours. '. . . To effectually provide against 
 dangers from this source would require a large special force involving 
 enormous expense." . . . 
 
 A city is not liable to one who slipped upon an icy sidewalk. Rretsh v. 
 Toledo, 1 N. P. 210. 
 
 No. 361. Streets — Injury from ridge of ice or snow by 
 the side of street railroad track — Liability of city for. — 
 Xow, it is also a well-settled rule that the city is not liable 
 for any injury which is caused by the mere slipperiness of its 
 streets, caused by ice or snow upon the surface of the street. 
 This is a situation of things which is necessarily incident to 
 winter weather, and is liable to occur during winter at any 
 time and upon any street; and that is a condition of things 
 that the public and persons traveling upon the street know 
 and are bound to know, and to take into consideration; and 
 it would be an unreasonable burden to impose upon the city 
 • that its streets at all times during the winter, in all 
 places, v.- from mere slipperiness. But if ice or snow 
 
 is allowed to accumulate upon the .street to such an extent as 
 to become a serious and noticeable obstruction to ordinary 
 travel upon the street, and the city, by its officers or agents, 
 acquired notice or knowledge of such obstruction, and if, after 
 such knowledge or notice, it is practicable, considering the 
 means at its command, considering the time during which 
 this alleged obstruction existed, and considering everything, 
 
 if it is practicable for the city to remove these obstructions 
 
 after such knowledge or notice, then it would be liable for an 
 18
 
 268 MUNICIPAL CORPORATIONS. 
 
 injury caused by such obstruction ; and of course, in deter- 
 mining whether it is practicable or not, the jury will have to 
 take into consideration the extent of such obstruction, and of 
 similar obstructions throughout the city, and the means at 
 the command of the city, and all the circumstances in evi- 
 dence. 
 
 Now, gentlemen, it will be your duty to examine the 
 evidence in this case carefully, and determine just what the 
 facts are. You will inquire whether there was a ridge of snow 
 or ice upon the side of this street railroad track, and whether 
 the plaintiff's horse slipped on that ridge of ice or snow — 
 whether that was the cause of the horse's falling ; and whether 
 that ridge of snow or ice, if it existed, was of such a character 
 and of such an extent as to be an obstruction to ordinary 
 travel upon the street. Was it a noticeable obstruction ? Did 
 it materially interfere with the ordinary travel upon the 
 street? You will ascertain, if you find that such an obstruc- 
 tion existed as I have described, whether the city knew of it, 
 or whether, by the exercise of ordinary care and vigilance, 
 ought to have known of it. You may consider the length of 
 time the obstruction had existed, if at all, in substantially the 
 same condition it was in at the time of the accident. 
 
 Of course, if this ridge, assuming that you find that such a 
 ridge was there, if it was substantially caused by a recent fall 
 of snow or a recent change in the state of the weather — so 
 recent that it could not reasonably be expected that the city 
 would have the opportunity or the means or the ability to 
 remove this as well as all similar obstructions throughout its 
 corporate limits — then the city is not liable. You must look 
 at all these matters as reasonable men, in the light of all the 
 circumstances, applying to them your best judgment and your 
 experience. 
 
 Isaac P. Pugslev, Judge, in City of Toledo v. Wellener, Supreme Court, 
 No. 2652. Judgments affirmed. It is the duty of a city to use reasonable 
 diligence in keeping its streets and walks free of snow and ice. Dillon's 
 Municipal Corporations, Sec. 1006. Failure of the city to look after re- 
 moval of snow and ice on its streets and sidewalks may be regarded as a 
 wrongful act. McKellar v. Detroit, 57 Mich. 158. 
 
 No. 362. Liability of municipality for injury resulting 
 to traveler upon stone in street. — It is the duty of the de- 
 fendant corporation to use reasonable care, caution, and 
 supervision to keep its streets in a safe condition for the 
 ordinary modes of travel, at night as well as by day, and if 
 it fails to do so it is liable for injuries sustained in con- 
 sequence of such failure, providing the party injured was 
 exercising reasonable care and caution. Therefore, it becomes
 
 MUNICIPAL CORPORATIONS. 269 
 
 a question of fact for you to determine in this case as to 
 whether or not this defendant was negligent in the way the 
 street was left at the time of the accident. If you find from 
 the evidence that the plaintiff, while driving on the street, 
 could see or was actually aware, because of the electric lights 
 or otherwise, that the stone in question was in the street and 
 obstructed it, nevertheless he had the right to continue to 
 proceed on his way, but it was his duty in doing so to use 
 ordinary care to avoid such obstructions or danger liable to be 
 caused thereby, and if, while so doing, in the exercise of 
 ordinary care, he drove against such obstruction and was 
 thrown from his buggy and injured, the defendant would not 
 be relieved from responsibility for such injury by reason of 
 such attempt or acts of the plaintiff in and about attempting 
 to proceed in his way, but in doing so he must have exercised 
 ordinary care; failing in this, he can not recover, even should 
 you find that the defendant was guilty of negligence. . . . 
 A municipal corporation is not liable for every accident 
 that may occur from obstructions or defects in its streets. Its 
 officers are not required to do everything that human energy 
 and ingenuity can possibly do to prevent the happening of 
 accidents or injury to citizens. If it exercise ordinary and 
 reasonable care in that regard, they have discharged their 
 duty to the public. 
 
 Gillmer, Judge, in Rosser v. Village of Girard, Trumbull County. 
 
 No. 363. Municipal corporations — Duty of, as to side- 
 waks — Liability for injuries therefrom. — The court says to 
 you as matter of law that it was the duty of the defendant, 
 by its proper officers and agents, to see that the sidewalks in 
 the corporate limits of the city were in a reasonably safe con- 
 dition for persons to travel over in the daytime or in the 
 night season. 
 
 A municipal corporation, however, is not liable for every 
 accident that may occur from defects in its side-walks or 
 ts. [ts officers are not required to do everything that 
 human energy and ingenuity can possibly do to prevent the 
 happening of accidents or injuries to a citizen. If it has 
 exercised reasonable care in that regard, and if its streets are 
 in a reasonably safe condition, it has then discharged its duty 
 to the public. 
 
 Gillmer, Judge, in Wallace v City of Warren, Trumbull County Com- 
 mon Pleas. I ity will be liable for defect in street or sidewalk causing 
 injury Dillon's Municipal Corporations, Sec. 1007. Bu1 the defect must 
 be the proximat id, \ muni< ipalit) is no1 an insurer againsl a< 1 1 
 
 dents upon street bul is held to reasonable care in keeping them free 
 from nuisance. It 1- no1 bound to antii ipate improbable or unprecedented 
 events. Village v. Kallagher, 52 < ). S. [83, 187, and eases cit( d
 
 270 
 
 MUNICIPAL CORPORATIONS. 
 
 No. 364. Same continued — Notice of defects in 
 streets. — The burden is upon the plaintiff to show by a pre- 
 ponderance of the evidence that the defendant had actual or 
 constructive notice of the defect claimed in the street, before 
 recovery can be had. Actual or constructive notice of the 
 defect complained of must be given a sufficient length of 
 time in order to enable it to repair the defect, if any existed. 
 Constructive notice would be where the defect had existed 
 for such a length of time prior to the alleged injury that the 
 city, in the exercise of ordinary care and diligence, would or 
 should have known of the defect. If it should appear that 
 the city did not know of the particular defect in the walk 
 that caused the injury to plaintiff, but that the sidewallc 
 generally, as is alleged and claimed, was defective, then you 
 are instructed that in order to charge the municipality with 
 notice of the particular defect from its knowledge of the ex- 
 istence of a general one, the first should be of the same 
 character as the latter, or at least so related to it that the 
 particular defect is a usual and concomitant of the general 
 one. To constitute knowledge of the general defect notice 
 of the particular one, they must at least be of the same 
 general character, or the latter a usual concomitant of the 
 former, and substantially at the point or place where the 
 accident occurred. 
 
 In this case the court says to you that if you find that the 
 city knew that the particular places across the sidewalk at the 
 point in question were generally loose, or if you find that it 
 knew that the stringers had become rotten so that the nails 
 would easily draw from them, and then you further find that 
 the plaintiff was injured on account of her putting her foot 
 through a hole in the ' sidewalk, on account of one of these 
 boards that had become loose, on account of the general 
 character of the sidewalk, by reason of the stringers becoming 
 rotten so that they would not hold the nails, then you are 
 instructed that if the injury was caused in this manner, that 
 the city might be chargeable with notice of the defects, 
 although, in fact, it did not know that the particular hole 
 through which the plaintiff put her foot existed at the time. 
 If, however, the general defect known to the city, if one was 
 known, was not of the character to make the sidewalk unsafe, 
 or was of a character totally unlike the one which caused the 
 injury, so that the existence of one would be no presumption 
 of the existence of another, then this would be no such notice 
 as would bind the defendant. 
 
 The defendant must have notice before there can be a 
 recovery on the particular defects in the sidewalk which 
 caused the injury to plaintiff.
 
 MUNICIPAL CORPORATIONS. 2JI 
 
 ("rillmer, Judge, in Wallace v. City of Warren, Trumbull County Com- 
 mon Pleas. The city is liable after notice if it refuses to act. 53 O. S. 605. 
 
 No. 365. Injury from defective sidewalk continued — 
 Duty of city as to keeping sidewalks in repair. — It is the 
 duty of the city to keep public streets and sidewalks in 
 reasonable repair so that they shall not be dangerous to people 
 passing thereon. They should be free from nuisance, and 
 anything dangerous to the public and that interferes with the 
 public convenience and safety is a nuisance. 1 And if a street 
 or sidewalk is in such a condition as to be dangerous to people 
 passing over it, then it is a nuisance and it is one of those 
 things that it is the duty of the city to remedy within a 
 reasonable time after it is known. Upon that, as I have 
 already said, before you can find for the plaintiff you must 
 find that the city knew of this defective condition of the walk, 
 or should have known of its being in that condition and 
 apparent, so that it could be observed by people looking at it 
 or people passing over it, for a sufficient length of time so 
 the city should have known of it and had time to repair it 
 before this time when the plaintiff claims she was injured. 
 
 If you find by these facts proof that there was that danger- 
 ous condition of the walk there, and it was a walk laid down 
 by the city, in a dangerous condition, and had been in that 
 condition a sufficient length of time so the city knew it, or 
 should have known of it, or had it repaired; if you find the 
 plaintiff was passing along there, and, without any fault of 
 hers, was thrown and injured, before she is entitled to recover 
 her damages from the city for that injury; if you do not find 
 or did not find all those things, then your verdict will be for 
 the defendant and that the plaintiff has no cause of action. 1 ' 
 
 'Municipal corporations are invested with the power and charged 
 with the duty of keeping the streets under their control free from nui- 
 2640; Zanesville v. Fannan, 53 O.'S. 605 ; Carding- 
 ton v. Fredericks, .• 2 47. 
 
 2 Gorman. J ity of Toledo v. Clopeck, Supreme Court, unre- 
 
 ported. Judgments affirmed. 
 
 No. 366. Injury from defective sidewalks continued — 
 Latent defects — Notice of. — I have been requested by the 
 defendant to give you some certain charges in a certain form, 
 
 and I will read to von that which seems to me to be proper 
 to be given, and you will receive this as part of your instruc- 
 tion- by the court, and as containing the rules applicable to 
 this < 
 
 "A latent defect in a sidewalk is one that does not appear 
 to the eye, or would not appear to be known by a person 
 walking over it. The law does not presume notice to a 
 municipal corporation of a latent defect.
 
 2J2 MUNICIPAL CORPORATIONS. 
 
 "Before a municipal corporation can be held in damages 
 for injuries caused by a latent defect, the jury must find that 
 the municipal corporation had actual notice of such latent 
 defect. 
 
 "The jury must look only to the testimony as to the con- 
 dition of the walk at the point at which the accident is alleged 
 to have occurred, and must disregard all general statements 
 as to other walks. ' ' 
 
 Gorman, Judge, given by request in City of Toledo v. Clopeck, Su- 
 preme Court, unreported. Judgment affirmed January 22, 1895, No. 3207. 
 See ante, No. 346 note. 
 
 No. 367. Municipality — Liability for injuries from over- 
 flowing sewer. — It is the duty of the city to exercise reason- 
 able care and skill and caution in the construction, mainte- 
 nance, and management of its sewer system, and if in these 
 respects it is negligent, the city is liable for the acts of such 
 negligence to the person so injured. Yet the city is not liable 
 for extraordinary care or prudence, nor to provide against 
 extraordinary contingencies; what would constitute extra- 
 ordinary contingencies is a matter of fact to be determined by 
 the jury from the evidence submitted to them. Its liability 
 is no greater than that imposed upon private persons in like 
 circumstances. The city is not to be held by the more strin- 
 gent rule in that respect than the plaintiffs are for the safety 
 of their own property. In determining whether the plaintiffs 
 were guilty of negligence or not in providing safeguards to 
 prevent backwater from the sewer, and in properly guarding 
 their goods from injury, no higher or more stringent rule is 
 required of them than that of ordinary care and skill and 
 prudence, such as persons of ordinary care and prudence are 
 accustomed to use and employ under the same or similar cir- 
 cumstances, in order to conduct an enterprise in which they 
 are engaged to a safe and successful termination. 
 
 Whether the failure of the plaintiffs to put in a backwater 
 valve, if you find such to be the fact, was or was not negli- 
 gence on their part is to be determined by you, under the 
 rules given you in this charge, from all facts and circum- 
 stances proven in the case. 
 
 The law presumes a party to know what, by the exercise 
 of reasonable care and prudence, he ought to know under all 
 the circumstances in the case, and this is a case in which this 
 presumption is peculiarly applicable. 
 
 Voris, Judge, in Miller v. Akron, Summit County Common Pleas. 
 As to liability of city for overflow of sewage on private lands, see Dillon's 
 Municipal Corporations, Sec. 1046.
 
 MUNICIPAL CORPORATIONS. 273 
 
 No. 368. Change of grade — Damages — Viewing prem- 
 ises. — You have viewed the premises in question in this ease, 
 but you are not to treat what you observe there as evidence ; 
 you are not to adopt your own theory or opinion as to the 
 fact of reasonableness or unreasonableness of the extent of the 
 improvements, or whether it was made on or above the ordi- 
 nary grade, nor as to the value or extent of the injury done. 
 These facts must be determined by the evidence. You were 
 permitted to go and view the premises only for the purpose 
 of enabling you the better to apply the evidence submitted to 
 you. 
 
 Voris, Judge, in Smith v. The City of Akron. 
 
 No. 369. Change of grade — Municipality not liable 
 when. — As a general rule, a municipal corporation is not 
 liable for damages to property abutting upon a street, resulting 
 from the improvement of such street, providing such im- 
 provement is made within the scope of the corporation's 
 authority, and without negligence or malice; that is, if 
 reasonably made. The people of Ohio have always been 
 jealous of any encroachment on the rights of an individual. 
 Private property is held inviolate by constitutional provision, 
 but subordinate to the public welfare, and when taken for the 
 public use, a compensation therefor must be made in money. 
 Construed in the light of these instructions to you, this con- 
 stitutional provision is operative, and should be upheld in 
 cases like the one on trial. 
 
 Voris, Judge, in Smith v. City of Akron. 
 
 No. 370. Same continued — City liable when — Improve- 
 ments made with reference to established grade. — If, how- 
 ever, it be shown that the city before the construction or mak- 
 ing of the plaintiff's improvements, by ordinance duly enacted, 
 established the grade of said street, and had so improved or 
 appropriated the street as to indicate fairly and reasonably 
 that no future change would be required by the city, and the 
 plaintiff, reiving upon su<h corporate acts as a final decision 
 as to the wants of the public, improved her lot in a manner 
 suitable to the established grade, and afterwards her improve- 
 ments were injured by a change of the grade by the city, the 
 rule just announced ' could not apply. 8 
 
 If the plaintiff so made substantial improvements upon 
 her lot with the view of such established grade and level of 
 
 1 Ante, No. 369. 
 
 •City v. Penny, 21 O. S. 499.
 
 2/4 MUNICIPAL CORPORATIONS. 
 
 the street, and the city thereafter altered the grade, and dug 
 down the street so as to materially impair the value of such 
 improvements, the city would be liable to her for damages so 
 far as the premises were materially injured thereby, if the 
 evidence brings her within the provisions and limitations of 
 the instructions given you. 
 
 No . 371. Same continued — What the statute provides . — 
 
 The statute provides, however, as a protection to both the 
 owner and the city, that before it can legally proceed to make 
 such improvements as that made upon the street, the council 
 shall declare by resolution the necessity of such improvement, 
 and shall give twenty days notice of its passage to the owners 
 of property abutting upon the improvement ; . and 
 
 all plans and profiles relating to the improvements shall be 
 recorded and kept on file in the office of the city engineer or 
 clerk, and open to the inspection of all parties interested, and 
 such owner claiming that he will sustain damage by reason 
 of the improvement shall, within two weeks after the service 
 of the notice, file a claim in writing with the clerk of the 
 corporation, setting forth the amount of damage claimed, 
 together with a general description of the property with 
 respect to which it is claimed the injury will accrue; an 
 owner who fails to so do shall be deemed to have waived the 
 same, and shall be barred from filing a claim or receiving 
 damages. 
 
 R. S. Sec. 2515. 
 
 No. 372. Change of grade — Effect of failure to file claim 
 for damages. — The law that requires the owner to file his 
 claim for damages is reasonable and founded in sound state 
 policy. This is required among other things to enable the 
 city council to understandingly determine whether it would 
 be expedient to go on with the contemplated improvement, 
 taking into account the amount of money required to be paid 
 for damages, whether the property owners liable to pay the 
 assessment for improvement ought to be burdened by so great 
 an expense, and also to enable it to provide the ways and 
 means therefor. Unless a short day were fixed, the city 
 would be greatly embarrassed and delayed in needful im- 
 provements ; this would be especially true in rapidly growing 
 cities. But this provision of the statute can not avail the city 
 when it has failed to serve the required notice. If the notice 
 has not been served upon the plaintiff, he would not be barred 
 from prosecuting his claim for damages, nor being considered 
 as having waived the same. But if notice has been properly
 
 MUNICIPAL CORPORATIONS. 2/5 
 
 served upon the plaintiff, who fails to file his claim in writing 
 for damages within the two weeks required by the statute, 
 the complainant would be barred of the right to recover, 
 unless you find from a preponderance of the evidence that he 
 is relieved therefrom by reason of certain information which 
 w r as procured from the city engineer. 
 
 The plaintiff acting in good faith may rely upon the pro- 
 files and surveys on file in the office of the city engineer, 
 which were consulted by him, and upon which he relied in 
 making the improvements. But for such as were kept in the 
 office of which he had no notice, and upon which he did not 
 rely, you are not to consider in any other light than as bearing 
 upon the accuracy of the plans, profiles, and surveys submitted 
 to you in evidence. But they do not lay the foundation for 
 recovery against the city unless you are satisfied from the 
 evidence that the same were adopted by the city council, and 
 this must appear from the records of the proceedings of the 
 council. 
 
 If the plaintiff claims to have been misinformed as to the 
 extent of the cut in front of his premises through the officials 
 of the defendant, and it appears that plaintiff went to the 
 office of the city engineer to examine the plans and profiles 
 of the improvement and learned therefrom of the cut to be 
 made in front of his lot, and being unable to obtain the 
 desired information therefrom ; or if the plans and profiles 
 were of such a nature as to require one skilled in such work 
 to understand them, and the plaintiff thereupon requested the 
 engineer to give the desired information, so as to enable him 
 to prepare or determine whether he would prepare or not any 
 claim for damages; and the plaintiff was then informed that 
 the cut in front of his premises would not be more than — 
 inches at the east line, and not more than about — feet deep 
 at the west line of his lot, etc., such statement of the city 
 engineer is competenl evidence for you to consider in deter- 
 mining whethrr plaintiff should be deemed to have waived 
 his claim for damages by not filing it within the two weeks 
 provided bj statute, and it would be competent if the plaintiff, 
 acting in good faith and knowing nothing to the contrary, 
 relied upon the statement so made by the city engineer, and 
 so relying thereon, did not, and because thereof, file his claim 
 
 for damages, such failure to file the claim within two weeks 
 required by statute would not thereby necessarilv be deemed 
 to have waived the same, nor by reason thereof necessarily be 
 barrel from maintaining this action. 
 
 Sickness in the family would not excuse the plaintiff from 
 making the inquiry within the two weeks, nor from filing his 
 claim within that time.
 
 276 MUNICIPAL CORPORATIONS. 
 
 This instruction is somewhat changed and modified in language from 
 one given by Judge Voris in Smith v. City of Akron, and possibly also in 
 another case with some changes, omitting parts of his charge, so as to 
 make it general in its application. 
 
 No. 373. Change of grade — Plans and profiles. — It was 
 
 the duty of the city to have such a plan and profile on file as 
 would reasonably advise persons of ordinary intelligence of 
 the extent which the proposed improvement would affect the 
 plaintiff's property, but if it so failed to give such informa- 
 tion, or gave it in such a manner as required one skilled in 
 such work to understand them, and the plaintiff was not so 
 skilled, then it was competent for the plaintiff to go to the 
 city engineer and seek from him the necessary explanation or 
 information, and to rely upon such explanation and informa- 
 tion given in that behalf by the city engineer; and it was 
 competent for the engineer to speak in behalf of the city in 
 giving such information. 
 
 Voris, Judge, in Smith v. City of Akron. 
 
 No. 374. Change of grade — Adopting county road as 
 
 street. — If you find from a preponderance of the evidence 
 
 that the City of adopted as a street of the city the county 
 
 road, and established the same as such, without change of 
 grade, for more than thirty years, 1 and the plaintiff erected 
 his dwelling-house and other structure, and made his other 
 improvements thereon, and the plaintiff used reasonable care 
 and discretion and judgment in making his improvements, 
 with a view to the future, proper, and reasonable change of 
 grade, and the city caused a change of grade in such street to 
 be made subsequently, which resulted in damage to such 
 improvements, and the change of grade which caused such 
 injuries could not, by ordinary care and discretion, have been 
 anticipated, then the city would be liable for such injuries, 
 if you find in other respects that the plaintiff is entitled to 
 recover. 2 
 
 1 Thirty years is not a necessary period of time, but it should be so 
 long as to create a reasonable presumption of the fixed grade. 
 
 2 Voris, Judge, in Rhodes v. City of Akron. 
 
 No. 375. Change of grade — Improvement made before 
 grade established is at one's own peril. — If you find from r. 
 preponderance of the evidence that, at the time the plaintiff 
 (or his predecessors in title) improved his property, any grade 
 had been established on the street, either by ordinance, or 
 such improvement and appropriation of the street to public 
 use by the authorities of the city as to fairly indicate that the
 
 MUNICIPAL CORPORATIONS. 2 77 
 
 grade was permanently fixed, and no other change would be 
 required by the city, then the plaintiff (or his predecessors in 
 title) improved his property at his peril, and the plaintiff can 
 not recover unless the present grade upon which the improve- 
 ment has been made is an unreasonable one, or the street 
 improvement was negligently done and by which the injur)' 
 complained of was caused. 
 
 But if the nature and extent of the improvements and use 
 of the street had not been so indicated or defined by the de- 
 fendant before the plaintiff (or his predecessors in title) made 
 their improvements, then they would be presumed to have 
 made them at their peril, with reference to such future use or 
 change in the street as the city might reasonably adopt and 
 make, he would not be entitled to recover, unless the city 
 adopt an unreasonable grade and made improvements pursuant 
 thereto, or made its said improvements in such a negligent 
 manner as to have caused the injuries complained of. 
 
 Voris.J., in Rhodes v. City of Akron, Summit Count}- Common Pleas. 
 
 No. 376. Same continued — Rule as to unreasonable 
 grade. — If the street improvements were made subordinate to 
 an unreasonable grade — were unreasonable in their nature 
 under all the circumstances — then the city could not be 
 treated as exempt from liability to the plaintiff to the extent 
 that such unreasonable grade and the improvements so made 
 so injured his property. But in that case the damages should 
 be limited to such only as were caused by the unreasonable- 
 ness of the grade, and the street improvements made pursuant 
 thereto, and none other, and the extent of damages, if any 
 were caused, by what would have been a reasonable grade, 
 he can not recover. 
 
 In determining the question whether the same was reason- 
 able or unreasonable, the date of the establishment of the 
 grade is to be considered, and not the time the plaintiff's 
 improvements were made. And the city starts out with the 
 presumption that its officers have acted rightfully, and this 
 umption musl prevail until the contrary appears from a 
 preponderance of the evidence. The law gives the powei 
 and imposes upon the city the duty to pave, improve, and 
 keep in r< asonable repair the public streets of the city, and in 
 the* of this power, and in the performance of these 
 
 duties, the law presumes that it has acted rightfully until the 
 contrar} appear; from the evidence. This presumption of 
 haw as to the rightfulness exercised 1>\ the public authorities 
 of the city is a mere presumption and may he- removed by 
 testimony; it is only to be taken as true until evidence is
 
 2j8 MUNICIPAL CORPORATIONS. 
 
 received which overcomes it, and when so overcome this 
 presumption is removed and the evidence should then control. 
 
 This discretion reposed in the city council as to the exer- 
 cise of its authority and duties over the public streets of the 
 city can be exercised by no other persons. It is only for the 
 abuse of that discretion that the courts can interfere. In 
 passing upon the question as to whether or not the defendant 
 made his improvements on a reasonable grade, you must 
 gravely consider whether witnesses who have appeared before 
 you, after all the evidence which you have had submitted to 
 you, are any better able to decide this matter than the city 
 council. 
 
 If you are satisfied from a preponderance of the evidence 
 that the city has exceeded its authority, and adopted and acted 
 upon an unreasonable grade, you should say so ; but we feel 
 like saying to you that it should be done after the most careful 
 deliberation upon your part, and upon satisfactory evidence. 
 
 Voris, J., in Rhodes v. City ol Akron, Summit County Common Pleas. 
 
 ^°- 377- Change of grade — Whether or not premises 
 abutting upon improvements has effected claim for dam- 
 ages. — Whether or not plaintiff's premises did or did not abut ■ 
 
 on Street, is a fact to be determined by you from the 
 
 evidence. In determining this issue, if you find that the 
 lots or premises have been continually owned, used, and oc- 
 cupied as one parcel of land, and for a dwelling-place and 
 lomicil for many years, you may consider that customary use 
 and occupation as determining the character of the land, 
 rather than its subdivision into separate parts, and treat the 
 :>ame as an entire parcel of land. 
 
 To entitle the plaintiff to recover it is not necessary that 
 
 the whole of the front of the premises should abut on 
 
 Street ; but, before the plaintiff can recover for injury affecting 
 ingress and egress to and from his premises, it must appear 
 
 that the substantial part thereof abuts on Street. Even 
 
 though no part thereof abuts on Street, yet if you find 
 
 that the defendant wrongfully, negligently, and by reason of 
 the unreasonable grade, excavated up to and against said 
 premises, so as to substantially and obviously injure plaintiff's 
 said premises and improvements thereon, he would be entitled 
 to recover to the extent of the actual injury to the value of 
 his property caused thereby, not, however, including any 
 damages for deprivation of ingress and egress, as before de- 
 fined, to and from said Street. 
 
 Voris, J., in Rhodes v. City of Akron, Summit County Common Pleas.
 
 MUNICIPAL CORPORATIONS. 279 
 
 No. 378. Reasonableness of grade — What should be con- 
 sidered in determining. — In determining the reasonableness 
 or unreasonableness of the grade and improvements of the 
 owner, you should take into account not only the grade of the 
 street in its relation to the locality of the plaintiff's premises, 
 but in its relation to the street as part of the street system, 
 and the relation that said street sustains to this system and 
 
 the grades thereof. You must consider Street in a much 
 
 broader sense than the mere relation it sustains to the plain- 
 tiff's premises or their immediate vicinity. It must be taken 
 with reference to the general uses and purposes to which the 
 street is devoted by the city to the public; nor should this be 
 limited to the mere purpose of traveling thereon ; it should 
 be considered with reference to the system of drainage, sewer- 
 age, and every reasonable public exigency that may grow out 
 of its use and purpose as one of the public streets of the city, 
 so as to harmonize with its street system. 
 
 In determining whether the grade is reasonable or not, a 
 mere difference of opinion on your part with the city council, 
 whether the council exercised official discretion and authority 
 reasonably or not, would not justify you in deciding against 
 the action of the council. There must be something more 
 than mere difference of opinion. You must be able to find 
 from the evidence that the council acted unreasonably, that 
 is, arbitrarily, oppressively, taking into account the improve- 
 ment as a whole, and its various relations as explained to you, 
 or their official action must stand. 
 
 Voris, J., in Rhodes v. City of Akron, Summit County Common Tleas. 
 
 "No* 379- Change of grade — Recovery of interest on dam- 
 age. — "If the plaintiff sustained any injury by reason of 
 change of grade, it occurred at the time the change was made, 
 and in determining the measure of damages by the differences 
 between the value of improvements before the change of grade 
 and the value of the improvements after the change, you are 
 
 onsider the values at that time. If you find for the plain- 
 tiff in thai regard, having assessed a reasonable and just com- 
 pensation thi you will then consider the question of 
 interest on the amount of damages found for the plaintiff, and 
 on that question, if you find that the plaintiff is entitled to 
 damages, then he should be allowed interest thereon from the 
 date of his injuries to his improvements up to the first day of 
 this term. M 
 
 Prom Cincinnati v. Whetstone, 47 < >. S. 196.
 
 2So MUNICIPAL CORPORATIONS. 
 
 No. 380. Change of grade — Retaining Wall — Whether 
 necessary to protect buildings — Interest on cost of retaining 
 wall. — "It is for the jury to say, taking into consideration all 
 the testimony on the subject, whether under the circumstances 
 a retaining wall was reasonably necessary to protect plaintiff's 
 buildings and improvements, and if a wall was necessary, then 
 whether the wall which was constructed was such a retaining 
 wall as was reasonably necessary. And if you find that the 
 wall was reasonably necessary, and the wall constructed was 
 a reasonable one for the purpose, then the plaintiff should 
 recover the fair and reasonable cost of such wall. And if on 
 this question as to a retaining wall you find for the plaintiff, 
 then he will be entitled to recover interest on the fair and 
 reasonable cost of the retaining wall from the time of its 
 completion up to the first day of the present term. ' ' 
 
 From Cincinnati v. Whetstone, 47 O. S. 196. 
 
 No . 38 1 . Streets — Change of grade — Damages — A differ- 
 ent form. — Example: Plaintiff owns a lot with a house 
 thereon upon property, the ownership of which has continued 
 for fifteen years. Claim is made that, before the erection of 
 improvements upon the lot, which was vacant at the time of 
 purchase, the city had established the grade for the street in 
 front of the property ; that the improvements were made upon 
 the lot in conformity with the grade thus established, and 
 that thereafter the city changed the grade of the street, there- 
 by injuring the property. The following instructions may fit 
 the case: 
 
 " There are several propositions which the plaintiff must 
 prove by a preponderance of the evidence to entitle him to a 
 verdict. You will bear in mind that the city owns all the 
 streets therein, and has a right to exercise the same measure 
 of control over the streets that an individual has over his own 
 property. 1 The streets are for public use, the use of the 
 citizens of the community. The city has the right to change 
 the grade of the streets and to make such improvements as 
 the public authorities in charge of the streets think in their 
 judgment ought to be made. It is only under certain cir- 
 cumstances that a person who owns property abutting on a 
 street can claim damages from the city for injury to that 
 property. Before a recovery can be had you must be satisfied 
 that the city, before these improvements were made upon the 
 
 1 A city has a proprietary interest in the street. Cincinnati v. Hamil- 
 ton County, 1 Disn. 4 ; In re Hotel Alley, 25 W. L. B. 89. It is not private 
 property of the corporation. State ex rel. v. Gas Co., 18 O. S. 262.
 
 MUNICIPAL CORPORATIONS. 201 
 
 lot, established a grade upon the street in front of this prop- 
 erty.' 2 " 
 
 - Pugh, Judge, in Braley v. City of Columbus, Franklin County Com- 
 mon Pleas. City liable where it alters the level of a street after a propri- 
 etor has built with an express view to the grade established by the city. 4 
 O. 500; 4 O. 514; 15 O. 474; iS O. 229. Lot-owners may rely on an estab- 
 lished grade. 14 O. S. 523. Grading vacant lot to conform to a grade is an 
 improvement. 5 O. C. C. 225. Improvements made in accordance with an 
 established grade which is afterwards altered entitles owner to compen- ' 
 sation. 7 O. S. 459. One who builds in anticipation of an established 
 grade may recover for an unreasonable grade. 34 O. S. 32S. 
 
 No. 382. Change of grade after improvement — How this 
 shall be proved. — Whether or not the municipality has 
 changed a grade after the improvements have been made upon 
 the lot may be proved in several ways. It may be done by 
 showing that the city council passed an ordinance by the terms 
 of which the grade of the street was fixed or established. 
 Where an ordinance is introduced in evidence to show that a 
 grade has been made, it is necessary that the plaintiff show 
 proof that the ordinance applies to that part of the street upon 
 which the property of the plaintiff is located. It is also 
 necessary that the plaintiff show proof that the authorities of 
 the city having charge of the street at the time, pursuant to 
 the ordinance, went upon the street and graded it as the 
 ordinance requires, or that the public authorities advertised 
 for contracts, and that contracts were awarded to persons who 
 afterwards went upon the street and graded it in conform it v 
 with the ordinance. 
 
 But the plaintiff is not limited to prove an establishment 
 of a grade by legislative action of the city council, or by 
 the passage of an ordinance or resolution of the council. lie 
 may have the right to offer testimony to prove that the public 
 authorities having charge of the streets used the street in such 
 a way as to make it appear that a grade had been permanently 
 established or a level had there been permanently adopted on 
 the street, whether in accord with an ordained established 
 line or not. To show that a grade lias been fixed by the city 
 in this manner it is incumbent upon the plaintiff to show that 
 the improvement made upon tile street by grading or working 
 it was done under the direction and sanction of the proper 
 public authorities of the city. 
 
 From Braley v. Citv of Columbus, Franklin County Common Pleas. 
 I*. 1. Pugb, Judge. 
 
 No. 383. Whether improvement made in conformity to 
 established grade. — Before recovery can be had by the plain- 
 tiff he must show by a preponderance of the evidence whether
 
 282 MUNICIPAL CORPORATIONS. 
 
 or not the improvement was made upon the lot in conformity 
 to the established grade. It must be shown in substance that 
 the plaintiff was led by the action of the city authorities in 
 thus fixing the grade of the street to take that surface or that 
 level as existing and as established, and so, without expecting 
 any change to be made thereafter, he erected his improve- 
 ments accordingly. 
 
 From Braley v. City of Colnmbus, Common Pleas. D. F. Pugh, Judge. 
 
 No. 384. Change of grade — Damages recoverable — Injury 
 to building — Shrubbery — Access to premises — Value before 
 and after change. — There may be two classes of damages re- 
 covered in such a case, the first being a damage to the prop- 
 erty caused by the change of the grade injuring some of the 
 improvements on the lot. 
 
 (a) Injury to fences — Shrubbery — Building. 
 
 If the change of grade destroy the fences or injure the 
 house in any manner, that would be an injury for which the 
 . city would be liable in damages, unless the city repaired the 
 damages afterwards. The questions that you may consider 
 are whether or not the change injured the fence, or property, 
 or any shrubbery, or whether it became necessary to perform 
 work upon the house to restore it to a condition as good as 
 it was before the change of grade. 
 
 (b) Injury to access. 
 
 The other class of damages consists in the change of grade 
 affecting the use of the property to the extent that the use of 
 the property may have been affected by impairing the access 
 between the street and the lot and the improvements thereon, 
 either over or to the property, the plaintiff, if he has a right 
 to recover, is entitled to damages which he may sustain by 
 reason of such injury to the access to the property. If the 
 street was filled up so that the improvements upon the prop- 
 erty were left below the street, that would make it naturally 
 less accessible from the street, and make the street less ac- 
 cessible from the improvements. If that has been proved, 
 then that is the ground upon which you may assess damages. 
 
 (c) Value before and after change. 
 
 You may inquire also into the value of the property be- 
 fore and after the change of grade, and also as to the cost or 
 expense in making a change in the property so that it may 
 correspond with the change of grade. This is for the purpose 
 of enabling you to ascertain what the depreciation in the value 
 of the property was, which may be the measure of the dam- 
 age. If there has been no depreciation in value there can 
 not be any recovery of damages. If there was a depreciation,
 
 MUNICIPAL CORPORATIONS. 283 
 
 then the plaintiff is entitled to whatever that depreciation 
 amounts to as expressed in dollars and cents. If the injury 
 that may have been caused to the access to the property has 
 been repaired or remedied by the city, and the value of the 
 property has not thereby been diminished, there can be no 
 recovery at all. 
 
 If, after changes which a prudent man would make to 
 restore the premises to as good condition with respect to the 
 new grade as they were in with reference to the old, they are 
 of the same value as before the change of grade, the reason- 
 able cost of such restoration would be what the owner is 
 entitled to recover. If, under like circumstances they are 
 less valuable when restored than before the change of grade, 
 the amount of this diminution in value should be added to 
 the cost of restoration as the amount of the recovery. If, 
 under like circumstances they are more valuable when restored 
 than they were before the change of grade, there should be 
 a recovery for the difference between the cost of restoration 
 and this increase of value, if the increase of value is less than 
 the cost of restoration ; but if the increase in the value of the 
 property is more than the cost of restoration, then the plain- 
 tiff would not be entitled to recover anything. 
 
 From Braley v. City of Columbus, Franklin County Common Pleas. 
 Pugh, Judge. Damages can not exceed value of lot, 5 6. C. C. 225. Only 
 injury to premises and not to particular use is recoverable, 12 W. I.. B. 
 247 ; 130 U. S. 426. See full discussion of allowance of benefits in a note, 
 ante, page 89. 
 
 No. 385. Damages — Consideration of market value — 
 Opinion evidence. — Inasmuch as you may take into con- 
 sideration the genera] value of the property in the market 
 before and after the change of grade, and for the reason that 
 it is the chief measurement of damages, the evidence of course 
 may take a wide range. Witnesses may be put upon the 
 stand by both sides, who will give their opinions as to the 
 value of the property. \'<>u are instructed, however, that 
 these opinions are not binding upon you. Vou are not bound 
 to follow them slavishly. These opinions are competent 
 testimony, and it is your duty to consider them in determining 
 
 what damages there are, if you find there have been any 
 
 damages to the plaintiff; but you are not bound to adopt the 
 opinions of tin- witnesses merely because- they have given 
 them. You will take all the evider* e into consideration and 
 determine for yourselves, according t<» your own judgment, 
 what deprei iation in value, if any, there was. 
 
 Prom Braley v. City of Columbu9, Franklin County Common Pleas. 
 Pugh, Judge, 'flic measure of damages is the different in th< hi 
 value before and after th< change. H9Mass.372; to8Mass.372; 108 
 60 ; 52 la 303 ; 50 Wi 
 
 l!»
 
 284 MUNICIPAL CORPORATIONS. 
 
 No. 386. Damages — Enhancement of value — Consider- 
 ation thereof. — In estimating the damages which the plaintiff 
 may have sustained, you can not deduct from any injury which 
 the property may have sustained the general benefit that the 
 plaintiff received in common with the general public on ac- 
 count of the improvement in the street. If the improvement 
 of the street, the passage to and from the city for the whole 
 public, not only the plaintiff but of all the general public, 
 was rendered more convenient than it was before, then you 
 can not deduct that benefit from the damages that may have 
 been sustained by the plaintiff. The reason of that is that 
 it is a public benefit and the public must pay for it, and the 
 plaintiff as one of the owners of property abutting on this 
 street must assist in paying for it. The plaintiff pays for that 
 kind of a benefit and, therefore, you have no right to deduct 
 the value of that benefit from any injury which the property 
 may have sustained by the raising of the grade in front 
 thereof. 
 
 From Braley v. City of Columbus, Franklin County Common Pleas. 
 Pugh, Judge. In a suit to fix damages to result from a street improve- 
 ment, it is an error to admit evidence of enhancement of value on account 
 of improvement, if no claim is made that such increase results from a 
 special benefit, different from a general benefit. Martin v. Bond Hill, 
 7 C C 271. See extensive note upon the allowance of benefits, ante, page 
 89. 
 
 No. 387. Change of grade — Damages — Benefits. — Now 
 
 when the city establishes a grade and abutting owners establish 
 improvements on their property in accordance with such 
 grade, and the city subsequently adopts a different grade, it 
 does so under the responsibility of paying the abutting owners 
 whatever damages accrue to the improvements by reason of 
 such change of grade. Such damages may be either on ac- 
 count of the destruction of the improvements, or by destruction 
 of part and injury to the remaining part. But such damages 
 are allowable only with respect to improvements made in 
 conformity to the established grade, and are limited to the 
 injury to such improvements. 
 
 Hence, in considering damages which may have been 
 made after the change in grade in 18 — and 18 — , if any, so 
 you must exclude from your consideration any effect which 
 the change of grade might have had on the value of the 
 plaintiff's real estate or land. It is simply damages to the 
 improvements to which your inquiry is limited in that regard. 
 As to the amount of such damages, it is simply determined 
 by your ascertaining the decrease in value, how much less 
 valuable were these improvements by reason of raising the 
 grade of the street. In other words, the damages are to be
 
 MUNICIPAL CORPORATIONS. 285 
 
 measured bv the difference between the value of the buildings 
 and structures immediately before the change of grade in 
 18 — and 18 — and the value immediately after the change of 
 grade, without deduction for general benefits that might 
 accrue from change of grade in the vicinity, or from the fact 
 that the property from the change of grade may be improved 
 for public use or passage. 1 
 
 Benefits of that sort belong to the public and are not to be 
 considered by you in estimating these damages. To the 
 extent, therefore, that the use of these buildings and improve- 
 ments are affected by impairing the access to the buildings 
 from the street, to the extent they have been injured in any 
 other manner by reason of the change of grade, whether by 
 injuring the walls, impairing the usefulness of the build- 
 ings, or causing dampness, so far as the change of grade 
 blocks, impairs, or interferes with the access to the property 
 and the damage to the structures, it is for your consideration. 
 So you have also the right to consider whether or not the 
 buildings can be repaired, or whether they may be rebuilt or 
 reconstructed or abandoned. These are all matters to be 
 considered by you in considering how much less valuable the 
 premises are by reason of the changes made. It is not neces- 
 sary that you should know what the owners may do in regard 
 to repairing, restoring, or abandoning the buildings, but for 
 the purpose of determining the extent of the damages, whether 
 that has been partial or entire. Whether a partial destruction 
 or entire destruction, and for that purpose you may consider 
 the probability of what a prudent man would do under such 
 circumstances; whether to repair, restore, pull down and 
 rebuild, or abandon. 
 
 Bearing in mind all the time that the thing you are to 
 determine is. how much less valuable the improvements were 
 after the change of grade than they were before. Testimony 
 has been introduced as to the value of the structures and 
 improvements before the change of grade and after the change 
 of grade, also in regard to the cost of modifying or adapting 
 the buildings to tin- new grade, according to the various 
 plans, all of which lias been admitted not as fixing the 
 amount of damage, bul to aid you in arriving at the amount 
 
 of decrease in value. There LS no certain rule that can be 
 
 laid down as to the extent of which improvements are aff< 
 by such a change of grade. It is a question which must be 
 left to your judgment. Taking into consideration the 
 estimates and '.pinions of witnesses, but being in the end your 
 own judgment. Opinions of witnesses, in the way of esti- 
 
 1 Martin v Bond Hill, 7 C. C. 271 : ante, page 89.
 
 286 MUNICIPAL CORPORATIONS. 
 
 mates of damages, are testimony, but only testimony. And 
 it is your province to judge of the weight of the testimony. 2 
 
 2 From Cincinnati v. Whetstone, 49 O. S. 196. See generally as to dam- 
 ages where Ohio cases are collected. Kinkead's Code Pleading, Sec. 866. 
 
 No. 388. Damages to property-owner by construction of 
 street. — As the case has been submitted to you, there is only 
 one thing for you to do, and that is, the value of this property 
 must be assessed at the time it was appropriated to street 
 purposes, and the damage, if any there was, to the remainder 
 by reason of the taking of the part which was taken. The 
 question to be passed upon divides itself into two parts. First,, 
 the value of the property which was taken, and, second, the 
 question as to whether the remainder of it was damaged, and, 
 if it was, how much. As to the first question, the plaintiffs 
 are entitled to receive the fair cash value of the property at 
 the time it was taken. It is not what it may have sold for 
 for any particular purpose, or in any particular manner, but 
 what it would have sold for, taking it for all reasonable uses 
 it might have been put to, what was its then fair selling value. 
 And vou will consider the nature of the property, its surround- 
 ings, and all the legitimate uses to which it could have been 
 put, and all the testimony before you on the subject of its 
 value, and of the value of the property in that vicinity, which 
 has been submitted for the purpose of enabling you to arrive 
 at what this piece of ground was worth. You are not to 
 regard it as if you were buying it; nor are you to regard it 
 as if you were selling it ; but generally to look upon it, dis- 
 interestedly, and to endeavor to arrive at its fair cash market 
 value at the time when it was taken, as it lay then. 
 
 Coming then to the other question as to the remainder of 
 the property. The plaintiffs are entitled to something in 
 addition, if the value of the remainder has been reduced by 
 reason of the appropriation in some way other than the mere 
 taking away ; of course the value would be reduced by taking 
 off a portion, but if that is all the damage done, when you 
 have paid them for the portion that has been taken, that 
 would be all they are entitled to. But it sometimes happens 
 that in taking off a piece of property, the remainder is lying 
 in such a situation as to be unavailable, or, at least, of very 
 little use or value. So, while there may be a considerable 
 piece of property left in some cases, yet it is lying in such 
 shape and condition that it is of very little use, and that is 
 what we mean when we say they are entitled to recover any 
 damage of that sort which may have occurred to this piece of 
 property which is left. You will consider its situation
 
 NEGLIGENXE. 287 
 
 immediately after the appropriation was made by the city. 
 To determine whether or not it vas damaged by the appro- 
 priation of the piece that was taken for some purpose you 
 may take into consideration the fact that the piece that was 
 taken was taken for street purposes ; and in determining this 
 question of the damage to the remainder, you may take into 
 consideration whether there were any incidental benefits to 
 the remainder which would offset any damage that there 
 might be in some aspects; for instance, it might be damaged 
 in one aspect of it, and it might be benefited in another, and 
 in considering the question of damage to the remainder, you 
 may take that matter of benefit into consideration, so as to 
 determine whether upon the whole the piece that remains in 
 possession of the L. estate was or was not damaged. If it 
 was not, upon the whole, then they are not entitled to any- 
 thing. If it was, then they are entitled to the amount of 
 that damage, whatever you may find it to be ; but in no event 
 can you set off any benefits that may have accrued to the 
 property, or any of it, by reason of the construction of a new- 
 street there, as against the compensation that the plaintiffs 
 are entitled to for the amount actually taken ; that they are 
 to have compensation for under the constitution and laws of 
 this state, without any deduction for any benefit that the 
 street may have been to the remainder. 
 
 From Joseph Longworth et al. v. City of Cincinnati, Supreme Court, 
 No. 1453. H. D. Peck, Jud 
 
 NEGLIGENCE. 
 (i) Opening Statements. 
 
 No. 389. General form of opening statement in negli- 
 gence cases. — After statement of pleadings and facts proceed: 
 
 i; this statement of the claims of the parties you have 
 been given in substance the matters on which the parties are 
 in- by their pleadings. These pleadings will be before 
 you and 1 an be examined by you ; but, aside from the admis- 
 sions therein, they are not evidence in the cast-, and must 
 not be considered or regarded by you. These issues present 
 for your consideration and determination three principal pro- 
 positions which arc as follows: 1. Was the defendant negli- 
 gent in one or all of the particulars complained of? 2. If 
 so negligent, was this negligt nee the proximate cause of the
 
 288 NEGLIGENCE — OPENING STATEMENTS. 
 
 injury to plaintiff of which he complains? 3. Did the 
 negligence or want of care on the part of the plaintiff contri- 
 bute to cause or produce the injury which he sustained? 
 
 Taking up these questions in the order suggested, you will 
 proceed to inquire and determine whether or not the defend- 
 ant was negligent in any or all of the particulars complained 
 of, and if you find that it was not so negligent, then you need 
 not inquire further, but should return your verdict for the 
 defendant ; but if you find it was so negligent, then you will 
 proceed further and inquire and determine whether or not this 
 negligence so found by you was the proximate cause of the 
 injury to the plaintiff of which he complains, and if you find 
 it was not such cause, you need not inquire further, but return 
 .your verdict for the defendant ; but if you find it was such 
 cause, then you will proceed to inquire and determine whether 
 or not the plaintiff himself was negligent, and if you find he 
 was negligent and that his negligence contributed to the 
 cause or produced his injuries, the defendant would be entitled 
 to your verdict ; but if you find there was no contributory 
 negligence on the part of the plaintiff, and have also found 
 the other matters to which your attention has just been called 
 in his favor, then the plaintiff would be entitled to your 
 verdict. (See No. 391 for definition of negligence, etc.) 
 
 In determining these questions as well as any others sub- 
 mitted, you should carefully consider all the testimony before 
 you, giving to it all such weight, and such only, as in your 
 best judgment it should be entitled to, and in weighing this 
 testimony, you should consider the interest the parties testify- 
 ing may have in the result of this suit; their employment, 
 their intelligence, and means of knowledge ; how far the same 
 is contradicted or corroborated by either testimony or any 
 other matter that would influence them in giving their testi- 
 mony ; upon the question of negligence on the part of the 
 defendant, or as to such negligence being the proximate cause 
 of injury to the plaintiff, the burden of proof is upon the 
 plaintiff, and he must produce a preponderance of the testi- 
 mony upon each of these propositions before you can find in 
 his favor upon them; but if he has produced such preponder- 
 ance of the testimony, then upon such propositions he would, 
 as to that proposition, be entitled to a finding in his favor; 
 but unless such preponderance is produced by the plaintiff, 
 it will be your duty to find against the plaintiff. 
 
 Upon the question of contributory negligence upon the 
 part of the plaintiff, the burden of proof is upon the defend- 
 ant, unless the testimony upon the part of the plaintiff raises 
 a presumption of contributory negligence upon his part, in
 
 NEGLIGENCE — OPENING STATEMENTS. 289 
 
 which event the burden of proof devolves upon the plaintiff, 
 not only to remove and rebut this presumption, but to establish 
 the fact that such contributory negligence did not exist. 
 
 Johnston, Judge, in Whittaker v. Penn. Co. 
 
 No. 390. A proper introductory for any case of negli- 
 gence — After statement of case. — The plaintiff holds the 
 affirmative, upon him rests the burden of establishing the 
 right to recover. 1 
 
 There is no presumption that the railroad company was 
 negligent, or that the negligence of the railroad company 
 occasioned the injury complained of, from the mere fact that 
 the plaintiff received his injury while he was in the service 
 of the company.- To entitle the plaintiff to recover it is 
 incumbent upon him to show by a preponderance of evidence 
 that the company was negligent in the respects complained 
 of in the petition — or some of them — and that the injury 
 which the plaintiff received resulted directly from such negli- 
 gence. And there is this further general rule : Notwithstand- 
 ing any negligence of the defendant, the plaintiff can not 
 recover if he was himself guilty of contributory negligence, 
 as it is called, that is, if, by his own failure or omission to 
 exercise ordinary and reasonable care, he contributed to his 
 own injury. 
 
 The burden of proving contributory negligence on the 
 part of the plaintiff is upon the defendant, 3 with this qualifi- 
 cation : that if the testimony introduced by the plaintiff as to 
 the circumstances under which this injury was received fairly 
 raises a presumption in your minds that he was guilty of 
 contributory negligence, then the burden is upon him to 
 remove that presumption. 4 
 
 The general questions, then, which are involved in this 
 case are: whether there was negligence on the part of the 
 defendant, and whether there was contributory negligence on 
 the part of the plaintiff. The burden of proving contributory 
 neglii ; the part of the plaintiff is upon the defendant, 
 
 with the qualification already stated. 
 
 I will now c-ill your attention to the specific rules of law 
 which are involved in the allegations of the parties and the 
 evidence in the < 
 
 '■ Cf. Cooley on Torts, 79 \. Presumptions under certain circumstances, 
 [d. 796. There 1- a presumption of negligence from a collision. R. K. Co. 
 v. Mowery, j6 O. S ; 
 
 There is a presumption that plaintiff is free from negligence which 
 proof on defendant, r 5 Wall., |oi ; 50 Cal. 7; 30 Wis 
 51 Mo. [90; 66 Pa Si 
 
 « Railroad Co. v. Whitacre, 35 O. S '-27. But see Cooky on Torts, 
 10, cases in note t, p. 1 to.
 
 290 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 (2) General Principles Applicable to All Cases. 
 
 No. 391. Negligence — Ordinary care — Defined. — Negli- 
 gence in a legal sense consists of some act or omission of duty 
 that, in the natural and ordinary course of events, might 
 cause all the injury complained of. It is defined as being 
 ordinary want of care, and may consist in doing something 
 that ought not to be done, or in not doing something which 
 ought to be done. By ordinary care we mean that degree of 
 care which persons of ordinary care and prudence are accus- 
 tomed to use and employ under the same or similar circum- 
 stances, in order to conduct the enterprise in which they are 
 engaged to a safe and successful termination, having due 
 regard for the rights of others, and the objects to be accom- 
 plished. It is such care as prudent persons are accustomed 
 to exercise under the peculiar circumstances of each case. If 
 called into exercise under circumstances of peculiar peril, a 
 greater amount of care is required than where the circum- 
 stances are less perilous, because prudent and careful persons 
 in such cases are accustomed to exercise more care than in 
 cases less perilous. It is still nothing more than ordinary 
 care under the circumstances of the particular case. But it 
 should be that degree of care and prudence that the circum- 
 stances reasonably require ; that is, it should be commensurate 
 with the hazards ordinarily encountered. 
 
 The circumstances determine whether the proper amount 
 of care has been exercised or not. The want of proper care 
 is the want of that care which a reasonable man, guided by 
 these considerations which regulate the conduct of human 
 affairs, would have exercised under the circumstances of the 
 particular case, the failure to observe the protection of the 
 interests of another person, that degree of care, precaution, 
 and vigilance which the circumstances justly demand. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 
 Negligence denned. Kinkead's Code Pig., Sec. 914 ; Harriman v. 
 Railway Co., 45 O. S. 20; Cooley on Torts, 791 (659) ; Moulder v. R. R. Co., 
 1 O. N.P. 361. 
 
 Distinction between gross and ordinary negligence. 37 O. S. 301, 313 ; 
 12 O. S. 475, 496 ; 2S O. S. 3SS, 402 ; Cooley on Torts, 753 (631) ; Jones on 
 Bailments, 4-10. 
 
 Ordinary care is usually denned in instructions according to defini- 
 tion in Terry case. 8 O. S. 582. 
 
 Negligence is the absence of care according to the facts and circum- 
 stances of each case. 29 Md. 420; 78 Pa. St. 219; 54 Pa. St. 345. Cooler's 
 definition : " Negligence is the failure to observe, for the protection of 
 the interest of another, that degree of care, precaution and vigilance 
 which the circumstances justly demand " (Cooley, 630), is generally ac- 
 cepted. Jaggard on Torts, 810, where various definitions are collected. 
 
 Negligence should be measured by the character and the risk of the 
 business. Railway Co. v. Gormly, 27 S. W. 1051.
 
 NEGLIGENCE — GENERAL PRINCIPLES. 291 
 
 No. 392. Negligence defined — Another form — Ordinary- 
 care under circumstances of peculiar peril — Intent not an 
 element of negligence. — It is defined as being the want of 
 ordinary care, and may consist in doing something which 
 ought not to be done, or in not doing something which ought 
 to be done. Ordinary care is that degree of care which 
 persons of ordinary care and prudence are accustomed to use / 
 and employ under the same or similar circumstances, in order 
 to conduct the enterprise in which they are engaged to a safe 
 and successful termination, having due regard for the rights 
 of others and the objects to be accomplished. The ordinary 
 care required by the rule has not only an absolute but also a 
 relative signification. It is such care as prudent persons are 
 accustomed to exercise under the peculiar circumstances of 
 each case. If called into exercise under circumstances of 
 peculiar peril, a greater amount of care is required than where 
 the circumstances are less perilous, because prudent and care- 
 ful persons, having in view the objects to be attained, and 
 the just rights of others in such cases, are accustomed to 
 exercise more care than in cases less perilous. The amount 
 of care is, indeed, increased, but the standard is the same ; it 
 is still nothing more than ordinary care under the circum- 
 stances of the particular case. 
 
 The circumstances, then, are to be regarded in determining 
 whether ordinary care was exercised. The want of proper 
 care is the want of that care which a reasonable man, guided 
 by those considerations which should regulate the conduct of 
 human affairs, would have exercised under the circumstances 
 of the particular case. 
 
 Intent is not an element of legal negligence. Therefore, 
 the plaintiff need not show that the injury was intentional; 
 but the negligence complained of, to enable the plaintiff to 
 recover, must be the proximate cause of the injury. 
 
 By A. C. Voris, Judge. 
 
 No. 393. Ordinary care. — ( Irdinary care means that 
 <-e of care which persons of ordinary care and prudence 
 
 arc accustomed l<> use and employ, under the same or similar 
 
 circumstances, in order to conduct the enterprise engaged in 
 to a safe and Ful termination, having due regard to the 
 
 rights of others and the object to be accomplished. Ordi- 
 nary care^ ther< fore, requires in different circumstances differ- 
 ent degrees of watchfulness, so that what would be reasonable 
 or ordinary care under one state of circumstances would not 
 be such under another. 
 
 By the term "ordinary care," as here used, is meant such
 
 292 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 care as ordinarily prudent persons ordinarily exercise, or are 
 accustomed to exercise, under the same or similar circum- 
 stances, in conducting and carrying on the same or similar 
 business, and this applies to the defendant so far as the negli- 
 gence complained of is concerned, as well as to the plaintiff 
 in regard to contributory negligence on his part. 
 
 Terrv case, 8 O. S. 582. The obligation to exercise care " must he de- 
 termined" in all cases by reference to the situation and knowledge of the 
 parties and all the attendant circumstances. What would be extreme care 
 uuder one condition of knowledge and one state of circumstances would 
 be gross negligence with different knowledge and in changed circum- 
 stances." 15 Wall. 524. 
 
 No. 394. Ordinary care under circumstances of peculiar 
 peril. — By ordinary care is meant that degree of care which 
 a person of ordinary care and prudence is accustomed to use 
 and employ under the same or similar circumstances. If 
 called into exercise under circumstances of peculiar peril, a 
 greater amount of care is required than when the circum- 
 stances are less perilous, because prudent and careful persons, 
 having in view the object to be attained and a just regard for 
 the rights of others, are, in such cases, accustomed to exercise 
 more care than cases less perilous. The amount of care is 
 indeed increased, but the standard is still the same. It is 
 still nothing more than ordinary care under the circumstances 
 of the particular case. The jury ought, therefore, to take 
 into consideration the circumstances in determining whether 
 or not ordinary care was used. 
 
 Ordinary care varies with the danger and circumstances. 24 O. S. 631, 
 639; 24 O. S". 670, 676; 50 O. S. 135. 144 It varies in proportion to the 
 peril. 8 O. S. 570, 581: Even in dangerous business ordinary care only is 
 to be used ; the degree of care is always ordinary under the circumstances 
 of each particular case. The degree of care may be increased in different 
 cases, owing to the character of surrounding circumstances. Weiser v. 
 St. R. Co. 10 O. C. C. 14. 
 
 It is denominated " ordinary," in the sense that it is such as persons of 
 ordinary care and caution usually observe under like circumstances ; and 
 it is sometimes denominated the " highest" degree of care and caution, in 
 the sense that persons of ordinary care and caution usually observe their 
 highest degree of care and caution under such circumstances ; that is, 
 where human life is in peril. It is " ordinary " care and caution, with ref- 
 erence to the c/ass of persons who exercise it, but it is the "highest" de- 
 gree of care and caution with reference to the circumstances uuder which 
 it is exercised. Railway Co. v. Snyder, 24 O. S. 676. 
 
 No. 395. No presumption of negligence against either 
 p ar ty. — There is no presumption against either party in this 
 suit, excepting such as arises from the facts proved. The 
 presumption of law is that neither party was guilty of the 
 negligence or wrongful conduct alleged, and such presumption 
 must prevail until overcome by the evidence submitted to
 
 NEGLIGENCE — GENERAL PRINCIPLES. 293 
 
 you. The wrongful acts complained of in order to enable 
 the plaintiff to recover must be the proximate cause of the 
 injury. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 See ante, p. 289, note. This is applicable of course to cases where 
 there is no such presumption. 
 
 No. 396. Proximate cause defined and explained. — By 
 
 proximate cause is meant a cause from which a man of 
 ordinary experience and sagacity could foresee what result 
 would likely follow ; that the injury was of such a character 
 as might reasonably have been foreseen or expected as a 
 natural and ordinary result of the acts or omission complained 
 of. The injury must have been the direct and not the remote 
 result thereof. In this sense you will inquire into the evi- 
 dence to determine whether the defendants were guilty as 
 charged; whether the decedent was guilty of contributory 
 negligence as charged. In the light of the evidence, how do 
 you find the facts alleged in the plaintiff's petition to be? 
 How do you find the facts charged in the answer to be? The 
 evidence and our instruction to you should be your sole guide 
 in determining the true answers to these questions. You have 
 no right to indulge in speculation or conjectures not supported 
 by the evidence. The plaintiff can only recover upon the 
 particular acts complained of in the petition, but it is sufficient 
 if you find any such acts or omissions on the part of the 
 defendants that proximately caused the injury complained of, 
 if in other respects your finding answers the conditions of our 
 instructions to you. Injury alone will not support an action, 
 there must be a concurrence of injury and wrong. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 Sherman and Red. on Neg., Sec. 26. 
 
 No. 397. Proximate cause — Another definition. — By this 
 term "proximate cause" is meant the cause which directly 
 produced the injury. This term is used in contradistinction 
 to the term "remote cause." A proximate cause does not 
 necessarily mean the cause nearest in point of time or in point 
 of distance, but it does mean that cause without the existence 
 of which the injury would not have been sustained. Some- 
 times an intervening cause may occur between a proximate 
 cause and the result which follows from this proximate cause. 
 If such intervening cause is an independent one, and one 
 which would not necessarily follow or result from the proxi- 
 mate cause itself, then this independent, intervening cause 
 would be and constitute a proximate cause in a series of causes 
 which combine to produce the injury, and if this intervening
 
 294 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 cause was the necessary or natural result of the original cause, 
 even though it may have been nearer the result in _ point of 
 time than the original cause, it would not constitute the 
 proximate cause, but would be regarded in law as the remote 
 cause of the injury. 
 
 Definitions.— "Toe. proximate cause of an injury is that which, in 
 natural and continuous sequence, unbroken by any efficient intervening 
 cause produces the injury, and without which the result would not have 
 occurred. . . The remote cause is that cause which some independ- 
 
 ent force merely took advantage of to accomplish something not the prob- 
 able or natural effect thereof." Goodlander Mill Co. v. Standard Oil Co., 
 63 Fed. 400; 11 C. C. A. 253. See, for full treatment and copious notes, 
 
 Cooley on Torts, 73- 86 - r , r j * -u 
 
 Where the carelessness of plaintiff as well as that of defendant contrib- 
 uted to the injury, the jury should be instructed unambiguously that the 
 plaintiff can not recover if the jury so find the facts. Railway Co. v. 
 Krichbaum, 24 O. S. 119. See Cooley on Torts, 816 (679). 
 
 In cases of mutual negligence, the negligence of each is the proximate 
 cause, and neither can recover. 6 O. S. 105, 109; 3 O. S. 172, 188; 24 O. S. 
 119. Plaintiff's negligence to bar recovery must be a proximate cause. 4 
 
 o. s. 474; 30. S. 172. 
 
 No. 398. No recovery for action without fault of de- 
 fendant. — If, guided by these instructions, you should find 
 that the plaintiff's charge of negligence, or other wrongful 
 conduct alleged, is not supported by a preponderance of the 
 evidence, or if you find from the evidence that the injuries 
 complained of happened by mere accident, without fault on 
 the part of defendants, or though you should find from a pre- 
 ponderance of the evidence that the defendants were so guilty, 
 yet if you so find from the evidence that the injury complained 
 of would not have occurred but for the concurrent negligence 
 of the decedent (or plaintiff) directly contributing thereto, as 
 hereinafter explained and qualified, the plaintiff can not 
 recover and your verdict should be for the defendant. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 
 No. 399. No recovery when there is contributory negli- 
 gence. — Nor can the plaintiff recover compensation for any 
 damages which he might have avoided by the use of ordinary 
 care and prudence under the circumstances ; so, if the plain- 
 tiff (or decedent) did not take reasonable care under the cir- 
 cumstances, or if he voluntarily exposed himself to hazards 
 he ought not to have encountered under the circumstances 
 known to him, or that reasonably ought to have been known 
 to him, and he thereby proximately caused the said injuries, 
 the plaintiff can not recover. All that the law requires^ of 
 the injured party in this respect is that he should act with 
 reasonable care and prudence under the circumstances known 
 to him, or that reasonably ought to have been known to him.
 
 NEGLIGENCE — GENERAL PRINCIPLES. 295. 
 
 That is, he should act reasonably, considering the means of 
 knowledge he had and the circumstances surrounding him, 
 taking him just as you find him to have been, considering 
 his age, inexperience, intelligence, and judgment as you find 
 them to be from the evidence. 
 
 Voris, Judge, in Quinn v. Ewart, Summit Count}- Common Pleas. 
 
 Contributory negligence only ceases to be a defense if defendant 
 could have avoided the injury by ordinary care. 8 W. L. B. 257. The 
 plaintiff's right of recovery is not precluded in all cases where he omits to 
 employ his senses to discover and avoid injury, even though the omission 
 be regarded as negligence. It does so only when the omission contributes 
 to the injury. R. R. Co. v. Whitacre, 35 O. S. 631; R. R. Co. v. Craw- 
 ford, 24 O. S". 628. 
 
 No. 400. Contributory negligence — The negligence must 
 be proximate cause of injury — Explained — (A concise 
 charge ). — If you should find from all the evidence in the case, 
 in accordance with the rules of the burden of proof as I shall 
 hereafter state them, that M. B. was not in the exercise of 
 due care, as I have before defined it, at the time of the injury, 
 and that this absence of due care, together with the negligence 
 of the company, combined to cause the injury and death to 
 him, then he would be guilty of contributory negligence 
 within the meaning of the law, and his administrator could 
 not recover. 
 
 The negligence of which I have spoken, whether on the 
 part of B. or the defendant, must, in the language of the law, 
 be a proximate cause of the injury. An act or omission is 
 the proximate cause of an event when, in the natural order 
 of things and under the circumstances, it would necessarily 
 produce that event ; that is to say, when it is the first and 
 direct power producing the result. If the negligence and 
 resulting damages arc not known by common experience, or 
 arc not found bv you to be usually and naturally in sequence, 
 and the damage does not, according to the ordinary course 
 of events, follow from the negligence, then the negligence 
 and the damage- are not sufficiently conjoined — not sufficiently 
 linked together — as cause and effect to sustain an action if 
 the negligence be that of the defendant, or to bar an action 
 as contributory neglig< nee if the negligence in such case be 
 that of plaintiff. 
 
 Heme, if you find from the evidence that the defendant 
 
 company was negligent, but that said negligence was not 
 linked to said injury as cause to effect, then such negligence 
 was not a proximate cause as 1" fore defined, and will not 
 sustain this action. If, on the other hand, you find that the 
 plaintiff was guilty of neglig* nee, and you further find that 
 such negligence did not contribute as a proximate cause to
 
 296 NEGLIGENCE— GENERAL PRINCIPLES. 
 
 the injury, then the plaintiff will not, for that reason, be 
 barred of a recovery in this action. 
 
 W. T. Mooney, Judge, in Chicago & E. R. R. Co. v. Purviance. 
 
 No. 401. When plaintiff must show himself without 
 fault — Burden. — It is not necessary in the first instance that 
 plaintiff should show he was free from blame and not in fault, 
 unless his own evidence suggests that he was negligent and 
 to blame for the injury. If contributory negligence is sug- 
 gested by plaintiff's own evidence, then the burden is on him 
 to remove and dispel the suggestion, and show himself blame- 
 less to the jury. If not so suggested by plaintiff's evidence,, 
 then such contributory negligence as will defeat a recovery, 
 to be available, must be shown by defendant. In such case, 
 the burden is on the defendant, and it must make it appear 
 to the satisfaction of the jury by a preponderance of evidence. 
 
 When the case is such as necessarily devolves carefulness on the part 
 of plaintiff, and the testimony to support it fairly puts in question the 
 due exercise of care on his part, the jury, in determing the question of 
 contributory negligence, should consider all the evidence. Robinson v. 
 Gary, 28 O. S. 241. If plaintiff's testimony raises a presumption of con- 
 tributory negligence, the burden is upon him to remove that presumption. 
 R. R. Co. v. Whitacre, 35 O. S. 627, 630; Hays v. Gallagher, 72 Pa. St., 140; 
 Wharton on Neg., Sees. 425, 428 ; 28 O. S. 241. 
 
 No. 402. Burden of proving contributory negligence. — 
 
 The burden of proof as to contributory negligence is upon the 
 defendant, unless the evidence introduced on the part of the 
 plaintiff tends to show that the plaintiff was guilty of negli- 
 gence, in which case it would be your duty to' find from a 
 preponderance of the evidence of the whole truth that he was 
 not guilty of negligence that contributed to his injury before 
 he would be entitled to recover. 
 
 Gillmer, Judge, in Trowbridge v. R. R. Co. 
 
 The authorities upon the burden of proof vary in different states. 
 Sherm. & Red., Sees. 106-7. See ante, No. 401, note. See full discussion 
 also in Booth's Street Railways, Sec. 3S1 ; Balto. & Ohio R. R. Co. v. Whit- 
 acre, 35 O. S. 627. 
 
 No. 403. Contributory negligence — Burden of proof 
 shifts when. — Upon the question of contributory negligence, 
 the burden of proof is upon the defendant, unless the testi- 
 mony on the part of the plaintiff discloses such conduct on 
 his part as to raise a presumption of contributory negligence 
 against him, in which event the burden of proof would shift 
 to plaintiff, and he would then be required to produce a pre- 
 ponderance of the evidence to rebut and remove this pre- 
 sumption, and in support of the fact that contributory negli- 
 gence did not exist. 
 
 See ante, Nos. 401, 402, note.
 
 NEGLIGENCE — GENERAL PRINCIPLES. 297 
 
 No. 404. Contributory negligence as applicable to child- 
 ren. — "In the application of the doctrine of contributory 
 negligence to children for injuries occasioned by the wrongful 
 conduct or negligence of others, their conduct should not be 
 judged by the same rule which governs that of adults; and, 
 while it is their duty to exercise ordinary care to avoid the 
 injuries complained of, ordinary care for them is that degree 
 of care which children of the same age of ordinary care and 
 prudence are accustomed to exercise under similar circum- 
 stances. 
 
 "Persons who employ children to work with or about 
 dangerous machinery, or in dangerous places, should anticipate 
 that they will exercise only such judgment, discretion, and 
 care as is usual among children of the same age under similar 
 circumstances, and are bound to use due care, having regard to 
 their age and inexperience, to protect them from the dangers 
 incident to the circumstances in which they are placed, and 
 as a reasonable precaution in the exercise of such care as 
 ought reasonably to be expected of them, guarding against 
 and avoiding injuries arising therefrom. But since the enact- 
 ment of April 18, 1890, 1 they may not willfully employ or 
 permit children under the age of 16 years to be placed in a 
 position, or to be engaged in such employment, that their life 
 or limb is in danger. 
 
 "Such employee who has not been so instructed, and who, 
 while in the discharge of his duty as he understands it, suffers 
 an injury in consequence of the employer's negligence, may- 
 maintain an action against the employer therefor, notwith- 
 standing that, by reason of his youth and inexperience and 
 the failure of the employer to properly instruct him, he did 
 some act, in the performance of his duty according to the 
 judgment and knowledge he possessed, which contributed to 
 the injury, but which he did not know and was not advised 
 would be likely to injure him." 8 
 
 But it is for you to determine from a preponderance of the 
 evidence whether the decedent was or was not a child under 
 the age of i r > years; and if you find him to have been under 
 that age, whether or not the defendants willfully permitted 
 his life and limb to be endangered while so employed by them, 
 or willfully permitted him to be placed in such position, or 
 to engage in su( li employment at the time of the injury, that 
 his life or limb was endangered; whether he was properly 
 instructed; and whether or not such willful and negligent 
 conduct, if any such existed, caused the injury complained 
 
 ■s 7 o. I,. i6i. 
 
 2 Rolling Mill v. Corrigan, 46 O. S. 2S^; Beach Contrib. Neg., Sec. 136.
 
 298 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 of. These delinquencies must have existed at the time of the 
 injury and be the cause thereof to enable the plaintiff to 
 recover, if they existed. 3 
 
 3 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 See Sherman & Redf. on Neg., Sees. 70, 73. 
 
 No. 405. Contributory negligence of children contin- 
 ued — Consent of children — Effect. — While, in a general way, 
 it may be said that to the consenting there can be no damage, 
 yet the consent, to avail as a defense, must be the consent of 
 a person capable of giving consent. They must have intelli- 
 gence, judgment and free will ; not idiots, imbeciles, insane 
 or mere children. The law holds that infants in general can 
 not give consent, but this holding can not apply to all infants. 
 It is, after all, in actions like this, a question of capacity to 
 be determined by the jury under the circumstances of the 
 case, considering them as children. In any event the consent 
 must be founded in an intelligent judgment to be available. 
 This legal disability arises out of the tender regard of the law 
 to the want of understanding and inexperience of children, 
 and as a shield to protect them against those who would take 
 advantage of their condition. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 
 No. 406. Contributory negligence — Intoxication as 
 affecting. — The plaintiff can not recover if he was himself in 
 fault at the time, which contributed to his injury, and if you 
 find that he was incapable of taking care of himself, by reason 
 of drink or any other cause, then he will not be entitled to 
 recover. The plaintiffs claimed that intoxication, however, 
 if proven, would not necessarily prevent recovery; but it 
 bears upon the question whether or not he exercised reason- 
 able and ordinary care, and if you find that he was intoxicated, 
 and still find that he exercised reasonable and ordinary care 
 to avoid the injury, but further find that, while he was negli- 
 gent, such negligence did not contribute to the injury, that 
 if the defendant was guilty of negligence, such negligence was 
 not the proximate cause of his injury, the plaintiff would be 
 entitled to your verdict. 
 
 If you find that the plaintiff was so intoxicated at the 
 time of the accident as to disable him from exercising ordi- 
 nary care, but find that at the time of the accident he was in 
 charge and under the care of his son, who was at the time 
 capable of exercising the ordinary care of an adult, and that 
 he did exercise ordinary care under the circumstances, and if 
 you find that the son was driving the vehicle, and that when
 
 NEGLIGENCE — GENERAL PRINCIPLES. 299 
 
 approaching the crossing exercised ordinary care, and yon 
 further find that defendant's agents in charge of the train 
 were guilty of negligence which produced the injury, then 
 your finding should be for the plaintiff. On the other hand, 
 if the plaintiff by reason of intoxication contributed to the 
 injury complained of, that would prevent a recovery. This 
 is a question of fact for you to determine. 
 
 Gillmer, J., in Flemming v. Penn. R. R. Co., Trumbull County Com- 
 mon Pleas 
 
 Intoxication tends to show contributory negligence, and is matter for 
 the jury. Reach's Contr. Neg., Sec. 197, citing Seymour v. Lake, 66 Wis. 
 651 ; Ford v. Umatilla Co., 15 Ore. 313, etc; Sherman oc Redf. on Neg. (4th 
 ed.), Sec. 93. 
 
 Intoxication will not excuse one crossing a railroad track from the 
 exercise of such care as is due care from a sober man. Beach's Contrib. 
 Neg., Sec. 197; Varuall v. St. L., etc., R. R. Co., 75 Mo. 575; Kean v. B. cc 
 O. R. R. Co., 61 Md. 154. 
 
 No. 407. Imputed negligence — Doctrine of, does not pre- 
 vail in Ohio. — "The doctrine of imputed negligence does not: 
 prevail in Ohio; and if you find that the deceased died 
 through the wrongful act, neglect, or default of the defen- 
 dant, by himself or his agent, then the plaintiff is not de- 
 prived of the right of action in this case by reason of contrib- 
 utory negligence on the part of the husband or anyone else, 
 unless such person was acting as agent of the deceased at the 
 time." 
 
 From Davis v. Guarnieri, 45 < >. S. 170. 
 
 No. 408. Negligence — Of parent not imputed to child. — 
 "if it be found that the plaintiff was fully capable of taking 
 reasonable care of herself, and was injured while lawfully 
 rifling with her father in his own wagon, then the conduct of 
 the father in driving the wagon, any negligence on his part, 
 with which the plaintiff had nothing to do, can not be attrib- 
 uted to her in that respect, even though the father by his 
 negligence may have so contributed to the accident that he 
 would be barred from recovery by his contributory negligence, 
 it still will not prevent the plaintiff from recovering, unless 
 she herself contributed to the negligence which caused the 
 injur)'. " 
 
 Prom Stn el Railway I • ' s8 O. S. 399 ; 24 O. 
 
 S. 670 ; 30O.S. 451 ; Booth on Street k.uiv. 
 
 No. 409. Contributory negligence — Husband performing 
 duties as such not agent of wife. — If the deceased by his 
 own negligence, 01 thai of her agent, contributed to bring 
 
 about her death, the defendant is not liable. If her husband 
 
 •20
 
 300 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 acted as her agent in the purchase of the drug, then she is 
 bound, and such an act would be an act to prevent a recovery 
 in this case. But a purchase made by a husband for his wife 
 in the discharge of his duty as a husband does not constitute 
 him the agent of his wife. But in order to make the husband 
 the agent of his wife, he must by her procurement and direc- 
 tion, and under her authority and control, have gone and 
 made the purchase, and if he simply went in the discharge 
 of his duty as a husband, he was not her agent in such a way 
 that any carelessness of his could be attributed to her. If he 
 was under her direction and control in such a way as to make 
 him her agent, then his carelessness is her carelessness, and if 
 he contributed by his negligence, the plaintiff can not recover 
 here, for the plaintiff can only recover because the woman, 
 had she lived, could recover." 
 
 From Davis v. Guarnieri, 45 O. S. 470. " The obtaining by the hus- 
 band of food or medicine for his wife, with her knowledge and approval, 
 does not of itself constitute such husband the agent of the wife in such 
 sense as to charge her with his negligence. In order to make him the agent 
 of the wife in such transaction, she must have selected the medicine, directed 
 that he should purchase it, and he must have had nothing to do in the 
 matter except by her procurement and direction. What he did in this 
 matter simply in the discharge of his duty as a husband was not done as 
 the agent of his wife, and his negligence in his duties as a husband are 
 not chargeable to his wife." Davis v. Guarnieri, 45 O. S. 470. See Booth 
 on Street Railways, Sec. 392. 
 
 No. 410. Injured must be free from negligence — Com- 
 parative negligence. — But the theory upon which the law- 
 proceeds in actions of negligence is that, although one is 
 injured by the negligence of another, yet such injured person, 
 or. as in this case, his administrator is not entitled to recover 
 from that fact alone, unless the decedent was free from such 
 negligence as a man of ordinary prudence, under all the cir- 
 cumstances, would be free from, or, to state the rule in differ- 
 ent words, if a person is injured as the result of the combined 
 negligence of himself and another person, the law of this state 
 will not undertake to determine which of the two persons 
 was the more negligent, but will simply refuse to permit the 
 injured person, or his administrator under such a state of 
 facts, to recover in damages from the other party. 
 
 W. T. Mooney, Judge, in Chicago & E. R. R. Co. v. Purviance, S. C, 
 No. 3955. See fully Beach's Contrib. Neg., Sec. 72 et seq.; Booth on Street 
 Railways, Sec. 379. 
 
 No. 411. Hazardous employments — Employment of chil- 
 dren in. — Many legitimate employments or occupations are 
 essentially dangerous, in which an employee may be engaged 
 without being held in law as negligent, if he exercises reason-
 
 NEGLIGENCE — GENERAL PRINCIPLES. 301 
 
 able care and prudence under the circumstances, while so 
 employed, to save himself from ordinary hazards attending 
 the employment; and if he so conducts himself in good faith, 
 it can not be imputed to him that he is guilty of contributory 
 negligence, if the master by his negligence in the prosecution 
 of his hazardous occupation caused him wrongful injury. 
 That is, he takes upon himself the hazards usually incident 
 to the employment, but not that of the negligence of his 
 employer, unless such negligence would be unknown to the 
 servant had he exercised reasonable care. But vou are in- 
 structed that children under the age of 16 years may not be 
 employed in such occupations where life and limb are en- 
 dangered, or health injured. The mere fact that a child 
 under sixteen years of age consents to be employed in such 
 occupation does not as a matter of law deprive him of the 
 right of action for injuries so caused. That children under 
 sixteen years of age shall not be so employed is the settled 
 policy of the state, and whoever employs such children in 
 such prohibited employment does so at his peril. The law 
 does not stop here, but makes it the duty of employers who 
 use in their business instrumentalities or agencies dangerous 
 to life, limb, or health to so manage their business that such 
 children shall not willfully or negligently be endangered 
 thereby while actually in their employment. 
 
 The law imposes upon defendants the duty of exercising 
 due care and caution to ascertain whether they employ persons 
 under sixteen years of age in any such employment. It is 
 their duty to see to it that their employees in such dangerous 
 positions are not within the prohibited age. It is a just rule 
 that holds them to the exercise of caution and good faith in 
 this behalf, the requirements of which can not be thrown if 
 by the mere ignorance of the employers as to the age of the 
 servant, [f the defendants wen- actually deceived, and in 
 ! faith believed from the statements made to them by the 
 decedent as to his age and health, had good reason to believe 
 that he was sixteen the time of his injuries, 
 
 you may look to the testimony bearing upon this branch of 
 the case in determining whethei the defendants willfully 
 or permitted the decedenl to be exposed to the hazards 
 prohibited by the statute, giving this evidence just such 
 
 in as in your judgmenl it is entitled to. 
 hi. pectivi of the age of the decedent and the fad that 
 the emplo ' him to work with machinery dangerous to 
 
 111*1 limb, it is their dul to it tli.it the empli 
 
 should not he- expos, -l to "tlui hazards than those fairly 
 lent to the employment, and not to him to any
 
 302 NEGLIGENCE — GENERAL PRINCIPLES. 
 
 risks arising from want of reasonable care and prudence on 
 the part of the employers in the selection, maintenance and 
 operation of the same. It was the duty of the defendants not 
 to expose the decedent to any hazards that reasonable care 
 and prudence could guard against, and that care and prudence 
 should be commensurate to the hazards ordinarily attending 
 the business to which he was set to work. While the statute 
 makes it unlawful to so employ children under the age of 
 sixteen years, the fact of the age of the employee, the hazards 
 of the employment, the actual existence of the alleged negli- 
 gence must nevertheless be found from the evidence submit- 
 ted to you, if found at all. The fact that the statute prohibits 
 such employment may be considered by you with the other 
 evidence in the case, as bearing upon the alleged negligence 
 and other wrongful conduct of the defendant ; but the mere 
 fact that this statute was violated by the defendant in employ- 
 ing a person under the age of sixteen years, if you find that 
 to be the fact from the evidence, does not of itself warrant a 
 recovery against the defendant. The wrongful acts set out 
 in the petition must be still established by other evidence. 
 
 Voris, Judge, in Quinn v. Ewart, Summit Count}' Common Pleas. See 
 Meek v. Pa. Co., 38 O. S. 632, 637, 638. As to duty of employer to furnish 
 suitable instrumentalities, etc., see Davis v. R. R. Co. 98 Cal. 19; 35 Am. St. 
 and Rep. 133. 
 
 No. 412. Employment of children in hazardous places — 
 Effect of statute requiring parents to send children to school. 
 
 — You are instructed that the provisions of the statute which 
 requires the parent to send his children under a certain age 
 to school a given number of weeks each year can not be used 
 as a shield to relieve the defendants from the responsibility, 
 if you find them to be liable under the instructions and guided 
 by them. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 
 No. 413. Negligence — Duty of employer to infant em- 
 ployee. — "It is the duty of an infant employee to use ordinary 
 care and prudence ; just such care and prudence as a boy of 
 his age of ordinary care and prudence would use under like 
 or similar circumstances. The jury should take into con- 
 sideration his age, the judgment and knowledge he possessed. 
 If not understanding all the dangers and hazards of the situa- 
 tion in which he was placed by the foreman, and you find it 
 was a dangerous and hazardous situation in which to place a 
 boy of his age, judgment and experience, it was the duty of 
 the foreman to instruct him in respect thereto, that he might
 
 NEGLIGENCE — GENERAL PRINXIPLES. 303 
 
 conduct himself so as to guard against such peril ; and if he 
 was injured by reason of the neglect or carelessness of the 
 defendant, and by reason of his youth and want of judgment 
 as to the perils of his position, did some act in the discharge 
 of his duty as he understood it, which also contributed to the 
 injury, and which he did not know to be likely to injure him, 
 and had not been properly advised and instructed therein by 
 the foreman, he is entitled to recover. ' ' 
 
 From Rolling Mill v. Corrigau, 46 O. S. 2S3. 
 
 No. 414. Hazardous employment — Duty of master — 
 Operation of railroad is. — The determination of this case 
 upon the issues thus made involves the application by vou to 
 the facts as you shall find them to be of the law governing 
 the relation between employer and employee, or in the lan- 
 guage of the law, between master and servant. Where a 
 servant is employed to operate a machine, the operation of 
 which, under ordinarily favorable conditions, is attended with 
 danger to the person operating the same, or about a business, 
 the conduct of which under ordinarily favorable circumstances 
 is hazardous, a master is bound to use due care to furnish 
 said machine properly constructed and reasonably well-adapted 
 to perform the work required, and having so furnished said 
 machine, to use due care to keep the same in a reasonably 
 safe order and condition. 
 
 I am authorized to say to you, gentlemen, as a matter of 
 law, that the operation of a freight train upon a railroad, and 
 the performance of the- duties of a brakeman thereon, is a 
 hazardous business, and the rule- which I have just given you 
 applies to a railroad company in providing tracks, cars, etc., 
 in a reasonably safe- condition. 
 
 This rule does not make- the master an insurer of the safety 
 of the business about which the servant is employed, nor 
 does it require the master, at all events, to provide tracks, 
 cars, etc., which will not and do not injure-. The rule re- 
 quires only that the master use due (.are to guard against 
 
 • s and to prevent injury. 
 
 This dm- care which the law from the master is 
 
 not necessarily satisfied by the 1 on the part of the 
 
 ter of that degree of care for the safety of th< servant 
 which might ordinarily b< ed. Du< care is defined by 
 
 tlie- Law i" be »uch watchfulness, caution, and foresighl as 
 under all circumstances a man of ordinary prudence would 
 exercise in view of the consequences that mi nil from 
 
 the furnishing of defective or imperfed tracl to a 
 
 person engaged in the bu I brak< man, and when I shall
 
 304 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 hereafter- speak to you of negligence I mean simply the 
 absence of due care as just defined. And in this connection 
 it is important to bear in mind another rule of law: "That 
 a servant who undertakes any employment thereby assumes 
 all the necessary, ordinary, inseparable, and inherent risks 
 incident to such employment ; that is to say, where the em- 
 ployment is accompanied with risks and dangers, of which 
 the servant who enters it has notice, he can not, if he is injured 
 by exposure to such risks and dangers, recover in damages 
 from his master." This rule, however, presupposes that the 
 master has exercised due care, as above defined, in providing 
 proper appliances, tracks, etc., for the performance of the 
 required service. 
 
 In accordance with these rules of law, and from the evi- 
 dence in this case, the questions you will be called upon to 
 determine are two in number. 
 
 First : Was the defendant guilty of negligence, and did 
 such negligence occasion the injury to plaintiff, and 
 
 Second : Was the decedent, B. , guilty of negligence, and 
 did his negligence contribute to this injury and death? 
 
 W. T. Mooney, Judge, in The Chicago & Erie R. R. v. Purviance, Su- 
 preme Court, No.' 3955. Judgments affirmed February 25, 1895. Van Wert 
 County. 
 
 No. 415. Willfully permitting a child to be endangered 
 while in employment. — You are instructed that it is wrongful 
 for any person, firm, or corporation, to "willfully permit the 
 life or limb of any child under the age of 16 years to be 
 endangered while actually in their employment, or to will- 
 fully permit such child to be placed in such position, or to 
 engage in such employment that its life or limb is in danger. " 
 It is so made wrongful by express provision of the statute. 
 
 Voris, Judge, Summit County. Quinn v. Ewart. 
 
 (3) Railroads— Duties to Passengers. 
 
 No. 416. Degree of care due from carrier to passenger. — 
 
 The jury are instructed that railroads are public carriers, and 
 that it is their duty as common carriers of passengers to use 
 the highest degree of care towards their passengers; they 
 must do all that human care, vigilance, and foresight can do 
 under the circumstances, and in view of the character of the 
 mode of conveyance adopted, reasonably to guard against acci- 
 dents and consequential injuries, and if they neglect to do so,
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 305 
 
 they are to be held strictly responsible for all consequences 
 which flow from such neglect. 1 
 
 "The company is not an insurer of the absolute safety of 
 the passengers as it is of goods which it undertakes to carry, 
 but it is bound to exercise the highest degree of care to secure 
 the safety of the passenger, and is responsible for the slightest 
 neglect resulting in injury to the passenger; and this care 
 applies to the safe and proper construction and equipment of 
 the road, the employment of skillful and prudent operatives, 
 and the faithful performance by them of their respective 
 duties." 2 
 
 1 Tuller v. Talbot, 23 111. 358; Railroad v. Manson, 30 O. S. 451. 
 
 2 Ex R. R. Co. v. Dickerson, 59 Ind. 321. 
 
 No. 417. Duty of passenger. — On the other hand, the 
 law exacts of the passenger that, while traveling on the train, 
 he exercise ordinary care and caution to avoid the injuries 
 incident to that mode of travel. In legal contemplation he 
 expects to take, and does take upon himself, the hazards of 
 such danger as may occur to him without any want of care 
 or diligence on the part of the company and its operatives. 
 
 From Ohio & M. Ry. v. Dickerson, 59 Ind. 321. 
 
 No. 418. Company not bound to carry passengers on 
 freight trains. — A railroad company is under no legal obliga- 
 tion to transport passengers on its freight trains. The company 
 confines its carriage of passengers to regular passenger trains, 
 and its carriage of goods to its freight trains. But when the 
 company assumes to carry passengers upon its freight trains, 
 it is not' bound to furnish to the passengers the same comforts 
 and conveniences which are enjoyed on a regular passenger 
 coach; but whether a railroad company undertake- to convey 
 its passengers on a freight or passenger train, in a caboose or 
 well-cushioned chairs, its duty is so to run and manage the 
 •rain that passengers shall not, by its own carelessness, be 
 killed or injured. On the other hand, he is presumed to 
 know the manner in which such trains are ordinarily operated, 
 and to assume any additional risk, aside from the negligence 
 of the company, to which, he may be exposed in consequence 
 of his 1 iding on a freight train. 
 
 From « >. & M. 1 lui1 - 5' ' 
 
 373; 53IU-397 J9 N- V. 227. 
 
 No. 419. Relation of carrier and passenger exists when. 
 — The jury are instructed that the responsibility of the carrier 
 towards the passenger begins when he presents himself for
 
 306 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 transportation ; it is not necessary triat the passenger shall 
 have actually purchased a ticket to create the relationship; 
 the person intending to become a passenger becomes one, and 
 entitled to all the rights as such, when he approaches the 
 place of reception for that purpose ; and if you find from the 
 evidence that the plaintiff approached the depot and informed 
 the ticket agent of his intention and desire to become a pas- 
 senger, and the station agent directed him about the trains, 
 you may then find that the relation of passenger and carrier 
 begins. 
 
 Allender v. R. R. Co., 37 la. 270 ; Cooley on Torts, 770 (644). Pur- 
 chase of ticket or payment of fare not necessary to create relation. 
 Wood's Ry. Law, p. 1205. 
 
 No. 420. Railroads — Passengers — Duty of railroad com- 
 pany to furnish safe passage to passengers. — It was the duty 
 of the defendant company, as a common carrier of passengers, 
 to furnish a reasonably safe passage for its passengers going 
 to and from its trains. And the law imposes an obligation 
 on the part of the railroad company to take reasonable care 
 that a person holding the relation of passenger going to, or 
 coming from, its trains shall, while thus on its premises, be 
 exposed to no unnecessary danger, or one of which it is aware, 
 and requires it to provide for such passengers a reasonably 
 safe passage to and from said trains. If you find from the 
 evidence that the plaintiff, at the time of the injury, was 
 returning from a train of the defendant's cars, where she had 
 lawfully ridden, she would be entitled to such protection from 
 injury while on the railroad company's platform as men of 
 ordinary care and prudence would be accustomed to give per- 
 sons under like or similar circumstances. 
 
 Nye, Judge, in Clark v. N. Y., P. & O. R. R. Co., Medina County. 
 
 A common carrier is liable for any injury resulting from the slightest 
 motion of his vehicle during the entrance or exit of a passenger. Mul- 
 hado v. Brooklyn, etc. R. R. Co., 30 N. Y. 370; Sherman & Redfield 011 
 Negligence, Sec. 508. 
 
 No. 421. Negligence — Injury to passenger — Burden of 
 proof. — "It being admitted that the defendant is a carrier of 
 passengers, that, on the occasion mentioned in the petition, 
 the plaintiff was a passenger on defendant's train, having 
 paid his fare, it was the duty of defendant to carry him safely 
 to the point of his destination without injury; and when it 
 is shown that the defendant failed to carry the plaintiff safely 
 to the place of his destination, this failure puts the defendant, 
 prima facie, in the wrong, and the burden of proof devolves 
 upon it to show that the injury was the result of a pure acci-
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 307 
 
 dent, and that it could not have been prevented by the exer- 
 cise of the utmost care and skill which prudent men are 
 accustomed to employ under similar circumstances." 
 
 From Railroad Co. v. Mowery, 36 O. S. 41S. 
 
 No. 422. Negligence — Of passenger contributing to in- 
 jury. — "Although the defendant did not exercise the degree 
 of care required of it, yet, if the plaintiff was also in fault, 
 and that fault contributed directly to produce the injury, he 
 can not recover. His right to recover, however, is not affected 
 by his having contributed to the injury, unless he was in fault 
 in so doing." 
 
 From Railroad Co. v. Mowery, 36 O. S. 418. 
 
 No. 423. Duty to provide safe platform. — ' ' It is the duty 
 of the defendant to have its platform reasonably sufficient 
 and safe in all respects, to be used by such persons as 111 ax- 
 have lawful occasion to use it. It is not necessary that it 
 should be perfectly and absolutely safe; so great a degree of 
 perfection isusually impracticable; but it must be reasonably 
 safe and sufficient for all persons using it, who are themselves 
 in the exercise of ordinary and reasonable care. If a barrier 
 or guard is reasonably necessary to prevent persons, who are 
 themselves in the exercise of ordinary and reasonable care, 
 from falling from the platfom to their injury, then a barrier 
 should be placed upon it, or a guard sin mid be placed to warn 
 people of danger. Such lights as are necessary to render the 
 use of the platform and the passage over it to th< ison- 
 
 ably safe should be upon the platform, at the platform, at the 
 time of the arrival of trains, and during the time the trains 
 remain at the station." 
 
 / ' . life v. R. R. Co., 48 Wis. 516. 
 
 No. 424. Duty of carrier to passenger boarding train. — 
 "It is the duty of a railroad company to use di . not 
 
 only in conveying its passengers upon their journey, but also 
 in all preliminary matters, such as thi I ion into th< 
 
 and their accommodation while waiting for it; and, whether 
 bound to render as in taking passengers aboard its 
 
 : t is liable for the cons< quen< es of i 
 giving direction is to the mode of entering. 
 
 Whether it was the duty of defendant'- agent to have assist< -1 
 plaintiff in getting on th< >n foi you to consider 
 
 and determine from the evidence in thi ind foi this 
 
 purpose it is proper for you to consider the train and tin
 
 308 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 their distance from the platform and depot, the facility with 
 which access could be had, the sex, age, and inexperience of 
 the plaintiff, if these were known to defendant's agents, and 
 all the facts and circumstances surrounding the case. When 
 the carrier of passengers by railway does not receive pas- 
 sengers into the car at the platform erected for that purpose, 
 and suffers or directs passengers to enter at out of the way 
 places, it is its duty to use the utmost care in preventing 
 accidents to^ passengers while so entering." 
 
 From Allender v. R. R. Co., 43 la. 277. 
 
 As to duty to aged and infirm persons, Sher. & Red. Negligence, Sec. 
 508 ; 1 How. Pr. N. S. 67 ; Wood on Railways, Sec. 1363. Company must 
 stop car at platform and must furnish proper platform for passengers. 
 Sher. & Red. Negligence, Sec. 510. 
 
 No. 425. Must protect passengers from violence. — The 
 
 defendant company must carry its passengers safely and prop- 
 erly, and the duty to so carry its passengers safely extends 
 still further. There rests on the carrier the obligation and 
 duty to protect its passengers from violence ; if such violence 
 can not be prevented by the highest degree of care, the carrier 
 can not then be held responsible; if the carrier has used the 
 care which the law requires — that is, the highest — then it is 
 not liable. A carrier is responsible for injuries willfully or 
 carelessly inflicted upon passengers by its servants engaged in 
 the performance of duties within the general scope of their 
 employment, whether the particular act was or was not 
 authorized by the master. The defendant is not an insurer 
 of the safety of its passengers against all the risks of travel, 
 but is bound to use the highest degree of care, and when that 
 is done, that is all that the law may exact of them. 
 
 See Sherlock v. Ailing, 44 Ind. 1S4; L. & C. R. Co. v. Kelly, 92 Ind. 372. 
 Some authorities seem to hold the carrier responsible for "violence and 
 insults from whatsoever source arising." Goddard v. R. R. Co., 57 Me. 202 ; 
 2 Am. Rep. 39; 1 Kinkead's Code Pig., p. 204. For full discussion see 
 same, Sees. 230, 231, and cases. 
 
 No. 426. Right to eject passengers. — "The jury are in- 
 structed that if they believe from the testimony that the 
 plaintiff did not pay, or offer to pay the conductor in charge 
 of the train, his fare from C. to W., or place of destination, 
 and refused to pay the same on being requested so to do, then 
 the conductor was justified in putting plaintiff off the train, 
 and using only the necessary force to do so, at some regular 
 station, or near some dwelling-house, as the conductor should 
 elect. Yet if the jury further believe from the testimony 
 that the conductor and others, agents and servants of the 
 defendant, acting under orders from the conductor, forcibly
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 309 
 
 put plaintiff off from the train, and in so doing used unneces- 
 sary force, and unnecessarily beat, kicked, and bruised plain- 
 tiff while he was so on the train, then the jury will find for 
 the plaintiff and assess his damages at such sum as they be- 
 lieve from the evidence to be a just compensation for the 
 injuries sustained. . . . " ] 
 
 The defendant company had a right to prescribe rates for 
 prepurchased tickets, and car rates when tickets were not 
 purchased, for distances less than eight miles, and more than 
 six miles, provided that neither of such rates exceeded the 
 maximum rate allowed by law. Where a passenger enters 
 the cars without having purchased a ticket, and when pay- 
 ment of the fare is demanded is persistently refused, after 
 giving such person a reasonable time to determine whether 
 or not he will pay, such person has no right to remain on the 
 train, or to claim the rights of a passenger, but may be treated 
 as a trespasser. The conductor may lawfully eject such a 
 person, provided he uses no unreasonable violence and does 
 not expel him at a place where he would be exposed to serious 
 injury or danger. - 
 
 It is not only the right, but the duty of a conductor to 
 expel from a tram a drunken, unruly, boisterous passenger, 
 but when such a person endangers by his acts the lives of 
 other passengers, it is the duty of the conductor to remove 
 such passenger to protect others from violence and danger. 
 This right must be reasonably exercised, and not so as to 
 inflict wanton or unnecessary injury upon the offending pas- 
 senger; nor so as to needlessly place him in circumstances of 
 unusual peril. 8 
 
 I rom Perkins v. R. R. Co., 55 Mo. 201, 208. Company may make rule 
 requiring conductor to ejei I ; for non-production of ticket. 26 • > 
 
 219; 56 N. V. 296. For full discussion see Kinkead's Pig., 
 231. Unreasonable violence must not be used, or he must nut 
 lie ejected at a plai e "t dangi 1 1 O. S 153. 
 ■ tilroad v. Skillman 
 Railway v. VallHr Common carrier may refuse, with- 
 
 out liability, to 'an ted. Pittsburgh, etc., R. R ( 
 
 Vandyne, s; Ind. 576. Neither i^ In- bound to carrj anyone whose con- 
 ius. Woo.! on Railroads, >< 1 
 
 No. 427. Railroads — Passengers— Duty of railroad com- 
 pany to passenger falling from train. — If a company has 
 notice that one of it has fallen from the cud of its 
 
 ti tin, the duty is incumbent upon it to re t<> 
 
 prevent his death or injury from a following train, and its 
 
 failure thus so to do renders it liable it" death i can ed by 
 a following train running over such pa whih he lay 
 
 unconscious or helpless on or near the track. 1 
 
 I rom Railroad Co. v. K 230.
 
 3 ro 
 
 NEGLIGENCE — RAILROADS — PASSENGERS 
 
 The ease is narrowed, then, to the question whether two 
 facts exist. First : was the death of this young man caused 
 by a fall from the first train, or was it caused by the train 
 which ran over his body? If it was caused by the first train, 
 or if by the fall he was put in such a condition that his death 
 immediately ensued, or must have ensued from the injury 
 thus sustained, then the plaintiff can not recover. If you 
 find that by the fall the death was not caused, and would not 
 have ensued, but that the death was because of the train 
 which followed, then you will proceed to try the question, 
 what notice the railroad company had of the actual condition 
 of that young man upon the track. Notice to the brakesman 
 would be notice to the company. It must be actual notice 
 to the brakesman. He must have heard from someone, or 
 must have seen that the young man would be likely to be in 
 the condition in which, at this point, if you reach this point 
 in the case, you must find that he actually was upon the 
 track. You must determine as to the sufficiency of the notice 
 from the circumstances in the case, as to where the notice was 
 given, under what circumstances, the rapidity with which 
 the train was proceeding, and all those circumstances which 
 you may find to have been presented to the brakesman, if you 
 do find that they were presented, and then judge if, from the 
 facts thus presented, a brakesman of ordinary, average intelli- 
 gence and prudence would conclude that K. was in a con- 
 dition upon the track, or so near the track as that injury 
 would necessarily follow from a following train. 2 
 
 2 Wm. H. Taft, J., in C, H. & D. R. R. Co. v. Kassen, 49 O. S. 230. Notice 
 to brakeinan in such case is notice to the company. R. R. v. Ranney, 37 
 Ohio St. 665; 30 Ohio St. 451. As to duty and care in such case see Ker- 
 whacker v. R. R., 3 Ohio St. 172. 
 
 No. 428. Alighting from train— Duty of company as to 
 stopping train for passengers to alight.— (The negligence 
 charged is that plaintiff was not allowed proper and reasonable 
 time and opportunity to alight from the train at F. station. ) 
 
 If the train stopped at F. station at all, then it was the 
 duty of the servants and agents of defendant to stop long 
 enough to allow all passengers for that station to have a 
 reasonable time and opportunity to alight from that train. 
 If it did not stop at all, then plaintiff would have no right to 
 try to get off a moving train. 
 
 Now, that is a question of fact for you to determine from 
 the evidence, whether the train stopped, and whether pas- 
 sengers were allowed a reasonable time and opportunitv to 
 alight from the train with safety. If the plaintiff has estab- 
 lished that fact by a preponderance of the evidence, and the
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 311 
 
 evidence shows that the train did stop, and if plaintiff has 
 .satisfied yon by a preponderance of the evidence that lie was 
 not allowed a reasonable time and opportunity to alight from 
 that train, he has made out one branch of the case, and, in 
 the absence of any other testimony, is entitled to recover. 
 If you find that plaintiff was allowed a reasonable time and 
 opportunity to alight safely from the train, of course that is 
 the end of the case, and your verdict should be for the de- 
 fendant without further inquiry. 
 
 But, if the evidence satisfies you that the train stopped and 
 he was not allowed a reasonable time and opportunity to 
 alight in safety, and he was thereby injured, then, in the 
 absence of other testimony, he would be entitled to recover. 
 If it be established, however, gentlemen, that the train did 
 stop, it is for you to determine from the evidence what was a 
 reasonable time and opportunity for him to safely alight. 
 
 If they stopped, but did not stop a sufficient length of 
 time to allow plaintiff to alight from the train, and he was 
 thereby injured, that would be negligence on their part which 
 would make the company liable, unless the party injured was 
 guilty of negligence on his part. 
 
 From C, H. V. & T. Ry. Co. v. Newell, Supreme Court, No. 1313; 12- 
 478. Price, J. 
 
 See ante, No. 424. A carrier must allow his passengers a reasonable 
 time in which to get on and off the vehicle. E. Bendorf v. Brooklyn, etc., 
 R. R., 69 N. V. 195; Fairmount, etc., K. R. v. Stutter, 54 Pa. St. 375. 
 
 No. 429. Same continued — Contributory negligence. — 
 You will then inquire whether or not plaintiff was guilty of 
 any want of care, or guilty of contributory negligence, whether 
 he contributed to his own injury by want of care. 
 
 If the train stopped, they must haw stopped a reasonable 
 length of time, and if they did not stop at all, then Ik- would 
 have had no right to try to alight from the moving train, and 
 if he did so, or attempted to do so, he would be guilty of 
 contributory negligence, and it would preclude his recover- 
 ing, and it makes no difference thai Ik- would be put to in- 
 
 by beinj I past the station, because he was 
 
 bound to dinary care and prudence, and it would 
 
 not be ordinal and prudence to attempl to get ofl from 
 
 a moving train, SO, if you find tli.it he did so, he ought not 
 
 to recover, b juilty of contributory negligence ; and it 
 
 ne passed out from the coach and upon the platform intending 
 to alight from tin- train, and the servants and agents of the 
 company did not give su i him to alighl from 
 
 the train, and then he attempted to alight while it was 
 
 moving, in that ease he would be guilty of contributory negli
 
 312 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 gence which would preclude his right of recovery. If he 
 passed out of the coach aud upon the platform, and the train 
 passed on before he had time to alight, it was his duty, as soon 
 as he reasonably could, to return to the coach, and if he failed 
 to do so, and for that reason was thrown from the train while 
 it was in motion, he would be guilty of contributory negli- 
 gence ; but if he passed out of the coach and tipon the plat- 
 form, and the train moved on before he had a reasonable 
 opportunity to return to the coach, and he was thrown from 
 the train, in that case he would not be guilty of contributory 
 negligence, and could recover from the company. 
 
 Now, it will be for you to determine which side has the 
 burden of proof as to contributory negligence. If the evi- 
 dence introduced by him raises the presumption that he was 
 guilty of want of care and prudence, then the burden of proof 
 is thrown upon him. If the evidence introduced by him does 
 not raise such presumption, then the burden of proof is on the 
 defendant. But, however it may be, if the evidence satisfies 
 you that he was guilty of such want of care and prudence, 
 that precludes his right of recovery. If you find negligence 
 on the part of the servants and agents of the company, and 
 that he was injured thereby, and that he was not guilty of 
 such want of care and prudence on his part, it entitles him 
 to recover. 
 
 From C, H. V. & T. Ry. Co. v. Newell, Supreme Court, No. 1313 (12- 
 478). Price, J. If a passenger by the negligence of the company is carried 
 beyond the station, he can recover for the inconvenience, loss of time, 
 etc., but if he gets off while the train is moving, he does it at his own 
 risk. Jeffersonville R. R. Co. v. Hendricks, 26 Iud. 228; 26 Ind. 459; 23 
 Pa. St. 147 ; 36 111. 467. 
 
 No. 430. Injury to a conductor riding on train other 
 than his own with consent of conductor in charge. — In Rail- 
 way Company against Robert Bycraft (Supreme Court, unre- 
 ported), the plaintiff was a conductor who boarded a train 
 other than the one of which he was conductor, and, while 
 riding thereon, was injured by a collision. The question at 
 issue was whether he was a passenger on such train at the 
 time of his injury, and whether he could recover for negli- 
 gence of the conductor of such train. 
 
 f. R. fohnston, f. , charged the jury as matter of law : That 
 if you find that plaintiff was injured by reason of the negli- 
 gence and want of care on the part of the conductor of train 
 37, and you also find that the plaintiff, at the time he received 
 his injury, was upon that train with the consent, permission, 
 and knowledge of the defendant, and with the consent, per- 
 mission, and knowledge of the conductor of this train 37, but 
 that at that time he was in the discharge of no duty incident
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 313 
 
 to his employment, and was not engaged in discharging any 
 of his duties as a conductor upon that road, or any duty upon 
 that train, and was merely riding from A. to his home at B., 
 with this consent, knowledge, and permission on the part 
 of the defendant and of the conductor, that the negligence of 
 the conductor in charge of train 37 would be the negligence 
 of the defendant, and would not be the negligence of a co- 
 employee, or fellow-servant, so as to defeat a recovery in this 
 action, provided you find the plaintiff otherwise entitled to 
 recover. If you have found the plaintiff to have been thus 
 upon this train, then it became and was the duty of the de- 
 fendant to exercise towards him ordinary care in the running 
 and operating of that train, and this would be the degree of 
 care and the degree only which was incumbent upon the 
 defendant by reason of the relation which existed from the 
 situation of the parties, and the relation they sustained to- 
 ward each other at that time. If the defendant failed and 
 neglected to exercise that degree of care towards the plaintiff, 
 and for his safety, for such failure the defendant would be lia- 
 ble, provided the plaintiff was in the exercise of proper care 
 on his own part, and if this conductor of train 37 failed and 
 neglected to exercise towards the plaintiff that degree of care, 
 and by reason of this failure the plaintiff was injured, the 
 defendant would be liable therefor. 
 
 "If you have found that the defendant was negligent in 
 running and operating train p,-;, and find that it did not exer- 
 cise towards the plaintiff ordinary care for his safety, and 
 that, by reason of such failure, and as a direct and proximate 
 result thereof, the plaintiff sustained his injuries, and haw- 
 also found that at the time he received his injury he was upon 
 this train, with the knowledge, permission, and consent of 
 the defendant and said conductor, but was discharging none 
 of the duties incident to his employment at that time, and 
 discharging no duty required of him by the defendant on 
 that train or otherwise, and was in the exercise of ordinary 
 himself, then the plaintiff would be entitled to recover, 
 
 even though you may find at thai time the relation of master 
 and employee existed between the defendant and the plain- 
 tiff." 
 
 Johnston, fudge, in Bycrafl v. Ry. Co. Judgment affirmed by Supreme 
 
 Thi9 1 tinguished from Manville v. V. & T R. R. Co., 11 O S 
 
 417, in thai in th( M "'• ill* ' ondui toi was in the dis< hargi oi b 
 
 duty, being on the train 1 his place of work. Judge John 
 
 d 1j-. both ( in mi and Supreme ( ourt, See as in |><>int, 
 impany \ , M< Cue, 17 Wall. V s . whi 
 whether th< empli ■■ raenl had ceasi <K 
 
 The ManviUi ially holds that the plaintiff must be in the 
 
 employ at the time o\ thi injury.
 
 314 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 No. 431. Injury to one assisting, caring for a fellow- 
 sick passenger while carrying the latter from one car to 
 another — Liability hinging upon duty of railroad company 
 towards sick passenger — Whether he was directed or permit- 
 ted by officials to assist in caring for passenger. — If the jury 
 find from the evidence that the plaintiff, pursuant to the 
 direction or request of the conductor of defendant's train, 
 attempted to assist in the carrying of S. from the passenger 
 coach to the caboose, and that, in so doing, he used reasonable 
 care, and was injured by reason of exposure to a danger of 
 which he was not aware, and of which the servants of defend- 
 ant, if exercising only reasonable care, would have known of 
 and either protected him from or gave him timely and ade- 
 quate warning of ; then in that case, defendant is liable for 
 the injury resulting from exposure to such danger. 
 
 (a) Danger in passing from one car to another. 
 
 If you find that plaintiff was exposed to a danger in 
 attempting to pass from the coach to the caboose, of which 
 he did not know, and the servants of the defendant did know, 
 or should have known, and it was such a danger as passengers, 
 ordinarily, would not anticipate, then, and in that case, it 
 became the duty of the defendant, by its servants, to give 
 plaintiff timely and adequate warning of such danger ; and 
 failure so to do, if reasonably avoidable, was failure to use 
 ordinary care, and for which defendant is liable. 1 
 
 (b) Ordinary care in such cases. 
 
 What I mean by ordinary care and prudence, as the words 
 are used in this charge, is that degree of care and caution 
 which persons of ordinary care and prudence are accustomed 
 to use and employ under the same or similar circumstances. 
 
 The amount of care required will depend on the circum- 
 stances of each particular thing to be done, and will vary as 
 the circumstances of each particular transaction may differ ; 
 it is to be such care as prudent persons are ordinarily accus- 
 tomed to exercise under the peculiar circumstances of each 
 case; if called into exercise under circumstances of peculiar 
 peril, a greater amount of care is required than where the 
 circumstances are less perilous, because prudent and careful 
 persons, having in view the object to be attained, and the 
 just rights of others, are, in such cases, accustomed to exer- 
 cise more care than in cases less perilous ; the amount of care 
 is increased, but the standard is still the same; it is still 
 nothing more than ordinary care under the circumstances of 
 that particular case ; the circumstances, then, are to be re- 
 
 1 See Wood on Railroads, Sec. 301 ; Gee v. Met. R. R., L. R. 8 Q. B. 161.
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 315 
 
 garded in each case in determining whether ordinary care has 
 been exercised or not. 2 
 
 (c) Lack of knowledge of relative positions of platform of 
 
 cars. 
 In determining whether plaintiff exercised or failed to 
 exercise ordinary care in attempting to pass from the coach 
 to the caboose, yon will consider his knowledge or lack of 
 knowledge of the relative positions and elevations of the 
 platforms from and to which he so attempted to pass. 
 
 (d) Injury must result from direct act of negligence of 
 
 rail a 'ay officials. 
 To entitle the plaintiff to recover for a failure or neglect 
 of defendant to exercise such reasonable or ordinary care as 
 indicated, it must appear, from the evidence in the case, that 
 the injury was caused and occasioned by and as a direct result 
 from such negligence or want of attention on the part of de- 
 fendant, and was not simply the result of an accident ; and if 
 the jury believe, from the evidence, that the injury resulted 
 from an accident which could not have been seen and guarded 
 against by the use and exercise of ordinary care and prudence 
 on the part of defendant, then the plaintiff can not recover in 
 this action. 
 
 (e) If injury resulted from mere accident. 
 
 But if the injury was the combined result of an accident 
 and the defendant's negligence, or want of ordinary care, as 
 aforesaid, and the accident would not have occurred but for 
 such negligence or want of care by the defendant, and the 
 danger could not have been foreseen or avoided by the exer- 
 cise of ordinary care and prudence on the part of the plaintiff, 
 the defendant, if guilty of such negligence or want of ordi- 
 nary care, as aforesaid, would be liable for the injury to the 
 plaintiff directly caused or occasioned thereby, if such did 
 occur. 
 
 (/) Railway officials m' : ''"^ notice of dangers oj passing 
 from <>ur air t<> another. 
 
 If the railroad company, through its conductor 01 brake- 
 man, gave timely notice or warning to the plaintiff oi the 
 danger of stepping from one platform to the other, and the 
 plaintiff misunderstood tin- notice or warning, through no 
 ifault of tin- defendant, or failed to hear the notice 01 warning, 
 
 and made the misstep and fell and was injured, there can he 
 
 no recovery in this case against tin- defendant. 
 
 If the jure find, in this ease, that S. heard the notice and 
 warning from the conductor or hrakeman to look out in step- 
 
 3 As to degree of 1 ■.. N. Y Central K. r 
 
 Y. 2S7. 
 
 21
 
 316 NEGLIGENCE — RAILROADS — PASSENGERS. 
 
 ping across from the coach to the caboose, and thereafter S. 
 had time to make the step, as he understood the notice or 
 warning, but, through misunderstanding of the notice, made 
 a misstep and fell and was injured, then there can be no re- 
 covery in this action, and your verdict should be for the 
 defendant. 
 
 (g) Passenger voluntarily assisting sick passenger. 
 
 If the jury find in this cause that the plaintiff, whilst upon 
 said train, voluntarily and without the direction, knowledge, 
 or request of the conductor of said train, left said passenger 
 coach to aid and assist in carrying a sick or disabled passenger 
 from said passenger coach across into said caboose, and whilst 
 so doing, in stepping from the platform of the passenger coach 
 to said caboose, he slipped or stepped short and fell, and 
 received the injury complained of, in consequence of the 
 distance between said caboose and said passenger coach being 
 more than he expected, or of the unequal height of the plat- 
 forms, or owing to his view being hidden by the body of the 
 man he was carrying, then there can be no recovery in this 
 action, and your verdict should be for the defendant. 
 
 (h) Liability of company for directions of conductor as to 
 care of sick passenger. 
 
 If the jury find from the evidence in this case that a pas- 
 senger in one of said passenger coaches was taken sick or 
 ill, or became disabled, through no fault or negligence or 
 want of proper care on the part of the railway company, and, 
 in order to find a place where said sick or disabled passenger 
 could lie down, that he might be specially and properly 
 attended to, the conductor of said train, upon inquiry of him 
 if there was such a place, suggested or said that there was a 
 caboose at the rear of said train, having seats lengthwise of 
 the sides thereof, to which he might be taken if desired, and 
 thereupon said plaintiff and others, friends of said sick or 
 disabled passenger, proceeded to carry him to said caboose, 
 and in so doing said plaintiff and others, before stepping from 
 said passenger coach to said caboose, were warned to be care- 
 ful in stepping across to the caboose platform, and thereafter 
 the plaintiff, in stepping across, stepped short or slipped and 
 fell between the platforms of the caboose and the passenger 
 coach and was injured, then the plaintiff can not recover in 
 this action, and your verdict should be for the defendant. 
 
 (z) Duty of railway to sick passenger. 
 
 Said railroad company, having provided comfortable, safe, 
 and fit passenger coaches for the plaintiff, with all the usual, 
 proper, and ordinary attachments and conveniences for public 
 travel, was not obligated or bound to provide, in addition
 
 NEGLIGENCE — RAILROADS — PASSENGERS. 317 
 
 thereto, a car specially designed for the purpose of carrying 
 sick or disabled passengers thereto or therein ; and if you find 
 that the plaintiff voluntarily aided and assisted in the carriage 
 of a sick or disabled fellow-passenger from one of said pas- 
 senger coaches to said caboose, even though with the permis- 
 sion of the conductor of said train, he thereupon took upon 
 himself and assumed all the usual and ordinary risks, dangers, 
 and perils of such service arising from the differences between 
 the height of the platforms of said coach and said caboose, 
 and the space between the same; and if, in the doing and 
 performance of said service on his part, he was injured, through 
 no willful act or misconduct on the part of said defendant or 
 its employees, then there can be no recovery in this action by 
 the plaintiff. 
 
 If the jury find from the evidence in this case that the 
 conductor of said passenger train permitted or consented that 
 said sick man might be removed from said passenger coach to 
 said caboose, he did not thereby direct such removal, noi 
 direct nor invite the plaintiff to help or assist in the removal 
 of said sick man from said passenger coach to said caboose; 
 and if the plaintiff volunteered to, or was requested by said 
 sick man or his friends, to help carry said sick man from 
 said passenger coach to said caboose, he thereby assumed all 
 the usual and ordinary risks and perils attendant upon such 
 service, and the defendant could not be held liable for any 
 injury received by plaintiff, which was one of the usual and 
 ordinary risks and perils of such service. 
 
 It the jury find from the evidence in this case that the 
 injury to S. was accidental and not from am- want of proper 
 care and precaution, under the circumstances, on the part of 
 himself or the railroad company, then there can be no recovery 
 in this action, and your verdict .should be for the defendant.' 
 
 snook, fudge, in Railway Company v. Salzman, 52 < >. S. 558. "A rail- 
 way compan} is under obligation to give such care to a passenger who be- 
 on its train as is fairlj ■ ■ with the facilities at hand, 
 without thereby unduly delaying its trains, <>r unreasonably interfering 
 with the safety and comfort of its othei p 
 
 car( i, tral R. R. Co ; N y 187. As to duty 
 
 S. R. R. Co. \. Weber, 33 Kan.543; 
 •it City R. R. C o., 11 l..i. Ann. 57, 
 
 No. 432. Negligence of sleeping-car employee— Railroad 
 company presumed liable for injury— Burden of proof. — 
 "The burden of proof is on the plaintiff to sho^ that h< 
 injured byth< defendant's negligence, eithei in not providing 
 safe and suitable cars, or in not properly inspecting and 
 taking care of them. A n menl thai a person was 
 
 injured while riding Ofl a railway, without any .statement of
 
 '318 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 the character, manner, or circumstances of the injury, does 
 not raise a presumption of negligence on the part of the rail- 
 way company. But if the character, manner, or circumstances 
 of the injury are also stated, such statement may raise, on the 
 one hand, a presumption of such negligence, or, on the other. 
 a presumption that there was no such negligence. If the 
 plaintiff was in fact injured while sitting in his proper place by 
 the falling of the upper berth upon his head, while said berth 
 ought to have remained in place above, such fact raises a 
 presumption in this case of negligence, for which the defend- 
 ant is liable. If you find that there was no defect in the 
 road, or in the car, or the mechanism used, yet if, upon the 
 evidence in this case, you find it reasonable to presume that 
 the accident happened by reason of the upper berth not having 
 been properly fastened in its place, or by reason of the persons 
 having charge of the car having failed to observe that it had 
 become loosened, if such insecure condition would have been 
 observed by proper diligence, you have a right so to presume, 
 and you would then find the defendant guilty of negligence. 
 If, on the other hand, in such case you find it equally reason- 
 able to presume that the fastening of the berth was loosened 
 by some other person, not those in the employment of the 
 defendant, and such insecure condition would not be observed 
 by proper diligence on the part of the persons having charge 
 of the car, you have the right so to presume, and in that case 
 would find that the plaintiff had failed to make out a case of 
 negligence against the defendant. The plaintiff is entitled 
 to damages for injury traceable to the defendant's fault, but 
 not for injury caused by his own act." 
 
 From Railroad Co. v. Walrath, 38 O. S. 461. 
 
 (4) Railroads — Rules Governing Employees. — 
 
 No. 433. Railroads — Rules — Railroad company may 
 make rules governing conduct of employee — Duty of em- 
 ployee with reference to. — "A railroad company has the right 
 to make such rules and regulations for the conduct of its 
 servants and agents while engaged in its service as, in its 
 judgment, are reasonable and proper, as would conduce to 
 the safety and comfort of its employees; and all servants, 
 while engaged in such service, with a knowledge of such rules 
 and regulations, are bound to act in conformity therewith ; 
 and if injuries are sustained by them while acting in violation 
 thereof, no recovery can be had of the company therefor, if
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 319 
 
 such violation was the cause of, or materially contributed to, 
 the injur\-. " 
 
 Wolsey v. Railroad Co., 33 O. S. 227. It is the duty of a railroad com- 
 pany to make regulations for protection of employees from dangers. Rail- 
 way Co. v. Lavalley, 36 O. S. 221. This duty is satisfied by a reasonable 
 provision for a particular case instead of a rule. Railway v. Zepperlein, 1 
 O. C. C. 36. The statute requires rules to be made and publisbed. R. S., 
 Sec. 3334. 
 
 No. 434. Railroads — Rules — Liability of railroad com- 
 pany for violation of rules by employee. — "The company is 
 not liable for an injury which happens to an employee in 
 consequence of a disregard of its plain instructions, even 
 though other employees also disregarded the same. 
 
 "If a railroad company in the exercise of its discretion 
 adopts a rule for the conduct of its employees while engaged 
 in its service, and intended for their personal protection 
 against injury, and an employee, knowing the rule, neglects 
 to avail himself of its provisions, and in consequence of such 
 neglect sustains an injury, the company can not be held 
 liable therefor." 
 
 From Wolsey v. Railroad Co., 33 O. S. 227. 
 
 An employee has no right of action against the company for an injury 
 incurred while breaking a rule of the company. Pilkingtoa v. R. R. Co., 
 70 Tex. 226; 83 Ky. 5S9; Wood on Railroads, Sec. 3S2. 
 
 No. 435. Railroads — Rules — Rules of railroad company 
 — Effect of, in negligence case. — As bearing upon the second 
 question, to wit: The contributory negligence of the dece- 
 dent, it is admitted in the pleadings in this case and not con- 
 troverted at the trial, that rule No. . referred t<> in the 
 pleadings, was printed upon the time-table in use by the 
 company, and from this fact it is claimed that such a rule was 
 in effect at the time of the injury. The plaintiff, by his 
 reply, admit< the publication of the rule in this manner, but 
 states that the rule was habitually disregarded t<> the- knowl- 
 edge of the defendant company. Railroad companies, like 
 other employers, have the right to prescribe rules for the 
 government and for the protection of their employees, and in 
 an employee disregards a rule so prescribed, such regard 
 might be, and in this case would be, a voluntary assumption 
 of a risk by the employ* 
 
 However, the mere fad that the rule in question was 
 printed upon the time-tables is not conclusive evidence that 
 the rule itsi if was in force. A railroad company may waive 
 its rules and may 1 hange them by it^ conducl otherwise than 
 by an express revocation in the same manner in which they 
 ; iginally prescribed.
 
 320 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 Hence, if you should find in this case that the rule origin- 
 ally printed and published as part of the time-table was either 
 never intended to be regarded and obeyed by the employees 
 of the company, that is to say, if the railroad company never 
 intended that the rule should be obeyed, or if you should find 
 that, subsequent to its publication as a rule, the employees 
 of the company were not furnished with the means of carrying 
 the rule into effect, or that the railroad company subsequently 
 permitted its employees to disregard it, these facts may be 
 taken into consideration by you, together with the fact of the 
 publication of the rule, in considering the question whether 
 or not rule No. — was in force at the time of the accident. 
 
 If you should determine that it was not in force, that part 
 of the issues relating to the rule will be immaterial in the 
 case. 
 
 If you should find, however, that the rule was in force, 
 and that M. B. disobeyed and disregarded it, his disobedience 
 and disregard would in law amount to a voluntary assumption 
 of a risk, and if his position combined with the defendant's 
 negligence to cause the injury, his administrator could not 
 recover in this action. 
 
 W. T. Mooney, Judge, in Chicago & E. R. R. v. Purviance. See ante, 
 No. 434. 
 
 (5) Railroad Company and Its Employees. — 
 
 No. 436. A complete charge in the case of negligence 
 against railroad company for injury to brakeman. — (Omit- 
 ting statement of pleadings. ) Now, gentlemen, these are in 
 brief the claims of the parties, and it is with reference to 
 these claims of the parties that you are to consider the evi- 
 dence and determine the issues in this case. 
 
 The burden of proof to show negligence on the part of the 
 railroad company is upon the plaintiff. Negligence, which 
 is the gist of the action, is not to be presumed, but it must 
 be proved. There is no presumption that the railway com- 
 pany was negligent from the mere fact that the plaintiff was 
 injured while he was in the employ of the company, or while 
 he was performing his duty as an employee of the company. 
 To entitle the plaintiff to recover damages it is incumbent 
 upon him to show affirmatively and by a preponderance of 
 evidence that the company was negligent in the respect 
 complained of — that is, in omitting to fill the spaces between 
 the ties outside of the rails at the place where the injury
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 32 1 
 
 occurred ; and it is incumbent upon the plaintiff to show 
 by a preponderance of the evidence that his injury resulted 
 from such alleged negligence. He can not recover if the 
 injury was produced by any cause for which the railroad 
 company in law is not responsible. He can not recover if, 
 by his own want of care, he contributed in any degree to his 
 injury. Now, if the plaintiff received his injury in conse- 
 quence of the negligence of the company, under the rules 
 which I shall give you, and was himself free from any fault 
 contributing to the injury, then he is entitled to recover such 
 damages as the proof shows he has sustained; but if the in- 
 jury was not caused by negligence on the part of the railway 
 company, or if the plaintiff by his own want of care contrib- 
 uted to the injury, then he is not entitled to recover, and in 
 that case your verdict must be for the defendant. The two 
 principal questions, then, in the case which you are to de- 
 termine from the evidence are: 
 
 First. Whether the railway company was negligent in 
 omitting to fill the spaces between the ties at the place of the 
 injury, and whether the injury was caused by such negligence. 
 
 Second. Whether the plaintiff was himself free from 
 fault contributing to the injury. 
 
 The relation between the plaintiff and the defendant was 
 that of master and servant, and the law imposes certain duties 
 upon each of the parties to that relation — both upon the 
 master and also upon the servant. It was the duty <>f the 
 railway company — the master — to use ordinarv and reasonable 
 care in providing for its employees a safe and suitable place 
 in which to do their work ; and ordinary and reasonable care 
 is Mich care as ordinarily prudent persons or corporations are 
 accustomed to exercise under the same or similar circum- 
 stances. The company is not required to use extraordinary 
 care, nor is it required to do what is unreasonable or imprac- 
 ticable, taking into consideration all tin circumstances. The 
 company does not guarantee tin- absolute safety of its em- 
 ployees; it is not an insurer of its employees. !t is required 
 only to use what would be reasonable care under all the cir- 
 cumstances of the < a 
 
 You will first determine from the evidence how the injury 
 occurred. Hid it occur by the plaintiff having his foot caught 
 between the ties — in the spaces between the ties — while 
 attempting to uncouple the cars, or did it occur in sonic ol her 
 way? If it occurred as alleged l>v the plaintiff, did the com- 
 pany fail to use reasonable and ordinary care in omitting to 
 fill the spat es between the ties at the place where the injury 
 occurred? Now, gentlemen, that is a question of fact purely
 
 322 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 which you must determine from all the evidence in the case. 
 Everything must be considered ; the place where the injury 
 occurred ; all the objects and purposes to be accomplished in 
 the construction of the defendant's roadbed; the duty of the 
 company to its employees; the safety of the roadbed for 
 trains to pass over it, and what would be practicable and 
 reasonable in view of all the circumstances of the case. You 
 may consider whether or not the roadbed of the defendant, 
 •at the point of the injury, was constructed in accordance with 
 the regular mode of construction at similar places adopted by 
 the company, if there was such a regular mode of construc- 
 tion. If the roadbed at the place of injury was constructed 
 in accordance with such regular mode, and the plaintiff knew 
 this or might have known it by the exercise of reasonable 
 care, then the company is not chargeable with negligence. 
 But if there was no regular mode of construction at similar 
 places, or if the mode of construction at the place of the injury 
 was materially different from such regular mode of construc- 
 tion, then you may take that fact into consideration, in con- 
 nection with all the other evidence, in determining whether 
 there was any negligence. The inquiry is, whether, under 
 all the circumstances and all the facts, the company did or 
 did not use reasonable care in omitting to fill these spaces at 
 the place of the injury. 
 
 If a preponderance of the evidence does not show that 
 the company omitted to use reasonable care, or if the pre- 
 ponderance of the evidence does not show that the injury 
 resulted from the failure to fill the spaces between the ties, 
 then there can be no recovery, and your verdict in that case 
 must be for the defendant. But if you find from a pre- 
 ponderance of the evidence that the company failed to use 
 reasonable care in omitting to fill the space between the ties, 
 and that the injury resulted from such omission, you will then 
 inquire whether the plaintiff was himself free from fault con- 
 tributing to the injury. 
 
 It was the duty of the plaintiff as a servant of the com- 
 pany to use ordinary and reasonable care for his own safety — 
 that is, such care as ordinarily prudent persons usually exer- 
 cise in the same or similar circumstances. It is a rule of law 
 that a servant, when entering into the employment of another, 
 takes upon himself — assumes — all the dangers, all the perils, 
 and risks which are ordinarily and naturally incident to the 
 service w T hich he engages in. If an injury happens to him 
 from such a natural and ordinary peril, the master is not 
 liable. But if the peril from which he is injured is an un- 
 usual peril — an extraordinary peril — and he has no knowledge
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 323 
 
 of it, and could not have known it by the exercise of proper 
 care, then the company is responsible for an injury to him 
 arising from such unusual peril, if it happened through the 
 failure of the company to use ordinary and reasonable care. 
 If the plaintiff, at the time of doing the work and receiving 
 this injury, -was careless, or inattentive, and if he might, by 
 the exercise of reasonable care, have prevented or avoided the 
 injury, then, in law, he is regarded as having brought the 
 injury upon himself, and he can not hold the company re- 
 sponsible, notwithstanding any negligence on the part of the 
 company. If the plaintiff knew, or, by the exercise of reason- 
 able care, might have known that the spaces between the ties 
 were not filled, and he was of such age and experience as to 
 be able to understand and appreciate the danger of walking 
 upon or over these ties while doing his work, then he took 
 upon himself the risk of injury from working at that place, 
 and can not hold the company responsible. It is not neces- 
 sary that the defendant should show that the plaintiff had 
 actual knowledge of the condition of the roadbed; it is 
 sufficient if a state of facts is shown from which knowledge 
 upon his part may reasonably be inferred. It is for you to 
 say from all the evidence — weighing it all, and giving to 
 every fact and circumstance such weight as in your judgment 
 it is entitled to — whether the plaintiff knew of the condition 
 of the roadbed at this point, or might, by the exercise of 
 proper care, have known it, and whether or not he understood 
 the danger. 
 
 The burden of proof, as I have said to you, to show negli- 
 gence upon the part of the company is upon the plaintiff. 
 The burden of proof to show contributory negligence upon 
 the part of the plaintiff is upon the defendant, unless, from 
 the plaintiff's own testimony, it may fairly be inferred that 
 he was negligent. If, Upon the plaintiff's own testimony, a 
 presumption may fairly arise that he was negligent, then the 
 burden is upon him, the plaintiff, to remove that presumption. 
 
 In determining whether the plaintiff contributed to his 
 injury by his own want of care, you will consider what he 
 knew, or should have known, as to tlie condition of the road- 
 vhether 01 not the spaces between the tits 
 were filled; what he saw at the time of the injure, or should 
 have seen; the manner in which he did his work, and all the 
 ■ s and surround:- 
 
 1 1 you find that the plaintiff was without fault, and that 
 his injury was caused by the alleged negligence of the com- 
 pany, you will then render a verdict in his favor; and in that 
 case it will be necessary for you to determine from tin
 
 324 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 dence what damages he is entitled to receive ; and, of course, 
 you will understand that what I say to you upon the subject 
 of damages is only to be considered in the event that you find 
 for the plaintiff. 
 
 The measure of plaintiff's damages is compensation for 
 the actual injury received by him. You can not allow any- 
 thing for the purpose of punishment, or by way of example. 
 The measure of plaintiff's damages, in case he is entitled to 
 recover, is compensation — what will fairly and reasonably 
 compensate him for the injury, nothing more, nothing less. 
 In determining the amount of compensation, you will consider 
 the pain which the plaintiff has suffered, physical or mental ; 
 the nature, extent, and character of the injury ; the effect of 
 the injury upon his capacity to labor and earn a living, and 
 all the circumstances. 
 
 In disposing of all the questions in the case, you must be 
 governed entirelv by the evidence, and not let your judgment 
 be influenced by any other consideration. 
 
 You will not consider any evidence that has been received 
 and subsequently excluded by the court; such evidence is 
 not in the case for any purpose. The evidence of what are 
 the practices of other railroads in the matter of filling or not 
 filling the spaces between the ties outside of the rails was 
 withdrawn from your consideration, and the introduction of 
 further evidence upon that subject by either party was not 
 permitted. All this evidence — all the evidence upon that 
 subject — is entirely out of the case, and you are to pay no 
 attention to it. 
 
 The question whether or not the defendant is liable, and 
 if so, the extent and amount of its liability must be deter- 
 mined in this case in the same manner and under the same 
 rules that would govern if the defendant was an individual. 
 The liabilities and duties of master and servant are the same 
 under the same circumstances, whether the master is an in- 
 dividual or a corporation. 
 
 Under these rules you will consider and weigh all the evi- 
 dence calmly and deliberately, without passion or prejudice, 
 and if you find for the plaintiff, you will award to him such 
 damages as shall be a fair, reasonable, and just compensation 
 for his injuries. 
 
 But if, on the other hand, you do not find that the de- 
 fendant is liable, you will then say by your verdict that you 
 find for the defendant. 
 
 In accordance with these instructions, you will be fur- 
 nished with two blank verdicts — one in favor of the plaintiff 
 and one in favor of the defendant. The material part of the
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 325 
 
 verdict for the plaintiff reads as follows: "For verdict find 
 and say that we find for the plaintiff and assess his damages 
 
 at the sum of . ' If yon find for the plaintiff, you will 
 
 fill the blank in the verdict, and your foreman will sign it. 
 The material part of the verdict for the defendant is: "For 
 verdict we find and say that we find for the defendant. n If 
 you find for the defendant, your foreman will sign that 
 verdict. 
 
 Isaac P. Pugsley, Judge, in T. C. ,\: C. Railway v. Frick. Affirmed by 
 Circuit and Supreme Courts, 51 O. S. 575. 
 
 "It is the duty of a railroad company to lay its track ami roadbed 
 and to construct bridges and culverts and embankments in such a manner 
 as to render it safe for the use of the employees as well as for the use of 
 the public." 39 Am. & Eng. R. R. Cases, p. 332 ; Goheen v. Texas & P. R. 
 Co. (C. C.)i 3 Cent. L.J. 382 ; Chicago & X. W. R. Co. v. Sweet, 45 111. 197; 
 O'Donnell v. Allegheny Val. R. Co., 59 Pa. St. 239; Brickman v. South Car- 
 olina R. Co., 8 S. Car. 173. 
 
 The company is also bound to employ due care in maintaining and 
 keeping the roadbed in a condition suitable for the use of its employees. 
 Goheen v. Texas & P. R. Co. (C. C.) 3 Cent. L. J. 382; Central R. Co. v. 
 Mitchell (Ga.) 1 Am. & Eng. R., Cas. [45; Snow v. Housatonic R. Co., 8 
 Allen (Mass.) 441; Drymala v. Thompson, 26 Minn. 40; Kansas City, St. J. 
 & C. B. R. Co. v. Flvn'n, 1 Mo. > is Am. 6c Eug. R. Cases, 23 ; Houston & T. 
 C. R. Co. v. Dunham, 49 Tex. 181. 
 
 No. 437. Railroad company — Duty as to furnishing 
 employees — Inadequate force, etc. — And first, as to the 
 alleged negligence of the company in failing to equip this 
 engine and train of cars with a sufficient number of com- 
 petent employees. It was the duty of the railroad com- 
 pany to use ordinary and reasonable care to furnish an ade- 
 quate number of competent employees to properly manage 
 the engine and train of cars upon which the plaintiff was 
 working; that is, it was the duty of the company to use such 
 care in that respeel as ordinarily prudent persons or corpora- 
 tions engaged in like business usually exercise under the same 
 circumstances. And the question now for you to determine 
 from the evidence is: did the company exercise such care? 
 Were the engine and train of cars in question furnished by 
 the company with a sufficient number of employees who 
 charged with the duty of coupling cars and otherwise 
 properly handling the train, and who were competent and 
 were expected to perform these duties? It' this engine and 
 train of cars were so furnished with an adequate numbei oJ 
 suc h employei ;, then the company is nol chargeable with 
 Fault for omitting to send oul upon the engine upon the 
 
 morning of the injury, in starting from , a conductoi 
 
 and brakeman. The inquiry is: whether, al the time of the 
 injury, the engine and train were sufficiently and properly 
 manned for the purpose of performing all the duties that
 
 326 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 usually appertain to the operating and managing an engine 
 and train under such circumstances. If this engine and train 
 of cars was so adequately and sufficiently manned, then, of 
 course, the company was not negligent in that respect. 
 
 (a) Same continued — Must be proximate cause of injury. 
 
 But if you find from the evidence that the train was not 
 furnished with an adequate force of men, you will then in- 
 quire whether the failure to furnish this train with an ade- 
 quate force of men caused the injury. To make the- defend- 
 ant liable for the injury, the inadequate force of men must 
 have caused or occasioned the injury, and it must be the 
 proximate cause of the injury. And this is a question of 
 fact for you to determine from all the evidence in the case. 
 Was the failure to equip this train with an adequate force 
 of men, if such failure existed, the immediate and proxi- 
 mate cause of plaintiff's injury? If the plaintiff was without 
 fault in attempting to make the coupling of these two cars, 
 and he was injured by reason of the failure of the company 
 to furnish an adequate force of men to properly protect him 
 against injury — such as by giving signals, to the engineer, or 
 otherwise — then the failure to furnish an adequate force of 
 men was the proximate cause of the injury. But if the in- 
 jury did not result from the absence of a sufficient force of 
 men, naturally and in the usual course of events, or if the 
 company could not reasonably have anticipated that in con- 
 sequence of the absence of sufficient force-the plaintiff would 
 receive an injury, then the absence of such force was not the 
 proximate cause of the injury. Of course, as you will readily 
 see, it would make no difference what fault the company 
 committed with reference to this force of men, unless such 
 fault directly contributed to produce the injury, and, as I 
 have said, it is a question of fact which you must determine 
 from all the evidence in the case. 
 
 (b) Same continued- — Knowledge of plaintiff. 
 
 But it is claimed by the defendant that, even if the force 
 of men who were operating this train of cars was inadequate, 
 the plaintiff, under the circumstances of this case, took upon 
 himself the risk of injury from that cause, and can not now 
 hold the company responsible for an injury received from that 
 cause. That is the claim on the part of the defendant. 
 
 The rule upon that subject is this: If the servant of a 
 railroad company has a full knowledge of any omission of 
 duty or neglect on the part of the company, and with such 
 knowledge — notwithstanding such knowledge — continues in 
 the service of the company without making any objection, or 
 without using any exertions to have the omission of duty or
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. T> 2 7 
 
 neglect remedied, he thereby takes upon himself the risk of 
 injury arising from such neglect and waives the right to 
 recover of the company for the injury. 
 
 If the plaintiff in this case knew, at the time the engine 
 
 left , on the morning of , that the engine or train 
 
 was not to be equipped — knew that it was not then equipped, 
 and was not thereafter to be equipped during the performance 
 of the work — with a conductor or with brakemen for the work 
 to be done upon that day, and if he knew that his safety in 
 the performance of his duty would be imperiled, or that the 
 hazards of the service would be increased by the absence of 
 the conductor or brakemen, and if, with such knowledge, he 
 went along with the engine without making any objection or 
 complaint, then he can not now complain of the absence of a 
 conductor or brakemen. 
 
 To prevent him from recovery for that reason it must 
 appear that he knew that the train could not be safely and 
 properly managed without the conductor or brakemen ; or, 
 in other words, he must know that it was negligence on the 
 part of the railroad company to fail to provide the engine and 
 train with a conductor or brakemen. 
 
 In this connection I will read to you, and give to you as 
 the law of the case, two special requests or instructions that 
 are made by the defendant : 
 
 i. The jury is instructed if they find from the evidence 
 that the plaintiff, upon the day in question, proceeded on his 
 train as fireman, knowing that there was no conductor or 
 brakemen in charge of the train, and that lie would be re- 
 quired to perform the duties ordinarily performed by such 
 conductor and brakemen, linn he assumed all the extra risks 
 incident to such employment, and thereby waived any obliga- 
 tion on the part of the company to furnish a conductor and 
 brakemen for such train. 
 
 2. If the plaintiff knew when he started on this train on 
 the morning in question that there was no conductor and 
 brakemen in charge of the same, and that he would be re- 
 quired to do the duties of a brakeman. he had a right to 
 abandon the service and refuse to proceed without such con- 
 ductor and brakemen, and his refusal to do so, and his election 
 to proceed without such conductoi "i brakemen was a waiver 
 on his part of any obligation of the company in that regard, 
 
 and the plaintiff in Such ease would not he entitled to recover 
 
 on that account. 
 
 It i^ a question of fact for yon to determine, from all the 
 evidence, whether the plaintiff knew that he would 1" 
 
 quired to perform the duties of a brakeman that da)'; so that,
 
 328 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 under his first alleged ground of negligence, there are three 
 questions for you to determine : l 
 
 1. Was the train in question supplied with an inadequate 
 force of employees? 
 
 2. If the force of employees with which the train was 
 furnished was insufficient or inadequate, was it the proximate 
 cause of the plaintiff's injury, or did it proximately contrib- 
 ute to the plaintiff's injury? 
 
 3. Did the plaintiff, by his conduct, assume the risk of 
 injury resulting from this cause? 2 
 
 1 R. R. Co. v. Knittal, 33 O. S. 468; R. R. Co. v. Fitzpatrick, 31O. S.' 
 479 ; Circleville v. Throne, 1 C. C. 359. 
 
 2 Pugsley, Judge. Pennsylvania Co. v. Hinckley. Affirmed by Circuit 
 Court. Dismissed in Supreme Court, by plaintiff in error. Lucas County. 
 Mad River, etc., Co. v. Barber, 5 O. S. 541. 
 
 No. 438. Master must exercise ordinary care in select- 
 ing servants. — The defendant is not bound to warrant the 
 competency of its servant to discharge his duties, but only 
 bound to exercise ordinary care in employing and retaining 
 him. The duty of the company was to exercise ordinary care 
 in the selection of its employees ; or take that care which 
 ordinarily prudent men are accustomed to exercise in their 
 own affairs under similar circumstances. They are held to 
 this degree of care, and this only. 
 
 If the jury find this defendant company did exercise 
 ordinary care and caution at the time of employing B. , the 
 engineer, to ascertain whether he was competent or not, and 
 did find him fully competent to discharge his duties as an 
 engineer, then said company had the right to presume that 
 he would continue competent until the contrary was known 
 to them. 
 
 As to degree of care required in selecting servants, see Mobile, etc., 
 R. R. Co. v. Thomas, 42 Ala. 459; Cooley on Torts, 659 (558); Wood on 
 Railroads, Sec. 389. 
 
 No. 439. Master and servant — Assumption of risks by- 
 servant — Exceptions — Incompetence of — Fellow-servant. — 
 
 It is a general rule of law that a servant, by entering into his 
 master's service, assumes all the risks of that service which 
 the master can not control, including the risk arising from 
 the negligence of his fellow-servants. He assumes the risks 
 of the negligence of the men employed with him in a common 
 service — co-employees — engaged in a common employment, 
 where the one is not in superior authority to the other. ' 
 
 1 Danger not inherent in the work, and not in the manner of doing it, 
 is not assumed. 47 O. S. 207. All risks not inherent in the work must be 
 notified to him by the master. 23 W. L. B. 436; 27 W. L. B. 267. Only 
 ordinary risks are assumed. 1 C. C. 359 ; 23 W. L. B. 436.
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 329 
 
 Now, one of the exceptions to the general rule is the 
 exception upon which this case is urged upon the part of the 
 plaintiff. That is to say, it is the claim of the plaintiff that 
 the company was negligent because it employed a person who 
 was incompetent to discharge the duty that was imposed upon 
 him. And it is the claim of the plaintiff that his incompe- 
 tency was unknown to J. P. And it is urged that because he 
 was incompetent, and known by the company to be incompe- 
 tent, therefore a right of action exists to the plaintiff, as the 
 representative of J. P. , to maintain an action for negligence 
 against the company in its employing B. And undoubtedly 
 this is one of the exceptions to the general rule which I have 
 just stated. But this rule is subject to the qualification that 
 a right may accrue where a person is injured through the 
 negligence of a fellow-servant, if that fellow-servant was 
 incompetent to discharge the duties imposed upon him, and 
 the incompetency and the fact of this incompetency was 
 known to the employer — to the railroad com pan v. 
 
 For if it is true as a proposition of law that the company, 
 acting in good faith and exercising ordinary care and diligence 
 in the employment of B. ; exercising that degree of care that 
 ordinary prudent men are accustomed to employ under like 
 circumstances, if these men employed this man to do this 
 particular duty on this day in the belief that he was compe- 
 tent to do it, and in doing that exercised ordinarv care in 
 selecting him to do that, and it turned out upon this particu- 
 lar daw and the transactions that occurred there indicated 
 incompetency, if they had no knowledge of his incompetency, 
 the company would not be at fault, even though he proved 
 to be incompetent. < )f course after he had been in the em- 
 ploy of the company, in order to determine if it was apparent 
 to the company that he was incompetent, by his methods of 
 transacting the business imposed upon him; if this became 
 apparent in the discharge of his duties, that he was incompe- 
 tent, then it would follow that they had knowledge and would 
 have to govern themselv< rdingly. 
 
 If the jury find that engineer B. was a competent employee 
 at the time heentered thi • of this defendant company, 
 
 but that he afterwards became incompetent, still, unless the 
 railroad company had knowledge of such incompetency, it is 
 not liable for injuries inflicted by said B. 's want of care to his 
 fellow-servanl 
 
 1 rota The ( li ••• land, Lorain i\: Wheeling k R. Co. v. Pulley. Su- 
 preme Court, unreported. Affirmed. Ston< Jud
 
 330 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 No. 440. Duties of master to servant — assumption of 
 risks, etc. — The plaintiff's negligence is to be determined on 
 settled rules of law. The defendant owed certain duties to 
 the plaintiff, his employee. If he failed in the performance 
 of those duties, then, as a matter of law, he would be negli- 
 gent, and the question of the defendant's negligence depends 
 whether it performed the duties imposed upon it by the law. 
 When the plaintiff entered into the employ of the defendant 
 he assumed all the ordinary risks and dangers of his employ- 
 ment, which would include the risks and dangers which may 
 be occasioned by the carelessness or neglect of a fellow 
 employee. 1 But the plaintiff did not, when he entered the 
 services of the defendant, assume the risks and dangers occa- 
 sioned by the carelessness or negligence of the defendant. 
 Or, to restate the proposition, he did not assume the dangers 
 or risks incident to the failure upon the part of the defendant 
 to perform duties it owed to its employee. And if the plain- 
 tiff's injury in this case was the result of the ordinary risks 
 and dangers of his occupation, then he could recover no 
 damages for such injury, for the simple reason, gentlemen, 
 that no person would then be in fault. If his injury was 
 caused by the ordinary risks and hazards of his occupation, 
 it would be a mere accident — the defendant not to blame and 
 the plaintiff not to blame. But if the plaintiff's injury was 
 occasioned by the negligence or carelessness of the defendant, 
 then he may recover, unless his own carelessness or negligence 
 in some way contributed to his injury. 
 
 Now, the defendant nailworks owed the duty to the 
 plaintiff to exercise ordinary care by furnishing safe tools and 
 implements for his use, and having a proper place in which to 
 prosecute his work, and a reasonably safe means of access to 
 and from his work. If the defendant failed in any of these 
 particulars, and by reason of such failure plaintiff was injured, 
 then plaintiff would be entitled to recover, unless you should 
 find that plaintiff's negligence or carelessness contributed in 
 some way to his own injury. 2 
 
 1 1 C. C. 359; 23 W. L. B. 436; 33 O. S. 468; 2 C. C. 3. 
 2 From Bellaire Nail Works v. Morrison. Supreme Court, unreported, 
 ' No. 2902. Affirmed. 
 
 No. 341. Fellow-servants — Assumption of risks by — 
 Exception to rule when incompetent servant employed. — 
 
 (From ante, No. 439. ) One of the exceptions to the general 
 rule that the servant, when entering his master's employment, 
 assumes the risks arising from the negligence of his fellow- 
 servants (ante, No. 440) is where the employer has in his
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 33I 
 
 service persons who are incompetent to discharge the duties 
 imposed upon them. 
 
 That a right may accrue where a person is injured through 
 the negligence of fellow-servant if that fellow-servant was 
 incompetent to discharge the duties imposed upon him, and 
 the incompetency, and the fact of this incompetency, was 
 known to the employer — to the railroad company. 
 
 Was E. B. an incompetent person? Examine the testi- 
 mony bearing upon that question. It is the contention of 
 the railroad company that he had been in their employ for 
 quite a period of time, and had had experience in operating 
 whirlers that season and the preceding season ; that he had 
 been employed as fireman previously; that he had had in- 
 structions in the manner of operating these machines. I 
 don't undertake now to state fully all that is claimed about 
 his experience and knowledge of that business. You have 
 heard the testimony of the witnesses who have testified as to 
 their knowledge of him or have given their judgment of him 
 as an engineer. 
 
 On the other hand, it is claimed by the plaintiff that E. 
 B. was without any experience in running whirlers. That 
 he had never been called to the discharge of that duty before. 
 And they have called witnesses giving their judgment touch- 
 ing his qualifications. But it is their claim that Ik- was placed 
 there to discharge that duty — upon the day of this occur- 
 rence. The court expresses no opinion on this subject one 
 way or the other; is not permitted to, and docs not desire 
 to. You are to determine, among other questions in the 
 case, whether E. B. was an incompetent engineer, or a fit 
 person to have charge of this machine. Next; you must find 
 and pass upon the question, had the company knowledge that 
 he was incompetent? Had the company knowledge of it t 
 
 It is charged, and there is, perhaps, no controversy upon 
 this proposition, that !•'.. I!, was called to take- charge of this 
 machinery, this whirler, that day, l>v the direction of one 
 
 superior in authority to him, who lias been spoken of as the 
 
 engineer, the boss of i Ik- docks. 
 Stone fudge, in C. L. & W. R. R. Co. v. Pulley. S. C. No. 413] . Coolej 
 
 on Toi is, 6< 9 
 
 For discussion of the duty of company in the selection <>f competent 
 
 C-in]>l<>- Wood "ii Kaili ■ 
 
 No. 442. Assumption of risks by brakeman. — After 
 charging generally, as in ante, Xos. (.39, 440, as to assump- 
 tion of risks by a workman, as to a brakeman, proceed: 
 
 Applying that to this ease, the plaintiff, C. S., in accepting 
 the employment or service as a brakeman in the defendant's
 
 332 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 railroad company, assumes the risk of injury from dangers 
 ordinarily incident to the business, and the risk of danger 
 from the negligence of his co-employees, but he does not 
 assume the risk of danger to him from the negligence of those 
 who occupy the relation of principal to him in his service and 
 employment by the defendant. 
 
 Waight, Judge, in C. A. & C. Ry. Co. v. Sharp. Supreme Court, unre- 
 ported. Affirming trial court. 
 
 No. 443. Insufficient force — Risk from assumed when. — 
 
 "It is the duty of a railway company to furnish the necessary 
 and proper number of hands for the safe management of its 
 trains, and for a delinquency in this particular the conductor 
 of a train has a right to decline his charge, or refuse to run 
 the train. But when he takes the charge and runs the train 
 for a length of time, without a sufficient number of hands, 
 he voluntarily assumes the risk and waives the obligation of 
 the company in this respect as to himself, and if injured by 
 means of such delinquency on the part of the company, he is 
 without a remedy against the company for damages." 
 
 Railway Co. v. Barber, 5 O. S. 542. 
 
 In Ry. v. Barber, supra, the court say on page 560: "The company 
 did not insure him (employee) against accident, or those unforseen perils 
 which due and proper care and diligence could not provide against. In- 
 juries from accidents, which the utmost stretch of human skill and fore- 
 sight can not provide against, are incident to all situations and conditions 
 in life. And because one person is in the employ of another in a hazard- 
 ous business it does not follow that the employer must stand responsible 
 for damages resulting from injuries received through accidents which a 
 proper degree of skill and diligence can not guard against." 
 
 And in Ry. v. Knittal, 33 O. S. 468, the court say: " The employee of a 
 railroad company takes the ordinary hazards of the service, also such 
 risks as arise from his own negligence or that of his fellow-servants." 
 
 No. 444. Fellow-servants — Who are — When one placed 
 in control of another. — All who serve the same master, work 
 under the same control, derive authority and compensation 
 from the same common source, and are engaged in the same 
 general business, though it may be in different grades and 
 departments of it, are fellow-servants. Where different per- 
 sons are employed by the same principal in a common enter- 
 prise, and no control is given to one over the other, no action 
 can be sustained by them against their employer on account 
 of any injuries sustained by one agent through the negligence 
 of another. But when one servant is placed by his employer 
 in a position of subordination, and subject to the orders and 
 control of another, and such inferior servant, without fault, 
 and while in the discharge of his duties, is injured by the
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 333 
 
 negligence of the superior servant, the master is liable for the 
 injury. 
 
 Green, Judge, in The C. A. & C. Ry. Co. v. Umstead. Supreme Court, 
 No. 2481 ; Cooky on Torts, 662 (560) ; Jaggard on Torts, 240. 
 
 No. 445. Negligence of co-employee — Rules for deter- 
 mining who is co-employee or vice-principal — Brakeman 
 (plaintiff) and foreman. — But if you find that either of these 
 persons were negligent in the discharge of their duty, then 
 you will consider and determine whether the one you find 
 was so negligent was a co-employee of the plaintiff, or occu- 
 pied the position of vice-principal, so far as the defendant 
 was concerned, in the plaintiff's employment by him. And 
 the rule by which you are to determine whether he was a 
 co-employee or vice-principal depends upon whether or not, 
 under their employment by the defendant, the foreman actu- 
 ally had power or authority to direct and control the services 
 of the plaintiff in his employment by the defendant. If he 
 has this authority from their employer, then the former stands 
 in the place of said employer as to the plaintiff, and if he is 
 negligent, and his negligence results in injury to the plaintiff, 
 the employer, the defendant in this case, would be liable. 
 If he had 'no such authority, actual authority or power to 
 direct and control these services of the plaintiff upon behalf 
 of the defendant, but they stood equal in that regard, and they 
 would be co-employees, and the defendant, the company, 
 would not be liable for the negligence of cither resulting in 
 injury to the other. 1 Now, gentlemen of the jury, under 
 these instructions, it is for you to determine, from the testi- 
 mony in this case, whether or not this man J., the foreman 
 of the brakemen, as he was designated in the proof, occupied 
 this position of authority by reason of his employment by the 
 defendant. If he did riot, then the defendanl would not be 
 liable, even though he was negligent; if he did occupy this 
 position of authority over the services of the plaintiff, then, 
 if he was negligent in the performance of his duties, the de- 
 fendant would be liable, unless the plaintiff was guilty of 
 contributory neglig< ri' 
 
 ' To constitute the reli iperior and infi int, the latter 
 
 mu9l oftheformei renkins v. R. R. Co., 17*0. S 197. 
 
 . v 1 .-, 1 Ry. Co v. Sharp, Supreme Court, unre- 
 
 ported fudgmenl affirmed, 
 
 i- , uniformly held in Ohio, thai wh< r< one m rvanl 1 pla 1 d 
 
 in a position of subordination to and Bubji 1 I to th< ord< rs and control ol 
 another servant oi a common ma ter, and the subordinate servant, with- 
 out faull of his "-.'.n ind while in the performance ol hi ■ duty, is injun d 
 through the negligem e ol thi ' whili u ting in the 1 oin 
 
 mon servici an action lies in favor of the in! in1 10 injured
 
 334 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 against the master. L. M. R. R. Co. v. Stevens, 20 O. 415; C. C. & C. R. R. 
 Co. v. De Keary, 3 O. S. 208, 209 and 210; 17 O. S. 211 ; 36 O. S. 221, 224, 226; 
 
 38 O. s. 389- 
 
 " Whether an engineer, or employee of a railroad company, has author- 
 ity to direct or control other employees of the same company, is a ques- 
 tion of fact to be determined in each case. This may be done, however, 
 either by proof of express authority, or by showing the exercise of such 
 authority to be customary, or according to the usual course of conducting 
 the business of the particular company interested, or of railroad companies 
 generally." Railroad Co. v. Margrat, 31 W. L. B. 247; Railway v. Lewis, 
 33 O. S. 196. 
 
 No. 446. Respondeat superior — Disregard of orders of 
 superior servant — Effect of. — Further, if you should find 
 that, at the time of the accident, C. willfully disobeyed or 
 disregarded the order or admonition of a servant superior to 
 himself, that is, a servant under whose control he was, and 
 to whose orders and directions he was made subject in the 
 discharge of his duty, and such order pertained to his safety 
 and such disobedience contributed at the time to his death, 
 the plaintiff can not recover. 
 
 R. de Steiguer, Judge, in Cook v. C. H. V. & T. Ry., 51 O. S. 636. 
 
 No. 447. Fellow-servants — Conductor and brakeman. — 
 
 If C. was actually subject to the control and direction of B., 
 as conductor, in the discharge of his duties as brakeman, then 
 he was not the fellow-servant of the conductor, but the con- 
 ductor was the superior servant of C, and the acts of the 
 conductor's and his orders and directions, in the discharge of 
 his duties as such, would be acts of the defendant. 
 
 R. de Steiguer, Judge, in Cook v. C. H. V. v. T. Ry., 51 O. S. 636. 
 
 No. 448. Fellow-servants — Operator and train dis- 
 patcher. — The negligence of the operator, H., I have already 
 said to you, standing alone would not entitle the plaintiff to 
 a recovery, for the reason that it would be in law the negli- 
 gence of a fellow-servant. But if you find that this negligence 
 on the part of H. was induced, caused, and brought about by 
 the negligence on the part of the train dispatcher, and was 
 the natural, immediate, and necessary consequence of negli- 
 gence on the part of the train dispatcher, then the fact, if you 
 find it to be a fact, that the operator was negligent in the 
 discharge of his duty for this reason, it would not prevent a 
 recovery in this case, if you find the train dispatcher to have 
 been negligent, and that the negligence of the train dispatcher 
 was the proximate cause of the injury. But if you find that 
 the negligence of the train dispatcher was the proximate 
 cause of the injury, and that operating with negligence of H. , 
 the operator, the two together caused the injury, the negli-
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 335 
 
 gence of H. contributed simply to produce the effect which 
 was the direct result, however, of the original negligence of 
 the train dispatcher, this negligence on the part of H. thus 
 operating in connection with the negligence of the train dis- 
 patcher, or, if it was actually induced, brought about, and 
 caused by his negligence, would not prevent a recovery, if 
 upon the other matters you find in favor of the plaintiff. And 
 in considering this question as to whose negligent act, if any, 
 was the proximate cause of the injury, you should also bear 
 in mind that the law presumes that each of these parties 
 would do their duty, and the train dispatcher would have the 
 right to presume that H., the operator, would discharge his 
 duty when he sent orders to him. 
 
 From P. & W. Ry. Co. v. Flenner, S. C. 4074, Mahoning County. Judg- 
 ments affirmed. J. R. Johnston, Judge. 
 
 No. 449. Fellow-servants — Train dispatcher and con- 
 ductor. — It is agreed that the plaintiff, the train dispatcher 
 A., and the conductor M. were employees of the defendant, 
 engaged in the common enterprise of conducting the business 
 of the defendant. 
 
 The plaintiff claiming that, by the terms of his employ- 
 ment and the rules adopted by the defendant, and which rules 
 he was bound to obey, he was placed under the control of and 
 bound to obey the orders of the train dispatcher A. and the 
 conductor M. 
 
 And that, while he was in the discharge <»f his duties, 
 obeying the orders of his superiors, A. and M., by the negli- 
 gence and carelessness of his superiors, and without any fault 
 on his part. Ik- received the injury complained of. 
 
 The defendant claiming that the plaintiff, the train dis- 
 patcher A., and the conductor M. were fellow- servants, and 
 that no control was given to one over the other so as t<> put 
 the plaintiff in a position of subordination to and under the 
 i ontrol of lid train dispatcher A., or said conductor M. 
 
 You must determine from tin- evidence what an- the facts 
 proven. If you find from tin- evidence that tin- claim of the 
 defendant is true — that plaintiff was not undej tin- control of 
 his fellow- 1 ■iv.-mts. A., the train dispatcher, or M., the con- 
 ductor, then, although he was injured and injured bv the 
 negligem in di ;pat< hei 01 1 onduc- 
 
 tor, the defendant would not be liable, and your verdict 
 should be foi the d< f< ndant 
 
 If you find from the evidence that the claim of the plain- 
 tiff is true — that is, that he was, by the terms of his employ- 
 ment and the rules of the defendant, and which rules the
 
 336 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 plaintiff was bound to obey, placed under the control of, and 
 bound to obey the orders of, the train dispatcher and the 
 conductor, and that while he was in the discharge of his duty 
 in obedience to the orders of said train dispatcher or said 
 conductor, and without any fault of his, by reason of the 
 negligence and carelessness of said train dispatcher or said 
 .conductor he was injured, and but for such negligence he 
 would not have received the injury, then your verdict should 
 be for the plaintiff. If, under the rules that I have given 
 you, you find from the facts that the plaintiff is entitled to 
 recover, you will then determine what amount he is entitled 
 to receive. 
 
 From The C. A. & C. Ry. Co. v. Umstead, Supreme Court, affirmed, 
 No. 2481. Green, Judge. 
 
 No. 450. Fellow-servants — Relation between engineer 
 and train dispatcher. — The defendant from the statement of 
 its claim says that if there was any negligence, it was the 
 negligence of a fellow-servant, and for this it would not be 
 liable, and this brings you to the consideration of the question 
 as to whether or not the assistant train dispatcher or the 
 operator at P. were the fellow-servants of the engineer R. 
 
 Upon this question you are instucted that if you find that 
 the defendant had at that time committed and entrusted the 
 entire charge of its business with regard to the making and 
 transmitting the order for the moving of train — to the as- 
 sistant train dispatcher, or to him and the telegraph operator 
 jointly, and exercised no discretion or oversight over them, 
 or either of them, in regard thereto, then the act or acts of the 
 one or both, as you may find this business to have been thus 
 entrusted to the one or both, would be the act or acts of the 
 defendant, and if the one or the other, or both, to whom you 
 may have found this particular business to have been entrusted 
 by the defendant, did not act with ordinary care in the making 
 and transmitting of the order to the conductor and engineer 
 of train — , and the injury to R. resulted directly therefrom, 
 and R. himself was in exercise of ordinary care, then for such 
 negligence the defendant would be liable. But if you find 
 that the defendant did not so entrust its business, and this 
 particular business, to the assistant train dispatcher, or the 
 telegraph operator, or to either or both of them, then, as to 
 the one or both as you may find to whom the defendant had 
 not thus entrusted this particular business, the relation of 
 fellow-servant would exist between such one or both and the 
 engineer R., unless you find that they, or either of them, had 
 authority from the defendant to control his movements in
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. $?,J 
 
 regard to this train, and had the right to order him in regard 
 to its movements, and did so order him, and the train was 
 moved, and for the want of care of such a fellow-servant to 
 whom this business was not so entrusted, and who had not 
 the authority to order, and did not so order, the conductor 
 and engineer, the defendant would not be liable. 
 Johnston, Judge, in Rogers v. P. L. E. R. R. Co. 
 
 No. 451. Fellow-servants — Superior servants — Engi- 
 neer and fireman. — Whether or not the engineer gave this 
 order is a disputed question of fact in this case which you 
 must decide. If he did not give the order, if the coupling 
 was not made by the fireman under the orders or direction of 
 the engineer, or if the circumstances were such that the fire- 
 man had no good reason to believe that he was directed or 
 commanded by the engineer to make this coupling, that, of 
 course, will end your inquiry so far as this branch of the case 
 is concerned. 
 
 But if you find from the evidence that the engineer did 
 give this order to the fireman to make this coupling, then the 
 questions involved are: Whether the giving of this order 
 was, under all the circumstances of the case, a negligent or 
 wrongful act on the part of the engineer, for which the com- 
 pany is responsible; and whether the plaintiff was himself 
 negligent in obeying the order. 
 
 Where a servant of a railroad company, without fault on 
 his part, is injured through the negligence of a fellow-servant, 
 and the injured servant is not placed by the company under 
 the control or direction of the negligent servant, then the 
 company is not responsible for the injury. In such ease the 
 two servants are regarded as fellow-servants, without any 
 relation of superiority or subordination between them, and in 
 such a ease the company is not liable. 
 
 The servant who enters into the service of a company takes 
 upon himself all the ordinal \ nsks incident to the service, 
 and among these ordinary risks is the risk of injury From a 
 fellow-servant who has no control or supervision over him. 
 But if the injured servanl is placed by the company under the 
 control and direction of the negligenl sei vant, then the m 
 of the latter — the supei ior servanl — is regard< d as the n< 
 of the company, and this is upon the ground thai thesuperioi 
 servant, as to the matter in hand, is the r< presentative of the 
 company, and the negligence of thesuperioi servant, undei 
 such circumstances, is treated as the negligence of the com- 
 pany. 
 
 it appears from the evidence in this case that the plaintifi
 
 338 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 was employed by the company in the capacity of a fireman, 
 and that he was performing services in that capacity on the 
 day of the injury. It appears that at the time of his injury 
 he was endeavoring to couple these two freight -cars — a service 
 usually performed by a brakeman or switchman. So it 
 appears he was at the time performing an act, or attempting 
 to perform an act, outside of the usual line of his employment. 
 If you find from the evidence that he attempted to make the 
 coupling in conseqeunce of the order or direction of the engi- 
 neer, you will inquire whether such order or direction was, 
 under all the circumstances, a negligent or wrongful act on 
 his part. You will consider all the circumstances: what the 
 engineer knew, if anything, relating to the capacity of the 
 fireman to perform that kind of service, and consider all the 
 circumstances. 
 
 To hold the company it must appear that the engineer was 
 guilty of negligence in giving the order, if he gave the order, 
 and that, by the act of the company, the engineer had the 
 management and control of the train upon that day, and that 
 the plaintiff, as one of the employees, was under the direction 
 and control of the engineer in the operation and management 
 of the train that day ; in other words, it must appear that the 
 engineer was the superior servant of the plaintiff in order to 
 hold the company responsible for the negligence of the engi- 
 neer. This is a question of fact which must be determined 
 from all the evidence in the case, viz. : whether the plaintiff 
 was the subordinate of the engineer in respect to the work in 
 which the plaintiff was engaged at the time of the injury. If 
 he was not such subordinate, if he was under the control or 
 direction of someone else, if he was not the subordinate of 
 the engineer, then the company is not liable for the negli- 
 gence of the engineer. But if upon that day the engineer had 
 the control of the train and the control of the employees, 
 including the plaintiff, in the operation of the train, then upon 
 that day the engineer represented the company, and his negli- 
 gence would be regarded as the negligence of the company. 
 
 Under this second ground of negligence it remains to be 
 considered: whether the plaintiff was himself, in obeying the 
 order of the engineer (in case you find such order was given), 
 negligent? t 
 
 A servant's primary duty to his superior is obedience; but 
 if the act which he is ordered to perform is so obviously 
 dangerous that a man of common prudence would not under- 
 take it, then it is his duty to refuse to. perform it. The order 
 of the superior is presumed to be lawful and proper, and a 
 servant is protected in obeying it, if he believes, and if he
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 339 
 
 has good reason to believe that, by the exercise of caution, he 
 can perform the act with safety. 
 
 Now it is for you to say, from all the evidence and all the 
 circumstances of the case, whether the plaintiff ought or 
 ought not to have obeyed the order of the engineer to couple 
 these cars, if such order was given. The plaintiff, as I have 
 said, assumed and took upon himself all ordinary risks and 
 perils incident to the service in which he became engaged. 
 If he is ordered to perform a service outside of the line of his 
 employment, and he is aware of the peculiar peril of such 
 service — if he knows, understands, and appreciates the risks 
 incident to such service — then, in undertaking to discharge 
 the service, he takes upon himself the risks of injury. But 
 the master has no right to subject him to unusual or extraor- 
 dinary perils with which the servant is not familiar, or is 
 unacquainted, without cautioning him. In other words, the 
 inquiry is, here, whether, under all the cricumstances of the 
 case — his knowledge of the situation — he acted as an ordi- 
 narily prudent person would act under the same circum- 
 stances. 
 
 The care which he was required to take for his own safety, 
 to avoid injury to himself, was such care as ordinarily prudent 
 persons usually exercise under the same circumstances. 
 
 Prom Pennsylvania Co. v. Hinckley, Supreme Court, Lucas County. 
 Pugsley, Judge. An engineer with power to control or direct his fireman 
 is a superior. Railroad v. Mar-rat. 5] < >. S. 130. 
 
 No. 452. Fellow-servants — Injury to brakeman caused 
 by engineer quickening speed too suddenly. — "That if the 
 jury should find that the engineer on the train upon which 
 the plaintiff was working at the time of the injury was negli- 
 gent in quickening the speed of the train too suddenly, the 
 defendant is not liable in this action to the plaint ill for Mich 
 negligence. 
 
 Waight, Judge, given by request, in C. A. & C. Ry. v. Sharp. 
 
 No. 453. Fellow-servants — Injury to brakeman coup- 
 ling cars because of loose rails lying alongside of track. — If 
 the decedent, in uncoupling the cars at the time the injury 
 complained of was received, was in performance of a duty 
 imposed upon him by and under tin- orders of a supi 
 office] at the time, and if. in so doing, lu- was guilty of n<> 
 negligence, and without negligence in the performanci of 
 such labor on his part, he was injured because of loose rails 
 lying alongsidi aid track, by being tripped ami caught by 
 them and drawn un ler the cars as alleged, of the pr< sen
 
 340 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 which loose rails you shall say from the evidence that he was 
 at the time in ignorance ; and you shall say that the leaving 
 of such loose rails at that place was negligence or want of 
 ordinary care on the part of the defendant, under the rules 
 heretofore given you, then plaintiff would be entitled to 
 recover. 
 
 Wm. H. Handy, Judge, in Ludwig v. C, H. & D. R. R. Co., Supreme 
 Court. Charge approved. 
 
 No. 454. Acts done by servant at request of a fellow- 
 servant — Liability of master. — The court instructs the jury 
 if they find from the evidence that the said M. was working 
 at one place in said mine, and was requested by a fellow- 
 servant to go to another place in said mine to assist said fellow- 
 servant in putting up said post, and while so assisting said 
 fellow servant, received the injury of which he complains, 
 then the plaintiff can not recover, for a servant can not recover 
 for an injury incurred in assisting a fellow-servant, either 
 voluntarily or on the request of such servant. 
 
 From Morris Coal Co. v. Mitchell, Supreme Court. Affirmed. Huff- 
 man, Judge, given by request. Osborn v. Knox. R. R., 28 Am. Rep. 16. 
 
 No. 455. Obviously dangerous acts done by order of su- 
 perior servant. — If the jury should find from the evidence 
 that the said J. M. was ordered by his superior servant to do 
 an act that is obviously dangerous, and which, when done, 
 was the cause resulting in the injuries of which he complains, 
 this would not render the defendant liable, for the liability of 
 the defendant is conditioned upon the exercise of reasonable 
 and proper care. In order for the plaintiff to recover for the 
 negligence of the defendant by its servants, M. must have 
 been free from negligence contributing to the injury of which 
 he complains. 
 
 If the jury find from the evidence that, at the time said 
 M. attempted to assist to pull up the post that had been 
 knocked down, it was obviously rash and dangerous for a 
 man exercising ordinary care and prudence to do so, and the 
 danger was plain and apparent to plaintiff; plaintiff was not 
 obliged to obey an order to do a rash and dangerous thing, 
 and if he did so, under those circumstances, although ordered 
 so to do by a superior servant, and in so doing contributed to 
 the injury of which he complains, the plaintiff can not 
 recover. 
 
 From Morris Coal Co. v. Mitchell, Supreme Court. Affirmed. Huff- 
 man, Judge, given by request.
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 34 1 
 
 No. 456. Master not an insurer — Duty to furnish safe 
 machinery — Assumption of risks — A concise charge covering 
 these points. — I say to you as a matter of law that, in the 
 absence of a contract, the master is not in any sense the in- 
 surer of the safety of his servant. It is the employer's duty 
 to furnish the servant with reasonably safe appliances, and to 
 protect him from such dangers in the performance of his work 
 as, in the exercise of ordinary care and prudence, can be 
 provided against. The servant, by the terms of his employ- 
 ment, is presumed to assume the risk of such injuries from 
 accident as are incident to the nature and character of the 
 employment, and against which the master could not, in the 
 exercise of ordinary care, have protected him. 
 
 No. 457. Warning of danger by fellow-servant. — If the 
 jury find from the evidence that the plaintiff was warned by 
 his fellow workman not to attempt to perform the service by 
 which he was injured, and that plaintiff, by the exercise 
 of ordinary care and prudence after receiving such warning, 
 had time to escape from such danger and avoid receiving the 
 injuries of which he complains, and plaintiff disregarded such 
 warning and was injured, he can not recover, for I charge vou 
 if you find such to be the fact, that plaintiff would be guilty 
 of contributory negligence by his own fault to the injuries for 
 which he seeks to recover damages from the defendant. 
 
 From Morris Coal Co. v. Mitchell, Supreme Court. Affirmed. 
 
 No. 458. Knowledge of danger by master and by ser- 
 vant. — I say to you further that no recovery can be had 
 against the master where the cause of the injury, of whatever 
 nature, was unknown to the master, and could not have been 
 known in the exercise of ordinary care. And, furthermore, 
 no recovery can be had where the source of danger is known 
 to the servant, and he, without communicating his knowledge 
 to the master, continues in his service. In such case he is 
 presumed voluntarily to assume the risk, and he can not 
 recover unless it is made to appear that he informed the 
 master of the facts, and continued in his service on the faith 
 of a promise th.it he would remove the danger 1>v remedying 
 the def< i 
 
 id J. Nye, fudge, in C. L & W. R. R. v. Nehl, Supreme Court, 
 4187. Judgments affirmed. 
 
 No. 459. Knowledge of dangerous methods amounts to 
 acquiescence and assumption of risks. — "If it be conceded 
 that the switchin om the main track to a side track
 
 342 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 while the train is in motion is a dangerous mode of doing 
 business and ought to be regarded as evidence of negligence, 
 still all employees who entered the service of the company 
 with full' knowledge that such was the practice, or acquired 
 such knowledge afterwards, and remained in the service with- 
 out the least objection thereto, and fully acquiesced therein, 
 must be regarded as having consented to the practice or as 
 having waived any objection thereto, and therefore as having 
 i taken the risk upon themselves. ' ' 
 
 Railroad Company v. Knittal, 33 O. S. 468. 
 
 No. 460. Knowledge of work and assumption of risks. — 
 
 If the jury find from the evidence that the said J. M. entered 
 the employment of the defendant to perform the work of a 
 miner, and he had "knowledge of the kind of work he was to 
 perform, then he assumed the ordinary risks and dangers of 
 the service, and he accepted the service subject to such risks 
 thereto. ' ' 
 
 From Morris Coal Co. v. Mitchell, Supreme Court. Affirmed. Huff- 
 man, Judge, given by request. 
 
 Judgments of Common Pleas affirmed and charge approved. 27 W. 
 L. B. 347. Knowledge of danger is not negligence per se. 4 Am. & Eng. 
 Enc. of Law, p. 35, n. 2. City of Circleville v. Thorne, 1 O. C. C. Rep., p. 359 
 
 No. 461. Same continued — Knowledge of incompetency 
 of servant by master. — The company, an incorporated com- 
 pany, acts through its agents, its officers, as is apparent to 
 everyone upon a moment's reflection; and when its engineer 
 directs a thing to be done, as the directing of B. to take 
 charge of an engine, that is the act of the company, and the 
 knowledge of the boss engineer on the subject of a man's 
 competency or incompetency may be said to be the knowledge 
 of the company upon that subject. The claim is that these 
 officers in control had knowledge of B. 's incompetency ; and 
 so I say in general terms that the knowledge of the company 
 is the knowledge of those who were put in charge of it to 
 control or direct its affairs. 
 
 Now, at the time of E. B. 's employment there had the 
 company knowledge through its agents and officers of his 
 incompetency? This I have already indicated that it is 
 essential to the plaintiff's case, in order to maintain it, to 
 show not alone that he was incompetent, but that the com- 
 pany through its agents had knowledge of it ; so examine that 
 question. 
 
 For if it is true as a proposition of law that the company, 
 acting in good faith and exercising ordinary care and dili- 
 gence in the employment of B. ; exercising that degree of care
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 343 
 
 that ordinary prudent men are accustomed to employ under 
 like circumstances; if these men employed this man to do 
 this particular duty on this day, in the belief that he was 
 competent to do it, and in doing that exercised ordinary care 
 in selecting him to do that, and it turned out upon this par- 
 ticular day, and the transactions that occurred there indicated 
 incompetency, if they had no knowledge of his incompetency 
 the company would not be at fault eyen though he proyed to 
 be incompetent. Of course, after he had been in the employ 
 of the company, in order to determine if it was apparent to 
 the company that he was incompetent by his methods of 
 transacting the business imposed upon him ; if this became 
 apparent in the discharge of his duties, that he was incompe- 
 tent, then it would follow that they had knowledge and would 
 haye to govern themselves accordingly. 
 
 So ascertain what the fact is, and as to whether the com- 
 pany had knowledge of his incompetency, for this fact must 
 appear to render the company liable for the acts of which 
 complaint is made. 
 
 Stone, Judge, in L. E. & W. R. R. Co. v. Pulley, Supreme Court, 4131. 
 Affirmed. 
 
 No. 462. Continuance to use dangerous agencies after 
 knowledge. — The defendant was not required to exercise the 
 highest degree of care, to furnish the safest machinery and 
 tools, or to furnish the safest known place to prosecute his 
 work, or the safest means of access to and from his work, but 
 it was bound to exercise ordinary care in furnishing such tools 
 and implements and furnish such place for the prosecution of 
 his work. 
 
 Now, the question for you to determine in this case, 
 gentlemen, is whether in leaving that pit in that condition 
 that it was at the time, if you find from the evidence that the 
 crossing was dangerous, and that the plaintiff knew of such 
 danger and continued to use the same, and was injured bv 
 using it for CTO£ »ing, such fads standing alone would warrant 
 
 you in finding that the plaintiff was guilty of negligence, or 
 contributed to his own injury and la- couldn't ret-over. I 
 mean to say to you, gentlemen, that that fact standing alone 
 would itself constitute contributory negligence upon the pari 
 of the plaintiff, and he could not recovei in this action, bul 
 if you shall find that lie had knowledge of the danger incident 
 to its crossing, and that he complained of its condition to the 
 superintendent of the mill under whose orders he was work- 
 ing, and that the superintendent promised to plac< the cross- 
 ing in a safe condition and directed him to continue louse it.
 
 344 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 and he was injured thereby, then the fact of his knowledge 
 of the dangerous condition of the way would not in itself be 
 conclusive evidence of contributory negligence on the part of 
 the plaintiff, but such, however, may be taken into consider- 
 ation by you in determining the question of contributory 
 negligence on the part of plaintiff. 
 
 From Bellaire Nail Works v. Morrison, Supreme Court, unreported, 
 No. 2902. Affirmed. 
 
 No. 463. Contributory negligence considered with refer- 
 ence to directions of master. — But it should be remembered 
 that where the injured party acts in obedience to the direction 
 of his master, or his superintendent, who has authority to 
 control the conduct of the employee, and he is thereby in- 
 jured in so doing, his obedience to said directions will not be 
 deemed such contributory negligence as would defeat an 
 action, unless the danger was so obvious as to make his obe- 
 dience under the circumstances unreasonable, having reference 
 to his personal safety and the authority of the master. If the 
 defendants, or their superintendent, which is the same thing, 
 induced the plaintiff (or decedent) to act in the manner he 
 did, and the injury resulted thereby, and the plaintiff's (or 
 decedent's) obedience in that respect was not unreasonable 
 under the circumstances, they can not successfully set up such 
 acts as a defense. 
 
 Under such circumstances you are instructed that the 
 contributory negligence can not be imputed to the plaintiff 
 (or decedent) if he acted in good faith and reasonabl}' under 
 the circumstances and pursuant to the express instruction of 
 his master, or of his duly authorized superintendent. It 
 appears to the court to be grossly inconsistent for the defend- 
 ants to direct the decedent to do certain acts or to perform 
 certain services in the line of his duty to them, and then be 
 permitted to assert that the obedience to such orders was 
 negligence on his part that would defeat an action to recover 
 damages resulting from injuries caused thereby, if the plain- 
 tiff (or decedent) acted reasonably under the circumstances. 
 
 Voris, Judge, in Quinn v. Ewart, Summit County Common Pleas. 
 
 No. 464. Fellow-servants — Injury to hatchtender while 
 unloading cargo of ore from a schooner by means of steam 
 whirler — Assumption of risks by. — It is a general rule of law 
 that a servant, by entering into his master's service, assumes 
 all the riks of that service which the master can not control, 
 including the risk arising from the negilgence of his fellow- 
 servants.
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 345 
 
 Putting this principle into language that will more prop- 
 erly fit the case, the rule may be stated thus: When J. P., 
 as an employee of the railroad company, entered into its 
 service as such, he assumed all the risks of that service which 
 the railroad company could not control, including this risk 
 from the negligence of his fellow employee, E. B., as well as 
 other co-employees or servants in the common employment of 
 the company. That is to say, in general terms, when one 
 engages in labor of this sort, he takes certain risks. He takes 
 the risks of the negligence of the men employed with him in 
 a common service — co-employees they are called ofttimes — 
 engaged in a common employment, where the one is not 
 superior in authority to the other. And so as a legal proposi- 
 tion E. B. and J. P. were common employees — co-employees 
 — engaged in a common service, having different duties to 
 perform, it is true, but were engaged in a common service, a 
 common employment, namely in their appropriate places aid- 
 ing in discharging this vessel of a cargo of ore upon the rail- 
 road tracks brought adjacent and contiguous for that pur- 
 pose, so that they did not occupy the relation of superior and 
 inferior in their employment, but were co-employees in a 
 common service. It would therefore follow that if J. P. was 
 injured through the negligence or carelessness of his co-em- 
 ployee, E. B., who was at the time in charge of operating the 
 whirler, there could be no recovery in this case, if that was 
 all there was of it; if he is simply injured by the negligence 
 of E. B., if he was negligent, unless certain other things are 
 made to appear. 
 
 From C L. & W. R. R. Co. v. Pulley, Supreme Court, unreported, 4131. 
 Stone, Judge. Affirmed. 
 
 No. 465. Duty of railroad conductor. — It is the duty of 
 the conductor to use ordinary care in the discharge of the 
 duties of his employment. If he has charge and control of 
 this train of the defendant, and has power to direct and con- 
 trol the services of the plaintiff on behalf of the defendant, 
 then his duty would be to t ordinary care in the dis- 
 
 ■r of these duties; and ordinary can- means the (.-are that 
 a person of ordinary prudence would use under the same 01 
 similar circumstances. It is for you to -aw from the tcsti- 
 mony in the ease-, whether or not the con luctor exercised this 
 ordinary care in the discharge of the dm ies of his employment. 
 If he did, that is tin- extenl that the law requires of him, and 
 the defendant would not be liable. If he did not, and his 
 
 failure to exercise this ordinary care resulted in injury to the 
 
 plaintiff, and he occupied Such a position as the court will
 
 346 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 hereafter define in the employ of the defendant, as would 
 make the defendant liable to the plaintiff for his negligence, 
 then they would be liable. This is for you to determine from 
 the testimony. If you find that he exercised this ordinary 
 care, then your verdict should be for the defendant, so far as 
 this charge of negligence is concerned in the defendant. If 
 he failed to exercise this ordinary care, and it produced the 
 injury to the plaintiff, then your verdict should be for the 
 plaintiff, unless you find for the defendant on other grounds. 
 
 Waight, Judge, in C. A. & C. Ry. Co. v. Sharp, Supreme Court, unre- 
 ported. Judgments affirmed. No. 4012. 
 
 No. 466. — Deemed to have knowledge of defect — Burden 
 of proof on company to rebut. — Under - a statute in force in 
 this state at the time of this accident, and applicable thereto, 
 it is provided : 
 
 "If the employees of any railroad corporation shall receive 
 any injury by reason of any defect in any car or locomotive, 
 or the machinery or attachment thereto belonging, owned and 
 operated, or being run and operated by such corporation, such 
 corporation shall be deemed to have had knowledge of such 
 defect before and at the time such injury is so sustained, and 
 when the fact of such defect shall be made to appear in the 
 trial of any action in the courts of this state, brought by such 
 employee, or his legal representative, against any railroad 
 company for damages on account of such injuries so received, 
 the same shall be prima facie evidence of negligence on the 
 part of such corporation." 
 
 So that if it shall have appeared to you that Mr. J. 's death 
 occurred as a proximate result of a defect which existed in 
 this brake-rod, which caused it to break, and produced the 
 injuries causing such death at a time when he was acting as 
 the employee of defendant company, then the company is 
 deemed to have had knowledge of such defect at and before 
 the time of such injury, and the fact of such defect is prima 
 facie evidence of negligence on the part of defendant com- 
 pany, which simply means that, in the absence of any other 
 evidence in the case bearing upon the knowledge of defendant 
 company, it would justify and require the jury to presume 
 that in the respect pointed out defendant was negligent. 
 This presumption which arises under the circumstances 
 named, however, is no more than a presumption which may 
 be met and overcome by other proofs advanced. If such pre- 
 sumption arises, then upon the question as to whether defend- 
 ant company actually knew, or by the exercise of ordinary 
 care could or ought to have known such defect, or to put it
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 347 
 
 the other way, whether or not defendant company was negli- 
 gent, the burden of proof is upon defendant company to over- 
 come such presumption or inference of negligence, not that 
 the company would be required to satisfy you that it was not 
 negligent, but to show, having fairly weighed all the proofs, 
 that it probably was not negligent. 
 
 No. 467. Duty of company as to inspection. — What was 
 the duty of defendant company in the premises? The com- 
 pany owed the duty to its employees to exercise vigilance in 
 using ordinary care to maintain, and in maintaining, the car 
 and its appliances, and keeping the same in reasonable repair, 
 and in the performance of this duty it must exercise ordinary 
 care in adopting means of inspection, with a view of deter- 
 mining its condition, and must supply itself with facilities 
 for making repairs from time to time when needed. If the 
 jury find that the railway company had in its employ an 
 adequate force of careful and competent car inspectors, at 
 various places along its line, through which this car in the 
 course of traffic passed, and whose duty it was, and who did, 
 upon the arrival or departure of said car, inspect the same by 
 a careful examination and attention to it, with a view of 
 determining any visible or apparent defect in said car or its 
 equipments, and if you find that sufficient instructions were 
 given to said inspectors as to what to do in their work, and 
 that such instructions and method of work were enforced by 
 the company, and if you find that shortly before this accident 
 the car was inspected in this manner by a careful and compe- 
 tent inspector in the employ of the R. R. Co., and this 
 
 defect in the brake-staff was not discovered by said inspectors, 
 or reported to the company, and that said company had no 
 knowledge, through any of its agents or officers, of the crack 
 or flaw in the brake, that then the defendant has performed 
 its duty to decedent in that regard. 
 
 Now, this has a meaning that may not be clearly apparent 
 to you in some respects. It was not sufficient that the com- 
 pany should supple a sufficient number of competent inspec- 
 The company's duty went further and required of it 
 when it supplied tin- inspectors to also use- reasonable care in 
 
 furnishing them reasonably sufficient instructions as t<> the 
 due performance of their duties. It would not be a sufficient 
 compliance with its legal duty for the railway company to 
 provide sufficient competent inspectors and leave them to the 
 performance of their duties without reasonable instructions as 
 to their duties to enable them to reasonably accomplish the 
 object intended, to wit: The exercise' of ordinary care to 
 23
 
 34S NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 ascertain the condition of the machinery. True, if the in- 
 spectors actually performed the duty of ordinary care required 
 of the company as to inspections, it would not matter that the 
 company had failed to furnish proper instructions. 
 
 You will bear in mind that for the mere negligence of 
 duty on the part of the inspectors the defendant company 
 would not be liable because such inspectors are fellow-servants 
 with J. ; that is, if you find it was the duty of the car in- 
 spector, in the event that there was anything in the appear- 
 ance or condition of the visible portions of the brake-staff to 
 raise a doubt as to the soundness of the hidden portions, to 
 examine said hidden portion for possible defects, and if 3'ou 
 find that there was, at the time of the last inspection of said 
 car, anything in the condition of the visible portions of said ' 
 shaft or rod which would raise a doubt in the mind of a 
 competent inspector as to the soundness of the hidden portion 
 thereof, and the inspector failed or neglected to examine the 
 same, and by reason of his failure so to do the car was passed 
 into J.'s hand, and so caused his death, for the negligence of 
 said inspector there can be no recovery against defendant. 
 
 Still, if the inspector's mode of examination was a negli- 
 gent one, but it was made in the manner directed by the com- 
 pany, or with the full knowledge of the company how it was 
 made, and that manner was negligently defective, the defend- 
 ant would be liable for such negligence. 
 
 I have already given you the rule of duty which the law 
 devolved upon defendant company, and the question of its 
 due performance by the company is purely one for the jury. 
 
 In its rules established as to inspections, and the means 
 provided for duly carrying them out, to the effect of reason- 
 ably accomplishing the legal end of a due performance of its 
 duty, the company was bound to be vigilant in taking all 
 reasonable precautions ; that is, it was bound to exercise that 
 degree and kind of care which ordinarily prudent persons are 
 ordinarily accustomed to exercise under the same or similar 
 circumstances, which you have the right to know and consider 
 how such matters are regulated and carried on by other rail- 
 ways ; the rule given you does not mean that if other railways 
 engaged in similar business are accustomed to perform their 
 .duties in this respect in a negligent manner, that such fact 
 would justify this defendant in a similar negligence. 
 
 The objective result of this rule desired to be reached is 
 that, in the operation of the road and the performance of the 
 duty by the employee, he shall be as reasonably safe person- 
 ally as vigilance in the exercise of ordinary care for his safety 
 on the part of the company ordinarily can render him.
 
 NEGLIGENCE — RAILROADS — EMPLOYEES. 349 
 
 Xor is the mere exigency of their traffic any excuse re- 
 lieving a company from the due exercise of ordinary care in 
 maintaining their machinery in a reasonably safe condition. 
 But whether or not such due care is exercised must be deter- 
 mined, having in mind, together with the other evidence 
 bearing thereon, the uses made of such machinery in the 
 company's traffic, and giving due consideration to the exi- 
 gencies thereof, and the natural manner in which such ordinarv 
 care could be reasonably exercised, considering the surround- 
 ing situation and the reasonable performance by the company 
 of its duties to the public as a common carrier, and its other 
 operations in carrying on its railway and business. 
 
 George F. Robinson, Judge, in The P. & L. E. R. R. Co. v. Johnston's 
 Admr., S. C. 4351. Affirmed by C. C. and Supreme Courts. 
 
 No. 468. Collision resulting from negligence of train dis- 
 patcher. — The plaintiff must produce a preponderance of the 
 proof that the defendant was negligent, which proximately 
 caused the injury. The question of proximate cause is one 
 of fact submitted to you to be determined by you in view 
 of all the facts and circumstances surrounding the parties at 
 the time. The term proximate cause is used in contradis- 
 tinction to the term remote cause. For a remote cause the 
 defendant would not be liable, even though negligent. It 
 must be the proximate cause of the injury, and that proxi- 
 mate cause would be the one directly producing the injury. 
 The injury must be the natural and probable consequence of 
 the negligence. Such a consequence as, under all the circum- 
 stances of the case, might and ought to have been foreseen by 
 the defendant as likely to follow from its act. And in this 
 case if, from your investigation, you should find that the train 
 dispatcher in sending orders acted negligently, then the 
 question arises for you to determine: Was this negligence 
 on the part of the train dispatcher the proximate cause- of the 
 injure? In determining that, you should ascertain whether 
 or not the injury of which the plaintiff complains was the 
 natural and probabli quence of the negligence of the 
 
 train dispatcher, if you find he was negligent, and whether 
 or not, under all the circumstances, the train dispatcher mightj 
 and ought to have foreseen the consequences which followed 
 his negligent act. 
 
 The negligence of the operatoi standing alone would not 
 entitle the plaintiff to a recovery, for the reason that it would 
 be in law the negligence of a fellow-servant. But if you find 
 
 that this negligence on the part of the operator was induced 
 
 and caused and broughl about by the negligena of the- train
 
 350 NEGLIGENCE — RAILROADS — EMPLOYEES. 
 
 dispatcher, and was the natural, immediate, and necessary 
 consequence of negligence on the part of the train dispatcher, 
 then the fact that the operator was negligent in the discharge 
 of his duty for this reason, would not prevent a recovery, if 
 you find the train dispatcher to have been negligent, and that 
 his negligence was the proximate cause of the injury. But 
 if you find that the negligence of the train dispatcher was 
 the proximate cause of the injury, and that operating with the 
 negligence of the operator, the two together caused the injury, 
 the negligence of the operator contributing merely to produce 
 the effect which was the direct result of the original negli- 
 gence on the part of the train dispatcher, this negligence on 
 the part of the operator thus operating in connection with the 
 negligence of the train dispatcher, or if it was actually induced 
 and brought about by his negligence, would not prevent a 
 recovery, if, upon the other matters, you find in favor of the 
 plaintiff. 
 
 Johnston, Judge, in Flenuer v. P. & W. R. R. Co. 
 
 No. 469. Injury to person under railroad car making 
 repairs. — The defendant claims that it was a rule of railroad 
 companies known to the plaintiff, when a person was repairing 
 a car, to put out and place upon each end of the car blue flags 
 to advise and warn railroadmen working in and about said 
 yard that some person was at work under or about the car 
 making repairs thereon. It is then a question of fact for you 
 to determine, in the light of all the evidence which has been 
 given you, whether the defendant company was negligent and 
 careless in the running of the cars which it, by its servants 
 and employees, was attempting to move, or whether the de- 
 fendant, by its agents and servants, in moving the cars used 
 such care and prudence as men of ordinary care and prudence 
 are accustomed to use under the same or similar circum- 
 stances. "The solution of this question depends upon the 
 peculiar facts and circumstances of this case, the state and 
 condition of the parties, and the manner in which, and 
 the circumstances under which, the injury was received or 
 inflicted. In short, all the circumstances surrounding the 
 transaction which in any way reflect either upon the degree 
 of care or the manner in which, in this particular case, it 
 should have been exercised. " You will consider the testimony 
 relating to the conduct of the man in charge, and who man- 
 aged and controlled the cars of the defendant. Did they, in 
 view of all the circumstances of this case, exercise due and 
 ordinary care in running and managing the cars, or did they 
 omit to exercise it? When the engineer and brakeman of the
 
 NEGLIGENCE — RAILROADS — BLOCKING FROGS. 351 
 
 defendant company, running the ears back over the track, 
 did they exercise such care and caution in doing it as men of 
 ordinary prudence and caution would exercise under like or 
 similar circumstances? If they did, then the defendant was 
 not guilty of negligence in so doing ; if they did not, then the 
 defendant was guilty of negligence. . . . 
 
 As matter of law the conductor of the railroad train would 
 have no right to suspend the operation of a rule by dispensing 
 with the placing of flags upon the car being repaired by the 
 plaintiff. If you find from the evidence that the rules of said 
 railroad companies require a blue flag to be placed upon each 
 end of the car which was being repaired, and that the plaintiff 
 neglected to place such flag upon the car upon which he was 
 at work at the time of his injury, and that by reason of his 
 failure and neglect to place said blue flags upon said car his 
 injuries were caused, he can not recover in this case. In 
 other words, if you find that the rules of the railroad com- 
 panies required the placing of a blue flag upon the ends of the 
 car being repaired, and that the plaintiff had knowledge of 
 such rules and failed and neglected to place the flags upon 
 the car, and you further find that if he had placed the flags 
 upon the ends of the car, the brakeman upon said cars which 
 were moving back toward him would have seen the flag and 
 have prevented the injury to the plaintiff, then the plaintiff 
 could not recover. 
 
 If you find that the plaintiff was negligent in not placing 
 flags upon the end of the car which he was repairing, and 
 that such negligence contributed to his own injury, he can 
 not recover in this action. 
 
 Nye, Judge, in Johnson v. C. L. & \V. Ry. Co., Lorain County Common 
 Pleas. 
 
 (6) Railroads— Duty to Block Frogs. 
 
 No. 470. Failure of railroad company to block a frog is 
 negligence. — As bearing on these questions, it is admitted in 
 the pleadings, and not controverted in the trial, that the frog 
 of the switch at which the injury occurred was not blocked. 
 It is my duty to charge you, as a matter of law, that the 
 failure on the p i tilroad company to block a frog is, 
 
 in itself, negligence, and such failure being admitted in the 
 case by the defendant, you will be authorized to determine 
 at once the first of the questions to which I have just referred 
 in the affirmative, and decide that the defendant was guilty
 
 352 NEGLIGENCE — RAILROADS — BLOCKING FROGS. 
 
 of negligence, and other facts appearing and existing, the 
 plaintiff would be entitled to recover. 
 
 W. T. Mooney, Judge, in C. & E. R. R. Co. v. Purviance. R. S., Sees. 
 8516-31, requires railroads to adjust, fill or block the frogs, switches, etc., 
 so as to prevent the feet of its employees from being caught therein. 
 Neglect to comply with statutory duty is negligence per se. Wood on 
 Railways, Sec. 397. 
 
 No. 471. Omission to adjust, fill or block switch. — 
 
 Your attention is called to the statute on that subject. It has 
 been enacted by the legislature of Ohio, and such was the 
 law at the time this injury occurred, that "Every railroad 
 corporation operating a railroad or part of a railroad in this 
 state shall, before the first day of October in the year 1888, 
 adjust, fill, or block the frogs, switches, and guard-rails on 
 its tracks, with the exception of guard-rails on bridges, so as 
 to prevent the feet of its employees from being caught there- 
 in, and the work shall be done to the satisfaction of the rail- 
 road commissioner." l 
 
 Now then, taking into account the law, that goes to the 
 jury as a part of the evidence, for them to consider whether 
 or not it was negligence on the part of the defendant in leav- 
 ing any frog, switch, or guard-rail unblocked ; and you may 
 consider, or first I should say to you, perhaps, that it is for 
 the jury to judge of the credibility of the witnesses, the 
 credibility of the testimony, the confidence that they should 
 place in the statements of the witnesses. 
 
 Now, going back to this matter of the obligation of the 
 company to block these switches, frogs, and guard-rails, it 
 is alleged by the plaintiff that the defendant carelessly omitted 
 to adjust, fill, or block this switch where the plaintiff caught 
 his foot. A great deal of evidence was submitted to you as 
 to the practicability of doing that. And you are to take that 
 into account and say whether it is practicable, whether it 
 would obviate the danger or diminish the danger of being 
 caught there at that place where the plaintiff claims he was 
 caught, or where his foot was caught. Consider whether it 
 would interfere with the operation of the road, and the opera- 
 tion of the cars over these tracks, seriously ; and determine 
 that question, whether it is practicable, on the whole, to 
 block that place, whether the omission to block it was negli- 
 gence on the part of the company, taking into account all the 
 evidence on that subject, taking the opinions of the witnesses 
 as to how the tracks are to be used there, their statements on 
 that subject, what would be the openings there with a block 
 
 ■R. S.,Secs. 8516-31.
 
 NEGLIGENCE — RAILROADS — BLOCKING FROGS. 353 
 
 in there, when the switch was turned, and whether that 
 aperture or opening between the rail and the block when the 
 switch is open, whether that would leave the same danger 
 that would exist without the blocking, whether, with that 
 block there, it would prevent the split of the rail from being 
 close to the stationary or bent rail, as they call it, so as to 
 produce the danger of derailing the cars that go across there. 
 Take all those matters into account, and say whether, fairly 
 and reasonably, there ought to have been a block there; and 
 then say whether you find it established by a preponderance 
 of the evidence that the defendant was negligent in not block- 
 ing it there. And if you find that that is made out by the 
 evidence, why, then you may take that as established, and 
 that will be one step towards a verdict for the plaintiff. If 
 that is not made out, if you find that it is not practicable, if 
 vou find that the defendant was not negligent in failing: to 
 block that place there, why, then that is the end of your 
 inquiry, and your verdict must be for the defendant, because 
 that is the negligence charged in the petition. But if you 
 find that is established, as 1 have said, then go further and 
 ascertain whether it is made out that the plaintiff was caught 
 in that way. 
 
 I should say to you that the law on this subject, requiring 
 these frogs, switches, and guard-rails to be blocked, is to be 
 taken into account as the requirements of the legislature on 
 that subject, and in view of all the facts and situation as to 
 whether that was negligence in failing to block that place. 
 Although the law might require it, still it does not follow, as 
 a matter of course, that, because the law requires it, the de- 
 fendant was negligent in not complying with it; but that 
 may be taken into account on this subject, and it is for you, 
 on all the facts in evidence and tin- situation there, to say 
 whether the failure of the defendant to put a block there was 
 negligence. Is that made out? Then consider whether the 
 plaintiff was caught there as In- says, whether that is made 
 
 out — for he has to make that Out — consider whether his own 
 negligence contributed in any way to his injury in performing 
 
 his work there, going in between the ears as he did, if he 
 went in between them, his acts there. Look it all over, 
 
 consider everythii 
 
 The following requests wt > e gi\ en by tlic court: 
 
 If \\\, when he went in to uncouple the car at and in the 
 
 vicinitv of the switch in question, knew, or, by the exercise 
 
 Gilbert Harmon, Judge, in The i. s \- M. S. Ry, v. Win slow, Su- 
 preme Court, No. 4357. Settled and dismissed in Supreme Court, bul i I 
 affirmed by Cir< uit Court.
 
 354 NEGLIGENCE RAILROADS — BLOCKING FROGS. 
 
 of ordinary observation or reasonable skill and diligence in 
 his department of service, he might have known that he was 
 going to-be exposed to the danger and risk of having his foot 
 caught in the movable rail of said switch, and, notwithstand- 
 ing such knowledge or means of knowledge, he stepped in to 
 uncouple the said cars, he assumed the risks of being so in- 
 jured, and waived all damages and injury that should thereby 
 result to him. 
 
 If the plaintiff, after having a reasonable opportunity of j 
 becoming acquainted with the risks and perils of his service, 
 accepts them, he can not complain if he is subsequently in- 
 jured by such exposure. 
 
 The company did not guarantee to the plaintiff the abso- 
 lute safety and sufficiency of its machinery or appliances, but 
 was bound to exercise only ordinary and reasonable care; 
 that is, such a degree of care and prudence as ordinarily 
 prudent persons or corporations engaged in like business 
 exercise under similar circumstances. The railroad company 
 was not bound to use extraordinary care, nor was it required 
 to do what was impracticable or unreasonable. 
 
 If the jury find from the evidence in this case that it was 
 impracticable to so adjust, block, or fill the movable rails of 
 this switch at the place where the injury happened, then it 
 was not negligence on its part in omitting so to adjust, block, 
 or fill the movable rails of said switch. 
 
 If the defendant company adopted such methods as were 
 reasonable and practicable for the safe running of its trains, 
 as well as to guard against injury to its employees, at the 
 place where this injury happened, then it used and exercised 
 ordinary and reasonable care, and can not be held liable for 
 any injury happening to said plaintiff at said switch, even 
 though his foot was caught therein. 
 
 The omission of the railroad company to comply with the 
 provisions of the statute requiring frogs and switches to be 
 blocked is not, in and of itself, conclusive proof of negligence 
 that will render a railroad company liable for an injury re- 
 sulting from such omission, but such omission may be and 
 should be considered by the jury in connection with all the 
 other facts and circumstances of the case. 
 
 If the jury find that the plaintiff knew how these movable 
 rails were constructed and operated, or, by the exercise of 
 reasonable care and prudence on his part in the performance 
 of his service, should have known thereof, and that the com- 
 pany insisted upon maintaining such condition and construc- 
 tion, and thereafter continued to and did remain in the service 
 of the defendant, then he took upon himself and assumed all 
 the usual risks and perils incident thereto. 3
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 355 
 
 3 Given by request by Harmon, Judge in The L. S. & M. S. Ry. v. Wins- 
 low. Under the Ohio law the U S. Circuit Court held that where two rail- 
 way companies receive cars from each other over a deliver}- track at a 
 certain point, a person employed by one of them to take the number of 
 its cars and inspect their seals, as trains are made up at such place by the 
 other, is an employee of the latter. Alkyn v. Wabash Ry. Co., 41 Fed. 193. 
 
 (7) Injuries at Railroad Crossings. 
 
 No. 472. Relative rights of railroad company and public 
 to use railroad crossing. — The right of the railroad company 
 to enjoy the use of its railroad at the crossing of the public 
 highway, and the right of the traveling public to use the 
 highway, are co-ordinate and equal ; reasonable care and pru- 
 dence must be exercised by each in the use of the same ; 
 each must so use his own right to cross that he shall not 
 unreasonably interfere with the rights of others to pass over, 
 having in view the nature and necessities of the method of 
 locomotion, and power of control over the locomotion peculiar 
 to each, so that, while the operators of the railroad are to use 
 care, considering the nature of their machinery, the speed 
 with which it is necessary to run a train, the effect of a 
 collision by the train with an object on the crossing, and all 
 other elements of danger entering into it, if there are any, 
 that, under the circumstances, a man of ordinary prudence 
 would exercise; so is he who travels upon the highway to 
 use ordinary care. 
 
 Considering the means by which he is traveling, it will 
 be observed that the man on foot, or traveling with a horse 
 and buggy, can much easier control his movements than can 
 the servants of the railway control the movements of the 
 train, so the rule is that each one, with reference to their par- 
 ticular mode of traveling, that they should exercise the care 
 that men of ordinary care and prudence would use under the 
 same or similar circumstances. The defendant had the right 
 to run the train at the time and place of this collision at any 
 speed consistent with the safety which was necessary in the 
 conduct of its business in the usual and ordinary manner, 
 taking into consideration, however, all the circumstances 
 surrounding that crossing affecting the traveling public and 
 having a due regard for the safety of the public using the 
 mg. 
 
 Gillmer, Judge, in Flemming v. Penn. Co., Trumbull County Common 
 
 Pica-,. 
 
 If one approaching ing fails t-> look oul for approaching 
 
 trains, he i~ prima facie guilty of n< \ 28 O.
 
 356 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 
 
 No. 473. Same continued — Both must use faculties to 
 discover danger. — Plaintiff and defendant in this case had 
 co-ordinate and equal right to the use of crossing of the high- 
 way and the railroad, and they were each held to the exercise 
 of reasonable care and prudence in the use of the crossing, so 
 as not to interfere unnecessarily with the other. Such reason- 
 able prudence would require both plaintiff and defendant's 
 employees, if in the full enjoyment of their faculties of seeing 
 and hearing, before attempting to pass over a known railroad 
 crossing, to make use of such faculties for the purpose of 
 discovering and avoiding danger, and the failure to do so 
 without reasonable excuse is negligence. 
 
 J. H. Day, Judge, in L. E. & W. R. R. Co. v. Stadler, Supreme Court, 
 unreported, No. 2870. 
 
 No. 474. Duty (of deceased) to use senses upon ap- 
 proaching railroad crossing — Another form. — "The deceased 
 was bound to use the same care in protecting himself that the 
 defendant company was bound to use in seeing that no person 
 came to injury by the management of its cars and engines. 
 That is, he was bound to use such care and prudence as a 
 reasonable, prudent man would use in protecting himself 
 against any injury. It was his duty to use his senses, in 
 approaching the railway track, to discover whether or not 
 there was an approaching train or locomotive which might 
 injure him, to make such reasonable use of his eyes and other 
 senses as a reasonable and prudent man would make, and if, 
 by the use of them, he could have avoided the danger, then 
 he can not recover from the company. But if he exercised 
 such care as a reasonable and prudent man would exercise, 
 and if the defendant was guilty of neglect in the running of 
 the engine, and the deceased was killed by reason of that, then 
 the company is responsible." 
 
 From Railway Company v. Schneider, 45 O. S. 678. " It was the duty 
 of the deceased in approaching the railroad crossing, to look for the loco- 
 motive before attempting to cross ; and if his failure contributed to the 
 accident, the plaintiff can not recover, even though the defendant's negli- 
 gence contributed to the injury." 
 
 " Even though the fireman and engineer were guilty of neglect con- 
 tributing to the injury, yet that did not absolve the deceased from exer- 
 cising the precaution of looking and listening for the approach of trains 
 at such point on the street as would enable him to discover the approach- 
 ing train or locomotive; or from approaching the crossing at such gait as 
 would enable him to control his horses promptly." From Railroad Co. v. 
 Schneider, 45 O. S. 678. 
 
 No. 475. Injury caused by backing train onto vehicle at 
 crossing. — You must find that the backing of the train onto 
 the wagon, resulting in the injury, was done by the servants
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 357 
 
 of the defendant railway under such circumstances as evi- 
 dences want of ordinary care on the part of such servants, 
 showing negligence on their part. If the backing was acci- 
 dental and without volition on the part of the agents or serv- 
 ants of the defendant, then it would not be chargeable with 
 the negligence or liable for an injury resulting therefrom. 
 To make the defendant company liable for the injury in this 
 case it is imperative that it be made to appear by evidence 
 that the agents of defendant in charge of the train negligently 
 backed the train and produced the> injury sought to be re- 
 covered for by the plaintiff in this action. 
 
 If the train of defendant w ? as standing still, with its rear 
 end occupying a part of the public crossing only, there 
 remaining space sufficient for the passing and repassing of 
 teams, it would be the duty of the servants and agents of 
 defendant, before backing or running said train farther onto 
 or across such crossing, to first make use of their faculties of 
 seeing and hearing to ascertain if there was danger of injuring 
 someone, to learn if the crossing was occupied or not, and to 
 be careful so as not to unnecessarily inflict any injury. And 
 if the agents and employees omitted to use their faculties, 
 but instead, without warning or signal, suddenly backed their 
 train onto the said crossing and injured plaintiff, the said 
 employees and agents would be guilty of negligence, so as to 
 make the defendant company liable for any resulting injury. 
 
 J. H. Day, Judge, in L. E. & W. R. R. Co. v. Stadler, Supreme Court, 
 unreported, No. 2870 (14, 708). 
 See ante, No. 465. 
 
 No. 476. Omission to ring bell and sound whistle. — 
 The law requires that every railroad company shall have 
 attached to each locomotive engine passing upon its road a 
 bell of the ordinary size in use- on such engines and a steam 
 whistle; and the engineer or person in charge of the engine 
 in motion, and approaching a public highway or town-road 
 crossing, upon the same level therewith, shall sound such 
 whistle at a distance of al least eighty, and not further than 
 one hundred, rods from the place of such crossing, and ring 
 such bell continuously until the engine passes such road 
 
 ;ingj and such company employing such enginei 
 person in charge of the engine shall be liable in damages to 
 any person injured, in person or property, by such neglect or 
 act of such engineer or person. 1 
 
 In regard to that statute the jury art- instructed that the 
 omission to ring the bell or sound the whistle at public cross- 
 
 ■ R. S., Sec. 3336.
 
 35§ NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 
 
 ings is not sufficient grounds to authorize a recovery, if the 
 person injured, notwithstanding such omission, might, by the 
 exercise of ordinary care, have avoided the accident ; but if 
 the person injured by reason of such omission to ring the 
 bell or sound the whistle could not, by the exercise of ordi- 
 nary care, have avoided the accident, he would be entitled to 
 recover damages under that statute because of such omission. 
 
 Therefore, if the jury find from the evidence that plain- 
 tiff's intestate was injured by the negligent omission to ring 
 the bell or sound the whistle upon defendant's locomotive, 
 and that, by the exercise of ordinary care, he could not have 
 avoided the injury, then plaintiff will be entitled to recover 
 damages because of such negligence and injury inflicted 
 thereby. 
 
 If the jury believe from the evidence that the engineer 
 sounded the whistle from a point more than one hundred rods 
 to a point nearer than eighty rods from the crossing where 
 the accident occurred, such sounding of the whistle was a 
 substantial compliance with the requirements of the law in 
 that behalf. 2 
 
 2 F. Douthitt, Judge, in P. C. C. & St. L. Ry. v. Adams, S. C. 3671. Judg- 
 ments affirmed. Harrison County. The failure to give signals must have 
 been the proximate cause of the accident before recovery can be had. 
 Penu. Co. v. Rathgeb, 32 O. S. 72. 
 
 No. 477. Same continued — Duty of the injured to use 
 his faculties — Must look and listen. — The same duty was 
 upon him in approaching a known railroad crossing as upon 
 defendant, and he must use his faculties of seeing and hearing 
 to detect and avoid danger. He must look and listen to 
 ascertain if there is danger, and to avoid it. If he fails to do 
 this, he is not in the exercise of ordinary care, but is negli- 
 gent. I may say if plaintiff looked and listened in this case, 
 and saw the train standing still, with no evidence of activity 
 or intention to move back, and no signal was discovered or 
 ,heard of an intention to move back, he would be at liberty 
 to drive onto and across the railroad, and would not be sub- 
 ject to the charge of negligence. If, however, he omitted 
 these things, and without exercising ordinary care, and with- 
 out care, drove onto the crossing in the presence of a moving 
 train, or a train that had signaled and given notice of its 
 purpose to move across the crossing, in such case the plaintiff 
 may not recover. 
 
 J. H. Day, Judge, in L. E. & W. R. R. Co. v. Stadler, Supreme Court, 
 unreported, No. 2870 (14, 708). 
 See ante, Sec. 465.
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 359 
 
 No. 478. Duty of person in vehicle approaching railroad 
 crossing — "Look and listen." — it is a duty of a person 
 approaching a known railroad crossing to look and listen for 
 an approaching train and to make use of his senses to ascer- 
 tain if there is a train in the vicinity, and if, being in full 
 possession of his faculties, he fails to take such precautions 
 without reasonable excuse therefor, when a prudent man, 
 exercising his senses, would have discovered a train in close 
 proximity, and such failure contributes to produce injury, he 
 is guilty of negligence, and there can be no recovery. 1 It is 
 the duty also of the defendant company by proper signals, 
 and in a manner that would ordinarily communicate to the 
 plaintiff approaching the crossing, that the defendant's train 
 was approaching the crossing, but that its notice must be 
 given so that the plaintiff could protect himself from injury. 
 
 If you find from the evidence that there was a place on 
 
 the east side of Street where the train could be seen as 
 
 it approached the crossing, and further find that the train 
 could have been seen by the plaintiff from that space as he 
 passed, and he failed to look, without a reasonable excuse 
 therefor, he was guilty of negligence, and if such negligence 
 contributed to produce the injury, then he could not recover. 
 
 It is because railroad crossings are dangerous that it is the 
 duty of persons approaching them, and about to cross, to be 
 careful. Any circumstances or obstruction which increases 
 the danger of crossing increases the duty of vigilance to avoid 
 the injury. 
 
 (a) Must use senses, etc. 
 
 It is the duty of a person approaching the crossing in a 
 buggy to assure himself, if he can by the use of his senses of 
 sight and hearing, that no cars are in dangerous proximity, 
 or, if necessary in the exercise <>i ordinary care to make such 
 observations, he would be required t<> reduce the rate of speed, 
 or even to stop his conveyance so as to ascertain whether or 
 not he could cross the track in safety; but in this case the 
 law does not require a vain thing, and if there were buildings 
 and obstructions which would have prevented the plaintiff 
 from seeing the approaching train if he had turned his eyes 
 in that direction, that he was not bound to look at such point, 
 and failure to do so would not be negligenci . 
 
 'C C. C. & I. Ry. v. Elliott Railway v.Geiger,8 O. C.C.41. 
 
 Gillmer, Judge, in Flemming \ Pa Co., Trumbull County Common 
 I 
 
 Where buildings ami obstructions obstruct view, for degree "I 1 
 in, see Wood on Railroads, Si Dimmick v. Chii 1: R Co., 
 
 80 111.
 
 360 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 
 
 No. 479. Negligence — Sounding whistle and ringing bell 
 at crossing. — If you find that the whistle of the locomotive 
 was sounded and the bell rung at such time and place, and 
 under such circumstances, as would notify persons in the 
 vicinity of the crossing of the approach of the train, and you 
 further find that, after the plaintiff was known to be in the 
 place of danger, all reasonable and proper efforts were made 
 to prevent injuring him, then the defendant would not be 
 guilty of negligence in this regard. 
 
 Gillmer, Judge, in Flemming v. Pa. Co., Trumbull County Common 
 Pleas; R. S. Sl-cs. 3336, 3337. 
 
 No. 480. Negligence of railroad company in failing to 
 station flagmen at street crossing. — If you find from the evi- 
 dence that the railroad company, by reason of the speed it ran 
 
 its trains across Street, its number of tracks, or having 
 
 cars standing on the tracks near said crossing, or the existence 
 of buildings or other structures at or near said crossing, 
 
 rendering the use of Street dangerous to the public, you 
 
 are instructed that the company was under obligation to em- 
 ploy reasonable care and prudence in providing safeguards 
 for the protection of persons lawfully passing along said street 
 and over said railroad tracks, and commensurate with the 
 dangers of the locality so created by the company, to persons 
 exercising their rights to pass over and along said highway 
 in a reasonable manner. It is left for you to say from the 
 evidence, under all the circumstances, whether a flagman 
 ought to have been employed by the company, and whether 
 it would be negligence on the part of the defendants not to 
 have done so at the time of the injury; and if the defendant 
 was guilty of negligence in these respects, and the decedent 
 was not in fault, and sustained said injury therefrom, the 
 plaintiff would be entitled to compensation therefor, if in 
 other respects, you find that he is entitled to recover under 
 the instructions given you. 
 
 If the decedent knew that a flagman was employed by the 
 company at the crossing, and had good reason to believe, and 
 in good faith believed, that one was so employed at the time 
 of the injury, and you further find that it was the duty of the 
 company so to employ a flagman, the decedent might presume, 
 in the absence of knowledge to the contrary, that he was 
 properly discharging his duties, and it was not negligence on 
 her part to act on the presumption that she was not exposed 
 to danger, which could arise only from the disregard by the 
 flagman of his duty; 1 and if the flagman was then absent 
 
 ■ Schneider case, 45 O. S. 678.
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 361 
 
 from his place of duty, or was not giving any signal or warn- 
 ing when she attempted to pass over the crossing, she might 
 presume that no train was approaching which would make it 
 dangerous for her to attempt to pass over the crossing, in the 
 absence of other knowledge to the contrarv.- 
 
 -Voris, Judge, in Gaston, adinr.. v. Lake Shore R. R. Co., Lorain 
 County Common Pleas. 
 
 Flagman and Gate wen. —In the absence of statute, the omission to 
 maintain flagman may be considered as part of res gestae-mth other 
 as bearing upon prudence or negligence of company. ;s N. Y. 518; 66 
 Mich. 150; 74 Wis. 240; 74 Wis. 514; 101 Mass. 201; Beach Contrib. Neg., 
 p. 247; Patterson Ry. Ace. Law, 163. At an exceptionally dangerous cross- 
 ing, a company is bound to exercise care proportioned to the increased 
 danger, and should maintain flagman, gates or gatemen. Rv. Co. v. 
 Schneider, 45 O. S. 678. A traveler approaching the crossing may pre- 
 sume that the gatemen will properly do their duty. Id. There is 110 rule 
 of law requiring a railroad company to erect gates, or keep flagman at 
 crossings outside of a city or village. L. S. & M. S. Rv. v. Gaffhev, 2 Oh. 
 Dec. 212 (C. C. 
 
 If a railroad company voluntarily establishes a gate at a crossing, 
 there is an implied assurance that the tracks may be safely crossed if the 
 gates are open. Jaggard on Torts, S81. 
 
 No. 481. Duty of railroad company and traveler at cross- 
 ing — Unobstructed and obstructed view — Reliance upon sig- 
 nals or flagmen. — Judge Wright of Hamilton County Com- 
 mon Pleas, in Frederika Leisor v. C. H. & D. R. R. Co., 
 with reference to the duty of the railroad company and of the 
 person approaching the crossing, thus charged the jury. 
 
 "The common precaution is to look both ways and listen. 
 Perhaps where the view of the track is unobstructed and 
 sufficiently wide, it satisfies the rule simply to look, otherwise 
 the common law is that one should also listen. Where the 
 view is obstructed, the caution must consist mainly in listen- 
 in-, it may be a duty to produce quiet by stopping. If the 
 railroad company employ a flagman, gate or other device to 
 warn people of approaching danger, a traveler is not negli- 
 gent who, instead of looking and listening, follows the signals, 
 unless lie reasonably knew aside from the signals that danger 
 was actually imminent. But, on the other hand, a traveler 
 who relies upon the signals rather than upon his own facul- 
 ties is negligent if he disregarded the signals. 
 
 "'The matter may be summarized thus: A railroad track 
 
 immonly a place of danger. I le who undertakes toci 
 to be free from negligence, must take- such precaution to 
 
 ■tain the imminence of dangei as an ordinarily pru- 
 dent man would take under like circumstances. And if you 
 believe from the evidence that the driver might, by the i 
 cise of ordinary care and caution, have become aware of the 
 danger and have avoided it, that he omitted to exercise such
 
 362 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 
 
 care and caution, and that his omission to do so directly con- 
 tributed to the injury, then he was guilty of negligence. 
 See R. R. Co. v. Schneider, 45 O. S. 67S. 
 
 No. 482. Injury to foot traveler crossing track. — If a 
 
 passing train on another track, or escaping steam, or any 
 other temporary cause obstructed or obscured her view or 
 hearing, then the court says to you that it was her duty, 
 'before attempting to cross, to wait until such temporary cause 
 had passed away, and if she attempted to cross without thus 
 waiting, she did so at her own risk, and if injured while thus 
 crossing, she can not recover, if you find that, by waiting 
 until such temporary cause had passed away, she could have 
 crossed in safety. 
 
 The necessity or importance of her being at the factory 
 immediately or promptly would be no excuse for her not 
 waiting until she could cross in safety, or justify her in taking 
 any risks ; neither would absent-mindedness, thoughtlessness, 
 forgetfulness, or inattention. 
 
 If you find that plaintiff failed to look east for the train, 
 that is not merely evidence of negligence from which you 
 may or may not infer it, but it is, in and of itself, such negli- 
 gence as prevents her from recovering, if, by thus looking, 
 she could have seen the approaching train in time to have 
 avoided the injury. And it was equally her duty to listen as 
 well as look, and to do both attentively and carefully until 
 across the track. And it is the duty of every person of mature 
 years and sound mind, about to cross a railroad track, not 
 only to look and listen, but to exercise all their other senses 
 and means of knowing to ascertain if a train is approaching, 
 and if they fail to do so without a reasonable excuse therefor, 
 and are thereby injured while crossing, they can not recover. 
 
 If an adult person in full possession of her faculties goes 
 upon a railroad track and voluntarily stops or stands thereon, 
 not being an employee of the railroad company, and omits to 
 watch for the approaching trains, she is, prima facie, guilty 
 of such negligence as will prevent her recovering for injuries 
 while so on the track; and before she can recover, she must 
 f show that it was not reasonably practicable to keep such look- 
 out, or that which would ordinarily induce a person of com- 
 mon prudence and circumspection to omit such precaution. 
 
 If the plaintiff failed to look and listen, she was guilty of 
 such negligence as will prevent her recovering, if, by proper 
 and prudent looking and listening, she could have ascertained 
 and avoided the injury , and also, if she looked and listened 
 and did not see or hear the train when, by the exercise of
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 363 
 
 ordinary care and attention, she might have done so and es- 
 caped injury, then in law she looked and listened carelessly 
 and negligently, and is equally culpable, and in either case 
 she was guilty of such negligence as will prevent her recover- 
 ing a verdict, if you find that her negligence or failure afore- 
 said contributed to her injury, in whole or in part, unless you 
 find that it was prudent and proper for her, under the cir- 
 cumstances, to omit looking and listening before going on 
 the track, and also while standing upon it, if she did. 
 
 Gillmer, Judge, in Huron v. N. Y. L. E. & W. R. R. Co., Portage County 
 Common Pleas. 
 
 See ante, No. 460. 
 
 No. 483. Duty as to sounding whistle at crossing and 
 carrying headlights. — By the statute of Ohio it is made the 
 duty of an engineer in charge of a locomotive, when approach- 
 ing any road-crossing, to sound the engine whistle a distance 
 of not more than one hundred rods, or less than eighty, from 
 said crossing, or to ring the engine bell continuously from 
 said place until the engine and cars pass such road-crossing ; 
 and a person passing over such road-crossing has a right to 
 presume that the engineer will act in accordance with the 
 statute. A railroad company, however, owes no duty to the 
 general public, who are not its passengers or employees, to 
 carry a headlight on any of its trains, and no law requires it 
 to do so. 
 
 Absence of a headlight, failure to ring the bell or blow 
 the whistle did not excuse or relieve the plaintiff from exer- 
 cising due care and caution in looking and listening for the 
 train ; she was bound to exercise such care and caution, not- 
 withstanding the railroad company may have neglected these 
 things. 
 
 Rev. Stat., Sec. 3356. 
 
 No. 483^. Injury to child climbing over railroad train 
 stopping on crossing in violation of statute — What is negli- 
 gence under such circumstances. — It" you find, as a fact, from 
 the evidence in the case, that the train in question did nol 
 occupy the street-crossing For a period of more than five (5) 
 ecutive minutes, or if you should find that such train did 
 occupy said 1 rossing for more than five (5) minutes, but not 
 unnecessarily, then the fact of the train occupying said cross- 
 ing is an immaterial mattei in this case, and it is not to be 
 further considered by you. If, however, the plaintiff, by a 
 preponderance of the evidence, has proven that said train did 
 occupy said street -crossing foi a period of more than five (5) 
 
 24
 
 364 NEGLIGENCE RAILROAD CROSSINGS — INJURIES. 
 
 consecutive minutes immediately preceding the injury occur- 
 ring to the plaintiff, and that said occupancy was not neces- 
 sary, then the fact of such unnecessary occupancy may be 
 considered by you, together with any other proper facts and 
 circumstances that may be in evidence in the case, as bearing 
 upon the negligence of the defendant. If such train did so 
 unnecessarily occupy said crossing for more than five (5) con- 
 secutive minutes, there was not, on that account and as a 
 matter of law, any obligation upon defendant's servants to 
 sound a whistle, ring a bell, or do any other specific act before 
 starting said train in motion either backwards or forwards ; 
 but under such circumstances, defendant's servants would be 
 bound to do anything, and to leave undone nothing that an 
 ordinarily prudent man, under all the circumstances, would 
 have done. Any precaution that an ordinarily prudent man 
 would have taken under the circumstances, and any warning 
 he would have given, the defendant was bound to give ; and 
 if the ordinarily prudent man would have taken no precaution, 
 or would have given no warning, the defendant was then 
 bound to take no precaution, or to give no warning. 
 
 The law did not, at the time of the injury complained of, 
 require the defendant company to prevent persons or boys 
 from going upon or between the cars of its train while the 
 same was at rest over the street crossing in question, and so 
 a failure upon the part of the defendant to warn or prevent 
 plaintiff from so attempting was not an act of negligence upon 
 the part of the defendant that would entail liability upon the 
 defendant, unless you find that the defendant or its employees 
 had knowledge that plaintiff was upon or between its cars, or 
 unless you find that an ordinarily prudent man, under the 
 circumstances, would by some precaution have known that 
 the plaintiff was upon or between its cars. 
 
 If you should conclude from the testimony in the case 
 that the defendant or its employees were not guilty of any 
 negligence, then your inquiry may cease, for in such case 
 your verdict should be for the defendant, no cause of action. 
 
 If you find that the defendant or its employees were guilty 
 of negligence, you will then determine from the evidence 
 whether or not the negligence caused the injury complained 
 of. And if you find that the defendant was negligent, still 
 the plaintiff shows no right to recover unless it should be 
 proven that the negligent act caused the injury to the plain- 
 tiff, and that the plaintiff was free from contributory negli- 
 gence, as I shall hereafter charge you. 
 
 W. T. Mooney, Judge, iu L. E. & W. Ry. Co. v. Mackey. Approved in 
 53 O. S. 370.
 
 NEGLIGENCE — RAILROAD CROSSINGS — INJURIES. 365 
 
 No. 483/;. Same continued — Whether child climbing over 
 train guilty of contributory negligence. — If you should find 
 that the defendant was negligent, and that such negligence 
 caused the injury, you will go on and determine this further 
 question: ''Was the plaintiff, at the time of the injury com- 
 plained of, himself in the exercise of ordinary care, or did his 
 own negligent act contribute to his own injury?" This 
 question becomes important from the fact that if it should be 
 your conclusion from the testimony in the case that the plain- 
 tiff was injured as the result of the want of due care of both 
 the plaintiff and defendant, then the plaintiff could not re- 
 cover. The plaintiff, to recover, must be free from all negli- 
 gence on his part. 
 
 The plaintiff here was, at the time of the injury, an infant 
 of the age of nine (9) years and two (2) months. While a 
 child of that age is not bound to take all the precaution and 
 exercise all the care that an adult would be required to take 
 and exercise, yet this plaintiff was required to use all care 
 that an ordinary prudent boy of his age and capacity would 
 have exercised. And if you should find from the testimony 
 that plaintiff, by reason of his educational advantages and 
 experience, was of more than ordinary capacitv, then it is his 
 capacity, as you find it to exist, that must measure his duty 
 to detect and avoid danger. 
 
 Hence, if you should find from the testimony that the plain- 
 tiff knew that it was dangerous to go between the freight-cars 
 at the time in question, or if you should find that an ordinary 
 prudent boy of his age and capacity would not have gone 
 between the cars, under the circumstances as you shall find 
 them, then the plaintiff was guilty of negligence and can not 
 iver. It is not necessary that plaintiff should have appre- 
 hended the injury that did occur; all that is necessary is that 
 he knew, or should have known, that the situation was 
 dangerous, ami that an injury of some kind would probably 
 befall him in that situation. 
 
 If you should find that the injurv happened without the 
 wan i of care of eithei plaintiff or defendanl — that is to say, 
 if each party was not negligent— then the injury would be 
 the result of a mere accident, and, of course, in such case the 
 plaintiff could not recover, but your verdict should be foi the 
 defendant — no < au >e of ai tion. 
 
 If, however, it should be found by yOU that the defendant 
 
 company was negligent, and that -aid negligence caused the 
 injurv complain nd you should further find that the 
 
 plaintiff, at the time <>f the- occurrence of said injury, was in 
 the exerci e of the due care to which he was bound, as I have
 
 6 
 
 66 NEGLIGENCE — RAILROADS — MISCELLANEOUS. 
 
 charged you, then, and not otherwise, is the plaintiff entitled 
 to recover in this action. 
 
 W. T. Mooney, Judge, in L. E. & W. Ry. v. Mackey. Approved in 53 
 O. S. 370. 
 
 (8) Miscellaneous Cases relating to Railroads. 
 
 No. 484. Duty to keep light at railroad switch. — As to 
 
 whether it was the defendant company's duty to have had a 
 light at the switch in question at the time of the accident, is 
 a question for you to decide under the rule for ordinary care 
 which the court has given you, from all the facts and circum- 
 stances proven in the case. 
 
 The infrequency of business over the road at night, up to 
 the time of the accident, the custom of railroad companies 
 under similar circumstances up to that time, so far as proven, 
 the method of the use of switches of the character shown ; the 
 straightness or curvature of track approaching the switch in 
 question ; the grade of the track ; the character of the vicinity 
 as to being thickly settled or otherwise, or as to obstruction 
 or freedom of view from a distance ; the necessity of keeping 
 a man to attend a light or otherwise, all these are among the 
 circumstances so far as they may have been subjects put in 
 evidence, which are proper for your consideration in deter- 
 mining this question. 
 
 George F. Robinson, Judge, in N. Y. P. & O. R. R. v. Tidd, Supreme 
 Court, No. 2507. Affirmed by Circuit Court. 
 
 No. 485. Misplacement of switch for criminal purpose. 
 
 — The defendant company can not be held responsible for 
 the death of one of its employees caused by circumstances of 
 which it had no knowledge or notice long enough before his 
 death to have interposed to save him, or which circumstance 
 or circumstances it had not reasonable ground to expect or 
 anticipate would occur when and where they did occur. 
 
 The law does not require a railroad company in Ohio to 
 anticipate or presume that a criminal will break or open its 
 locks and misplace its switches in the night. Nor is there 
 any rule of law that requires a railroad company to keep 
 either a man or a light at every switch at all times. 
 
 The presumption of law is that criminals will not break 
 and misplace railroad property; and the railroad company 
 may safely rely on this presumption till the contrary fact is, 
 in any case, brought to their knowledge, or until, from known 
 facts, they have reasonable cause to expect or anticipate it.
 
 NEGLIGENCE — RAILROADS MISCELLANEOUS. 367 
 
 If you find from the testimony that the switch was mis- 
 placed by someone for criminal purpose, and that the mis- 
 placement of the same was unknown to defendant, or, with 
 the exercise of ordinary care, could not have been known by 
 it in time to avert the danger and prevent the injury, or, with 
 the exercise of ordinary care on its part, could not have been 
 made known to those running the train in time to prevent 
 the injury, the defendant would not be liable for such dis- 
 placement and consequent injury, unless such displacement 
 could have been prevented by the exercise of ordinary care on 
 its part. 
 
 Geo. F. Robinson, Judge, in N. Y. P. & O. R. R. Co. v. Tidd, Supreme 
 Court, No. 2507. Affirmed by Circuit Court and see. 
 
 Misplacement of switch by evil disposed person, causing injury, re- 
 garded as an inevitable accident. Frust v. Potter, 17 111. 416; Deyo v. \ T . 
 Y. R. R. Co. 34 N. Y. 9. 
 
 No. 486. Walking on railroad track — Injury to person 
 from — Company bound to give warning in case of knowledge. 
 — "If it be found from the testimony that the plaintiff, at the 
 time he was injured, was walking upon the main track of a 
 railroad, and was not using the county road as a crossing to 
 reach the point he wished, the fact that no signal was given 
 by the engineer in charge of the engine of the moving of the 
 engine and cars attached toward the crossing would not be 
 such neglect as would render the company liable for the 
 injury, unless the conductor or engineer in charge of the train 
 or engine knew, at the time the train was being backed, that 
 the plaintiff was on the track, and they then failed to give 
 him warning, by signal or otherwise, of the approach of the 
 train in the same direction on the same track." 
 
 From Railroad Company v. Depew, |o O. S. 121. 
 
 No. 487. Rescuing one from danger — Injury while at- 
 tempting to rescue — Contributory negligence. — "To hold 
 the railmad company responsible in damages for injury to a 
 m who is struck by an engine and injured while in the 
 act of crossing the track and rescuing a little child from dan- 
 ger and saving its life, it must be shown < i | that the child 
 was in danger of being run over and injured 1>\ an approach- 
 ing engine, and that such danger was caused or created by 
 the negligence of the railroad company; and (2) that in 
 making the effort to rescue the child the plaintiff was not 
 guilty of contributory negligence. These are questions of fact 
 which it will be your duty to determine from the evidence. 
 
 "If von find that the peril to which the child was ex- 
 posed was caused by snch negligence of the company, you
 
 368 NEGLIGENCE — RAILROADS — MISCELLANEOUS. 
 
 will then inquire whether the plaintiff, in passing across the 
 track and attempting to rescue the child, was guilty of con- 
 tributory negligence. The law will not impute negligence 
 to an effort to save human life unless made under such cir- 
 cumstances as to constitute rashness in the judgment of pru- 
 dent persons. 
 
 "If he believed, and had good reason to believe, that he 
 could save the life of the child without serious injury to him- 
 /self, the law will not impute to him blame for making the 
 effort." 
 
 Penna. Company v. Langendorf, 48 O. S. 316. In the opinion in the 
 above case, Bradbury, Judge, says: "The attendant circumstances must be 
 regarded; the alarm, the excitement and confusion usually present on 
 such occasion, the uncertainty as to the proper move to be made, the ' 
 promptness required, and the liability to mistake as to what is best to be 
 done, suggest that much latitude of judgment should be allowed to those 
 who are thus forced by the strongest dictates of humanity to decide and 
 act in sudden emergencies. And the doctrine that one, who, under these 
 or similar circumstances, springs to the rescue of another, thereby en- 
 countering even great danger to himself, is guilty of negligence per se, is 
 neither supported by principle nor authority." 
 
 No. 488. Injury to child of employee. — "Although the 
 defendant varied from the usual manner of using the track in 
 question, yet if the plaintiff was not there as an employee of 
 the company, but was there wrongfully, he can not complain 
 of the negligence of the company unless the defendant's 
 agents knew that he was there, and willfully injured him." 1 
 
 ' ' If you find that the defendant company and another 
 company were each rightfully in the joint use and occupation 
 of the transfer track, and the father of the plaintiff, then in 
 the employment of the other company, duly authorized, was 
 engaged in repairing a car upon this track ; that the plaintiff 
 brought to him his dinner, and that while engaged in repair- 
 ing said car, shortly thereafter, the father requested the 
 plaintiff child to render him necessary temporary assistance 
 to enable him (the father) to perform the work of repairing 
 the car, if he was thus authorized to employ the plaintiff, 
 then the plaintiff was rightfully upon the track. ' ' 2 
 
 'From Penna. Co. v. Gallagher, 40 O. S. 637. 
 2 From Penna. Co. v. Gallagher, 40 O. S. 637. 
 
 No. 489. Common use of railroad tracks by public as a 
 passageway. — You are instructed, as matter of law, that the 
 plaintiff was not a trespasser by going upon the track in ques- 
 tion. That is, if you find from the proof in the case that the 
 railroad company had knowledge that its tracks were being 
 used at this point by people to go to and from their work at 
 the mill or other places, and that the railroad company had
 
 NEGLIGENCE — RAILROADS — MISCELLANEOUS. 369 
 
 knowledge of such use of its tracks and acquiesced therein, 
 and the plaintiff was not bound to go to his work by any par- 
 ticular route, and had a right to go upon and over the track 
 where he was when injured, but in doing so it was his duty 
 to exercise ordinary care to prevent being injured. 
 If these tracks in question were used by the public indiscrim- 
 inately as a place of travel to the mill or other places, then 
 it would be the duty of the company to so run its trains and 
 to exercise ordinary care in the use of its trains with a knowl- 
 edge of the way in which it permitted its tracks to be used. 
 
 Gillmer, J., in Burke v. Hitchcock, Trumbull County Common Pleas. 
 
 Long accustomed usage of a passageway on tracks of company by 
 trespassers, charges the company with notice and it is under obligation to 
 keep a careful lookout at such places. Wood on Railroads, Sec. 320. 
 
 No. 490. Joint occupancy of sidetrack by two com- 
 panies — Relation of servants of one company to the other — 
 Injury to servant by failure to inspect track. — Where a side- 
 track or transfer switch is in the joint occupancy of two rail- 
 road companies, the servants of each company are not the ser- 
 vants of the other, nor fellow-servants with the servants of the 
 other, but their right of recovery in case of injury caused by 
 the negligence upon the part of the other company, in operat- 
 ing said track or switch, or in the carelessness of its servants, is 
 an independent one. In this class of cases the injured person 
 is more than a mere licensee. The relation between the rail- 
 way whom he serves and the other railway is so far founded 
 on a valuable consideration that it raises upon the part of 
 that other railway an implied obligation that it will not be 
 negligent as against that servant. 
 
 Though the Company's cars stood on the defend- 
 ant's transfer switch, through the trespass of said company, 
 it would not absolve the defendant from the exercise of ordi- 
 nary care in the proper inspection of the same as to such ob- 
 structions, and in so using said switch and handling said cars 
 
 tot to injure tin- servants or property of said Compa- 
 ny on its own railroad and premises. If you find by a pre- 
 ponderam e of evidence that the transfer track or switch was 
 in the joint occupancy of the two railroad companies, and 
 the plaintiff's injury was caused by the n< gligence on defend- 
 ant's part in not properly inspecting tin- said track to avoid 
 obstructions thereon, and in handling cars found standing 
 thereon, win reby the collision and injury occurred, your ver- 
 dict should be foi plaintiff, otherwise for defendant. 
 
 Michael Bulger v. N. V. L. E & W. K. R., Supreme Court, unreported, 
 judgi ■ <1 .ma Common Pleaa affirmed, 28 W. L. B. 12S.
 
 370 NEGLIGENCE — RAILROADS — MISCELLANEOUS. 
 
 No. 491. Liability of railway company for injury to 
 person standing on depot platform, from mail-pouch thrown 
 out of mail-car by the mail agent. — If you find from the 
 evidence that the mail agent was in the employ of the post- 
 office department of the United States government, and was 
 not in the employ of the defendant railway company, and 
 was not under the control or direction of the defendant com- 
 pany, or any of its agents or employees, then said defendant 
 would not be liable for any of his negligent acts. If you find 
 the defendant railway company was negligent in carrying the 
 United States mails on its trains, it was its duty to make such 
 arrangements for the delivery of such mails at the stations, 
 as not to unnecessarily endanger the passengers of said defend- 
 ant company, or those lawfully on its platform and grounds. 
 And if it was required of the said defendant company by the 
 postoffice department of the United States to deliver the mail- 
 bags on the platform of the depot at , it was the duty of 
 
 the said defendant company either to stop its trains at , 
 
 or to run its trains at such rate of speed past said depot as 
 not to unreasonably endanger the passengers of said company, 
 or those lawfully on its platform or grounds, or to so guard 
 said platform and to give notice to the people lawfully there- 
 on, as not to expose them to unnecessary or unreasonable 
 danger. 
 
 And if said railroad company ran its trains at such un- 
 reasonably high rate of speed past said station, and knowingly 
 permitted the mail agent to throw off the mail-bags upon the 
 platform of said station, without giving due notice to the 
 persons lawfully thereon, or in some way protecting them 
 from the danger thereof, said railroad company would be 
 liable for any damage caused by the negligence of the agents 
 and servants of the company in running said train, and in 
 permitting said mail-bags to be thrown off without due notice 
 to the persons lawfully on said platform, or in some other 
 way protecting them from unreasonable and unnecessary 
 danger. It is left to you as a question of fact to say whether 
 the train to which the mail-car was attached was run at such 
 high rate of speed as to be negligence on the part of the 
 company, or whether the agents or servants of the company 
 ,were negligent in failing to give due notice to the plaintiff 
 that the mail-bag was about to be thrown upon the platform, 
 or in protecting plaintiff from injury therefrom. 
 
 Nye, Judge, in Clarke v. N. Y. P. & O. R. R. Co., Medina County Com- 
 mon Pleas ; see 136 Mass. 552 ; 97 N. Y. 494.
 
 NEGLIGENXE — RAILROADS — MISCELLANEOUS. S7 1 
 
 No. 492. Child killed on railroad track — Whether a 
 trespasser. — This boy was on the railroad track of the de- 
 fendant when he was killed. It is one thing if he was justi- 
 fied in being there, and it is another thing if he was not so 
 justified. The plaintiff says he was justified in being on the 
 track, or was not in fault for being there; and they have 
 given evidence to support them in this claim tending to prove 
 that there was no fence along the railroad track, the manner 
 in which the wings or abutments of the R. R. bridge were 
 constructed, that there were no guards, signs or other means 
 of prevention at said bridge to keep children from going upon 
 the tracks, and that the station agent on two occasions had 
 seen boys on the track in that vicinity within a year or more 
 preceding this accident, on one of which occasions he ordered 
 them off. Now, gentlemen, I charge you that this evidence 
 does not tend to prove that the deceased had any justification 
 or excuse for being on the railroad track, and you are in this 
 case to take it that the deceased was on the railroad track 
 without right and by his own fault, and therefore the defend- 
 ant is not accountable in this case for how the train was 
 manned or equipped, or the position of the men on the cars, 
 or who they had as a station agent, or whether he was a 
 cripple or not. 
 
 John W. Heisley, Judge, in Spink case, Cuyahoga County. 
 
 No. 493. Duty of railroad company to persons trespass- 
 ing on track — Duty arises only after discovery.— The law 
 imposed no duty upon the defendant to require its station 
 agents, watchmen, flagmen or switch tenders having duties 
 to perforin at certain points, to watch over the tracks of the 
 roadway from sui h | ' their special duty, to warn per- 
 
 sons on the track without right, and having no business with 
 the defendant, to get off the track, or others ise caution them. 
 The defendant is only accountable for the action of its em- 
 ployees after they had di ! "i" had reason to think or 
 believe the deceased was on the track and in danger of being 
 hurt; after they had discovered the boy on the track, oi had 
 reason to think or believe he was there, they had, of course, 
 no right to wantonly run over him. But the servants of the 
 defendant who had any duties to perform in regard to the 
 running oj this train, did their whole duty it' they did all 
 they could with the means they had, adapted to thai purpose, 
 to avoid injury to th< di 1 1 ased. Strictly the defendant is not 
 liable in this 1 ase, unless its said servants who had duties to 
 perform in 1 ■ to the running of this train, aftei the 
 boy was discovered, oi they had reason to believe the boy
 
 372 NEGLIGENCE — RAILROADS — MISCELLANEOUS. 
 
 was there and in danger, acted with such a want of care and 
 with such a reckless disregard of the consequences as is diffi- 
 cult to be distinguished from an intentional wrong. If they 
 acted with this recklessness and want of care, your verdict 
 should be for the plaintiff; otherwise it should be for the de- 
 fendant. 
 
 John W. Heisley, Judge, in Spink case, in Cuyahoga County, O. 
 
 A railway owes no duty to a trespasser on its track further than to 
 I refrain from "inflicting a willful or malicious injury. Wood on Railroads, 
 Sec. 320. 
 
 No. 494. Measure of damages for death of child. — If 
 
 you find for the plaintiff, in assessing damages you are not 
 to consider the mental pain and anguish of the parents on , 
 account of this misfortune. This is, as the law provides, 
 only a matter of dollars and cents, and you should allow a 
 just compensation for the pecuniary injury resulting to the 
 parents, and in getting at this, you will as best you can get 
 at what is the reasonable expectation of pecuniary advantage 
 to them from the life of this boy if he had lived, and it is for 
 you to consider all his characteristics, and how long he might 
 have otherwise lived, or how soon have died, and all the cir- 
 cumstances that throw any light on this part of the contro- 
 versy. If you find for the defendant you will simply say so. 
 
 John W. Heisley, Judge, in Spink case, Cuyahoga County. 
 
 No. 495. Permitting persons to travel habitually over 
 railroad track. — If you find from the evidence in this case 
 that the defendant companies, for a long time prior to the 
 accident complained of in the petition, permitted persons to 
 travel and pass habitually over their road at the point where 
 the accident occurred without objection or hindrance, they 
 should, in the management of trains so long as they acquiesce 
 in such use, be held to anticipate the continuance thereof, 
 and are bound to exercise care, having due regard to such 
 probable use and proportioned to the probable danger to per- 
 sons so using such crossing, and if you find they did not ex- 
 ercise such care, and that the plaintiff exercised reasonable 
 , care on his part, then your verdict on this branch of the case 
 should be for the plaintiff. 
 
 From Caldwell v. P. C. & T. R. R. Co., 51 O. S. 609. The Common 
 Pleas Court was reversed, but this charge was not affected thereby. 
 See ante, No. 489. 
 
 No. 496. Negligence — Injury to stock on railroad. — "If 
 
 the jury find that the horse, though seen by the engineer, 
 was running upon the track, if he left it and continued to
 
 NEGLIGENCE — MISCELLANEOUS. 373 
 
 run, not near enough to have been in danger, and the whistle 
 was blown, and the horse returning to the track, the brakes 
 were applied and the train was checked, but could not prob- 
 ably then have been checked before the horse was struck by 
 the train, the plaintiff can not recover on the ground of the 
 negligence of carelessness of the defendant in running the 
 train. " 
 
 From Railway Co. v. Smith, 38 O. S. 410. 
 
 No. 497. Same continued — Insufficient fence — Liability 
 of railroad company for. — "The company being bound to 
 maintain a sufficient fence, the plaintiff had a right to rely 
 on this, and to turn his horse into the inclosure; and if he 
 escaped therefrom by reason of the insufficiency of the fence, 
 and went upon the track and was killed, the companv is 
 liable." 
 
 From Railway Co. v. Smith, 38 O. S. 410. 
 
 No. 498. Railroad companies required to guard against 
 fire from locomotive. — Railroad companies are in no sense 
 insurers, but in this state are required by statute, in the use 
 of their engines, to prevent loss or damage by fire, to place 
 on their locomotives, or engines, and keep in good order, 
 some device or contrivance that will most effectually guard 
 against the emission of fire and sparks which would other- 
 wise be thrown out by such engine, or locomotive, or cars, 
 having regard to the enterprise in which they are engaged 
 and the objects to accomplish, and the law places no higher 
 or further duty upon them than in this particular; and when 
 they have perfonneil that duty required of them by statute, 
 they are not responsible for accidental fires caused by the 
 escape of sparks thrown from their engines. 
 
 Approved in Tin I,. ,\: M. R. R. Co. v. Kelly, to O. C. C. ^22, 327. 
 C. L. & W. R. R. Co. v. Fredenbur, 3 C. C. 23. 
 
 (9) Miscellaneous Cases not Pertaining to 
 Railroads. 
 
 No. 499. Negligence — Injury from defective gun. — The 
 
 on from which the following is taken was one for negli- 
 
 ■ for wrongful death caused l>\ .1 defective gun, which, 
 
 on account of tli- defect therein, discharged while in the 
 
 hands of tla defendant, killing the de< eased who was a little 
 
 in advance of the defendant.
 
 374 NEGLIGENCE — MISCELLANEOUS. 
 
 In your investigation of matters which are here submitted 
 to you, you will first proceed to inquire and determine whether 
 or not this gun was defective. If you find that it was not, 
 upon this branch of the case the defendant will be entitled to 
 a finding in his favor. If you find that it was thus defective, 
 then you are to inquire and ascertain whether or not the de- 
 fendant had knowledge of its defective condition ; or if he 
 had not actual knowledge, would he by the exercise of ordi- 
 nary care have known of this defective condition? If you 
 find that he neither had knowledge, nor by the exercise of 
 such ordinary care would not have known of the defects 
 claimed on the part of the plaintiff to exist in this gun, then 
 upon the question as to the defective gun alone being the 
 cause of the accident, the defendant would be entitled to a 
 finding in his favor ; if on the other hand you find that this 
 gun was defective in the particulars complained of, and that 
 the defendant knew of this defect, or by exercising ordinary 
 care would have known of the defect, then upon this branch 
 of the case the plaintiff would be entitled to a finding in her 
 favor. 
 
 Johnston, Judge, in Lechleitner v. King, Trumble County Common 
 Pleas. 
 
 No. 500. Same continued — Charge that gun was neg- 
 ligently carried, thus causing death. — It was the duty of the 
 defendant in carrying the gun to exercise ordinary care for 
 the safety of the deceased ; and if his failure to exercise such 
 care was the proximate cause of the injury resulting in the 
 death of the deceased, then the plaintiff will be entitled to 
 recover in this case, provided you find that the deceased him- 
 self was in the exercise of ordinary care at that time. It was 
 the duty of the deceased to exercise ordinary care for his own 
 safety, and if you find that he failed to exercise such care, 
 and that his failure to thus exercise such care contributed to 
 produce or cause the injury resulting in his death, then the 
 plaintiff would not be entitled to recover in this action. 
 
 Johnston, Judge, in Lechleitner v. King, Trumbull County Common 
 Pleas. 
 
 No. 501. Action for injury to house resulting from use 
 of dynamite in blasting. — The owner of land blasting rocks 
 thereon so as to cast them upon another's premises and cause 
 injury is liable for the damages so occasioned, whether negli- 
 gent in blasting or not. (7 Am. Eng. Cycl. 522.) 
 
 If you find from the evidence in this case that the defend- 
 ant, Ry. Co. , blasted rocks or stones on its right of way,
 
 NEGLIGENCE — MISCELLANEOUS. 375 
 
 and thereby threw stones upon the premises and buildings of 
 the plaintiff and caused injury to their buildings and prop- 
 erty, the defendant company would be liable for the damages 
 so caused and occasioned. 
 
 If you find from the evidence that the defendant company 
 blasted stones or rocks upon its right of way, or roadbed, near 
 to and adjoining the premises of the plaintiff, and in so blast- 
 ing it used such charges of dynamite, or other explosives, as 
 to jar and shake the dwellinghouse of the plaintiff, whereby 
 it was injured, the defendant company would be liable for the 
 damages so occasioned, if any. 
 
 Whether the plaintiff's house was injured, the walls and 
 plastering cracked, or any other damage done to the dwell- 
 inghouse of the plaintiff by said explosives and blasting, are 
 questions of fact for you to determine from the evidence 
 which has been given to you. 
 
 Nye, Judge, in Schaible v. L. S. & M. S. Ry. Co., Lorain County. 
 
 No. 502. Same continued — Measure of damages. — If 
 you find that the plaintiffs are entitled to recover in this 
 action, they are entitled to receive such a sum as will fairly 
 and reasonably compensate them fully for the injuries and 
 damage they have sustained by reason of the acts of the de- 
 fendant, not exceeding, however, the sum of $2,000, the 
 amount asked for in their petition. 
 
 The measure of damages in this case is compensation, and 
 that properly includes any and all injuries that you find 
 that the plaintiffs have sustained to their buildings or other 
 property, and damages to the use of the said property by rea- 
 son of the acts of the defendant company. 
 
 Yon will look into the facts and circumstances and see 
 what sum will fairly and justly compensate them for their 
 injuries. It is a question for your sound judgment to deter- 
 mine under all the < vidence in the case. 
 
 Nye, Judge, in Schaible v, L. S. & M. S Ry, Co., Lorain County. 
 
 No. 503. Negligence and liability of owner of racetrack 
 for injury to driver from defect in track. — A defendant, by 
 advertising a fair and horseraces to take place on his race- 
 It, and offering premiums to winners of such races, in- 
 vited tho ring to compete foi such premiums to 
 enter their horses in such races and to employ persons to ride 
 their horses in such races; and by thai action on his pari a 
 defendant impliedly warrant) d to all such persons and riders 
 that his track was reasonably well constructed for the purpose 
 
 for which it was to be used, and that ordinal v care had been
 
 376 NEGLIGENCE — MISCELLANEOUS. 
 
 used by him to protect and guard it against danger to those 
 engaged in riding horses in said race. 
 
 & And .the plaintiff, if he had no knowledge to the contrary, 
 mio-ht rely upon such warrant. And the defendant will be 
 charged in law with a knowledge of the existence of any and 
 all defects which were open to inspection, and which might 
 have been discovered by a man of ordinary prudence and 
 care. He was required to provide the track with such appli- 
 ances as ordinary care and prudence suggested to avert dan- 
 ger and secure a reasonable safety to others coming upon or 
 using said track at his invitation or request. 
 
 Therefore, if leaving the bank along the defendant's 
 track, at the point where the accident happened, without any , 
 protection or guard, rendered it unsafe to riders and to race- 
 horses over said track at that point, and unreasonably ex- 
 posed said riders to danger of accident by reason of such con- 
 dition of the bank, and if ordinary care, that is, such care as 
 prudent men ordinarily employ in similar matters, required 
 that the defendant should have provided some means by 
 fencing along or otherwise guarding said point to prevent 
 accident or injury, then his ommission to provide some such 
 means would be negligence on the part of the defendant. 
 
 Newby, Judge, in Palen v. Thomas, Highland County Common Pleas. 
 
 No. 504. Same continued — Defendant's negligence — 
 How proximate cause of injury. — In order that the defend- 
 ant's negligence may be said to be the proximate cause of the 
 injury, the plaintiff is required to make it appear, by a pre- 
 ponderance of the evidence, that had the defendant exercised 
 ordinary care in the construction and guarding of the track 
 the accident would not have happened, and that the injury in- 
 flicted was the result of the defendant's carelessness in not 
 guarding the defect complained of, and was an injury such 
 as might have been foreseen and reasonably anticipated as 
 likely to result from such carelessness. Therefore, if the 
 horse which plaintiff was riding did not stumble against the 
 bank, but was tipped or knocked down by another horse in 
 the race, then the plaintiff can not recover, although the de- 
 fendant may have been negligent in the manner above stated. 
 The defendant was not the insurer of the plaintiff's safety, 
 nor is he responsible for the negligence of other riders with 
 the plaintiff in the race. 
 
 Newby, Judge, in Palen v. Thomas, Highland County. 
 
 No. 505. Same continued — Diligence required of plain- 
 tiff. — Although the defendant may have been guilty of neg-
 
 NEGLIGEN'CE — MISCELLANEOUS. 2)77 
 
 ligence, still the plaintiff can not recover if he knew of, or 
 had reasonable means of ascertaining, the defect complained 
 of. The plaintiff was not allowed to shut his eyes to the cir- 
 cumstances and conditions surrounding him. But he will be 
 charged with knowing whatever he would have discovered, as 
 to the condition of the track, had he employed ordinary pru- 
 dence and caution for that purpose. 
 
 The degree of diligence and care which the law required 
 the plaintiff to exercise was such as one of his age and expe- 
 rience would ordinarily exercise under the circumstances, to 
 look for and ascertain the dangers incident to his employ- 
 ment. And if the plaintiff saw, or by the exercise of such 
 diligence could have discovered, the unprotected and ex- 
 posed condition of the track before he was injured in it, and 
 have avoided the injury, it was his duty to quit the employ- 
 ment. If he continued in the employment after knowing or 
 being thus charged with a knowledge of the danger, he will 
 be held to have assumed all the risk of such danger, and in such 
 case he can not recover, although the defendant may have 
 been negligent also. 
 
 Newby, Judge, in Palen v. Thomas, Highland County Common Pleas. 
 
 No. 506. Liability of county official for negligence. — 
 The mere fact that the property-owner suffers damage as a 
 result of the action of the officers or employees of the county, 
 does not necessarily render the county responsible for the 
 damage. You are no doubt aware that municipal corporations 
 are liable for the wrongful and negligent acts of their officers 
 or employees while acting in the course of their employment 
 in the business of the corporation ; but this rule lias no appli- 
 cation to counties. Municipal corporations are political bod- 
 ies created and existing for the welfare and benefit of their 
 immediate local inhabitants, while counties are political sub- 
 jugations of the state, created on principles <>t' general public 
 policy, for the convenience of all citizens in the state, as 
 distinguished from the citizen-- of a particular locality. The 
 state being sovereign can not be sued, except in those < 
 
 when- permission has been granted. A COUnty being a divi- 
 sion oi the state, and part of the sovereign community, 
 cannot be sued except as tl through the medium of 
 
 the law- enacted t>v the legislature-, permits the county to 
 be sued. 
 
 In tl: >f municipal corporations the law has provided 
 
 that they may be Sued and held for tin carelessness and neg- 
 ligence of officers and employees, but in the case of counties 
 the law does not permit such liability for carelessness, negli-
 
 378 NEGLIGENCE — MISCELLANEOUS. 
 
 gence, or wrongful acts of the county officials or employees. 
 If, therefore, it is found that the plaintiffs have sustained 
 damages which were caused solely by the negligence of the 
 county commissioners or their servants, they cannot recover 
 in this case against the county, but must proceed against the 
 commissioners as individuals. The liability of the county 
 only exists where the exercise of the legal powers of the 
 county results in the invasion of the rights of individuals. 
 If the injury resulted from the doing by the county and its 
 officers and employees of something which the county had 
 the legal right to do, and not from the negligence of the offi- 
 cers in doing the work, or by the negligent permission on 
 their part to do something which they should have done, . 
 then there can be a recovery. If the damages resulted inthe 
 negligence in doing, or negligence in failing to do something, 
 there can be no recovery. 
 
 Wright, Judge, in County Commissioners v. Haln, Hamilton County 
 Common Pleas. 
 
 The charge in this case was that the County Commissioners had de- 
 posited large quantities of earth, stone, and other materials upon the sur- 
 face of the road and maintained the same, that they had wrongfully and 
 unlawfully permitted the same to slide and precipitate itself upon the 
 parties injured. 
 
 No. 507. Negligence — Injury charged to have resulted 
 from lack of exercise of ordinary care in construction and 
 use of appliances known as cooler in a furnace. — The plain- 
 tiff, by entering the employ of- the defendant, took upon him- 
 self and assumed all the risks usually and ordinarily incident 
 to the running and operation of a blast furnace, and for any 
 accident resulting in injury to plaintiff while engaged in such 
 employment the defendant would not be liable, unless it 
 appears from a preponderance of the evidence in the case that 
 such accident and injury was the direct and proximate result 
 of the defendant's negligence in one or more of the particulars 
 mentioned in the plaintiff's petition. The plaintiff in accept- 
 ing the employment did not, however, assume risks and 
 dangers of his employment which were concealed, unusual, 
 and unknown to him. However hazardous you may find the 
 business of operating blast furnaces to be, the law declares 
 that persons entering the employ of persons engaged in oper- 
 ating them, and contracting to assist therein, assume all the 
 risks ordinarily incident to such operation. 
 
 The mere fact that an explosion occurred and the plaintiff 
 was thereby injured, does not raise any presumption of negli- 
 gence on the part of the defendant. The existence of negli- 
 gence is an affirmative fact, and the presumption is, until the
 
 NEGLIGENCE — MISCELLANEOUS. 379 
 
 contrary appears from the evidence, that the plaintiff per- 
 formed his duty, and that the defendant performed its duty. 
 In view of such presumption, the burden rests upon the 
 plaintiff to prove by a preponderance of the evidence that his 
 injuries were caused by the fault, and were the direct and 
 proximate result of the negligence of the defendant in some 
 one or more of the particulars charged. The defendant, in 
 placing and using the cooler underneath the iron notch, was 
 bound to use ordinary care. The law does not presume negli- 
 gence unless the plaintiff has shown by a preponderance of 
 all the evidence on the subject that the defendant did not 
 exercise ordinary care in choosing this appliance, and in 
 causing it to be used in the place where it was used, the find- 
 ing on this question would be in favor of the defendant. 
 
 The defendant did not guarantee to plaintiff that the 
 appliance should be perfectly safe, but it was bound to use 
 such diligence and care in the selection and use of the appli- 
 ances as is usually exercised by ordinarily prudent persons 
 engaged in the same or similar business. If, therefore, from 
 the evidence you find that the appliance in question was in 
 common use, and had been generally adopted by skillful and 
 prudent men engaged in the same or similar business, and 
 the defendant in good faith believed it to be a safe and proper 
 appliance, then the defendant would not be guilty of negli- 
 gence. Whether or not the appliance was in common use is 
 a question of fact for you to determine. If you find it was 
 not in common use, still it would not necessarily follow that 
 the defendant was guilty of negligence, but it is a matter you 
 may take into consideration, together with all the other evi- 
 dence in the case, in determining the fact whether or not the 
 defendant was guilty of negligence. 
 
 Knowledge <>/ defendant of dangerous appliances. 
 
 If you should find that, on one or more occasions prior to 
 the explosion, certain of defendant's employees expressed to 
 the defendant's superintendent the opinion that the water- 
 cooler in question was a dangerous appliance, as a matter of 
 law, such expressions of opinion would not, in and of them- 
 selves, establish, or tend to establish, the claim that the 
 appliance was in fact improper, dangerous, or unsafe. This 
 dor- not pre< lude you from considering this evidence upon 
 the other issues involved. 
 
 Gillmer, |udge, in Burnett v. Andrews & Hitchcock Iron Co. 
 
 No. 508. Injury from natural gas — Independent con- 
 tractor — Rule of respondeat superior not applicable. — The 
 defendant is a corporation — an artificial person — and can act 
 25
 
 •280 NEGLIGENCE — MISCELLANEOUS. 
 
 only through its authorized officers and agents, whose acts 
 alone, within the scope of its authority, and whose negligence 
 in the transaction of the business it authorized them to do, 
 are in legal contemplation the acts and negligence of the 
 corporation. 
 
 In respect to the liability of an employer for the negli- 
 gence of an employee, whether agent, servant, or independent 
 contractor, the law makes no distinction between natural 
 persons and corporations. 
 
 The liability of one person for damages arising from the 
 negligence of another, or the principle of respondeat superior, 
 is confined in its application to the relation of master and 
 servant, or principal and agent, and does not extend to cases 
 of independent contracts not creating those relations, and 
 where the employer does not retain control over the mode and 
 manner of the performance of the work under the contract. 
 
 But where the employer retains control and direction over 
 the mode and manner of doing the work, and an injury 
 results from the negligence or misconduct of the contractor, 
 or his servant or agent, the employer is placed under a lia- 
 bility equal and similar to that which exists in the ordinary 
 case of principal and agent. 
 
 If the evidence shall show that the defendant and one J. 
 G. entered into a contract, which was in writing except the 
 acceptance thereof by the defendant, and that the same is in 
 evidence, and that the work stipulated for in this written 
 contract was performed by the said J. G. under said written 
 contract, then the said J. G. was an independent contractor, 
 for the said written contract does not show that the defendant 
 retained control over the mode and manner of doing the work 
 to be done by said contractor under said contract. 
 
 If the said J. G., as such independent contractor, was 
 guilty of negligence in laying and constructing said mains 
 and gas-pipes, or in leaving any one or more of said joints of 
 said pipes or mains open, so as to allow the gas, when turned 
 on, to escape therefrom, his negligence, as such independent 
 contractor, can not be considered as the negligence of the 
 defendant. To make the defendant liable for the negligence 
 of the said J. G., contractor, the evidence must show that the 
 defendant retained control over the mode and manner of doing 
 the particular work, respecting the doing of which the said 
 J. G. was negligent. 
 
 Although the defendant is not liable for the negligence of 
 its independent contractor where it retained no control over 
 the mode and manner of the performance of the work con- 
 tracted for, yet it may be liable, if it was itself guilty of
 
 NEGLIGENCE — MISCELLANEOUS. 38 1 
 
 negligence in allowing or permitting said natural gas to escape 
 through a defectively laid or jointed gas-pipe or main. If, by 
 the exercise of ordinary care and prudence, it could have 
 discovered such defect, and it did not do so, it was guilty of 
 negligence. It was not bound to know that such defect ex- 
 isted, but it was required to use ordinary care and prudence 
 to prevent accidents and injuries to others, and whether it 
 used that degree of care and prudence which men of ordinary 
 care and prudence are accustomed to use under the same or 
 similar circumstances, is a question for the jury to determine. 
 If it did, it is not liable. But if it failed and neglected to 
 use ordinary care, it was negligent, and, if its negligence was 
 the proximate cause of the injury complained of, the plaintiff 
 is entitled to recover, unless he has himself been guilty of 
 contributory negligence. 
 
 From Central Ohio Natural Gas and Fuel Co. v. Baker, Supreme Court 
 Affirmed. Evans, Judge, Franklin County Common Pleas. 
 
 No. 509. Injury from explosion of escaping natural gas 
 through pipes and mains — Because of failure to close and 
 calk pipes. — If the evidence shall fail to show by a prepon- 
 derance that the defendant was guilty of negligence in either 
 of said particulars, your verdict must be for the defendant. 
 If, however, it shows by a preponderance thereof that the 
 defendant was guilty of negligence in either of said alleged 
 particulars, and that its negligence in that respect was the 
 proximate cause of the injury complained of by the plaintiff 
 in his petition, the defendant is liable. 
 
 If the evidence shall show that the gas escaped from one 
 or more of the joints of the gas-pipe or main, and that it 
 caused an explosion and an injury to the plaintiff, such facts 
 alone do not raise any presumption, nor do they tend to prove 
 that the defendant was guilty of negligence, and before you 
 can find that it was, the evidence must show that it failed 
 and neglected to use and employ that degree of care and 
 prudence which persons of ordinary care and prudence are 
 accustomed to use and employ under the same circumstances. 
 If it used such degree of care, it is not guilty of negligence. 
 But if it failed to use such care, it was guilty of negligence. 
 
 From Central Ohio Natural Gas and Fuel Co v Baker, Supreme Court. 
 Affirmed. By Evans, Judge, Franklin Common Pleas. 
 
 No. 510 Injury from explosion of boiler. — If the plain- 
 tiff was without fault on his part, and was injured by the 
 explosion of a boiler operated by the defendants, or then 
 servant or agent, the mere fact of such explosion raises a
 
 382 NEGLIGENCE — MISCELLANEOUS. 
 
 presumption of negligence on the part of the defendants. 
 This presumption is only prima facie, however, and not con- 
 clusive; that is, the plaintiff will be entitled to recover on 
 such presumption, unless the defendants, by a preponderance 
 of evidence, show that they exercised ordinary care and 
 prudence, that is, such care and prudence as is ordinarily 
 exercised by men of ordinary prudence under like circum- 
 stances. It was the duty of the defendants to furnish a 
 competent engineer to run said engine and boiler, and if the 
 plaintiff was injured by reason of the incompetency of the 
 engineer, the plaintiff can recover, if he was without fault 
 himself. If you find from the evidence that plaintiff's injury 
 was caused by the explosion of the steam boiler operated by 
 and belonging to the defendants, they must show by prepon- 
 derance of proof the competency of their engineer. If, how- 
 ever, it be shown that the defendants' engineer was compe- 
 tent, yet if he, by any carelessness or neglect on his part, 
 caused the explosion and injured plaintiff, he can recover, if 
 plaintiff was without fault on his part. The engineer must 
 not only have been competent, but he must not have failed 
 to exercise his competency with proper care and skill. _ Was 
 there any want of care on the part of the engineer in the 
 management of said boiler at the time of said explosion? In 
 determining this you will inquire was there a lack of water 
 in the boiler, and what was the pressure of steam in the boiler 
 at the time, and whether it was excessive. Of course, if the 
 plaintiff was himself acting as engineer at the time, and 
 neglected to exercise due and ordinary care, he can not re- 
 cover. It was also the duty of the defendants to furnish 
 machinery reasonably proper and fit for the purpose for which 
 it was used. If there was any defect in the engine or boiler 
 which the defendants knew of, or of which they might have 
 known by the exercise of reasonable care and diligence, and 
 the plaintiff was injured by reason of such defect, he will be 
 entitled to recover. This does not, however, relate to the 
 lack of power in the engine to operate the said mill. 
 
 From Huff v. Austin, Supreme Court. Affirmed. Price, Judge, Logan 
 County.
 
 NEGLIGENCE — MINES. 383 
 
 (10) In Mines and Mining. 
 
 No. 511. Duty of operator of coal-mine to prop mines — 
 Liabilities for failure. — Our statute provides that "the owner, 
 agent, or operator of every coal-mine shall keep a supply of 
 timber constantly on hand, and shall deliver the same to the 
 working-place of the miner, and no miner shall be held 
 responsible for accidents where the provisions of this section 
 have not been complied with by the owner, agent, or operator 
 thereof." And said section imposes the duty upon "any 
 miner or other person employed in any mine governed by the 
 statute, who intentionally and willfully neglects or refuses to 
 securely prop the roof of any working-place under his con- 
 trol,' ' on penalty of fine and imprisonment. 
 
 It, therefore, was the duty of the defendant to furnish such 
 timber for props or support for such roof to the working- 
 place of the miner, and if it failed so to do, and said W. P. 
 came to his death by reason of such failure, then the defend- 
 ant has been guilty of such negligence as will authorize a 
 recovery, unless the deceased brought the same upon himself 
 by his own improper conduct. 
 
 {a) Dangerous employment. 
 
 The law is that persons employing men in dangerous 
 business or avocations shall use due and reasonable diligence 
 in providing safe machinery and appliances, and so far as 
 they can, by reasonable care, avoid exposing them to extra 
 risks. 
 
 And the law also is that, where persons engage in work 
 such as the deceased was engaged in at defendant's mine, at 
 j they assume the necessary and ordinary risks inci- 
 dent to the nature of such employment. "In the absence of 
 a contract, the master is not in any case the insurer of the 
 safety of his servant," and the servant, by the terms of his 
 employment, is presumed to assume the risk of such injuries 
 f rom a , , [dent as are incident to the nature and character of 
 the employment, and against which the master could not, in 
 the exercise of ordinary care, have protected him. 
 
 {/>) Touching the question of "the working-place of the 
 mini r, " when the timber should have been delivered. 
 
 It is foi the jury to say under all the evidence where thai 
 was in this case, whether at the jaw of said room, as claimed 
 by defendant, or at the point where deceased was at work 
 when he was killed; if, on this whole evidence, you find that
 
 384 NEGLIGENCE — MINES. 
 
 it was at the jaw of said room, and further find that sufficient 
 props were there, then your inquiry is at an end, and your 
 verdict should be for the defendant. But, on the contrary, 
 if you should find from the evidence that "the working-place 
 of the miner" was not at the jaw of said room, but was at the 
 place where the deceased was at work, and should also find 
 from the evidence that no timber for support was there, or 
 even though you find from the evidence that said "working- 
 place" was at the jaw of said room, and further find that 
 props with which to support said roof were not at or near said 
 jaw T , then and in case you find that they had not been, and 
 he continued on and said roof fell and killed him, then and 
 in that case the jury would be justified in finding for the 
 plaintiff. 
 
 Huffman, Judge, in Upson Coal Co. v. Peterson, Perry County. Affirm- 
 ing judgments of both lower courts. 
 
 No. 512. Injury in coal-mine — Through negligence of 
 foreman — Instruction as to relation of foreman and miner and 
 as to duties of foreman. — If plaintiff and F. at the time of 
 the accident resulting in the wrong complained of were fellow- 
 servants, then, as a general rule, he who engages in the em- 
 ployment of another for the performance of special duties and 
 services for compensation, takes upon himself the ordinary 
 risks and perils incident to the performance of such services. 
 The negligence complained of is that of W. L,., who it is 
 claimed was a foreman in the mine of defendant, and as such 
 was clothed with authority over F. and the plaintiff. In 
 determining whether or not L. was guilty of negligence, the 
 jury is to bear in mind that negligence can not be presumed, 
 but that it must be proven by a preponderance of the testi- 
 mony ; that to prove negligence it is not sufficient to show 
 that an accident happened which resulted in injury to plain- 
 tiff, and that the question is not whether an accident could 
 have been avoided, but whether L. was reckless or negligent 
 in failing to provide against it. The law does not require 
 that he should have acted with the greatest care and foresight, 
 but that he should have acted with the same prudence that 
 an ordinarily prudent man would exercise under the same 
 circumstances, and in determining this, you are to look at 
 the conditions as they were at the time — at the rib, or parti- 
 tion wall of coal, as it then appeared and not as the event 
 determined it to be. L. was bound to take not extraordinary, 
 but usual precautions against danger to the employees in said 
 bank, commensurate with the kind and character of employ- 
 ment they were engaged in, and if he knew or ought to have
 
 NEGLIGENCE — MINES. 385 
 
 known the thickness of this rib, then it was his duty to make 
 use of his knowledge in preference to relying on appearances.. 
 
 J. G. Huffman, Judge, in Jones v. Tague, Supreme Court. Judgments 
 affirmed. 
 
 No. 513. Same continued — Foreman directing miner to 
 mine coal off the rib — Where it is charged that rib is too 
 thin so as to render it dangerous. — It is the negligence com- 
 plained of in the petition that you are to confine your invest- 
 igations to, and that is charged to be the negligence of L. 
 (if he is shown to be the vice-principal, general superintend- 
 ent and manager of defendant, and the superior of plaintiff 
 and F. ) in directing P. F. to mine coal off the rib between 
 M. 'sentry and K. 'sentry and opposite to the place where 
 plaintiff was working, it being alleged that said rib was thin 
 and the mining- by P. at that place necessarily dangerous to 
 plaintiff working in his room in the M. entry. If it appear 
 by a preponderance of all the testimony that W. L. was the 
 vice-principal or managing agent of defendant, authorized to< 
 direct the employees in the Beech Grove Mine where they 
 should work ; that he directed P. P. to mine at that rib op- 
 posite the place where plaintiff was working; that the rib at 
 that place was so thin, or otherwise of such character that 
 the mining and blasting of coal there was unsafe and danger- 
 ous to those laboring where plaintiff was then working; and 
 if said L. did not act with reasonable skill or prudence in 
 such direction under the conditions as they then existed, and 
 if, as the natural result thereof, plaintiff was injured, then 
 the defendant is responsible. 
 
 If, however, that rib was not so thin or of such character 
 as to make its mining in the usual way dangerous to T. , or 
 if it were dangerous, but L. acted with reasonable skill, cau- 
 tion, and prudence in directing said P. as aforesaid, looking 
 to the means of knowledge he then had, then the defendant 
 would not Ik- responsible. 
 
 J. C. Huffman, Judge, in Jones v. Tague, Supreme Court. Judgments 
 affirmed. 
 
 No. 514. Same continued — Whether damage was nat- 
 ural result of direction of foreman. — And if it should appear 
 from a preponderance of the testimony that the blowing of 
 tin coal into the M. entry and in and upon plaintiff, to his 
 damage and injury, were not the natural and reasonable result 
 of the direction given to !•'. be L,., but were due to the un- 
 skillful, imprudent or improper milling by the said P. and 
 which could have been avoided by the- use of reasonable skill
 
 386 NEGLIGENCE — MINES. 
 
 and care by F, then the defendant is not responsible and your 
 verdict should be for him, unless L, also, directed the man- 
 ner of mining or blowing said blast by F, as aforesaid, in 
 which event your verdict should be for the plaintiff. 
 
 From same as ante, No. 500, note. 
 
 No. 515. Same continued — Must be result of careless | 
 act of foreman and not fellow-servant. — As already intimated, 
 "where a servant is injured in his person through the care- 
 lessness of a fellow-servant engaged in a common business 
 and employment, and no relation of subordination existed 
 between them, and the employer is himself guilty of no fault, 
 such employer is not responsible for such injury. " So in the , 
 case at bar, if the plaintiff was injured by the careless acts of 
 his fellow-servant, F., and neither the defendant nor his 
 agent, L,., are guilty of any fault which led to the injury of 
 plaintiff, then and in that case, the defendant is not liable; 
 but if you should find from the weight of the evidence that 
 the defendant or L. , in any manner contributed to the wrong 
 complained of, then and in that case your verdict should be 
 in plaintiff's favor, and in this connection it may be stated 
 that " one working a coal-mine is not bound as to his em- 
 ployees to take precaution against all possible dangers. His 
 duty is performed by guarding them against those reasonably 
 probable. ' ' 
 
 id. 
 
 No. 516. Same continued — Anticipation and provision 
 against occurrence. — The proper inquiry is not whether the 
 accident might have been avoided, if the one charged with 
 negligence had anticipated its occurrence, but whether taking 
 the circumstances as they then existed he was negligent in 
 failing to anticipate and provide against the occurrence. The 
 duty imposed does not require the use of every possible pre- 
 caution to avoid injury to individuals nor of any particular 
 means which it may appear after the accident would have 
 avoided it. The requirement is only to use such reasonable 
 precaution to prevent accidents as would have been adopted 
 by prudent persons prior to the accident. 
 
 id. 
 
 No. 517. Same continued — Negligence measured by con- 
 ditions known to exist. — In an action for injury occasioned 
 by the alleged negligence of the defendant, the negligence, 
 if any, is to be measured by the condition of things at the 
 place where the accident took place, as they were known to
 
 NEGLIGENCE — MINES. 387 
 
 exist by each of the parties at the time the acts are complained 
 of as being negligent, irrespective of subsequent determina- 
 tion of conditions unknown at the time to both, or to either, 
 except in so far as that knowledge may properly affect the 
 one so injured. 
 
 Where the substance of the wrong complained of was 
 that the defendant did not act with due foresight, the right 
 of action depends primarily upon so fixing the relation of the 
 parties as to show the defendant's obligation and upon show- 
 ing further that the harm and injury complained of were 
 such as a reasonable man in the defendant's place should 
 have foreseen and provided against. 
 
 J. G. Huffman, Judge, in Jones v. Tague, Supreme Court, No. 4090. 
 Judgments of both lower courts affirmed March 5, 1895. 
 
 No. 518. Statutory duty of mine-operator to keep sup- 
 ply of timber — And duty of miner to prop working-place. — 
 By the Statute Law in this State it is made the duty of every 
 owner and operator of a coal-mine employing more than ten 
 men in his mine to keep a supply of timber constantly on 
 hand and to deliver the same to the working-place of the 
 miner. The same law also makes it the duty of any miner 
 employed in any mine in which more than ten men are en- 
 gaged to securely prop the roof of any working-place under 
 his control, and further, it is by the law the duty of the 
 miner to obey any order given by the superintendent of a 
 mine in relation to the security of the mine in the part there- 
 of where the miner is at work and for fifteen feet back from 
 the face of the working-place. 1 
 
 Bearing in mind then that the defendant was not the in- 
 surer or grantor of \V. P. from the ordinary risks and hazards 
 of his service with the defendant, nor for the extraordinary 
 and unusual risk- that arose in his service with which he be- 
 came acquainted, unless he had notified his employer of such 
 extraordinary and unusual hazards and his employer had 
 promised to remedy them, and bearing in mind that tin 
 fendant can only be held liable for the alleged breach of its 
 duties as employer to P. set forth in the plaintiff's petition, 
 von will inquire whether it is established by the greater 
 weight of the evidence that the roof of the room No. 8 
 wherein P. is alleged to have worked was in the unsafe, dan- 
 
 ius and unstable condition alleged in the plaintiff's pe- 
 tition, and if so, whether it i- established by the same degree 
 of proof that the defendant knew of its condition in those 
 respects. If you find such to be the facts, then it is admitted 
 
 1 k .- 871.
 
 3SS NEGLIGENCE — MINES. 
 
 that W. P. prior to and at the time of his injury knew the 
 condition of the room in those respects. 
 
 Ordinarily a servant who has been injured by the negli- 
 gent act of his employer can not recover, if he, the servant, 
 has been in fault and thereby contributed at the time to his 
 injury. Such principle of law would apply to P. in such a 
 case if he had been injured and not killed and brought the 
 action to recover for his injuries. 2 
 
 2 R. de Steiguer, Judge, in C. & O. Coal & Coke Co. v. Preston. Judg- 
 ments affirmed by Supreme Court. 
 
 No. 519. Same continued — Knowledge of dangerous 
 condition of room — Continuation in work — Notice to em- 
 ployer — Promise to repair. — The plaintiff can not recover in 
 this action if he, P., had known of the alleged dangerous 
 condition of the room and continued to work therein without 
 objection or complaint to his employer, the defendant ; of the 
 dangerous condition of his room and the need of posts to 
 remedy it, unless his employer had then promised to furnish 
 the posts for such purpose, and P. had continued to work in 
 the room, relying upon the promise of his employer, and was 
 injured before the posts had been furnished, and before 
 reasonable time had elapsed for their being furnished. If you 
 find, however, not only that the room in which he worked 
 was in the alleged dangerous and unstable condition set forth 
 in the petition, and that the defendant had knowledge there- 
 of, and that P. made complaint to his employer, and that his 
 employer, the defendant, thereupon promised to supply him 
 with posts to post the room so as to render it safe for the 
 performance of his services, and that P. relied on such 
 promises and was thereby induced to, and did continue to, 
 work in the room, and that, before a reasonable time had 
 elapsed for the defendant to furnish the posts, the roof of the 
 room fell in in consequence of the want of posts and killed 
 P., then the fault of his continuing to work in his room, 
 with such knowledge of its dangerous condition, would not 
 prevent the plaintiff from recovering. And if you should 
 find, in addition to the facts that I have named, that it was 
 also established in evidence that he left a widow and next of 
 kin, as alleged in the plaintiff's petition, and it did not appear 
 that P. was guilty of fault or negligence in any other respect 
 than continuing to work in the room in its alleged dangerous 
 condition, in reliance upon such promise to furnish the posts, 
 then the plaintiff would be entitled to a verdict in her favor, 
 and you would have to assess her damages. 
 
 If, however, the defendant did fail to furnish the posts,
 
 NECxLIGEXCE — MEASURE OF DAMAGE. 389 
 
 and P. continued to work in the room for a longer period 
 than was reasonably necessary to enable the defendant to 
 furnish the posts, and P. was killed after such reasonable 
 time had elapsed, then the plaintiff can not recover. 
 
 I repeat, to find a verdict for the plaintiff you must find 
 that the room in which W. P. mined was in the unusually 
 unsafe, unstable, and dangerous condition alleged in the 
 plaintiff's petition, that the defendant had knowledge of its 
 condition in those respects, and the plaintiff notified the de- 
 fendant of the need of posts to post the room and render it 
 ordinarily safe, and that the defendant promised to furnish 
 the posts to him, that P. relied on such promise to supply 
 him with posts, and in such reliance continued to work in 
 the room, and that, before the defendant had supplied him 
 with the posts at his working-place, and before a reasonable 
 time had elapsed for the defendant to supply the posts, and 
 while in the line of his duty, the roof of the room fell in for 
 want of the posts, causing the death of P., and that he left 
 a widow and next of kin as alleged in the petition. These 
 facts being established in evidence, and it not appearing that 
 P. was in fault in any other respects contributing to his injury 
 at the time, except so far as continuing in the mining-room 
 after such posts had been promised him, on a promise of 
 defendant to supply posts, then the plaintiff would be entitled 
 to a verdict. 
 
 R. de Steelier, Judge, in The Chicago ,\: Ohio Coal ,\: Car Co. v. Pres- 
 ton, Supreme Court, No. 4318. Athens County. Judgments affirmed. 
 
 (11) Measure of Damage. 
 
 No. 520. Measure of damages in personal injury — Medi- 
 cal attendance — Interest. — If you find that the plaintiff is 
 entitled to recover, your verdict should be in hi.s favor, and 
 it should be in such an amount as will fully compensate him 
 for the injuries which he lias actually sustained, directly 
 
 resulting from the n< e and want of care Otl the pari of 
 
 the- defendant. This compensation would include the pain 
 that he has already suffered, as wall as the pain he will con- 
 tinue to suffer, if his injuries are of such a charactei as to 
 cause him pain in the future. Tin time that he has actually 
 lost by reason of his injuries, and the loss that may accrue 
 to him by reason of his diminished capacity to earn money 
 in the future, if you find his injuries are such as to diminish 
 his capacity to earn money in the future,
 
 390 NEGLIGENCE — MEASURE OF DAMAGE. 
 
 In addition to this he would be entitled to recover, if you 
 find in his favor, for expenses actually and necessarily in- 
 curred by him in this case by way of medical attendance and 
 nursing, and which have been proven to have been thus 
 expended; and you may also take into consideration any 
 further expense which will naturally and necessarily be in- 
 curred by him by reason of his injuries, if you find that his 
 injuries are of such a character as to require such expenses 
 and outlay upon his part. 
 
 You may also take into consideration the length of time 
 that has elapsed from the time that the plaintiff received his 
 injuries until the present, not as interest, nor by way of in- 
 terest, but simply as a part of the compensation to which the 
 plaintiff would be entitled in order to make him whole, if you 
 find he is entitled to recover. 
 
 From P. & L. E. R. R. Co. v. Munich, Sup. Ct. 4063. 
 
 Another briefer form. 
 
 If you find that the defendant is liable, you will award to 
 the plaintiff such sum as damages as will fairly and justly 
 compensate him for the injury ; the measure of his damages 
 is compensation and only compensation. You will take into 
 consideration the nature of the injury, the extent of it, the 
 pain which he has suffered, all the expenses which he has 
 necessarily been put to in consequence of the injury. You 
 will consider the effect of the injury, the permanency of it ; 
 the effect of the injury upon his bodily strength and upon his 
 capacity to labor and earn a living, and all the circumstances, 
 calmly and deliberately, and apply your judgment to the 
 evidence in the case. If you find in favor of the plaintiff, as 
 I have said, you will award to him such damages as will fairly 
 and justly compensate him for the injury. 
 
 No. 521. Damages for injury to minor in suit by next 
 friend. — [Continuing from last No. 520]. But the father is 
 entitled to the services and earnings of his minor son, until 
 he becomes twenty-one years of age, and may bring an action 
 in his own name against the defendant to recover such dam- 
 ages as he may have sustained in consequence of its alleged 
 negligence; and therefore you can not allow the plaintiff 
 (a next friend) any damages for any of his time that has been 
 lost, or which may be lost in consequence of said injury be- 
 fore he reaches the age of twenty-one years. 
 
 Evans, Judge, in Cent. Nat. Gas & Fuel Co. v. Baker.
 
 NEGLIGENCE — MEASURE OF DAMAGE. 391 
 
 No. 522. Damages — For death — Widow and children as 
 beneficiaries. — This case is brought by the administratrix of 
 A. B. C, deceased, for the benefit of his widow and four chil- 
 dren, named in the complaint, to recover damages for the 
 pecuniary injury that you may find to have resulted to them 
 by reason of his death, and the amount of the damages are to 
 be determined by the proofs in the case, and they must be a 
 fair and just compensation to the widow and children for the 
 pecuniary injury resulting to them from the death of C. , and 
 the damages are confined to pecuniary injuries resulting from 
 his death. You can assess no damages on account of be- 
 reavement arising from the death of A. B. C. , nor for any 
 mental suffering or anguish arising to the widow and chil- 
 dren on that account, nor to solace them on account of such 
 death. You are confined, in assessing the damages, to the 
 pecuniary injury resulting from his death, and you can not 
 assess any damages by way of punishment to the defendant, 
 nor way of making example of the defendant, for any wrong 
 it may have done in your estimation. You have a right 
 in making your estimation of the damages, if you so do, 
 to look to the pecuniary benefit that the wife and children 
 would probably have derived from A. B. C. , if he had not 
 lost bis life, and in assessing such damages you may look to 
 the manner of man that A. B. C. was, his occupation and 
 ability to earn money and to acquire property, his age, 
 health, and probable duration of life, in case he had not lost 
 it, as alleged, and what he would probably have devoted to 
 his wife and four children, had he continued to live. 
 
 k. de Steiguer Judge, in Cook v. C. II. V. & T. Ry., 51 O. S. 636. Lower 
 court was reversed by Circuit Court on que; lion of contributory negli- 
 gence of deceased, and this was affirmed by tin.- Supreme Court. 
 
 No. 523. Measure of damages for death of husband to 
 wife and children. — -The measure of damages in this action 
 i- the pecuniary injury only, the money value of the deceased 
 to his wife and children. This is the law. Tin- jury can not 
 consider their bereavement, or the- mental or bodily suffering 
 of either deceased or his family. Nor can you allow anything 
 by the way of exemplary damages. The sole question of the 
 jury a- to damages is wh it actu il pecuniary loss has the fam- 
 ed, named in the petition, sustained by his 
 death ; and in coming to a conclusion in this regard, tin- jury 
 
 may consider the habits of deceased at the time of his death, 
 
 whether or not he was an industrious man. his physical con- 
 dition, his capability of earning money, the mannei in which 
 he provided foi his family, his expectancy of life, and such
 
 392 NEGLIGENCE — MEASURE OF DAMAGE. 
 
 other circumstances presented by the evidence as will aid you 
 in coming to a correct conclusion. The plaintiff must make 
 out his case by a preponderance of the evidence. By pre- 
 ponderance of evidence is meant the best evidence — the evi- 
 dence that most readily convinces — and not necessarily the 
 testimony of the greatest number of witnesses. 
 
 If plaintiff is entitled to recover he would be entitled to 
 interest on whatever sum you may find in his favor from 
 
 , 1 8 — , up to this date, but he would not be entitled to 
 
 recover in interest and principal together a sum over ten 
 thousand dollars. 
 
 No. 524. Measure of damages for death caused by neg- 
 ligence. — Now, gentlemen, under the rules of law which I 
 have given you, give this case the careful consideration which 
 it deserves, as do all other cases which are brought before 
 juries for consideration, and determine whether the plaintiff 
 has fairly established the charge that is made here, of negli- 
 gence resulting in M. 's death. If you find that she has, then, 
 she would be entitled to recover in this action for such pe- 
 cuniary damage as the evidence shows to have resulted to the 
 next of kin of Mr. M. by reason of his death. 
 
 Nothing can be recovered in this action by way of solace 
 to this widow, who has been deprived of her husband, for 
 sorrow or mental anguish which would result from that to her. 
 It is purely a question for you, if you reach the question of 
 damages, as to the pecuniary damage which has been sus- 
 tained. And should you reach that point in your delibera- 
 tions, in fixing the amount of damage which has been sus- 
 tained by the death of M. , you may fairly take into consider- 
 ation such facts as the evidence disclose as to M. 's age, his 
 health, his habits of industry, and all those facts which bear 
 upon the question as to what his life in dollars and cents was 
 probably worth to his next of kin, and that sum would rep- 
 resent the damage that the plaintiff would be entitled to 
 recover in this case, if you find that the negligence has been 
 proven as alleged, and that such negligence caused the death 
 of M. 
 
 Wm. B. Sanders, Judge, in L. S. & M. S. Ry. v. Matthews, 51 O. S. 565. 
 
 No. 525. Damages for death of a young man. — I made 
 no reference to the question of damages, gentlemen of the 
 jury, I suppose, because it is rather hard to give you a basis 
 upon which you may estimate them, if you reach the conclu- 
 sion that the facts upon which the plaintiff relies, and is enti- 
 tled to recover have been established by a preponderance of
 
 NEGLIGENCE — MEASURE OF DAMAGE. 393 
 
 the evidence. The damages must be in a sense speculative. 
 You are to estimate what, by a fair judgment, would be a 
 pecuniary compensation to the mother and sisters and broth- 
 ers for the pecuniary loss which they have sustained by rea- 
 son of the death of the plaintiff's intestate. It is only the 
 pecuniary loss which they have sustained. You are to reach 
 that by taking into consideration the age of the young man, 
 his earning capacity, his probability of life, and to include in 
 your verdict such amount as you think the mother, brothers 
 and sisters would have received from this young man if he 
 had continued to live, and had not been killed in the way in 
 which it has been described to you. This calls for the exer- 
 cise of a fair judgment and discretion. You may include in 
 the verdict any reasonable probability of the accumulation of 
 any money by this young man if he had lived, and the bene- 
 fit from such accumulation, if he had died, to the persons for 
 whose benefit this action is brought. 
 
 Wm. H. Taft, Judge, in C. II & D. R. R. V. Kassen, Supreme Court, 
 No. 1545. 
 
 No. 526. Damages recoverable for death of child eleven 
 years old for parents. — You will assess such damages in that 
 case as in your judgment the plaintiff ought to recover, 
 limited, however, by the instructions herein given. This 
 discretion the court feels should be exercised in a reasonable 
 manner. It must be an honest, intelligent discretion, guided 
 by the facts that are given to you in evidence. This amount 
 of damages, within the limits of the law, and which is fixed 
 by the statute not to exceed ten thousand dollars, is to be 
 ascertained from the evidence submitted to you. It should 
 be a fair and just compensation, proportionate to the peculiar 
 injury resulting to the father and mother from such death; 
 and in determining this, the reasonable expectations of what 
 the beneficiaries might have received from the deceased had 
 she lived is the proper subject for your instruction ; ] but no 
 damages can be given on account of bereavement, mental 
 suffering, or as a solace on account of such death.-' This 
 compensation can be considered by you only as a hard cash 
 transaction. In determining this compensation, the intelli- 
 gence, health, and age of the deceased, <>r her capacity for 
 services or " ning, and the reasonable expectation of 
 
 what th( and mother might have received from the 
 
 deceased had she lived, the age of the parents, and the reason- 
 able 1 xpi • I mcy of their lives, considering their ages, health, 
 
 ■ Grotenk* mpi 1 ■ Han O. S si". 
 
 2 Davis v. Guarni 9-
 
 394 NEGLIGENCE — MEASURE OF DAMAGE. 
 
 and uncertainty of human life, may be considered by you as 
 shown by the evidence, which evidence must guide you. 3 
 
 3 Voris, Judge, in Gaston v. Lake Shore R. R. Co., Lorain County Com- 
 mon Pleas. 
 
 No. 527. Duty of injured person to care for himself — 
 Employment of physician as affecting measure of damages. 
 
 — ' • If the plaintiff is entitled to recover any damages, he is 
 entitled to recover an amount sufficient to compensate him 
 for the injury which he has actually sustained, so far as the 
 damages to him naturally and directly flowed from and were 
 caused by his wounds, bruises, or other injuries caused by 
 defendant's acts of negligence complained of. After the 
 plaintiff was injured he was bound to use ordinary care and* 
 prudence, under all the circumstances, to take care of himself 
 and his wounds ; and if he employed a physician of good 
 standing and reputation, supposing and having reason to think 
 he was such, and who, in fact, was such, then, though the 
 physician may not have used all of the approved remedies, 
 or that remedy which would have been most suitable in the 
 case, or which a good medical man would have used under 
 the circumstances, and on account of the failure to use such 
 usual or proper remedies his condition is worse than it would 
 be had it been used, still plaintiff may recover for his actual 
 damages, if he himself has not been negligent, and such 
 treatment or failure to use such remedy merely will not pre- 
 vent plaintiff from recovering the full extent of his injuries 
 as aforesaid." 
 
 From Loeser v. Humphrey, 41 O. S. 378. 
 
 No. 528. Measure of damages for personal injury — 
 Special defense on account of physical condition, etc. — After 
 the usual instructions as to the general rules governing the 
 measure of damages for personal injury, which are the same 
 in all cases, and are given elsewhere, the following instruc- 
 tions will fit the special case where the defendant claims that 
 the measure of damages shall not be so great on account of 
 the previous physical condition of the plaintiff. 
 • While it is no defense to say that the person was of sus- 
 ceptible nervous diathesis, or of infirm health, and liable to 
 break down form nervous exhaustion or other causes, and 
 not able to perforin ordinary labor, yet these circumstances 
 as you find them to be may be and should be considered by 
 you in determining what compensation ought to be awarded, 
 if any, by reason of future impaired ability to earn wages 
 (or perform labor) or engage in any profitable employment,
 
 NEGLIGENCE — MEASURE OF DAMAGE. 395 
 
 as bearing upon the question of the length of time the plain- 
 tiff may or may not continue to be disabled, and the probable 
 duration of his (or her) life. 
 
 But for whatever impairment he (or she) has so sustained, 
 or will sustain, and caused by said wrongful acts of the de- 
 fendant, he (or she) is entitled to be compensated, so far as 
 you can reasonably ascertain from the evidence. You may 
 consider also what effect, if any, the fact that the plaintiff 
 continued in her occupation after the injury had upon her 
 physical condition. You are instructed that for any suffering 
 or impairment caused or sustained by reason thereof she can 
 not recover, if by reasonable care and prudence under all the 
 circumstances, and the surrounding circumstances should be 
 considered by you in determining whether she exercised 
 reasonable care and prudence, she would have avoided them. 
 The defendant can not be charged with the consequences of 
 the want of reasonable care and prudence of the plaintiff that 
 caused her suffering or impairment that otherwise she would 
 not have endured. 
 
 But you are instructed, however, that it is not sufficient 
 to defeat her action that she thereby only aggravated the 
 injury caused by the negligence of the defendant. 
 
 Voris, Judge, in Dussel v. Akron St. R. R. Co.. Summit County Com- 
 mon Pleas. Affirmed by Circuit and Supreme Court. 
 
 As to damages for personal injury when the person's health is im- 
 paired at the time of injury, sec [O Am. St. Rep. 65. 
 
 No. 529. Same continued — Amount of compensation. — 
 As to the amount of compensation, the court can give you no 
 further assistance. The law has wisely left that to the in- 
 telligence, candor, and impartial judgment of twelve jurors. 
 Neither should your prejudices or sympathies in the least 
 affect that judgment. What does a fair consideration of the 
 evidence say that impartial justice demands? 
 
 It is the pride of our jurisprudence that justice is admin- 
 istered impartially. The law loves candid justice, and is no 
 respecter of persons. The rich and poor, the weak and in- 
 fluential, are alike- entitled to its protection. Yon are the 
 
 exponents of that sense of justii 
 
 Voris, Judge, in Dussel v. Akron St. R, R. Co., Summit County Com- 
 mon Pleas. Affirmed bj ( in uit and Supreme Court. 
 
 No. 530. Damages recoverable by husband for injury to 
 wife — In personal injury. — You should not include any dam- 
 ages that resulted to the husband of the plaintiff for any in- 
 juries to the person of his wife, foi her physical suffering, oi- 
 lier mental anguish, such as constitute a violation of her per- 
 sonal rights, for anything which she may have lost in her 
 20
 
 396 NEGLIGENCE — MEASURE OF DAMAGE. 
 
 wages, or her ability to earn wages, or as a wage-earner for 
 other persons, but not in the domestic services of the plaintiff 
 in his family or household affairs, or to her own separate prop- 
 erty or means. But for all these the law gives her a remedy 
 in her own right, and for which the husband may not recover. 
 But he may recover in this action for any damages he may 
 have sustained by reason of the impaired ability of his wife 
 caused by said acts of negligence, if any you find from the 1 
 evidence, to perform her usual domestic services in and about i 
 his family and household, for such services as she was able 
 and usually contributed "to his pursuit of gardening in con- 
 nection with her household duties, and in selling and mar- 
 keting said products," taking into account the loss of time, , 
 the extent and probable duration of any impaired ability 
 which you may find from the evidence, if any, for any loss of 
 the society and comfort of his wife, and for any expenses 
 reasonably incurred for surgical and medical attendance and 
 nursing, incurred in his own behalf, or for his said wife, and 
 for damages to the vehicles as you find the facts to be from 
 the evidence. 
 
 Voris, Judge, in Cranmer v. Akron St. Ry. Co., Summit County Com- 
 mon Pleas. See London v. Cunningham, 20 N. Y. S. 22 Am. St. Rep. 800. 
 
 No. 531. Damages resulting to husband and children 
 for death of wife, etc. — Measure of. — "The plaintiff's dam- 
 ages, if any, should be a fair and just compensation for the 
 pecuniary injury resulting to the husband and children from 
 the death of the wife. In no case can the jury consider the 
 bereavement, mental anguish, or pain suffered by the living 
 for the dead. The damage is exclusively for a pecuniary 
 loss, not a solace. The reasonable expectation of what the 
 husband and children might have received from the deceased, 
 had she lived, is a proper subject for the consideration of the 
 jury, if they find for the plaintiff. What the husband and 
 children might reasonably expect to receive by reason of the 
 services of this woman in a pecuniary point of view is to be 
 taken into account in determining the amount of damages, if 
 you find for the plaintiff. It should be said that it is the' 
 present worth as a gross sum in money, for the loss of the 
 services of the wife, that you are to find, if you find a loss 
 It is that same which put in money is a compensation for 
 what you find this woman would reasonably have saved for 
 her family. Of course, in determining this, these things are 
 all to be considered ; that is, the age, health, probability of 
 length of life, or death if she had not died from taking this 
 drug. ' ' 
 
 From Davis v. Guarnieri, 45 O. S. 470.
 
 NEGLIGENCE — STREET RAILWAYS. 39/ 
 
 (12) Street Railways. 
 
 No. 532. Duty of street railway company as carrier to 
 its passengers. — As a matter of public policy, the law requires 
 a strict performance of the obligations assumed by a street 
 railway company in its capacity as a common carrier to those 
 taking passage on its cars. In accepting the passenger for 
 transportation, the defendant can not be heard to say that it 
 is not liable for the injuries caused to the passenger by its 
 performance, while the relation exists, unless it has exercised, 
 under all the circumstances, that degree of care and prudence 
 in its management, and in the instrumentalities employed by 
 it, that prudent men in like circumstances usually employ, 
 and commensurate with the hazards ordinarily to be encoun- 
 tered. The rule requires that it should do everything neces- 
 sary to secure the safety of its passengers, reasonably consist- 
 ent with the business and means of conveyance employed in 
 street railway carriage. 
 
 The law requires the utmost care and skill which prudent 
 men are accustomed to use under similar circumstances, 1 but 
 the rule is not to be pressed to an extent which would make 
 the conduct of the business so expensive as to be wholly im- 
 practicable. But the common carrier must do all that any 
 one in his position could reasonably do to guard against in- 
 jury to his passenger, and to provide such facilities and 
 instrumentalities as are required for the safe and prudent 
 carriage of passengers for pay. In the absence of knowledge 
 to the contrary, if the plaintiff acted in good faith, she was 
 entitled to presume that the defendant would not be negligent 
 in the- performance of its whole duty to her, and that she 
 would not be exposed to any hazard that reasonable care and 
 prudence could fairly guard against : 
 
 '7 W. I, B ! 
 Voris, |udge, in Dussel v. Akron St. K. R. Co., Summit County Com- 
 mon Pleas. Affirmed by C ircuil and Supreme Court. 
 
 Street railway is a 1 ommon carrier. Booth on St. Rys., Sit. 324, 
 
 No. 533. Street railroad — Liabilties to its passengers — 
 Rights of passengers. — The a< ceptance of a person as a pas- 
 n(] the reception of the usual fare would constitute 
 the relation of carrier and p so thai he could not be 
 
 ejected from the cars of the defendant against his will during 
 the 1 for which payment had been made, except for 
 
 improper conduct on his part.
 
 39S NEGLIGENCE — STREET RAILWAYS. 
 
 The passenger rightfully pursuing his ride on the cars of 
 the defendant is entitled to be treated with courtesy, and may 
 not be treated rudely or be subjected to insult by the em- 
 ployees and agents of the company managing the cars, with- 
 out incurring liability therefor. 
 
 In general, the passenger carrier is bound by the acts of 
 the employees and agents in the scope of their employment, 
 and must answer for their negligence, unskillful, or wrongful 
 performance in the scope of such employment. In other 
 words, the negligence or improper conduct of the conductors 
 and other employees of the company managing the cars, in 
 the scope of their employment, is the negligence and wrongful 
 acts of the company, for which it may be held liable. 
 
 Steffee v. The Akron St. R. R. Co., Summit County Common Pleas. 
 Voris, Judge. Duties of street railway to its passengers. Booth St. Ry., 
 Sees. 327, 326, 328. In Ohio the. utmost degree of care and skill is re- 
 quired. 7 W. L. B. 187 ; 6 O. C. C. 155. 
 
 No. 534. Street railways — Relation of passenger — Cre- 
 ated when. — The acceptance of a person as a passenger, and 
 the reception of the usual fare, would constitute the relation 
 of carrier and passenger (Booth on St. Rys., Sec. 326), so 
 that he could not be ejected from the cars of the defendant 
 company against his will during the passage for which pay- 
 ment had been made, except for improper conduct on his 
 part. A passenger rightfully pursuing his right on the cars 
 of the defendant is entitled to be treated courteously, and 
 may not be treated rudely, or be subjected to insult by the 
 employees and agents of the company managing the cars, 
 without incurring liability therefor. 
 
 From Steffee v. The Akron Street Railroad Co., Summit County Com- 
 mon Pleas. Voris, Judge. 
 
 " The existence of the relation depends largely upon the intention of 
 the party at the time he enters, or while attempting to enter." Booth, Sec. 
 326. He is a passenger while in the act of getting in the _ar. 32 Minn. 1 ; 
 137 Mass. 210. The relation ceases when the passenger steps from a car 
 upon the highway. 139 Mass. 542 ; 31 N. E. 391. 
 
 No - 535- Street railroad company — Duty to public in 
 
 use of street. — The street railroad company in the use of the 
 street owes to the public using the street the duty to carefully 
 and prudently exercise its right of running its cars on the 
 street, so that it does not injure others ; but it is required to 
 exercise no higher degree of care than that required of the 
 plaintiff, and that which the circumstances reasonably require, 
 but this care must be commensurate with the hazards ordi- 
 narily attending the operation of its cars upon the public 
 streets of the city.
 
 NEGLIGENCE — STREET RAILWAYS. 399 
 
 The privileges granted to the railroad company to lay 
 down its tracks and operate its cars are upon an implied 
 condition that they will be used with due regard to the rights 
 of the public in the highway, and that it will not be guilty 
 of negligence, nor is the use of the street by the public for 
 the purpose of traveling in the ordinary mode, an invasion 
 of the rights of the persons operating the street railway. 
 The public still retains the right to make ordinary use of the 
 street, not inconsistent with a reasonable and prudent opera- 
 tion of the defendant's cars, and the railway company holds 
 its privileges on an implied condition that the rights of the 
 public shall not be unnecessarily impaired or lessened. 
 
 It is the duty of the defendant company to exercise ordi- 
 nary care and diligence to prevent injury to persons lawfully 
 traveling in the street occupied by its tracks. It is bound 
 to know that the public may use the entire street when not 
 in actual use by its cars, and it must employ reasonable 
 means to prevent injury to those whom it knows or ought to 
 know may rightfully so use the street. This knowledge re- 
 quires that it shall exercise due care and diligence to make it 
 reasonably safe to travel on the highway in the ordinary 
 mode. 
 
 Voris, Jud.^e. in Cranmer v. Akron St. Ry. Co., Summit County Com- 
 mon Pleas. Booth on St. Kys., Sec. 303. 
 
 No. 536. Transportation upon street railroad embraces 
 what. — The transportation of a person upon a street railroad 
 or cable railroad embraces not only the carrying of the pas- 
 senger, but the receiving and the discharging of the passen- 
 ger; and the ordinary care that the railroad company owes to 
 to the passenger is just such ordinary care as is to be applied to 
 thecarrving. receiving, and discharging of the passenger from 
 its train under the circumstances of each ease. 
 
 No. 537. Duties to passengers. — The defendant was not 
 the insurer of the safety of the plaintiff in taking passage 
 upon its ear. but by accepting him as a passenger it bound 
 provide him with a safe transportation to the place 
 of destination, and not to expose him to any hazards that 
 ■ .nable care and prudence could prevent; and in taking 
 ige upon tin- car In- look upon himself the hazards inci- 
 dent to passenger transportation upon the defendant's car, 
 wlun properly managed only; this would include getting on 
 and off tin 1 
 
 A- matter of public policy, the law requires a strict per- 
 formanci of the obligation assumed by the public carrier, to
 
 400 NEGLIGENCE — STREET RAILWAYS. 
 
 those taking passage upon its cars. The defendant can not 
 be heard to say that it is not liable for the injury caused to 
 the passenger by its performance, while the obligation ex- 
 ists, unless it has exercised under the circumstances that de- 
 gree of care and prudence in its management that prudent 
 men in like circumstances usually employ, and commensurate 
 with the hazards ordinarily to be encountered. The rule re- 
 quires that it should do everything necessary to secure the 
 safety of its passengers, reasonably consistent with the means 
 and business of the conveyance employed in street railway 
 carriage. The common carrier must do all that anyone in 
 the position could reasonably do to guard against injury to 
 its passengers and to provide such facilities as are required , 
 for the safe and prudent carriage of passengers for pay. 
 
 Voris, Judge, in Sourek v. The Akron St. Ry. Co., Summit County 
 Common Pleas. Booth on St. Rys., Sec. 328. 
 
 No. 538. Bound by acts of agents — Conductor and mo- 
 torman. — In general the passenger carrier is bound by the 
 acts of its employees and agents in the scope of their em- 
 ployment, and must answer for their negligent or wrongful 
 performance in the scope of their employment. In other 
 words, the negligence of the conductor and motorman of 
 this car, in the scope of their employment, would be the 
 negligence of the defendant company, for which the defend- 
 ant would be liable, if you find that they, or either of them, 
 were negligent in the performance of their duties as such 
 employees and agents of the defendant, in respect to the 
 negligence charged. 
 
 Voris, Judge, in Sourek v. The Akron St. Ry. Co., Summit Common 
 Pleas. Booth on St. Rys., Sec. 372. 
 
 No. 539. Duty to stop cars at usual stopping-places for 
 passengers. — It was also the duty of the defendant to stop 
 its cars at its usual stopping-places to take on passengers, 
 and for such reasonable time as to give them reasonable op- 
 portunity to get aboard, so as not to endanger the safety of 
 the passenger; but where the cars are signaled to stop at 
 other than regular stopping-places, the plaintiff would not 
 be justified in attempting to get on the car, until it had fully 
 stopped, unless the plaintiff was reasonably misled into the 
 belief by the concurring conduct of the defendant that it 
 would be safe for him under the circumstances to get on 
 board the car while so in motion. 
 
 Voris, Judge, in Sourek v. St. Ry. Co., Summit County Common Pleas. 
 Booth on St. Rys. 347. See 128 N. Y. 583; 12 N. Y. S. 930.
 
 NEGLIGENCE — STREET RAILWAYS. 401 
 
 No. 540. Stopping car for passengers to alight. — The 
 court can not say to you as a matter of law how long the car 
 of the defendant should have stopped when plaintiff alighted ; 
 but whether the car did stop, or whether it stopped long 
 enough for plaintiff to alight with safety, are matters of fact 
 for you to determine under all the circumstances of the case 
 given you in the evidence. We do, however, say to you that 
 the car ought to have been stopped long enough to give the 
 plaintiff reasonable opportunity to alight in safety. 
 
 Voris, Judge, in Dussel v. Akron St. R. R. Co., Summit County Com- 
 mon Pleas. Affirmed by Circuit ami Supreme Court. 
 Booth on St. Rys., Sec. 347. 
 
 No. 541. Alighting from street-car — Assistance of con- 
 ductor — Ordinance requiring. — What actual assistance, be- 
 yond stopping the cars for a reasonable time, the conductor 
 should have given to the plaintiff, if any, we leave as a ques- 
 tion of fact for you to determine under all the circumstances 
 developed by the evidence; and you may consider the ordi- 
 nances of the city, making it the duty of the conductor to 
 assist passengers to alight, in connection with other evidence 
 in the case, giving it such effect as you think it entitled to. 
 
 The defendant was not an insurer of the safety of the 
 plaintiff in alighting from the car, but by accepting her as a 
 passenger on its car it bound itself to provide her with a safe 
 car to transport her to the place of destination, and not to 
 expose her to any hazard in alighting that reasonable care 
 and prudence could prevent; and in taking passage on the 
 car she took upon herself the hazards incident to passenger 
 transportation upon the defendant's car, when properly man- 
 aged, and upon a car competent for the service to which it 
 was applied at the time of the injury. 
 
 Voris, Judge, in Dussel v. Akron St. R. R. Co., Summit County Com- 
 mon Pleas. Affirmed by Circuit and Supreme Court. 
 Booth on St. Rys., 
 
 No. 542. Injury to passenger by being thrown from 
 car. — The fart that tlie plaintiff was injured by either having 
 
 been thrown or by falling from tin- car does not, in itself, jus- 
 tify you in concluding that tin- defendant's employees were 
 negligent, as charged in the plaintiff's petition. Negligence 
 c.in no t b< assumed; it must have been proved by affirmative 
 evident e. 
 
 (a) Duly oj carrier /<> use high degree of car v toward* 
 
 S/7, // fhi 
 
 The defendant, being a common carrier <>f passengers, 
 was required, through its employees in charge of the car, to
 
 402 
 
 NEGLIGENCE — STREET RAILWAYS. 
 
 exercise the highest degree of care which might be reasona- 
 bly expected of intelligent and prudent persons engaged in 
 the business of running street-cars, considering the instru- 
 mentalities employed, and the dangers naturally to be appre- 
 hended. But the defendant was not obliged to insure the 
 safety of the plaintiff as one of its passengers ; it was not 
 bound, absolutely, and at all events, to carry him safely 
 without injury. 1 
 
 (b) Duty of such passenger — Correlative duty of passenger 
 
 and carrier. 
 
 There was also a duty resting upon the plaintiff while he 
 was a passenger upon the defendant's car. It was his duty to 
 exercise that ordinary care and prudence which a prudent 
 man would himself observe to save himself from injury. The 
 degree of care on the part of the railroad company was the 
 highest degree of care and skill ; the degree of care on the 
 plaintiff as a passenger was ordinary care and skill. If he 
 was guilty of negligence, if he did not observe ordinary care, 
 and that contributed to his injury, he is not entitled to re- 
 cover damages from the defendant. 
 
 If the plaintiff was negligent, and his negligence in any 
 degree contributed to the plaintiff's precipitation or fall from 
 the car, he can not recover. 
 
 (c) Plaintiff voluntarily leaving car while in motion. 
 Therefore if the plaintiff voluntarily left his place in the 
 
 car, took his position on the step, and there remained while 
 the car was going at the rate of eight or ten miles an hour, 
 he thereby assumed the risk of any injury which might be 
 caused by the usual or ordinary movements of the car. So, 
 if he voluntarily jumped or stepped off the car while it was 
 going so fast as to render the act. dangerous, the fact that the 
 
 car • did not stop at Street was no excuse for him to 
 
 so jump or step off the car, and he was guilty of contribu- 
 tory negligence. 2 
 
 1 Booth on St. Rys., Sec. 327. 
 
 2 D. F. Pugh, Judge, in Cronin v. Columbus Street Ry. Co., Franklin 
 County Common Pleas. Leaving car while in motion. Booth on Street 
 Railways, Sec. 337; Ganley v. Brooklyn City Ry., 7 N. Y. S. 854. 
 
 No. 543. Same continued — Giving information to con- 
 ductor upon entering car, where passenger desires to stop — 
 Duty of conductor in such case. —The plaintiff does not 
 claim that he signaled, or otherwise informed the conductor 
 
 just before the car reached Street that he wanted the 
 
 car to stop, but that when he paid his fare he gave him 
 that information. If the conductor was so informed that the 
 plaintiff wanted to get off at Street, it was his duty to
 
 NEGLIGENCE — STREET RAILWAYS. 403 
 
 stop the car so as to give him an opportunity to alight in 
 safety, and if he failed to do that, and it was the cause of the 
 plaintiffs injuries, and if plaintiff's negligence did not con- 
 tribute to them, the company is liable to respond in damages. 1 
 Must have been the proximate cause. 
 If you find that he did give the conductor that informa- 
 tion, was the failure of the conductor to have the car stopped 
 the proximate cause, the legal cause of the plaintiff's precipi- 
 tation from the car, if that was proved ; did the plaintiff ex- 
 ercise ordinary care in stepping out on the car-steps, before 
 the car stopped, and standing there as he says he did? If it 
 was not the observance of ordinary care, the question for you 
 to consider is, whether that was not the proximate cause of 
 him being thrown, or of his falling from the car, instead of 
 the failure of the conductor to stop the car. 
 
 If that conduct of the conductor of his was the proximate 
 cause, he can not recover. The failure of the conductor to 
 stop the car must have been the proximate cause to entitle 
 him to recover. It is difficult to make this plain; I mean 
 what is in law proximate cause. His precipitation or falling 
 from the car must have been the natural or probable result 
 of the conductor's failure to stop the car, if that was proved. 
 The failure of the conductor to stop the car, if a fact, must 
 have been the direct cause of his injuries, not in point of 
 time, but in relation to the plaintiff's precipitation or falling 
 from the car. Between the failure of the conductor to stop 
 tin- ear, and the precipitation or falling from the car, there 
 must have been no intervening and independent cause, dis- 
 connected with the fault of the conductor to stop the car, and 
 self-operating, which produced the plaintiff's precipitation or 
 falling from the ear. If the plaintiff informed the conductor 
 
 that he wanted the ear stopped at Street, he had a right 
 
 to expect that he would Mop it there so he could get off; but 
 did that authorize him, in tlu- exercise of ordinary care, to go 
 0U I an< 3 g { 1 on tin- step of the car, if that was a place of dan- 
 when the car was going? Did it authorize him as a pru- 
 I ,,,.,,, to go oul "ii the step? [f you answer these ques- 
 tions in the affirmative, then you must find for the plaintiff; 
 but if you answer them in the negative, you must conclude 
 
 thai the condu top the car was not the 
 
 of the plaintiff's precipitation <»r falling From 
 
 th< 
 
 1 See Booth on St Rys., 
 
 id F. Pugh, Judge, in Cronin v. Columbu9 Street Ry. Co., I 
 lin County Common Pli
 
 404 NEGLIGENCE — STREET RAILWAYS. 
 
 No. 544. Contributory negligence in boarding moving 
 street-cars. — Whether or not it is negligence to board mov- 
 ing street-cars depends upon the rate of speed at which the 
 car is going. If the plaintiff attempted to board the car 
 when it was moving at a rapid rate of speed, or such rate of 
 speed as made it dangerous to get on, it was negligence on 
 his part to attempt to board the car when it was so moving, 
 and if that negligence contributed in any degree to his injury, 
 it would be contrary to the law for you to find a verdict in 
 his favor, although the evidence may satisfy you that those 
 moving the car were also negligent. 
 
 If the car was moving either slowly or rapidly, the duty 
 did not devolve upon the driver to stop the car until the. 
 plaintiff got on and got into his seat safely. But if the evi- 
 dence shows that the car was standing still, and especially if 
 at a place where a passenger had a right to get on, or if it was 
 standing still at any place that would give a passenger a right 
 to get on, and the driver saw the plaintiff getting on, it was 
 his duty not to move the car till he was on and had a reasona- 
 ble time to take a seat, and if he failed to wait, if the evidence 
 shows to you that the car was standing still, and that he failed 
 to wait until plaintiff boarded the car, and he saw the plain- 
 tiff getting on, then it was negligence on his part, and the 
 defendant company is liable for any injuries that may have 
 been caused to him in that manner. 
 
 D. F. Pugh, Judge, Franklin County Common Pleas. 
 
 It is not negligence per se to board a car while it is moving slowly. 
 137 Mass. 210; 69 N. Y. 195; Booth on St. Rys., Sec. 336. The person 
 assumes all the ordinary risks. Id. The passenger must be given a rea- 
 sonable time to board the car in safety. Id., Sec. 348. 
 
 No. 545. Street railway — Boarding car. — Statement. — 
 The claim of the plaintiff in this case is : That the defendant 
 has not exercised in and about this matter the highest degree 
 of care which was reasonable under all the circumstances, and 
 such as would be expected of intelligent and prudent persons 
 engaged in this business. The plaintiff claims that the car 
 came to a stop, and that he stepped upon the footboard, and 
 before he had time to obtain a seat, the car, unexpected to 
 him, started ; that in so doing he lost his balance, and that 
 he was thrown against one of the seats of the car and injured. 
 
 The defendant claims that the plaintiff attempted to board 
 the car before it came to a stop, and in doing so he received 
 the injury by falling against one of the seats of the car, and 
 that the plaintiff was guilty of contributory negligence in 
 thus attempting to board the car, and in not properly protect- 
 ing himself in getting on the car at the time and the manner
 
 NEGLIGENCE — STREET RAILWAYS. 405 
 
 he did, and it claims that it has exercised the highest degree 
 of skill and care which was reasonable under all the circum- 
 stances, that would be expected by intelligent and prudent 
 persons engaged in this business, and that, therefore, there 
 should be no recovery. 
 
 It was the duty of the plaintiff in boarding, or attempting 
 to board the car, to use ordinary care in securing a seat, and 
 if he delayed unnecessarily, and for an unreasonable time by 
 standing on the footboard or otherwise, and so contributed 
 to his injury, he can not recover. It was not negligence as 
 matter of law for the plaintiff to board the car while it was 
 in motion, if you find he did so, yet if he did, he assumed all 
 the risks of the ordinary and usual movements of the car, if 
 operated with the utmost care by the defendant's employees, 
 and if injured under such circumstances, he can not recover. 
 
 It was the duty of the plaintiff at all times while boarding, 
 or attempting to board the car, to exercise ordinary care and 
 to make such use of his hands and arms to support himself, 
 while on the footboard and entering from thence into the 
 car, by means of the posts of the car, or other convenient 
 means of support, if such there were, as a person of ordinary 
 prudence, and in the exercise of ordinary care under like cir- 
 cumstances, would have exercised ; and if he failed to do this, 
 and so contributed to his injury, he can not recover. I can 
 not say to you that ordinary care required him to take hold 
 of the posts with both hands, or with one hand, or whether, 
 under the circumstances, it required him to take hold of the 
 posts at all or not. I leave that to you, whether, under all 
 the circumstances of this case, he acted as an ordinarily pru- 
 dent person would have acted under the same or similar cir- 
 cumstances in attempting to board this ear. And this is also 
 true of the defendant company. The question is left for you 
 to determine whether or not the defendant company exercised 
 the utmost care or the highest degree of care in carrying this 
 j;assenge] . 
 
 If you find the plaintiff got on the footboard of the car 
 
 while it was at a standstill, and that, while- he was standing 
 
 on 'lie footboard, and before Ik- secured a seat, tin- motorman 
 in charge of tin- ear stalled, and in s,, doing exercised the 
 utmost degree of care, starting it without any sudden jerk, 
 then the courl says i<> you thai the defendant was not guilty 
 
 >f negligence, and your verdict must lie for the defendant. 
 
 Gillmer, Judge, in Get •. Trumbull Electric R, R. Co., Trumbull 
 2ount) Common Pl< 1 Booth on Si Rys., Se<
 
 406 NEGLIGENCE — STREET RAILWAYS. 
 
 No. 546. Boarding car while in motion. — If the car was 
 
 slowed up, so that it would be reasonably prudent for the 
 plaintiff' to attempt to get on, and in the exercise of reason- 
 able prudence and care under the circumstances, attempted 
 to get on and failed, without fault on his part, he would not 
 therefore be charged with contributory negligence; but if 
 he did not so act prudently and carefully, under the circum- 
 stances then known to him, in attempting to get on while the 
 car was yet in motion, then he would be held to have taken 
 the risks of the want of such prudence and care, if volun- 
 tarily undertaken and encountered by him. . . . 
 
 We can not say to you as a matter of law whether or not 
 it was negligence for plaintiff to attempt to board the car* 
 while it was in motion, if you find it to have been in motion 
 from the evidence, or with one of his hands or an arm en- 
 cumbered by his dinner-basket, but we leave it to be deter- 
 mined by you, from all the circumstances given you in the 
 evidence, whether he was or was not guilty of contributory 
 negligence in attempting to get on the car, as the evidence 
 shows he did. 
 
 But if the car was not in motion, but was stopped to 
 enable him to get on the car, and, while he was so attempt- 
 ing to get on, it was suddenly started, and before plaintiff 
 had reasonable time to get on board, and the plaintiff was 
 thereby injured, without his fault, then we say to you that 
 the plaintiff would be entitled to recover therefor, if in other 
 repects he is entitled to recover under these instructions given 
 you. 
 
 Voris, Judge, in Sourek v. Akron St. Ry. Co., Summit County Common 
 Pleas. Booth on St. Rys., Sec. 336. 
 
 No. 547. Duty of street railway employees in charge of 
 car to look out for signals— Starting car before passenger 
 boards car. — It was the duty of persons in charge of the car 
 
 to look out for signals to stop at the west crossing of 
 
 Street, that being a regular place to receive passengers. If 
 plaintiff, standing on said crossing, gave such signal which 
 either was or should have been seen by them, and the car 
 stopped at said crossing and he began to board the same, 
 plaintiff had the right to assume that his signal had been seen 
 and complied with, and that the car would not be started 
 until he was safe on board. It was the further duty of those 
 in charge of the car to exercise care to see that it was not 
 started again until he had reasonable time to get on board ; 
 and if it was started, by reason of their failure to exercise 
 care, while he was in the act of boarding it, and he was in-
 
 NEGLIGENCE — STREET RAILWAYS. 407 
 
 jured in consequence, without fault on his part, he is entitled 
 to recover. 
 
 Philip H. Kumler, Judge. Given by request in Mt. Adams & Eden Park 
 Inclined Ry. v. Peppard, S. C. 2927. Judgments affirmed. Booth on St. 
 Rys., Sec. 547. 
 
 No. 548. Boarding car while in motion. — // is not neg- 
 ligence, as matter of law, for one to attempt to board sucli a 
 car as that in question while in motion, but the question is one 
 for the jury to decide from the circumstances as they find 
 them from the evidence. If the plaintiff was at the crossing 
 aforesaid, and gave such signal, so that it was or should have 
 been seen, and the speed of the car was thereupon slackened, 
 so that when it reached him the car was going so slowly that 
 plaintiff was justified as a man of common prudence in 
 endeavoring to enter it, he is entitled to recover, although 
 the car did not come to a full stop, if his injury was due to 
 the negligence of those in charge of the car in starting it at 
 a more rapid speed while he was in the act of getting on 
 board, without fault on his part. 
 
 If plaintiff was standing at said crossing and so signaled, 
 and the car thereupon either was stopped, or so slackened 
 speed, and he was so injured by their fault, and without fault 
 on his part, the fact that his signal was not seen, and such 
 stopping or slacking speed was done for some other reason, 
 if such were the fact, would not affect his right to recover. 
 So stopping or so slacking speed, as to justify an attempt to 
 get on board, would be an imitation to enter the car, if those 
 in charge of it knew or should have known that plaintiff so 
 intended, and in that case it was their duty to use proper care 
 to see that the car was not started or its speed increased until 
 he was safe on board. 
 
 It makes no difference as to plaintiff's right to recover 
 whether the car started or increased speed suddenly or with 
 a jerk, or otherwise, if its so doing was due to negligence on 
 the part of those in charge of it, and was the cause of plain- 
 tiff's injury, without fault on his part. That is, if he was at 
 said crossing and was justified under all the circumstances, 
 as a man of ordinary prudence, in attempting to board the 
 he did. 
 
 Philip H. Kumler, Judge, in Mt Adams & Eden l';irk In. Ry. v. Pep- 
 pard, S. C. 2927. Judgments affirmed. Booth <>n St. Rys., 
 
 No. 549. Distinction between street railroad and steam 
 railroad — As to stops. — In order to make this charge plain 
 
 to yon, I want to call your attention to a distinction between
 
 40S NEGLIGENCE — STREET RAILWAYS. 
 
 a steam railroad and a street railroad, with reference to the 
 stopping of trains. A steam railroad stops at designated 
 stations for the purpose generally of receiving and discharging 
 passengers. When a steam railroad stops at such a station, 
 the managers or operators of such train are presumed to 
 know that passengers might get off and on at those stations, 
 because that is the general purpose of such stoppage. The 
 street railroad has but two definite points of stopping, i. e., 
 at both termini — at both ends of the road; and between 
 the termini they have no such thing as stations as a steam 
 railroad has. They do not stop for the general uniform 
 purpose of letting off or taking on passengers. A street 
 railway winds its way on its tracks through the streets of, 
 a city, and it, in its operation and management, is subject 
 to such delays and interferences as arise from the use of the 
 streets by others for lawful purposes; consequently there 
 might be stops between termini on the part of the street 
 railroad management that are not for the purpose of taking 
 on or putting off passengers. 
 
 I call your attention to that so that you do not take a 
 general and inadvertent idea that every time a street railroad 
 train stops it must be for the purpose of taking on or putting 
 off passengers ; but among other duties required of the street 
 railroad management, is that they are to stop for the reception 
 or discharge of a passenger or passengers when especially 
 requested or notified to do so in some way ©r other. Of course, 
 you know it required no particular form of request — any sig- 
 nal that would convey that idea to the management would 
 be sufficient. 
 
 Schroder, Judge, in Mt. Adams & E. I. P. Ry. v. Wysong. 
 
 No. 550. Stopping cars for passengers to alight and 
 starting again — By conductor upon notice, etc. — If you find 
 from the evidence that in this case the defendant's conductor 
 stopped the car himself upon a notice communicated to him 
 by this plaintiff, and started the car before she had fully 
 alighted, then your verdict will be for the plaintiff. 
 
 (a) By gripman to receive passenger — Passenger leaving 
 car at that time. — 
 
 If, however, you find that the conductor himself did not 
 stop the train, but that it was done by some other person on 
 the train at the plaintiff's request, or that it was done by the 
 gripman in order to receive a passenger from the street, and 
 if, upon the stopping of the car, the plaintiff proceeded to 
 leave it, and in leaving it the train was started without any 
 notice or expectation on her part, and she was thrown to the
 
 NEGLIGENCE — STREET RAILWAYS. 409 
 
 ground and injured, then it will be for your decision to deter- 
 mine whether the defendant was guilty of ordinary neglect 
 which directly caused the injury complained of. 
 
 (b) Knowledge of . conductor of intention of passenger to 
 alight — Duty to look out for departure. — 
 
 If the conductor knew, or had reason to know, that the 
 plaintiff intended to leave the car when it stopped at the 
 corner, and if you find that at that point the car stopped, it 
 was then the duty of the conductor to look out for her depar- 
 ture, and to wait such length of time as would have enabled 
 him to know that she had not given up the intention of get- 
 ting out of the car. And if, under such circumstances, he 
 did this — that is, if you find that he had notice, or that he 
 really knew that she wanted to get off at that point, and if 
 you find that he did wait long enough so that he was en- 
 abled to determine that she did not intend to get off the 
 car, and yet, notwithstanding what he did, this injury hap- 
 pened, or this thing happened, then there is no negligence 
 chargeable to the defendant, and your verdict will have to be 
 in favor of the defendant. 
 
 If, however, under such circumstances he did not look for 
 her departure, and did not wait the requisite time already 
 described to you, and if in consequence thereof, and a direct 
 result of it, the car was caused to start, and she was thrown 
 and injured as she claims, then there is negligence as would 
 make the defendant answerable to the plaintiff. 
 
 If, however, you should find that the conductor did not 
 have reason to know that the plaintiff intended or wanted to 
 leave the train where it stopped at the corner, then you are 
 to determine whether his want of knowledge was the result of 
 any negligence on his part, whether it was negligent for him 
 to proceed afterward to the grip-car before ascertaining 
 whether any passengers intended to get off, or whether it was 
 negligent on his part, in view of the crowded condition of the 
 car, to abstain from working his way through the car towards 
 
 the front, and if lie had done SO, whether lie could have 
 
 rtained that she wanted to leave the car — whether it was 
 negligent for him to d<> what he did under the circumstances, 
 and if that n< e had a tendency or caused him to remain 
 
 in ignorance as to h< r intention. 
 
 Now, in determining this question of negligence, should 
 you find that he had no notice, or did not know that she was 
 about to leave the car, or intended to leave the car at this 
 point, you can take into consideration whether, if he had 
 exercised care with reference to ascertaining whether she 
 wanted to get out of tin.- car or not, it would have helped him
 
 410 NEGLIGENCE — STREET RAILWAYS. 
 
 any. You can take that into consideration, because even if 
 he were careful, and even if he had taken steps under the 
 circumstances, keeping in mind the hour of the day, the con- 
 dition of the train, the management of the train at that point, 
 even if, under those circumstances, had he been careful, and 
 yet could not have ascertained, under the circumstances, that 
 she wanted to leave the train, if you even should find that 
 that was careless on his part, that carelessness could not be 
 said to have contributed to her injury, and in that event your 
 conclusion upon that point must not be against the defendant. 
 
 Schroder, Judge, in The Mt. Adams & Eden Park Inclined Ry. v. Wy- 
 song. Dismissed in Supreme Court. To save reversal on account of ex- 
 cessive verdict remittitur was made in Circuit Court. The charge is good. 
 See Booth on St. Rys., Sec. 349. 
 
 No. 551. Injury while alighting from car by catching 
 clothing on car — Duty of passenger and company. — "The 
 jury are instructed that this case is to be determined upon 
 the facts offered in evidence, and not upon any theory ad- 
 vanced to explain circumstances; that is to say, that before 
 the plaintiff shall be entitled to a verdict for any amount, the 
 evidence must satisfy the minds of the jury that the defend- 
 ant, its agents or employees had carelessly and negligently 
 maintained or permitted some obstruction to be on or upon 
 the platform or step of said car, whereby the dress of the lady 
 in the act of leaving the car would be caught. The evidence 
 must prove this fact. If it does not, and the defendant, its 
 agents or employees not being otherwise negligent in the dis- 
 charge of their duty, and the plaintiff herself, in leaving said 
 car carelessly, neglected, in the exercise of ordinary care, to 
 handle or take care of her dress skirts, and such negligence 
 or carelessness of the plaintiff was the proximate cause of her 
 injury, she can not recover, and your judgment should be for 
 the defendant." 
 
 "The plaintiff in this case claims that her dress was held 
 in some way upon the platform of the defendant's car, and 
 that the conductor negligently started the car while it was so 
 held. If it was held upon the platform or step by some object 
 or force, that is a separate and independent fact, and if you 
 find the evidence justifies you in finding such to be the fact, 
 you may do so without determining how or by what it was 
 held." 
 
 "The plaintiff was not bound to apprehend any careless- 
 ness upon the part of the defendant. She had a right to rely 
 upon the defendant having its platform in good condition 
 and free from obstacles of an unusual character upon which 
 her dress might catch. She was not bound to apprehend that
 
 NEGLIGENCE — STREET RAILWAYS. 411 
 
 the conductor might start the car while her body was in con- 
 tact with it, or until she was free from it and had reached a 
 position of safety. She was not bound to apprehend that she 
 might do anything that would place her in jeopardy. On 
 the contrary, she had a right to place full reliance on the 
 defendant doing its full duty towards her, and exercising the 
 high degree of care which the law requires of it." 
 
 From Patterson v. Inclined Plane Ry. Co., 12 O. C. C. 280; Booth on 
 St. Rys., Sec. 349. 
 
 No. 552. Prima facie negligence arises from collision. — 
 If you find from the evidence that plaintiff took passage in 
 
 one of defendant's cars to ride from to , and while 
 
 thus riding in the car of the defendant company, and without 
 negligence on her part, a car of the defendant company on 
 the same track, running at a high rate of speed, collided with 
 the car upon which the plaintiff was riding, and from such 
 collision she was injured, a prima facie presumption of negli- 
 gence arises against the defendant company, and that such 
 presumption must be explained away or accounted for by the 
 defendant before it can absolve itself from the liabilities 
 arising from this presumption of negligence. 
 
 Gillmer, Judge, in Klipp v. Trumbull Electric Railroad Co. See Booth 
 on St. Rys., Sees. 323, 361; North Chicago St. Ry. v. Colton, 29 N. E. Rep. 
 899; 32 Minn. 1. 
 
 The decree of care which should be exercised to avoid collisions is 
 such watchfulness and precaution as are fairly proportioned to the dangers 
 avoided, judged by the standard of common prudence and experi- 
 ence. Id., Sec. 309. 
 
 No. 553. Duty of, as common carriers and as to cars 
 and appliances. — A common carrier of passengers on street- 
 car is required to exercise the- highest degree of skill and care 
 which may reasonably be expected of intelligent and prudent 
 
 ons engaged in that business, in view of the instrumen- 
 talities employed, and tin- dangers naturally t<> be apprehended. 
 The carrier is not an insurer of tin- safety of its passengers, 
 and is not bound absolutely and at .ill events t<> carry them 
 
 safely and without injury. They take the risks of their own 
 
 can!- rs thai could not have been averted by 
 
 the carrier by the exercise of the degree of care that the law 
 demands. 
 
 A carrier is bound to furnish and maintain safe cars ami 
 
 appliances, whether old or new, but the employment of the 
 
 appliances whi'h arc- in universal and common use Can not 
 be iid to be negligent e, nor can it be said that the- mode of 
 
 construction is defective and not reasonably safe, when the 
 
 27
 
 412 NEGLIGENCE — STREET RAILWAYS. 
 
 danger is dependent upon conditions which are the result of 
 the negligent conduct of the passengers or the company's 
 servants.. A carrier will not be liable for injuries caused by 
 the defect which is of such a character that no prudent man 
 would anticipate danger from it, and so obscure as to escape 
 observation during a careful daily inspection, and where there 
 is nothing to show how long the defect has existed before the 
 time of the accident. The defendant is not guilty of a breach 
 of its duty, if it secures the best appliances for the conduct, 
 control, and safety of its cars, after due investigation, and 
 subjects the same to the best tests, and has all the machinery 
 of its cars constantly and thoroughly examined ; and the fact 
 that one of the appliances fails to perforin its usual duty going 
 down a hill does not alone prove negligence on the part of 
 the defendant company, provided the company has properly 
 inspected and examined the machinery and tested it before 
 use. The criterion of negligence in such cases is not whether 
 the particular defect which was the cause of the injury could 
 possibly have been detected by the use of scientific means of 
 investigation, but whether the defect ought to have been 
 observed practically and by the use of ordinary and reasonable 
 care. ... It was the duty of the defendant company, 
 before attempting to descend the hill in question with its car, 
 to know that its tracks over which the car had to run, and its 
 appliances and machinery for stopping the same were in good 
 order and properly adjusted. 
 
 Gillmer, Judge, in Klipp v. Trumbull Electric Railroad Co., Trumbull 
 County Common Pleas. Booth on St. Rys., Sec. 332. 
 
 No. 554. Injury to person on track — Duties of servants 
 of company and foot traveler. — The court says to you that 
 if you find from all the evidence that the motorman who had 
 charge of the car which struck the plaintiff could by the ex- 
 ercise of ordinary care have seen the plaintiff and stopped the 
 car, and that by reason of the failure to stop the car plaintiff 
 was knocked down and injured, it would be such negligence 
 on the part of the defendant as would enable plaintiff to re- 
 cover, provided that plaintiff was free from contributory neg- 
 ligence on his part. 
 
 Or if the motorman saw plaintiff on the track, or by the 
 exercise of ordinary care could have seen him, in time to 
 stop the car, but did not, and purposely and intentionally ran 
 into him, then defendant would be guilty of negligence, and 
 it would be true, even though plaintiff was guilty oi negli- 
 gence in going on or in attempting to cross the track in front 
 of said car. The court says to you, however, in this con-
 
 NEGLIGENCE — STREET RAILWAYS. 413 
 
 nection, that the motorman had the right to presume that the 
 plaintiff would not attempt to cross the track when he was so 
 near that it would be unsafe and dangerous for him to do so. 
 He further had the right to presume that the plaintiff would 
 step off the track before the car reached him, providing he 
 was on it. He also had the right to presume that plaintiff 
 would exercise ordinary care in attempting to cross the track, 
 as we shall explain hereafter. And if the motorman, in rely- 
 ing upon these presumptions, as he had a right to do, ran his 
 car so close to plaintiff that he could not stop the same in 
 time to avoid the accident, or in attempting to stop the car 
 struck the plaintiff or brushed him off the track, then de- 
 fendant would not be guilty of negligence. 
 
 The plaintiff had the right to presume, in absence of 
 knowledge to the contrary, that the defendant company, in 
 respect to the rate of speed at which it propelled its cars, 
 would conform to any ordinance which the city had properly 
 passed with reference to this subject, and it would not be 
 negligence on his part to act on this presumption in expos- 
 ing himself to such danger as could only arise through a dis- 
 regard of the ordinance by the defendant company. 
 
 It was the duty of the plaintiff, in approaching this street- 
 car crossing, to both look and listen before he attempted to 
 pass over said track in front of the approaching car. And 
 that if the jury find that he did not look and listen before 
 stepping upon the railroad track, when, if he had looked and 
 listened, he could have avoided the injury, then the court 
 says to you that he can not recover; that this would be con- 
 tributory negligence which would prevent his recovery. 
 
 The court further says to you that if there was nothing 
 to prevent or obstruct his view from seeing the approaching 
 car if he had looked, then the law presumes that he looked 
 carelesslv and negligently, and he can not recover in that 
 case tor the reason that it was his duty to look carefully. 
 
 Tli, court further says to you that if the plaintiff, as he 
 approached and attempted to cross the street-car track, took 
 upon hi- shouldi oj took a bundle, which would pre- 
 
 vent him from looking, or seeing tin- approach of the car, 
 and it was for thai reason that he did not see it, when if he 
 otherwise might have done so in time to avoid the injury, 
 thru he was guilty of contributory negligence. 
 
 The court furthei : " you that if you find from this 
 
 evidence that the plaintiff could see tin- car as he approached 
 
 it, as well as th<>s ( - Operating the ear could see him, then it 
 
 was not the duty of those opi rating the car to stop, any more 
 than it was the duty of the plaintifl to stop before he go1 up
 
 414 NEGLIGENCE — STREET RAILWAYS. 
 
 on the track in the way of such car; and if you find from the 
 evidence that such was the case, that is, that plaintiff could 
 have seen the car as above stated, then you should find for 
 the defendant; that is, if both parties were guilty of neg- 
 ligence then there can be no recovery. 
 
 Gillmer, Judge, in Rapple v. Youngstown St. Ry. Co., Trumbull County 
 Common Pleas. 
 
 No. 555. Ejection of passengers for refusal to pay fare 
 — Transfer tickets. — The carrier, in pursuance of his rights 
 and duties, may eject from its cars persons on board who 
 wrongfully refuse to pay the legal rate of fare ; but this dan- 
 gerous discretion must be prudently and rightfully exercised. 
 If you find that the transfer ticket came into the hands of 
 the plaintiff wrongfully, it would not entitle him to ride on 
 it ; and if he attempted to ride on it, on refusal to pay the 
 legal rate of fare he might rightfully be ejected from the car 
 by the defendant. But if he pay the legal rate of fare and 
 receive the transfer ticket from the transfer agent, to enable 
 him to complete his ride to the point of destination for which 
 he had paid, then he could not be rightfully ejected, so long 
 as he conducted himself with propriety, and did not violate 
 the reasonable rules of the railroad company. 
 
 From Steffee v. R. R. Co., Summit County Common Pleas. Voris, J. 
 Upon the subject and in support of charge, see Mahoney v. Detroit 
 City Ry., 53 N. W. 793 ; Frederick v. Railroad Co., 37 Mich. 342. 
 
 No. 556. Reasonable rules regulating transfer tickets. 
 
 — It is the right of the defendant company to adopt reasona- 
 ble rules and regulations for the management of its business, 
 and to direct the manner of using transfer tickets ; but such 
 rules and regulations should be uniform in their operation to 
 make them reasonable. It is for you to say from the evi- 
 dence whether the plaintiff violated any rule or regulation of 
 the company, and whether, if he violated any such rules, 
 they were reasonable or not. 1 
 
 The court leaves it for you to say, under the circum- 
 stances, whether or not, if the plaintiff boarded the cars at 
 
 to go to Street, on the defendant's line, that he 
 
 must use his transfer ticket on the first car going west after 
 receiving the transfer ticket to enable him to complete his 
 ride to the place of his destination. This, like all other facts 
 to be found by you, must be found from evidence. 2 
 
 1 As to regulation and custom as to transfers, see Booth on Street Rail- 
 ways, Sec. 237. 
 
 2 From Steffee v. The Akron Street Railroad Co., Summit County Com- 
 mon Pleas. Voris, Judge. Booth on St. Rys.. Sec. 237.
 
 NEGLIGENCE — STREET RAILWAYS. 415 
 
 No. 557. Damages recoverable for wrongful ejection of 
 passenger. — The jury must be instructed that the plaintiff, if 
 entitled to recover, may be awarded the usual kinds of dam- 
 ages — compensatory and exemplary, which have been ex- 
 plained frequently elsewhere, by instructions given in other 
 kinds of cases, but the charge given in the particular case 
 found in the preceding sections will, nevertheless, be inserted 
 here. 
 
 If you find for the plaintiff, the further consideration of 
 damages comes in. In that case his damages should be com- 
 pensatory, and in one aspect of the case they may be more. 
 
 Compensator}- damages include such sum as in your judg- 
 ment he ought to receive for the injuries caused by the 
 wrongful acts, that naturally or ordinarily resulted from the 
 wrongful acts. This includes injury to personal feeling, 
 sense of humiliation and insult growing out of the manner of 
 committing the wrong, the public exposure and imputation 
 of crime to commit a fraud upon the company in beating a 
 ride, by reason of the wrongs you find from the evidence 
 were committed. This is a matter very much within the 
 discretion of the jury, but this must be a discretion reasona- 
 bly exercised. 
 
 If you find from the evidence that in the commission of 
 the wrong it involved the ingredients of fraud, malice, insult 
 or oppression, and the plaintiff had conducted himself within 
 the proprieties of the place, you may go beyond the rule of 
 mere compensation and award exemplary or punitive dam- 
 ages; that is, such damages as will compensate him for the 
 wrong done to him, and to punish the defendant, as well as 
 to furnish an example to deter others. We feel it incumbent 
 upon the court to say to you that in the exercise of your dis- 
 cretion to visit exemplary damages upon the defendant you 
 should do it with exceeding caution. In case you should 
 find for the- plaintiff you may take into consideration, as com- 
 pensatory damagi onable counsel fees employed by the 
 plaintiff in prosecuting this action. 
 
 The Akron Streel Railroad Co., Summit County Com- 
 mon Pli as, Vori . fudge. Booth on St. Rys., Sees. 419, [97, 
 
 No. 558. Negligence — Injury to passenger while assist- 
 ing driver of street-car. — " If the plaintiff was requested by 
 the driver of the cai to assist in pushing it hark, anil in doing 
 so was injured by the negligence oi carelessness of the driver 
 of the car on whit h he had been riding, or of another car, he 
 can recover if such assistance was apparently necessary. Or 
 if there was an actual necessity for him to assist the driver in
 
 416 NEGLIGENCE — STREET RAILWAYS. 
 
 pushing back the car, and he did so assist, and while doing 
 so was injured by the negligence of the driver of this car or 
 of another, he can recover, whether he was requested by the 
 driver to assist or not'. 
 
 From Street Railway Company v. Bolton, 43 O. S. 224. 
 
 No. 559. Action by street railway against commercial 
 railway for injury. — You will proceed to inquire whether or 
 not the car of the plaintiff was damaged at the time and place 
 referred to, and if you find that it was not so damaged you 
 should return a verdict for the defendant ; but if you find 
 that it was so damaged, then you will proceed to inquire 
 whether such damage was caused directly by the negligence 
 and want of care on the part of the defendant at that time in 
 any or all of the particulars complained of, and whether such 
 negligence and want of care was the proximate and sole cause 
 of such damage ; and if you find that it was not so caused, 
 then you need inquire no further, but should return a verdict 
 for the defendant ; but even if you should find that the car of 
 the plaintiff was damaged by the negligence and want of care 
 on the part of the defendant, this would not entitle the plain- 
 tiff to recover unless you also find the plaintiff was in the 
 exercise of ordinary care on its part, and that the conduct 
 and acts of the plaintiff on that occasion did not contribute 
 to the injury of which it complains ; and even if you should 
 find that the defendant was negligent, and such negligence 
 and want of care resulted in damage to the plaintiff, yet if 
 the conduct of the plaintiff was negligent, and this negli- 
 gence and want of care contributed to the injury which it 
 sustained, it could not recover in this action, and your ver- 
 dict should be for the defendant. 
 
 Both parties being corporations the questions of negligence 
 and contributory negligence are to be determined from the 
 conduct and acts of the respective employees in charge of 
 their business; that is, the driver of the street-car on one 
 hand, and those in charge of the gate and the engine on the 
 other hand. The defendant was bound to exercise ordinary 
 care towards the plaintiff in running and operating its loco- 
 motive upon and along its track, and in crossing the track of 
 the street railway of the plaintiff, and the plaintiff was bound 
 to use ordinary care on its part in crossing the railroad track 
 of the defendant. 
 
 In determining the questions, you should carefully con- 
 sider the ordinances of the city of Y., one of which requires 
 the locomotives passing through the city limits to run at a 
 speed less than six miles per hour, and if you should find at the
 
 NEGLIGENCE — STREET RAILWAYS. 417 
 
 time of the collision the engine was being run by the defend- 
 ant at a speed greater than six miles an hour, this fact alone 
 would not be sufficient evidence to entitle the plaintiff to 
 recover, yet it is competent evidence to be considered by you 
 in connection with the other evidence adduced, as to wheth- 
 er or not the engine was being run at a dangerous rate of 
 speed, and whether or not the defendant is liable for negli- 
 gence or want of care on that occasion. Neither would the 
 failure to sound the whistle of the locomotive, unless vou 
 find that the defendant by sounding the whistle could have 
 avoided the collision with the car of the plaintiff, and that 
 the failure to sound the same was negligence on the part of 
 the defendant, which resulted in injury to the plaintiff. 
 And if you find that the defendant maintained the gate at 
 that crossing, and that the same was in charge of a gateman 
 placed there by the defendant, the plaintiff, through driver 
 of the street-car, had a right to rely upon the gateman prop- 
 erly discharging his duty ; and if the driver of the street-car, 
 upon approaching the crossing, found the gate open, it was 
 an invitation to him to proceed, and it indicated to him that 
 the track was then clear, and that he might proceed with 
 safety; but he had no right to blindly rely upon this fact, 
 and rush into danger which he saw or heard, or which, by 
 the exercise of ordinary care, he might have seen and heard; 
 and it did not absolve him from the duty of exercising ordi- 
 nary care upon his part in entering upon the crossing and in 
 crossing the track of the defendant. Notwithstanding this 
 fact, the driver was bound to exercise his senses, to look and 
 listen, and to take all such precautions as ordinarily prudent 
 persons ordinarily exercise under the same or similar circum- 
 stances, to stop his car or proceed promptly across the track, 
 whichever, under all circumstances, ordinarily prudent per- 
 sons would have done; and if he did that which ordinarily 
 prudent persons, under the same or similar circumstances, 
 would not have done, or omitted to do that which ordinarily 
 prurient persons would have done under the same or similar 
 circumstances, and this act or omission on his part contrib- 
 uted to the damage which the plaintifi sustained, then the 
 plaintiff could nol recover, even though the defendant was 
 negligent in having the gate open at that time. 
 
 [ohnston, Judge, in Youngstown Street Railway Co. v. X Y I. E ..V 
 W. k. R. Co. 
 
 No. 560. Same continued — Running at high rate of 
 speed — Ringing bell or giving warning upon approach of 
 crossing. — if you find that the bell was rung or that warning
 
 418 NEGLIGENCE — STREET RAILWAYS. 
 
 or signal was given by the defendant, then upon this issue 
 you should find in favor of the defendant ; but if you do not 
 so find, but find that the bell upon the locomotive was not 
 rung, and that no warning or signal was given by defend- 
 ant, and that the failure to so ring the bell or give warning 
 was the direct and proximate cause of the damage to the car of 
 the plaintiff, and that the plaintiff was in the exercise of or-£ 
 dinary care on its part, then it would be entitled to your ver-j 
 diet, and the same rule applies in other particulars in which; 
 such negligence is charged. If the failure to shut the gate, 
 or the rate of speed at which the locomotive was operated, or 
 the failure to ring the bell or give other signals or warning, 
 was the proximate cause of the damage to the plaintiff, and 
 it was without fault on its part, that is, if it was itself in the 
 exercise of ordinary care in all things it did or omitted to do, 
 then the plaintiff would be entitled to recover. 
 
 Johnston, Judge, in Youngstown St. R. R. Co. v. N. Y. L. E. & W. R. 
 R., Mahoning County Common Pleas. 
 
 No. 561. Stoppage of car on crossing by driver. — If the 
 
 driver of the car, on that night, after passing the gate, had 
 sufficient time to have crossed the track in safety, but stopped 
 his car and did not proceed promptly to cross the track, and 
 by reason of the stopping the damage resulted, then the fail- 
 ure to shut the gate would not be the proximate cause of the 
 injury, and the plaintiff would not be entitled to recover on 
 that ground ; and if the locomotive was running at a high 
 rate of speed, and the plaintiff saw it in time to avoid the 
 collision ; or if by the exercise of ordinary care the driver of 
 the street-car could have seen it in time to have avoided the 
 collision, and did not do so, then such failure on the part of 
 the plaintiff would constitute contributory negligence on its 
 part, which would prevent a recovery. 
 
 Johnston, Judge, in Youngstown St. R. R. Co. v. N. Y. L. E. & W. R. 
 R. Co., Mahoning County Common Pleas. 
 
 No. 562. Negligence — Duty of children eleven years old 
 in passing street railroad crossings. — It was the duty of the 
 decedent (or plaintiff) to conduct herself with ordinary pru- 
 dence and care in passing over the railroad crossing, such 
 prudence and care as was commensurate with the existing 
 dangers known to her, or that reasonably ought to have been 
 known to her under the then existing circumstances, such as 
 a child of her age would ordinarily exercise under like cir- 
 cumstances. If she knew or had sufficient judgment to ap- 
 preciate the hazards of the railroad crossings, and undertook
 
 NEGLIGENCE — STREET RAILWAYS. 419 
 
 to cross the same while the trains of said company were pas- 
 sing upon its tracks near and over said railroad crossing, she 
 took upon herself the risks incident thereto, but her conduct 
 should not be judged by the same rule as that of adults. And 
 while it was her duty to exercise ordinary care and prudence 
 to avoid the injury complained of, ordinary care for her 
 would be that degree of care which children of the same age 
 of ordinary care and prudence are accustomed to exercise 
 under similar circumstances. All her conduct is to be treated 
 in this light. ... If you find by a preponderance of the 
 evidence that the decedent was so guilty of negligence that 
 directly contributed to her death, the plaintiff can not recover, 
 for it was the duty of the decedent, at the time of her decease, 
 to exercise ordinary care and prudence, the care and prudence 
 of a child of her years and understanding, under all the cir- 
 cumstances then known to her, or that reasonably ought to 
 have been known to her. 
 
 But if you do not find her so guilty of contributory negli- 
 gence, and you do find under these instructions that the de- 
 fendant was guilty of negligence herein defined and limited, 
 your verdict should be for the plaintiff, and for such amount 
 of damages as you shall find under the instructions given you 
 upon that subject. 
 
 Voris, Judge, in Gaston v. Lake Shore R. R. Co., Lorain County Com- 
 mon Pleas. 
 
 No. 563. Obstruction placed in street being paved which 
 causes injury to street-car conductor. — The defendant in this 
 action had the right to a reasonable use of the street. He 
 had the right, so far as the plaintiff is concerned, to pave the 
 street at the time and place that he undertook to pave it. 
 He had the right to put up obstructions to prevent vehicles 
 entering upon that pavement, but in the exercise of that 
 right, it was his duty to care for the rights of others, and 
 construct such obstruction in a manner that would have due 
 
 ird for the rights and privileges of persons passing along 
 that highway. 
 
 Tin- street-car^ had a right to run along the line of track 
 prepared for them on that highway. The conductor had a 
 righl upon his car, and perform his duties thereon, as 
 
 condui tors ordinarily do. 
 
 Their rights were mutual, and defendant in erecting the 
 obstruction was under a duty, under the law, to exercise such 
 and prudence in th< >n of such obstruction, as nol 
 
 unnecessarily to interfere with or jeopardize plaintiff. De- 
 fendant was not bound to insure the safety of passersby, bul
 
 420 NEGLIGENCE — STREET RAILWAYS. 
 
 he was bound to exercise such care and prudence as persons 
 of ordinary care and prudence would have used under similar 
 circumstances to prevent accidents to them. 
 
 Now the inquiry for you in this case is as to whether or 
 not the defendant, in erecting this obstruction, did have such 
 regard for the rights of others, and the rights of this plaintiff, 
 as persons of ordinary care and prudence would have had 
 under similar circumstances, and the burden of proof to show 
 such negligence rests upon the plaintiff. It is incumbent 
 upon him to show by a preponderance of the evidence that 
 the defendant was guilty of negligence. If the proof of the 
 plaintiff does not show this, he can not recover, but you have 
 the right to review all the testimony in the case to determine 
 whether the proof is sufficient. It is for you to determine 
 if defendant was guilty of negligence. 
 
 The presumption is that neither party was guilty of neg- 
 ligence, and that presumption must first be overcome by the 
 plaintiff. When he has shown that the defendant was guilty 
 of negligence, if he himself, in doing so, does not show that 
 he also was guilty of negligence, then the burden is on the 
 defendant to show that plaintiff was guilty of negligence 
 which contributed to the injury, because the plaintiff would 
 be presumed, in the absence of proof, to be free of all negli- 
 gence in the matter. Thus, in the first place, the burden is 
 on the plaintiff to show that the defendant was guilty of neg- 
 ligence, and on defendant to show that plaintiff was guilty 
 of contributory negligence. But the negligence for which 
 the defendant can be held liable is that which is known as 
 the proximate cause of the injury, that is to say, negligence 
 which directly caused or produced the injury. If defendant's 
 negligence was the direct contributory cause, he may be held 
 liable, notwithstanding the fact that some person other than 
 the plaintiff was also guilty of negligence which contributed 
 to the injury. 
 
 The plaintiff had a right to pass around on this car in the 
 performance of his duties upon that street railroad, and if, 
 while so doing, some person upon or in this car was guilty 
 of negligence also in the conduct of the car, which, together 
 with the negligence of the defendant, directly contributed to 
 the injury, that would not relieve the defendant, because the 
 doctrine of imputed negligence does not obtain in this state. 
 I understand the law to be that when negligence is imputed 
 to some other person than the defendant in an action, and 
 that negligence, together with the negligence of the defend- 
 ant, contributes directly to produce the injury, either one or 
 both may be held liable for the consequences. It is no de-
 
 NEGLIGENCE — STREET RAILWAYS. 42 r 
 
 fense to the one, that the other was likewise guilty of negli- 
 gence. It was the duty of the plaintiff in this action, as well 
 as the defendant, to exercise ordinary care and prudence in 
 his action and conduct. If he were aware that there was an 
 obstruction that was dangerous, and by exercising ordinary 
 care and prudence he could have avoided it, it was his duty 
 to do so. It is for you to take into consideration the facts, 
 as disclosed by the evidence, and say whether plaintiff was, 
 at the time of the accident, exercising that care and prudence 
 which men of ordinary care and prudence would have exer- 
 cised under those circumstances. Could he, by the exercise 
 of ordinary care, have avoided it? Take into consideration 
 the length of time the obstruction was there ; the number of 
 times, if at all, he had seen it, and his knowledge of its 
 dangerous character ; also the employment in which he was 
 engaged ; the necessity of standing on the footboard and 
 passing around passengers; he had a right to do all these 
 last mentioned things in connection with the performance of 
 the duties of his position. He had a right to do all this, but, 
 knowing and observing the obstruction which was there, 
 could he have avoided collision with it? If he could, it was 
 his duty tc have clone so, because he can not, as was read by 
 counsel, throw himself against the obstruction and recover 
 of the person guilty of placing it there, for the reason that 
 there can be no division of the responsibility or damage done 
 by their mutual negligence. Hence the plaintiff, if guilty 
 of contributory negligence, must fail to recover. If the plain- 
 tiff was not guilty of negligence, and defendant was guilty, 
 the defendant may be held liable in this case. If the defend- 
 ant was guilty and the plaintiff likewise, the plaintiff can not 
 recover in this case, and your verdict should be for the de- 
 fendant. 
 
 Wm. I-".. Sherwood, Judge, in Southern v. Williams, Supreme Court, 
 No. 3914. Judgments affirmed. 
 
 No. 564. Measure of damages — Personal injury — Medi- 
 cal evidence as to. — Where physicians testify that the plain- 
 tiff's injuries air permanent, and if she were sick from other 
 causes, tin- injuries would cause serious complications, it is 
 proper to submil to the jury the question of the plaintiffs 
 liability to suffer more from other illness than she- would 
 otherwise have done. 
 
 A tort to health already impaired is redressed by giving 
 damages both for any further impairmenl and for any ob- 
 struction occasioned l>v tin- tort t<> recover from any existing 
 disease. It is the duty of the jury to consider the plaintiff's
 
 422 NUISANCE. 
 
 physical condition before and since the injuries, the physical 
 and mental pain suffered on account of the injuries, during 
 the same time, and the amount of future pain to arise there- 
 from, together with all other circumstances shown in the 
 evidence, and considering all the circumstances aforesaid is 
 proper. 
 
 In the action to recover for the personal injury, medical 
 evidence of plaintiff's condition, both before and after suit 
 brought, is competent to show the natural effects of the in- 
 jury, and its character as to permanence. 
 
 Voris, Judge, in Dussel v. Akron St. R. R. Co., Summit County Com- 
 mon Pleas. Affirmed by Circuit and Supreme Court. 
 
 NUISANCE. 
 
 No. 565. Defined. — "The term nuisance, derived from 
 the French word 'nuire^ to do hurt, or to annoy, is applied 
 indiscriminately to infringements upon the enjoyment of 
 proprietary and personal rights. ' ' l 
 
 Nuisance, something noxious or offensive. Anything 
 not authorized by law, which maketh hurt, inconvenience, or 
 damage. 2 
 
 By hurt or annoyance is meant not a physical injury to the 
 owner or possessor thereof, as respects his dealing with, pos- 
 sessing, or enjoying them. 3 "Nuisance is a distinct civil 
 wrong, consisting of anything wrongfully done or permitted 
 which interferes with or annoys another in the enjoyment of 
 his legal rights." 4 
 
 If an individual or corporation (municipal or private) 
 upon whom is imposed the burden of keeping a highway in 
 repair, permit the same to be out of repair so as seriously 
 to interfere with convenient transit over the same, is a nui- 
 sance, subjecting the person or corporation to damages at the 
 suit of persons injured by reason of such defects or want of 
 repair. 5 
 
 To constitute a nuisance, there must be a material or sub- 
 stantial injury, and not an imaginative one. It may be diffi- 
 
 1 Addison on Torts, 361. 
 
 2 46 O. S- 446. 
 
 3 Cooley on Torts, 670. 
 
 4 See Bishop's Non. Cont, Sec. 411 note ; Cooley on Torts, 670 (565). A 
 precise definition is impracticable, 12 O. S. 398. 
 
 s Wood on Nuisance, Sec. 307; Cardington v. Fredericks, 46 O. S. 442.
 
 NUISANCE. 423 
 
 cult in some cases to ascertain whether the injury be material ; 
 but it is a question for the jury to consider and determine. 6 
 Hence to entitle plaintiff to recover in this action, you 
 must find from a preponderance of the evidence that he has 
 suffered a real, material, and substantial injury, and it is left 
 for you to determine what amounts to such an injury. 7 
 
 6 Cooper v. Hull, 5 O. S. 321-23-24. 
 
 7 Cols. Gas, etc., Co. v. Freeland, 12 O. S. 400. 
 
 No. 566. Degree of annoyance to constitute nuisance. — 
 What amount of annoyance or inconvenience will constitute 
 a legal injury, resulting in actual damage, is a question of 
 degree, and must necessarily be dependent upon varying cir- 
 cumstances, and can not be precisely defined as matter of law, 
 but must be left to the good sense and sound discretion of 
 the jury. 1 The court can only give you a rule which will 
 serve as a guard against an unreasonable exercise of that dis- 
 cretion. You must be guided by the ordinary standard of 
 comfort and convenience, and not by particular or exceptional 
 above or below the ordinary standard. Regard should be had 
 to the notions of comfort and convenience entertained by 
 persons generally of ordinary tastes and susceptibilities. 
 What such persons would not regard as an inconvenience 
 materially interfeiing with their physical comfort, may be 
 properly attributed, when alleged to be a nuisance, to the 
 fancy or fastidious taste of the party. On the other hand, 
 the charge of a nuisance, if it be of a thing offensive to persons 
 generally, can not be escaped by showing that to some persons 
 it is not at all unpleasant or disagreeable. - 
 
 By a material injury is meant one resulting in damages of 
 a substantial character or nature, not merely nominal, and 
 which are, in some cases, awarded to prevent a wrong from 
 ripening into a right by lapse of time. 3 
 
 '5 Ohio, 323; .19- 
 
 I ol Gas, land, 12 0. S 392, 399; see Bishop's Non. 
 
 Cont. Law, Sec |.i6 14 O. S. 279 ; 22 O. S. 247, 253. 
 iwford v. Ratnbo, 1 ; I 
 Damages maj b< awarded when the circumstances would not entitle 
 the injured to an injunction. Id.; Jaggard on Torts, 808, A3 to what will 
 be allowed by way of dam 
 
 No. 567. Opening of excavation in street adjoining 
 premises — Liability for injury resulting to traveler there- 
 from. — 
 
 (a) Ownership <<! property — Dominion over it — May ex- 
 cludi /" rsorn from it. 
 
 The ownership of property implies absolute dominion 
 over it, as against all other persons, subject, however, to the
 
 424 NUISANCE. 
 
 application of a well-known maxim of the law which requires 
 that everyone shall use his own property so as not to injure 
 another person. But this maxim is not infringed by any 
 lawful use by the owner in places where a stranger may not 
 rightfully come. The dominion which the owner of the 
 property has the right to exercise implies that he may exclude 
 or prevent all persons from coming upon his lands, and who- 
 ever does enter upon his lands without the consent of the 
 owner, express or implied, is a trespasser and assumes the 
 risk incident to such invasion, subject, however, to certain 
 qualifications. The only difference between an express and 
 implied consent consists in this, the one is expressed by words, 
 the other by the surrounding circumstances and conduct of 
 the parties implying that it would be unreasonable to hold to 
 the contract. 
 
 Where there is no special relation alleged as understood 
 between the plaintiff and defendant, the defendant is under 
 the legal obligation or duty to control and manage these 
 premises in such reasonable and prudent manner that he shall 
 not wrongfully injure others rightfully upon said premises by 
 any culpable acts or omissions. 
 
 The owner of land is not liable for injury resulting from 
 the unsafe or dangerous condition of his premises to persons 
 who go upon them without invitation, express or implied. 
 
 The defendant would not be liable to the plaintiff for an 
 injury resulting from the unsafe or dangerous condition of his 
 premises, though adjacent to Street or a private way. 
 
 Duty of traveler on highway. 
 
 The law imposes the duty of ordinary care upon all persons 
 traveling on the highway, that degree of care commensurate 
 with the hazards of the highway known to him, or that would 
 be known to him, had he exercised reasonable care and pru- 
 dence under the circumstances. But the plaintiff can not 
 charge his errors and mistakes of judgment resulting in in- 
 jury to him unless the defendant has, by his wrongful acts or 
 misconduct, misled him into such errors or mistakes of judg- 
 ment. 
 
 Private road. 
 
 You are instructed also that protection can only be ex- 
 tended to the plaintiff against the hazard of the excavation 
 upon the ground that he was upon a private road, having 
 the right to presume from circumstances that the same was a 
 highway upon which the public had a right to travel. 
 
 A person is not justified in making or maintaining ex- 
 cavations either in dangerous proximity to, or in a path where 
 he permits other persons to traverse, or so near a public road
 
 NUISANCE. 425 
 
 that travelers in the ordinary aberrations or casualties of 
 travel may stray or be driven over the line, and be injured by 
 falling into such excavations. 
 
 Beyond this liability to the trespasser, voluntarily or in- 
 voluntarily trespassing, does not go. The owner may make 
 whatever excavations he chooses on his land without fencing 
 them in, provided they are not on the line over which he 
 permits travelers to pass, or so near a public road that leads 
 into them, a traveler may unwittingly follow. 
 
 The question therefore is, was or was not said excavation 
 
 located so near to said Street and said private road, in 
 
 the manner it was kept, as to make it dangerous for a party 
 
 passing along said Street in a usual and ordinary manner? 
 
 If it was it was the duty of the defendant to provide such 
 safeguards as would reasonably protect the party traveling 
 thereon. Was or was not said private road so constructed, 
 located and ordinarily used as to make it reasonably apparent 
 that it was a public-traveled road, so as to reasonably induce 
 the public to go thereon? If so, then the defendant was in 
 duty bound to provide such safeguards about said excavation 
 as to make it reasonably safe for persons rightfully traveling 
 in said street and private road. 
 
 Voris, fudge, in Schemer v. Schumacher .Milling Co., Summit Couuty 
 Common Pleas. Affirmed by Circuit and Supreme Court without report. 
 Duty of owner when he invites others to come upon his premises to exercise 
 ordinary care to have- the premises reasonably safe. Cooleyon Torts. 718. 
 Individual adjoining owner to street who makes excavations in sidewalk 
 commits a nuisance, and is liable to any person who, in the exercise of 
 ordinary care, is injured therefrom. Cooley on Torts, 748 (626); Mcllvaine 
 v. Wood, 1 Handy, 166. 
 
 No. 568. Duty of lot-owners where an excavation is 
 made in sidewalk in front of premises by contractor. — If 
 the defendant, for the purpose of constructing a block of 
 buildings, removed, either by himself or by anybody else, if 
 In- caused to be removed this side-walk and made the excava- 
 and opened this hole into which the plaintiff fell, it is 
 the duty of the defendant doing that by himself or by his 
 agmts, by his independent • ors, or in any other way, 
 
 it is his enterprise ; Ik- is doing it for his benefit; it is his 
 duty to use ordinary care to see that it is guarded and pro- 
 d by the use- of such ordinary ■ men of ordinary 
 
 prudence are accustomed to employ in that kind of enter- 
 prise. It is no defense for him t<> say that the work was be- 
 ing done by an independent contractor. 
 
 Prom Hawver \ Whalen, 10 1 ipparently in conflict 
 
 with the id down in elark v. Fry,8 < >. s 358, bul as tip 
 
 in thi : v. Whalen , the principle underlying tin- instruction
 
 426 NUISANCE. 
 
 does not necessarily conflict with the doctrine of Clark v. Fry, supra, pro- 
 vided that the doctrine of that case is to be strictly limited to the facts 
 upon which it was announced. In Clark v. Fry it is held that the rule re- 
 spondeat superior does not apply in case of an injury sustained by reason 
 of lieu-licence in the manner of conducting the execution of a job of work 
 in building a house, where the house-builder by a contract with the owner 
 of a lot, has taken upon himself the responsibility of the employment of 
 his own hands, and the control and direction of the work in conformity 
 with the terms of the contract. If the necessary or probable effect of the 
 performance of the work would be to injure third persons, or create a 
 nuisance, then the defendant is not relieved from liability, because the 
 work was done by a contractor over which it had no control in the mode 
 and manner of doing it. Railroad Co. v. Morey, 47 O. S. 207. The mak- 
 ing of an excavation across a public highway, which materially interferes 
 with public travel, is an unlawful act, unless authorized by proper author- 
 ity, and this because such excavation creates a nuisance. 
 
 If the defendant caused such an excavation to be made, it can not 
 shield itself from liability if injury resulted to persons traveling upon 
 such highway, because they had the excavations made by independent 
 contractors over whom they had no control, unless it caused all reasona- 
 ble precautions to be taken to prevent such injury. Railroad Co. v. Morey, 
 supra. 
 
 No. 569. Responsibility of lot-owner for excavation 
 made in premises in front of premises by independent con- 
 tractor. — The rule of law is, that where the owner of a lot of 
 land removes a section of the sidewalk along the public street 
 in front thereof for the purpose of constructing a block of 
 buildings, and excavates a deep hole for the purpose of build- 
 ing vaults and areas under the sidewalk to connect with the 
 basements of his buildings, and to be used in connection there- 
 with, and while such vaults or areas are in process of con- 
 struction the excavation is left with insufficient guard or cov- 
 ering to protect pedestrians who are lawfully there, and one 
 of the latter falls into such excavation or area and is injured, 
 it is no defense to an action by the injured party against the 
 owners of the lot that they had contracted with an independ- 
 ent contractor to build the vault and areas, and that this in- 
 dependent contractor had omitted to cover, guard and protect 
 the opening. 
 
 If these defendants took out and removed a section of that 
 sidewalk to the depth of eight or nine feet for the purpose of 
 building vaults and an area under it for their own benefit, to 
 be used for their own building, it being of such a character 
 ' as to cause an obstruction in the midst of a traveled public 
 thoroughfare or sidewalk ; if they did that, and left it un- 
 guarded and unprotected, and if they failed to use reasonable 
 care to guard and protect it, then it would not matter wheth- 
 er they had gone of themselves with their own shovels and 
 their own hands to take out the dirt and make the excava- 
 tion, or whether they employed another person to do it by 
 the day, exercising supervision and control over him, or al-
 
 NUISANCE. 42 7 
 
 lotted the job out to another person as a wholly independent 
 contract; it would be their work all the time; it is their ex- 
 cavation, done for them by somebody whom they employed 
 to do it, and they would be responsible to a member of the 
 public who was rightfully using this street for the purpose- 
 of public travel, if, without any fault upon his part, he fell 
 into that excavation and was injured. I instruct you that 
 the law is that it is the duty of these defendants, being the 
 owners of the premises, and the lot belonging to them, and 
 the work being done for their benefit exclusively, it is their 
 duty to see that no dangerous pitfall is created in front of 
 their premises in work of that kind. It will be important 
 then for you to inquire whether this place was negligently 
 treated by these defendants. In other words, did these de- 
 fendants exercise that reasonable and ordinary care which 
 men of ordinary prudence and caution are accustomed to ex- 
 ercise under such circumstances. 
 
 From Hawver v. Whaleii, 49 O. S. 69. Blandin, Judge. 
 
 No. 570. Duty of traveler on highway — May presume 
 that city has performed duty with reference to streets — 
 Lights and guards in streets. — The law imposes the duty of 
 ordinary care upon plaintiff while traveling upon the public 
 streets of the city, and that degree of care commensurate with 
 the hazards of the highway known to him, or that would be 
 known to him had he exercised reasonable care and prudence 
 
 under the circumstances And this care must be 
 
 commensurate with the ordinary hazards of the highway and 
 of such public streets, and such as were incident to the con- 
 struction of said street and road; and such other hazards as 
 were known to him, or would be known to him had he ex- 
 ercised ordinary care and prudence. The plaintiff, acting in 
 good faith in absence of knowledge to the contrary, is entitled 
 to presume that the city would and did exercise reasonable 
 care and prudence in performing its duty under the circum- 
 stances known to it. or that reasonably ought to have been 
 known to it, in maintaining the street in reasonable condi- 
 tion and free from nuisance, so as to be reasonably safe for 
 persons traveling upon the street. 
 
 While the defendant is no! the insurer of the safety of the 
 plaintiff while traveling upon the street in question, it is 
 bound not to expo e him to any hazards that reasonable care 
 and prudence- could prevent. 
 
 To enable you to say whether the defendant performed 
 its duty in the premises, you should determine from the evi- 
 dence whether proper lights, 01 guards, 01 other proper pre- 
 
 28
 
 428 NUISANCE. 
 
 cautions were reasonably provided to warrant and protect 
 persons traveling in the street of the dangers, if any, occa- 
 sioned by the opening, and its relations to the sidewalk in 
 question. If the defendant did not so guard the opened place 
 and the sidewalk, it can not be said to have discharged its 
 duties the law imposes upon it. The law imposes upon the 
 city the duty of careful supervision, control, and maintenance 
 of the public streets, and this duty extends to sidewalks of 
 the city, which are essentially part of the public street of the 
 city, and that it shall cause the same to be maintained and 
 guarded in such a manner as not to constitute a nuisance. 
 The city can only discharge this duty by the exercise of 
 all reasonable precautions to prevent injury to persons prop- 
 erly passing in the streets or on the sidewalks of the city 
 from the injury. 
 
 Voris, Judge, in McDonald v. City of Akron, Summit County Common 
 Pleas. No exception was taken to the charge. 
 
 For full discussion of the law involved in the above charge, see Dil- 
 lon's Mun. Corp., Sec. 996 et seq. 
 
 No. 571. Adjoining land-owners — Rights and obliga- 
 tions of, to each other — To what extent lower proprietor 
 may dig. — Every man has the right to use his property in 
 any way he may see fit, so long as he does not interfere with 
 the rights of his neighbor, and the extent to which a man 
 may dig and excavate upon his own ground which adjoins 
 his neighbor's land, may be determined according to the nat- 
 ural lay and situation of the two pieces of land. That is to 
 say, if the lower of two hillside-owners desires to dig upon 
 his land, he may dig to any depth which would not disturb 
 the upper one's land as it lay naturally, without any build- 
 ings, improvements or structures. If the digging of the 
 lower one be such as not to disturb the land above, if it had 
 no houses upon it, then he may dig to the same extent though 
 a house be upon the land then, and if the house tumble down 
 and fall by reason of such digging, the lower owner is not 
 liable if he has used his land with regard to the upper land 
 as nature made it, not as man made it ; and this he has the 
 right to do. 
 
 Wright, Judge, in Commissioners v. Halm, Hamilton Common Pleas.
 
 OFFENSES AGAINST CHASTITY. 429 
 
 OFFENSES AGAINST CHASTITY. 
 
 No. 572. Unlawful intercourse by teacher with female 
 pupil — Teacher defined — Public school defined. — The statute 
 under which the indictment in this case is drawn, so far as it 
 pertains to this case, provides that "A male person over 
 twenty-one years of age, who is superintendent, teacher or 
 tutor in a private, parochial or public school, who has sexual 
 intercourse at any time or place, with any female, with her 
 consent, while under his instruction during the term of his 
 engagement as superintendent, tutor or instructor," 1 shall be 
 punished as is provided in said statute. The material alle- 
 gations of this indictment, and the things which it is neces- 
 sary for the state to make out are as follows : 
 
 1. That, at the time of the alleged offense, the defend- 
 ant was a male person over twenty-one years of age. 2. At 
 said time he was a teacher in a public school in the Town- 
 ship of , County, . 3. That he had sexual in- 
 tercourse with M., with her consent, during the term of his 
 engagement as such teacher. 4. That at the time he so had 
 sexual intercourse with said M. she was a female pupil in 
 said public school under the instruction of said I. 5. That 
 
 said offense was committed within the County of , in the 
 
 State of . 6. That said offense was committed on or about 
 
 the day of , 18 — , the exact date is not material. If 
 
 you find from the evidence that the offense was committed 
 on or about that time, or near to that time, that would be 
 sufficient so far as the date is concerned. 
 
 And before the state would be entitled to a verdict of 
 guilty against the defendant it must establish each and all of 
 the foregoing propositions beyond a reasonable doubt. 
 
 I will now instruct you upon the law which should gov- 
 ern you in this determination <>f the ease, and call your at- 
 tention more particularly to some of the material allegations 
 of the indictment. 
 
 It is claimed upon the part of the state that the defend- 
 ant here on trial was a male person over twenty-one years <>f 
 age at the time of the alleged offense. The law provides 
 that the offense charged in the indictment must be com- 
 mitted, if at all, by a male person over twenty-one years of 
 age. It is then a question of fad foi you to determine from 
 
 1 R. S., S<
 
 430 OFFENSES AGAINST CHASTITY. 
 
 all the evidence in the case whether the defendant at the 
 time of the alleged offense was a male person over twenty- 
 one years of age. If you find he was not, then you should 
 acquit; but if you find that he was, then you should go 
 further in the case and determine the other questions. 
 
 It is further claimed on the part of the state that at the 
 time of the alleged offense the defendant was a teacher in a 
 
 public school in the Township of , County, . 
 
 A teacher is one who teaches or instructs, or one whose busi- 
 ness or occupation is to instruct others, is an instructor, a 
 tutor. Public schools are "schools maintained at public ex- 
 pense for the elementary education of the children of all 
 classes." I leave it then as a question of fact for you to de-. 
 termine from all the evidence in the case whether the de- 
 fendant was a teacher in a public school in the Township of 
 , County, , at the time of the alleged offense. 
 
 Now, in determining whether the school which the de- 
 fendant taught, and which M. attended, was a public school 
 or not, you should look to all the testimony with reference 
 to how the school was maintained and supported, who at- 
 tended the school, and how the school was conducted, as 
 well as all the facts and circumstances which have been given 
 you in evidence on the trial of the case, and from it all say 
 whether said school was a public school. It is a question of 
 fact for you to determine from all the evidence and facts in 
 the case. 
 
 Again it is claimed on the part of the state that the de- 
 fendant had sexual intercourse with the witness M. during 
 the time or term of his engagement as such teacher, and 
 during the time he was so teaching said public school. The 
 defendant on the other hand denies that he had sexual inter- 
 course with the said M. during his engagement as such 
 teacher. 
 
 As a matter of law it is provided by statute that "sexual 
 intercourse shall be deemed complete upon proof of penetra- 
 tion only." Hence, if you find from the evidence that there 
 was penetration, that would be sufficient so far as the proof of 
 sexual intercourse is concerned without proof of emission. 
 
 In determining whether the defendant had sexual inter- 
 course with said M., you should look to and consider the 
 testimony of said M. , and the other facts and circumstances 
 which tend to corroborate her, if any. The testimony of the 
 defendant and the facts and circumstances which tend to 
 corroborate him, if any, and all other evidence, facts and 
 circumstances which have been given to you on the trial of 
 this case, and from it all say whether the defendant had sex-
 
 OFFENSES AGAINST CHASTITY. 43 1 
 
 ual intercourse with the said M. at the time and place charged 
 in the indictment, and claimed by the state. 
 
 It then becomes a question of fact for you to determine 
 from all the evidence in the case, whether the defendant had 
 sexual intercourse with the said M., or whether he did not. 
 One of the material allegations of this indictment is that the 
 act of sexual intercourse was had by the defendant with the 
 said M. with her consent. It is then a question of fact for 
 you to determine from the evidence whether the act of sexual 
 intercourse, if had at all, was had with the consent of the 
 said M. 
 
 One of the material allegations of the indictment in this 
 case is that the defendant had sexual intercourse with M., a 
 female, with her consent, while under the defendant's in- 
 struction during the term of his engagement as a teacher or 
 instructor. I say to you that if you find from the evidence 
 given you in this case that the defendant had sexual inter- 
 course with the said M., a female, under his instruction, with 
 her consent, at the defendant's house, after school hours of 
 one Saturday, and before school hours of the following Tues- 
 day, that being the next school day, during the same term of 
 school, such act would be during the term of his engagement 
 as such teacher. 
 
 If you find from the evidence given you in this case that 
 the defendant had sexual intercourse with said M. , a female 
 pupil of his, with her consent, it will be important for you 
 to determine whether said act of sexual intercourse took 
 place during the term of defendant's engagement as such 
 teacher or instructor. If you find from the evidence that the 
 defendant had sexual intercourse with said M., but further 
 find that said act of sexual intercourse took place after the 
 term of school had ended, after the defendant's term of en- 
 gagement as such teacher had expired, then your verdict 
 should be for acquittal. But if you find from the evidence 
 thai the defendant had sexual inti-rc-onr.se with said M., a 
 female pupil of his, with her consent, dining the- term of his 
 engagemenl as such teacher or instructor, then you should so 
 determine by the verdi< t. 
 
 "Nye, Judge, in S 1 iham, Lorain County Common Pleas. 
 
 No. 572^. Same continued — Character of evidence. — 
 Now, gentlemen, as to the amounl of testimony required to 
 produ invictiorj in a I this kind, I say to von that 
 
 "No conviction shall be had on the testimony of the person 
 offended against unsupported by othei evidence, [say to you 
 that as to eai li and all the material averments in the indict-
 
 432 
 
 OFFENSES AGAINST CHASTITY. 
 
 ment, except the allegation of sexual intercourse, they may 
 be proved by the testimony of one witness alone, provided 
 the jury, are satisfied beyond a reasonable doubt of the truth 
 thereof by the testimony of such witness; and as regards 
 proving the truth of such sexual intercourse, I say to you, 
 that while that fact can not be established by the testimony 
 of the person offended against, unsupported by other evi- 
 dence, it may be proved by the testimony of the person of- 
 fended against another corroborating facts and circumstances, 
 corroborating such witness, provided the jury are satisfied 
 beyond a reasonable doubt from the testimony of such wit- 
 ness and such corroborating facts and circumstances that 
 such act of sexual intercourse took place between the par- , 
 ties. . . . The corroborating evidence need not be of 
 sufficient force to equal the positive testimony of another 
 witness, or such as would require the jury to convict in a 
 case in which a single witness is sufficient, but that it must 
 be such as gives a preponderance as to the evidence in favor 
 of the state, provided the jury are satisfied beyond a reason- 
 able doubt of the truth of the charge." 
 
 Nye, Judge, in State v. Ingraham, Lorain County Common Pleas. 
 
 No. 572^. Same continued. — Testimony has been offered 
 and permitted to be given to you as to the reputation of the 
 defendant for chastity and moral worth. The reasonable 
 effect of proof of good reputation is to raise a presumption 
 that the accused was not likely to have committed the crime 
 with which he is charged. The force of this presumption 
 depends upon the strength of the opposing evidence to pro- 
 duce conviction of the truth of the charge. Good reputation 
 is certainly no excuse for crime, but it is a circumstance 
 bearing indirectly on the question of the guilt of the accused, 
 which the jury are to consider in ascertaining the truth of 
 the charge. The evidence offered by the defendant of his 
 good reputation for chastity and moral worth is to go to the 
 jury and be considered by them in connection with all the 
 other facts and circumstances, and if they believe the accused 
 to be guilty they must so find, notwithstanding his good 
 reputation. 
 
 Nye, Judge, in State v. Ingraham, Lorain County Common Pleas. 
 
 No. 573. Bigamy — Defined — The statute. — The statute 
 of Ohio provides: Whoever, having a husband or wife, mar- 
 ries another, is guilty of bigamy. But this does not extend 
 to any person whose husband or wife has been continually 
 absent for five successive years next before such marriage,
 
 PARTNERSHIP. 433 
 
 without being known to such person to be living within that 
 time. 
 
 The gist of the offense consists in going through the cer- 
 emony of a second marriage, which involves an outrage on 
 public decency and morals, and creates a scandal by the pros- 
 titution of a solemn ceremony. The second marriage, if 
 contracted in such form and manner that it would be binding 
 upon the parties if they were legally competent, is sufficient 
 to render one guilty of the crime of bigamy. 
 
 R. S., Sec. 701S. Whether or not the husband or wife has so been 
 continually absent without being known to the person to be living is 
 matter of defense to be proved by the defendant. Stangleiu v. State, 17 
 O. S. 453- 
 
 No. 574. Bigamy — Domicile of divorced parties. — " If 
 
 neither the husband nor wife was domiciled in the foreign 
 state when the action for divorce was instituted or prosecuted, 
 but both were then domiciled in Ohio, the decree of the court 
 in the foreign state was void or inoperative beyond the limits 
 of that state." 
 
 From Van Fassen v. State, 37 O. S. 317. 
 
 PARTNERSHIP. 
 
 No. 575. What constitutes partnership.— "If the jury 
 find that the defendants were jointly interested in the busi- 
 ness, in which the work and labor charged in the petition 
 were performed, sharing the profits and losses between them; 
 that constitutes the defendants partners, and renders them 
 liable as such for liabilities incurred on acconnt of such busi- 
 ness." 1 
 
 To constitute a partnership there must be an agreement 
 between the parties, that they will, from a certain date, share 
 the profits and be responsible for debts and losses, and carry 
 on the business for their mutual benefit; and there must be 
 an entering upon, or conducting, or doing business under 
 such agreement. 1 
 
 The best-considered and least-objectionable test of a part- 
 nership is that of a community of interest in the profits of a 
 business or transaction as a principal or proprietor. 8 
 
 ■ Warner v. Myrick, \ f > Minn 94 
 
 •Thompson on Trials, Sec, 1133, taken from Lucas v. Cole, 57 Mo. 145. 
 I'.,, on Pari 71; Coll on Part., S< w ; Story on Part., Se 
 
 38,60; Berthold v. Goldsmith, 24 How. 536.
 
 434 PARTNERSHIP. 
 
 But this test is valuable as a rule chiefly because it evinces 
 a relation between the parties, where each may reasonably be 
 presumed to act for himself and as agent for the others, and 
 to that extent establishes the fact that the liability was in- 
 curred on the authority of all so participating in the profits. 
 Participation in the profits is not regarded as a rule so uni- 
 form and unrelenting as to be unjustly applied. The true 
 test of a partnership is left to be that of the relation of the 
 parties as principal and agent, and if you find from the evi- 
 dence that the relation of principal and agent existed between 
 the defendants, that the one acted in the business for and on 
 behalf of the other, by such acts they have incurred a joint 
 liability, and you may then find that a partnership existed 
 between them. 4 
 
 4 Harvey v. Childs, 28 O. S. 319, 321-22. Sharing in profits, even 
 though by way of compensation, makes one a partner. Choteau v. Raitt, 
 20 O. 132. 
 
 No. 576. Partnership — What is general agency. — " The 
 jury are to determine from the evidence in the case when the 
 partnership commenced. If it was a general partnership 
 formed generally for the purpose of dealing in cattle, and 
 each was authorized to act for the firm, then the act of one 
 would be the act of all, for each acts as the agent of the 
 other. But if the jury should find that it wag limited in its 
 scope and operation, and was to take effect at the time only 
 of the election of each partner in every particular adventure 
 or purchase, then the partnership could not be held until the 
 property became the general property of all." 
 
 From Valentine v. Hickle, 39 O. S. T9. 
 
 " It must be shown by the plaintiff that the cattle were bought by a 
 member of the firm as a partner, and therefore as the agent of the firm, 
 which gave them an immediate vested interest at the time of the pur- 
 chase, so that they would have called upon him for the profits as charged 
 him with the losses in any sale that he might have individually made to 
 others." Valentine v. Hickle, supra. 
 
 No. 577. What constitutes partnership — Purchases by 
 one partner. — " If the jury find that the defendants had any 
 arrangement for shipping cattle, by which it was agreed that 
 either of them might buy stock on his own responsibility; 
 and upon its delivery for shipment at said place the others 
 might take an interest in any stock so purchased and de- 
 livered, if upon examination of it they thought it suitable to 
 ship or not purchased too high; or by which, if they pur- 
 chased stock when all together, it was to be shipped on joint 
 account ; or if, after looking at or agreeing to take an interest 
 in stock purchased by any one of them before delivered at
 
 PARTNERSHIP. 435 
 
 said place, it was to be shipped on joint account and the par- 
 ties to share in the profits and losses, such facts or agreements 
 did not constitute them general partners, but only partners in 
 each transaction." 
 
 From Valentine v. Hickle, 39 O. S. 19: Bank v. Sawyer, 38 O. S. 339; 
 Peterson v. Roach, 32 O. S. 374. 
 
 Joint purchasers of land to be disposed of for joint profits are part- 
 ners. 40 O. S. 233. 
 
 No. 578. Ostensible partner. — You are instructed that a 
 person, even though he has no interest in the business but 
 who allows his name to be continued as an ostensible member 
 of the firm, may be presumed to give credit to the business, 
 and will to the extent that third persons are induced to trust 
 the firm on the faith of his being a member, he will as to such 
 third persons be estopped from denying that he is a member 
 of the firm, and he will be held by the use of his name to 
 have represented that he was one of the firm, and will be so 
 held to be a member. 1 But to hold one who has so allowed 
 his name to be connected with the linn of which he is not a 
 member, it must appear that the creditor relied on such con- 
 duct, and dealt with the firm on the faith of such party being 
 a member. - 
 
 1 Speer v. Bishop, 24 O. S. 59S ; Story on Part., Sec. 64; Jenkins v. 
 Crane, .51 Wis. 253. 
 
 2 Cook v. P. S. Co., 36 O. S. 135. 
 
 No. 579. Partnership — Right of surviving partner to 
 wind up firm. — Gentlemen <>( the jury: It is the right and 
 duty of the surviving partner to wind up a firm by the 
 collecting of assets, selling property on hand, paying debts, 
 and striking balances. He 1 in sue the estate of his deceased 
 partner for any amount he finds due to him on such settle- 
 ment. 
 
 The burden is on him to show to yon that the balance he 
 claims is the correct amount. 
 
 To determine this requires a knowledge of the agreement 
 of division of profits or losses. You will have to determine 
 
 this agreement. 
 
 The nil'- governing this question are that tin- partnership 
 articles, if the firm continues longer than the time limited in 
 the articles, are presumed to fix the terms of the continuation 
 of the firm, just as much as those of tin- original linn. 
 
 Clement Bati s, Judge, in Burgoyne, Admr., v. Moore, 51 0. S. 626. 
 Judgments affirmed.
 
 436 PARTNERSHIP. 
 
 No. 580. Partnership — Articles of — Alterations of as 
 evidenced by entries in books. — Written contracts may be 
 changed by later oral contracts; and on this principle the 
 partners may by mutual consent alter any part of the partner- 
 ship articles. And this may be done by unanimous assent 
 without spoken words. Hence the books of the firm showing 
 any different arrangement of division of profits and losses, 
 or in any way inconsistent with the articles, the books will 
 control the articles. That is, the agreement of partnership 
 may vary at different intervals. The articles settle what it 
 was on the first day, and presumably it continues the same as 
 then unless the books or proved agreement have changed the 
 articles. The books of a firm are presumed to be the act of 
 all the partners where all had access to them. Whether the 
 plaintiff saw them is of no consequence, since he is not com- 
 plaining of them. M. is bound by the books because they 
 were made under his control or direction. After the death 
 of M. the subsequent entries do not bind his estate. From 
 that time on entries are the entries of Mr. A. alone, and 
 are his private accounts, not binding upon M. except so 
 far as proved by other testimony than themselves. And if at 
 different periods the entries in the partnership books show a 
 change in the proportion of the profits or losses which each 
 partner was to have, such entries will determine each one's 
 proportion. ' ' 
 
 "2. If in the several balancing of said books and render- 
 ing of statements copied therefrom, the bad, delinquent, and 
 suspended accounts appear as a part of the assets of the firm, 
 then the said defendant is not exempt from making good M. 's 
 share of those accounts by reason of this statement and balanc- 
 ing of the books. ' ' 
 
 "3. If the agreement and the books show an understand- 
 ing between the parties as to their rights in the business, the 
 jury are to carry that agreement out, and statements by 
 counsel as to the consequences upon either can not be con- 
 sidered by them, as no such questions are involved, nor is 
 there any evidence upon the subject. 1 ' 
 
 Clement L,. Bates, Judge, in Burgoyne, Admr., v. Moore, 51 O. S. 626.
 
 PERJURY. 437 
 
 PERJURY. 
 
 No. 581. Defined. — The statute — Whoever, either ver- 
 bally or in writing, on oath lawfully administered, willfully 
 and corruptly states a falsehood as to any material matter, 
 in a proceeding before any court, tribunal, or officer created by 
 law, or in any matter in relation to which an oath is author- 
 ized by law is guilty of perjury. 
 
 R. S., Sec. 6897. 
 
 No. 582. As to materiality. — To constitute perjury the 
 statute requires that the fact or facts sworn to if false shall 
 be a material matter, and it is important, therefore, that you 
 understand what is meant by material matter. The false 
 swearing may be to the fact which is immediately in issue, 
 or to any material circumstance which legitimately tends to 
 prove or disprove such fact ; or to any circumstance which 
 has the effect to strengthen and corroborate the testimony 
 upon the main fact, or which affects the credit of the witnesses 
 giving testimony. 1 It is sufficient if it is material to any 
 inquiry or question arising upon the trial, such as, if true, 
 might properly influence the court in any matter affecting 
 the rights of the parties. It must tend to directly or circum- 
 stantially affect the probability or improbability of any inquiry 
 to be determined. - 
 
 1 Dilcher v. State, 39 O. S. [33. A witness may Ik- guilty of perjury in 
 respect to false swearing concerning a mere circumstance. 3 Russell on 
 Crimes, 121. False testimony which only serves to explain the knowledge 
 of the witness. Bishop's Cr. Law, Si . [037. 
 
 * Com. v. Grant, [16 Mass. [7; Jacobs v. State, 4 Am. Cr, i<>s ; Hauler's 
 Cr. Law, 217; Clark's Cr. Law, J34. Sufficient it material to a collateral 
 
 inquiry. Mate v. Shupe, 10 1 
 
 No. 583. Willfully and corruptly — Meaning of . — Before 
 you can find the defendant guilty you must he satisfied be- 
 yond a reasonable <l<>ul>t that he willfully and corruptly 
 falsely swore to the matters charged. It must appear that 
 the false- oath, if it he false, was taken with some degree of 
 deliberation, <>i that it was taken without any knowledge. 
 By willfully and corruptly is meant that the defendant has 
 intentionally sworn to a falsehood. If the jury find that the 
 testimony was false, still you must In- satisfied beyond a rea- 
 sonable doubt that the defendant knew it to be false, or that
 
 43§ PERJURY. 
 
 he did not have any knowledge on the subject, or that he had 
 good reason to believe it to be false. 1 
 
 If you find that the intention to swear falsely did not ex- 
 ist, or that he believed that he was telling the truth, and you 
 find that such belief was an honest belief, and he had rea- 
 sonable grounds for his belief, then you must acquit the de- 
 fendant. 2 
 
 Or if you find that the testimony was inadvertently given, 
 or under a mistaken knowledge of the facts, the defendant is 
 not guilty. 3 
 
 1 Hawley's Cr. Law, 249 ; Clark's Cr. Law, 332. 
 
 2 36 N. Y. 434; Silner v. State, 17 O. 365 ; 22 O. S. 477. 
 
 3 Hawley's Cr. Law, 249. 
 
 No. 584. Oath lawfully administered. — Before you can 
 find the defendant guilty of the crime of perjury you must 
 be satisfied beyond a reasonable doubt that the oath was ad- 
 ministered to him in a lawful manner, and by some lawfully 
 authorized officer, and that the oath must be one that is re- 
 quired by law. If the officer administering the oath is not 
 authorized to administer the oath, the oath is not lawfully 
 administered, and perjury can not be predicated thereon; 1 
 and if the officer administers an oath not warranted by law 
 he acts not as an officer, and false swearing in such case 
 would not be perjury. 2 
 
 1 State v. Jackson, 36 O. S. 281. 
 
 2 Willis v. Patterson, Tapp. 324; Beecher v. Anderson, 45 Mich. 543; 
 People v. Garge, 26 Mich. 30. 
 
 No. 585. Perjury by assignor in examination before 
 probate judge. — By the statute of Ohio it is provided that 
 11 The probate judge may, on the application of the assignee, 
 or of any creditor, or without any application, at all times 
 require the assignor, upon reasonable notice, to attend and to 
 submit to an examination on oath upon all matters relating 
 to the disposal of his property, to his trade and dealings with 
 others, and his accounts concerning the same, to all debts 
 due or claimed from him, and to all other matters concern- 
 ing his property and estate, and the due settlement thereof 
 according to law." 
 
 And now, gentlemen, if you find from the evidence that 
 said defendant was required to, and did, attend and submit 
 to an examination under oath, as charged in the indictment 
 herein, such an examination would be a proceeding before 
 an officer created by law, and if the said defendant, on oath 
 lawfully administered, willfully, corruptly stated a falsehood
 
 PERJURY. 439 
 
 as to any material matter on said examination he would be 
 guilty of perjury in so doing. 
 
 If you find from the evidence in this case that the paper 
 introduced in evidence was executed by the defendant and 
 duly filed in the office of the probate court, and that E. V. 
 duly qualified as assignee as therein named, such proceeding 
 would authorize the examination of the defendant as to the 
 property owned by him. 
 
 As to the materiality of the testimony it is sufficient if it 
 is material to any question arising upon the trial or hearing, 
 and such as, if true, might properly influence the officer be- 
 fore whom the investigation is being heard in any matter 
 agfecting the rights of the parties. 
 
 If you find from the evidence that the defendant, as as- 
 signor, was being examined, under oath duly administered, 
 before C. R. G., probate judge of County, in the pro- 
 ceeding such as has been stated to you, that it became ma- 
 terial to know where the goods of said assignor were ; if there 
 were any such goods, and his testimony as to where the prop- 
 erty was, was the material matter in said investigation. 
 
 The materiality of the testimony depends upon whether, if 
 true, it would probably influence the action of the judge in 
 any matter affecting the rights of the parties to that proceed- 
 ing. But if you find from the testimony that the alleged tes- 
 timony could not properly influence the action of the judge 
 in any matter affecting the right of the parties to that pro- 
 ceeding, then it is wholly immaterial whether it was true or 
 false. 
 
 Statements belie:',, I to be true. 
 
 You are instructed that false swearing under an honest 
 belief that statements are true is not perjury, still the jury 
 are to determine from all the evidence in the case whether 
 such honest belief existed ; and if the jury believe from the 
 evidence, beyond a reasonable doubt, that the defendant 
 swore falsely a^ charged, and that he had no reasonable- 
 grounds for believing his statements to be true, and did 
 not honestly and in good faith believe them to be true, then 
 he is guilty of perjury. 
 
 [f the jury find that the defendant testified as stated in the 
 indictment, and that his testimony was false, still if yon have 
 a reasonable doubt whether the defendant knowingly and 
 willfully testified falsely in giving such testimony, the jury 
 should find the defendant not guilty. 
 
 Nye, Judge, in State v. Berk, Summit County Common Pleas. Affirmed 
 by Circuit and Supreme Courts.
 
 440 RAPE, AND ASSAULTS TO COMMIT. 
 
 No. 586. Proof required — More than one witness — Cor- 
 roborative. — You are instructed that the fact that the defend- 
 ant has sworn falsely can not be established by the testimony 
 of one witness, that the law regards the oath of the defendant 
 as the testimony of one credible witness in his favor, and 
 sufficient to countervail the testimony of one witness swearing 
 positively in contradiction of his oath, so that the testimony 
 of the defendant and the one witness against him would, if 
 the jury regarded the defendant as a credible witness, leave 
 the evidence evenly balanced ; and before the defendant can 
 be convicted the state must furnish corroborative evidence of 
 more than the one witness L. D., or the testimony of one 
 witness and other proofs corroborating such witness. 
 
 The corroborative evidence need not be of sufficient force 
 to equal the positive testimony of another witness, or such as 
 would require the jury to convict in a case in which a single 
 witness is sufficient, but that it must be such as gives a pre- 
 ponderance to the evidence in favor of the state. In con- 
 sideration of the evidence the jury should keep this rule in 
 view in determining whether the false swearing has been 
 proven, and if the state has failed to prove the false swearing 
 beyond a reasonable doubt, the defendant should be acquitted. 
 
 Approved in Crusen v. State, 10 Ohio, 259. 
 
 RAPE, AND ASSAULTS TO COMMIT. 
 
 No. 587. The statute — Denned. —The statute in this 
 state provides that : Whoever has carnal knowledge of a fe- 
 male person forcibly and against her will, or, being eighteen 
 years of age, carnally knows and abuses a female person 
 under sixteen years of age, with her consent, is guilty 
 of rape. 
 
 R. S., Sec. 6816; 91 O. L. 61. 
 
 Rape is denned to be the having of unlawful and carnal knowledge of 
 a woman by force and against her will. Williams v. State, 4 Oh. 227. 
 
 No. 588. Consent of female. — The jury are instructed 
 that before you can find the defendant guilty, you must be 
 satisfied beyond a reasonable doubt that carnal knowledge 
 was had against or without the consent of the female. Carnal 
 knowledge with consent is not rape, unless the female person
 
 RAPE, AND ASSAULTS TO COMMIT. 44I 
 
 is under sixteen years of age. It is not necessary that want 
 of consent be shown by actual manual resistance, but it must 
 be shown that the consent be given by the female person as 
 a rational and intelligent person. If you find that the de- 
 fendant had carnal knowledge of the female while she was so 
 drunk as to be unconscious, it is in law having carnal knowl- 
 edge against her consent ; or if the woman is insane, or an 
 imbecile, or asleep, it is against her consent ; or if her consent 
 was obtained by threats and fear of bodily harm, although 
 there is no actual violence, it is against her consent. ' 
 
 As the law now stands it is not material whether consent 
 has been given by a female under sixteen years or not, as the 
 statute makes it rape where a male eighteen years of age 
 carnally knows and abuses a female person under sixteen 
 years of age, with her consent. It is now rape to have inter- 
 course with a female under sixteen years with or without her 
 consent. 2 
 
 1 Clark's Cr. Law, 186-88. 
 
 By threats, Miller v. People, 42 Mich. 262; Dickerson v. State, 40 N. E. 
 667 (Ind. ; Hawkins v. State, 136 Ind. 630; Monroe v. State, 71 Miss. 196. 
 
 2 920, L. 54- 
 
 No. 589. Carnal knowledge complete, when.— The jury 
 are instructed that carnal knowledge or sexual intercourse is 
 complete upon proof of penetration. 1 
 
 The offense is complete if there be penetration only with- 
 out emission [emissio seminis), nor is it necessary that pene- 
 tration be full and complete, but the slightest penetration of 
 the male organ into the female organ will constitute carnal 
 knowledge within the meaning of the law.-' 
 
 before you can find the defendant guilty of rape, you must 
 be satisfied beyond a reasonable doubt that there was some 
 penetration of the male organ of the defendant into the female 
 organ of the prosecutrix." 
 
 ■R S Sec. 7297. This section does not enlarge tin- meaning of the 
 Btatuto ion in relation to rape as to include persons not bi 
 
 amenable. $50 . S. 52. « „, , , c, , 
 
 •Williams v. State, 20 Fla. 777; 5 Am. Cr. 612. See Blackburn v. Mat.. 
 
 22 <). S. [02. 
 
 1 Massey v. State, 20 S. W. 7.5 s - 
 
 No. 590. Capacity — Burden of proof where accused 
 under fourteen years of age.— •"If it Ik- found that the ac- 
 cused bad sexual intercourse with the child, in the manner 
 stated in the indictment, but that he was, at the time, undei 
 fourteen years of age, the burden was on the state to show 
 that he \ mittingsemen; and the weight which
 
 442 RAPE, AND ASSAULTS TO COMMIT. 
 
 should be given to the evidence, tending to prove or disprove 
 such capacity, is for the consideration of the jury." l 
 
 It is left entirely for the jury to say from the evidence 
 whether or not the defendant was matured sufficiently and 
 had the physical capacity to commit the act. If you find 
 that the defendant was under fourteen years of age, the law 
 presumes him incapable of committing rape; you are in- 
 structed that you can not convict him unless it is proven be- 
 yond a reasonable doubt that he has arrived at the age of 
 puberty, and is capable of emission and consummating the 
 crime. 2 
 
 1 From Hiltabiddle v. The State, 35 O. S. 52. The charge above given 
 is not taken from the charge of the lower court, but was suggested by the 
 Supreme Court as being the proper instruction to the jury under the 
 circumstances. 
 
 2 Williams v. State, 14 O. 227-8. The statute, 7297, does not change 
 this. 35 O. S. 52. Wagoner v. State, 2 Lea, 352 ; Gordon v. State, 93 Ga. 531. 
 
 No. 591. Evidence as to the character of the woman. — 
 
 Evidence has been admitted reflecting upon the character of 
 the woman, and the purpose of the law in admitting such 
 testimony should be explained to you. You are instructed 
 as matter of law that the character of the woman, grant- 
 ing that she is a lewd woman, is no defense to the charge, 
 as rape may be committed against a prostitute as well as 
 against a virtuous female. 1 You are permitted to look to 
 the testimony as to the character of the woman only as a 
 mere circumstance in the case, for the purpose of assisting 
 you in determining whether she has told the truth about 
 the matter, and as reflecting upon the question as to whether 
 or not the intercourse was voluntary on her part, or without 
 her consent. You must consider this evidence with all the 
 other proof offered in the case. 2 
 
 1 Anderson v. State, 104 Ind. 467. 
 
 2 People v. Crego, 70 Mich. 319; Carney v. State, 118 Ind. 525; State v. 
 Reed, 39 Vt. 417 ; Pefferling v. State, 50 Tex. 486. 
 
 No. 592. Resistance — Evidence. — You are instructed 
 that the want of consent and actual penetration are both 
 essential to the crime of rape, and you must be satisfied be- 
 yond a reasonable doubt that there was both want of consent 
 and actual penetration before the defendant can be found 
 guilty of the charge. The prosecutrix is bound to resist, 
 unless manual resistance be overcome by fear or threats. 
 The want of consent may be shown by the testimony of the 
 prosecutrix, but this alone without some corroboration is not 
 sufficient ; it must appear that she made some resistance, and 
 her testimony may be corroborated by her subsequent con-
 
 RAPE, AND ASSAULTS TO COMMIT. 443 
 
 duct, excitement, the condition of her clothes, whether torn, 
 outcries, medical testimony as to the condition of the hymen. 
 
 People v. Terwillinger, 26 N. Y. S. 674; Richards v. State, 36 Neb. 17; 
 People v. Kunz, 27 N. Y. S. 945 ; State v. Connelly, 59 N. W. 499; Richards 
 v. State, 53 N. W. 1027. Walking together not sufficient. State v. Chap- 
 man, 55 N. W. 4S9 (la.). Fear of disclosing may render corroboration un- 
 necessary, 111 Mo. 569. In People v. Wessel, 33 Pac. 216 (Cal.), the jury 
 were- charged " while it is the law that the testimony of the prosecutrix 
 should be scanned, still this does not mean that such evidence is never 
 sufficient to convict, and if you believe the prosecutrix it is your duty to 
 render a verdict accordingly." 
 
 The jury may properly be charged that if they believe that, at the 
 time of the alleged rape, the prosecuting witness made no outcry, and did 
 not complain to others, but concealed the fact for a considerable length of 
 time, that they may take this into account in determining whether a rape 
 was in fact committed or not. Territory v. Edie, 30 Pac. 851. 
 
 If the jury believe that the defendant had sexual intercourse with the 
 prosecutrix, and she did not make the utmost resistance to prevent it, still 
 the defendant may be found guilty provided the jury believe that the de- 
 fendant threatened to use force and do her great bodily injury in case she 
 did not submit through fear of such injury. Id.; 30 Pac. 85 1. 
 
 No. 593. Assault with intent to commit rape. — The 
 
 statute of Ohio provides that "whoever has carnal knowledge 
 of a female person forcibly and against her will is guilty of 
 rape." Rape is defined to he the unlawful carnal knowledge 
 of a woman by force and against her will. There are three 
 things, then, necessary to constitute the offense of rape. 1. 
 There must be carnal knowledge of a female person. 2. The 
 act must be done forcibly. 3. It must be done against the 
 will of the female person. 
 
 If you find, then, from the evidence that the defendant 
 committed an assault upon the person of the said L., it will 
 become necessary for you to determine with what intent he 
 committed said assault. Did said defendant commit said 
 assault with intent to have sexual intercourse with said L., 
 forcibly and against her will? And before the state would 
 be entitled to a verdict of guilty against the defendant 
 for the crime of assault with intent to commit rape, you 
 must further find from the evidence that at the time he so 
 assaulted the said L,., he intended t<> have sexual intercourse 
 with her forcibly and against her will. It is not necessary, 
 to constitute the crime of assault with intent to commit a 
 rape, that the defendant should have actually had sexual in- 
 tercourse with the prosecuting witness L. The offense is 
 
 Complete under our statute if the defendant assaulted her 
 with the intent to have sexual intercourse with her forcibly 
 and against her will. 
 
 Nye, fudge, in State v. Hughs, Lorain County Common Pleas. 
 
 To constitute an • > isaull with intenl t.> commit a rape, tin- man's pur- 
 posi ii: • forci should it be ne< essary, to overcome tin woman's 
 
 will. Bishop's Criminal Law. It 1 nol mereh to solicit her, how- 
 
 ever urgently, to con ent to a carnal connection, [bid 
 L'!l
 
 444 RAPE, AND ASSAULTS TO COMMIT. 
 
 No. 594. Same continued — Force — Consent, etc. — The 
 allegation of force, in the absence of previous consent, is 
 proved by any competent evidence, showing that either the 
 person of the woman was violated, and her resistance over- 
 come by physical force or that her will was overcome by fear 
 or by duress. In either case the crime would be complete, 
 though she ceased all resistance before the act itself was actu- 
 ally consummated. Where a female submits to sexual inter- 
 course through fear of personal violence, and to avoid the 
 infliction of great personal injury upon herself, then such 
 carnal intercourse would not be with such consent as would 
 justify the act upon the part of the man accused. 
 
 To sustain a conviction upon an indictment for assault 
 with intent to commit rape, the testimony must show not 
 only that the accused had a purpose at the time of the 
 assault to have sexual intercourse with the prosecuting wit- 
 ness, but also that he intended to use whatever degree of 
 force might be necessary to enable him to overcome her re- 
 sistance, and accomplish his purpose. 
 
 You are instructed that if the defendant made an approach 
 towards the prosecuting witness with intent to procure her 
 consent to have sexual intercourse with her, and if she re- 
 fused, he abandoned the purpose, such act would not consti- 
 tute an assault with intent to commit a rape. But if you 
 find from the evidence that the defendant made an assault 
 upon the prosecuting witness with intent to use such phys- 
 ical force and threats as would overcome her will and com- 
 pel her to submit to his desires to have sexual intercourse 
 with him, such act would constitute an assault with intent 
 to commit a rape. 
 
 Nye, Judge, in State v. Hughs, Lorain County Common Pleas. 
 
 For definition of attempt, see Bishop's Criminal Law, Sec. 728 et seq. 
 If after an assault with intent to ravish, the woman who had resisted 
 yields voluntarily, so that there is no rape, the offense of assault with in- 
 tent to commit rape remains. 12 la. 66; 50 la. 189. 
 
 No. 595. Same continued — Declarations of prosecuting 
 witness as evidence. — Testimony has been offered by the 
 state and permitted to be given to you of the declarations 
 made by L. , the prosecuting witness, to her aunt, and to her 
 mother soon after the alleged offense. In a case of this kind 
 the declaration of the injured female made immediately or 
 soon after the alleged offense, are competent testimony, pro- 
 vided the female has first been examined in court. They are 
 competent not for the purpose of proving the commission of 
 the offense, but as corroborative of or contradictory to her 
 statement made in court. 
 
 Nye, Judge, in State v. Hughs, Lorain County (Ohio) Common Pleas. 
 This instruction is based on Johnson v. State, 17 Ohio, 593; Laughlin 
 v. State, 18 Ohio 99.
 
 ROBBERY. 445 
 
 ROBBERY. 
 
 No. 596. Robbery and conspiracy — Preliminary ques- 
 tions — Plea — Presumption of innocence. — After stating what 
 the material allegations in the indictment are, it may then 
 be charged as follows: 
 
 To this indictment the defendant has entered a plea of 
 not guilty, and puts in issue every allegation and averment 
 in the indictment which it is necessary for the state to make 
 out to prove its case. 
 
 The law presumes that the defendant is innocent, and 
 that presumption goes with him and abides by him through 
 all the stages of the trial, until the state shall have produced 
 evidence that will satisfy you of his guilt to a degree of cer- 
 tainty known in law as beyond a reasonable doubt. The 
 term reasonable doubt will be explained to you hereafter. 
 
 Nye, Judge, in State v. Dedrick, Lorain County, O. 
 
 No. 597. Robbery defined. — Robber}- is thus defined by 
 statute in Ohio: "Whoever by force or violence or by put- 
 ting in fear steals or takes from the person of another any- 
 thing of value, is guilty of robbery. " M 
 
 There are four tilings that are essential to constitute the 
 crime of robbery. First, There must be a taking of the 
 goods or property of some value. Second, That the property 
 was taken with a felonious intent, or with an intent to steal. 
 Third, That it must be taken from the person of the party 
 robbed, or from his presence or immediate control. Fourth, 
 That the property was taken by force, or violence or by put- 
 ting in fear. And before the state would be entitled to a 
 verdict of guilty against the defendant, it must establish each 
 of the foregoing propositions by evidence which satisfies your 
 
 minds of their proof beyond a reasonable doubt.'-' 
 
 ■ R. S.. Sec. '• 
 
 in State v. Dedrick, Lorain County Common Pleas. 
 
 No. 598. Robbery — Material allegations to be proved. — 
 The materia] allegations of the indictment and the things 
 which are necessary for the state to prove before it is entitled 
 to a conviction at your hands, arc a- follows: First, That the 
 robbery was committed. Second, That said offense was com- 
 mitted within the County of , in the State of . Third,
 
 446 ROBBERY. 
 
 That the defendant (naming him) committed the offense. 
 
 Fourth, That it was done on or about the day of 
 
 1 8 — . You are instructed, however, that the exact date is 
 not material. If you should find that the offense was com- 
 mitted on or about that day, near to that time, that would be 
 sufficient so far as the date is concerned. It is the transac- 
 tion that is material. 
 
 From State v. Dedrick, Lorain County Common Pleas. Nye, Judge. 
 R. S., Sec. 6818. 
 
 No. 599. Robbery also includes assault and battery. — 
 
 The offense charged in this indictment (robbery) includes 
 also the crime of assault and battery. Hence if you find that 
 the defendant is not guilty of the crime of robbery, but is 
 guilty of assault and battery, then you may return a verdict 
 for assault and battery. It may be well, therefore, to state 
 to you what is meant by assault and battery. 
 
 An assault is any unlawful physical force, partly or fully 
 put in motion, creating a reasonable apprehension of imme- 
 diate physical injury to the human being. 1 
 
 Again, an assault is an intentional attempt by force to do 
 an injury to the person of another. 2 A battery is committed 
 when the violence menaced in the assault is actually done, 
 in ever so small a degree, upon the person. A battery, 
 therefore, includes an assault, though an assault does not 
 necessarily imply a battery. 
 
 The slightest touching of another in an angry, rude or 
 insolent manner is a battery. 3 
 
 1 2 Bishop's Crim. Law, Sec. 72. 
 
 2 3 Greenleaf's Ev., Sec. 39. 
 
 3 Nye, Judge, in State v. Dedrick, Lorain County Common Pleas. 
 
 No. 600. The taking. — The jury are instructed that "in 
 order to consummate the offense (of robbery) it is not neces- 
 sary that the property should be actually taken from the per- 
 son of R. M., the individual named in the indictment. It is 
 enough if the property was in his presence and under his im- 
 mediate control, and he was put in fear by the defendant, 
 and whilst the property was so in his presence, and under his 
 immediate control; and he laboring under such fear, the 
 property was taken by the defendant. 1 
 
 ( 1 ) Proof as to money taken. 
 
 I say to you as matter of law if you can find from the 
 evidence that the accused unlawfully and feloniously took 
 
 1 Turner v. State, 1 O. S. 424 and cases cited ; Bishop's Cr. Law, Sec 
 975 ; Wharton's Cr. Law, Sec. 1696.
 
 ROBBERY. 447 
 
 money to the amount and value of dollars, or a less sum, 
 
 the property of H. X., from the person of the said H. N., the 
 proof will be sufficient as to the kind of money taken, al- 
 though the proof does not show what kind of money -was 
 taken, or that it was issued by lawful authority. 
 
 | 2 I Felonious intent. 
 
 Again, the taking must be proved to have been with 
 felonious intent. If you find that the defendant took -the 
 money charged in the indictment, or any part of it, you must 
 further find that he took it with the intent to unlawfully 
 convert or appropriate it to his own use. 2 
 
 (3) The force or violence. 
 
 The force or violence used in taking the money may be 
 actual or constructive. If you find from the evidence that 
 the power of the owner to retain possession of his property 
 was overcome by the defendant, either by actual violence, 
 physically applied, or by putting him in such fear as to over- 
 power his will, that would be sufficient force or violence 
 under our statute. You are also instructed that the money 
 or goods obtained from the owner by putting him in fear 
 will support the allegation that they were taken by force. 
 The fear may be of an injury to the person, or to the prop- 
 erty, and the circumstances must be such as to indicate a 
 felonious intent on the part of the prisoner. 3 
 
 2 Intent must be charged and proved. 10 O. S. 575 ; 4 O. S. 540. 
 J Nye, Judge, in State v. Dednck, Lorain County Common Pleas; see 
 3 Greenleaf's Ev., Sec. 231. 
 
 No. 601. Same continued— Where there is a conspiracy. 
 — Now, to apply these principles of law to the present case. 
 If von find from the evidence that the defendant here on trial 
 and others combined or agreed among themselves to commit 
 an assault upon the person of II. X. with the intent to rob 
 him, and in pursuance of that combination or agreement 
 this defendant v ent, aiding, abetting, or encouraging 
 
 said assault, and that this defendant, or such other persons 
 as have made such combination or agreement, carried out the 
 purpose of said combination and agreement and committed 
 the offense agreed upon tin- person of said II. X., all who 
 wen- present aiding, abetting, and encouraging said unlawful 
 purpose would he guilty of the act there done. 
 
 Again, if you find from the evidence in this case that the 
 defendant here on trial and one 01 more other prisons com- 
 bined or agreed anion- themselvi s to commit an assault upon 
 and rob II. X.. and that, in pursuance of said combination or 
 agreement, said persons did assault and rob H. X. as charged
 
 448 ROBBERY. 
 
 in the indictment of all such persons who were present, aid- 
 ing, abetting, and encouraging, would be guilty of the offense 
 thus agreed upon and committed, and this defendant was a 
 member of said agreement and combination, and was present, 
 aiding, abetting, and encouraging in said robbery, he would 
 be gnilty of the crime there committed. It is not necessary 
 that the defendant on trial, himself actually assaulted and 
 robbed H. N. (if you find that he was assaulted and robbed), 
 because if you find that the defendant was a member of the 
 combination and agreement, that some other person or persons 
 did themselves in fact assault and rob H. N., in pursuance 
 of such agreement or -combination for that purpose, and the 
 defendant here was present, aiding, abetting, and encouraging 
 the act, then he would be guilty. 
 
 Nye, Judge, in State v. Dedrick, Lorain County Common Pleas. 
 
 No. 602. Same continued — Conspiracy in the commis- 
 sion of robbery. — It is claimed by the state that the defend- 
 ant, C. D. , here on trial, and others united in the common 
 purpose of robbing H. N., and that said purpose was carried 
 into execution. Such a common purpose is in law called a 
 conspiracy. 
 
 This defendant denies that he had any such purpose or 
 intent, and denies that he, or he with others, assaulted H. N. 
 with the intention of robbing him, or with any other inten- 
 tion, and denies that he, or he with others, took any money, 
 goods, or property from the said H. N. Now you are instruct- 
 ed as a matter of law that: "When several persons unite to 
 accomplish a particular object, whether they collectedly put 
 each his individual hand to the work, or one doing it, the 
 others lent the aid of their wills, not in the way of mere 
 pacific desire, but of active co-operation, the persons thus unit- 
 ing are all and several responsible for what is done." 
 
 1 Bishop's Crim. Law : " If several, combining both in intent and in 
 act, commit a crime jointly, each is guilt)' the same as if he had done the 
 whole crime." 1 Bishop's Crim. Law, Sec. 630, and, " all who by their 
 presence countenance, or encourage in the commission of the crime, are 
 liable as principal actors." 1 Bishop's Crim. Law, Sec. 632. But, " if two or 
 more persons are lawfully together and any one of them commits a crime 
 without the concurrence of the others, the rest are not thereby involved 
 in the guilt." 1 Bishop's Cr. Law, 634. And, " if two or more persons are 
 unlawfully together, and one of them commits a crime without the con- 
 currence of the others, the rest are not thereby guilty." "Also if several 
 persons are by a concurrent understanding in the actual perpetration of 
 the crime, and one of them, of his sole volition, and not in pursuance of 
 the main purpose, does another criminal thing which is in no way con- 
 nected with what was mutually contemplated, he alone is liable."
 
 ROBBERY. 449 
 
 No. 603. Same continued — Character of evidence essen- 
 tial to prove conspiracy. — The combination or conspiracy 
 may be shown either bv direct testimony or by circumstances 
 and conduct. 
 
 Evidence in the proof of the conspiracy will generally, 
 from the nature of the case, be circumstantial. 1 Though 
 common design is the essence of the charge, it is not necessary 
 to prove that the defendant "and others" came together and 
 actually agreed in terms to have that design and to pursue it 
 by common means. If it is proved that the defendant "and 
 others" pursued by their acts the same object, by the same- 
 means, one performing one part, and another, another part 
 of the same, so as to complete it with a view of the attainment 
 of* the same object, the jury would consider such evidence to 
 determine whether all were engaged in the conspiracy to effect 
 that objjct. 
 
 But, if the defendant was present when H. N. was as- 
 saulted and robbed (if such you find to be a fact), and the 
 offense was committed without any agreement or combination 
 with him, and without his knowledge and consent, then he 
 would not be guilty, unless he take some part in the assault 
 and robbery. The mere presence of the defendant when the 
 assault and robbery was committed upon H. N. would not 
 make him guilty. 
 
 If you find from the evidence that the defendant here on 
 trial and others were at the place of the alleged offense, and 
 that the defendant and others with whom he was associated 
 were there engaged in a common purpose of robbing H. N., 
 and that, in pursuance of said engagement, the said H. N. 
 was in fact robbed, then all who were there, aiding, abetting, 
 and encouraging in said common purpose would be guilty of 
 the offense there committed in pursuance of said common 
 purpose. - 
 
 "3 Greenleaf s Ev., Sei 
 
 * Nye, Judge, in State v. Dedrick, Lorain Common Pleas. 
 
 No. 604. Same continued — Liability independent of con- 
 spiracy. — But, gentlemen of the jury, independent of any 
 combination or agreement, if von find from the evidence that 
 has been given to you that the defendant made an assault on 
 II. N., and took from him by force or violence, or by putting 
 in fear, as has been heretofore explained to you (ante-, No. 
 597) any money of any value, then he would be guilty of his 
 own acts. Every pei son 1 r< ponsible for his own acts, and 
 if there was no agreement between the defendant and any 
 other person, or persons, he would be individually responsible
 
 450 SALES — WARRANTY. 
 
 for all that he did on that day, if you can find that he did 
 anything. 
 
 From Nye, Judge, in State v. Dedrick. 
 
 No. 605. Robbery — Assault with intent to rob — Vio- 
 lence concomitant with the taking. — The jury are instructed 
 that the crime of robbery can not be committed unless there 
 has been some force or violence, or putting the person alleged 
 to have been robbed in fear. The offense may be committed 
 by putting in fear without any force or violence, or without 
 putting in fear, but by force or violence. There being no 
 putting in fear, violence is then an essential ingredient in the 
 crime. Violence, in order to constitute an assault with an 
 intent to rob, must be concomitant with, and not subsequent 
 to, the attempt to take the property. If you find that the 
 accused had abandoned his attempt to take the property, and 
 there was a struggle in order to avoid arrest, however violent 
 this struggle may have been, it did not characterize the act 
 as an attempt to rob. 
 
 Hanson v. State, 43 O. S. 376. 
 
 SALES— WARRANTY. 
 
 No. 606. Sales — When complete. — "All that is necessary 
 to pass property is that the buyer and seller agree. If one 
 who has a long course of dealing with another have a corre- 
 spondence in regard to certain specific property, nearer to the 
 purchaser than to the seller, and more properly, by reason 
 of their business relations, in the control of the purchaser, 
 and they agree, one to buy and the other to sell, the sale is 
 complete just as soon as they agree, and the seller charges the 
 buyer, and the buyer credits their respective books with the 
 price of the property." 
 
 From Robinson v. N. H. L,., 6 Neb. 328, 332. 
 
 No. 607. Sale — What constitutes — Replevin of goods 
 from assignee. — The rights of the parties in this case depend 
 upon whether or not there was a valid consummated sale by 
 K. to H. ; a sale is not consummated simply by transmitting 
 the possession of the goods from the seller to the purchaser; 
 there must have been another condition, namely, title of 
 goods; the right of the property therein must also have passed
 
 SALES — WARRANTY. 45 1 
 
 from the seller to the buyer ; unless this ownership of the 
 goods, as well as the possession thereof, passed from the 
 vendor to the vendee, there was no consummated sale and the 
 ownership remains in the vendor. Whether or not the title 
 to the right of the property, the ownership of the goods 
 passed, depends upon the existence of a legal valid contract 
 of sale made between the vendor and the vendee ; for although 
 possession may be transferred by exchange from one to 
 another, yet title and ownership changes only by the operation 
 of the law, through the medium of the valid contract ; a valid 
 contract being an avenue through which ownership can pass. 
 An invalid or fraudulent contract will not be recognized 
 by the law as of any potency, or as a means to carry the right 
 of ownership from one to another. . . . Where a sale is 
 made for cash, the goods being delivered simultaneously with 
 the payment of the price, both seller and buyer in that in- 
 stance has received what he bargained for, the one giving the 
 goods and the other receiving their equivalent in cash, so that 
 each has all the benefit which can accrue to him from sale, 
 and each has performed every obligation which his duty under 
 the sale requires; the contract is complete and valid, and title 
 to possession has passed. 
 
 Wright, Judge, in Knight & Co. v. Hopkins, Hamilton County Com- 
 mon Pleas. Talcott v. Henderson, 30 O. S. 162. 
 
 No. 608. Same continued — Sale on credit. — But in the 
 case of sales made upon credit the conditions are different; 
 there no cash passes from buyer to seller, although possession 
 of the goods is given ; the seller relies not on the equivalent 
 in value already received, but trusts to obtain it in the future. 
 This trust is based upon and -rows out of those things which 
 influence the mind of the seller at the time lie parted with 
 his g Mid if the statements or conduct of the buyer were 
 
 things which influenced the mind of the seller in giving the 
 credit, then his statements and conduct must be fair and true, 
 
 luse if they are false and fraudulent, and the seller has 
 relied upon that which does not exist, there can be in that 
 case no mutual understanding or contract which can serve the 
 principles of transferring title and ownership; there is no 
 valid contract of sale, the ownership remains still in the 
 original proprietor and he may take the goods back, even 
 though the other has possession then . . 
 
 [n sales upon credit themerefacl ih.it the seller has gotten 
 a bad bargain, or is mistaken in what he thought was the 
 buyer's financial responsibility docs not at all entitle him to 
 
 ind the sale, [f the vendoi sells on credit and merely
 
 452 SALES — WARRANTY. 
 
 takes his chances then he has bargained for nothing which 
 he has not gotten, and the sale stands, although the buyer 
 never pays. It is only where the seller is misled by the 
 buyer, and is induced to give credit by a false belief which is 
 occasioned by the acts and representations of the buyer that 
 he can rescind the sale and recover back his goods. . 
 If the vendor merely takes his chances and is not influenced 
 by the conduct or statements of the vendee, then the sale is 
 valid, and he has no right to replevin the goods; but on the 
 contrary if credit was given on account of misrepresentations 
 made by the vendee, and it turns out that all such represen- 
 tations were the cause of inducing the sale, and they were 
 false and fraudulent, then the sale is invalid and the title does 
 not pass, and they may recover back their goods. 
 
 Wright, Judge, in Knight & Co. v. Hopkins, Hamilton County Com- 
 mon Pleas. See ante, Nc. 207. Fraud. Talcott v. Henderson, 30 O. S. 162. 
 
 No. 609. Sales — Representations as to financial condi- 
 tion invalidating. — Where a buyer although he makes no 
 statements whatevei as to his financial condition, and is not 
 called upon to make any such statement, but intends at the 
 time of making such purchase not to pay for the goods, this 
 will invalidate the sale. Such conduct amounts to a misrep- 
 resentation, because when a man goes to buy, a mere offer or 
 attempt to buy carries with it the inference that the proposed 
 buyer intends to pay for what he is buying whether he ex- 
 pressly promises or not ; but if, in fact, he intends not to pay, 
 then his conduct in offering to buy, which indicates an inten- 
 tion to pay, is false, and inasmuch as the seller would not 
 have sold had he known that the buyer did not intend to pay, 
 he has been influenced by a false belief induced by the buyer, 
 the buyer's conduct is fraudulent, and the sale is void. 
 
 But in this connection the fact that the buyer is insolvent 
 and does not disclose his insolvency to the seller does not 
 necessarily prove that he intended not to pay when he pur- 
 chased the goods. What his intention was is for you to 
 determine from all the evidence ; intention is the condition 
 of the mind, intangible, invisible, and consequently incapable 
 of direct, positive proof, unless there appears from some out- 
 ward expressions, but must generally be arrived at by a con- 
 sideration of the situation, surroundings, and circumstances 
 in which the person whose intention is in question is_ found. 
 And as a rule of proof in such cases, found by experience to 
 be just and wise, the law presumes that reasonable persons 
 anticipate the ordinary and probable consequences of known 
 conditions and consequences; hence if a purchaser of goons
 
 SALES — WARRANTY. 453 
 
 has knowledge of his own insolvency, and knows that he will 
 be unable to pay for the goods, his intention not to pay should 
 be presumed. But if the purchaser does, in fact, intend to 
 pay, and has reasonable expectations to pay, then the pre- 
 sumption does not arise, and the sale is valid, even though 
 he be insolvent and knows it and does not disclose it. Fraud 
 is never presumed, and the burden of proving its existence is 
 always upon him who alleges it. 
 
 Wright, Judge, in King N: Co. v. Hopkins, assignee, Hamilton County 
 Common Pleas. See ante, No. 207. Fraud. Talcott v. Henderson, 30 
 O. S. 162. 
 
 No. 610. What language constitutes warranty in sales. 
 — "'If during the negotiation for the sale of the horse, the 
 defendant made an assertion of soundness, which assertion 
 w r as intended to cause the sale of the horse, and was operative 
 or effectual in causing such sale, then such assertion would 
 constitute a warranty. But a mere expression of an opinion 
 is not enough to constitute a warranty." ! 
 
 (a) Implied warranty that goods arc fit for purpose sold. 
 
 The jury are instructed that where a person sells goods 
 for a specific purpose, with knowledge that the purchaser is 
 getting them for that special purpose, such purchaser has a 
 right to expect that they will answer that purpose, and when 
 the vendor so sells them, with full knowledge of what use the 
 vendee expects to make of them, the law is that the vendor 
 impliedly undertakes with and warrants to the purchaser that 
 the goods are fit for the use intended, and if it turns out that 
 they are not fit for such use, there is a breach of warranty. 8 
 
 ' Prom Little v. Woodworth, 8 Neb. 283. The court held in this case 
 that no particular form or set of words ir< to constitute a war- 
 
 ranty, but that any form of words will be sufficient. 
 
 » Byers v. Chapin, 28 O. S. joo ; See L. R. 2 Q. B.D. [62; Wilson v.Law- 
 
 The particular purpose must be made known by the 
 
 vendee li he di sin to placi upon the seller the responsibilities flowing 
 
 from an implied warranty. Hight v. Bj 1 1 (6 Mass. 13, It the buyer 
 
 relies upon himseli there is no warranty. Mattoonv. Rice. [02 Mass - 6. 
 
 No. 611. Implied warranty. — The jury are instructed 
 as matter of law that in .sales of personal property, in the 
 absence of an express warranty, where the buyer has an op- 
 portunity to inspect the goods oi article, and the sellej is 
 guilty of no fraud, and is not the manufacturer or -rower of 
 the article he •< lis, I he maxim of • a\ } eat < mptoi applies. ' By 
 that we mean thai the purchaser must take care that there 
 are no detects. The purchaser buys at his own risk. This 
 
 ■ Barnard v. Kellogg, ro Wall. 388.
 
 454 SALES — WARRANTY. 
 
 he does unless, as stated, there are present any of the facts 
 just stated, an express warranty, or unless the circumstances 
 of the case are such that the law will imply a warranty. 2 
 
 An implied warranty is one which the law implies from 
 the circumstances of the case, and is really founded upon the 
 presumed intention of the parties. The implication which 
 the law draws from what must obviously have been the in- 
 tention of the parties, with the object of giving efficacy to 
 the transaction and preventing a failure of consideration as 
 can not have been within the contemplation of either side. 
 
 If the jury are satisfied from a preponderance of the evi- 
 dence that the defendants engaged, for a reasonable or valid 
 consideration, to build them three boilers to run the engines 
 for their rolling-mill, and agreed to build them, they, the de- 
 fendants, impliedly agreed that the boilers should be built of 
 good materials and good workmanship; and should be free 
 from all such defects of material and workmanship, whether 
 such defects are latent or otherwise, as would render them 
 unfit for the usual purposes of such boilers. 3 
 
 2 Story on Sales (3d ed.), Sec. 348 ; 20 Johns, 196. 
 
 3 Rodgers v. Niles, 11 O. S. 48. 
 
 No. 612. Recoupment of damages where vendee has 
 used property under warranty as to quality. — The jury are 
 instructed that if you find that there was a breach of war- 
 ranty as to quality of the goods under the instructions given 
 you on that point, the defendant may do one of two things. 
 He may entirely rescind the contract of sale, return the goods, 
 or offer to return them, or retain the goods without offering 
 to return them, and in a suit for the price recover any dam- 
 ages he may have sustained by reason of the breach of war- 
 ranty. He may recover damages for the difference in value 
 of the goods actually received by him and the value of 
 goods had they been of the quality and grade represented and 
 warranted to be, as well as any trouble and expense incurred 
 by reason thereof. 
 
 Dayton v. Hoogland, 39 O. S. 671-82 and cases; see 26 O. S. 537~3 8 - 
 
 Tender of an animal back is not necessary to recover damages, that 
 is, difference in value. Beresford v. McCune, 1 C. S. C. R. 50. 
 
 If there is a false warranty the vendee may rescind the contract for 
 the fraud, and restore the goods within a reasonable time. Nelson v. Mar- 
 tin, 105 Pa. St. 229 ; Freyman v. Knecht, 78 Pa. St. 144 ; Sparling v. Marks, 
 86 111. 125. 
 
 Or the vendee may retain the goods and rely on the fraud in defense. 
 Cavender v. Roberson, 33 Kan. 626; Carey v. Guillow, 105 Mass. 18; Her- 
 fort v. Cramer, 7 Colo. 483, 489. 
 
 No. 613. Notice of rescission, when necessary. — The 
 
 jury are instructed that the law requires a person who desires
 
 SALES — WARRANTY. 455 
 
 to rescind a sale on account of a breach claimed as against 
 the other contracting party, good faith requires that he 
 should give notice of his claim or purpose to rescind when- 
 ever his failure so to do would injure the defaulting partv ; 
 and that if he willfully keeps silent when he ought to speak 
 he will be regarded as waiving such default, or as electing 
 not to rescind. 
 
 Leeds v. Simpson, 16 O. S. 321. 
 
 No. 614. Sale superinduced by mistake may be re- 
 scinded in action for sale when. — The jury are instructed 
 that a contract of sale made under a mistake as to a material 
 fact may be rescinded by the party sought to be charged as 
 the vendee, in an action by the vendor to recover the pur- 
 chase price from the vendee. The mere fact that the vendee 
 has given a note for the purchase price of the goods sold 
 does not amount to a waiver of such mistake or prevent him 
 from insisting upon the mistake as a defense, unless he had 
 knowledge thereof, or ought to have known of it. It is very 
 clear that a defendant can claim no benefit of a mistake as to 
 what he ought to have known, or could, by reasonable dili- 
 gence, have found out. If the defendant, at the time of the 
 giving of the note, knew of that fact, or is justly chargeable, 
 under all the circumstances of the case, with a want of rea- 
 sonable diligence to ascertain it, and to guard against the 
 alleged mistaken belief, the defense on the ground of mis- 
 take fails. In determining this matter of the want of rea- 
 sonable diligence you may look to and consider what the 
 plaintiff said and insisted on in regard to the barrels sold, 
 and you may well consider whether if the plaintiffs them- 
 selves entertained the mistaken belief that the barrels were 
 not suitable for oil barrels, if properly glued, and asserted 
 it as a fact, any want of reasonable diligence can justly be 
 imputed to the defendant for having the same mistaken 
 belii 
 
 If the defendanl acted solely upon the statements or rep- 
 resentations made by the vendor, and the defendant did not 
 any opportunity to see and inspect the barrels, under 
 such circumstances they can not be charged with want of 
 diligence. 
 
 v. Chapin, 2S < >. s. »oo, 
 
 • if then- has Keen .1 materia] mistake as to th< ir iden- 
 tity. Hawley v. Harris, 112 M There is no meeting of minds to 
 form a contract if a a mistake. 11 Pet. 71; 20 Pick. 139. 
 Nor is there a »ale il there b( a material misunderstanding .is to \.\)l- price. 
 40 Cal. 459 ; 62 Wis. 584 , 4 1 Kan. 277.
 
 456 SALES WARRANTY. 
 
 No. 615. Sale — Delivery of wheat to mill whether sale. 
 
 — If the evidence satisfies you that it was understood between 
 W., the plaintiff, and J., the miller, that the wheat in con- 
 troversy was put in the mill to be kept until such time as 
 W. chose to demand redelivery, and that J. agreed to rede- 
 liver it to W. upon such demand, the transaction was not a 
 sale of the wheat to J., but the wheat remained the property 
 of W. 1 
 
 [a) Effect of mixing with other wheat upon transaction. 
 
 "And this character of the transaction is not lost either, 
 even though the custom of the country in reference to which 
 the wheat was received warranted the mixing of it with the 
 wheat of others in the mill, or because it should appear that 
 by the consent of the plaintiff and the miller the wheat was 
 mixed with other wheat in the mill belonging to the miller 
 himself." 
 
 (1 ) With understanding that miller was to ship or use 
 same on his own account, etc. 
 
 " If the jury find that the plaintiff did deposit wheat with 
 J. D. J., at his mill, yet if the jury find that at the time J. 
 received the wheat it was to be and was mixed in a common 
 mass with other wheat in the mill, and with the knowledge 
 or understanding that J. was to retain and use or ship the 
 same, for sale on his own account, at his pleasure, and on 
 demand of the plaintiff was either to pay the market price 
 thereof in money or redeliver the wheat, or other wheat in 
 place of it to the plaintiff, the title of the wheat passed to J., 
 and the plaintiff can not recover in this action." 2 
 
 (2) Mixed with consent of owner. 
 
 That if the proof shows that the plaintiff's wheat, either 
 with or without his consent, was mixed in a common mass 
 with other wheat in the mill belonging to the miller (or to 
 the miller and other persons who had deposited wheat in the 
 mill), the plaintiff acquired thereby a property in the com- 
 mon mass of wheat equal in quantity to that he had put in 
 the mill." 3 
 
 1 Kinkead's Pig., Sec. 1192 ; Chase v. Washburn, 1 O. S. 244. 
 
 2 This was given by request. See Kinkead's Pig., Sec. 1192, where Ohio 
 cases are cited. Chase v. Washburn, 1 O. S. 244, 252; 117 Pa. St. 604; 75 
 la. 267. 
 
 3 Kinkead's Pig., Sec. 1192 ; James v. Plank, 48 O. S. 255. It was a bail- 
 ment, so that the plaintiff acquired, as in charge stated, property in com- 
 mon mass. Id. " Where the identical goods delivered are to be restored 
 in the same or modified form (as where wheat is to be restored as flour), 
 the property in the goods is not changed; the transaction is a bailment." 
 150 U. S. 312, 329; 7 N. Y. 433 ; 8 Allen, 182.
 
 SALES — WARRANTY. 457 
 
 (b) Option to demand equal number of bushels of common 
 mass. 
 
 "If the jury find that it was the understanding between 
 the miller and the plaintiff that the plaintiff had the option 
 to demand and receive the return of his own wheat or an 
 equal number of bushels of wheat out of the common stock 
 in the mill belonging to the miller and the depositors, includ- 
 ing plaintiff's, or to then elect to sell, then the miller, as to 
 the plaintiff's wheat, was a bailee, and was not the owner." 
 
 " If plaintiff delivered wheat at J. 's mill, and the same 
 was mingled with wheat of the miller or other depositors, he, 
 the plaintiff, did not thereby lose his property, but he re- 
 tained a property in so many bushels of the common mass in 
 the mill as he had put in, notwithstanding that it may have 
 been understood between the miller and the plaintiff that the 
 plaintiff's wheat should be mingled with the miller's wheat 
 and the wheat of other depositors." 
 
 "If the understanding between the miller and the plain- 
 tiff provided that J. was to redeliver to plaintiff out of the 
 common mass in the mill the number of bushels which he 
 put in the common mass in the mill, and his proportion 
 was still in the common mass, the plaintiff is entitled to a 
 verdict." * 
 
 ♦ W. Stillwell, Judge, in Geo. W. Hall v. John Watkins, S. C, No. 1707. 
 
 "Where grain is deposited with a warehouseman, with an under- 
 standing that it will be mingled with other similar grain of other parties, 
 and that its equivalent from the common mas-, will be returned in the 
 same or an altered form, the depositor is a tenant in common pro rata 
 with all the other like depi sitors, and the warehouseman is their common 
 bailee. This is merely the case of an intermixture or confusion of goods 
 with the consent of the owners, and each remains the owner of his share. 
 Benjamin on Saks, 5; y, O. S. 244; 48 » >. S. 255; 133 Mass. 154, 160; 117 
 Pa. St. 5S9, 603. 
 
 No. 616. Sale — Warranty — Rescission and tender back — 
 Action upon account for purchase price. — If the plaintiff has 
 satisfied you that the- machine- furnished would accomplish 
 what his contract called for, as the same has been defined by 
 me, then he is entitled to recover the price of the machine 
 together with interest as claimed in his petition. 
 
 If. on the other hand, after a full and fair trial of the 
 machine, under the conditions that the contract called for, 
 the machine failed to CUl in .1 suitable manner veneers up to 
 
 three eighths of an inch in thickness, the defendants, or the 
 parties for whom the machine was purchased, had a right to 
 tender back the machine to the plaintiffs and to rescind the 
 contract. < )r, if the plaintiffs refuse to re< eive back the ma- 
 chine, to place the same in storage at their expense and risks.
 
 458 SALES — WARRANTY. 
 
 If you do not find from the evidence that the machine as 
 constructed was capable of performing the work that the con- 
 tract required of it to perform, under the conditions that I 
 have laid down, you will then look at the testimony as to 
 how the defendants, B. & Co., or the O. B. Co., dealt with 
 the machine, when after using all proper efforts to make the 
 machine work, with the wood properly prepared for the pur- 
 pose, and the operator of sufficient skill to work it, the 
 1 machine failed to perform what was required of it, the de- 
 fendants, or the O. B. Co., had a right to tender it back, 
 if done promptly, and could thereby rescind the contract. 
 But under such circumstances it is the duty of the party to 
 act promptly, and if he fails to do so, and uses the machine 
 for a considerable period of time afterwards, he no longer has 
 a right to return it. 
 
 If you find from the testimony, then, in this case, that 
 the machine was not capable of performing the work for 
 which it was purchased under the warranty, and that the 
 defendant, or the O. B. Co., after fully satisfying themselves 
 on that head, tendered back the machine to the plaintiffs, the 
 plaintiffs would have no right to recover, but if you should 
 find on the other hand that after the defendant, or the O. B. 
 Co., found that the machine would not comply with the 
 terms of the contract, still continued to use it in their busi- 
 ness for a considerable period of time, unless 3^011 find that 
 they had a right to do so by permission of the plaintiffs, they 
 would then forfeit their right to return it, and their only re- 
 course would be, then, in a suit to recover the purchase 
 monev, to set up the warranty and to show how much less 
 valuable the machine was than its contract price, and in such 
 case the sum then shown by the evidence to be the value of 
 the machine to the defendant, or to the O. B. Co., is all the 
 plaintiffs could recover, and with interest from that time. 
 
 I will say that in case you should find that the machine 
 did not comply with the terms of the contract, and you should 
 further find that B. & Co., or the O. B. Co., acted with due 
 promptness in tendering it back, that in such case if you 
 should find such a state of facts to exist from the testimony, 
 ' B. & Co. would be entitled to recover the amount of com- 
 mission, or amount that they would be entitled to receive 
 on the machine if it had been kept by the O. B. Co., and 
 also the amount of the expense they were put to. 1 
 
 Dennis Dwyer, Judge, in The Brownell & Co. v. William T. Powers, 
 Supreme Court. Dismissed.
 
 SALES — WARRANTY. 459 
 
 No. 617. Sales — Action to recover balance due on con- 
 tract of sale of special machinery. — The instructions from 
 which the following extracts are made briefly recite the facts 
 as follows: 
 
 The contract upon which both parties rely recites that 
 the plaintiff will furnish to the defendant one of plaintiff's 
 patent flanging machines, and man to superintend setting up 
 and starting the same, complete the machine in six weeks, 
 and sooner if possible, with 12 by 12 engine to run the same, 
 for the sum of $2,600. The plaintiff guarantees the above 
 machine to flange 120 inches in diameter 1 inch thick, 
 and down as small as 14 inches in diameter and ]/ 2 inch 
 thick, and if there are any defects in the machine, will make 
 the same good free of charge to the defendant. 
 
 "If the plaintiff did perform his part of the contract; 
 that is, furnish one of their patent flanging machines, a man 
 to superintend setting up and starting the same, with 12 by 
 12 engine to run the same, that would flange 120 inches in 
 diameter 1 inch thick, and down as small as 14 inches 
 diameter l / 2 inch thick, and make good free of charge any 
 defects in the machine, so that but for the unskillfulness 
 and mismanagement of the»defendant in operating the same, 
 if you so find the fact to be from the evidence, it would (that 
 is, the machine) have performed its work for which it was 
 sold and purchased, that is filling the terms of the guarantee 
 as above recited, but if it failed by reason of such default on 
 the part of the defendant, the plaintiff would be entitled to 
 recover the stipulated price, though it did not successfully 
 perform the work it was guaranteed to perform, if the failure 
 resulted from the aforesaid causes, in which case the plaintiff 
 would be entitled to recover on the first cause of action the 
 full amount of the note therein set out, with interest from 
 , — , to the first day of this term." 
 
 No. 618. Same continued — Recovery for expenses in 
 experimental efforts to put machine in working order. — As 
 to tlie items of ai count set up in the second cause of action, 
 you are instructed that the plaintiff can not recover for any 
 incurred in experimental efforts to put the machine 
 in complete working order for practical operation, so as to 
 perform the stipulations of the contract, nor foi remedying 
 substantial defects in the machine, either for material, labor, 
 
 railroad fare, hotel hills, or new parts of the machine fur- 
 nished by the plaintiff, though the defendant mav have re- 
 quested tlie same to he done, nor for the set of large clamps 
 if the same were essential to flanging large heads or plates up 
 
 30
 
 460 SALES — WARRANTY. 
 
 to 120 inches diameter. But if the plaintiff did so perform 
 its part of the contract so as to make its guaranty good, rem- 
 edying such defects free of charge, and any said items were 
 furnished at request of defendant to remedy defects caused 
 by defendant's unskillful or improper management of the 
 machine, or caused by accident, or from ordinary wear and 
 decay, then for such the plaintiff may recover for what the 
 same were reasonably worth. Expenses for repairs usually 
 and naturally incident to the reasonable operation of the ma- 
 chine, if the same was competent to perforin the work it was 
 required to do by said guaranty, should not be considered by 
 you as being included in expenses resulting from defects in 
 the machine, and for which if supplied by plaintiff at de-, 
 fendant's request, would entitle the plaintiff to payment 
 therefor for what the same were reasonably worth. The 
 same would be true for expenses for repairs rendered neces- 
 sary by the ordinary wear and decay of the machine or any 
 of its parts, if operated in a reasonably careful and prudent 
 manner, or from injuries resulting from mere accident while 
 being used by the defendant, such injuries would be at the 
 risk of the defendant, and would entitle the plaintiff to com- 
 pensation for repairs to remedy such injuries, if furnished at 
 defendant's request. 
 
 Voris, Judge, in Brownell Co. v. McNeil Co. 
 
 No. 619. Same continued — Reasonable time for testing 
 machine — Question of fact. — The defendant was entitled to 
 a reasonable time within which to test and operate the ma- 
 chine, and determine whether he would accept it or not, and 
 in so doing had a right to rely on the stipulations and guar- 
 anty of the contract — that the machine would flange 120 
 inches diameter 1 inch thick, and down as small as 14 inches 
 diameter ^ inch thick, and if there were any defects in the 
 machine, the plaintiff would make the same good free of 
 charge. 
 
 What would be a reasonable time is a fact that you may 
 determine from the evidence submitted to you, and until the 
 expiration of such reasonable time the fact that the defendant 
 continued to use the same should not be treated as an ac- 
 ceptance of the machine by the defendant, and in absence of 
 a mutual understanding of the parties to the contrary. 
 
 Voris, Judge, in Brownell Co. v. McNeil Co. 
 
 No. 620. Same continued — Knowledge of defects — Ac- 
 ceptance and continued use — Recoupment of damages be- 
 tween actual value and sale price. — But if after the lapse of
 
 SALES — WARRANTY. 46 1 
 
 such reasonable time the defendant had the knowledge that 
 the machine could not perforin the stipulations of the con- 
 tract, or reasonably ought to have had such knowledge, 
 though it may have given plaintiff notice to remove the same, 
 and that the defendant would not accept the same as perform- 
 ance of the contract, yet if the defendant continued to use and 
 operate the same and treated the machine as its own, it would 
 be liable to plaintiff to pay therefor the actual value of the 
 machine in the condition it was when finally accepted by the 
 defendant, considering its capacity to perform or not to per- 
 form the work stipulated for in the contract, not to exceed 
 the contract price for the machine. 1 
 
 But if you find that the machine was not worth as much 
 as the cash payment and the note paid, then the defendant 
 would be entitled to recoup the difference between the amount 
 of the cash and note paid, and the value of the machine so 
 found by you; but this instruction must be understood as 
 only applied in case you find the machine to be less in value 
 than the amount of the moneys actually paid, that is, the cash 
 payment and the amount paid on the first note becoming due.- 
 
 1 Should it have been charged that the value of the property as it 
 would have been if made up to the guaranty less the difference of that value 
 and what it was actually worth as it was? No, because there was no evi- 
 dence offered to charge that the contract price was not the true value of 
 the property guaranteed to be delivered, which price is presumed to be 
 the value of the property in the absence of allegations and proof to the 
 contrary. 
 
 Voris, Judge, in The Brownell Co. v. The J. C. McNeil Co., Summit 
 County Common Pleas. 
 
 No. 621. Same continued — Performance of contract of 
 sale — Modifications. — The defendant, is entitled to have the 
 contract substantially performed by the plaintiff, except as its 
 terms may have been modified or waived by the defendant's 
 consent, if such you find to be the fact from the evidence, 
 but not otherwise; but it should be all the while borne in 
 mind that the written contract must prevail as to all matters 
 concerning which it speaks, unless modified by an agreement 
 of the parties made subsequently and upon sufficient con- 
 sideration. What would be a sufficient consideration, is, if 
 the parties mutually agreed upon a change or substitution of 
 ,,nc thing for another, and differenl from that contracted for, 
 which was accordingly done pursuant to such an agreement, 
 
 ,„- jf the pari 1 "'i such Changes and substitutions with 
 
 full knowledge thereof and acquiesced therein under such 
 circumstances as would make it inequitable to act to the con- 
 trary. 
 
 Voris, Judge, in The Brownell S Co Hi. [. C. McNeil Co., Summit 
 Count} ( ommon Pleas affirmed bj C ircuil Court.
 
 462 SALES— WARRANTY. 
 
 No. 622. Same continued— Measure of damages in case 
 of breach of warranty.— If you find the issues with the de- 
 fendant as to the competency of the machine, and also find 
 from a preponderance of the evidence that upon a fair and 
 reasonable trial and for a reasonable time the machine would 
 not reasonably do the work stipulated for, because of defects 
 therein, and that defendant in making such tests reasonably 
 expended or became liable for the payment of employees and 
 otherwise in and about the machine to make it so operate, 
 and for such other expenses as were, or would be reasonable 
 in contemplation of the parties at the time of making the 
 contract, for this the defendant would be entitled to recover 
 such reasonable expenditures in that behalf incurred ; but we 
 say to you that it ought not to be for any expenses incurred 
 or damages so sustained by it, that under all the circum- 
 stances reasonably ought to have been avoided by the de- 
 fendant. 
 
 You are instructed also that the defendant ought not to 
 recover for any damages occurring after it became reasonably 
 apparent to the defendant that the machine was inadequate to 
 perform the services the defendant required of it, or to which 
 it was thereafter put by the defendant. . . . 
 
 In operating the machine it was and is the duty of the 
 defendant to employ reasonably careful and skillful men, and 
 to see to it that the machinery was properly cared for and 
 kept in proper working order, and that the processes em- 
 ployed in flanging were conducted with reasonable care, pru- 
 dence and skill, and if there was any default in these respects 
 by the defendant or its' employees, and any failure resulted 
 therefrom, then the defendant must bear the consequences 
 thereof, and can not charge the same to the plaintiff. Tri- 
 fling deviations, defects or omissions in the machine known 
 to the defendant, or that reasonably ought to have been 
 known to it, if it exercised reasonable care and skill under 
 the circumstances, which could be supplied or remedied by 
 slight efforts or expense, ought not to be considered by you 
 otherwise than laying a foundation for the recovery of neces- 
 sary expenses of remedying them. 
 
 Voris, Judge, in Brownell Co. v. The J. C. McNeil Co., Summit County 
 Common Pleas. Affirmed by Circuit Court. 
 
 No. 623. Same continued — What is an acceptance. — 
 
 The fact that the cash payment was made and the two notes 
 mentioned in the contract were given, one of which was paid 
 by the defendant, on the other of which payment was re- 
 fused, is to be taken by you that with the other circumstances
 
 SALES — WARRANTY. 463 
 
 in evidence before you, to have such effect as you may see fit 
 to give to it in determining whether or not the defendant 
 accepted the machine as a fulfillment of the contract. But 
 the defendant is entitled to have this considered by you in 
 the light of the knowledge it had or reasonably ought to 
 have had of the character of the machine, and its capacity 
 for doing the work it was guaranteed to do, which knowl- 
 edge may be considered by you in the light of the represen- 
 tations made to plaintiff, including its circulars and letters 
 sent defendant by plaintiff relating thereto, which represen- 
 tations it would, if acting in good faith, be entitled to be- 
 lieve and rely on. The matter of acceptance of machine or 
 waiver of defects therein is a question of intention to be de- 
 termined by you from the means of knowledge which the 
 defendant had ; whether he did or did not rely in good faith 
 upon the assurance of plaintiff, and the manner of using the 
 machine by defendant. 
 
 Both parties should act in the premises in such a reason- 
 able manner as to save themselves from unnecessary dam- 
 age, and if they did not so act it lays no ground of recovery 
 for any damage that might have been so averted. 
 
 Voris, Judge, in The Brownell Co. v. The McNeil & Co., Summit 
 County Common Pleas. Affirmed by Circuit Court. 
 
 No. 624. Machinery sold for particular purpose — 
 Whether a breach of warranty — Deficiencies from general 
 adaptation to purposes warranted. — It is claimed by the 
 defendant that the machinery was sold upon a warranty; 
 that the machinery would do and perform, in a good and 
 perfect manner, all work for which it was designed, and I 
 instruct you that the warranty was that which was given in 
 evidence, and which was part in print and part in writing, 
 and was the warranty which I have just given you by reading 
 the same from plaint ill's reply, which you will have with 
 you and which contains the warranty on which the goods 
 were sold, and n<> other warranty has anything to do with it. 
 This written warranty, with all its conditions and limitations 
 expressed in it, is conclusive between and is binding on all 
 
 the parti< , It is in ili.it ■"The law of the parties" and they 
 mus t be laid t«> it to the exclusion of all outside stipulations. 
 Now then, under the instructions which I shall give you, 
 was tlurc- upon the part of the plaintiff any breach of this 
 warranty? Hid this machinery do bad work, and was it 
 unlit tor the purposes and uses of threshing and cleaning 
 small grain, such as threshers and separators are used for? If 
 it did good work while in tin defendant's hands, that must
 
 464 SALES — WARRANTY. 
 
 be an end to your inquiry, and your verdict should be for the 
 plaintiff, but if it did bad work, you will then inquire what 
 was the cause of it. Was it because it was not well-made or 
 of good material, or from deficiencies from general adaptation 
 to the purposes for which it was warranted? If it was, then 
 that would be a breach of the warranty on the part of the 
 plaintiff, and they could not recover if nothing else appeared ; 
 or was it because the machinery was improperly run, or not 
 properly managed, or was badly managed, or because upon 
 starting the machine the defendants did not intelligently 
 follow the printed hints, rules, and directions of the plaintiff? 
 If it was from such cause or causes, it would not be a breach 
 of warranty on the part of the plaintiffs, nor prevent them from 
 recovering in this action. And upon this question you may 
 look into the evidence as to how it worked in the hands of 
 others, not for the purpose of determining whether it worked 
 badly in the hands of the defendants, but whether it was the 
 fault of the machinery or of defendants, as shedding light on 
 that question. 
 
 John D. Nicholas, Judge, in Nicholas, Shepard & Co. v. Orr. Approved. 
 
 No. 625. Same charge continued — If directions followed 
 — and it still did not operate — Duty to give notice — Duty to 
 remedy defects. — If they did intelligently follow the hints, 
 rules, and directions of plaintiffs, and yet were unable to 
 make the machine operate well, it was the duty of the defend- 
 ant immediately to serve written notice on the plaintiffs at 
 , , and also on S. , stating wherein it failed to per- 
 form according to its warranty, and to give the plaintiffs 
 reasonable time to remedy the defects, if any, unless it was 
 of such nature that it could be done by letter of advice, and 
 then if the defect is one which was inherent in the machinery, 
 plaintiffs would remedy it at their own expense, but if it arose 
 from improper management of defendant, or lack of proper 
 appliances by them, or a failure to observe the hints, rules, 
 and directions of plaintiffs, then the defect was to be remedied 
 at the expense of defendants. But if such notice be given, 
 Plaintiffs are bound to remedy the defects either at their own 
 or defendants' expense, according as it might be the fault of 
 the machine or of the defendant. But they were not bound 
 to do this unless they first received such notice, and they had 
 a right to stand and insist upon a written notice, and, unless 
 they got it, they were not bound to do it; but while this is 
 so they could waive the writing and act upon a verbal notice 
 either to themselves or to their agent, S., and if they did get 
 verbal notice of the defects of the machine, and did not de-
 
 SALES — WARRANTY. 465 
 
 mand a written one, but undertook to act under the verbal 
 one, they thereby waived notice in writing, and were bound 
 to remedy any defects which you shall find existed in the 
 machinery which hindered it from doing good work. 
 
 (a) Defendants may refuse to keep machinery. 
 
 And the defendants then had the right to refuse to keep 
 the machinery, and might legally have notified plaintiffs to 
 take it away, and deliver up the notes and mortgages, and 
 demand the return on the payments made upon it. But did 
 they do this, and if they did not, why did they not? 
 
 (b) Waiver of right to return — Or induced not to do so. 
 
 If it was by their own neglect, they thereby waived their 
 right to do so, but if they were induced not to do it, but to 
 keep it and give further opportunity to the plaintiff to remedy 
 the defects, it would not be a waiver on their part, and they 
 would not lose their right to return the machinery, and make 
 their demands for a return of what they had paid at any future 
 time, upon the failure of plaintiffs to remedy the defects and 
 make the machinery perform according to the warranty. 
 Was such tender of the machinery and the return of the notes 
 and mortgages ever demanded? If so, was the property 
 machinery ever taken by plaintiffs under their chattel mort- 
 gage and disposed of under it? If so, was such tender and 
 demand made before the property was so taken under the 
 mortgage? If it was so tendered before and because the de- 
 fects in the machinery were not remedied, the plaintiffs were 
 bound to accept it, and the defendants would be released 
 from the payment of the notes, and entitled to have them 
 delivered up, and a return of what they had paid upon the 
 machinery to the plaintiff. 
 
 (c) Use without giving notice of deficiencies according to 
 
 terms of warranty — Effect. 
 But as to certain deficiencies in the machinery, other than 
 the materia] and make- of it, that is to say, deficiencies in the 
 general adaptation of the engine for developing the rated 
 power, and of the separator for threshing, separating, and 
 cleaning, it is stipulated in the warranty and contract that all 
 
 such are to be reported to the plaintiffs at , and to the 
 
 agent, S., through whom the machinery was purchased, 
 within five days after starting the machine, and not after 
 continued use and injury to the machinery. And it is ex- 
 pressly stipulated that use without such notice is conclusive 
 evidence of satisfaction and fulfillment of all warranty in that 
 regard. This is a different matter from defects in the me 
 chanical construction of the machinery, or the material of 
 which it is made, and goes to the principal on which the
 
 466 SALES — WARRANTY. 
 
 machinery is constructed, and capacity to perform the work 
 of machinery designed for threshing and cleaning grain, faults 
 or deficiency of that nature it is assumed would be discovered 
 at once on starting the machine, or very quickly thereafter, 
 and therefore it is that they require a prompt report, and it 
 is stipulated that a failure to so report such deficiencies within 
 that time after use of it shall be conclusive. Now, did the 
 defendants serve such notice within that time after starting 
 such machinery? If they did, they would have performed 
 the conditions of the contract on their part, but if they did 
 not, they would not have so performed such conditions, and 
 can not give notice after the termination of five days after they 
 have commenced to use it, and could not claim to be heard 
 as to such defects after that time ; they would be estopped 
 from complaining of them after that time. 
 
 (d) Kind of notice — Verbal or written — Response to ver- 
 bal notice — Waiver of written. 
 
 But it is claimed that this notice should be in writing, 
 
 and one sent to , and the other to the agent, S., and that 
 
 if they did all these, then it would make a compliance with 
 the conditions of the warranty on their part; I do not so 
 understand the law, but say to you that if verbal notice was 
 
 given to the plaintiff at , or to the agent, S., at their 
 
 place, either within or without the five days, it was the right 
 of the plaintiffs to stand upon the written warranty and refuse 
 to act upon any other than a written notice. But if, on the 
 contrary, on the receipt of such verbal notice, no objection 
 was made to its being verbal instead of in writing, or as to 
 the time when given, and the plaintiffs, either by themselves 
 or by their agent, S. , acted upon said notice, and in pursuance 
 of it undertook to remedy the defects complained of, it was a 
 waiver of the conditions of the warranty as to such notice in 
 writing, and was a sufficient notice, although verbal. 
 
 John D. Nicholas, Judge, in Nicholas, Shepard & Co. v. Orr. Affirmed 
 by Supreme Court. 
 
 No. 626. Defense— Fraud and deceit in sale of property 
 — Parties dealing on an equality. — Deceit or fraud in busi- 
 ness transactions consists in fraudulent representations or 
 - contrivances by which one person deceives another who has 
 a right to rely upon such representation, or has no means of 
 detecting such fraud. It is the law that fraud vitiates every 
 contract. There is no exception to this rule. When fraud 
 is proven to have promoted the making of a contract, it is 
 void and can not be enforced. Fraud taints every transaction 
 which is the result of it. But fraudulent representations in
 
 SALES — WARRANTY. 467 
 
 the sale of property will not in themselves always constitute 
 deceit which will be the subject of an action for damages. 
 
 Where parties deal with each other on a footing of equal- 
 ity, there must be some existing circumstances or some means 
 used calculated to prevent the detection of falsehood or fraud, 
 and impose upon a purchaser of ordinary intelligence, pru- 
 dence, and circumspection. If the purchaser has full oppor- 
 tunity to examine the property, and can easily and readily 
 ascertain its quality and value by inspection, and he neglects 
 to do so, then any injury which he may sustain by such neg- 
 ligence is the result of his own folly, and he can have no 
 relief at law, unless the representation was of such a character 
 as to mislead a prudent person or put him off his guard. The 
 law wisely and justly presumes in such a case that a purchaser 
 will take care of his own interests, and that, when he distrusts 
 himself, his own judgment and shrewdness, he will protect 
 himself from imposition. 
 
 Pugh, Judge, in Spencer v. King, Franklin County Common Pleas. 
 
 No. 627. Same continued — Opportunity of inspection. — 
 When the purchaser has a full opportunity to inspect the 
 property, but fails to do so, and the representations were not 
 such as should have misled him, he has no right to complain 
 if the property sold does not measure up to the representations 
 of the seller. 
 
 Pugh, Judge, in Spencer v. King, Franklin County Common Pleas. 
 
 No. 628. Same continued — What commendations may 
 "be made. — It is well known that, in the course of trade, vend- 
 ors will speak in terms of high commendation of the property 
 which they are offering for sale. Such "dealing talk" is not 
 deemed in law as fraudulent, unless accompanied with some 
 artifice calculated to deceive the purchaser and throw him off 
 his guard, or some concealment of intrinsic defects not easily 
 •discoverable by reasonable diligence and care. 
 
 Pugh, |ud in 5p< ocei v. King, Franklin County. 
 
 No. 629. Same continued — Expression of opinion by 
 seller as to amount, value, and quality. — The opinion which 
 the seller of property expi ■ >n< 1 1 ning the amount, value, 
 
 and quality is frequently asked for and given at sales, and is 
 
 never ground for a law suit when it proves to lie untrue, if it 
 only an opinion and was honestly given. 
 
 But if the statem< nl of tin- value was more than an opin- 
 ion, if it was an affirmation oi a specifii material fact, if it
 
 468 STATUTES OF LIMITATIONS. 
 
 was deliberately made by the seller who had superior knowl- 
 edge in regard to it, and if it was acted upon by the buyer, 
 and if it was known to the seller to be false, it may be deemed 
 fraudulent and a sufficient basis for an action. The rule of 
 law applicable to this matter is this: The property in ques- 
 tion was situated in another state not accessible to the obser- 
 vation and judgment of either party. If the defendant had 
 knowledge of its value superior to the other party, if he 
 
 deliberately represented that it was worth dollars per 
 
 acre, and that was more than the general praise or puffing 
 which sellers are liable to indulge in, if he knew it was false, 
 and if the plaintiff, acting upon such representations, pur- 
 chased the property, it is competent for you to infer that it 
 was a fraudulent representation, unless you further conclude 
 that it was not material. If you find that the representations 
 as to the value of the land were only opinions, only trade talk, 
 then the plaintiff can not recover, notwithstanding the opin- 
 ions were not well founded. The law does not assist the 
 purchaser who pins his faith to the exaggeration of the value 
 of property made by sellers of it. 
 
 Pugh, Judge, in Spencer v. King, Franklin County Common Pleas. 
 
 STATUTES OF LIMITATIONS. 
 
 No. 630. Statute of limitations — New promise to be in 
 writing. — "The jury, in order to take the case out of the 
 statute of limitations and entitle the plaintiff to recover, must 
 find from the testimony that the defendant has, within the 
 
 last years before the commencement of this action, made 
 
 his promise in writing to pay said note (or whatever it may 
 be), or that he has actually paid thereon some portion of the 
 principal or interest thereon within the time aforesaid." 
 
 From Bridgeton v. Jones, 34 Mo. 472. 
 
 No. 631. New promise reviving claim. — The court in- 
 structs the jury that the instrument dated , 18 — , which 
 
 has been received in evidence, was barred by the statute of 
 limitations before this suit was brought, and no recovery can 
 
 be had on the same unless the defendant, within years 
 
 before the beginning of this suit made a new promise ; and 
 the burden of proof of that rests upon the plaintiff and not 
 upon the defendant. The plaintiff must recover, if at all,
 
 STATUTES OF LIMITATIONS. 469 
 
 upon the preponderance of the testimony. If the plaintiff 
 claims the right to recover upon a new promise alleged to 
 have been made by the defendant, and the testimony upon 
 that point is so conflicting that the jury can not determine 
 whether such a promise was made or not, they must find for 
 the defendant." 
 
 From Parker v. Hawley, 4 Colo. 336. 
 
 No. 632. Statute of limitations — Revival of debt by- 
 promise. — "The promise by which a discharged debt is re- 
 vived must be in writing, clear, distinct, and unequivocal. 
 There must be an expression by the defendant of a clear in- 
 tention to bind himself to the payment of the debt. The 
 new promise must be distinct, unambiguous, and certain. 
 The expression of an intention to pay the debt is not suffi- 
 cient. There must be a promise before the debtor is bound. 
 An intention is but the purpose a man forms in his own 
 mind ; a promise is an express undertaking, or agreement, to 
 carry that purpose into effect, and must be express in contra- 
 distinction to a promise implied from an acknowledgment of 
 the justness or existence of the debt." 
 
 From Shockley v. Mills, 71 1ml. 292. 
 
 No. 633. Kind of writing sufficient to take out of stat- 
 ute of limitations. — There is some controversy as to wheth- 
 er said writing is sufficient to take said claim of plaintiffs, if 
 you find such claim to have existed, out of the statute of lim- 
 itations, that is, as to whether such writing is a sufficient 
 acknowledgment to enable the plaintiffs to now sue upon 
 their barred claim. 
 
 You must first find if said writing was made within the 
 six years next preceding the time of commencement of this 
 action; if you so find, then if you further find that said writ- 
 ing was mack- by said !•'.. S. herself, with her own hand; 
 that there is inserted somewhere in said writing her name of 
 !•'.. S., or any other name by which she was commonly 
 known; that said name was so inserted in said writing by 
 hei with the intent that she should be bound thereby as a 
 completi acknowledgment of indebtedness upon her part, 
 
 and it was SO written to give authenticity to said writing; 
 
 and it' you further find that the said writing was shown by 
 her to either the plaintiffs, oi to another person than the 
 plaintiffs, with the intent thai the same should be communi- 
 cated to the plaintiffs, then the said paper writing would be 
 a sufficient acknowledgment in writing, although not signed 
 by her at the end thereof, of the plaintiffs' claim ; only, how-
 
 4JO STATUTES OF LIMITATIONS. 
 
 ever, to the extent that said paper writing does acknowledge 
 said claim. If you find that the terms of said paper writing 
 are sufficiently explicit as to show an acknowledgment of the 
 plaintiffs' claim, and find the other facts as the court has in- 
 structed you, then upon this point you will find for the plain- 
 tiffs. But the court further charges you that it is incumbent 
 upon the plaintiffs to establish this said alleged acknowledg- 
 ment of said barred demand by a preponderance of the testi- 
 mony. 
 
 If, under the instructions of the court, you find for the 
 plaintiffs upon the first point mentioned, namely, as to 
 whether said plaintiffs made said loan, as alleged in the peti- 
 tion ; and if, under the further instructions of the court, you ' 
 find for the plaintiffs upon the second point mentioned, 
 namely, as to whether there was an acknowledgment in writ- 
 ing by said E. S. of said original claim, and that said ac- 
 knowledgment was properly signed by her in the manner and 
 for the purpose which the court has instructed you, then your 
 verdict will be for the plaintiffs for the amount of said origi- 
 nal indebtedness, with interest thereon from the date or dates 
 when the said loan or loans were made. 
 
 If, however, you find that the plaintiffs have not made 
 out their alleged cause of action, either as to the validity of 
 the original claim, or the sufficiency of said alleged acknowl- 
 edgment, then you will find for the defendant; and in this 
 connection, in view of the claim made by the defendant that 
 the alleged loan, if you find one to have been made, was 
 made not to E. S. but to N. S., "the court further instructs 
 the jury that if they find this money was loaned to N. S. 
 alone, and not to E. S., or E. S. and N. S. jointly, then you 
 must find for the defendant." 1 
 
 "The court instructs the jury that in this case the stat- 
 ute of limitations is a complete bar, and that the jury must 
 find for the defendant, unless the jury further believe that 
 the said E. S., within six years of the commencement of this 
 suit, made and signed a written acknowledgment of the debt 
 sued for. ' ' 
 
 "I charge you that an acknowledgment of a demand to 
 revive it against the statute of limitations is independent of 
 any promise expressed or that may be implied from such ac- 
 knowledgment. An acknowledgment of the demand in the 
 ordinary sense of the word is all that is necessary." 2 
 
 'John C. Miller, Judge, in Lothscheutz v. Lothscheutz, Clarke County. 
 The Circuit Court reversed the Common Pleas, and the Circuit Court was 
 affirmed by the Supreme Court, but this portion of the charge seems 
 sound. The error of the trial court was in not directing a verdict. R. S., 
 Sec. 4992. 
 
 2 John C. Miller, Judge. Id.
 
 STREETS. 471 
 
 No. 634. Limitation upon an account. — The court fur- 
 ther says to you as a matter of law, that where the statute of 
 limitations is set up against an account, each item of the ac- 
 count is barred in six years after the right of action accrued 
 thereon, unless it is taken out of the statute on some special 
 ground. 
 
 Evidence has been given tending to show the dates when 
 the various items of the defendant's account accrued, and if 
 you find from the evidence in the case that any or all the 
 items of such account accrued more than six years before the 
 commencement of this suit, then, in order to prevent the 
 statute of limitations running against such items of account, 
 the defendant must show by a preponderance of the evidence 
 m the case that such items of account were made as payments 
 upon the note in question, and was so understood by the par- 
 ties at the time; and, if you find that these items of account 
 were not made as payments on the note, was not intended 
 to be such by the parties at the time, the account was made 
 and the goods furnished, then they would not be credits upon 
 the account, and all items in defendant's said account which 
 accrued more than six years before the commencement of 
 this action would be barred by the statute of limitations, un- 
 less, as I have said to you, that when they were furnished to 
 the plaintiff's decedent they were to be as credits upon the 
 note, and, if they were, they should be allowed by you. 
 
 Gillmer, Judge, in McGaughey, admr., v. Cramer, Trumbull County 
 Lfiinmon Pleas. 
 
 STREETS. 
 
 See also Municipal Corporations. 
 
 No. 635. Abutting owners. What is ownership. — \'<>w , 
 first, as to the question of ownership of the plaintiff. The 
 plaintiff can not recover in this action unless she has satis- 
 fied you by a preponderance of evidence that she is the owner 
 in fee simple of the premises described in this petition, and 
 unless you are satisfied that these premises are situated on or 
 abutting upon the street upon which this railroad runs its 
 trains. 
 
 If yon find from the evidence, gentlemen, that the plain- 
 tiff was in ] of these premises at the time of the 
 bringing of this suit, and at the time of the construction of
 
 472 
 
 STREETS. 
 
 the railroad, and during the time of its operating said rail- 
 road, under a deed purporting to convey to her the fee simple 
 in said premises, then you will be authorized to find that she 
 is the owner of the premises. 
 
 The plaintiff introduces in evidence three separate deeds. 
 I may say to you, as a matter of law, that the purport and 
 effect of these deeds is to convey the fee simple, or title, to 
 these premises described to plaintiff. Now, you may look at 
 the evidence. If you find that this plaintiff is in possession 
 of these houses or premises described by her, in possessionby 
 herself or by tenants, then you will be warranted in finding 
 that she is the owner of the premises in fee simple in the pe- 
 tition described. But if you find that she is not in possession 
 of the premises under the deeds that have been offered in ev- 
 idence, then you will not be authorized to find that she is the 
 owner in fee simple of the premises described in the petition. 
 And if you find that she is not, your inquiry will end, and 
 your verdict will necessarily be for the defendant. But if 
 you find, after consideration of all the evidence, that she is 
 such owner, then you may inquire next whether she is dam- 
 aged by reason of the operation of this railroad along 
 
 Avenue. 
 
 J. B. Driggs, Judge, in C. L. & W. R. R. Co. v. Vennum, Sup. Ct., 2603. 
 Judgments affirmed. . . 
 
 Whenever it is necessary for the owner to prove title, a prima facie 
 case is made out by proving possession under a deed purporting to convey 
 a fee. Lewis, Em. Dom. Sec. 442 ; Carl v. Sheboygan & Fond du Lac R. R. 
 Co., 46 Wis. 625 ; Whitman v. Boston & Maine R. R. Co , 3 Allen, 133. 
 
 No. 636. Abutting owner— Rights in street— Damage 
 by construction of railroad in. — The plaintiff has a right, if 
 
 she is the owner of these premises on Avenue, distinct and 
 
 independent of the rights of the city. This right which the 
 plaintiff had in the street fronting on her premises was one 
 which the city can not pretend to claim — of an abutting land- 
 owner; and the plaintiff in this case had an incidental title 
 or certain franchise in the street — the right to the use of the 
 street unincumbered by railroads or anything that it was not 
 intended for. Now, this plaintiff would be entitled to re- 
 cover damages — such damages as she has sustained by reason 
 of the diversion of the street from the uses which it was 
 originally intended for ; an appropriation for other or unusual 
 uses. I may say to you that the appropriation of a street by 
 a railroad, and running of its locomotives and cars over such 
 railroad, is a diversion of the street from the use which it 
 was originally intended for; and if such railroad appropriates 
 such street, and lays its track thereon, and runs its locomo-
 
 STREETS. 473 
 
 tives and cars over the same, abutting land-owners would be 
 entitled to recover whatever damages they may have sus- 
 tained thereby. 
 
 Now, you may look to all the evidence in determining 
 this question. Has the plaintiff's access to these premises 
 been lessened by reason of the construction and operation of 
 this railroad? Has the beneficial use of the street to her , 
 property been destroyed in any measure by the construction 
 and operation of the defendant's railroad? 
 
 J. B. Driggs, Judge, in C. L. & W. R. R. Co. v. Vennum, S. C, 2603. 
 Judgments affirmed. 
 
 No. 637. Same continued — Damages. — In considering 
 the question of damages you may take into consideration an- 
 noyance caused (if it has been shown that there was any) by 
 smoke, cinders or noise caused by the operation of the de- 
 fendant's railway. Take all these facts into consideration in 
 determining the amount of damage that the plaintiff has sus- 
 tained by reason of the construction and operation of the de- 
 fendant's railroad. 
 
 In determining this question you may consider the evi- 
 dence of the witnesses that have been called to state their 
 opinions of the diminished value of the property since the 
 construction of the railroad. 
 
 A number of witnesses have been called who have testi- 
 fied as to its value before the construction of the railroad 
 and as to its value since that time. You may consider their 
 evidence in determining the amount that she is entitled to 
 recover if you should find that she lias sustained damages. 
 And in considering this evidence you will look carefully to 
 the means these witnesses have as to knowing the value of 
 this property, their means of knowing; their estimates of 
 values are merely opinions. 
 
 The weight and credit given to such opinions depends 
 ly upon the means they have for knowledge; of know- 
 ing as to what is testified to. A witness, if he has but little 
 
 knowledge of the value of property in , his opinion as to 
 
 the value both before and after the- construction of the rail- 
 road would be of little value. 
 
 But if you find from the evidence or statements of the 
 witness that he has large experience in that vicinity, and 
 has made careful examination of that property, and is a man 
 nse and intelligence, his opinion .should b( entitled to 
 weight and consideration by the jury in determining the 
 quesl ion of damaj 
 
 I r Drigg . [udge, in C. L. & W. K. R. Co. v. Vennum, S. C, 2603, 
 
 |udgn :! " d
 
 474 STREETS. 
 
 No. 638. Damages resulting from construction and 
 operation of commercial railroad in street under license or 
 agreement with municipality — to egress and ingress to and 
 from business portion of city — schools, churches, etc., — 
 causing permanent injury to premises. — You will proceed 
 to inquire and determine whether or not the premises of 
 plaintiffs are so situated and located as to be injuriously 
 affected by the improvements of the defendant placed upon 
 said street, and as the direct and necessary result thereof, in 
 any or all of the particulars complained of, and if you find 
 that the premises are not so situated and located, or are not 
 so affected, and the means of ingress to and egress from plain- 
 tiffs' premises were as good, safe and convenient after the 
 
 railroad of defendant was constructed on Street as the 
 
 same was before the railroad was constructed thereon, then 
 vou need not inquire further, but should return your ver- 
 dict for defendant. But if you find that the property and 
 premises of the plaintiffs are and were so situated and located 
 by reason of the same abutting upon said street, and by 
 reason of the same being located so near to that portion of 
 
 Street occupied by defendant with its railroad tracks, 
 
 in pursuance of the contract with the city council, that, as a 
 direct and necessary result thereof, said premises were sub- 
 stantially injured and lessened in value, and which injury 
 and lessening in value can be fairly attributed to the acts of 
 the defendant in occupying and using said street under and 
 in pursuance of the contract, made and entered into by and 
 
 between it and the council of the city of , then your 
 
 verdict should be for the plaintiffs in such sum as will fully 
 compensate them for the damages they may have sustained 
 by reason thereof, as may be shown by the proof in this case. 
 
 (a) In determining this question of injury and damage, 
 and before you can return a verdict for the plaintiffs, you 
 must find, not only that the injury to the plaintiffs was a. 
 substantial one, caused in the manner and by the means just 
 mentioned, but it must also be of a character different from 
 what the public at large would and did suffer, by reason of 
 the travel upon the street being obstructed or interfered with 
 by the acts of the defendant. Mere inconvenience in the in- 
 gress to and egress from the property of plaintiffs is not suffi- 
 cient to entitle them to a recovery, unless such inconvenience 
 extends so far as to deprive them of a substantial right, and 
 result in a substantial injury to their premises. Neither 
 would the mere fact, if you find it to be a fact, that the 
 property and premises of the plaintiffs were of less value after 
 than before the location of defendant's railroad upon the
 
 STREETS. 475 
 
 street, entitle the plaintiffs to recover, unless you find that 
 such diminution in value could only be fairly attributed to 
 the location aud construction of the railroad by the defendant 
 upon such street under and in pursuance of the contract with 
 the city council in the manner and upon the terms and con- 
 ditions therein set forth; and that such diminution in value 
 was the direct and necessary result thereof. 
 
 Upon all these matters the burden of proof is upon the 
 plaintiffs, and they must satisfy you by a preponderance of 
 the testimony of the truth of the several matters here stated 
 as being necessary to be established in order to entitle them 
 to recover. 
 
 (b) In determining whether or not the plaintiffs' 1 ingress to 
 and egress from their pro/uses have been impaired, you need 
 not and should not consider any obstruction not necessarily 
 placed in the street in the construction, location, and opera- 
 tion of the railroad by the defendant ; and if you find that the 
 
 embankment mentioned as existing at the intersection of 
 
 Street with Street was not placed there by the defend- 
 ant, or if so done, the same was not necessarily so placed there 
 by the defendant in the construction, location, and operation 
 of its railroad under the contract with the city council, then 
 this need not and should not be considered by you, and in 
 determining this question as to whether the means of ingress 
 and egress have been destroyed or substantially impaired, 
 you should look at all the circumstances surrounding the 
 
 parties and premises at that time, the condition of Street 
 
 at that time, what other railroad tracks, if any, were located 
 
 thereon or across the same, the condition of Street and 
 
 the streets connected therewith, furnishing plaintiffs access 
 to the business portion of the city, the extent to which the 
 means of access, as they then existed, have been impaired or 
 destroyed, if you find the same to have been impaired or de- 
 stroyed by the defendant in the manner and by the means 
 just mentioned; and from all these circumstances, as proven, 
 determine what injury, if any, lias resulted directly to plain- 
 tiffs' premises therefrom, which is fairly attributable to such 
 act or acts of defendant ; and you should be careful to exclude 
 from your consideration all matters affecting the property and 
 premises of the plaintiffs, which are not fairly attributable to 
 such act or acts of the defendant, directly resulting in injury 
 to the same in the particular mentioned and in the manner 
 mentioned. ' 
 
 ■J. R. Johnston, Judge, in P. C. & T. R. R. Co. v. Kearney, Supreme 
 Court. Judgments affirmed. 
 
 31
 
 476 STREETS. 
 
 (c) Measure of damages. 
 If you find in favor of the defendant, your verdict should 
 be "for the defendant" in general terms. If you find in favor 
 of plaintiffs, then your verdict should be for the plaintiffs 
 in such sum as will fully compensate them for injury their 
 premises have actually sustained under the directions here 
 given you in the charge, and this would be the actual damages 
 resulting to the premises of the plaintiffs directly from the 
 act or acts of the defendant as herein limited, arising at the 
 time of the location of said defendant's railroad, and by reason 
 thereof, and whilst you should not compute interest on this 
 amount, you may take into consideration the length of time 
 that has elapsed, during which the compensation has been 
 withheld, not as interest, but as a part of the compensation 
 to which the plaintiffs would be entitled to make them whole. 
 In determining this amount, you should consider all the testi- 
 mony bearing upon this subject, and should not by agreement 
 add together the amounts testified to by each witness and 
 divide the sum thus produced by number of witnesses tes- 
 tifying, taking the quotient thus obtained as your verdict 
 arbitrarily ; but you should consider the testimony of each 
 witness upon this subject and give to the testimony of each 
 the weight that in your judgment it may be entitled to, and 
 from it all arrive at your verdict. 2 
 2 Id. 
 
 SURETIES. 
 
 No. 639. Liability of sureties on bond of agent, where 
 agent had previously been a defaulter — Duty of company to 
 sureties. — "If A. B., at and before the time the bond was 
 required of him, was intentionally and dishonestly a defaulter 
 to the company, as to moneys intrusted to it, which he had 
 received as its agent, and that the witness acted for said com- 
 pany in demanding and receiving the bond, and, before re- 
 ceiving the same, either knew of such default, or if he did 
 not know it, believed upon reasonable and reliable ground of 
 information or belief, that such default existed, then, if suit- 
 able and reasonable opportunity existed, it was the duty of 
 the witness, as the agent of the company, to make known to 
 the sureties upon the bond such fact of A. B. 's delinquency, 
 or witness' belief of such delinquency, before accepting the 
 bond, although witness did not know before the bond was 
 signed by the sureties who they were to be, and, as witness 
 did not give such information, if the sureties, in signing the 
 bond, acted under a belief from its recitals that the company 
 considered A. B. a trustworthy person, and would not have 
 signed the bond but for such belief, then the plaintiff can not 
 recover against the sureties, or either of them.
 
 TENDER. 477 
 
 "But if A. B. had not been a defaulter at the time of the 
 acceptance of the bond by witness, or if he was so by mere 
 mistake, or other cause not involving intentional wrong, and 
 the witness, at the time aforesaid, knew or believed such 
 delinquency existed, it was not the duty of witness to make 
 this knowledge or belief known to said sureties, or either of 
 them, and his failure to do so would not vitiate the bond. 
 
 "Or if witness was, at the time of accepting the bond, at 
 such a distance from the said sureties that, under the cricum- 
 stances shown by the testimony, he could not reasonably in- 
 form them of such delinquency, he was not bound to give 
 them this information, although the agent had been dis- 
 honestly a defaulter, and the witness knew or believed that 
 fact, and his failure to do so would not vitiate the bond or 
 prevent plaintiff from recovering upon it against the defend- 
 ants." 
 
 From Dinsinore v. Tidball, 34 O. S. 411. 
 
 TENDER. 
 
 No. 640. Definition and object of tender.— The jury are 
 instructed that when a party lias entered into an obligation 
 (either) to pay money, (or) to deliver goods, (or) to perform 
 services, and, by some outward expression or act, in effect 
 tenders or offers to perform the- obligation in the manner 
 agreed upon, the law considers that he has, in fact, substan- 
 tially performed it. A under is an offer (either to pay a debt 
 on to perform an obligation. To be effectual, the party 
 making it must continue ready and willing t<> pay or perform 
 the obligation, and must have the ability to perform. The 
 lid and legal tender is, that the party acknowl- 
 edging an indebtedness of the amount tendered (or of an 
 obligation to perform an act) is to stop the mining of interest, 
 and to protect him from the payment of costs. 1 
 
 To be effective as a tender it must be kept good by the 
 
 ment of the money into courl lor the plaintiff; 2 and it 
 
 must be actually offered to the person to whom it is made, 
 
 so that he 'iu ■ ad it must be the amount actually 
 
 due. ' 
 
 ■ Halpin v tns. Co. 1 r8 ' Tii deman on S.il.-s, S<-<\ 139. 
 
 " Armstrong •■ Spi 18 
 
 % ]■ ien, 27 .Mum. 26 , II. .iini. in v. Van Dieman, 62 u is. 362. 
 
 « 5 M
 
 478 WILLS. 
 
 If you find from a preponderance of the evidence that the 
 defendant has complied with all these requirements, then you 
 may be justified in finding that a tender has been made. But 
 if you find that the defendant merely expressed a willingness 
 or readiness to pay without offering a definite sum or the 
 amount actually due, and that he did not actually produce 
 and offer to pay, and that he did not keep such offer good 
 by tendering or depositing it in court, then you can not find 
 that a tender was made. 5 
 
 The defendant need not, however, actually produce the 
 money where the plaintiff has done something which would 
 make it unnecessary, as where the plaintiff says that the de- 
 fendant need not produce it, that it would not be accepted. 6 . 
 
 s Must actually produce the money. 41 Cal. 420 ; 8 Neb. 507 ; 46 
 Barb. 227. 
 
 b. 227. 
 6 8 0. 173; 8 Neb. 507 ; 10 Cusli. 267 
 
 WILLS. 
 
 No. 641. Contest of will — Who may make a will. — 
 
 Under the law of Ohio any person of full age and sound mind 
 and memory, and not under any restraint, having any prop- 
 erty, personal or real, or any interest therein, may give and 
 bequeath the same to any person by last will and testament, 
 lawfully executed. 1 
 
 The law further requires that the will in controversy being 
 a written one, shall be signed at the end thereof by the said 
 (testator), or by some other person in his presence by his 
 express direction, and shall be attested and subscribed in the 
 presence of said (testator), by two or more competent wit- 
 nesses, who saw the said (testator) subscribe or heard him 
 acknowledge the same. 2 
 
 1 R. S., Sec. 5914. 
 
 2 Cyrus Newby, Judge, in Graham v. Graham, Highland County Com- 
 mon Pleas. R. S., Sec. 5916; Whittaker's Probate Code, Sec. 5916, with 
 notes, p. 182-183. 
 
 No. 642. Same continued — Requirements of a valid 
 will. — In order that it may be his last will and testament, he 
 must have been of full age, that is, at least twenty-one years 
 of age, at the time of executing it, of sound mind and memory, 
 and not under any restraint, and have property, real or per- 
 sonal, or some interest therein. It is further necessary that 
 the paper produced as his will should have been signed at the
 
 wills. 479 
 
 end thereof by the said (testator), or by some other person in 
 his presence, and by his express direction, and attested and 
 subscribed in the presence of said (testator), by two or more 
 competent witnesses, who saw the said J. G. subscribe or 
 heard him acknowledge the same. If any one of these requi- 
 sites should be lacking in the execution or attestation of the 
 paper produced as the last will and testament of said (testa- 
 tor), it would not be a lawful will, and its probate should be 
 set aside. 
 
 Newby, Judge, in Graham v. Graham, Highland Count}' Common Pleas. 
 Whittaker's Probate Code, Sec. 5916, and notes on p. 1S2-3. 
 
 No. 643. Same continued — Weight given order of pro- 
 bate. — The law of this state provides that the order of probate 
 of a will is prima facie evidence of the due attestation, exe- 
 cution and validity of the will. That is, such will and order 
 of probate furnish such an amount of evidence that, were no 
 further evidence offered, the defendants would be entitled to 
 a verdict sustaining the will as probated by the probate court. 
 
 Newby, Judge, in Graham v. Graham, Highland County Common Pleas. 
 The probate makes a prima facii case, putting the burden on the contest- 
 ants. Haynes v. Haynes, 33 O. S. 598; 15 O. S. 1. 
 
 No. 644. Same continued — Burden of proof. — The order 
 of probate being prima facie evidence of the due execution 
 and validity of the will, it, therefore, devolves upon the plain- 
 tiff to prove by a preponderance. there that the will was not 
 signed, or acknowledged and attested, as required by law, or, 
 it so signed, or acknowledged and attested, that, at the time 
 said will was so signed, or acknowledged and attested, the 
 said i testator) was not of sound mind and memory, or that, 
 at that time, the said (testator) was under restraint or undue 
 influence. 
 
 If the plaintiffs have proved by a preponderance of the 
 evidence an; one of these things, as to which the burden of 
 proof was on them to prove, then you should return a verdict 
 finding the paper produced not to be the last will and testa- 
 ment of tli' ed, but if they have failed to prove any 
 one of them to youi tion by the preponderance of the 
 
 evidence, von should, in lli.M n turn a verdict sustaining 
 
 the will. 
 
 Newb in Graham v Graham, Highland County Common Pleas 
 
 II. r 11. Hi-' 1 I, ■ 1 On th( trial of 9uch issue, the order <>f 
 
 probate shall b< prima facii evidence of the due attestation, execution 
 and validity of the will or codicil. Whittaker's Probate Code, Sec. 5862. 
 The effect of this provision is, aftei th( ordi 1 oi probate is offered in evi 
 dence, to transfer the burden "I proof in respect to ea< b of these subjects 
 fi .mi the propound test ints, In the fui ther
 
 480 WILLS. 
 
 progress of the case there is no change of the burden of proof, in law, as to 
 require of the court, in the charge to the jury, an instruction that in re- 
 spect to any particular issue or items of evidence, the burden of proof is 
 thrown back from the contestants to the contestees. Mears v. Mears, 15 
 O. S. 90. 
 
 No. 645. Preponderance of evidence — Meaning of, in 
 contest of will. — By the preponderance of evidence is meant 
 the greater weight of the evidence. The evidence may be 
 said to operate in favor of one party whenever the greater 
 weight of the evidence, when freely and fully considered, is 
 in favor of the claims of such party. If the evidence in this 
 case shows to your minds that it is more probable either that 
 said (testator) did not make the will in the manner required 
 by law, or that, at the time of making the same, if you should 
 find that he did make it, he was under restraint and undue 
 influence, or was mentally incapable of making the same, 
 under the rules of law hereinafter to be given, then and in 
 that case, the plaintiffs will have made out their case by a 
 preponderance of the testimony. 
 
 On the other hand, if the evidence should not show it 
 more probable that some one of these facts exist (that is, the 
 facts necessary to the making of a correct will, see No. 642 
 ante), or if the evidence on these points be evenly balanced, 
 in either event there would be no preponderance in favor of 
 the plaintiffs, and you should, in such case, return a verdict 
 sustaining the will. The defendants are entitled to a verdict 
 sustaining the will as probated, unless the preponderance of 
 the evidence is in favor of the plaintiffs on at least one of the 
 grounds they are required to establish as above stated. 
 
 Newby Judge, in Graham v. Graham, Highland County Common Pleas. 
 
 No. 646. Witnesses need not see testator sign if ac- 
 knowledged before them. — It is not required that the sub- 
 scribing witnesses to the will should have signed the same 
 in the presence of each other, 1 but they must have subscribed 
 the same in the presence of the testator. Nor is it required 
 that both subscribing witnesses should have been present at 
 the signing of the paper claimed to be the will of said (tes- 
 tator) or, in fact, that either should have seen the said tes- 
 tator subscribe the instrument, but in ease either should not 
 have seen the said testator subscribe said paper, then it be- 
 comes necessary that the testator should have acknowledged 
 to the witnesses that the paper which he had signed was his 
 last will and testament. 2 This acknowledgment by the tes- 
 
 1 Raudebaugh v. Shelley, 6 O. S. 306. 
 
 2 Reynolds v. Shirley, 7 O. (pt. 2) 39.
 
 WILLS. 
 
 481 
 
 tator is not required to be in any particular form of words, 
 or in any specified manner. But the testator must, by some 
 words, conduct, or the attending circumstances, give the wit- 
 nesses to understand that he acknowledges the signature to 
 the instrument as his, and the instrument itself as his will. 8 
 
 3Newby, Judge, in Graham v. Graham, Highland County Common 
 Pleas. See charge in Haynes v. Haynes, 33 O. S. 610. 
 
 THERE need be no precise form of acknowledgement. "It is not nec- 
 essary that any precise form of words should be used by the testator in ac- 
 knowledging either his signature or will. It will be sufficient if by signs, 
 motions,' conduct, or the attending circumstances, he gives the attesting 
 witnesses to understand that he acknowledged the will and the signature 
 to be his. If, therefore, you shall find from the evidence that Mr. H. au- 
 thorized Mr. A. to sign his H.'s) name to the will when no other witness 
 was present, and A. did so sign the will in the presence of H., and after- 
 ward, on the same day, Mr. II., either by words or signs, motions, conduct 
 or the attending circumstances, give the attesting witnesses to understand 
 that he acknowledged the signatures, and requested them to attest the 
 will, and that the}' did so attest the will in his presence, this will be a 
 sufficient acknowledgment and attestation of the signature, and your 
 verdict should be for the defendants ami the will." Id. 
 
 No. 647. Rules governing determination of mental ca- 
 pacity. — In order to be able to make a valid will it is neces- 
 sary that a man shall have mental capacity sufficient for the 
 transaction of the ordinary affairs of life, and if he possess this, 
 though he may be feeble in mind and body from sickness, 
 old age or other cause, he has a legal right to dispose of his 
 property as he sees tit, without regard to the wishes of others. 1 
 
 The law does not undertake to test a man's intelligence, 
 or to define the exact quality of mind and memory which a 
 testator must possess, but it does require him to be capable of 
 knowing the extent and value of his property, the names or 
 relationship of those persons who are the natural objects of 
 his bounty, 2 their deserts in reference to their conduct 
 toward and treatment of him, their condition and necessities, 
 and be capable of retaining all these facts in his memory 
 long enough to have the will prepared and executed. 3 
 
 He may not have sufficient capacity to make a contract, 
 but he must understand substantially what he is doing, the 
 
 nature of the ad in which he is engaged, the extent of his 
 
 property, the relations of others, who may, or ought to be, 
 
 I >ld age alone does not disqualify one from making a will Si houler 
 
 on Wills, : Mo. 175. Wills of aged persons should 
 
 crutinized t»\ tin- court. Beacb on Wills, Sec. 99 The testamentary 
 
 ity of agi rallj a question ol fact. Id. ami note; 
 
 9 S, W, 1072 M< ir eighty years "1,1. 
 
 Townsend v. Bogart, s Redf. 93, 104; Beach on Wills, See. 97. 
 
 Id.; Bund} v. McKnight, 48 Ind. 502, 511. old age does not disqual 
 ify if testator is rational, and lias 1 apacitj to know condition of his prop- 
 erty, his relations to the objects ol bis bounty, and th< Bcopi and bearing 
 of his will. In re Pik< 1 689.
 
 482 WILLS 
 
 the objects of his bounty, and the scope, bearing and effect 
 of his will, and must have sufficiently active memory to col- 
 lect in his mind, without prompting, the elements of the 
 business to be transacted, and to hold them in his mind a 
 sufficient length of time to perceive and consider their obvi- 
 ous relations to each other, and be able to form some rational 
 judgment in reference to them, though he may not be able 
 to understand and appreciate these matters in all their bear- 
 ings, as a person in sound and vigorous health of mind and 
 body would be. 
 
 In determining the question of mental capacity, it is your 
 duty to take into consideration the provisions of the will 
 itself in connection with all the other testimony, and also the 
 surrounding circumstances, not only as bearing on the ques- 
 tion of mental capacity, but that of undue influence as well. 
 
 It is not necessary that the testator be shown to be tech- 
 nically insane; weakness of intellect or loss of memory, 
 whether occasioned by disease or great bodily suffering or in- 
 firmity, or from all these combined, may render the testator 
 incapable of making a valid will, provided such weakness of 
 intellect or loss of memory, really and in fact, disqualified 
 him from knowing or appreciating the consequences and 
 effect of his act, and of fairly considering and weighing the 
 just deserts of all the natural objects of his bounty. But 
 weakness of mind and memory arising from any cause will 
 not disqualify the testator from disposing of his property by 
 will, unless such weakness goes to the extent of rendering 
 him incapable of appreciating the nature and extent of his 
 property, the rights and claims of those who are the natural 
 objects of his bounty, and the nature and consequences of 
 the will he is about to make. 4 
 
 4 Newby, Judge, in Graham v. Graham, Highland County Common 
 Pleas. See, as to testamentary capacity, definitions and general rules in 
 harmony with charge. Beach on Wills, Sec. 97. 
 
 No. 648. Undue influence — What constitutes. — The 
 proof of undue influence can very seldom be made by direct 
 evidence, and the law does not require it; but the circum- 
 stances must be such as to lead justly to the inference that 
 undue influence was employed, and that the will did not ex- 
 press the real wishes of the testator. You should look into 
 the character of mind of the testator, his manner of living, 
 the relations which he sustained to all the members of his 
 family, and the provisions of the will itself. While the ap- 
 parent inequality, or injustice, even in the provisions of a 
 will are not of themselves a sufficient reason for annulling
 
 WILLS. 483 
 
 the will, if otherwise valid, yet those provisions may present 
 potent circumstances reflecting upon both the testator's ca- 
 pacity as well as the operation of influences upon his mind, 
 though a mind perfectly rational and sound may be subject 
 to control by influence from others. Therefore it is not neces- 
 sary in proving undue influence or restraint. There should 
 also be proof of incapacity, though the proof of one may tend 
 to prove the other. While you may consider the provisions 
 of the will, yet you must remember that it is not your prov- 
 ince to pass upon the justice or the fairness thereof, but its 
 provisions may be considered in connection with all the tes- 
 timony and the circumstances surrounding the testator for the 
 purpose of determining whether it has such existence. You 
 are not at liberty to make a will for the testator, but simply 
 to decide whether the one he has attempted to make is sanc- 
 tioned by and fulfills all the requirements of the law. 1 To 
 constitute undue influence and restraint it must appear that 
 there was such influence and restraint as caused the execu- 
 tion of the will by the testator against his own desire in the 
 matter. It must appear by a preponderance of the evidence 
 that such undue influence and restraint was practiced with 
 reference to the will, and must have affected or brought 
 about the provisions of the will, or some of them. Unless it 
 has in some manner affected the making of the will, or some 
 of its provisions, it can not invalidate it. It must destroy 
 the free agency of the testator. It is not required that any 
 physical force should Ik- used, but any restraint, or threats, 
 or influence brought to bear upon the testator, or persistent 
 importunities which he has not the strength to resist, if ex- 
 erted so as to coerce him against his desire and purpose into 
 making his will, or any of its provisions, is undue influence 
 within the meaning of the law. It matters not how slight or 
 how great the influence may be, so long as it destroys the 
 free agency of the testator. It is immaterial what arguments, 
 influence, or persuasion were brought to bear upon the tes- 
 tator, provided thai in making his will he carried into effect 
 liis own will and intentions, and not those of another. 
 Any degree of influence over another acquired bv kind- 
 and friendly attention can never constitute undue influ- 
 ence withm the meaning of the law.* 
 
 1 A-, to unnatural disposition B b on Wills, Sec 1 1 j, 
 
 fudge, in Graham -. Graham, Highland County Common 
 
 Pleas. As to undue influence, ie< Bi icn on Wills. Sec 107 et seq.\ Whit- 
 Probato 1 1 ide, 1 79. 
 
 No. 649. Same continued— What does not constitute 
 undue influence. — It is not unlawful for a person by honest
 
 484 WILLS. 
 
 intercession and persuasion to induce a will in his favor- 
 neither is it unlawful to induce a testator to make a will in 
 one's favor by fair speeches and kind conduct, for this does 
 not amount to that kind of compulsion, improper conduct, or 
 undue influence which, in a legal sense, would render the 
 will invalid. To have such an effect it must amount to a 
 moral force and coercion, destroying free agency. That 
 which is obtained by argument, flattery, persuasion, and ap- 
 peals to the affections, although influencing the testator's 
 better judgment, does not necessarily vitiate the testator's 
 will, unless his free agency be thereby destroyed, notwith- 
 standing that but for such influence the will might not have 
 been made. The test of the unlawfulness of the influence is 
 its effect upon the testator's free agency. It must not be the 
 influence of affection and attachment, nor the mere desire to 
 gratify the wishes of another, but the undue influence and 
 restraint required in order to render the will invalid must be 
 of such a character and degree as to prevent the exercise of 
 that discretion and judgment which are essential to a sound 
 and disposing mind. 
 
 Undue influence, like incapacity, must be shown to exist 
 at the time of making the will. To determine this you must 
 consider all testimony, and look to the facts and circum- 
 stances occurring both before and after the execution of the 
 will as reflecting, one way or the other, upon the question 
 whether undue influence may or may not have existed, or 
 operated upon the testator, at the time he made his will. 
 
 Newby, Judge, in Graham v. Graham, Highland County Common Pleas. 
 Undue influence. Beach on Wills, Sec. 197 et seq.\ Whittaker's Probate 
 Code, 179, note. 
 
 No. 650. Declarations of testator admissible to show 
 condition of mind. — The declarations of a testator made after 
 the execution of his will are admissible only for the purpose 
 of showing his condition of mind, and must not be used to 
 prove the fact that undue influence or fraud were used to 
 induce him to make the will in question, except in so far as 
 they may evidence a condition of mind easily subjected to 
 such influence at the date of his will. You must bear in 
 mind, however, that the verbal statements, admissions or 
 declarations should be received with great caution. The 
 evidence, consisting as it does in mere repetitions of oral 
 statements, is subject to much imperfection and mistake; the 
 party testifying to them may be misinformed or may have 
 misunderstood the testator. It frequently happens, also, that 
 the witness by altering a few of the expressions really used,
 
 WILLS. 485 
 
 gives an effect to the statement completely at variance with 
 what the party actually did say. 
 
 Newby, Judge, in Graham v. Graham, Highland County Common Pleas. 
 The declarations of the testator, made at about the time of executing his 
 will, are admissible to show his capacity and the state of his affections. 
 Rule v. Maupin, 84 Mo. 587. 
 
 No. 650^7. Requisites of capacity to make will — Capac- 
 ity to make will as affected by moral depravity — Influence 
 over testator by others — Charge by Judge Longworth. — To 
 make a valid will it is not enough that the testator shall sub- 
 scribe his name to it in the presence of witnesses. He must 
 do it intelligently and voluntarily. It is a matter of experi- 
 ence that juries sometimes set aside a will because they do 
 not approve of its provisions. It is the right of every man, 
 which right can not be taken from him, to do what he wills 
 with his own, unless the disposition he makes violates some 
 law ; and after his death neither court nor jury have the power 
 to make for him a disposition of his property different from 
 the disposition which he intended to make, upon any theory 
 that such intended disposition was unjust and wrong. 
 
 If, therefore, a man of sound and disposing mind chooses 
 of his own accord to make a capricious, a foolish, or an unjust 
 will, such will must stand, the simple question in such case 
 being whether he was of sound and disposing mind at the 
 time when he made it. If his mind at that time was feeble, 
 perverted, or inert, whether weakened by age, excesses, dis- 
 ease, or other causes, that its action was not such as it would 
 have been had the mind been in a natural condition and 
 sound, so that the jury is satisfied that such action does not 
 express the real intent of a sou ml mitt disposing mind, then 
 the will, which is the result and product of such action, is 
 not the last will and testament of the testator. 
 
 Everyone lias observed that men in morbid conditions, 
 where the brain is affected by disease, crazed by stimulants, 
 or other causes, do tilings which at other times they would 
 never have thought of doing, and for which they can hardly 
 be held accountable, either in law or morally. In the eye of 
 the law, a man's feelings, desires, and acts at sueh times are 
 
 not considered to be the feelings, desires, and acts of the man. 
 Again, a man sometimes perform? an act intelligently, but 
 through feebleness of memory, is ignorai t oi ome fact which 
 if he had known would have caused him to act very differ- 
 ently. For example, suppose that one desires to divide his 
 property equally among his children, and having three chil- 
 dren, if so imbecile in memory as to suppose he has only two.
 
 486 WILLS. 
 
 and divides the property between these two, such disposition 
 should not be considered the will of the testator, because it 
 clearly does not express his intentions. 
 
 To make a will a man must have capacity to know and 
 understand what property he has, who would naturally receive 
 it, and whom he selects to receive it ; he must be able to hold 
 in his mind his property, the persons to whom he gives, and 
 those, if any, from whom he withholds ; he must be able to 
 understand his true relations to his property, and to the 
 natural objects of his bounty. 
 
 If he is not able to understand and comprehend these 
 things, then he is incapable in law of making a will. 
 
 It is a very difficult thing to enter into the mind of a man 
 and see what is there. It is a difficult thing to determine 
 definitely, from the testimony of others, the true character, 
 thoughts, and feelings which have in times past been the 
 moving-spring of action in one whose body is now turned to 
 dust. Nevertheless, by the light which human testimony 
 gives, the endeavor must be made. 
 
 In all cases like the one at bar, the first and not the least 
 important item of evidence bearing upon the condition of the 
 mind of the testator is the will itself, and although, as I have 
 said, the fact that a will is unjust, or wrong, or absurd does 
 not of itself prove the incapacity of the testator to make a 
 will, yet it is an item of evidence for the jury to consider as 
 bearing upon the question, and it is for the jury to determine 
 what weight shall be given it. 
 
 Again, although mere moral depravity does not of itself 
 unfit a man to make a will, yet a jury has a right to consider 
 the fact of depravity in the testator, if satisfactorily shown, 
 as a circumstance casting suspicion upon his soundness of 
 mind. 
 
 The law does not declare that because a man is dissolute, 
 passionate, unjust, and wanting the natural affection and 
 parental instincts, and that he makes such a disposition of 
 his property as he ought not to have made, these facts being 
 found shall invalidate such disposition by will. I say the 
 law does not declare that these things shall make his testa- 
 ment invalid, but it leaves to the jury, and to the jury alone, 
 the right to say how much weight ought to be given to such 
 facts, if they are found to be facts, in determining the con- 
 dition of the testator's mind. The law very wisely provides 
 that of these matters the jury shall be the sole judge. For 
 whether strong or whether weak, no two human minds are 
 exactly alike. The law does not pretend to furnish a foot- 
 rule by which they shall be measured, but declares the few
 
 WILLS. 487 
 
 simple rules which I have given to you, and beyond these 
 leaves the determination of the facts to be governed by those 
 principles of reason and common sense which direct the minds 
 of all just and honest men. 
 
 We all know that there are degrees of moral depravity as 
 various as the degrees of moral excellence and virtue, and it 
 may be that moral depravity may result in a perversion of the 
 feelings, affections, inclinations, temper, habits, and moral 
 disposition, without any lesion of the intellect or reasoning 
 faculties ; and it may be true that some human beings exist 
 who, in consequence of a deficiency of the moral organs, are 
 as blind to the dictates of justice as others are deaf to melody; 
 but whether such or a like condition of mind would amount 
 to unsoundness, is a question of fact rather than law. 
 
 Mere depravity or wickedness, not amounting to mental 
 unsoundness would not of itself, standing alone, affect the 
 will of the testator. 
 
 It is claimed in this case that H. S. was a man morally 
 depraved. I charge you that if you find that H. S. did not 
 believe that any woman was virtuous; that all women were 
 prostitutes ; that they were created simply for the purpose of 
 gratifying the lusts of man ; that they were therefore able to 
 support and maintain themselves out of the wages of sin ; and 
 that therefore no provision ought, in any case, to be made for 
 them, and that, acting on this belief, he gave the bulk of his 
 property to his son and not to his daughters, and that he made 
 this disposition of his property by reason of this belief, then 
 you would be justified in finding that his will is void. 
 
 However sound or strong the mind of a man might be in 
 other directions, you would be justified in finding that the 
 existence of such belief amounts to insanity or monomania. 
 
 I wish to impress upon you, however, what I have stated 
 before, that to justify your setting this will aside upon such 
 a state of facts as this you must he satisfied that such facts do 
 exist, and of this you should be convinced clearly and satis- 
 factorily. A k e of moral depravity, although im- 
 portant a- an item of evidence touching the question of sound- 
 ness or unsoundness of the mind of the testator, would not of 
 itself, standing alone, render him incapable of making a will; 
 neither would this state of facts justify you in setting aside 
 the will, unless you should find that they amounted to un- 
 soundness of mind. 
 
 It is claimed that II. S. had, during his lifetime, suffered 
 from severe attacks of disease; that he had been an intemper 
 ate drinker, and a man immoral and careless in all his habits 
 of life; that he was peculiar and eccentric in his dress, his
 
 488 WILLS. 
 
 speech, and his manner. All these facts, if you find them to 
 be facts, you have the right to consider as circumstances 
 bearing upon the question before you. His feelings, his say- 
 ings, his doings, the whole history of his life and death, as 
 disclosed by the evidence, are proper testimony for your con- 
 sideration, and you are the sole judges as to what and how 
 much effect shall be given to any and all of them, keeping 
 in view, however, that the question to be decided by you is 
 narrowed down to this : do the papers purporting to be the 
 will and codicil express the true desire and intent of the 
 deceased, or, in other words, are they the act and product 
 of a sound mind. 
 
 The next question for your consideration arises upon the ' 
 claim of the plaintiff that at the time of executing these 
 papers the testator was acting under undue influence exercised 
 over him by C. S. and others. 
 
 A will must be the expression of the wishes and purposes 
 of the party who undertakes to make it; his friends and 
 family may talk with him, advise him, entreat him, and 
 importune him. This they may do, but if, when this is done, 
 he intelligently weighs what they say, and having capacity, 
 intelligently makes up his mind, determines his own purposes 
 and declares his own intentions, it is no matter whether his 
 own mind, when made, agrees with their advice or not. 
 
 If it is his own choice or preference, it is no matter 
 whether it originated with himself or was suggested by others. 
 If deceived by fraud, coerced by threats, or worried with 
 importunity, or influenced by the constant pressure of a 
 dominant mind, which constrains him into the execution of 
 such a will as he would not, of his own inclination, have 
 made, then the jury may find that undue influence has been 
 exercised over the mind of the testator. 
 
 But in such cases the test is always this : Is the will the 
 expression of the intent of the testator, or of some other per- 
 son? Is it his will, or the will which some other man has 
 made for him? 
 
 These, gentlemen of the jury, are the two questions which 
 you are called upon to decide, and the responsibility of decid- 
 ing them truly and justly rests entirely upon you. There is 
 a general conflict of testimony, and a great mass of evidence 
 has been submitted to you. The witnesses seem to have 
 described two different persons, the one corrupt, degraded, 
 and depraved, possessing attributes of the brute rather than 
 the man, and in w T hom all manhood, if it ever had existed, has 
 ceased to exist ; the other a man who, although perhaps not 
 affectionate, desired to be just, and, though perhaps not spot-
 
 WILLS. 489 
 
 less in life, had no other or greater failings than such as are 
 incident to ordinary humanity, and possessed some virtues not 
 common among men. 
 
 It is for you to determine all questions concerning the 
 weight of the evidence and the credibility of the witnesses, 
 using the rules of law, as I have given them to you, as a 
 lamp to guide you in disentangling the complicated obstruc- 
 tions which you may find in your way. 
 
 Look first at the will. From the face of a coin you may 
 infer the form of a die; when you read an anonymous manu- 
 script, you may guess the author ; when you see a footmark 
 on the sand, you may conceive the animal that made it. So, 
 from this will you may be able to infer something of the 
 mind whose desires and interests it is said to have expressed ; 
 or you may find in it the expressions and desires of some other 
 man than H. S. It is not the number of witnesses, but the 
 weight of their testimony that should prevail with you, and 
 of how much weight should be given to any testimony offered 
 you are the sole judges. 
 
 If you find from all the evidence that the paper writings 
 purporting to be the will and codicil of H. S. are the pro- 
 duct of the action of a sound and disposing mind, as I have 
 described it to you ; that at the time they were executed by 
 him he understood and knew of what property he was pos- 
 sessed, and the persons who would naturally receive it; that 
 he comprehended and understood his true relations to his 
 children, grandchildren, or other natural objects of his bounty, 
 and that at the time of such execution he was not under any 
 undue restraint or coercion, such as I have described to you, 
 then von will find that these papers do constitute the last will 
 and testament of H. S., deceased. If, on the other hand, you 
 find he was unable to understand or comprehend those things 
 at the time he executed these papers, or that he was unduly 
 influenced or coerced to make the disposition of his property 
 which he did make, then it is your duty to find these paper 
 writings do not constitute the last will and testament of the 
 said II. S. 
 
 Longworth, fudge, in Amanda Joslyn v. Charles T, Sedam, et al., 2 W. 
 I.. B. 147. 
 
 No. 651. Nuncupative will. — Words written down not 
 those spoken. — In a suit to test the validity of a nuncupative 
 will, it is competenl to prove that the testamentary words re- 
 duced to writing and probated are not the words spoken by 
 the testa! or. and the following charge is, therefore, correct: 
 If the evidence shows that the words actually spoken were
 
 490 WORK, LABOR AND SERVICES. 
 
 substantially the same as the words written down by the wit- 
 nesses, that would be sufficient ; but on the other hand, if the 
 evidence should show that the words written down by the 
 witnesses, as proved and probated, were not substantially the 
 same as the words actually spoken, then the will could not 
 stand, and their verdict should be for the plaintiff. 
 
 Bolles v. Harris, 34 O. S. 38. 
 
 The jurisdiction exercised by court and jury in trying contest of a 
 'will is virtually that of a court of probate, charged with the duty of 
 finally establishing or rejecting the will. It is a proceeding inter partes. 
 Hears v. Hears, 15 O. S. 96; Converse v. Starr, 23 O. S. 498; Bolles v. 
 Harris, supra. 
 
 WORK, LABOR AND SERVICES. 
 
 No. 652. Services of child for parent — Question as to 
 capacity of parent to make contract. — The case from which 
 the extract from the charge is taken, was one where the son 
 had been away from home for many years, but who was sent 
 for when his father was taken ill. He came home, took care 
 of his father for seven hundred and ninety-six days, and 
 claimed recovery by reason of a contract which he made with 
 his father. It was claimed by the personal representative of 
 the father that the latter was an "imbecile and incapable of 
 making a contract. ' ' Verdict was rendered against the plain- 
 tiff, which was affirmed by the Circuit and Supreme Courts. 
 The court in its charge said : 
 
 It is claimed by plaintiff that he had been away from his 
 father's home, doing for himself and family for about twenty- 
 two years, for twelve years of which time, prior to the attack 
 of paralysis, by which his father was afflicted, residing in the 
 State of Michigan, and that upon the occurrence of the at- 
 tack he was telegraphed to, and at the instance and request of 
 his father that he immediately came to his father's house, 
 and at the instance and request of his father, he being then 
 helpless and wholly unable to get up or walk, or to help 
 ' himself, or to attend to the wants of nature, and that during 
 the space of seven hundred and ninety-six days, between the 
 8th day of June, 1886, and the 23d day of August, 1888, 
 that he nursed and cared for his said father by handling, 
 lifting and nursing and caring for him day and night during 
 all that time, for which services he claims judgment. 
 
 To the claim of plaintiff thus set forth the defendant says 
 that whatever services the plaintiff rendered in taking care of
 
 WORK, LABOR AND SERVICES. 49 1 
 
 and nursing his father, were done and performed by him as 
 a son and member of his family, and without any promise of 
 payment by his father, and without any expectations of pay- 
 ment for said services. (On the issue thus presented the rule 
 is that where a son, during his minority, or even after his 
 arrival of age, remains in his father's house, as' a member of 
 his father's family, and performs labor for his father without 
 a promise of payment for the same by his father, that there 
 can be no recovery. In other words, that unless there is a 
 promise of payment by the father, and an expectation of pay- 
 ment by the son, there can be no recovery for services ren- 
 dered by a son for his father, even after he becomes of age, 
 while living with his father as a member of the family. )* 
 
 In this case it is claimed by plaintiff that the above rule 
 does not apply, for the reason that the plaintiff was away 
 from his father's home twenty-two years, taking care of him- 
 self, and further that by reason of the imbecility of mind of 
 his father, and his helpless physical condition, that he was 
 compelled, of necessity, to perform for his father the services 
 that he rendered, and that in such case the law implies a 
 contract that he should be paid for his services. 
 
 You will look at all the testimony offered before you on 
 this question for the purpose of determining in what manner 
 the plaintiff lived there during his father's illness. Did 
 plaintiff, at the time he rendered these services, render them 
 as a gratuity and- a member of his father's family? If he did, 
 then there can be no recovery. 
 
 (a) Capacity to make contract. 
 
 On the other hand, I will say to you that if you find that 
 J. X. was mentally incapable of making a contract for serv- 
 ices for his care and nursing, and that such services were 
 rendered by plaintiff, and that the same were necessary, and 
 that, while so rendering them, plaintiff expected payment for 
 the same, he would be entitled to receive payment unless you 
 are satisfied from the testimony that plaintiff was, during the 
 time said services were being rendered, a member of his 
 father's family, treated in every respect by the family by 
 being furnished with clothing, spending-money, and every- 
 thing as a member of his father's family the same as was 
 furnished to the other members of the family, and that he 
 
 1 " It is well settled in Ohio that a child residing with his father as a 
 member of tin- family is not entitled to lor work ami labor per- 
 
 formed, or Bervicea rendered, in the absence of an express agreement to 
 
 therefor, or its equivalent." Wright, 89 and [34; Pollock v. Pollock, 2 
 
 0. C. C. i)^,; Hawthorne v. Mc( lure, 1 I 1. C. C. i> In lliich v. I'lrich, 
 [36 N. Y. 120, it was held thai as matter of law no presumption that the 
 services were gratuitous arises. 
 
 32
 
 492 WORK, LABOR AND SERVICES. 
 
 was so regarded and treated by the family, and that he so 
 acted and demeaned himself and acted as a member of said 
 family. ■ But in such case, the plaintiff having been absent 
 for a great many years, doing for himself, the burden is on 
 the defendant to satisfy you that he became, while there 
 waiting on his father, a member of his father's family. For 
 this purpose you may look to the manner in which he, plain- 
 tiff, and the other members of the family all lived together 
 and acted towards each other. 2 
 
 2 Nesbitt v. Knoop, error to C. C. of Miami County, No. 2942. In 
 Reando v. Mosplay, 59 Am. Rep. 15 (Mo.), services were rendered for an 
 insane parent. The court said that an implied contract might arise be- 
 tween an insane person and one furnishing necessaries, and further 
 charged that: " If you believe and find from the evidence in this case 
 that plaintiff rendered the services sued for as acts of gratuitous kindness 
 to her mother, and as a member of the family, with no intention of charg- 
 ing her for the same, then you must find the issues for the defendant, and 
 in such case it makes no difference how meritorious and how valuable her 
 service to her mother may have been." There is no controversy over the 
 doctrine that where a child, though over age, continues to reside with his 
 parent after becoming of age, and is treated as a member of the family, so 
 long as that relation exists the law implies no promise to pay. Miller v. 
 Miller, 16 111. 296; Hart v. Hess, 41 Mo. 441 ; Wells v. Perkins, 43 Wis. 160; 
 Adams v. Adams, 23 Ind. 50; Smith v. Smith, 30 N.J. Eq. 564; Wright's 
 Rep. 89, 133, 547, 751. Under such circumstances to entitle the child to 
 recover, he must prove, by preponderance of evidence, an express hiring, 
 or promise to pay, or circumstances from which a hiring or promise may 
 be reasonably inferred. Steel v. Steel, 12 Pa. St. 64; Hiblish v. Hiblish, 71 
 Ind. 27. Again the doctrine that a lunatic (or imbecile) or his estate is 
 liable for necessaries supplied to them can not be denied. 5 Lawson's R. 
 & R., Sec. 2390, and numerous cases cited. See, also, Sawyer v. Leufllin, 
 56 Me. 308; Reano v. Mosplay, 90 Me. 251 ; Blarsdale v. Holmes, 48 Vt. 492; 
 Richardson v. Strong, 55 Am. St. 430; Jackson v. King, 15 Am. Dec. and 
 notes on p. 368 ; Ex parte Northington, 79 Am. Dec. p. 67, and notes on p. 
 68 ; Young v. Stephens, 97 Am. Dec. 592. An express promise to pay must, 
 however, be shown where the parties live together as members of the same 
 family, or facts from which the same may be inferred. In re Perry's 
 Estate, 25 N. Y. S. 716. Circumstances may be so varied that in some cases 
 the implied promise may arise, while in others not. 
 
 No. 653. Contract of service made by correspondence. — 
 
 If you find from the evidence that previous to that plain- 
 tiff and defendant had correspondence by mail, and that de- 
 fendant, in a letter to and received by plaintiff, proposed to 
 hire plaintiff to labor for him for a year at a stated price, and 
 that plaintiff, in a letter written to and received by defendant, 
 accepted said proposal without condition or reserve, then I 
 say to you that such a letter would constitute in law a written 
 contract between plaintiff and defendant to labor for one year. 
 In construing the letters, the whole correspondence, 
 promises and inducements held out should be considered the 
 subject-matter and the parties, and from the whole a reason- 
 able conclusion be derived; and where one party is old, able,
 
 WORK, LABOR AND SERVICES. 493 
 
 adroit in the use of language and promises, and the other 
 voung and inexperienced in the use of language, and a minor, 
 a court will not strain the rules of construction against such 
 minor, and in favor of the older, experienced one, especially 
 where such construction would result in gross injustice to the 
 minor. 
 
 From Easthope v. Fordyce, Supreme Court, unreported, No. 2910. 
 Affirmed. 
 
 No. 654. Contracts, express or implied — Proof of. — 
 
 Contracts are either express or implied. In general, the only 
 difference between an express and an implied contract is 
 the mode of proof. An express contract is proved by evi- 
 dence of the express words used by the parties. An implied 
 contract is established by proof of circumstances showing 
 either that in justice and honesty a contract ought to be im- 
 plied, or that the parties intended a contract. Whether the 
 contract be established by evidence, direct or circumstantial, 
 the legal consequences must be the same. 
 
 Voris, Judge, in Fairbanks v. Otis, Summit County Common Pleas. 
 
 No. 655. Same continued — Contract for services when 
 implied. — The law usually implies that, where services are 
 accepted or other valuable thing is received, the party accept- 
 ing has agreed to pay for them. This, however, is a mere 
 presumption that varies with the circumstances, and when 
 services are rendered by one member of the family to another, 
 this presumption does not hold, in which case the parties 
 must resort to evidence to establish the presumption of an 
 obligation to pay therefor; but this presumption is one that 
 varies with the circumstances and is to be determined by the 
 understanding either express or implied between the parties 
 as developed by the evidence submitted to you. But the mere 
 fact that plaintiff rendered such services to a sister in and of 
 itself does not raise- the presumption of an implied contract 
 to pay. If you arc satisfied by a preponderance of the evi- 
 dence that no contract, cither express or implied, was entered 
 into between the decedent ami plaintiff, this would end the 
 case, and your verdict should be- for the defendant. 
 
 Voris, fudge, in Fairbanks v. Otis, Summit County Common Pleas. 
 
 No. 656. Contract for services — Continued — Relation 
 brother and sister — Parent and child — Rule. — The rule is 
 well settled that where tin relation of parent and child, or 
 brother and sister exists, the law will not presume any other, 
 that is, the law will not presume that of debtor and creditor.
 
 494 WORK, LABOR AND SERVICES. 
 
 In order to establish the inferior relation of debtor and cred- 
 itor between a parent and child, or brother and sister, there 
 must be proof more or less strong, but sufficient to carry con- 
 viction, that the parties understood the inferior relation, to 
 wit : that the parties contracting to subsist between them at 
 the time an agreement in reference to it is entered into. 
 
 If you should find that the decedent promised to pay the 
 plaintiff for the services, you may presume that a contract 
 was entered into to perform the services. To enable the 
 plaintiff to recover, a preponderance of the evidence must 
 show a promise to pay, or that the decedent expected to pay 
 for the services, or that the decedent could not, in justice or 
 good conscience, receive the same and not pay therefor what 
 they were reasonably worth, and that the plaintiff expected 
 to receive compensation for his services. 
 
 For this case, I will say to you that there must be evidence 
 to rebut the presumption that what was done by the plaintiff 
 for her sister was gratuitously given and received, so that if 
 you find from the evidence that the services were gratuitously 
 given, as an act of sisterly duty and affection merely, and no 
 request and no promise to pay, or that the circumstances 
 accounted for her conduct on grounds more probable than 
 that of the promise of recompense, no presumption of a con- 
 tract will be implied. But if you find from a preponderance 
 of the evidence that the circumstances were such as required 
 extraordinary and continuous services of substantial value, 
 the presumption that the services were gratuitously rendered 
 to a sister would not necessarily obtain, and we leave it for 
 you to say, under all the circumstances provided, whether the 
 services and the items of the account rendered were intended 
 to be gratuitously given. If gratuitous, you should find for 
 the defendant ; if not, you should find for the plaintiff. 
 
 Voris, Judge, in Fairbanks v. Otis, Summit County Common Pleas. 
 
 No. 657. Performance of services — Request for — How 
 proven — Promise implied when — A complete charge as to 
 services rendered by grandchild to grandparent. — The plain- 
 tiff alleges in her petition that these services were performed 
 at A. S. 's request. Such request, gentlemen, need not be 
 proven by direct and positive evidence ; a request to perform 
 services may be implied from facts and circumstances proved 
 on the trial of a case. If a man accepts valuable services 
 from another, and receives the benefit of them, the law implies 
 a request upon the part of the person receiving such services 
 for the other to perform the same. And in this case, gentle- 
 men, you would be warranted in implying a request upon the
 
 WORK, LABOR AND SERVICES. 495 
 
 part of A. S. for the plaintiff to perform the services that 
 she did perform. It is admitted here that the services were 
 performed, and it is admitted they were of value, and from 
 these facts the law will warrant you in implying a request 
 upon the part of S. for the plaintiff, Mrs. C, to perform these 
 services. But to go further, was there an implication? Does 
 the law imply a promise from the facts and circumstances 
 proved on the trial of this case on the part of S. to pay their 
 reasonable value? Ordinarily where there is a request to 
 perform valuable services, and when they are performed in 
 pursuance of such request, the law will imply a promise upon 
 the part of the person receiving the benefit of such services — 
 a promise to pay their reasonable value — unless there has been 
 something shown — some facts and circumstances shown — that 
 negative any implied promise upon the part of the person 
 receiving the services to pay their reasonable value. 
 
 ( a ) Circumstances negativing promise — Gratuitous services 
 — Relation of pari nt and eJiilrf. 
 
 Now, in this case, gentlemen, it is claimed there are cir- 
 cumstances surrounding the performance of these services 
 that negative any implication upon the part of S. to pay for 
 the same. It is claimed that the plaintiff here entered the 
 family of A. S. when she was about eleven or twelve years 
 of age ; that she continued to reside in his family as a member 
 of the same, performing the services claimed in the petition 
 up to and including her twenty-fourth year. It is claimed 
 that during the time --he was in this family she was not only 
 a member of it, but was treated as a member of the family, 
 and that her boarding, clothing, and lodging were furnished 
 her by A. S. It is admitted that the plaintiff was the grand- 
 daughter of defendant's testate, A. S. It is claimed here by 
 the defendant that these circumstances negative any implied 
 promise upon the part of A. S. t<> pay for the same. Services 
 performed at the request of another, while they may be valu- 
 able, and while they may be beneficial to the person who 
 receives them, may be performed under such circumstances 
 as that the law will imply that they were gratuitously per- 
 formed ; that the law will imply that the party who perfoi med 
 them never intended to make any charge for the same, or 
 never expected any compensation for the same. Where a 
 person sustaining thi »n of a child t<> a parent performs 
 
 valuable services, and during the time of the performance of 
 the same is a member of the family, receiving his board, his 
 clothing, his lodging, and his nursing, if he became sick 
 during that time, the law pi that such services were 
 
 gratuitously performed, and that there was no expectation
 
 496 WORK, LABOR AND SERVICES. 
 
 upon the part of the person performing the same that the 
 person for whom they were performed would pay him. The 
 law presumes under such circumstances that such services 
 were gratuitous, with no expectation of receiving any com- 
 pensation therefor. Now, gentlemen, in this case the evi- 
 dence, in order to sustain the contention of the plaintiff in 
 this case, must sustain the claim that the services were not 
 rendered under the ordinary relation of parent to a child, or 
 parent to a grandchild, or debtor to a creditor, or master and 
 servant. You must look to all the evidence in determining 
 this case; look to what you have heard told upon this witness- 
 stand. Was this girl a member of that family? Was she 
 treated as a member of that family? Was she treated as the 
 other daughter was treated? Look to all the evidence in 
 determining that ; was she provided for as the other daughter? 
 Was she provided for as the daughter of a man in the circum- 
 stances of A. S. — in the circumstances in which he then was 
 — usually provides for his daughter? Was what she needed 
 and what was necessary for her condition and station in life 
 provided for her by A. S. during the period she claims to 
 have performed these services? 
 
 You are, gentlemen, to determine this question from the 
 evidence, and from the evidence alone. If you shall find 
 from the evidence in this case that she entered this family as 
 a member of it, and was treated in all respects as a member 
 of the family — as a daughter; if S. provided for her clothing, 
 board, lodging, nursing, and medicine, if it was required, 
 then in that case the law raises the presumption that these 
 services were gratuitously performed. 
 
 But if, upon the other hand, you find in this case that she 
 was not a member of the family ; that she was not treated as a 
 member of his family, and S. did not furnish her with what 
 would be necessary, if a member of the family in that behalf, 
 then, in that case, the law raises no presumption that these 
 services were performed gratuitously. And if they were per- 
 formed at the request of A. S., then, in that case, the law 
 implies a promise upon the part of S. to pay their reasonable 
 value. And even, gentlemen, if you shall find that this 
 plaintiff went into this family and resided there as a member 
 of the same, being treated as such, and being provided with 
 clothing, food, lodging, nursing, and medicine, and every- 
 thing that was necessary, yet in this case you find that A. S. 
 expressly promised to pay her a reasonable value for her 
 services, then, in that case, she had a valid and subsisting 
 claim at law against defendant's testate. 
 
 John B. Driggs, Judge, in W. N. Stilwell v. Cowans, Belmont County. 
 S. C. 3785. Settled while in Supreme Court. Affirmed by Circuit Court.
 
 WORK, LABOR AND SERVICES. 497 
 
 No. 658. Contract for services by railroad employee and 
 railway corporation. — In this action the plaintiff claims of 
 the defendant, the R. R. Company aforesaid, for serv- 
 ices rendered by him as flagman at O. Street crossing in M., 
 this city, from the first day of January, 1885, to the first day 
 of January, 1886, in the sum of $299, as they are reasonably 
 worth, for which he asks judgment. 
 
 The defendant answering, denies each allegation of liabil- 
 ity for said services, and their alleged worth, and that he 
 labored as flagman during all the time averred, and further 
 claims that plaintiff was paid and satisfied for said services 
 under a special contract for the services aforesaid, together 
 with his services as switchman at said locality at the wages 
 of forty dollars per month, which was all both said services 
 were worth. 
 
 Plaintiff replying, denies said payment and satisfaction 
 and said special contract, and that both services were only 
 worth forty dollars per month. 
 
 To find in favor of the plaintiff his claim must be proved 
 by a preponderance of the evidence in the case. That is, the 
 evidence in his favor must, by reason of its weight and im- 
 portance, in your minds, outweigh all other evidence to the 
 contrary. If the evidence for and against the .claim just bal- 
 ances, or if the evidence against the claim preponderates 
 over, or, in other words, outweighs the evidence for the 
 claim, you should find for the defendant. 
 
 To entitle the plaintiff to recover, there must have been a 
 contract between him and the defendant, through its agent, 
 express or implied, for his services as flagman. 
 
 An express contract is proved by evidence of the express 
 words of the parties, or authorized agents for the purpose. 
 An implied contract is established by proof of circumstances 
 showing that either in justice or honesty a contract ought to 
 be implied, or that the parties intended to contract, and 
 whether the contract be established by evidence director cir- 
 cumstantial, the legal consequences resulting from the breach 
 of it must be the same. 
 
 The defendant being a corporation, only acts through its 
 agents duly authorized. If the plaintiff performed the serv- 
 of the flagman at the defendant's request, or with its 
 knowledge and con ent, and the latter voluntarily took the 
 benefit of such labor, then the law presumes that he will In- 
 paid for his labor, unless the contrary is .shown by the evi- 
 dence. And if nospei ial contract is proved, fixing the price, 
 then he is entitled to have what hi are reasonably 
 
 worth. And if yon find these facts by the preponderance of
 
 49S WORK, LABOR AND SERVICES. 
 
 the evidence under the rules given, your verdict should be 
 for the plaintiff; otherwise for the defendant. 
 
 If you find by the preponderance, of the evidence that the 
 plaintiff, under a special contract, express or implied, as 
 hereinbefore defined, performed services as flagman and 
 switchman both, at the wages of forty dollars a month, and 
 that he has been fully paid therefor, your verdict should be 
 for the defendant ; otherwise, and finding by a preponderance 
 of the evidence the flagman's services to have been performed 
 as under my last instruction stated, your verdict should be 
 for the plaintiff. 
 
 The credibility of the testimony and the weight of the 
 evidence are for your determination ; the facts are exclusively 
 for you, but the law governing them you will take implicitly 
 and exclusively from the court, as embodied in this charge. 
 The court is responsible for the law. 
 
 Your verdict should be in writing, signed by your fore- 
 man, whom you will select from your number. If you find 
 in favor of the plaintiff, it should be for the amount found 
 due, with interest thereon from the 18th day of February, 
 1887, the date of the commencement of the suit before the 
 Justice of the Peace, and the 5th day of December, 1887, the 
 latter being the first day of the present term. 
 
 May, Judge, in Penn. Co. v. Vandevender. 
 
 No. 659. When mother entitled to custody of infant 
 and to make contracts for its services — Contract for services 
 and for maintenance and schooling of minor not to be per- 
 formed in one year. — In this action, W. M., plaintiff, sues J. 
 B., defendant, and makes claim that there is due him from 
 the defendant the sum of $900.00, consisting of five annual 
 installments of $180 each, with interest respectively from 
 April 4 of successive years, beginning with '80 and ending 
 with '85, for work and labor performed by said M. at said 
 B. 's request, as per account in the petition set forth. The 
 defendant answering, denies each allegation of liability in the 
 petition contained. And further, defendant makes claim 
 that plaintiff's demand for said work and labor was satisfied 
 in the fulfillment of an oral contract made by M. M., plain- 
 tiff's mother, with defendant for plaintiff's benefit, whereby 
 said W. M. was to do said work and labor, beginning when 
 he was about five years old, and ending his services on the 
 fourth day of April, 1885, when he would be twenty-one 
 years of age, in consideration of which said B. agreed to 
 maintain plaintiff and give him a good common school edu- 
 cation during such service, and at the termination thereof to
 
 WORK, LABOR AND SERVICES. 499 
 
 furnish him a good suit of clothes, and that defendant per- 
 formed every stipulation of said contract on his part. 
 
 In reply the plaintiff denies each and every averment as 
 to contract and its performance by the defendant. The claim 
 of a party is supported by a preponderance of the evidence 
 , when the evidence in its favor, by virtue of its weight and 
 importance in your minds, outweighs all other evidence to 
 the contrary. In general, the mother as against the father 
 is entitled to the care and custody of their child at such tender 
 age of five years, and if the husband has deserted the wife, 
 or neglects to provide for his family, she may make contracts 
 as to the labor of such minor child, and if a contract is made 
 for the sole benefit of a minor, or she allows him his earnings 
 during minority, he may sue in his own name, if necessary 
 on coming of age, for his wages. 
 
 However, no action can be brought upon any agreement 
 that is not to be performed within the space of one year from 
 the making thereof, unless the agreement is in writing signed 
 by the party to be charged therewith, or by his or her author- 
 ity. So, if there was a contract for the maintenance and 
 schooling for the service of plaintiff with defendant until said 
 \V. M. should come of age, beginning when he was about five 
 years or fourteen years old, which agreement or contract was 
 not in writing signed by the parties to be charged, neither 
 could enforce the performance, or sue for a breach thereof by 
 action. Vet the contract, though not enforcible, is not void, 
 for if both parties have fully performed the contract, a court 
 will not interfere between them. If the plaintiff performed 
 the contract on his side, if there was one, and the defendant 
 has not fully performed the contract on his part, said M. 
 would be entitled to recover the reasonable value of his unpaid 
 services from April 4, 1880, though he would not be so 
 entitled to recover if said B. did all he agreed to do under the 
 contract. If. therefore, under the rules I have given, you 
 find i,v a preponderance of tin- evidence that the plaintiff, 
 under a hiring for his benefit while yet a minor, performed 
 work and labor still unpaid for, and at the request of defend- 
 ant, from April 4, '80, until said M. was twenty-one years of 
 age, your verdict should be in favor of the plaintiff for as 
 ■much as said work and labor may be shown to be reasonably 
 worth, under the evidence and circumstances. < otherwise, or 
 notwithstanding you may find that said M. accomplished said 
 work and labor, if you further find by a preponderance of the 
 evidence that said services were performed under a special 
 contracl whereby, in consideration of the same and during 
 the time in question, said B. was to furnish plaintiff subsist-
 
 5<DO WORK, LABOR AND SERVICES. 
 
 ence and a good common school education, and at the latter's 
 coining of age, a good suit of clothes, and that the defendant 
 fairly performed each and every part of this contract, or of 
 whatever the contract may have been, your verdict should be 
 for the defendant. 
 
 M. May, Judge, in Brubaker v. McGuire, 51 O. S. 624. Judgments 
 affirmed. 
 
 No. 660. Growing trees and fences constructed upon 
 ground allowed to be used for public highway — Rights of 
 owner and public — Trespass or nuisance (?) — "Whilst the 
 supervisor might at any time have caused and directed the 
 road to be opened its extreme width, yet he was not bound 
 to open the same wider than the convenience of the public 
 in fact required. The trees growing, and the fences con- 
 structed upon the ground allowed to be opened for public use 
 as a highway, remain the property of the owner of the fee, 
 and if they existed within the limits of the new road at the 
 time of its establishment, the owner is under no special obli- 
 gation to remove the same; nor will the sufferance of their 
 continuance make them a nuisance, so as to authorize a pri- 
 vate person, unauthorized by the supervisor, to remove the 
 same, unless they in fact subject him to a substantial and 
 material hindrance and inconvenience in the exercise of his 
 right, in common with other citizens, to the use of the road 
 as a public highway. An authorized road once opened, or, 
 in fact, used by the public as a highway, becoming obstructed 
 so as to work a positive inconvenience or damage to a citizen 
 in its proper use, such obstruction may be summarily removed 
 with impunity by the act of such citizen. 
 
 "If the jury shall find in this case that the defendant, in 
 entering upon the plaintiff's close, was the supervisor of the 
 road district in which such lands lay, or was duly authorized 
 by such supervisor to enter upon such land for the purpose of 
 opening or widening such highway, and that the hedge, 
 bushes, or fence removed were within the limits of such 
 authorized highway, and even in the opinion of the supervisor 
 an obstruction in the way of the public use of such ground 
 for the purpose of such highway ; or if the jury shall find that 
 prior to the alleged trespass the public had been in the peace- 
 able enjoyment and use of said grounds covered by said hedge 
 or fence, and that the existence of the same was a hindrance 
 to the enjoyment of such highway, and that the defendant, 
 in removing the same, was guilty of no wanton or unneces- 
 sary injury to the owner of such property, then, and in either 
 case, your verdict should be for the defendant. Whatever
 
 WORK, LABOR AND SERVICES. 5OI 
 
 hurts, annoys, inconveniences or damages a person in the 
 enjoyment of a right, is a nuisance in its general acceptation. 
 As applied to this case, whatever hindered or inconvenienced 
 the defendant in his right of transit over the road in question 
 may be regarded as such nuisance. 
 
 " If the jury should find that the hedge row stood within 
 the limits of the public highway forty feet wide, and within 
 ten feet of the center of the same, it was, prima facie, a nui- 
 sance, and the defendant had the prima facie right to remove 
 it, doing no unnecessary damage. 
 
 ' ' If the road had been opened and used after having been 
 established, it makes no difference whether a formal order 
 had been issued by the commissioners or not; the use of such 
 road after such establishment would be an appropriation by 
 the public, and would entitle the defendant to remove any 
 nuisance which he might find upon the same; that to entitle 
 the defendant to cut down the bushes in the road, it was not 
 necessary that he should be hindered or inconvenienced in 
 his passing along the same." 
 
 From Phifer v. Cox, 36 O. S. 24S. 
 
 No. 661. Drunkenness as an excuse for a crime. — 
 "Drunkenness is no excuse for crime. Crime, when all of 
 the acts of the hand and mind which constitute it actually 
 exist, is not the less criminal when committed by a person 
 intoxicated. Vet, nevertheless, when purpose, premeditation, 
 and deliberation are necessary ingredients of the crime, as in 
 murder in the first degree, evidence of intoxication is admis- 
 sible, and proper to be taken into consideration by the jury, 
 to determine the question as to the intent, and premeditation 
 and deliberation. But drunkenness is a distinct and substan- 
 tive fact, and when set up by the defendant as bearing upon 
 these ingredients should be satisfactorily shown by testimony 
 to have actually existed, and that it was not simulated or 
 assumed, it must not be left to mere con jecture or assumption. 
 Unless the drunkenness is shown to have been to such an ex- 
 tent as to destroy the reasoning faculties For the time, that is, 
 that accused was so drunk thai he did not know what he was 
 about, it is not entitled to great weight. . . . Ifthejuryfind 
 that the killing was done while the defendant was 
 drunk, and in a momenl of passion, . . . these are 
 proper circumstances to be con idered by von iu order to 
 determine whether the killing is manslaughter or not . . . 
 If thedefendant was suffering from an attack of the delirium 
 tremens^ 01 total deprivation of his mental faculties, 
 superinduced by intoxication, . . . this exempts the
 
 £02 WORK, LABOR AND SERVICES. 
 
 defendant from responsibility for crime, like insanity pro- 
 duced by any other cause. 
 
 From Davis v. State, 25 O. S. 369. " Intoxication is no defense to a 
 prosecution for crime ; but in some cases evidence of intoxication is 
 admissible to show that no crime has been committed, or to show the 
 degree or grade of a crime ; and in the prosecution for maliciously shooting 
 with intent to wound, evidence that the defendant was so much intoxicated 
 that he could not form or have such intent, is admissible. Cline v. State, 
 43 O. S. 332- 
 
 No. 662. A house of ill fame defined — Harboring a 
 female of good repute in — < 'Harboring" defined. — A house 
 of ill fame is alleged to have been kept by this defendant, 
 and that means she was the keeper of a house which per- 
 sons of opposite sexes commonly used and resorted to for 
 purposes of prostitution and lewdness. Whether or not it 
 was such a house at the time named in the indictment you 
 have a right to take into consideration the general reputation 
 in the neighborhood where she lived as well as the testimony 
 of any witnesses, including defendant herself, and deter- 
 mine from the whole proof whether or not at the time named 
 in the indictment this defendant was in fact the keeper of a 
 house of ill fame. 
 
 The indictment speaks of harboring a person, which 
 means shelter afforded and a place of asylum furnished to 
 such persons as came to her, and if you find from the proofs 
 of the case at the time named in the indictment that this de- 
 fendant furnished A. B. and C. D. a room to stay in for the 
 purpose of lewdness you may find for the purposes of this 
 case she was harbored. 
 
 Henry Collings, Judge, in State v. McCandless, Scioto County Common 
 Pleas. Approved by Circuit Court at March Term, 1897. The indictment 
 was brought under Vol. 92, O. L. 207, and the defendant charged with 
 harboring a female person of good repute for chastity under 18 years. 
 
 No. 663. "Good repute for chastity" defined as used in 
 92 0. L. 207. — It is charged in the indictment and for certain 
 purposes it must appear that the woman therein named, A. B., 
 at the time of the occurrence alleged in the indictment was 
 a person of good repute for chastity, which is to say that 
 among the people who knew her in the community where 
 she lived and that persons with whom she associated knew 
 her general reputation for chastity, morality and womanly 
 behavior was not questioned or suspicioned. In order to 
 determine whether or not, at the time of the occurrence al- 
 leged, she was a person of that repute, you have a right to 
 take into consideration the testimony of the persons who 
 were acquainted with her and with whom she associated, and
 
 WORK. LABOR AND SERVICES. 503 
 
 what they say about her general standing and reputation in 
 the community where she resided, as well as the conduct of 
 the woman herself, and determine from the whole proof 
 whether or not she, at the time of the occurrence, was a 
 person whose standing and reputation for chastity where she 
 lived was good. If you find that to be a fact, then you may 
 say she was a person of good repute for chastity. 
 
 Henry Collings, Judge, in State v. McCandless, Scioto Count}' Common 
 Pleas. Approved by the Circuit Court, March Term, 1897. The indict- 
 ment was brought under Vol. 92, O. L. 207, amending R. S. Sec. 7023, and 
 the defendant charged with harboring a female person of good repute for 
 chastity under 18 years of age.
 
 JUDGMENT ENTRIES IN 
 
 THE COMMON PLEAS. CIRCUIT, 
 
 AND SUPREME COURTS. 

 
 TABLE OF CONTENTS. 
 
 Part II. 
 
 JUDGMENT ENTRIES IN THE COMMON PLEAS, 
 CIRCUIT AND SUPREME COURTS. 
 
 PLEADIXO. 
 
 PAGE 
 
 Parties to Actions 507 
 
 Joinder of Actions 512 
 
 Venue of Actions 513 
 
 Service of Process 515 
 
 Rules of Pleading — Of both Form and Substance 519 
 
 Amendment of Pleadings 527 
 
 Motions 530 
 
 PRACTK !■:. 
 
 Time and Trial — Continuance 533 
 
 Tender and Offer to Confess Judgment 534 
 
 Revivor of Actions 541 
 
 Costs 54s 
 
 Appointment of Stenographer 547 
 
 Trial by Jury Formal Entries as to 548 
 
 Trial by the Court 556 
 
 Trial by Referee 560 
 
 Trial by Mastei Commissioner 500 
 
 Trial on Appeal 57" 
 
 Means of Securing Attendance of Witn< 1 37s 
 
 Admission and Inspection of Documents 579 
 
 Modes of T.iki: tony 582 
 
 1
 
 ii TABLE OF CONTENTS. 
 
 PAGE 
 
 Variance— See Rules of Pleading 5 8 4 
 
 Taking Case from Jury 5 8 4 
 
 Motion for New Trial— Judgment upon Verdict 5 86 
 
 Bills of Exception 5 8 9 
 
 Dismissal of Actions 59° 
 
 JUDGMENTS IN GENERAL AND ENFORCEMENT THEREOF. 
 
 Judgments in General — Common Forms 59 1 
 
 Default Judgments 595 
 
 Revivor of Judgment 59 8 
 
 Enforcement of Judgments — Execution 6oi 
 
 Proceedings in Aid of Execution 608 
 
 Arbitration and Award 616 
 
 Assessments 618 
 
 Attachment 62 5 
 
 Attorneys at Law 632 
 
 Bastardy 6 34 
 
 Boundary Line 637 
 
 Change of Name 639 
 
 Churches 6 4° 
 
 Contempt 6 4 r 
 
 Corporations — Dissolution of 645 
 
 Divorce and Alimony 6 5 l 
 
 Dower 
 
 662 
 
 Executor's and Administrator's Sale of Real Estate in Common 
 
 Pleas Court 664 
 
 Foreclosure of Liens 666 
 
 Fraud — Fraudulent Conveyances 687 
 
 Guardian's Sale of Real Estate in Common Pleas Court 690 
 
 Habeas Corpus 694 
 
 Infants 6 97 
 
 Injunction — See also Assessments 7°° 
 
 Interpleader 7 l ° 
 
 Judgments — Suits upon 7 T 3 
 
 Liens — See Foreclosure 7 T 4 
 
 Mandamus 7 l6 
 
 Marriage 7 2 ° 
 
 Mistake 7 22 
 
 Nunc Pro Tunc Entries 7 2 3 
 
 Occupying Claimants 7 2 7 
 
 Partition 7 2 9 
 
 Perpetuation of Testimony 74° 
 
 Promissory Notes 74 2 
 
 Quiet Title — Action to 744 
 
 Quo Warranto 749
 
 TABLE OF CONTENTS. Ill 
 
 PAGE 
 Real Actions — See Quiet Title, Actions to — Occupying- Claimants — 
 
 Recovery of Possession of Real Property 755 
 
 Receivers 755 
 
 Recover}- of Possession of Real Property 778 
 
 Reformation, Rescission and Cancellation of Instruments . . . .781 
 
 Replevin 7 SS 
 
 Sale of Entailed Estates — See Churches 791 
 
 Settlement or Compromise 79 2 
 
 Specific Performance 79 2 
 
 Stockholder's Liability — For Other Entries Connected with Mas- 
 ter's Report — See Trial by Master Coimnissioner 793 
 
 Sureties — Rights and Remedies of 796 
 
 Taxes and Assessments — See Assessments — Injunction 797 
 
 Vacation, Modification or Opening of Orders and Judgments — 
 
 (Relief after Judgment) 797 
 
 Wills 805 
 
 Error — Proceedings in 809 
 
 CRIMINAL PROCEDURE. 
 
 Proceedings to Prevent Crime 819 
 
 Arrest, Examination, Bail, etc 820 
 
 The Grand Jury 823 
 
 Indictment and Proceedings thereon 826 
 
 Proceedings Between Indictment and Trial 827 
 
 Trial, Verdict and Judgment s u 
 
 Miscellaneous s 4 7 
 
 PROBATE COURT. 
 
 WJUs — Production thereof s .si 
 
 Wills— Probate thereof 852 
 
 tion <»f Widow 860 
 
 mentary I 862 
 
 Appointment of Executors and Administrators 864 
 
 nation. Death or Removal ofExecutoror Administrator . . 868 
 
 Administration Bond R 869 
 
 Inventory and Appraisement s 7- 
 
 Concealment of Assets S 7.S 
 
 Compounding with Debtor 878 
 
 Actions to Complete Contracts 879 
 
 of Personal Property SS() 
 
 Sale or Disposal oi tims 883 
 
 Arbitration of Claims A 884 
 
 Requisition to laim ssr > 
 
 Allowance of Administrate) amor's Claim S87
 
 IV TABLE OF CONTENTS. 
 
 PAGE 
 
 Execution Against Administrator or Executor 888 
 
 Claims not Due for Eour Years After Bond 888 
 
 Distribution within Four Years 889 
 
 Action for Wrongful Death 890 
 
 Sale of Real Estate to Pay Debts 891 
 
 Accounts of Executors and Administrators 908 
 
 Distribution Enforced 913 
 
 Insolvent Estates 916 
 
 Appointment of Guardian 920 
 
 Removal and Resignation of Guardian 922 
 
 Sale of Real Estate by Guardian 926 
 
 Lease of Ward's Land 931 
 
 Indenture of Ward 934 
 
 Guardians of Lunatics, Idiots and Imbeciles 934 
 
 Guardians of Drunkards 937 
 
 Accounts of Guardian 938 
 
 Trustees for Non-Residents 938 
 
 Assignments for Creditors — Insolvent Debtors 942 
 
 Assignments — Sale of Real Estate by Assignee 952 
 
 MISCELLANEOUS MATTERS PROBATE COURT. 
 
 Duties and Rights of Surviving Partners 967 
 
 Proceedings in Relation to Justices of the Peace 969 
 
 Proceedings against Municipal Officers 970 
 
 Appropriation of Property by Municipal Corporations 972 
 
 Appropriation of Property by Private Corporation 975 
 
 Appeals in Road Cases 980 
 
 One-Mile Assessment Pike 985 
 
 Abandonments of Roads 986
 
 PARTIES TO ACTIONS. 
 
 See Interpleader. 
 
 (R. S. Sees. 4993 — 5018.) 
 
 No. 763. 
 
 Entry substituting Real Party in interest and dismissing others 
 who have disposed of interests to those substituted — Order- 
 ing necessary Parties to be made Defendants. 
 
 [Caption. J 
 
 This cause coming on to be heard, and it being made 
 to appear to the court that since the bringing of this suit 
 the said plaintiffs, C. and W., have disposed of their in- 
 terest in this action to W. D., one of the defendants here- 
 in, and that the said \V. D. is now the real party in in- 
 terest herein, and the said C. and W. should be dismissed. 
 It is therefore ordered that the said C. and W. be dismissed 
 from this action, and that the defendant, W. D., be substi- 
 tuted as a plaintiff* herein, and this action proceed in his 
 name to final judgment and abide the event of this suit. And 
 thereupon, on motion of said D., and it appearing that 
 one G. K. is a necessary party defendant herein, it is 
 ordered that he be made such defendant, and that process 
 issue in this action in due form of law. 
 
 As to real parties in interest, R. S. Sec. 4993 ; Kiukead's Code 
 Pldg. Sec. 8. 
 
 No. 764. 
 Assignee substituted for Plaintiff. 
 
 \( \if>/ in) 1.] 
 
 This day came the above-named plaintiff by his attor- 
 neys, and also came G. P. D. by his attorneys, and it ap- 
 pearing to the court that J. II., in whose name this action 
 was brought, has, since the above case was brought, and 
 came to issue, assigned all his interest in the subject-matter 
 to G. r>. D. for the benefit of the creditors of said J. H., 
 
 5°7
 
 50S JUDGMENT ENTRIES. 
 
 and that the said G. B. D. is now the duly appointed 
 and qualified assignee of said J. H., and that said G. B. 
 D., as such assignee, is the real party in interest, it is on 
 motion of said G. B. D. ordered that he be and he is 
 hereby substituted for the said J. H. as plaintiff herein, 
 and the said G. B. D., as such assignee, has leave to file 
 a supplemental petition herein, and the same is herewith 
 filed. 
 
 No. 765. 
 Appointment of Guardian ad litem. 
 
 [Caption, j 
 
 This day this cause came on to be heard on motion of 
 plaintiff to appoint a guardian ad litem for the minor de- 
 fendants in the above-entitled case, and it appearing to the 
 court that M. H. H. and C. H. are minor defendants, and that 
 they have been duly served with summons, and that M. H. is 
 of the age of fourteen (14) years, and has not applied for the 
 appointment of a guardian ad litem, although more than 
 twenty ( 20) days have elapsed since the return of said sum- 
 mons upon her. 
 
 On application of the plaintiff it is ordered that L. G. A. 
 be appointed guardian ad litem for said minor defendant, and 
 thereupon said L. G. A. in open court accepts said appoint- 
 ment. 
 
 Whittaker's Civil Code, Sec. 5004. The entry- must show acceptance 
 by the guardian. 3 Ohio, 355. 
 
 No. 766. 
 
 Entry making Party Defendant claiming interest under 
 R. S. Sec. 5006. 
 
 [Caption. ] 
 
 This day came A. B. , representing to the court that he has 
 an interest in the above-entitled cause adverse to the plaintiff, 
 and moved the court for leave to be made a party defendant 
 herein, and the court upon careful consideration, and being 
 satisfied that said motion is well taken, doth therefore sus- 
 tain the same, and does hereby allow said A. B. to be made 
 a party defendant to this action, and does allow said A. B. 
 days within which to file his pleading.
 
 PARTIES TO ACTIONS. 509 
 
 No. 767. 
 Entry allowing Party to come in as Co-plaintiff. 
 
 [Captioi/. \ 
 
 This day came C. D., and representing to the court that he 
 has an interest in the subject of the action, and in obtaining 
 the relief demanded, and moved the court for leave to be 
 joined as a party plaintiff to this action. And the court, 
 upon due consideration, finds that said motion is well taken, 
 and doth therefore order that the said C. D. be and he is hereby 
 allowed to come in and be and hereby is made a plaintiff in 
 this action with said C. D., original plaintiff; and that all 
 orders heretofore made, and all proceedings in this action, 
 shall stand as the orders and proceedings of this court herein, 
 and that this action proceed in the same manner and with 
 the same force and effect as if the said A. B. had been made 
 party plaintiff at the commencement thereof, and that the 
 said summons, petition, and all orders and proceedings herein 
 be and are hereby amended by adding their names as plain- 
 tiffs herein. 
 
 Whittaker's Civ. Code, Sec. 5005, and notes. Attaching creditors may 
 join as plaintiffs in an action upon an attachment bond. 10 O. S. 478. 
 
 No. 768. 
 
 Ordering necessary Party to be made Defendant under 
 R. S. Sec. 5006. 
 [Caption.] 
 
 Upon motion of plaintiff, and it being made to appear to 
 the satisfaction of the court that A. B. is a necessary party 
 to a complete determination of the questions arising in the 
 above-entitled action, it is ordered that said A. B. be and he 
 is hereby made a party defendant herein, and it is also further 
 ordered that service of summons be made upon him according 
 to law. 
 
 This may also serve the purpose under R. S. Sec. 5013. 
 
 No. 76Q. 
 
 Making new Parties without Motion. 
 [Cap //of/. ] 
 
 It appearing to the court that a complete determination 
 of the controversy in this action can not be had without the 
 
 appearance of one A. B. herein, it is therefore by the court
 
 510 JUDGMENT ENTRIES. 
 
 ordered, on its own motion, that said A. B. be and he is 
 hereby made a party defendant, and that he be brought into 
 court by service of summons according to law. (And the 
 clerk of this court is directed to issue a summons for said 
 defendant, directed to the sheriff of this county, indorsed 
 * ' ' ' returnable according to law. ) 
 
 Whittaker's Civ. Code, Sec. 5013. 
 
 No. 770. 
 Substitution of Successor in Administration. 
 
 [Caption.] 
 
 It being made to appear to the court that A. B., the 
 former administrator [or, executor] of the estate of C. D., 
 deceased, is now deceased, and that E. F. has been appointed 
 as administrator of said estate of C. D. , -deceased, and is now 
 the duly qualified and acting administrator of said estate, it 
 is hereby ordered upon motion of said E. F. as such admin- 
 istrator, that he as such administrator aforesaid be and he is 
 hereby substituted as plaintiff in this action in place of A. 
 B., the former administrator [or, executor] of such estate, 
 and that this action be continued in -the'name of the said E. 
 F. as administrator as aforesaid, as plaintiff in this action ; 
 and that the name of E. F. as aforesaid be substituted in the 
 name and place of said A. B. , now deceased, upon the rec- 
 ord herein, and that the pleadings herein, and the proceed- 
 ings already had and taken in the cause, stand as the plead- 
 ings, proceedings and evidence in the cause hereby revived 
 and continued as aforesaid. 
 
 30 Hun. 444. 
 
 No. 771. 
 
 Dismissal without Prejudice for want of necessary Party. 
 
 [Caption.'] 
 
 It having been made to appear to the satisfaction of the 
 court that A. B. is a necessary party to the above-entitled 
 action, and that a determination of the controversy herein 
 can not be made by the court without the presence of the said 
 A. B. ; and it further appearing that the said A. B. has not 
 been made a party to this action, the same is hereby dis- 
 missed without prejudice at the costs of plaintiff. 
 
 R. S. Sec. 5013.
 
 PARTIES TO ACTIONS. 5 11 
 
 No. 772. 
 
 Making Party having interest in action for recovery of real or 
 personal property under R. S. Sec. 5014. 
 
 [Caption.] 
 
 It being made to appear to the satisfaction of the court 
 that A. B. has an interest in the property involved in this 
 action, he is hereby made a party defendant herein with leave 
 to answer by . 
 
 No. 773 
 
 Substitution of Plaintiff in execution for Officer. 
 
 [Caption.] 
 
 This day came J. R., sheriff, and represented to the court 
 that he took possession of the property in controversy in 
 this action by virtue of an execution [or, on writ of attach- 
 ment] duly issued out of this court in the case of A. B., 
 plaintiff, against C. D., defendant, and that he holds said 
 property by virtue of said writ. It is therefore upon motion of 
 said sheriff ordered that the said A. B., plaintiff in said action, 
 wherein said execution was issued, be and he is hereby sub- 
 stituted as the defendant in place of said sheriff, and that the 
 pleading and process herein stand amended accordingly. 
 
 Whittaker's Civil Code, Sec. 501S and uotes. 
 
 No. 774. 
 Ordering Parties brought in where obligation is joint. 
 
 [Caption.] 
 
 It having been made to appear to the court that the 
 claim upon which this action is based is a joint obligation 
 signed by A. B., CD., E. P. and G. II., and that only A. P.. 
 and C. D. are made parties hereto and have been served 
 herein, and that E. I ; . and C. II. are necessary parties herein, 
 and that this canst- can not be determined without their 
 herein, it is therefore ordered thai the said E. F. and 
 (,. II. be and they are hereby made parties hereto, and the 
 clerk is ordered to issue a summons for them directed to the 
 sheriff of this county according to law.
 
 512 JUDGMENT ENTRIES. 
 
 JOINDER OF ACTIONS. 
 
 (£. S. Sees. 5019 — 5021.) 
 
 Under this division of the Code, demurrers may be filed for misjoin- 
 der, and the entries thereon may be found under demurrer. Where two 
 causes of action are commingled together, a motion to separately state 
 and number may be made, and entries regarding this are found on page 
 519. If two counts are inconsistent a motion requiring an election may be 
 made; but if two causes of action are inconsistent, demurrer is the rem- 
 edy. Kinkead's Code Pig., Sec. 21, p. 23, p. 18. Or the court may treat the 
 additional one as surplusage. Id., p. 18. This leaves practically nothing 
 to be placed in this division except what follows. 
 
 No. 775. 
 Entry Requiring an Election. 
 
 \CapHon.~\ 
 
 This day came C. D., defendant herein, and moved the 
 court to require the plaintiff to elect between the first count 
 in his said petition and the second count therein, upon 
 which he will proceed to trial. And the court, upon due 
 consideration thereof, finds that the said two counts are 
 inconsistent, and doth therefore order that said plaintiff, 
 
 w ithin days from date hereof, elect upon which count 
 
 he will proceed to trial, and that in default of so electing 
 the said (first or second) count in said petition be stricken 
 out. 
 
 No. 776. 
 Entry upon motion to compel Plaintiff to elect upon which cause 
 of action he will proceed. 
 \CaptionJ\ 
 
 This cause came on to be heard upon the motion of the 
 defendant, L. B., to compel the plaintiff to elect upon which 
 cause of action set forth in her petition and amendment to 
 the petition she will proceed to trial, whether upon the fore- 
 closure of her mortgage against D. S. B. , or for a personal 
 judgment against said L. B., and the court does sustain said 
 motion, and thereupon the plaintiff elected to proceed on her 
 cause of action against D. S. B. and the other defendants, 
 for the foreclosure of her said mortgage, and thereupon the
 
 VENUE OF ACTIONS. 513. 
 
 court does dismiss said second cause of action in the supple- 
 mental petition, so far as the same relates to the recovery of 
 a personal judgment against L. B. 
 
 From Shafer v. Benton, Delaware County. The prayer of the petition 
 mav in such case operate as an election. Kinkead's Code Pldg, Sec. 21, p. 
 22. The foregoing entry is taken from the above case, but it does not 
 seem consistent with the rules of procedure. Kinkead's Pldg, Sec. 21, 
 p. 23. It might be made by agreement, and we therefore give it. 
 
 VENUE OF ACTIONS. 
 
 (R. S. Sees. 5022 — 5034.) 
 
 No. 777. 
 Venue — Judgment on Demurrer on answer that property sought 
 to be recovered is not within jurisdiction of the Court, under 
 R. S. Sec. 5022. 
 
 [Caption.] 
 
 This cause came on to be heard upon the demurrer of the 
 defendant to the petition, was argued by counsel, and it 
 appearing to the court that the property sought* to be recov- 
 ered in this action is not within the jurisdiction of this court, 
 the court finds said demurrer well taken and does therefore 
 sustain the same. 
 
 [Where petition in partition is filed and demurrer sus- 
 tained, proceed as at then proceed :] 
 
 To be partitioned in this action is not within the juris- 
 diction of this court, the court finds said demurrer well taken 
 and does therefore sustain the same. 
 
 [Where petition in foreclosure is filed and demurrer sus- 
 tained, proceed as at then proceed :] 
 
 To b< : ed under said mortgage [or, lien] is not 
 
 within the jurisdiction of this court, the court finds the same 
 well taken and dors therefore sustain the same. 
 
 [Where the petition discloses upon its faa a wrong venue 
 the err 01 is corrected by demurrer. It it does not to appear 
 from the face of the pleadings, thedefei t is remedied by answi > .] 
 
 Kinkead's Code Pleading, S<
 
 514 JUDGMENT ENTRIES. 
 
 No. 778. 
 Venue — Order for Change of. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the motion of W. 
 K. B., for a change of venue of the above action, and it ap- 
 pearing to the court from the evidence that a fair and im- 
 partial trial of this cause can not be had in this county, 
 it is ordered * that the place of trial of this cause be and 
 
 the same is hereby changed to the county of , and 
 
 state of Ohio. 
 
 The clerk of this court is therefore directed to transmit 
 
 to the clerk of the Court of Common Pleas of county, 
 
 Ohio, the pleadings and papers in this case, together with 
 a duly certified copy of this entry. 
 
 No. 779. 
 
 Venue — Change of in case of Corporations under 
 R. S. Sec. 5033. 
 
 [Caption.] 
 
 This cause come on to be heard upon the motion of 
 C. D. B., for a change of venue of this action, and it ap- 
 pearing to the court from the affidavit of C. D. B., and the 
 several affidavits of five credible persons residing in said 
 
 county of , sustaining said affidavit, that the said The 
 
 W. D. B. Company is a corporation, having fifty stock- 
 holders, who are residents of said county, and having its 
 principal office in said county [or, transacts its principal 
 business in said county]. 
 
 It is therefore ordered, etc. [proceed as from * in No. 778]. 
 
 No. 780. 
 
 Venue — Stay of Proceedings against Member of General 
 Assembly under R. S. Sec. 5034. 
 
 [Caption.] 
 
 This cause came on to be heard upon the motion of 
 W. L. B., and it having been made to appear to the full 
 satisfaction of the court that the said W. L. B. is a mem- 
 ber [or, officer] of the senate [or, house of representatives] 
 of the state of Ohio ; that this county is not the county of
 
 SERVICE OF PROCESS. 515 
 
 his residence, and that the cause of action occurred ten days 
 
 before the day of , 18 — . 
 
 It is therefore ordered that all further proceedings in 
 this action against the said \V. L. B. be stayed during the 
 
 present session of said General Assembly, and for days 
 
 thereafter. 
 
 No. 781. 
 
 Entry ordering Change of Venue in Criminal Case. 
 
 [Caption.'] 
 
 This day this cause came on to be heard upon the motion 
 heretofore filed herein by the defendant for a change of 
 venue, and the court, being fully advised in the premises, 
 finds from the affidavit filed herein that a fair and impartial 
 trial can not be had in this county. It is therefore ordered 
 that a change of venue be granted, and it is hereby directed 
 and ordered that the said cause be taken to the adjoining 
 
 county of . It is further ordered that the witnesses for 
 
 the state enter into a recognizance to appear before the court 
 of common pleas of said county at . 
 
 R. S. Sees. 7264—7266. 
 
 SERVICE OF PROCESS. 
 
 (R. S. Sees. 5035—505 6 -) 
 
 No. 782. 
 
 Ordering Service by Publication upon unknown Heirs— a very 
 complete Entry. 
 
 [Caption!] 
 
 This day came the plaintiff and filed in this court his 
 petition herein, and therefore came the plaintiff and further 
 filed herein an affidavit under the statutes in that behalf and 
 for the purpose of procuring proceedings herein against the 
 unknown heirs of C. A. without naming them, and also an 
 affidavit under the statutes in that behalf for service herein 
 on said unknown heirs by publication. Upon consideration 
 whereof, and being fully advised in the premises, and 
 finding that the heirs of C. A., deceased, are necessary
 
 516 JUDGMENT ENTRIES. 
 
 parties hereto and herein, and that a full and complete deter- 
 mination and adjudication of the questions and issues herein 
 involved can not be had without their presence herein as 
 parties hereto, it is ordered that the action proceed against 
 the heirs of said C. A., deceased, without naming them, and 
 in form and manner as in the petition set forth and as pro- 
 vided by law. And it is therefore further ordered that publi- 
 cation be made by the plaintiffs for the unknown heirs of C. 
 A., deceased, for six consecutive weeks in a newspaper, 
 
 printed, published and of general circulation in said 
 
 county, Ohio, which publication shall contain a summary 
 statement of the object and prayer of said petition, mention 
 the court wherein it is filed, and shall notify said unknown 
 heirs when they are required to answer. And upon compli- 
 ance with the order aforesaid this cause shall proceed against 
 the unknown heirs of the said A. C. , deceased, without nam- 
 ing them, and in all respects as provided by the statutes in 
 that behalf. 
 
 The clerk of this court is ordered to place this entry upon 
 the journal of this court. 
 
 R. S. Sees. 5049, 5050. 
 
 No. 783. 
 
 Ordering Service by Publication where Parties Unknown — Short 
 
 Entry. 
 
 \Ca.ption^\ 
 
 This cause coming on to be heard upon the affidavit 
 of the plaintiff that the residence of the defendant is un- 
 known to plaintiff and can not by reasonable diligence be 
 ascertained, and it appearing to the court by said affidavit 
 that the residence of said defendant is unknown to plaintiff 
 and can not by reasonable diligence be ascertained, it is by 
 the court ordered that service by publicaton be accordingly 
 made as is provided by law, and the mailing of summons and 
 copy of petition herein be dispensed with. 
 
 R. S. Sec. 5053. 
 
 No. 784. 
 Service by Publication Approved. 
 
 [Caption.] 
 
 Now comes the plaintiff by his attorney and offers proof 
 of publication of the pendency and prayer of the petition
 
 SERVICE OF PROCESS. 517 
 
 herein in the {name paper), a newspaper published and of 
 general circulation in county, Ohio, for consecu- 
 tive weeks on and after the day of , 18 — , and the 
 
 court finding the said publication and proof in all respects 
 regular and according to law, and the former orders of this 
 
 court, and that the clerk of this court, on the day of 
 
 , 18 — , did, as required by law, mail marked copies of 
 
 said newspaper containing said notices, addressed, postage 
 paid, to [naming parties), the court does therefore approve 
 the same. 
 
 And the cause coming on to be heard now upon {pro- 
 ceed with regular entr\\ as, for exanple, to quiet title, or 
 whatever it may be). 
 
 No. 785. 
 Service of Summons — Order setting aside. 
 
 [Caption]. 
 
 This day this cause came on to be heard upon the motion 
 of the defendant to set aside and quash the service of sum- 
 mons upon him in this action, and the court being fully 
 advised in the premises, finds that said service of summons 
 upon said defendant was irregular. 
 
 It is therefore ordered and adjudged that the said service 
 and the sheriff's return thereof be and the same are hereby 
 set aside and held for naught. 
 
 This entry may be used in all cases where motion is sustained to set 
 aside of summons and the sheriff's return thereof, as in cases 
 
 where defendant i> not within the jurisdiction of the court, where unau- 
 thorized constructive service has been made, where copy of summons 
 has been left with wrong person, or a1 wrong place <>!" residence, etc. See 
 Kinkead's Code Pleading, Sees. n8, 119. 
 
 No. 786. 
 Service of Summons on Corporation authorized to be made where 
 Officer, Agent or Director is a Nonresident— Under R. S. Sec. 
 5056a. 
 
 [Caption."] 
 
 This- cause came on to be heard on an application of 
 plaintiff for an order authorizing C. EC. to make service of 
 summjons on The C. EC. Co. by delivering to C. EC., the last 
 known presidenl of said company, a copy of said summons, 
 and it being made to appear to the full satisfaction of the 
 court that the defendant, The C. EC. Co., is a corporation 
 
 inized under the laws of the state of < Ihio, owning real and 
 persona] property within the jurisdiction of this court; that
 
 518 JUDGMENT ENTRIES. 
 
 said defendant corporation is a proper party to this action, 
 and that is there no officer, agent or director of said defend- 
 ant corporation within the State of Ohio upon whom service 
 of summons can be made in this action. 
 
 It is therefore ordered that W. B. , a citizen of the state 
 
 of , city of , be and he is hereby authorized to make 
 
 service of summons on said defandant, The C. K. Co., by 
 delivering a copy of a summons in this action upon the said 
 C. K. , the last known president of said company. 
 
 No. 787. 
 
 Entry ordering Case to be heard where part of Defendants are 
 
 served. 
 
 [Caption^] 
 
 This day this cause came on to be heard upon the pleadings, 
 the testimony, and was argued by counsel, and it having been 
 made to appear to the court that the defendant A. B. is 
 jointly indebted with the defendant C. D. on the contract 
 set forth in the petition, that the said A. B. was not served 
 with summons, and he has not otherwise entered his appear- 
 ance herein, and that the court ordered this action to proceed 
 against the said C. D. 
 
 It is therefore considered {here proceed as in other cases). 
 
 Sec. 5054, R. S. 
 
 No. 788. 
 Sheriff granted leave to Amend Return. 
 [Caption^] 
 
 It appearing to the court that the return of the sheriff of 
 his service of summons on the defendant I. C. was inadvert- 
 ently made and that service was not had upon said defendant 
 I. C, she not having been found within this court, leave 
 is hereby granted said sheriff to amend his said return 
 accordingly.
 
 RULES OF PLEADING. 519 
 
 RULES OF PLEADING— 
 
 OF BOTH FORM AND SUBSTANCE— 
 
 ENTRIES REQUIRING 
 
 PLEADINGS TO CONFORM 
 
 THERETO. 
 
 See Motions. 
 
 Under this heading are found entries upon motions going to the form 
 of statement. Under the head of " Motions" will be found other miscel- 
 laneous matters pertaining to motions. 
 
 No. 789. 
 
 Motion to separately state and number and to attach Notes. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the motion of the 
 defendants herein to require the plaintiff to make his petition 
 definite and certain, was argued by counsel and submitted 
 to the court. Upon consideration whereof the said court 
 finds that said motion is well taken and sustains the same; 
 and it is thereupon ordered that the said plaintiff be required 
 to make his petition definite and certain, first, by separately 
 stating and numbering the several causes of action in his 
 said petition set forth; second, by giving copies of the notes 
 in said petition mentioned, with all credits and endorsements 
 thereon. 
 
 And it is further ordered that time be given to said 
 plaintiff to file an amended petition herein by . 
 
 Kinkead'9 Code Pleading, Sec. 20 , Whittaker'a Civil Code, Sec. 5061 
 and do 
 
 No. 790. 
 
 Entry on Motion to separately state and number Amendment 
 
 made at Bar. 
 
 [Caption."] 
 
 This day this cause- came on for hearing upon the motion 
 of defendant to require the plaintiff to separately number 
 
 34
 
 ^20 JUDGMENT ENTRIES. 
 
 her causes of action in the petition and amendment to the 
 petition. In consideration thereof the court do sustain said 
 motion, and by leave of the court the plaintiff is permitted 
 to number the same on the margin of the petition instanter, 
 which is accordingly done. 
 
 No. 791. 
 
 Entry on Motion to separately state and number Defenses in 
 Answer, and to make Definite and Certain combined. 
 
 [Caption.] 
 
 This day this cause came on to be heard on motion of 
 plaintiff, and motion of the defendants A. L. and W. H. P., 
 filed herein, to the answer of the defendant M. E. D., to 
 require said defendant to separately state and number de- 
 fenses, and to make specific and definite, and to strike out, 
 etc., and all matters in said motion contained, and was 
 argued by counsel ; on consideration whereof the court do 
 sustain said motion. Thereupon, on motion of said de- 
 fendant M. E. D., leave is granted tc amend her answer in 
 thirty (30) days after term, and this cause is continued. 
 
 No. 792. 
 
 Ordering substitution of Copies of Original Papers destroyed. 
 
 \Caption.~\ 
 
 It appearing to the court that the hereinafter-named orig- 
 inal papers in this cause were destroyed by the recent burning 
 of the Hamilton county courthouse, to wit: The amended 
 answer, the entry sustaining demurrer to the petition, the 
 entry overruling demurrer to amended petition, the entry 
 sustaining demurrer to the first and third defenses of the 
 amended answer, and the order of revivor, copies of all of 
 which are presented herewith, it is ordered by the court that 
 said copies of said original pleadings and entries be and the 
 same are hereby substituted in the place and stead of said 
 originals, and shall in all respects stand as said originals, and 
 it is ordered by the court that said destroyed entries be re- 
 stored by the clerk of this court on the journal. 
 
 From Longworth v. Cincinnati. Whittaker's Civ. Code, Sec. 5084 and 
 notes. Lost papers. Kinkead's Code Pig., Sees. 64, 65, 70.
 
 RULES OF PLEADING. 521 
 
 No. 793. 
 Substitution of Papers for those lost. 
 
 \CaptionJ\ 
 
 It appearing to the court that the amended petition and 
 the amended answer and counter-claim in this case have been 
 lost, it is hereby ordered, on the application of the parties 
 hereto, that they be allowed to substitute copies thereof. 
 And that said copies be in all respects received instead of 
 such original pleadings. 
 
 Whittaker's Civ. Code, Sec. 5084 and notes. Kinkead's Code Pig., Sees. 
 63-5- 
 
 No. 794. 
 
 Entry of filing Substituted Papers. 
 [Caption.] 
 
 Come now the parties, and the plaintiff now files a sub- 
 stituted petition herein, which petition is in the following 
 words: \here insert.] And it is ordered that said substituted 
 petition shall be taken and in all things stand for the orig- 
 inal petition heretofore filed herein. 
 
 Whittaker's Civil Code, Sec. 5084 and notes. 
 
 No. 795. 
 Motion to strike out Irrelevant Matter in Answer. 
 
 \Captton.~\ 
 
 This cause coming on to be heard upon the motion to 
 strike out from the answer of the defendant filed herein 
 certain irrelevant matter, the court, upon consideration 
 thereof, doth find said motion well taken and doth sustain 
 the same, to which ruling and judgment of the court the 
 
 defendant l>v his counsel excepts, and thereupon, Upon 
 
 motion of the defendant, leave is hereby given the defendant 
 to fik- an amended answer herein by . 
 
 Whittaker's Civ. Code, Sec. 5087 and notes. Kinkead's Code Pldg., 
 Sec. 121.
 
 £>22 JUDGMENT ENTRIES. 
 
 No. 796. 
 
 Motion sustained in part and overruled in part — Entry sustaining 
 motion to strike out interlineations made pending a demurrer. 
 
 {Caption.'] 
 
 This day came the parties hereto, and thereupon this 
 cause came on to be heard upon the motion filed by the 
 defendant herein, and was argued by counsel and submitted 
 to the court. Upon consideration thereof the court doth find 
 that the said interlineation has been made since the demurrer 
 filed by defendant to said original petition was overruled by 
 this court, and the court doth sustain so much of said defend- 
 ant's motion as asks the court to strike out of said amended 
 petition said interlineations, and doth order the same to be 
 stricken out of the petition. 
 
 And the court doth find the remaining branches of said 
 motion not well taken and doth overrule the same. 
 
 Whittaker's Civ. Code, Sec. 5087 and notes. 
 
 No. 797. 
 
 Upon Motion to strike out— Granting same— Amendment filed— 
 Leave granted to answer. 
 
 {Caption.} 
 
 This cause now came on to be heard on the defendant's 
 motion to strike out certain portions of the plaintiff's peti- 
 tion. The said motion having been argued by counsel, the 
 court, after due consideration, grants said motion in part 
 and orders that that portion of the petition beginning on 
 page 2, line 9th, with the words " and although by an ordi- 
 nance," and continuing to and including the words " at such 
 crossing," on page 3, line 4th, thereof, be and the same is 
 hereby stricken from said petition. The court further orders 
 that the words " in accordance with said ordinance of said 
 city council," on lines n and 12, page 3, of said petition be 
 also stricken from said petition. It is ordered that every 
 word and allegation of said petition referring to the said 
 
 ordinance of the council of the city of be and they are 
 
 hereby stricken from said petition ; and thereupon the plaintiff 
 forthwith appeared and made the amendments in said peti- 
 tion according to the order aforesaid, by striking out and 
 interlining the same. It is further ordered that defendant
 
 RULES OF PLEADING. 523 
 
 have to answer said petition within thirty days from date 
 without prejudice to the trial of said case at this term of 
 the court. 
 
 Jacob Langendorf v. Pennsylvania Co., S. C. Whittaker's Civil Code, 
 Sec. 5087 and notes. 
 
 No. 798. 
 
 Upon Motion to strike from Files. 
 
 \Caption.~\ 
 
 This day this cause came on for hearing upon the motion 
 of defendant to strike the petition from the files for reasons 
 set forth in said motion; and the court being fully advised 
 in the premises do sustain said motion, and leave is granted 
 plaintiff to amend his petition in days, and cause con- 
 tinued. 
 
 Kinkead's Code Pleading, Sec. 122. 
 
 No. 799. 
 Order that Pleading be made definite and certain. 
 
 [Caption."] 
 
 This day came the parties, and the court being fully ad- 
 vised herein, sustains the motion of the defendant to make 
 the petition definite and certain. 
 
 It is ordered that within days from this date the 
 
 plaintiff amend his petition by [here state in what respect; 
 see last I : i>r»i ). 
 
 [That in default of such amendment being so made the 
 petition be stricken out.] 
 
 [Meanwhile it is ordered that all further proceedings by 
 the plaintiff be stayed.] 
 
 [That the time for the defendant to answer, demur, or 
 take any other action to which he may be entitled, is ex- 
 truded until the expiration of days after such amended 
 
 petition shall have keen filed. ] 
 
 Note.— Whittaker's Civil Code, Sec. 5088 and notes; Kinkead 
 Plg >( in d Hughe v C ai< ago, etc, Ky. Co., 45 N. V. Super. Ct 114-
 
 524 JUDGMENT ENTRIES. 
 
 No. 800. 
 Withdrawal of Counter-claim or Set-off. 
 
 [Caption.'] 
 
 This day came A. B., defendant herein, and filed his mcK 
 tion herein, asking leave to withdraw the counter-claim [#r, 
 set-off] set forth in his answer herein, and to have the same 
 placed upon the dockets of this court that proceedings may 
 be had therein in this court against the said C. D., without 
 further process. Upon consideration whereof the court grants 
 said motion, said defendant is hereby granted leave to with- 
 draw his said counter-claim, and the clerk of this court is 
 directed to place the same upon the dockets of this court as 
 a new action, and the said defendant A. B. is allowed to pro- 
 ceed therein as a new action against the plaintiff C. D., with- 
 out the issuance of further process. 
 
 Whittaker's Civil Code, Sec. 5089 ; Bryant v. Swetland, 48 O. S. 194, 208. 
 
 No. 801. 
 Motion stricken out from Files — Filed out of rule. 
 
 [Caption.] 
 
 It is ordered by the court that the motion heretofore filed 
 
 herein by the defendant herein on the day of ,18 — , 
 
 be and the same is hereby stricken from the files for the 
 reason that the same was filed out of rule. 
 
 Whittaker's Civil Code, Sec. 5097. 
 
 No. 802. 
 Motion to strike from files for want of verification. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the mo- 
 tion of defendant herein to strike the petition herein from 
 the files for want of proper verification, and the court find- 
 ing said motion to be well taken does sustain the same. 
 And thereupon, upon motion of plaintiff, leave is granted 
 said plaintiff to make a proper verification of said petition 
 at bar. 
 
 Whittaker's Civ. Code, Sec. 5102 and notes.
 
 RULES OF PLEADING. 525 
 
 No. 803. 
 
 Entry sustaining Demurrer to Petition — Granting leave 
 
 to amend. 
 \CaptionJ\ 
 
 This cause came on to be heard upon the demurrer of 
 the defendant to the petition of the plaintiff and was argued 
 by counsel ; on consideration whereof the court sustained said 
 demurrer, to which ruling of the court said plaintiff excepts, 
 and thereupon leave is granted to the plaintiff to file an 
 amended petition herein in thirty days from , 18 — . 
 
 NOTE. — This entry is not a final order; if it be desired to have it 
 made a final order the petition should be dismissed. Overruling a de- 
 murrer, without further order made, is not a final ordex. See Kin- 
 kead's Code Pig., Sec 93, 106. 
 
 No. 804. 
 
 Entry overruling Demurrer to Petition — Granting leave to 
 defendants to answer. 
 [ Caption. ] 
 
 This cause now coming on for hearing upon the de- 
 murrer to the petition filed herein by the defendants, and 
 in consideration thereof the court do overrule said de- 
 murrer, to which ruling of the court the defendants, by 
 their counsel, did at the time except; and thereupon leave 
 is given defendants to answer to the amendment of the 
 petition in days and cause continued. 
 
 Note. — Order overruling demurrer to petition without further order 
 not final. Kinkead's Code Pig., Sec. 93. 
 
 No. 805. 
 Entry sustaining Demurrer and dismissing Action. 
 
 {Caption. ] 
 
 This cause came on to be heard by the court upon the 
 demurrer of the defendant to the amended petition of the 
 plaintiff and was argued by counsel ; on consideration whereof 
 the court sustained said demurrer, to which ruling of the 
 court the plaintiff excepts, and thereupon the plaintiff not 
 desiring to plead further, the court dismissed this cause at the 
 costs of the plaintiff, to which order and judgment of the 
 court the plaintiff excepts. It is therefore considered that
 
 526 JUDGMENT ENTRIES. 
 
 the defendant recover of the plaintiff his costs in this action 
 
 expended, taxed at $ , and that the plaintiff pay her own 
 
 costs, and in default of the payment thereof that execution 
 issue therefor, to all of which rulings, judgment, and order 
 the plaintiff excepts. 
 
 No. 806. 
 Answers to Interrogatories enforced by Default Judgment. 
 
 [ Caption. ] 
 
 This day came A. B., plaintiff herein, and represented 
 that the said defendant had failed to answer the interrog- 
 atories attached to plaintiff's petition and moved the court 
 for judgment by default. The court, upon consideration 
 thereof, orders that the said defendant answer said interroga- 
 tories on or before , 18 — , and that in default thereof 
 
 judgment be taken against him by default as allowed by law. 
 
 This will not enforce itself, but another entry must be made. 48 
 O. S. 681. 
 
 No. 807. 
 Entry of Default Judgment upon Failure to Answer. 
 
 \_Caption.~\ 
 
 This day came the plaintiff, A. B. , and representing to 
 the court that the defendant has failed to comply with the 
 order heretofore made herein, requiring him to answer the 
 interrogatories attached to plaintiff's petition, and the court 
 being satisfied that said defendant has failed to comply with 
 said order, and has failed and neglected to answer said plain- 
 tiff's interrogatories, and upon motion this cause came on to 
 be heard further upon the petition of plaintiff, and the said 
 defendant being in default for answer to the said interroga- 
 tories, the court does find in favor of plaintiff, etc. [Proceed. ]
 
 AMENDMENT OF PLEADINGS. 527 
 
 AMENDMENT OF PLEADINGS. 
 
 No. 808. 
 
 Nunc pro tunc Entry ordering amended Answer, Demurrer and 
 Reply, and Entry overruling Demurrer to amended, to be 
 filed by leave, as of , 18 — . 
 
 [Caption."] 
 
 This cause having come on to be heard upon the 
 
 day of , 18 — , and the defendant having made appli- 
 cation to the court to file an amended answer by adding a 
 second defense to the answer already on file, and having sub- 
 mitted to the court and counsel of plaintiff a copy of said 
 second defense, without verification, it was agreed by both 
 plaintiff and defendant that said cause should proceed as if 
 said amended answer had been verified and filed, and that 
 said answer might be amended and filed after the trial of 
 said cause. 
 
 And thereupon plaintiff made application to file a demur- 
 rer to said second defense on the ground that it did not state 
 facts sufficient to constitute a cause of action, and it was 
 agreed by both plaintiff and defendant that said demurrer 
 should be considered as filed, and that plaintiff could actually 
 file the same after the trial. 
 
 And the court having overruled said demurrer, plaintiff 
 made application to the court for leave to file a reply denying 
 the allegations of said second defense, and it was agreed l>v 
 plaintiff and defendant that said cause- should proceed as if 
 said reply had been verified and filed, and thai plaintiff should 
 be permitted after the trial to verify and file the same. 
 
 And the parties herein now presenting to the court an 
 amended answer duly verified, a demurrer to the second de- 
 of said amended answer, an entry overruling .said de- 
 murrer, and a reply to said amended answer, duly verified, 
 it is hereby ordered by and with the consent of both parties 
 herein, that the same be, and the) are hereby ordered to be 
 filed as of the day of , A. I)., [8 — . 
 
 1 :'-iii Cincinnati Times-Star Co. v, Kahn, Hamilton Co.
 
 528 JUDGMENT ENTRIES. 
 
 No. 809. 
 
 Order amending Summons. 
 [Caption.'] 
 
 This cause coming on for hearing upon the motion of 
 plaintiff herein for an order amending the summons [or 
 whatever it may be, R. S. Sec. 51 14] herein, the court, upon 
 careful consideration thereof, doth sustain said motion, and 
 orders that said summons be and the same is hereby amended 
 by striking therefrom the name of A. B. as defendant herein, 
 without prejudice to the proceedings [or, by striking from 
 the summons the words ' ' John Jones ' ' used therein to 
 designate a party defendant herein, and inserting in lieu 
 thereof the correct name of said party, to wit, George Jones, 
 without prejudice to the proceedings already had, and that 
 all subsequent proceedings be taken under said correct name.] 
 
 Whittaker's Civil Code, Sec. 51 14 and notes. 
 
 No. 810. 
 
 Amendment to conform Pleadings to Proof — Refused. 
 
 [Caption.] 
 
 Defendant H. S., administrator, and A. B. L., guardian, 
 moved the court, after the argument was concluded and be- 
 fore the jury was charged, for leave to file an amendment to 
 their pleadings, respectively, by stating therein the various 
 amounts advanced by the plaintiffs on account of the purchase 
 and payment of premiums on said policy, and all other ex- 
 penses incident thereto, and praying the court that if judg- 
 ment is rendered in favor of either of them, that the court 
 find as to said amount, and decree to the plaintiffs out of 
 said judgment said sums so advanced. 
 
 Which motion the court overrules, to which the said de- 
 fendants except. 
 
 Kinkead's Code Pleading, p. 123. 
 
 No. 811. 
 
 Amendment to Cure Material Variance. 
 
 [Caption.] 
 
 This cause coming on this day to be further heard upon 
 the pleading and evidence before the court and jury, and the
 
 AMENDMENT OF PLEADINGS. 529 
 
 defendant having raised the objection that there is a variance 
 between the allegations of plaintiff's petition and the proof 
 adduced prejudicial to said defendant, and the court upon 
 consideration thereof finds that there is a material variance 
 between allegation and proof which is prejudicial to the de- 
 fendant, it is therefore ordered that said cause be continued 
 at the costs of plaintiff ; and the plaintiff is hereby granted 
 leave to amend his petition by . 
 
 Whittaker's Civil Code, 5294 and notes. 
 
 No. 812. 
 
 Upon motion in open court to strike out to conform Petition to 
 
 Testimony. 
 [Caption.] 
 
 Upon motion of plaintiff in open court to conform peti- 
 tion to the testimony, it is ordered that said motion be 
 
 granted, and that the words and , where they occur 
 
 in the petition, be and the same are hereby stricken out of 
 said petition, to all of which the defendant excepts. 
 
 No. 813. 
 Amendment to conform to Proof allowed. 
 
 [ Caption. ] 
 
 It is ordered that the plaintiff have leave to amend his 
 petition so as to conform with the proofs or case as made by 
 the plaintiff upon trial ; and that the petition be filed and 
 included in this case, which is accordingly done.
 
 530 JUDGMENT ENTRIES. 
 
 MOTIONS. 
 
 See Rules of Pleading. 
 
 No. 814. 
 
 Motion overruled — Grounds waived by not including same in 
 former Motion. 
 [Caption], 
 
 This day the motion of the defendant, filed , 18 — , 
 
 came on to be heard, and the court, having heard the argu- 
 ments of counsel and being fully advised in the premises, finds 
 that said motion is not well taken ; that the defendant has 
 heretofore filed a motion herein to the petition in this cause on 
 
 the day of , 18 — , and did not include therein the 
 
 grounds now contained in the motion now upon hearing, 
 and that said defendant thereby waived his right to make the 
 motion herein by the filing of said former motion to the petition 
 by failing to include therein the matter in this motion, and the 
 court overrules the same. Leave is given the defendant 
 to answer, etc. 
 
 No. 815. 
 
 Entry upon motion — Motion to answer — Sustaining it — Granting 
 leave to withdraw Pleadings and file Amended Pleadings. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the motion of 
 plaintiffs to the amended answer and cross petition of E. S. 
 and was argued by counsel, whereupon the court finds the 
 said motion to be well taken. It is therefore considered that 
 the said motion be and the same is hereby sustained, and said 
 E. S. is, on her motion, granted leave to withdraw from the 
 files her original and amended answer heretofore filed herein 
 and to file amended pleadings in fifteen days from this date. 
 To which ruling of the court defendant excepts.
 
 MOTIONS. 531 
 
 No. 816. 
 Entry on Motion to set aside Judgment rendered against Minors. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard on motion to 
 set aside the order and judgment herein rendered at the last 
 term of this court. And it appearing to the court that said 
 order and judgment was irregularly taken in this, to wit: 
 That one of said defendants was a minor under the age of 
 majority, and not served with process in this action, and not 
 represented by guardian, nor by guardian ad litem, the said 
 judgment is therefore hereby vacated, set aside and held for 
 naught. 
 
 No. 817. 
 On Motion to set aside former Entry. 
 
 [Caption.] 
 
 This day the cause came on to be heard by the court, on 
 the motion of the plaintiff to set aside the order and journal 
 
 entry made in this case on the day of , 18 — , and 
 
 the court having been fully advised in the premises, it is 
 ordered by the court that said order and journal entry be set 
 aside, and that said cause be reinstated on the docket and 
 the question of costs is assessed. 
 
 No. 818. 
 
 Upon Motion to set aside Judgment for Costs. 
 
 \C apt ion.} 
 
 And this cause now coming on for hearing upon the 
 motion of the defendant to set aside the judgment for costs 
 tofore rendered herein, the same was argued by counsel 
 and submitted to the court. On consideration whereof the 
 court, being fully advised in the premises, sustained said 
 motion. It is therefore considered by tin court that the 
 judgmenl for costs heretofore rendered herein against the 
 said defendant be and the same is hereby vacated and set 
 aside, to which ruling and judgment ol the court in sustain- 
 in- said motion and setting aside said judgment for costs 
 
 the plaintiff by counsel excepts.
 
 532 JUDGMENT ENTRIES. 
 
 No. 819. 
 
 Upon Motion to withdraw ground of Motion — and upon Motion 
 to separately state and number. 
 
 [ Caption. ] 
 
 On motion leave is given to the plaintiff to withdraw the 
 second ground of his motion herein, and the same is with- 
 drawn, and this cause now coming on for hearing on motion 
 of the plaintiff to require the defendant to separately state 
 and number the defenses set forth in his answer herein, the 
 same was argued by counsel and submitted to the court. On 
 consideration whereof the court being fully advised in the 
 premises overruled said motion, to which ruling of the court 
 the plaintiff by counsel excepts. 
 
 No. 820. 
 Upon Motion to Strike Depositions from Files. 
 
 [Caption.'] 
 
 This cause coming on for hearing upon the plaintiff's 
 motion to strike from the files the depositions heretofore filed 
 on behalf of the defendant, the plaintiff, on her own motion, 
 is allowed so to amend the affidavit of service of notice for 
 taking said deposition as to " 20th" for " 21st" in the date 
 of taking said deposition. Thereupon said motion is sustained 
 by the court ; to which the defendant excepts. 
 
 No. 821. 
 
 Consolidation of Actions. 
 [Caption."] 
 
 On motion of defendant M. S., it is by the court ordered 
 
 that cause number , entitled M. S., plaintiff, v. F. J., 
 
 defendant, be and the same is hereby consolidated with the 
 above-entitled cause, and that they be heard and considered 
 together. 
 
 R. S. Sec. 5120. This is usually made on motion.
 
 TIME OF TRIAL — CONTINUANCE. 533 
 
 TIME OF TRIAL-CONTINUANCE. 
 
 (i?. S. Sees. 5132— 5136.) 
 
 No. 822. 
 Order on riling Affidavit for a Continuance. 
 [Caption.] 
 
 Now come the parties, and the defendant now moves the 
 court for a continuance of the cause until the next term of 
 this court [or, until the day of , 18 — ], and in sup- 
 port thereof files and submits his own affidavit.* Wherefore 
 the plaintiff admits that the witness H. I., named in said 
 affidavit, would, if present, testify to the facts stated in said 
 affidavit as true [or, in case of absent documentary evidence, 
 or evidence in a criminal cause, consents that the evidence 
 set out in said affidavit shall be taken as true]. 
 
 And the court, because of said admission, now overrules 
 said motion for a continuance [to which the defendant ex- 
 cepts]. 
 
 [Or, after* : And the plaintiff refusing to admit that said 
 witness H. I., named in said affidavit would, if present, tes- 
 tify to the facts stated in said affidavit as true [or, refusing to 
 consent that the evidence in said affidavit shall be taken as 
 true, in case of absent documentary evidence, or in a criminal 
 casc,~\ the court now sustains said motion, to which the 
 plaintiff now excepts. 
 
 It is therefore ordered that this cause be continued until 
 
 the next term of this court [or, until the day of , 
 
 18 — J, (at the costs of the defendant.)]. 
 
 Whittaker's Civil < (136 and notes. 
 
 No. 823. 
 
 Cause Postponed for Future Assignment. 
 
 ( < 'option. \ 
 
 This day this cause coming on to be heard upon the 
 assignment thereof, the same is postponed for future- assign- 
 incut upon tli> application of A. P. at this term of court.
 
 534 JUDGMENT ENTRIES. 
 
 No. 824. 
 Ordinary Entry of Continuance. 
 
 [Caption.'] 
 
 This day this cause came on to be heard by the court, on 
 motion of the plaintiff for a continuance, and the court hav- 
 ing been fully advised in the premises, said motion is 
 granted, and cause continued to next term of this court. 
 The costs of this term to be taxed to the plaintiff. It is 
 therefore considered that said defendants recover of said 
 plaintiff their costs of this action for the term taxed by the 
 clerk at $ . 
 
 TENDER AND OFFER. 
 
 (R. S. Sees. 5137— 5H3-) 
 
 No. 825. 
 Tender of money before suit, R. S. Sec. 5137. 
 
 \C option J\ 
 
 This cause came on to be heard upon the pleadings, the 
 evidence, and was argued by counsel to the court, the parties, 
 by consent, having waived trial by jury, and being fully 
 advised in the premises, the court finds that the defendant, 
 as set forth in his answer, did tender plaintiff * the sum of 
 
 $ on said contract, before the commencement of this 
 
 action, and that said defendant paid to the clerk of this court, 
 before trial herein, the sum thus tendered. 
 
 It is therefore considered by the court that said plaintiff 
 
 recover of said defendant the sum of $ , and that said 
 
 clerk out of the money in his hands pay first the costs of this 
 
 action taxed at $ , and the remainder of said sum to 
 
 plaintiff in satisfaction of his said judgment 
 
 Whittaker's Civil Code, Sec. 5137 and notes.
 
 TENDER AND OFFER. 535 
 
 No. 825+. 
 Tender of performance of labor and service. 
 
 [Proceed as in No. 825 to *, then state :] 
 
 said labor and service on said contract, and that 
 said labor and service was of the value of $ . 
 
 It is therefore considered by the court that plaintiff 
 
 recover from the defendant the said sum of $ without 
 
 interest or cost. 
 
 Whittaker's Civil Code, Sec. 5138 and note. 
 
 No. 826. 
 
 Entry Allowing Defendant to Perform Contract after Tender 
 Proved— Under R. S. Sec. 5138. 
 
 [Caption.] 
 
 This cause came on to be heard on the petition of plain- 
 tiff, the answer thereto — a jury having been waived — and the 
 court being fully advised in the premises finds that on the 
 
 day of 18 — , defendant did, as alleged in his 
 
 answer, tender full performance of said contract, and that 
 defendant is now ready and willing to perform the same 
 forthwith, it is therefore considered by the court that if said 
 defendant delivers said articles of personal property \or, per- 
 forms said labor] within days, he go hence without day 
 
 and recover from the plaintiff his costs. 
 
 Whittaker's Civil Code, Sec. 5138 and note. 
 
 No. 827. 
 Tender of Article or Thing other than Money — R. S. Sec. 5138. 
 
 \CapHon.~\ 
 
 \Proceed as in No. 825 to *, then Uate\ said articles of 
 personal property on said contract at the time and place 
 therein agreed upon, and that said articles of personal prop- 
 erty arc of the value of % . 
 
 It is therefore considered by the court that plaintiff re- 
 cover from the said defendant the sum of said $ , with- 
 out interest or costs. 
 
 Whittaker's Civil ( • , 1 38 and
 
 536 JUDGMENT ENTRIES. 
 
 No. 828. 
 
 Tender — Offer to Confess Judgment before Action — Under 
 R. S. Sec. 5139. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and testimony, and a jury having been waived by the 
 consent of the parties hereto, and the court being fully ad- 
 vised, finds that, prior to the bringing of this action, the de- 
 fendant duly notified plaintiff that on the day of , 
 
 18 — , he would appear in the Court of Common Pleas of 
 
 county, Ohio, and offer to confess judgment in favor of 
 
 plaintiff for the sum of $ — ; that said plaintiff appeared at 
 said time and place [or, failed to appear, as the case may be\ 
 and refused to accept said confession of judgment. 
 
 It is therefore considered that plaintiff recover of said de- 
 fendant said sum of $ — , without interest or costs. 
 
 No. 829. 
 Tender — Offer to confess out of Court, under R. S. Sec. 5140. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the pleadings, the 
 testimony and argument of counsel, a jury having been 
 waived by consent of parties, the court finds, that the de- 
 fendant served, in writing, an offer to allow judgment to be 
 taken against him, and in favor of plaintiff in the sum of 
 $ ; that said plaintiff did not, within five days there- 
 after, notify defendant or his attorney, an acceptance of said 
 offer to confess judgment in said sum. 
 
 It is therefore considered by the court that plaintiff 
 
 recover from defendant said sum of $ without interest 
 
 or costs. 
 
 No. 830. 
 
 Tender and offer to confess in Open Court under 
 R. S. Sec. 5141. 
 \Caption.~\ 
 
 This cause came on to be heard upon the pleadings, 
 the testimony and argument of counsel, a jury, by con- 
 sent of parties, having been waived, and the court being
 
 TENDER AND OFFER. 537 
 
 fully advised in the premises, finds that on the day 
 
 of , 1 8 — , defendant in open court offered to confess 
 
 judgment in this action for the sum of $ , in favor of 
 
 plaintiff, which the said plaintiff refused to accept, and 
 that there is due plaintiff from the defendant the sum 
 
 of $ . 
 
 It is therefore considered that plaintiff recover from the 
 
 defendant the sum of $ , and the same being less than 
 
 the amount for which defendant offered to confess judg- 
 ment, it is further considered that defendant recover from 
 
 plaintiff the costs of this action made since , the time 
 
 of said offer to confess judgment, taxed at $ . 
 
 No. 831. 
 
 Tender — Offer and Acceptance under R. S. Sec. 5 141. 
 
 [Caption.^ 
 
 This day came the parties herein, and it appearing to 
 the court that on the day of , 18 — , the defend- 
 ant served an offer in writing upon plaintiff, to confess judg- 
 ment in favor of said plaintiff in the sum of $ ; that 
 
 plaintiff accepted said offer to confess judgment as aforesaid, 
 giving notice thereof to defendant within five days after 
 service of said offer. It is therefore considered that the 
 plaintiff, J. D., recover from the defendant, J. D. B., said 
 sum of $ , and his costs herein expended, taxed at $ . 
 
 No. 832. 
 Verdict of Jury after tender proved under R. S. Sec. 5138. 
 
 [Caption.] 
 
 This day came the parties herein by their attorneys, also 
 came the following-named persons as jurors, to wit : [naming 
 them\ regular jurors tothis term, who were duly impaneled and 
 sworn according to law, and thereupon the case came on for 
 hearing on the pleadings and the evidence. And said jury 
 
 having heard the testimony, the argument of counsel and 
 charge of the court, retired to their room in charge of the 
 sheriff for deliberation. 
 
 And now com< 3 said jury into open court with their ver- 
 dict in writing, signed by their foreman, and say:* 
 
 We, the jury, being duly impaneled and sworn, find 
 that the defendant did, on the day of , 18 — , tender
 
 538 JUDGMENT ENTRIES. 
 
 plaintiff payment on said contract the sum of $ , and that 
 
 before the trial of this action pay to the clerk of this court 
 
 the said sum of $ , and we assess the amount due plaintiff, 
 
 J. D. , from defendant, J. W. , the sum of $ . 
 
 JUDGMENT ON ABOVE VERDICT. 
 
 The jury in this action having at a former day of this 
 term returned a verdict in favor of plaintiff, J. D., and 
 
 against the defendant, J. W., in the sum of $ , said sum 
 
 being no more than the amount tendered plaintiff by defend- 
 ant and paid into court and no motion for a new trial having 
 been filed herein [or, the motion for new trial having been 
 overruled], it is therefore considered by the court that the 
 clerk, out of the money in his hands, pay the costs in this 
 action taxed at $ , and the remainder of said sum, amount- 
 ing to $ , to plaintiff, J. D. 
 
 Whittaker's Civil Code, Sec. 5137 and notes. 
 
 No. 833. 
 
 Verdict of Jury after tender of Chattels or performance of Labor 
 under R. S. Sec. 5138. 
 [ Caption. ] 
 
 [Proceed as in above No. 832 to *, then state as follows :] 
 We, the jury, being duly empaneled and sworn, find 
 that the defendant did tender plaintiff said articles of per- 
 sonal property [or, such work and labor, as the case may be] 
 on said contract at the time and place therein agreed upon, 
 and we do assess the value of said personal property [or, 
 
 such labor and material, as the case may be, at $ J at 
 
 $ . We do further find that there is due plaintiff, C. D., 
 
 from the defendant, F. W. L. , the sum of $- 
 
 [Judgment on above verdict will be as follows :] 
 The jury in this action having at a former day of this 
 term returned a verdict in favor of plaintiff and against 
 
 defendant in the sum of $ , finding in their verdict that 
 
 the assessed value of the property [or, labor and work, as 
 
 the case may be], was $ , and no motion for new trial 
 
 having been filed [or, the motion for new trial filed herein 
 having been overruled, as the case may be], it is therefore 
 considered by the court that plaintiff, C. D., recover from 
 
 the defendant, F. W. L., the sum of $ without interest 
 
 or costs. 
 
 Whittaker's Civil Code, Sec. 5138 and notes.
 
 TENDER AND OFFER. 539 
 
 No. 834. 
 Verdict of Jury after offer to confess Judgment in open Court. 
 [Caption. ] 
 
 [Proceed as in above. No. 832 to *; then state as follows :\ 
 
 We, the jury, being duly impaneled and sworn, find 
 
 that prior to the bringing of this action the defendant duly 
 
 notified plaintiff that on the day of , 18 — , he 
 
 would appear in the court of common pleas of county, 
 
 Ohio, and offer to confess judgment in favor of plaintiff for 
 
 the sum of $ ; that said plaintiff appeared at said time 
 
 and place [or, failed to appear, as the case may be], and 
 refused to accept said confession of judgment, and that there 
 
 is due plaintiff from said defendant the sum of $ . 
 
 [Judgment on the above verdict will be as follows ;] 
 The jury in this action having at a former day of this 
 term returned a verdict in favor of plaintiff and again.' t the 
 
 defendant in the sum of $ , finding in their verdict that 
 
 the defendant had offered to confess judgment in open court 
 for a sum more than the amount so found due, and no mo- 
 tion for a new trial having been filed [or, the motion filed 
 herein for a new trial having been overruled, as the case may 
 be], it is therefore considered by the court that plaintiff re- 
 cover from said defendant said sum of $ without inter- 
 est or costs. 
 
 No. 835. 
 
 Verdict finding for a Sum less than Amount Tendered. 
 
 [Caption. ] 
 
 I Pi oceed as in above No. 832 to *, tin n state as follows :\ 
 
 We, the jury, being duly impaneled and sworn, find 
 that the defendant did not tender to plaintiff the payment of 
 
 $ on the contract set up in the petition, and we do assess 
 
 the damages of plaintiff at . c . 
 
 I Judgment on the above . < rdict will be A 
 
 The jury in this action having at a former day of this 
 term returned a verdict in favor of plaintiff and against tin- 
 defendant in the sum of S , and no motion for a new- 
 trial having been filed [<>>\ the motion for a new trial having 
 been overruled, as the case may be] it is therefore considered 
 by the court that plaintiff recovei from the defendant the 
 sum of % . and his costs herein expended, taxed at $ . 
 
 This form may be used in all cases where the v< rdi< 1 oi the jury is for 
 a less sum than was tendi r< ■! "i where tin 1. i .1 verdii I that uo tendi 1 
 made.
 
 540 JUDGMENT ENTRIES. 
 
 No. 836. 
 
 Entry tendering Amount — And of Payment of Amount admitted 
 due into Court — Discharging Defendant from Liability. 
 
 [Caption.~\ 
 
 Comes now the N. Y. L. I. Co. in open court, by F. & F., 
 its attorneys, and in obedience to the order heretofore made 
 herein, requiring said company to deposit in this court the 
 
 sum of $ , admitted by said company to be due on a policy 
 
 of life insurance, issued by it , 18 — , on the life of W. 
 
 H. L. , now deceased, numbered , the sum to remain in 
 
 the custody of this court to abide the further order of the 
 
 court ; the said company does now deposit said sum of $ 
 
 in the court, and the said company is now forever discharged 
 from all liability on said policy to the plaintiffs herein, to 
 wit, L. F. C. and W. B. W., administrator of the estate of 
 H. L. M., deceased, and to the defendants herein, to wit, H. 
 S., administrator of the estate of W. B. L. ; A. B. L., as guard- 
 ian of W. B. L. and P. S. L. , and J. L. , and to each of them, 
 and the said N. Y. h. I. Co. is now given judgment herein 
 for its costs, and this cause is continued as to the said plain- 
 tiffs and defendants. 
 
 It is further ordered that said policy be canceled by the 
 clerk of this court, and held for use in evidence in this cause, 
 and on the final disposition of this cause said policy shall be 
 delivered to the said N. Y. L. I. Co. 
 
 Sabin v. Corcoran, S. C, Greene Co. 
 
 No. 837. 
 
 Entry in Appeal Case — Costs — Entry finding Costs where tender 
 is made before Justice of the Peace and amount recovered not 
 equal to the amount recovered. 
 
 \Caption.~\ 
 
 This cause coming on this day for hearing, a jury having 
 been expressly waived by each of the parties, was submitted 
 to the court upon the petition, answer, and the evidence, and 
 upon due consideration thereof the court finds that there is 
 due, owing and unpaid, the said plaintiff from the said 
 
 defendant the sum of $ , but the court finds further that 
 
 before this cause was tried in the court of the Justice of the 
 Peace, from which appeal was taken to this court, the said 
 defendant offered in writing to pay the said plaintiff in full
 
 REVIVOR OF ACTIONS. 541 
 
 of his said claims the sum of $ , in accordance with the 
 
 provisions of the statute therefor provided, which offer the 
 said plaintiff refused to accept and the aforesaid cause was 
 tried. 
 
 It is therefore considered by the court that the defendant 
 
 recover from plaintiff the said sum of $ , that he recover 
 
 from plaintiff his costs expended in said case before said 
 
 Justice taxed at $ , and his costs herein expended, taxed at. 
 
 $ , for all of which execution is awarded. 
 
 REVIVOR OF ACTIONS. 
 
 No. 838. 
 
 Entry of Abatement of Action. 
 
 [Caption.] 
 
 It having been made satisfactorily to appear to the court 
 that the plaintiff in this action has deceased since the com- 
 mencement thereof, and that it is not such an action as 
 survives the death of either party, it is [or, upon motion of 
 defendant] ordered that said action be dismissed. 
 
 R. S. Sec. 5144. Actions for slander, malicious prosecution, nuisance, 
 or one against a Justice of the Peace for misconduct in office, abate. 
 
 No. 839. 
 
 Order of Revivor of Action in Name of Personal Repre- 
 sentative by Consent. 
 [Caption.] 
 
 It appearing to the court that since the filing of the peti- 
 tion in this cause the said J. U, one of the plaintiffs herein, 
 has departed this life, and tli.it X. L., I- A. and J. I), have 
 been duly appointed and qualified by the Probate Court of 
 
 county as executors Of the last will and testament of 
 
 J. L,., and all parties her* enting, and this action being 
 
 one which survives the death of either parte, it is hereby, on 
 motion of T. Mel)., Esq., ordered that this action do stand 
 revived in the names of said X. L.. L. A. and J. D.,asex- 
 ecut< [foresaid, and do proceed in their favor. 
 
 Whittaker's Civil Code, Sec. 5148 and notes; Kinkead'a Code Pleading, 
 
 Sees. 1107-im.
 
 542 JUDGMENT ENTRIES. 
 
 No. 840. 
 Entry of Revivor in Name of Successor. 
 
 \Ca,ptionJ\ 
 
 It appearing to the court that G. W. Y., assignee of 
 C. & S. , insolvent debtors, has departed this life since the 
 commencement of this action, and that T. C. R. has been 
 appointed his successor in said trust, it is hereby ordered that 
 this cause stand revived in the name of said T. C. R. , trustee, 
 in trust of C. & S. , and that the same proceed in his favor. 
 
 Greer v. Howard, 41 O. S. 591. 
 
 No. 841. 
 Entry of Revivor in Name of Successor (Defendant) when Ad- 
 ministrator is Removed or Resigned. 
 
 \Caption.~\ 
 
 It appearing to the court that A. D. , administrator of the 
 estate of C. D., deceased, defendant herein, has been re- 
 moved [or, resigned] as such administrator, and that C. S. W. 
 has been appointed administrator de bonis non of such estate, 
 it is therefore upon motion of plaintiff ordered that this 
 •cause stand revived in the name of said C. S. W., as admin- 
 istrator de bonis non of the estate C. D., deceased, and that 
 the same proceed against said C. S. W. as such adminis- 
 trator. 
 
 R. S. Sec. 5148 ; In re Estate of A. N. Dunham. 
 
 No. 842. 
 
 Conditional Order of Revival. 
 
 [ Caption. ] 
 
 This day came the plaintiff by M. & B., his attorneys, 
 and suggest to the court that F. V. has died since the com- 
 mencement of this action, and the court being satisfied there- 
 of, upon motion of plaintiff orders that unless the parties 
 
 therein shall within days after service of a copy of 
 
 this order show some cause why this action should not be 
 revived, that said cause shall stand revived in the name of 
 V. L-, the only child and heir at law of said F. V., deceased.
 
 REVIVOR OF ACTIONS. 543 
 
 Whittaker's Civil Code. Sec. 5149 and notes. 
 
 The conditional order may be made upon motion of the adverse party, 
 or of the representative. R. S. Sec. 515 1. 
 
 A certified copy of this entry should he served by the sheriff as other 
 process. R. S. Sec. 5152. See Kinkead's Code Pleading, Sees. 1107-iin. 
 
 The order is served in the same manner as a summons, and the time 
 within which the parties must show cause against revivor should he with- 
 in a reasonable time after the return of the order, which is the second 
 Monday after the Saturdav of the week the order is issued. R. S. Sees. 
 5152, 5039. 
 
 No. 843. 
 Ordering service by Publication of conditional order of Revivor. 
 
 [Caption.] 
 
 This day came the plaintiff [or, A. B., administrator of 
 C. D., deceased,] and filed herein his affidavit, alleging that 
 E. F., one of the defendants herein, has died since the com- 
 mencement of this action, and that G. H. and I. J. are his 
 legal representatives; that said G. H. and I. J. are non-resi- 
 dents of the state [or, have left the state to avoid the service 
 of the order, etc. R. S. Sec. 5153]. Upon motion of said 
 plaintiff it is ordered that he cause a notice to be published 
 according to law, notifying said G. H. and I. J. to appear on 
 
 the day of , 18 — , and show cause why the action 
 
 should not be revived against them, and that unless they 
 show sufficient cause to the contrary the action shall stand 
 revived. 
 
 Whittaker's Civil Code, Sec. 5153. 
 
 No. 844. 
 
 Entry Reviving cause in name of Administrator upon service 
 of conditional order. 
 
 [Caption, j 
 
 Now comes the said A. I;. D., and it appearing to the 
 court that the conditional order of revivor hereinbefore 
 
 made has been duly served upon the said C. S., and no 
 
 cause being shown against said revivor, it is hereby ordered 
 
 that this action .stand revived in the name of \Y. II. D., and 
 that it proceed against him.
 
 544 JUDGMENT ENTRIES. 
 
 No. 845. 
 
 Entry of Filing supplemental Pleading for Revivor of 
 Action by Plaintiff. 
 
 [Caption.] 
 
 This day came A. B. , administrator of the estate of C. 
 D. , deceased, and by leave of court forthwith filed herein a 
 supplemental pleading, alleging that C. D., plaintiff herein, 
 has died since the commencement of this action, and it 
 appearing that this action is one which survives to the 
 personal representative of the plaintiff, it is ordered that the 
 same stand revived in the name of said A. B., as adminis- 
 trator of the said C. D., deceased, and that the same proceed 
 in his favor. 
 
 R. S. Sec. 5149. 
 
 No. 846. 
 
 Entry of Filing of supplemental Pleading by Plaintiff for Re- 
 vivor of Action against Heirs — Conditional order of Revivor. 
 
 [Caption.] 
 
 This day came the plaintiff herein, and upon leave of 
 court filed a supplemental pleading herein, alleging that C. 
 D. , the defendant herein, has died since the commencement 
 of this action, and that he died leaving the following heirs, 
 to wit : [names.] 
 
 It is therefore ordered that unless said parties, heirs afore- 
 said of C. D., deceased, shall, within days after this order 
 
 has been served upon them, appear and show cause why this 
 action shall not stand revived against them, that the same 
 shall so stand revived against them. 
 
 R. S. Sees. 5149, 5155, 5156. 
 
 No. 847. 
 
 Entry of Dismissal of Action when not Revived against 
 Defendant. 
 
 [Caption.] 
 
 It appearing to the court, from the affidavit of , that 
 
 C. D. , defendant herein, has been dead for a period so long 
 that the action can not be revived in the name of his repre- 
 sentative unless the parties consent hereto, and said parties
 
 costs. 545 
 
 not having consented to a revivor of said cause the same is 
 hereby ordered to be stricken from the docket. 
 
 R. S. Sec. 5159. 
 
 No. 848. 
 
 Entry of Dismissal when Plaintiff Dies and Action is not 
 
 Revived. 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation of the defendant to have this cause dismissed, and it 
 appearing to the court that A. B., plaintiff herein, died on the 
 
 day of , 18 — , at a former term of this court, and 
 
 that this action has not been revived in the name of the per- 
 sonal representative, and that due notice has been given to 
 plaintiff's representatives of this application, it is ordered that 
 said cause be stricken from the docket and that defendant 
 recover his costs herein expended from the estate of said A. B., 
 deceased. 
 
 R. S. Sec. 5160. 
 
 COSTS. 
 
 No. 849. 
 Motion for Security for Costs. 
 
 \CapHon."\ 
 
 This day this cause came on to be heard on the motion 
 of the defendant to require the plaintiff to give security for 
 costs on the ground that said plaintiff is a non-resident 
 of thiscounty; and upon consideration thereof the court finds 
 said motion to be well taken and therefore sustains the same. 
 It is ordered that said plaintiff give security for costs to the 
 
 satisfaction of the clerk of this court within days from 
 
 the date of this entry.
 
 546 JUDGMENT ENTRIES. 
 
 No. 850. 
 Order for additional Security for Costs. 
 
 [Caption."] 
 
 Come now the parties, and it appearing to the court by 
 the affidavit of C. D. that the security heretofore given by 
 the plaintiff for costs is insufficient, it is ordered that he 
 give an additional undertaking for costs, with sufficient secu- 
 rity, on or before the day of the present term of this 
 
 court. 
 
 No. 851. 
 Order of Dismissal for failure to give Security for Costs. 
 
 [Caption.] 
 
 Come now the parties, and the plaintiff having failed 
 [or, refused] to give a bond to secure the costs herein as 
 heretofore ordered by the court, it is ordered that this cause 
 be dismissed at his costs. 
 
 [Judgment for costs.] 
 
 Note.— Sec. 8580. 
 
 No. 852. 
 Entry upon Motion to Retax Costs. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the motion to 
 retax the costs herein, and the court having heard the evi- 
 dence, orders that the clerk retax the costs in this case, 
 charging to the plaintiff the cost of the witnesses R. N., R. 
 M., V. X., V. W., W. V., B. A., D. C. and F. E., and also the 
 costs of filing the answer to the second paragraph of the 
 petition, the reply to said answer, and the order-book 
 entries with reference to said answer and reply, and that 
 execution issue accordingly.
 
 APPOINTMENT OF STENOGRAPHER. 547 
 
 APPOINTMENT OF STENOGRAPHER. 
 
 No. 853. 
 
 Appointment of Stenographer. 
 
 [Cap/ ion. ] 
 
 This day, upon application of the plaintiff, it is ordered 
 by the court that upon said plaintiff's entering into a bond 
 to the satisfaction of the clerk of this court, A. C, one of 
 the official stenographers of this court, be and he is hereby 
 appointed to report the testimony in this case, and the same 
 is accordingly so done; and it is further ordered that the per 
 diem fee of the stenographer aforesaid be taxed in with the 
 costs in this case as part thereof. 
 
 No. 854. 
 Appointment of Stenographer — Another Form. 
 
 [ Caption. ] 
 
 Upon application of the defendant the services of J. F. 
 J., an official stenographer, arc granted upon condition that 
 satisfactory security be given for the per diem fees of said 
 stenographer, and R. B. S. being offered as security the 
 court approves the same.
 
 54S JUDGMENT ENTRIES. 
 
 TRIAL BY JURY— FORMAL ENTRIES. 
 
 Note. — Most of the entries under this heading are mere formal one9 
 which are prepared by the clerk. 
 
 No. 855. 
 
 Entry ordering second Petit Jury. 
 [Caption."] 
 
 The court deeming it necessary to have two petit jurors 
 [or, to have a new petit jury ; or, to have members to fill up 
 
 the regular panel], it is therefore ordered that jurors be 
 
 drawn from the box, and that a venire therefor forthwith 
 issue, requiring them to appear on the — day of , 18 — % 
 
 R. S. Sec. 5172. 
 
 No. 856. 
 
 Entry ordering Venire for Talesmen. 
 
 [Caption.] 
 
 The regular panel of the jury not being full, upon motion 
 
 of the following names are selected by the court as 
 
 talesmen [names], and it is ordered that a venire issue for such 
 persons to appear forthwith [or, such time as court may 
 require]. 
 
 R. S. Sec. 5173. 
 
 No. 857. 
 
 Entry of Impaneling Jury — Partial Hearing and Continuance. 
 
 [Caption.] 
 
 This day came the parties herein, by their attorneys, also 
 
 came the following-named persons as jurors, to wit : , 
 
 who were duly impaneled and sworn according to law; and 
 thereupon this case came on for hearing on the pleadings and 
 evidence, and said jury having heard the testimony adduced, 
 in part, were duly cautioned and discharged until the coming 
 in of court tomorrow morning.
 
 TRIAL BY JURY — FORMAL ENTRIES. 549 
 
 No. 858. 
 
 Order to Jury to View Premises. 
 [Caption.] 
 
 On motion to the court by counsel for the plaintiffs, it is 
 ordered that the jury be conducted in a body in charge of the 
 sheriff to view the premises in controversy herein, and that 
 the same be shown to them by W. M. K., for plaintiffs, and 
 J. C, for defendant, and that they return at 2 130 o'clock p. m., 
 , 18—. 
 
 No. 859. 
 Entry impaneling Jury — Ordering a View at once. 
 
 [Caption.] 
 
 This cause being at issue, thereupon came a jury, to wit: 
 Xnaming them\ good and lawful men of said county, who 
 being duly impaneled and sworn, thereupon on motion to 
 the court it is ordered that the jury be conducted in a body, 
 in charge of the sheriff, to view the premises in controversy 
 herein, and that the same be shown them by J. M., and after- 
 wards, on the same day, said jury returned into court and 
 said cause proceeded to trial with the evidence and arguments 
 of counsel, and not being concluded, the court adjourned the 
 further trial of this case until the coming in of court on to- 
 morrow morning, till which time said jury is excused under 
 instruction of the court. 
 
 No. 860. 
 Partial daily hearing to Jury. 
 
 [Caption. J 
 
 This day again came the said parties, by their attorneys, 
 also came the jury heretofore impaneled and sworn, and the 
 trial proceeded, and the said jury having heard additional 
 testimony were duly cautioned and discharged until the com- 
 ing in of court tomorrow morning.
 
 550 JUDGMENT ENTRIES. 
 
 No. 861. 
 
 Entry of close of Hearing — Argument — Charge and return 
 
 of Verdict. 
 [Caption.] 
 
 This day again came the said parties, by their attorneys, 
 also came the jury heretofore impaneled and sworn, and the 
 said jury having heard the remaining part of the argument 
 and charge of the court, retired to their room in charge of 
 the sheriff for deliberation. 
 
 And now comes said jury into open court with their ver- 
 dict in writing, signed by their foreman, and say: "We, the* 
 jury, being duly impaneled and sworn and affirmed, find the 
 issues in this case in favor of the plaintiffs, and assess the 
 amount due to the plaintiffs from the defendant, J. B. Y., 
 
 at the sum of $ . ' ' 
 
 J. H., Foreman. 
 
 Thereupon defendant, J. B. Y. , by his counsel, gave notice 
 of a motion for a new trial. 
 
 No. 862. 
 
 Entry of Hearing of Remainder of Case and ordering Sealed 
 Verdict to be returned. 
 
 [Caption.] 
 
 This day again came the said parties, by their attorneys, 
 and also came the jury heretofore impaneled and sworn, and 
 the trial proceeded. 
 
 And the said jury having heard the remaining testimony, 
 the argument of counsel and charge of the court, retired to 
 their room in charge of the sheriff for deliberation. 
 
 And the hour of adjournment having arrived the court 
 ordered that if said jury agree upon a verdict they return the 
 same sealed to this court tomorrow at o'clock. 
 
 No. 863. 
 
 Entry Discharging Jury on account of Sickness of Juror — 
 R. S. Sec. 5195. 
 
 [Caption.] 
 
 This day came the parties herein, by their attorneys, also 
 came the following-named persons as jurors, to wit : [name
 
 TRIAL BY JURY — FORMAL ENTRIES. 55 T 
 
 them\ who were duly impaneled and sworn according to law ; 
 and thereupon this cause came on for hearing on the plead- 
 ings and the evidence, and said jury having heard the evi- 
 dence in part, and it appearing that , one of the above 
 
 jurors, during the hearing of the testimony became sick and 
 was unable to attend a further hearing of said testimony,* 
 the court therefore discharges said jury ; and this cause is 
 continued. 
 
 No. 864. 
 
 Entry allowing Cause to be tried by remaining Jurors in Case of 
 Sickness or other calamity. 
 
 \CaptUmJ\ 
 
 {Proceed as above to *, then state :] that , one of the 
 
 above jurors, during the hearing of the testimony in said 
 case became sick and was unable to attend a further hearing 
 of said testimony, by consent of both parties the trial pro- 
 ceeded with the remaining eleven jurors in attendance. 
 
 No. 865. 
 j ur y_Entry discharging Jury under R. S. Sec. 5195. 
 
 {Caption. ] 
 
 This day came the parties, by their attorneys, also came 
 the jury heretofore impaneled and sworn, and this cause 
 came on for trial. And by consent of both parties said jury 
 are discharged without day, and this cause is continued at 
 the costs of . 
 
 No. 866. 
 jury Entry withdrawing Juror and cause continued. 
 
 [ ( 'aption. I 
 
 This day came the parties, by their attorneys, also came 
 the jury heretofore impaneled and sworn, and this cause came 
 
 011 for hearing, and by consenl of parties, , one of 
 
 -aid jurors, is withdrawn from the panel, and the remaining 
 jurors are discharged from further attendance in this cast.-, 
 and this cause is continued at the costs of .
 
 552 JUDGMENT ENTRIES. 
 
 No. 867. 
 
 Entry on return of Verdict — Giving notice of motion for 
 
 New Trial. 
 [Caption.] 
 
 This day again came the parties, by their attorneys, and 
 also came the jury in this cause, who were duly impaneled 
 and sworn, and affirmed on a previous day of the present 
 term of this court, and after hearing the evidence and argu- 
 ments of counsel and the charge of the court, the jury re- 
 tired in charge of the sheriff, and afterward returned into 
 open court their verdict, which is in the words and figures 
 following, to wit: \Copy verdict.] 
 
 Which said verdict was by the clerk of this court read 
 in the hearing of said jury, to which they gave their 
 assent, and the jury being polled at the request of the de- 
 fendant's attorney, each juror, on being inquired of if it was 
 his verdict, answered in the affirmative. Thereupon the de- 
 fendant, by his attorney, gave notice of his intention to file 
 a motion for a new trial of this cause. 
 
 No. 868. 
 Special Verdict under P. S. Sees. 5200 and 5201. 
 
 [Caption.'] 
 
 We, the jury, on the issues joined in this case, find the 
 following facts: [here state the findings of fact.] 
 
 We do further find, that if under the above finding of 
 facts the law is with the plaintiff, we do find for plaintiff, 
 and assess his damages at $ ; and if under the above find- 
 ing of facts the law is with the defendant, we do find for 
 the defendant and assess his damages at $ . 
 
 No. 869. 
 Entry Discharging Jury when Unable to Agree. 
 
 [Caption.] 
 
 This day came the parties, by their attorneys, also the 
 jury heretofore impaneled and sworn, and said jury retire 
 to their room for further deliberation, and afterwards said 
 jury return into court and inform the court that they are un-
 
 TRIAL BY JURY — FORMAL ENTRIES. 553 
 
 able to agree upon a verdict, and the court find that said jury 
 are unable to agree, and for this reason said jury are dis- 
 charged from the further deliberation of this case. 
 
 R. S. Sec. 5195. 
 
 No. 870. 
 
 Entry Overruling Motion to direct Verdict — Requests to 
 Charge, etc. — Overruling Motion for New Trial. 
 
 \Captio)i.~\ 
 
 This day, immediately upon the close of the evidence in 
 this case, the defendant moved the court to direct the jury 
 to return a verdict in favor of the defendant, and after hear- 
 ing the arguments of counsel, the court being fully ad- 
 vised in the premises, the court overruled said motion, to 
 which ruling the defendant at the time excepted, and there- 
 upon the counsel for the defendant asked the court to give to 
 the jury special charges, which the court refused to give, 
 and then instructed the jury. 
 
 And thereupon the said defendant, by its counsel, at the 
 time and in the presence of the jury, excepted to the charge 
 and each separate portion and proposition therein contained; 
 and thereupon the jury retired to deliberate upon their ver- 
 dict, and afterwards on the same day returned into court 
 with their verdict in writing as follows, to wit: 
 
 Verdict: We, the jury, being duly impaneled and sworn 
 and charged, find the issues in this case in favor of the 
 
 plaintiff and assess the damages at $ . 
 
 J. W. S. , Foreman. 
 
 And thereupon, on the rendition of said verdict, the de- 
 fendant gave notice to the court of its intention to file a mo- 
 tion for a new trial in this cause, and to set aside said ver- 
 dict, and afterwards, to wit, on the day of , A. I). 
 
 18 — , being within three days from the rendition of the ver- 
 dict in this case, the defendant filed its motion for a new ti ial 
 of this cause for reasons in said motion stated, which was ar- 
 
 ■! by counsel, and upon consideration whereof the couii 
 id motion and refused to vet aside said verdict 
 and grant a new trial of tin to which ruling of the 
 
 courl m refu ing to set aside said verdicl and grant a new 
 trial of this cause the defendanl .it the time excepted and 
 asked and obtained leave of the i ourl to pr< pare and present 
 
 Bill <>f Exceptions in thi ad have the same made 
 
 part of the record within forty days from the rising uf this
 
 554 JUDGMENT ENTRIES. 
 
 term of this court, and for the purpose of permitting and al- 
 lowing said Bill of Exceptions to be prepared, allowed, 
 signed and sealed and made a part of the record in this case, 
 it is ordered that said records and journals of this court be 
 kept open for said — days. 
 
 No. 871. 
 
 Entry of Impaneling Jury— Verdict— Motion to set same 
 aside sustained. 
 
 \Caption.~\ 
 
 This cause came on for trial, and the parties came by 
 their attorneys; a jury being called, came the following 
 named persons, to wit: 
 
 who were duly impaneled and sworn according to law.* 
 Said jurors having heard the evidence adduced by the 
 parties, the argument of counsel, and the charge of the 
 court, retired to their room in charge of the sheriff for 
 deliberation. After due deliberation said jurors returned 
 into open court with their verdict in writing, signed by 
 their foreman, as follows: 
 
 "We, the jury in the above-entitled cause, find the 
 issues joined in favor of the plaintiff, and assess her 
 damages at $ . " 
 
 The defendant having thereupon filed its motion to set 
 aside said verdict and for a new trial of this cause, the 
 same came on for hearing, and was heard and submitted 
 to the court ; and the court, on consideration thereof, grant 
 the same; and the verdict is set aside and a new trial 
 granted, to which the plaintiff excepts. 
 
 No. 872. 
 Entry Arresting case from Jury. 
 
 \_Caption.~\ 
 
 [Proceed from *, ante No. 871.] 
 
 And the hearing of the evidence having been concluded 
 the defendant thereupon made a motion to arrest the case 
 from the jury, which came on for hearing, was argued by 
 counsel and submitted to the court. ' On consideration 
 whereof the court sustains said motion, and orders that the 
 testimony in said cause be and the same is hereby arrested
 
 TRIAL BY JURY — FORMAL ENTRIES. 555 
 
 from the jury, and the jury is discharged from the further 
 consideration of this cause. It is further ordered that the 
 defendant be dismissed from this action, and that he re- 
 cover from plaintiff herein his costs. 
 
 No. 873. 
 Ordering Jury in Criminal Cases to View Premises. 
 
 \Caption.~\ 
 
 It appearing to the court that it is necessary to a proper 
 understanding of the evidence in this case that the jury 
 should have a view of the place where the crime charged in 
 the indictment is alleged to have been committed, it is ordered 
 that the said jury be conducted in a body, together with the 
 defendant and his counsel, in charge of the sheriff, to the 
 place where said crime is alleged to have occurred, to wit : 
 [// might be stated] ; and that said place be shown to said 
 jury by A. B. , whom the court here appoints for that purpose, 
 and that when they have made said view that they return 
 immediately into court. 
 
 R. S. Sec 7283. 
 
 No. 874. 
 Entry — Discharging Jury in Criminal Case under R. S. Sec. 73i3« 
 
 {Caption. \ 
 
 It having been made to appear to the court that , 
 
 one of the jurors heretofore impaneled herein, has become 
 sick, and unable to proceed further in the trial of this cause, 
 it is therefore considered and ordered that the said jury be 
 discharged from the further consideration of said cause and 
 without prejudice to the prosecution of this cause. 
 
 No. 875. 
 
 Entry granting Motion in Arrest of Judgment under 
 R. S. Sec. 7355- 
 [ ( a/>//nu. ) 
 
 This cause came on to be heard upon the motion filed 
 rresl the judgment, fued by counsel and 
 
 submitted to tlu court. On consideration whereof, and the
 
 556 JUDGMENT ENTRIES. 
 
 court being fully advised in the premises, does sustain said 
 motion. * It is therefore ordered that said defendant be and 
 he is hereby discharged. 
 
 ( Or, from * And it appearing to the court there are rea- 
 sonable grounds for believing said defendant guilty of an 
 offense, it is ordered that he enter into a recognizance in the 
 
 sum of $ , conditioned for his appearance at the first day 
 
 of the term of this court, and in default thereof that he 
 
 be committed to the county jail. ) 
 
 TRIAL BY COURT. 
 
 (J?. S. Sees. 5204 — 5209.) 
 
 No. 876. 
 Entry of Trial to Court — Jury waived — Ordinary Judgment. 
 
 \Caption.~\ 
 
 This cause coming on to be heard on the petition, the 
 answers of J. H., C. S. and M. W. , and the reply of the 
 plaintiffs, and a jury having been waived, was submitted 
 upon the pleadings and the evidence, and argument of 
 counsel to the court; and on consideration thereof, the 
 court finds on the issue joined for the plaintiffs (and that the 
 facts and allegations in the petition are true), and that the 
 defendants, J. H., C. S. and M. W., are indebted to the 
 
 plaintiffs in the sum of $ , with interest from the first 
 
 day of this term. 
 
 It is therefore considered by the court that said plaintiffs 
 recover from the said J. H., C. S. and M. W. the said sum 
 
 of $ , together with the costs of this action, for which 
 
 execution is awarded, to all of which defendants, W. and H. , 
 except. 
 
 No. 877. 
 Finding and Judgment in favor of Defendant. 
 
 \Caption.~\ 
 
 This cause coming on to be heard was submitted to the 
 court by the parties hereto upon the petition, the answer of
 
 TRIAL BY COURT. 557 
 
 E. L. and the reply herein, the evidence and the exhibits; 
 and both plaintiff and defendant having waived trial by jury, 
 the court finds upon the issues joined for the defendant, E. 
 L. ; and that that the plaintiff has no cause of action against 
 the said defendant, E. L., and the court adjudges and orders 
 that said E. L. may go hence without day and with his costs 
 which he may recover against the plaintiff, and that the 
 
 plaintiff shall pay all the costs herein made, taxed at $ , 
 
 and upon failure to so pay the same within — days from this 
 date, execution shall issue therefor against the plaintiff. 
 
 No. 878. 
 
 Entry of Trial by Court by Consent of Party appearing, the 
 other Party failing to appear, under R. S. Sec. 5204. 
 
 \CaptionP\ 
 
 This cause coming on to be heard on the petition of plain- 
 tiff and the answer of defendant, the defendant failing to ap- 
 pear, and the plaintiff waiving trial by jury, and consenting 
 to a trial by the court, and the court having heard the testi- 
 mony, * and being fully advised in the premises, finds on the 
 issues joined for plaintiff, and that the defendant is indebted 
 
 to the plaintiff in the sum of $ , with interest from the 
 
 day of , 1 8 — . 
 
 It is therefore considered by the court that plaintiff re- 
 cover from the defendant said sum of $ , with interest 
 
 for said sum from said day of , 18 — . 
 
 No. 879. 
 
 Entry of Trial by Consent Orally made in Open Court under 
 R. S. Sec. 5204. 
 
 \Captit»i. ) 
 
 This cause coining on to be heard on the petition of 
 plaintiff and the answer of defendants, the parties hereto 
 having, in open court, waived trial by jury and consented 
 to a trial by the court, and tin- court having heard the testi- 
 mony [then follow as in ante No. 878, from *].
 
 c^8 JUDGMENT ENTRIEvS. 
 
 No. 880. 
 
 Entry where the Court must state Finding of Law and Facts 
 under R. S. Sec. 5205. 
 
 [Caption.'] 
 
 This day this cause came on to be heard on the petition 
 of plaintiff, the answer of defendant, and the reply thereto, 
 and on the testimony of witnesses, and was argued by coun- 
 sel. 
 
 And thereupon the court being asked to separately state 
 its findings of facts and its conclusions of law in this case, 
 the court finds from the testimony as facts in this case, the. 
 following : [statement of /acts.] 
 
 The court finds as conclusions of law that [statement of 
 conclusions at law.] 
 
 It is therefore considered by the court that the defendant 
 go hence without day and recover of the plaintiff his costs 
 herein expended, to which conclusions of law, upon said 
 findings of facts, the plaintiff, by his counsel, at the time ex- 
 cepted. 
 
 See Kinkead's Code Pleading, Sec. 1248. 
 
 No. 881. 
 
 Entry of Trial by Court by Written Consent of Parties filed with 
 the Clerk— Under R. S. Sec. 2504. 
 
 [ Caption. ] 
 
 This cause coming on to be heard on the petition of 
 plaintiff and the answer of defendant, the parties hereto 
 having filed with the clerk their written consent for a trial 
 by the court, and the court having heard the testimony [then 
 proceed as in ante No. 878, following *]. 
 
 No. 882. 
 Entry of Trial of Agreed Case by Court. 
 
 [Caption. ] 
 
 This day this cause came on to be heard upon an agreed 
 statement of facts containing the facts upon which the con- 
 troversy involved herein depends, heretofore filed herein and 
 submitted to the court, and it appearing to the court from
 
 TRIAL BY COURT. 559 
 
 the affidavit of that the controversy is real, and that said 
 
 proceeding is in good faith, and the court being fully ad- 
 vised in the premises, finds upon said statement the law to be 
 
 in favor of , and that there is due him the sum of $ . 
 
 It is therefore ordered that said recover from the 
 
 plaintiff [or, defendant] said sum of $ , with interest, 
 
 and his costs herein expended, taxed at $ , for which ex- 
 ecution is awarded. 
 
 R. S. Sec. 5208. 
 
 No. 883. 
 
 Entry Overruling Motion to Dismiss — Demurrer — And Hearing 
 upon Agreed Statement of Facts. 
 
 [ Caption. J 
 
 This day came the said parties, by their respective attor- 
 neys, and thereupon this cause came on to be heard upon the 
 motion of defendant to dismiss this action for the reason that 
 the court has no jurisdiction to hear and determine the same. 
 On consideration whereof the court overrules said motion; 
 to which judgment and determination of the court in so 
 overruling said motion the defendant by its counsel now duly 
 excepts; and thereupon this cause came on to be further 
 heard upon the demurrer of the defendant to the petition of 
 the plaintiff, and the same was argued by counsel. 
 
 ( )n consideration whereof the court overruled said de- 
 murrer; to which judgment and determination of the court 
 in so overruling the same, the defendant, by its counsel, now 
 duly excepts and asks leave to answer said petition instanter, 
 which leave is now granted accordingly. 
 
 And thereupon this cause came on to be still further 
 heard upon said petition and answer, and upon the agreed 
 statement of facts tiled herein and by consent of all parties 
 made cadence in this cause. < )u consideration whereof, 
 the court find [proceed from ; in ante No. 878] that 
 the defendant is a corporation, authorized by law to make 
 appropriation of private property; that the defendant has 
 taken possession of and is using the land of the plaintiff 
 
 ribed in the petition; that said laud so occupied and 
 used by the defendant has not In en appropriated or paid 
 for by the defendant corporation; that said laud is not held 
 by any agreement in writing, the owner thereof, who is 
 the plaintiff herein, and that the notice required by the pro- 
 visions of section 6448 of the Revised Statutes of Ohio, as
 
 560 JUDGMENT ENTRIES. 
 
 amended April 12, 1883, has been duly and legally served 
 upon the defendant corporation. To all of which findings 
 of the court the said defendant by its counsel now duly ex- 
 cepts. 
 
 It is therefore ordered, as directed by statute, that a jury 
 be drawn, as required by law, for the trial of this cause; 
 and that said jury be summoned to appear in this court on 
 
 the day of , 18 — , until which time this cause is 
 
 now adjourned. 
 
 TRIAL BY REFEREES. 
 
 (i?. 5. Sees. 5210— 5218.) 
 
 No. 884. 
 Entry ordering Reference by Consent. 
 
 [Caption.'] 
 
 This day came the parties, plaintiff and defendant herein, 
 and waiving their right to a trial by jury, filed herein their 
 written consent [or, in open court consented] that this cause 
 be referred to referees to report their decision upon all the 
 issues of fact and law involved herein ; and it appearing to 
 be for the best interest of the parties hereto, it is therefore 
 ordered that this cause be and the same is hereby referred to 
 [name referees], for the trial of all the issues of fact and law 
 [or, of special matters] involved in said cause. It is further 
 ordered that the said referees reduce all the testimony of the 
 witnesses to writing, and that they severally subscribe the 
 same, and that they make report of their decision to this 
 court without delay. 
 
 [Whittaker's Civil Code, Sec. 5210 and notes. In all cases in which 
 right to trial by jury exists, consent to a reference is necessary. Id. 
 Kinkead v. Hiatt, 39 N. W. 600 (Neb.); Larder v. Granger, 21 N. Y. S. 
 1 107. As the parties in effect must waive a jury, it is best to incor- 
 porate the waiver in the entry, although a submission of a cause triable 
 by a jury to a referee is a revivor of trial by jury. 22 O. S. 372. A 
 reference can not be ordered by the Probate Court without consent of 
 parties. R. S. Sec. 5215.
 
 TRIAL BY REFEREES. 56 1 
 
 No. 885. 
 
 Compulsory Order of Reference. 
 
 [ Caption. ] 
 
 It appearing to the court that the parties to this action 
 are not entitled to a trial by jury upon the issues raised 
 herein, and that it would be for the best interest of the 
 parties that said cause be referred to referees, it is therefore 
 ordered that said cause be referred to \_naming referees], who 
 are hereby directed and required to ascertain and determine 
 the facts and law, and report them to this court without 
 unnecessary delay. 
 
 R. S. Sec. 521 1. 
 
 No. 886. 
 
 Order Appointing Referee to Ascertain and Report Names and 
 Liabilities of Stockholders in Corporation. 
 
 [Caption.] 
 
 This cause came on to be heard upon the petition and 
 motion of plaintiffs herein to appoint a referee, and the 
 answer of the defendant herein. The court being fully ad- 
 vised, adjudges that said plaintiffs are entitled to have a 
 referee appointed in this cause to ascertain and report to this 
 court the names and addresses of the stockholders of the 
 
 M V Railwav Company from its organization to the 
 
 date of bringing of this action, the amount of stock held by 
 each stockholder, when and how acquired, and if sold, when 
 and to whom, and the individual liability thereon ; also the 
 names and addresses of the creditors of said corporation, the 
 amounts owing to each, and the amounts necessary for each 
 share of stock to pay to discharge the indebtedness of said 
 corporation; and it is ordered that this cause, for the issues 
 and things aforesaid, be and the same is hereby referred to 
 J. I). II., who is hereby appointed referee herein, to hear, 
 try, and determine the same, both as to law and to fact; and 
 the said 1 rdered to report his findings and decisions 
 
 to this court without unnecessary delay, and also the testi- 
 mony before him. each witness 01 deponent to sign his name 
 to his testimony, in pursuance to the statute- in such cases 
 made and provided. 
 
 Prom John Ferris v. James Anton, et at., (S. C.) EL S. Sees. 5211, 5313.
 
 r62 JUDGMENT ENTRIES. 
 
 No. 887. 
 
 Another Order appointing Referee upon Motion for further 
 Reference — To determine Stockholder's liability — Ordering 
 Publication of Appointment. 
 
 [Caption J\ 
 
 And now this cause came on to be heard on motion for 
 further reference of the cause, and upon pleadings and pro- 
 ceedings, and the court having considered the same, it is 
 now ordered that the special master, J D. H., do forthwith 
 make report of the findings by him made, if any, of the. 
 testimony by him taken or now held, and his proceedings on 
 the claims filed with him against the company aforesaid ; and 
 he is now ordered to transfer all the books and papers held 
 by him relating to the affairs and transactions of the said 
 company, and not constituting a part of the evidence afore- 
 said, to the referee hereinafter appointed. 
 
 And the court, further considering the premises, finds 
 that since the order heretofore made appointing said H. spe- 
 cial master, this cause has been brought into a condition in 
 which, by the making of the proper parties, the answers and 
 other pleadings of some, and the defaults of others, issues 
 are presented in the cause as to their rights and liabilities, 
 which are now ready for examination and decision ; and the 
 court further finds that for the speedy and convenient deter- 
 mination of such issues and of the judgment to be rendered 
 thereon, it is advisable to refer this cause to a referee. 
 
 Wherefore it is ordered that this cause, with all the issues 
 herein, whether the same arise upon the pleadings or defaults 
 of the parties, and whether the same be of fact or law, except 
 the claim of J. B. B., hereinbefore provided for, be referred 
 to J. D. H., Esq., an attorney of this court, as referee under 
 chapter 2, of division of title 1, who shall proceed to hear 
 and determine : 
 
 First. As to the validity and amount of each claim made 
 against the said company and its stockholders. 
 
 Second. As to the liability of the several defendants, 
 stockholders of said company. 
 
 Third. The relief and judgment the several parties are 
 entitled to in the cause. 
 
 And for this purpose he is authorized and directed to 
 make publication of his appointment in newspapers of general 
 
 circulation within the counties of and in this state, 
 
 for two weeks, of the time and place he will begin the exam-
 
 TRIAL BY REFEREES. 563. 
 
 ination of such claims as may already have been presented 
 to and filed with the master aforesaid, or set up in the plead- 
 ings, or such as may during this proceeding be presented and 
 filed with him, and thereafter creditors and parties shall take 
 notice of such setting and order of business, as said referee 
 shall from time to time make for the trial of the several 
 issues referred — the said referee providing reasonable means 
 of information at his office of such setting and proceeding for 
 parties and creditors inquiring. 
 
 The said referee shall have such powers and shall be 
 governed by such rules of proceeding as are prescribed for 
 referees by title 1, division 3, chapter 2, of the Revised 
 Statutes. 
 
 He shall receive and consider in the trial of the issues 
 referred to him such of the testimony as may have been 
 taken and filed herein by the master pertinent to said issues, 
 and as may be offered by either or any party to such issue, 
 or as he may find necessary to consider upon said issues, and 
 report his findings, together with the evidence taken, to this 
 court, without unnecessary delay. 
 
 John Ferris v. James Anton, S. C, Sec. 2988, Hamilton County. 
 
 No. 888. 
 
 Entry upon Application for Reference of Cause anew upon 
 Refusal of first Referee to serve. 
 
 \Capti<>>!.\ 
 
 Now come the said parties, by their attorneys, and there- 
 upon this cause came on to be heard upon the application of 
 both parties for a reference of this cause anew, on the ground 
 that one of the three referees appointed in said cause by this 
 
 court at its term, A. I). [8 — , viz. : \V. A. L., Esq., has 
 
 refused to serve as such referee. On consideration whereof 
 the court order, i nt of said parties, plaintiff and de- 
 
 fendant, that all issues of fact and of law in this action are 
 referred for trial to Honorable J. A. A.., Honorable C. G. C. 
 and M. C. R., Esq., who, on ten days' notice by either party 
 
 herein, are to meet al the courthouse in A., eountv, 
 
 Ohio, for the trial of said action, and that they report to this 
 court, at its next term, the facts found and the conclusions 
 of law separately, and the evident e h< rein given before them 
 on said trial, and this cause is continued.
 
 564 JUDGMENT ENTRIES. 
 
 No. 889. 
 
 Appointment of Referee to take and report Testimony. 
 [Caption.] 
 
 This day this cause came on to be heard and was submit- 
 ted to the court, and the court, on consideration of the cause, 
 doth find that on account of the character and extent of the 
 evidence to be adduced, and on account of the nature of the 
 issues to be heard and determined by the court, it is adjudged 
 by the court, on the application of the defendant, that the 
 case be referred to F. B. M., as such referee of this court, to 
 take and report the testimony in the case to this court, and* 
 that his said report to report also his conclusion and findings 
 of law and facts in the case, and the said referee is hereby 
 empowered to compel the attendance of witnesses for the 
 purpose of producing evidence before him for the hearing of 
 the case, on application of either parties, by the ordinary 
 process of law, and to issue such processes as may be neces- 
 sary to that end, at such time and places as may be decided 
 upon by said referee, and the clerk of this court is ordered 
 to issue a certified copy of this order to said referee forth- 
 with. 
 
 No. 890. 
 
 Entry upon Hearing of Referee's Report — Where no Exceptions 
 
 have been filed. 
 
 [Caption.] 
 
 This cause coming on for hearing on the report of the 
 referees to whom the same was heretofore at a former term 
 of this court referred, on consideration whereof, no excep- 
 tions to said report having been filed, the court do order 
 that the said report and all the matters and things therein 
 contained be and they are hereby approved and confirmed, 
 and that the findings of the said referees do stand as the 
 findings of the court. 
 
 It is therefore considered and adjudged by the court that 
 the said B. H. do go hence without day and recover from 
 the said plaintiff his costs herein and heretofore made and 
 expended in this case. [Proceed with judgment in accord- 
 ance with motion for new trial.]
 
 TRIAL BY REFEREES. 565 
 
 No. 891. 
 
 Entry on Report and Motion for New Trial — Overruling 
 
 or Sustaining. 
 [Caption.] 
 
 This day this cause came on to be heard upon the report 
 of A. B., C. D. and E. F., referees herein, of their findings 
 of facts and conclusions of law, and the motion of J. H., the 
 defendant herein, to vacate and set the same aside, and for a 
 new trial of said cause before said referees. And the court being 
 fully advised * does overrule said motion, and finding that 
 said report is in all respects regular, and that the conclusions 
 of law of said referees are in all respects correct, the said re- 
 port is approved and confirmed; and it is ordered [make 
 order in conformity to report] [or from *] does sustain said 
 motion and order that the said report be and the same is 
 hereby set aside and vacated, and a new trial is granted of 
 said cause. It is therefore ordered that said cause be recom- 
 mitted to the said A. B., C. D. and E. F., as referees, who are 
 hereby ordered and directed to proceed to a new trial of said 
 cause, and that when they have so complied with this order 
 they shall file in this court a new report of their findings of 
 fact [and lawj without unnecessary delay. 
 
 No. 892. 
 Entry on Motion to Confirm Report of Referee. 
 
 [Caption. } 
 
 The motion of the plaintiff to confirm the report of the 
 
 referee herein, filed <>n the day of , 18 — [or, the 
 
 exceptions filed on the part of the defendants to the report, 
 etc., as above\ having conn- on for argument, on the motion 
 of the plaintiff to confirm said reporl [or, of the defendant to 
 set aside said report], and after reading said report [and the 
 evidence taken by said referee, may add, and his opinion 
 therewith filed, and] after hearing A. T., of counsel for 
 defendant, in opposition, now, on motion of A. T., attorney 
 
 for plaintiff : 
 
 It is ordered that the exceptions of the defendant to the 
 ,rt of tli. referee herein be and the same hereby are 
 overruled, and that tin- said report be and the same is hereby 
 in all things confirmed; to which ruling of the court the 
 defendant excepts, and that [state principal relief according to 
 the ( ase].
 
 5 66 JUDGMENT ENTRIES. 
 
 No. 893. 
 Entry Sustaining Exceptions to Referee's Report. 
 
 [As above, substituting for the words following the *] 
 sustained, and the motion to confirm said report is denied, 
 
 with $ — costs to the , and that said report and order of 
 
 reference are hereby vacated and set aside ; to which ruling 
 of the court the plaintiff excepts. 
 
 TRIAL BY MASTER COMMISSIONER. 
 
 See also Stockholder's Liability. 
 
 (J?. S. Sees. 5219 — 5224.) 
 
 No. 894. 
 
 Reference to Master. 
 [Caption.'] 
 
 This day this cause came on to be heard, and upon motion 
 of counsel for plaintiff (and by consent of counsel for defend- 
 ant), and it appearing that the parties hereto are not entitled 
 to a trial by a jury, this cause is referred to J. L., one of the 
 [or, a] Master Commissioners of this court to hear and try this 
 cause on the pleading and evidence, and to take and report 
 to this court the testimony in writing, together with his 
 finding and conclusions of the law and facts involved in the 
 issues, and to make his report to this court without unrea- 
 sonable delay. 
 
 R. S. Sees. 5219, 5222. 
 
 No. 895. 
 Appointment of Special Master Commissioner. 
 
 [Caption.] 
 
 On motion to the court by the parties herein, and on good 
 cause shown, it is ordered that this cause be, and the same 
 hereby is, referred to C. N. B., who is hereby appointed a 
 Special Master Commissioner for that purpose, who shall
 
 TRIAL BY MASTER COMMISSIONER. 567 
 
 forthwith, upon being duly qualified, proceed to take the 
 testimony offered by the parties, in writing, ascertain the state 
 of account between them, and report the same to the court, 
 with his conclusions on the facts involved in the issues, 
 without unnecessary delay. 
 
 R. S. Sees. 5221, 5222. 
 
 No. 896. 
 
 Entry Appointing Special Master Commissioner to take 
 Testimony. 
 
 [ Caption. ] 
 
 [Precede with other findings. ] 
 
 It is therefore ordered, adjudged, and decreed, by the 
 court here, that W. H. D. be and he is hereby appointed 
 Special Master Commissioner in this cause, who, by agreement 
 of the parties, is not required to give bond, and is ordered 
 upon notice to the parties to take testimony and report for 
 the information of the court the following facts, to enable 
 the court to thereby find judgment between the parties in 
 this case. 
 
 1st. The consideration paid by said D. to said K. for 
 said premises. 
 
 2d. The amount paid by C. and E. S. to said D. on 
 their contract of purchase. 
 
 3d. The amount of taxes paid by S. and wife on said 
 premises since they purchased the same of said W. D., 
 including whatever sidewalks they may have made, or im- 
 provements they may have made to sidewalks, curb and gutter 
 in front of said premises, each item, and be stated sepa- 
 rately. 
 
 4th. The present value of said lot, with the improve- 
 ments that was on it at the death of H. P., and including 
 all other improvements. 
 
 5th. The present value of said lot with all the improve- 
 ments now on it. 
 
 6th. The value <>f the improvements made to said 
 premises by S. and wife, I), or K., separately. 
 
 —lli. The value of the use and occupation of said 
 premises b) S. and wife, and be I), and k., separately. 
 
 Nth. And such other facts as may be necessary to en- 
 able the court to determine the rights at law oi the parties 
 
 to this suit. It is further ordered that the said Master give 
 notice to the parties of the time and place of taking 
 
 37
 
 568 JUDGMENT ENTRIES. 
 
 testimony and the hearing of the said issues, and report his 
 findings therein to this court at the next term thereof, to 
 which this cause is continued. 
 
 Notice of appeal by W. D., and bond fixed at $ . No- 
 tice of appeal by G. K. , and bond fixed at $ . 
 
 R. S. Sec. 5221. 
 
 No. 897. 
 
 Approval of Master's Report and Judgment thereon, where 
 no Exceptions are taken thereto. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the motion 
 of the defendants herein to confirm the master's report and for 
 judgment on the findings of said master, and the same was 
 argued by counsel and submitted to the court, and no excep- 
 tions having been filed to said report, and the court, on con- 
 sideration thereof, and being fully advised in the premises, 
 finds that said motion is well taken and ought to be sustain- 
 ed, that the conclusions of fact and law, so made by said 
 master, are in all respects correct and in conformity to law. 
 
 It is therefore considered, ordered, decreed and adjudged 
 that the said master's report be and the same is hereby in all 
 respects confirmed, and it is further considered, ordered and 
 adjudged by the court that the said defendants recover of the 
 plaintiff the amount of money, to wit : $ , so in the mas- 
 ter's report found to be due the defendants from the plaintiff, 
 with interest on said amount, and their costs herein expended. 
 
 No. 898. 
 
 Confirmation of Report of Master. 
 
 [Caption.] 
 
 This cause came on to be heard upon the motion of the 
 defendant [or, plaintiff] to confirm the report of F. D., master 
 commissioner herein, and for judgment, and the court having 
 
 examined the report of said master, filed , 18 — , and 
 
 his proceedings herein, find the same to be correct and regu- 
 lar; and being further advised inthepremis.es, and haying 
 heard the argument of counsel, and after due consideration, 
 the court is of opinion that the report should be confirmed. 
 It is therefore ordered and adjudged that said report be and 
 the same hereby is confirmed, and that the said defendant,
 
 TRIAL BY MASTER COMMISSIONER. 569 
 
 D. B., recover of the said J. T. B., as receiver of the P. C. 
 
 B., the sum of $ , with continuing interest from the first 
 
 day of the present term of this court. It is further ordered 
 that for his fees and expenses herein said master be allowed 
 
 the sum of S , which sum, together with the other costs 
 
 of this suit, taxed at $ , is to be borne equally by said 
 
 plaintiff and defendant, and in default of payment, execution 
 may issue therefor. And thereupon the said J. T. B., as re-' 
 ceiver, plaintiff in the above-entitled case, gave notice of his 
 
 intention to appeal this cause to the circuit court of 
 
 county, Ohio, and the court finding that the said plaintiff 
 has already given bond in his trust capacity as receiver as 
 aforesaid, order that said plaintiff is not required to give bond 
 and security to perfect such appeal, but that said appeal is 
 perfected by this notice and entry. 
 Black, Receiver, v. Boyd, S. C, 3653. 
 
 No. 899. 
 Entry where Exceptions are filed to Report. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the report 
 of , master commissioner, to whom this cause was here- 
 tofore referred and the exceptions filed thereto by , and 
 
 was argued by counsel and submitted to the court. On con- 
 sideration wherof, and the court being fully advised in the 
 premises, finds that said exceptions are not well taken, and 
 docs therefore overrule the same, to which finding and judg- 
 ment the , by his counsel, excepts. And the court hav- 
 ing carefully examined said report, and finding the same in 
 all respects in conformity to law, does therefore approve and 
 confirm the same. 
 
 It is therefore considered, adjudged and decreed by the 
 1 ourt that the said report of the said master be and the same 
 is hereby approved and confirmed as the judgment and 
 finding of the court, etc. [proceeding with decree^ as in ante 
 Nos. 897, 898].
 
 570 JUDGMENT ENTRIES. 
 
 No. 900. 
 
 Entry Sustaining Exceptions. 
 
 [ Caption. ] 
 
 This day this cause came on for hearing upon the report 
 of the master commissioner heretofore filed herein, and the 
 
 exceptions filed thereto by , and the court having heard 
 
 the arguments of counsel, the same was submitted to the 
 court. 
 
 On consideration whereof, and the court being fully ad- 
 vised in the premises, find that said exceptions are well 
 
 taken (in this to wit: ), and does therefore sustain the 
 
 same [or, sustains the same to wit : , and does overrule 
 
 the remainder thereof]. 
 
 It is therefore considered, ordered, adjudged and decreed 
 that the said report be and the same is hereby set aside and 
 held for naught. 
 
 TRIAL ON APPEAL. 
 
 (J?. S. Sees. 5225—5239.) 
 
 No. 901. 
 Notice of Appeal. 
 
 Persons desiring to take an appeal must within three days after the 
 judgment or order enter on the records notice of such intention. Whit- 
 taker's Civil Code, Sec. 5227 and notes. Kinkead's Pleading, Sec. 1227. 
 
 This is done usually at the end of the entry prepared by the success- 
 ful party, as follows : 
 
 [ Caption. ] 
 
 And now comes the plaintiff [or, defendant] and gives no- 
 tice of his intention to appeal this case to the circuit court,* 
 and the court fixes the appeal bond in the sum of $ . 
 
 An administrator in taking an appeal, having given bond, 
 is not required to give aft appeal bond, and in an appeal by 
 him proceeding from*, and the said A. B., administrator, 
 having already entered into a bond as such administrator, no 
 appeal bond is required of him. 
 
 Appeal bond when given. Kinkead's Code Pleading, Sec. 1228.
 
 TRIAL ON APPEAL. 57] 
 
 No. 902. 
 
 Entry of Notice by Administration to appeal Case decided 
 against him. 
 [C option J\ 
 
 [Give 01 try suitable to finding and decree of court. Then 
 proceed as follows :] 
 
 To which finding and judgment of the court defendant 
 excepts, and gives notice of his intention, and hereby causes 
 notice of his intention to appeal said cause to the circuit 
 court, and said defendant being an administrator, the court 
 finds no appeal bond is necessary. 
 
 Notice of intention to appeal. R. S. Sec. 5227. Kinkead's Code Plead- 
 ing, Sec. 1227. Whittaker's Civil Code, Sec. 5227 and notes. Administrator 
 need not give bond. R. S. Sec. 5228. 
 
 No. 903. 
 Suspension of Injunction by Circuit Court. 
 
 [Caption.] 
 
 This day came the defendant herein, and thereupon the 
 motion of said defendant for an order suspending the opera- 
 tion of the injunction heretofore allowed in this cause by the 
 common pleas court, and upon producing proof of reasonable 
 notice to the adverse party of the hearing of this motion, and 
 it appearing that defendant has executed a proper appeal 
 bond, it is ordered that the order of the said court of common 
 pleas, granting an injunction [state what injunction is\ be 
 and the same is hereby suspended until the final determina- 
 tion of tli is case by this court. 
 
 Whittaker's Civil Code, Sees. 5226, 5235 ; 6 Bull. 1 38. The statute re- 
 quires "reasonable notice to the adverse party,"but the practice in staying 
 itions on judgments and final orders is uniform in holding that the 
 I ionary, and will only be exercised upon good cause shown. 
 7 O. c. C. 182 ;. and cs to suspes on oi judgment. Kin- 
 
 kead's Code Pleading, Sei . [231. 
 
 No. 904. 
 Appeal — Dismissal of, because Jury Case. 
 
 [Caption. \ 
 
 This day came the parties by their attorneys, and there- 
 upon on motion of said defendants leave was granted them
 
 r 7 2 JUDGMENT ENTRIES. 
 
 to renew their several motions to dismiss the appeal of this 
 case, to which ruling of the court the plaintiff excepted. 
 
 And thereupon this cause came on to be heard upon the 
 several motions of the defendant to dismiss the appeal of this 
 case, was argued by counsel and submitted to the court. _ On 
 consideration whereof the court is of the opinion that either 
 party had a right to demand a trial by jury in this cause, and 
 that the cause is not therefore an appealable one, and there- 
 fore orders and adjudges that the former orders made and 
 
 returned by this court on the day of 18 — , at the 
 
 term of this court, and overruling the motions of the 
 
 defendant to dismiss the appeal, be and the same are hereby 
 set aside and vacated, and doth further order, adjudge and 
 decree that the appeal of this case be and the same is hereby 
 dismissed. 
 
 No. 905. 
 
 Judgment set aside and leave to file Petition on Appeal and Answer. 
 
 [Caption.] 
 
 This cause being beard on the motion of the defendant to 
 set aside the judgment rendered herein at a former term of 
 this court, to wit: on , 18 — , the court finds on consid- 
 eration thereof that said judgment was irregularly obtained 
 in this, to wit: that the petition on appeal was filed out of 
 rule and without leave of court or consent of defendant. 
 
 It is therefore considered and adjudged by the court that 
 said judgment be and the same is hereby conditionally set 
 aside, and plaintiff is hereby granted leave to file his petition 
 on appeal instanter, which is accordingly done, and leave is 
 granted defendant to file answer on or before , 18 — . 
 
 Kinkead's Pleading, Sec. 1232. 
 
 No. 906. 
 
 Upon motion to Dismiss Appeal. 
 
 [Caption.'] 
 
 This cause came on to be heard on the motion of M. L. 
 and J. E. to dismiss the appeal heretofore taken to this court 
 in this action, and was argued by counsel and submitted to 
 the court. Whereupon the court find said motion not well 
 taken, and the same is therefore overruled at the costs of the 
 persons making said motion, to wit: said K. , F., H. and 
 B., to which said defendants except.
 
 TRIAL OX APPEAL. 57, 
 
 No. 907. 
 
 Entry upon motion to require Plaintiff to give new Undertaking 
 
 in Appeal. 
 
 \Caption.] 
 
 Now come the parties herein, by their attorneys, and 
 thereupon this cause came on to be heard upon the motion 
 of the defendants requiring the plaintiff herein to give new 
 undertaking in appeal in this case, and was argued by- 
 counsel ; on consideration whereof the court grants said motion.. 
 It is therefore ordered by the court here, that the said plain- 
 tiff do give a new undertaking in appeal, in the sum of $ -, 
 
 with surety, to the acceptance of the clerk of this court, said 
 bond to be given within thirty days after the entry of the 
 judgment. 
 
 Note.— R. S. Sec. 5227 ; 89 O. L. 148. See Kinkead's Code Pleading, 
 Sec. 1228. 
 
 No. 908. 
 
 Appeal from Justice Dismissed because not perfected, and 
 Judgment for Appellee. 
 
 [Caption.] 
 
 This day came the plaintiff herein and filed a transcript 
 of the proceedings and judgment of F. B., justice of the peace 
 
 in and for township, county, Ohio, in a certain 
 
 action between the above-named parties, from which it ap- 
 pears that on the day of , 18—, a judgment was 
 
 rendered by said justice in favor of this plaintiff and against 
 
 this defendant for the sum of $ and $ costs of suit, 
 
 from which judgment the said defendant appealed, and it 
 appearing to the court that the appellant has failed to deliver 
 a transcript <>f the proceedings and judgment aforesaid to the 
 clerk of this court and cause his appeal to be docketed within 
 the time required by law, and the said S. D. C. now electing 
 to have judgment in this court: 
 
 It is therefore considered bv the court that the said S. D. C. 
 
 recover from W. U K. the sum of 5 , and the judgment 
 
 an d $ , costs of suit aforesaid, with interest from the 
 
 , i.S— , together with his costs herein in this 
 
 court expended, taxed at % , and execution is awarded 
 
 therefoi . 
 
 K S. Sei 5*35-
 
 574 JUDGMENT ENTRIES. 
 
 No. 909. 
 Hearing and Judgment in Circuit Court. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence, and was argued by counsel. On consider- 
 ation whereof the court finds for the plaintiff [as in Common 
 Pleas]. 
 
 It is therefore considered, adjudged and decreed [as in 
 Common Pleas Court, as in next No. 910]. 
 
 And the court being satisfied that there was reasonable 
 and probable ground for the appeal, and that the same was 
 not for delay, no penalty is assessed. 
 
 [Or, And the judgment now rendered herein, being sub- 
 stantially the same as that rendered in the court below, and 
 the court being satisfied that there was no reasonable ground 
 for this appeal, or that the same was prosecuted for mere de- 
 lay, the court therefore adjudges and decrees that the said 
 defendant shall pay to the plaintiff a penalty of the sum 
 of $ .] 
 
 It is further ordered by the court that this cause be re- 
 manded to the Court of Common Pleas for execution, and 
 that a copy of this order be sent to the clerk of said court. 
 
 R. S. Sec. 5238. Mandate, Sec. 5239. 
 
 No. 910. 
 
 Decree Upon Foreclosure Ordering Sale by Appellate Court — 
 Quieting Title as Against Certain Interests — Appointment of 
 Master Commissioner to Make Sale and Distribute Proceeds 
 — Ordering Receiver to Pay Proceeds from Real Estate Upon 
 Debt. 
 
 [ Caption. ] 
 
 This cause came on to be heard on the pleadings, exhibits 
 and evidence, and was submitted to the court upon the argu- 
 ment of counsel, whereupon the court finds the issues joined 
 in favor of the plaintiff and G. K. and against the other 
 parties herein ; and that they are entitled to the relief de- 
 manded. The court further finds that since the commence- 
 ment of this action all the notes described in said petition 
 have become due ; that there is now due to the said W. D. 
 from the defendant C. S. on said notes and mortgage the
 
 TRIAL ON APPEAL. 575 
 
 sum of S with interest from this date; that the same is 
 
 secured by the mortgage set out in the petition ; that said mort- 
 gage is the first and best lien on the premises described in 
 the petition ; that the plaintiff is entitled to have said mort- 
 gage foreclosed. 
 
 It is therefore considered by the court here that the said 
 M. K., F. B. and D. B., L. R, J. H. and E. H., nor either of 
 them have any estate, right or interest in said premises, 
 and that the title thereto is and shall be forever quieted 
 against the claim of them or either of them. It is further 
 considered, unless the said C. S. or E. S. shall within ten days 
 pay or cause to be paid to the said W. D. the said sum of 
 
 $ , with interest from this date, and costs of suit taxed at 
 
 $ , that an order of sale issue to the sheriff of 
 
 county, Ohio, who is hereby appointed a master commis- 
 sioner for that purpose, commanding that he cause said prem- 
 ises described in the petition to be appraised, advertised and 
 sold according to law, and that he distribute the proceeds 
 arising from said sale: ist. To pay taxes now a lien on said 
 premises. 2d. To pay the costs of this proceeding, taxed to 
 
 $ • 3d. To pay to W. D. the said sum of $ , with 
 
 interest from this date, less the amount, if any, that he shall 
 receive from the receiver as herein ordered, and the balance, 
 if any, remaining in his hands he is ordered to pay over to 
 the said E. S. 
 
 And it further appearing that the receiver heretofore ap- 
 pointed in this action is still in possession of said property, 
 and that any money in his hands should be applied as a 
 credit on said mortgage claim so as aforesaid found to be 
 due. it is ordered that said receiver pay any moneys in his 
 hands as aforesaid to VY. I)., as a credit on hismortgage claim, 
 and make report of his said receivership herein to the- court 
 
 of common pleas of county, < >hio, for its approval. 
 
 To all of which findings, orders and decree's the said de- 
 fendants severally, at the time excepted, and on their motion 
 
 and with consent of parties days from the entry of 
 
 this di given them within which to prepare their bill of 
 
 - ptions herein. 
 
 It is furthei ordered that a special mandate issue to the 
 said court of common pleas of county, Ohio, com- 
 manding it to carry the foregoing orders into effect.
 
 576 JUDGMENT ENTRIES. 
 
 No. 911. 
 
 Entry of Decree in Circuit Court upon Appeal — Separate Finding 
 of Fact and Law. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard by the court 
 upon the authenticated transcript of the docket, journal 
 entries and final judgment of the court of common pleas 
 of said county therein, the original papers and pleadings, 
 and certain oral admissions of facts made by the respective 
 parties through their counsel (no other evidence being offered 
 by either party), on appeal by the defendant, The U. C. L. 
 I. Co. , from the judgment and decree of said common pleas 
 court, as to its claim in the third and fourth causes of action 
 in said defendant's answer and cross petition contained; and 
 the court having heard the case as aforesaid, and the argu- 
 ment of counsel, and being fully advised in the premises, on 
 the request of the plaintiff, by her attorneys, that its conclu- 
 sion of fact be stated separately from its conclusion of law, 
 finds, as its conclusion of fact, as follows : 
 
 [Finding of facts.] 
 
 And as its conclusion of law upon the above-found facts, 
 the court finds that said mortgage deed created a valid lien 
 upon the real estate described therein ; that the sum above- 
 found due is a valid lien upon the premises described in said 
 
 mortgage, and, with costs herein, taxed at $ , is ordered 
 
 paid out of the money in court arising from the sale of said 
 premises. And this cause is remanded to the common pleas 
 court for further proceedings according to law. 
 
 To all of which the plaintiff, C. W., by her attorneys, 
 excepted, and thereupon filed a motion for a new trial, which 
 is heard by the court and overruled, to which said plaintiff, 
 C. W., then and there excepted. 
 
 No. 912. 
 
 Entry of judgment under R. S. Sec. 6588 when Appellant fails to 
 
 perfect Appeal. 
 \Caption.~\ 
 
 It appearing to the court that the judgment was rendered 
 
 herein by , J. P., on the — day of , 18 — , and that 
 
 the said appellant, E. F. , has failed to perfect his said appeal 
 by delivering a transcript to the clerk of this court, and have
 
 TRIAL ON APPEAL. 577 
 
 his appeal docketed within the time required by law [<?;-, has 
 failed to prosecute the same, etc.], it is therefore considered 
 
 and adjudged by the court that the said , appellee, recover 
 
 from the said the amount of the said judgment so 
 
 rendered by L. E. , the said justice of the peace, herein, to wit : 
 
 the sum of $ , with interest from , iS — , together with 
 
 the costs herein, taxed at $ . 
 
 R. S. Sec. 6588. 
 
 No. 913. 
 
 Entry of judgment when Plaintiff fails to file Petition on the 
 Answer of Defendant. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the answer of the 
 defendant herein, and it appearing that this action comes 
 into this court upon appeal from A. C, justice of the peace 
 
 in township, in said county, and that the appeal was 
 
 taken by the plaintiff, and that the said plaintiff has failed 
 to file his petition, and has failed to prosecute his said appeal, 
 and the said defendant having filed his answer herein as pro- 
 vided by law, setting up his claim against the said plaintiff, 
 and the said plaintiff still failing and neglecting to file his 
 petition, the said cause came on for trial to the court, without 
 the intervention of a jury, and having heard the evidence 
 adduced by the defendant, and the arguments of counsel, the 
 same was submitted to the court. 
 
 On consideration thereof it is ordered and adjudged by 
 the court that the said defendant recover from the said plain- 
 tiff the sum of $ and the costs herein to be taxed, for 
 
 which execution is awarded. 
 
 R. S. Sec. 6592.
 
 578 JUDGMENT ENTRIES. 
 
 MEANS OF SECURING ATTENDANCE OF 
 
 WITNESSES. 
 
 (R. S. Sees. 5246—5260.) 
 
 No. 914. 
 Rule against Witness for Disobedience of Subpoena. 
 
 [Caption.'] 
 
 This day the plaintiff, by his attorney, represented to the 
 court that A. B. has been duly served with a subpoena herein, 
 and has failed to appear. Upon motion of said plaintiff a rule 
 is hereby allowed to issue against the said A. B., commanding 
 him to appear before this court forthwith, and show cause 
 why he should not be punished as for contempt. 
 
 R. S. Sec. 5254. For form of order against a witness for contempt in 
 refusing to answer questions, see Ammon v. Johnson, 3 O. C. C. 263. As to 
 the procedure generally, see Kinkead's Code Pleading, Sec. 427, et seq. 
 
 No. 915. 
 
 Judgment on Rule. 
 
 [Caption.] 
 
 This day A. B. appeared in obedience to a rule herein- 
 before issued against him, and the court having heard the 
 testimony adduced as to his disobedience of the subpoena, 
 finds that he has been guilty of contempt of this court, and 
 
 orders and adjudges that he pay a fine of $ and the costs 
 
 of this proceeding. 
 
 No. 916. 
 
 Entry Ordering Attachment of Witness. 
 
 [ Caption. ] 
 
 Upon motion of A. B., attorney for plaintiff [or, defend- 
 ant], and it appearing to the court that J. has been duly sub-
 
 ADMISSION AND INSPECTION OF DOCUMENTS. 5J9 
 
 poenaed as a witness herein, and fails to appear, it is ordered 
 that a writ of attachment issue, directed to the sheriff, com- 
 manding him to arrest said J. and bring him before this court 
 
 on the day of , 18 — , to give his testimony herein, 
 
 and answer for contempt. 
 R. S. Sec. 5253. 
 
 No. 917. 
 
 Entry Discharging Attachment. 
 
 [ Caption. ] 
 
 This day came the sheriff with the said J., in pursuance 
 of the writ of attachment heretofore issued herein against the 
 said J., and the court having heard the testimony concern- 
 ing the alleged contempt of the said J., upon consideration 
 thereof orders that said attachment be discharged at the 
 costs of $ . 
 
 R. S. Sec. 5253. 
 
 ADMISSION AND INSPECTION OF 
 DOCUMENTS. 
 
 (X. S. Srcs. 5288—5293.) 
 
 No. 918. 
 Form of Journal Entry Ordering Inspection and Copy. 
 A. B., 
 
 Plaintiff, 
 v. 
 
 C. D., 
 
 Defendant. 
 
 This day this cause came on to be heard upon the motion 
 of the plaintiff for an order granting him the right and priv- 
 ilege to inspect and 1 ■ rtain books and documents in the 
 possession of the defendant, and the evidence and arguments 
 j counsel. And it appearing that demand and reasonable 
 notice has been given to the defendant of the filing and of 
 the time set for the hearing of this motion, and upon a care-
 
 580 JUDGMENT ENTRIES. 
 
 ful consideration of the evidence adduced, finds that said mo- 
 tion is well taken, and that the plaintiff is entitled to an in- 
 spection and copy of the books and papers mentioned and 
 set forth in said motion. 
 
 It is therefore ordered by the court that the plaintiff shall 
 
 have the right and privilege within days from the date 
 
 of this order, after having given notice to said defend- 
 ant, to inspect and copy the books and papers specified in 
 said motion, and the defendant is ordered to deliver into the 
 possession of said plaintiff said books, papers and documents 
 described in said motion, and to grant him the privilege of 
 inspecting and copying the same within the date aforesaid. 
 And it is further ordered that if the defendant shall fail to 
 grant said privilege of inspecting and copying said books, 
 the same shall be excluded from being given in evidence. 
 
 Note. — The Code evidently contemplates that when such books and 
 papers are desired as evidence by the party applying, and there has been 
 a failure on the part of the defendant to comply with the order for an in- 
 spection and copy, the court shall direct in its charge to the jury that the 
 facts are such as the party by affidavit alleges them to be. It is therefore 
 unnecessary to express in the order anything in reference to the facts; 
 but the affidavit, setting forth in detail what the facts, as shown by such 
 books and papers, are, should be produced at the trial. 
 
 No. 919. 
 
 Journal Entry appointing Master to make Private Examination 
 of Books and Documents. 
 
 In the Court of Common Pleas of county, Ohio. 
 
 A. B., 
 
 Plaintiff, Entry appointing master to make pri- 
 v. > vate examination of books and pa- 
 
 C. D., pers. 
 
 Defendant. 
 
 This day this cause came on to be heard upon the motion 
 of the defendant herein, for an order appointing a master to 
 inspect certain books, papers and documents therein speci- 
 fied, an inspection and copy of which is sought by the plain- 
 tiff in this action, and the court having heard the evidence 
 and arguments of counsel finds that said motion is well 
 taken and that said books are of a mere private nature, and 
 therefore orders that E. F. be and he is hereby appointed as 
 a master to examine privately the following books, papers 
 and documents, to wit: 
 
 [Description of books. ~\
 
 ADMISSION AND INSPECTION OF DOCUMENTS. 58 1 
 
 And it is further ordered that E. F., as such master, with- 
 out unnecessary delay, make a private examination of said 
 books, documents and papers, and report to this court by the 
 day of , 18 — , whether such books, papers and doc- 
 uments contain matter pertinent to this cause, and whether 
 they should be properly produced, inspected and copied. 
 And is is further ordered that if said master finds that 
 any portion or portions of said books, papers and documents 
 should properly be produced, inspected and copied, he shall 
 make copies of such portions as may be pertinent to this 
 cause, and report the same to this court by the date above 
 named. 
 
 No. 920. 
 
 Order on Oral Application to Defendant to allow Inspection of 
 
 Record. 
 \CaptionJ\ 
 
 This day came the plaintiff, by his attorney, and on oral 
 motion to the court, which was argued by counsel for 
 plaintiff and defendant, and it being shown to the court that 
 proper notice was given to the defendant in that behalf on 
 
 the day of , 18 — , for an inspection and copies, or 
 
 permission to take copies of the several books, memorandum 
 sheets and records of the F. M. C, as described in said no- 
 tice, and the court doth find that the plaintiff's attorneys are 
 entitled to said inspection and copy, and does therefore order 
 that defendants grant the attorneys of plaintiff an inspection 
 and copies, which with permission to take a copy of the 
 same. And also such memorandum or record as will show 
 the amount of money paid, and it is ordered that said in- 
 spection shall be granted and permitted to begin on the 
 
 day of , 18 — , at o'clock. 
 
 No. 921. 
 
 Entry of judgment of Dismissal against Plaintiff failing to 
 produce Books. 
 [Caption, \ 
 
 Upon motion of A. B., defendant, and it appearing to 
 the court that the said plaintiff has failed to comply with the 
 order heretofore made herein requiring him to produce certain 
 books [or, writings] \nanu them if advisable^ and that said
 
 582 JUDGMENT ENTRIES. 
 
 books [or, writings] are in the possession of the said plaintiff, 
 and that said plaintiff still refuses to comply with said order 
 and to produce said books [or, writings] without showing a 
 good and valid excuse to the court for his said refusal, and 
 the court being satisfied that said plaintiff has no excuse for 
 such refusal, it is therefore considered and adjudged by the 
 court that the said action of the plaintiff herein be and the 
 same is herebv dismissed, at the costs of plaintiff herein, taxed 
 at* . 
 
 R. S. Sec. 5289. This may be modified if the defendant is one who is 
 ordered to produce papers and refuses. 
 
 MODES OF TAKING TESTIMONY. 
 
 (i?. S. Sees. 5261—5287.) 
 
 No. 922. 
 Journal Entry granting Commission. 
 
 [Caption.~\ 
 
 This day came A. B., the plaintiff [or, defendant] herein, 
 and moves the court for an order granting a commission to 
 
 take the deposition of C. D. , who resides at . And the 
 
 court being fully advised does order that a commission be 
 
 granted, to issue to E. F., Esq., of , empowering and 
 
 requiring him to take the testimony of said C. D., and he 
 is ordered to return the same to this court without delay. 
 It is further ordered that due notice of the time and place of 
 the taking of such deposition be given to the parties to this 
 action. 
 
 Note.— R. S. Sec. 5272. 
 
 No. 923. 
 Entry to appoint Commissioners to take Testimony in another State. 
 
 [Caption.^ 
 
 On motion of the plaintiff herein it is ordered by the 
 court that a commission issue under the seal of this court by 
 the clerk hereof, directed to H. M., of the county of ,
 
 MODES OF TAKING TESTIMONY. 583 
 
 and state of , empowering and requiring said H. M. to 
 
 take the deposition of A. M. M., of , of state, 
 
 upon the written interrogatories herein filed, and to return the 
 same to this court without unnecessary delay. 
 
 Whittaker's Civil Code, Sec. 5273 and notes. 
 
 No. 924. 
 Entry upon Exceptions filed to Depositions. 
 
 \Caption.~\ 
 
 This day this cause came on for hearing on the exceptions 
 heretofore filed by the plaintiff [or, defendant] to the deposi- 
 tions of C. D., taken in this cause on behalf of the defendant, 
 and was argued by counsel. On consideration whereof the 
 
 court finds that exceptions Nos. are well taken and 
 
 therefore sustains the same. And the court further finds that 
 exceptions Nos. are not well taken, and therefore over- 
 rules the same. It is therefore ordered that such portions of 
 the said depositions to which the exceptions were overruled 
 and such other portions of said depositions to which no 
 exceptions were taken be read in the trial of the cause. 
 
 R. S. Sees. 5284-87. 
 
 No. 925. 
 Journal Entry on Decision of Exceptions —Another Form. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the excep- 
 tions heretofore filed herein by the plaintiff [or, defendant] to 
 the deposition of A. B. taken in this cause on behalf of de- 
 fendant \<>>\ plaintiff] herein, and the court on due and careful 
 consideration of the same finds ' ; that said exceptions are 
 well taken and dors therefore sustain the same for the reason 
 that [state defects]. It is therefore ordered that the said 
 deposition be stricken from the files in this cause. 
 
 * [or, that said exceptions are not well taken and does therefore over- 
 rule the Bame.]
 
 5S4 JUDGMENT ENTRIES. 
 
 VARIANCE. 
 
 No. 926. 
 Entry finding Variance Material and Allowing Amendment. 
 
 [ Caption. ] 
 
 This cause coming on further to be heard to the court 
 (and jury), and upon the objections made by the defendant 
 that there is a material variance between the allegations in 
 plaintiff's pleading and his proof; and it appearing to the 
 satisfaction of the court that there is a variance between 
 pleading and proof which has materially misled [or, preju- 
 diced] the defendant, by [state how misled, etc.], it is there- 
 fore ordered that leave be granted to plaintiff to amend 
 
 his pleading within days; and the jury are discharged, 
 
 [or, by consent of parties (i?. 5. Sec. 5195) said jury is dis- 
 charged from further consideration of this cause], [or, on 
 
 application of A. B., a juror, is withdrawn, and the 
 
 residue of said jurors are discharged], and said cause is con- 
 tinued. 
 
 R. S. Sees. 5294, 5295. These statutes do not provide what shall be 
 done with the jury when it is necessary to continue the case. See R. S. 
 Sec. 5195. 
 
 TAKING CASE FROM JURY. 
 
 No. 927. 
 
 Entry Overruling Motion of Defendant to Arrest Case from Jury 
 
 — Defendant not Offering Testimony — Overruling Motion 
 
 for New Trial — Verdict and Judgment. 
 
 [Caption.] 
 
 And now came the said parties, with their attorneys, and 
 also came a jury, to wit, [name them], who were duly im- 
 paneled and sworn to well and truly try the issues joined be-
 
 TAKING CASE FROM JURY. 585 
 
 tween said parties, and thereupon said plaintiff offered his 
 evidence to the jury and rested his case, and thereupon the 
 said defendant moved the court to arrest said case from the 
 jury and to direct them to render a veidict in favor of said 
 defendant for costs, which motion was argued by counsel 
 and submitted to the court, and the court being fully advised 
 in the premises was of the opinion that said motion was not 
 well taken and^overrules the same, to which ruling and action 
 of the court in overruling said motion to arrest said case 
 from the jury and render a verdict for said defendant for 
 costs the said defendant at the time excepted, and the said 
 defendant not offering and having declined and refused 
 to offer any testimony, said court duly charged the jury, 
 and gave said jury the special instructions requested by 
 said defendant, and thereupon said jury retired to con- 
 sider upon their verdict, and after due consultation, returned 
 into open court their verdict in writing in the words and fig- 
 ures following, to wit : Verdict : We, the jury, being duly 
 impaneled and sworn, find the issues in this case in favor of 
 the plaintiff, J. F. M., and assess the amount of his damages 
 at $ . W. E. E., Foreman. 
 
 And thereupon said defendant filed its motion for a new 
 trial for reasons therein stated, which motion was argued by 
 counsel and submitted to the court, and the court being fully 
 advised in the premises is of the opinion that said motion 
 is not well taken and overrules the same, to which ruling and 
 action of the court in overruling said motion for a new trial 
 said defendant at the time excepted, and then and there pre- 
 sented to the court its certain bill of exceptions taken at said 
 trial, as to certain rulings and actions of the court, and on 
 motion of said defendant said bill of exceptions is signed, 
 sealed, allowed and ordered to be placed on file and made a 
 part of the record in this case. 
 
 It is therefore considered that the- said plaintiff, J. F. M., 
 
 recover of said defendant. The Company, said sum of 
 
 S , his dam ■■■ foresaid assessed by said jury, to- 
 gether with the ' this action, taxed at % , to which 
 
 ruling and action of the court, in giving said judgment, the 
 said defendant at the time excepted. 
 
 R. S. Sec. 5301.
 
 586 JUDGMENT ENTRIES. 
 
 No. g28. 
 
 Entry upon Motion to Arrest Testimony from Jury and for 
 Judgment — Granting it. 
 
 \CaptionJ\ 
 
 This day again came the said parties, by their attorneys, 
 and also came the jury heretofore impaneled and sworn. 
 
 And the evidence for the plaintiff being heard, the 
 defendants thereupon moved the court to arrest the testi- 
 mony from the jury, and for judgment, and argument of 
 counsel having been heard thereon, the court on consideration 
 grant said motion. 
 
 It is therefore considered by the court that the evidence 
 of the plaintiff be withdrawn from the jury, and that said 
 jury be and hereby are discharged from further consideration 
 of this case, and that the defendants go hence without day, 
 and recover from the plaintiff their costs herein expended, to 
 all of which the plaintiff excepts. 
 
 R. S. Sec. 5301. 
 
 MOTION FOR NEW TRIAL— JUDGMENT 
 UPON VERDICT. 
 
 No. 929. 
 
 Entry Overruling Motion for New Trial— Rendering Judgment 
 
 on Verdict. 
 \Caption.~\ 
 
 This cause came on to be heard on the motion of the 
 defendant for a new trial of this cause, and was argued by 
 counsel, on consideration whereof the court overruled said 
 motion. It is therefore considered by the court that the 
 plaintiff recover of the defendant the sum of fourteen hundred 
 dollars, heretofore found due her, and her costs in and about 
 
 this suit expended, taxed at $ , and that defendant pay 
 
 his own costs. To which ruling of the court, defendant, by 
 his attorney, excepts. It is further ordered that the journal 
 be kept open for — days after the date of this motion for the 
 entering of the allowance of bill of exceptions. 
 
 R. S. Sees. 5298, 5305.
 
 MOTION FOR NEW TRIAL. 5§7 
 
 No. 929^. 
 
 Another Form. 
 \CapHon.~\ 
 
 This cause coming on for hearing on the motion of the 
 defendant to set aside the verdict and for a new trial herein, 
 the court on consideration thereof overruled the same, to 
 which ruling the defendant at the time excepted and asked and 
 obtained fifty days' time in which to present and file his 
 bill of exceptions. 
 
 It is therefore considered by the court that said plaintiff 
 
 recover from the said defendant the said sum of hundred 
 
 dollars ($ ) as heretofore by the verdict of the jury found 
 
 due him, together with his costs herein expended, taxed 
 at S . 
 
 R. S. Sec. 529S. 
 
 No. 930. 
 
 Entry Overruling Motion for New Trial— Judgment upon Verdict 
 and allowance of Bill of Exceptions. 
 
 [Cap/ion.] 
 
 This day came the parties and their attorneys, and there- 
 upon this cause came on for hearing and was heard upon the 
 motion of said defendant for a new trial and was argued by 
 counsel. On consideration whereof the same is overruled. 
 To the overruling of which motion the said defendant now- 
 here excepts. Wherefore it is now considered and adjudged 
 that the said plaintiff have and recover of the said defendant 
 
 the sum of dollars ($ 1. the amount of the verdict of 
 
 the jury heretofore rendered herein, together with costs taxed 
 at $ . And execution is awarded therefor. 
 
 To the rendering of which judgment in favor of plaintiff 
 against said defendant the said defendant now here excepts. 
 
 And thereupon the said defendant, by its attorney, pre- 
 sented to the court for the allowance its certain bill of excep- 
 tions taken upon the trial of said cause. And the same 
 having been examined is now approved, allowed and signed, 
 sealed and ordered filed and made part of the record in said 
 can 
 
 R. S. Sees. 5305, 5302.
 
 588 JUDGMENT ENTRIES. 
 
 No. 931. 
 Entry upon motion for New Trial in Foreclosure Proceedings. 
 
 [Caption.] 
 
 This cause came on for hearing upon the motion for a 
 new trial filed by defendants therein mentioned on the — 
 day of , and the same was argued by counsel ; on con- 
 sideration whereof the court finds that said motion ought to 
 be sustained for the reasons therein mentioned in the third, 
 fourth, fifth and sixth grounds therein. 
 
 It is therefore considered by the court that said motion 
 be and the same is hereby sustained and a new trial is hereby 
 granted to said defendants for the said reasons therein set 
 
 forth, and the entry made herein on , in favor of said 
 
 plaintiff and G., and against the other defendants herein, is 
 hereby set aside and vacated ; to all of which the plaintiff, 
 W. D., and the defendant, G. K., except. 
 
 And the cause is continued for a new trial on the merits 
 and for such other proceedings as are warranted by law, to 
 all of which said D. excepts. 
 
 R. S. Sec. 5305. 
 
 No. 932. 
 
 Hearing upon motion for New Trial — Remittitur of portion of 
 verdict — In consequence of which motion Overruled — Judg- 
 ment Rendered. 
 
 [Caption."] 
 
 This cause now came on to be heard upon the motion of 
 
 said defendant, The Company, for a new trial ; and the 
 
 said motion was argued by counsel ; thereupon the plaintiff 
 
 in open court remitted from said verdict the sum of 
 
 dollars, and consented that judgment in his behalf should be 
 
 entered for the sum of dollars only, in consideration 
 
 whereof the court finds that the motion of the defendant 
 should be and the same is hereby overruled. Wherefore it 
 is considered by court that the plaintiff, J. L. , have and 
 
 recover from the said defendant, The Company, said sum 
 
 of dollars and the costs herein, to be taxed at $ , 
 
 and that execution issue therefor; to all of which rulings 
 and judgments the defendant then and there excepted, and 
 moved the court for leave within — days after the close of
 
 BILLS OF EXCEPTIONS. 589 
 
 the term of court to present, have signed, sealed and filed its 
 bill of exceptions; which motion the court do grant and 
 order that the same, when so allowed, shall thereupon become 
 and be made a part of the record in this case without further 
 order of the court. 
 
 R. S. Sees. 5305, 5302. 
 
 No. 933. 
 
 Entry Granting New Trial. 
 [Caption.] 
 
 This day this cause came on to be heard upon the motion 
 heretofore filed herein by the defendant for a new trial, and 
 was argued by counsel. And the court upon consideration 
 thereof finds said motion to be well taken and doth therefore 
 sustain the same. 
 
 It is therefore ordered that the verdict heretofore rendered 
 by the jury herein be and the same is hereby set aside and 
 held for naught, and that a new trial of said cause be and the 
 same is hereby granted. 
 
 R. S. Sec. 5305 ; as to when a motion for new trial is necessary, see 
 Kinkead's Pleading, Sec. 1251. This entry may be modified to suit any 
 case. 
 
 BILLS OF EXCEPTIONS. 
 
 See also Motions for New Trial. 
 (R. S. Sees. 5297—5304.) 
 
 No. 934. 
 Allowance of Bill of Exceptions. 
 \_Capti(»i. ] 
 
 This day came the defendant by his attorneys and pre- 
 sented his bill of exceptions, taken on the trial of this cause* 
 and it appearing to the court that the same has duly sub- 
 mitted to opposite counsel within the time requested by law, 
 and that the time has not yet elapsed for presentation to and 
 allowance by the court, said bill of exceptions being found
 
 590 JUDGMENT ENTRIES. 
 
 by the court to be true, is allowed, signed and sealed, and on 
 motion is hereby made part of the record in this case, but 
 not spread at large upon the journal of the court, as of this 
 
 term this day of , 18 — . 
 
 Whittaker's Civil Code, Sec. 5302 and notes. 
 
 No. 935. 
 Entry of Allowance of Bill of Exceptions — Another Form. 
 
 \Caption.~\ 
 
 This day came the defendant and presented its bill of ex- 
 ceptions in this case and moved the court to sign, seal and 
 allow the same, and order the same to be placed on file and 
 make it a part of the record in this case; and the court, upon 
 due consideration thereof, find that the said bill of exceptions 
 is a true bill of all the exceptions taken upon said trial, and 
 to the overruling of the motion for a new trial and the ren- 
 dition of said judgment ; and the court further finds that the 
 said bill of exceptions was prepared within the time allowed, 
 and submitted to the opposite counsel for their examination, 
 and is now presented to the court within the time allowed 
 for that purpose, and the same is therefore signed, sealed, 
 allowed by the court, and ordered to be placed on file and 
 made part of the record in this case. 
 
 R. S. Sec. 5302. 
 
 DISMISSAL OF ACTIONS. 
 
 See also Parties. 
 
 {R. S. Sees. 5313, 5314.) 
 
 No. 936. 
 Dismissal for failure to give Security for Costs. 
 
 [Caption.] 
 
 Upon motion of defendant, and it being made to appear 
 to the court that the plaintiff herein has failed to comply 
 with the order heretofore made herein requiring him to give 
 security for costs, it is ordered that this cause be dismissed at 
 his costs.
 
 JUDGMENTS IN GENERAL — COMMON FORMS. 59 1 
 
 No. 937. 
 Dismissal for Want of Prosecution at cost of Plaintiff. 
 
 [Caption.^ 
 
 This day this cause came on for trial, the same having 
 been regularly assigned for trial, and plaintiff being in default 
 and failing to appear, either in person or by attorney, the 
 case was called, and the court thereupon dismisses the same 
 at his costs, for want of prosecution. 
 
 R. S. Sec. 5313. This may be modified to meet grounds in 5313, 5314. 
 
 No. 938. 
 
 Reinstatement of Cause. 
 [Caption.] 
 
 On motion of , and by consent of the plaintiff herein, 
 
 this cause is by order of the court reinstated and restored to 
 the docket of this court. 
 
 JUDGMENTS IN GENERAL— COMMON 
 FORMS. 
 
 No. 939. 
 
 Entry of Ordinary Finding for Plaintiff upon Ordinary Indebtedness 
 — Jury Waived. 
 
 [Caption. J 
 
 This day this cause came on to be heard niton the plead- 
 ing, evidence, and arguments of counsel, a jury being waived 
 by the parties, and was submitted to the court. On con- 
 sideration whereof the court finds for the plaintiff, and that 
 the defendant is indebted to plaintiff upon the account 
 \jioh , eh . I set forth in plaintiff's petition in the sum of $ . 
 
 It is therefore ordered and adjudged by the court that the 
 
 plaintiff recovei from the defendant the said sum of $ , 
 
 together with his costs herein, taxed at $ .
 
 592 JUDGMENT ENTRIES. 
 
 No. 940. 
 Judgment for Defendant — Common Form— Without Jury. 
 
 [Caption.'] 
 
 This cause coming on for hearing upon the pleadings and 
 evidence and arguments of counsel (a jury herein having 
 been waived by the parties), and was submitted to the court. 
 On consideration whereof, and the court being fully advised 
 in the premises, finds for the defendant ; that there is nothing 
 due plaintiff from the defendant upon the claim set forth in 
 plaintiff's petition.* 
 
 It is therefore ordered and adjudged by the court that the 
 said defendant go hence witout day and recover the costs 
 herein by him expended, taxed at $- . 
 
 No. 941. 
 Finding and Judgment for Defendant on Counter-claim. 
 
 [Caption.] 
 
 [From *, ante No. 940, proceed^ 
 
 And this cause coming on further to be heard upon the 
 answer and cross-petition of the defendant, and the court 
 being fully advised in the premises finds that there is due 
 defendant upon his counter-claim in his said answer set forth 
 from said plaintiff the sum of $ . 
 
 It is therefore ordered and adjudged by the court that 
 defendant recover from plaintiff the said sum of $ , to- 
 gether with his costs herein, taxed at $ . 
 
 No. 942. 
 
 Finding and Judgment for Plaintiff, and also for Defendant on 
 Counter-claim or Set-off. 
 
 [Caption. ] 
 
 This day this cause came on for hearing upon the petition, 
 the answer and cross petition of the defendant and the reply of 
 plaintiff, and the parties herein waving a jury the same was 
 submitted to the court without the intervention of a jury. 
 And the court being fully advised in the premises finds that 
 there is due plaintiff from the defendant upon the cause of 
 action in his petition set forth the sum of $ ; and that
 
 JUDGMENTS IN GENERAL — COMMON FORMS. 593 
 
 there is due defendant from plaintiff upon the counter-claim 
 [or, set-off] in his answer and cross petition set forth the sum 
 off—. 
 
 It is therefore by the court ordered and adjudged that 
 
 the plaintiff recover from the defendant the sum of $ , 
 
 less the sum of S , found due the said defendant upon his 
 
 counter-claim, amounting to the sum of $ , together with 
 
 his costs herein expended, to be taxed. 
 
 No. 943. 
 Judgment upon Joint Obligation. 
 
 [Caption.~\ 
 
 This day this cause came on to be heard (upon the motion 
 for a new trial) [as in ante No. 940] [or, upon the pleadings 
 and evidence, a jury being waived by the parties, and was 
 submitted to the court. On consideration whereof] and the 
 court being fully advised in the premises, finds that each and 
 all the defendants are properly before the court; that the 
 note set forth in the petition is a joint obligation upon which 
 all of the defendants are jointly liable, and that there is due 
 plaintiff jointly from all of the defendants herein the sum of 
 
 It is therefore ordered and adjudged by the court that the 
 plaintiff do recover jointly from all of said defendants the 
 sum of £ , together with his costs herein expended. 
 
 Note. — R. S. Sees. 5311 and 5312, authorizing judgment against one or 
 more of several defendants, and allowing thi proceed against the 
 
 others whenever a several judgment is proper, apply of course onlytocases 
 where the claim is several and several judgment may be rendered. Hank 
 v. Walters, i O. S. 201 ; Mason v. Alexander, 11 < >. S. 318; Kilbourne v. 
 Fury, 26 O. S. 153; Aucker v. Adams, 23 < >. S. 543. It follows that where 
 the obligation is strictly joint, the judgment must be a joint one against 
 
 all. Aucker v. Adams, 23 O. S 543; Voss v. J.oomis, I O. C. C. 203; 
 
 Carr v. Beckett, 1 O. C. C. 72; Black on Judgments, Sec. 210; Freeman on 
 Judgments, Sec. 43. 
 
 No. 944. 
 
 Entry sustaining Demurrer to Answer — With finding for Plaintiff 
 upon Petition and Evidence. 
 
 [ ( 'option. ] 
 
 Thi - 1 ause came on to be heard on the demurrer of plain- 
 tiff to the answer of defendants, and was argued by counsel. 
 On con ideration whereof the court finds said demurrer well 
 taken, and sustains the same. It is therefore considered and
 
 594 JUDGMENT ENTRIEvS. 
 
 adjudged that said demurrer be and the same is hereby sus- 
 tained, and the defendants not desiring to amend their said 
 answer, or to further or otherwise plead in this action, and 
 this cause coming on further to be heard on the petition and 
 evidence, the court find there is due plaintiff from the de- 
 fendants on the two causes of action in the petition stated 
 
 the sum of $ , principal debt, and $ , interest to the 
 
 — day of , A. D. 18 — , in all, $ . It is therefore 
 
 considered and adjudged by the court that the plaintiff , D. P., 
 recover of the defendants, H. H. S., J. S. B., J. D. M., and 
 
 H. S. , the said sum of $- , and his costs herein expended, 
 
 taxed at $ , and execution is awarded for said judgment 
 
 and costs. 
 
 To which judgment and finding on said demurrer the 
 defendants except. And they also except to the judgment 
 of the court in rendering judgment for plaintiff in this action. 
 
 No. 945. 
 
 Judgment non obstante Veredicto. 
 
 \Caption.~\ 
 
 This day came the parties, and the jury having heretofore 
 returned a verdict for the defendant, the plaintiff moves the 
 court for judgment in his favor on the pleadings, notwith- 
 standing said verdict. And the court being fully advised in 
 the premises sustains said motion, to which the defendant 
 excepts ; and having heard the arguments of counsel upon 
 the assessment of damages now assess the same at dollars. 
 
 It is therefore considered and adjudged by the court that 
 the plaintiff recover of the defendant dollars, notwith- 
 standing the verdict of the jury, together with his costs, 
 taxed at $ . 
 
 No. 946. 
 Judgment upon the Pleadings. 
 
 \Caption?^ 
 
 This day this cause came on to be heard upon the plead- 
 ings, and the motion of the defendant for judgment thereon, 
 was argued by counsel and submitted to the court. On con- 
 sideration whereof, and the court being fully advised in the 
 premises, finds that plaintiff is entitled to judgment upon the
 
 DEFAULT JUDGMENTS. 595 
 
 pleading; that [then make stick finding as may be warranted 
 by the pleadings, .] 
 
 It is therefore considered, ordered and adjudged by the 
 court that the plaintiff recover from the defendant, etc. 
 
 R. S. Sec. 532S. 
 
 No. 947. 
 
 Contract held Valid. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the petition and 
 answer and the exhibits attached to said pleadings and made 
 a part thereof, and was argued by counsel and submitted to 
 the court. On consideration whereof the court find that the 
 contract set forth in the petition, a copy of which is thereto 
 attached, is a legal and valid and binding contract, and that 
 the plaintiff is entitled thereunder to the payment of his 
 claim as set forth in his petition. 
 
 It is therefore ordered, adjudged and decreed by the court 
 that the plaintiff recover upon his said claim the sum of 
 
 $ . together with his costs herein expended, taxed at 
 
 $ , and that the order of the board of county commis- 
 sioners rejecting and dismissing said claim and annulling said 
 contract be and the same is hereby reversed, vacated and held 
 for naught. 
 
 DEFAULT JUDGMENTS. 
 
 (A'. S. See. 5320.) 
 
 No. 948. 
 Entry Appointing Referee, or Master, to Assess Damages. 
 
 [ ( 'aption. \ 
 
 This cause coming on to be heard upon the pleadings, 
 and it appearing that the defendant K. F. has been duly 
 and legally served with process, and that he is in default for 
 answer or demurrer, it is therefore considered by the court 
 that the allegations in plaintiff's petition contained are con-
 
 596 JUDGMENT ENTRIES. 
 
 fessed by said defendant to be true, and the court so accord- 
 ingly finds.* 
 
 And the court deeming it necessary, orders and adjudges 
 that said cause be referred to A. D., a master commissioner 
 (or, as referee), who is hereby directed, authorized and em- 
 powered to hear the proof which may be adduced by plaintiff 
 touching the amount of damages which he may have sus- 
 tained by reason of the facts alleged in plaintiff's petition, 
 and to ascertain and assess the said damages so as aforesaid 
 sustained by him, and report the same to this court without 
 delay. 
 
 R. S. Sec. 5320. 
 
 No. 949, 
 Entry upon Filing of Master's Report and Approval of same. 
 
 [Caption.] 
 
 This day came A. D. , heretofore appointed master com- 
 missioner to ascertain and assess the amount of the damages 
 which the plaintiff may have sustained by reason of the facts 
 in his said petition alleged, and filed his report herein. And 
 there being no exceptions or objections filed to said report, 
 and the court having carefully examined the same, and find- 
 ing it to be in all respects regular and correct, does therefore 
 approve the same, and the amount so assessed by said master, 
 
 to wit, the sum of $ , the court orders shall stand as the 
 
 amount which the court finds to have been the damages sus- 
 tained by the plaintiff. 
 
 It is therefore ordered that the plaintiff recover from the 
 defendant, etc. 
 
 No. 950. 
 Entry referring Assessment of Damages to Jury. 
 
 [ Caption. ] 
 
 {Proceeding from * in ante No. 948.] And the court 
 deeming it necessary, orders that the assessment of the dam- 
 ages (or, the taking an account of the fact, etc.), be re- 
 ferred to a jury to ascertain and assess the same. 
 
 And thereupon came the following named jurors, [name 
 them], who were duly impaneled and sworn according to 
 law, and said jury having heard the evidence, retired to 
 their room for deliberation. And in due time the jury came 
 into court and returned the following verdict [copy verdict]. 
 
 It is therefore considered, etc. [usual judgment].
 
 DEFAULT JUDGMENTS. 597 
 
 No. 951. 
 Judgment by Default — Ordinary Form. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 of the plaintiff, and thereupon it appearing to the court that 
 said defendant having been duly served with summons 
 herein, is in default for answer or demurrer to the petition 
 of said plaintiff, it is considered by the court that the allega- 
 tions of said petition are confessed by said defendant to be 
 true, and that said defendant * is indebted to plaintiff as in 
 said petition alleged, and that there is now due said plaintiff 
 from said defendant the sum of $ , with interest from 
 
 It is therefore considered by the court that the said 
 
 plaintiff recover from the defendant the sum of $ , and 
 
 costs herein expended, taxed at $ . 
 
 R. S. Sec. 5320. 
 
 No. 952, 
 Default as against one Defendant. 
 
 [Caption. ] 
 
 This day this cause coming on for hearing on the peti- 
 tion, amendment thereto and the answer of defendant J. W. 
 and the evidence, the defendants N. W. and F. L. being 
 in default for answer and demurrer, and by consent of the 
 plaintiff and defendant J. \Y., on consideration thereof the 
 court finds on the issues joined between the plaintiff and de- 
 fendant J. \\\. for said plaintiff, and finds the allegations 
 of the petition confessed as against the defendants N. W. 
 
 and I". L,., and that said defendant J. W. is indebted to the 
 plaintiff in the sum of $ , with interest thereon from 
 
 , IS—. 
 
 It is therefore considered that the said D. H., plaintiff, 
 
 ei from the said J. W. the said sum of $ and his 
 
 costs herein expended. 
 
 k. S. Sec. 5320.
 
 59 8 JUDGMENT ENTRIES. 
 
 No. 953. 
 
 Entry when Action is for Damages. 
 
 [ Caption. ] 
 
 {Proceeding from * in ante No. 951] is entitled to recover 
 damages from the defendant, which the court finds after hav- 
 ing heard the proof adduced with respect thereto to be the 
 sum of $ . 
 
 It is therefore considered, ordered and adjudged that the 
 plaintiff recover from the defendant the sum of $ , to- 
 gether with his costs, for which execution is awarded. 
 
 R. S. Sec. 5320. 
 
 REVIVOR OF JUDGMENT. 
 
 (i?. S. Sees. 5366— 5371.) 
 
 No. 954. 
 Revivor of Judgment on Petition. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the petition to re- 
 vive a judgment heretofore rendered in this cause in the 
 
 Court of Common Pleas, county, Ohio, wherein the 
 
 said L. M. was plaintiff and the said D. B. was defendant. 
 And it appearing to the court that the said defendant has 
 been duly served with a summons herein, and that no cause 
 has been shown why said judgment should not be revived, 
 it is therefore considered, ordered and adjudged by the court 
 that the said judgment heretofore rendered by this court at 
 
 the term, 18 — , in favor of this plaintiff and against 
 
 this defendant for the sum of $ , with interest from the 
 
 day of , 18 — , and $ , his costs of suit against 
 
 the said defendant, D. B., do stand revived. It is also fur- 
 ther considered that the plaintiff recover from the defend- 
 ant, D. B. , his costs herein expended since the day of 
 
 , for all of which execution is awarded. 
 
 R. S. Sees. 5367-5380. Kinkead's Code Pleading, Sec. 11 12.
 
 REVIVOR OF JUDGMENT. 599 
 
 No. 955. 
 Entry of conditional Order of Revivor. 
 
 \CaptionJ\ 
 
 This day came A. C. and made representations to the 
 court that the judgment heretofore rendered in this cause 
 
 by this court, on the day of , 18 — , against the 
 
 said defendant for the sum of S , with interest and costs, 
 
 is still due and unpaid, and has become dormant, and upon 
 motion of the said plaintiff it is ordered that unless good 
 cause be shown by said defendant why said judgment should 
 
 not be revived within days after this order shall have 
 
 been served upon him, said judgment shall stand revived 
 against him and be in full force. 
 
 No. 956. 
 Entry of Revivor when conditional Order has been Served. 
 
 \Captio7i.~\ 
 
 This day this cause came on for further hearing upon the 
 motion filed herein by plaintiff for an order of court reviving 
 the judgment heretofore entered in this cause. And it ap- 
 pearing to the court that the conditional order of revivor 
 heretofore made herein has been duly and properly served 
 upon the defendant, and said defendant not having shown 
 any good and sufficient reason why said judgment should not 
 stand revived against him, it is by the court considered, or- 
 dered and adjudged that the said judgment heretofore ren- 
 dered herein, to wit, on the day of , for the sum 
 
 of $ , against said defendant, and $ , his costs, be 
 
 and the same is hereby revived against said defendant, and 
 execution is awarded accordingly. 
 
 No. 957. 
 
 Entry of Revivor against Personal Representative of deceased 
 
 Defendant. 
 \Capiinn. I 
 
 This day this cause came on to be heard upon the peti- 
 tion heretofore filed herein by plaintiff for revivor of the 
 judgment herein for the sum of $ and costs. And it 
 
 39
 
 60O JUDGMENT ENTRIES. 
 
 appearing to the court that said judgment is still unsatisfied 
 but dormant, and that since its rendition the said defendant 
 has departed this life, and that E. D. is the duly appointed 
 and qualified administrator of the estate of the said E. J., de- 
 ceased, that said E. D. has been duly and legally served with 
 notice of these proceedings, and no cause having been shown 
 by said administrator why said judgment should not stand 
 revived against him as such administrator, it is ordered that 
 said E. D., as such administrator, is hereby made a party 
 to said judgment, and said judgment is revived against him. 
 
 R. S. Sec. 5369. This may be made by conditional order, following 
 the other entries. 
 
 No. 958. 
 Entry Reviving Decree for Alimony. 
 
 \Caption.~\ 
 
 This case came on for hearing to the court upon the 
 demurrer of the plaintiff to the second and third grounds of 
 defense in the answer, and having been argued by counsel, 
 and the court being fully advised in the premises, the said 
 demurrer is sustained, to which ruling of the court the 
 answering defendants except. And this cause coining on for 
 trial upon the issues joined between the parties, and neither 
 party demanding a jury, a jury is by the parties, and by the 
 guardian ad litem for the minor defendants, orally in open 
 court waived, and this cause is submitted to the court for a 
 new trial upon the pleadings and testimony. And the court 
 having heard the evidence, and being fully advised in the 
 premises, finds that all the allegations of fact contained in 
 the petition are true. It is therefore considered, adjudged 
 and decreed by the court that the decree for alimony men- 
 tioned in the petition be revived as against each and all the 
 parties defendant, the real estate described therein, as to all 
 installments thereof, whether matured or not, except as such 
 thereof as have as alleged in the petition been satisfied by 
 payment. And the court further finds that there is due and 
 unpaid, on the various matured installments of said decree, 
 
 including that which matured , 18 — , with interest from 
 
 the time each installment severally matured up to the — day 
 
 of , 18 — , the sum of dollars ($ ). It is therefore 
 
 further adjudged and decreed by the court that unless said sum 
 
 of $ , with interest from , 18 — , and the costs of this 
 
 action be paid within ten days after this term, the sheriff of 
 this county shall proceed to advertise and sell the real estate
 
 ENFORCEMENT OF JUDGMENT — EXECUTION. 6oi 
 
 described in the petition according to law, free from all liens 
 described in the petition, and out of the proceeds pay, first, 
 the costs in this case, the said sum of $-*- — , with interest, 
 and that the remainder of said proceeds he bring into court, 
 to abide its further order, and this cause is continued, to 
 which judgment and decree said answering defendants except. 
 
 ENFORCEMENT OF JUDGMENT— EXE- 
 CUTION. 
 
 (i?. S. Sees. 5372—54 6 3-) 
 
 No. 959. 
 
 Entry Authorizing Sheriff to have Personal Property Appraised 
 and Sold at Private Sale. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation of — — , plaintiff (or, defendant) herein, for an order 
 authorizing the sheriff to sell the goods and chattels of the 
 defendant held by him by virtue of a levy made under an 
 execution issued herein at private sale. And it appearing to 
 the court that due notice has been given the defendant (or, 
 plaintiff) of the filing and time set for the hearing of this 
 application, and that it will be for the best interests of the 
 parties hereto, and foi good cause shown, it is ordered that 
 the sherifl proceed to have said personal property so held by 
 him under said execution appraised by three disinterested 
 persons of the county, and that he shall thereupon proceed 
 11 said property at private sale for cash, at not less than 
 two thirds of the appraised value thereof, and that he pro- 
 
 ceed to this order within days from the date 
 
 hereof. 
 
 EL S. Sec. 53^7-
 
 602 JUDGMENT ENTRIES. 
 
 No. 960. 
 
 Entry ordering Sheriff to sell Stock of Goods Levied upon at 
 Private Sale — Also to collect Book Accounts — Another Form. 
 
 \_Caption.~\ 
 
 This day came the plaintiff and defendants, and it appear- 
 ing to the court that it would be to the best interest of the 
 defendants to sell the stock of goods and chattels levied upon 
 by the sheriff upon execution herein at private sale rather 
 than selling at public auction according to the command of 
 said execution, and the defendants now coming and request- 
 ing the court to direct the said sheriff to sell the property so 
 levied upon at private sale, it is here ordered by the court, 
 with the consent of the plaintiff, that the said sheriff proceed 
 to sell the goods and chattels so levied upon as aforesaid, 
 except the book of accounts, at private sale for not less than 
 the cost thereof, and that he return the proceedings thereof 
 into court with the return of said execution. Said sheriff is 
 also directed and authorized to collect as far as possible the 
 accounts upon the books of account so levied while dis- 
 posing of said stock of goods. 
 
 No. 961. 
 
 Entry upon Motion to set aside Appraisement of Real Estate 
 made under R. S. Sees. 5389, 5390. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the motion 
 
 of to set aside the appraisement made of the real estate 
 
 of defendant, levied upon by the sheriff under the execution 
 issued herein, and deposited herein (*). On consideration 
 whereof the court finds that said motion is well taken, and 
 does therefore order and adjudge that said appraisement be 
 and the same is hereby set aside and held for naught ; it is 
 further ordered that the sheriff cause a new appraisement to 
 be made of said premises. 
 
 R. S. Sees. 5389, 5390.
 
 ENFORCEMENT OF JUDGMENT — EXECUTION. 603 
 
 No. 962. 
 
 Entry overruling Motion to set aside Appraisement. 
 
 [Caption. ] 
 
 [Continuing from * in ante No. 961. 1 
 
 On consideration thereof the court overrules said motion. 
 
 No. 963. 
 Publication of Notice in German Paper Dispensed withe 
 
 [Caption.] 
 
 Upon motion of plaintiff herein, and for good cause, it is 
 ordered that publication of the notice of execution sale here- 
 in to be made be and the same is hereby dispensed with. 
 
 R. S. Sec. 5394. 
 
 No. 964. 
 Entry ordering Publication of Notice in Bohemian Paper. 
 
 [Caption.'] 
 
 On motion of plaintiff herein, and the court deeming it 
 for the best interests of the defendant, orders that, in addition 
 to the usual publication, notice of the execution sale to be 
 made herein be made in the [name of papcr\ according 
 to law. 
 
 R. S. Sec. 5394. 
 
 No. 965. 
 Entry confirming Execution Sale. 
 
 {Caption. I 
 
 This cause- coming on to be heard upon the return of the 
 sheriff of the writ of execution heretofore issued herein, and 
 the motion of the plaintiff to confirm the sale made by said 
 sheriff thereunder. < >u consideration whereof, the court, upon 
 a careful examination of the proceedings of said sheriff under 
 said writ, finds that the same are regular and correct, and 
 that said sale so made by him has been in all respects in con- 
 form it v to law land the orders of this court).
 
 604 JUDGMENT ENTRIES. 
 
 It is therefore considered, ordered and adjudged by the 
 court that said sale be and the same is hereby approved and 
 confirmed ; that said sheriff make and deliver to the purchas- 
 er, A. B. , a good and sufficient deed for the lands so sold to 
 him ; (that a writ of possession be awarded placing said pur- 
 chaser in possession of said premises;) and that he be subro- 
 gated to all the right of any lienholder whose claim may 
 be satisfied from the proceeds of said sale. 
 
 It is further ordered that said sheriff, out of the funds in 
 his hands arising from said sale, pay : ist. The taxes due 
 thereon ; 2d. The costs herein taxed ; 3d. To the plaintiff 
 the sum of $ , the amount of his judgment herein, etc. 
 
 R. S. Sec. 5398. As to subrogation, Sec. 5410. Whittaker's Civil Code, 
 pp. 293, 294, notes. 
 
 No. 966. 
 Entry ordering Master Commissioner to Convey. 
 
 \Caption.~\ 
 
 Upon motion of plaintiff herein, and it appearing to the 
 court that by an (order) (or, judgment) heretofore made here- 
 in, the defendant was ordered to convey the real estate in 
 plaintiff's petition described to plaintiff herein, but that said 
 defendant has neglected and failed to comply with said order, 
 it is ordered that G. O. (a master commissioner of this 
 court) (or, who is hereby appointed as special master for this 
 purpose), be and he is hereby directed and empowered to con- 
 vey said premises to said plaintiff according to law. 
 
 Note. — This entry is authorized by R. S. Sec. 5399, but a decree in a 
 chancery case may be so framed as to operate as a conveyance if the party 
 fails to make the deed. 
 
 No. 967. 
 
 Entry ordering Sale to be made on the Premises. 
 
 \Caption.^\ 
 
 Upon motion of plaintiff (or, defendant), and for good 
 cause shown, it is ordered by the court that the sheriff pro- 
 ceed to advertise and sell the premises under the writ of ex- 
 ecution issued herein upon the premises, according to law. 
 
 R. S. Sec. 5404.
 
 ENFORCEMENT OF JUDGMENT — EXECUTION. 605 
 
 No. 968. 
 Entry ordering Successor of Sheriff to make Deed. 
 
 \Cap tion.~\ 
 
 Upon motion, and it appearing to the court that the term 
 of service of J. R., the sheriff who made the sale under 
 the execution hereinbefore issued has expired, and that the 
 sale so made by said J. R. to C. D. was fairly and legally 
 made, and that \V. V. is the successor in office of said J. R., 
 it is therefore ordered by the court that the clerk of this 
 court issue a certificate setting forth these facts, according to 
 law, and deliver the same to said W. Y., and that said VY. 
 Y., upon payment of the purchase money (or upon proof of 
 payment of purchase money), execute and deliver to C. D., 
 purchaser aforesaid, a good and sufficient deed for the prem- 
 ises so sold to him according to law. 
 
 R. S. Sec. 5407. 
 
 No. 969. 
 
 Entry subrogating Purchaser to right of Creditor against Debtor 
 — When Title of Purchaser imperfect. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the motion of 
 -, the purchaser of the premises herein sold under execu- 
 
 tion, was argued by counsel and submitted to the court. On 
 consideration thereof, and the court being fully advised, finds 
 that said motion is well taken, and that the title to the 
 premises so purchased by him is imperfect and invalid by 
 reason [state //>>;<■ defect arises], therefore sustains the said 
 motion. It is therefore considered and ordered by the court 
 
 that tlie said be and he is hereby subrogated to the 
 
 rights of , the said , plaintiff herein, as against 
 
 the said , judgment debtor herein, to the extent of the 
 
 money so paid by said , and applied to the benefit of 
 
 the said judgment debtor, , andth.it thesaid have a 
 
 lien on the premises sold herein, as against all persons, ex- 
 cept bona fia\ purchasers without notice-, and that the said 
 
 plaintiff shall not be liable to refund the said purchase 
 monc\ so received bv him herein by reason of the premises 
 and of such irregularity or defect herein found. 
 
 k. S. Sec. 5410.
 
 606 JUDGMENT ENTRIES. 
 
 No. 970. 
 Entry vacating Satisfaction of Judgment under R. S. Sec. 5412. 
 
 [Caption.] 
 
 Upon motion of , and due notice thereof, and it hav-| 
 
 ing been satisfactorily made to appear to the court that the I 
 property levied upon under an execution herein and sold, 
 was not subject to said execution, and that said property was 
 
 the property of , and that plaintiff has paid to said 
 
 upon recovery had by him against plaintiff the sum of $ , 
 
 it is ordered that the satisfaction of the judgment herein be 
 and the same is hereby set aside and held for naught, and 
 that the former judgment be and is hereby restored and 
 revived. 
 
 See also R. S. Sec. 5413. 
 
 No. 971. 
 Entry ordering New Appraisement for Sale on Execution. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the motion 
 of plaintiff herein to set aside the appraisement made herein 
 under an execution and for a new appraisement. And it 
 appearing that said premises have been twice offered under 
 said former appraisement, and remain unsold, it is ordered 
 that said former appraisement be and the same is hereby set 
 aside, and the sheriff is hereby directed and empowered to 
 have a new appraisement to be made of said premises, and 
 that he proceed to advertise and sell said premises under such 
 new appraisement according to law. 
 
 R. S. Sec. 5416. 
 
 No. 972. 
 Entry directing the Amount at which Premises to be Sold. 
 
 \Caption.~\ 
 
 Upon motion of plaintiff, and it appearing to the court 
 that the premises herein have been appraised three times, 
 and that the same have been twice advertised and offered for 
 sale under such third appraisement, and that the same remain 
 unsold for want of bidders, it is ordered that the sheriff pro-
 
 ENFORCEMENT OF JUDGMENT — EXECUTION. 607 
 
 ceed to advertise and sell said premises for the sum of $ , 
 
 upon the following terms, to wit: [state terms.'] 
 R. S. Sec. 5416. 
 
 No. 973. 
 
 Entry upon ordering Re-appraisement and Re-assignment of 
 
 Homestead. 
 [Caption.] 
 
 This day this cause came on to be heard upon the com- 
 plaint filed herein by , as to the appraisement and 
 
 assignment of homestead, made by the sheriff under the 
 execution issued herein, and it appearing to the court that 
 [state reasons for making order]. It is therefore ordered that 
 the appraisement and assignment heretofore made herein be 
 set aside, and that the said sheriff cause a re-appraisement 
 
 and re-assignment of the homestead to the said according 
 
 to law, and return his proceedings hereunder. 
 
 R. S. Sec. 5438. 
 
 No. 974. 
 Entry authorizing Execution against the Person. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the motion of 
 -, and it appearing that the judgment heretofore rendered 
 
 herein for the sum of S against said defendant remains 
 
 unsatisfied, and that [here state existence of any of the 
 grounds under R. S. Sec. 5448]; it is therefore ordered that 
 an execution be allowed to issue against the person of the 
 said defendant according to law. 
 
 R. S. Sees. 544 s . 5449- 
 
 No. 975. 
 
 Entry Discharging Debtor. 
 [ ( 'aption. ] 
 
 It appearing from evidence adduced that the defendant 
 herein is unable to pay the judgment [or, is unable to endure 
 the imprisonment], it is ordered tnat said be dis- 
 charged and released tVoin further imprisonment under the 
 it ion herein. 
 k s Sec 5456.
 
 608 JUDGMENT ENTRIES. 
 
 No. 976. 
 Entry Discharging Debtor upon Motion 
 
 [Caption.'] 
 
 Upon motion and for satisfactory reasons it is ordered 
 that the defendant be and he is hereby released and discharg- 
 ed from further imprisonment herein, under the execution 
 issued herein. 
 
 R. S. Sec. 5461. 
 
 No. 977. 
 Motion to Grant Stay of Execution. 
 
 [Caption.] 
 
 This cause came on this day to be heard upon the motion 
 of the defendant to grant a stay of execution of the judg- 
 ment rendered herein. On consideration whereof the court 
 grants said motion, and it is hereby ordered that execution 
 on said judgment be and the same is hereby stayed for a 
 
 period of days, on consideration that the defendant 
 
 w ithin days from the making of this order give bond 
 
 in the sum of $ , to the satisfaction of the clerk of this 
 
 court, properly conditioned according to law. 
 
 PROCEEDINGS IN AID OF EXECUTION. 
 
 (J?. S. Sees. 5472—5490.) 
 
 A proceeding in Aid of Execution is in no sense an action. The judge 
 sits not as a court, but merely as a statutory tribunal of limited jurisdic- 
 tion. The judge has no equity powers, no power to call a jury, and can 
 neither make new parties nor settle controversies between the judgment 
 debtor and third parties. The moment a dispute as to the property which 
 the debtor has with a third person arises, the judge loses his jurisdiction 
 over the subject-matter. (1 W. L. M. 87, 143; n O. S. 323.) It will be noticed 
 that all the provisions speak of the judge excepting one.
 
 PROCEEDINGS IN AID OF EXECUTION. 609 
 
 No. 978. 
 
 Application for an order for Examination of Judgment Debtor in 
 case in which Judgment was rendered. 
 
 A. B., 1 
 
 Plaintiff, 
 
 C. D., 
 
 Defendant. 
 
 Application for Examination 
 of Defendant. 
 
 Now comes the plaintiff herein and represents to the 
 court that on the — day of , 18 — , he caused an execu- 
 tion to be issued in the above-entitled cause to the sheriff of 
 
 this county, which execution was on the — day of , 18 — , 
 
 returned by said sheriff, indorsed "no goods or chattels or 
 lands found whereon to levy"; that said execution remains 
 wholly unsatisfied. 
 
 Plaintiff therefore asks that an order may issue requiring 
 the said C. D. to appear and answer concerning his property, 
 at such time and place as may be named. 
 
 , Attorney. 
 
 ( The usual verification. ) 
 
 Examination of debtor after return of execution. Whittaker's Civil 
 Code, Sec. 5472. Before return of execution. Id., Sec. 5473. Kinkead's 
 Code Pleading, Sec. 102 1. 
 
 No. 979. 
 
 Application for an Examination of Judgment Debtor in Independ- 
 ent Proceeding. 
 
 A. B., 
 
 C. I)., 
 
 Plaintiff, 
 
 I >efendant. 
 
 Application for Examination 
 of Debtor. 
 
 Plaintiff says that on the — day of , [8 — , he recov- 
 ered a judgment against the defendant in the above-entitled 
 
 action for the sum of $ , and $ , costs, in the court of 
 
 , that he caused an execution to be issued in said cause, 
 
 which was on the -- day of , t8 — , returned by the 
 
 sheriff of county, Ohio, indorsed [copy oj indorse- 
 ment, that said judgment is still in full force and wholly 
 unsatisfied.
 
 6lO JUDGMENT ENTRIES. 
 
 Plaintiff says that one E. F. is indebted to said defendant 
 [state how]. 
 
 Plaintiff therefore asks that an order may issue requiring 
 said defendant, C. D., and the said E. F. to appear and 
 answer concerning the property of said defendant at such 
 time as may be named. 
 
 , Attorney. 
 
 ( Usual verification, or it may be in the form of motion 
 without verification. ) 
 
 R. S. Sec. 5472 ; Kinkead's Code Pleading, Sec. 1021. 
 
 No. 980. 
 
 Affidavit for Order requiring Defendant to Appear and Answer 
 concerning his Property. 
 
 [Caption.] 
 
 A. B. (plaintiff in foregoing action), being duly sworn, 
 says that he recovered a judgment against the said C. D., 
 
 for the sum of $ , in the court of , on the day 
 
 of , 18—. That on the day of , 18—, he 
 
 caused an execution to be issued in said cause to the sheriff 
 
 of county, Ohio. That on the day of , 18—, 
 
 said sheriff returned said execution wholly unsatisfied, in- 
 dorsed ' ' no property of the defendant subject to execution on 
 which to levy." 
 
 Affiant says that the said judgment debtor has the fol- 
 lowing-described property which he unjustly refuses to apply 
 toward the satisfaction of the judgment, to wit : {here state 
 what the property is which is sought to be reached). 
 
 A. B. 
 
 (Or, where third person has property.) That the said E. 
 F., a resident of said county, is indebted to the said C. D. 
 upon (state how), (or, that E. F., a resident of said county, 
 has property in his possession belonging to said defendant, 
 C. D., to wit [describe it]. 
 
 Subscribed in my presence and sworn to before me this 
 day of , 18 — .
 
 PROCEEDINGS IN AID OF EXECUTION. 6ll 
 
 No. 981. 
 
 Entry upon filing of Petition and Affidavit— Ordering Judgment 
 Debtor to Appear. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the plaintiff's pe- 
 tition and affidavit, and it appearing to the court that on 
 
 the day of , 18 — , plaintiff, by the consideration of 
 
 the court of county, Ohio, recovered a judgment 
 
 against defendant in the sum of $ , and interest at 
 
 from , and costs taxed at $ , and that on the 
 
 cla v of , 18 — , plaintiff caused an execution on said 
 
 judgment to be issued to the sheriff of said county, 
 
 Ohio, of which county defendant then was and now is a 
 
 resident, which execution was on the day of , 
 
 18 — , returned wholly unsatisfied, endorsed "No property 
 found." 
 
 It further appearing to the court that no part of said 
 judgment has been paid, and that said defendant probably 
 has property which he unjustly refuses to apply toward the 
 satisfaction' of said judgment, * it is therefore ordered that 
 an order issue requiring said C. A. to be and appear before 
 
 this court on the day of , 18 — , at o'clock, 
 
 and then and there answer under oath concerning his 
 property. 
 
 R. S. Sec. 5473. 
 
 No. 982. 
 Entry Ordering Arrest. 
 
 [Caption.^ 
 
 This day came the plaintiff and filed his application for 
 an order requiring the d< fendant t<> appear and answer con- 
 cerning his property, and it being made to appear to the sat- 
 
 • ion of the court by the affidavit of that there is 
 
 danger of the defendant leaving the state to avoid the ex- 
 amination, it is ordered thai a warrant issue to the sheriff of 
 this county requiring him to arrest the defendant and bring 
 him before this court, that he may be examined on oath con- 
 cerning his property, and to abide the further orders of this 
 court. 
 
 When order of arrest may be made, Whittakcr's Civil Code, Sec. 5474.
 
 6l2 JUDGMENT ENTRIES. 
 
 No. 983. 
 
 Allowance of Undertaking. 
 
 [Caption.] 
 
 This cause now being heard upon the application of the 
 defendant concerning his property, and it appearing from 
 such examination that there is danger of the defendant leav- 
 ing the state, it is ordered that he enter into an undertaking 
 
 in the sum of $ , with surety to the approval of the 
 
 clerk, conditioned that he will attend before this court from 
 time to time as directed, and in default of entering into such 
 undertaking at once he be committed to the jail of the 
 county. 
 
 Whittaker's Code, Sec. 5474. 
 
 No. 984. 
 Entry ordering third Person to Appear. 
 
 [Caption.^ 
 
 [Proceed from * in ante No. 981]; and it also appear- 
 ing by the affidavit of the plaintiff that one E. F. is indebted 
 to the defendant, C. D. [or, that E. F. has property in his 
 possession belonging to the said defendant, CD.], it is there- 
 fore ordered that both the defendant, C. D., and the said E. 
 F., appear before the court and answer concerning the prop- 
 erty of said C. D., the said E. F., concerning any indebted- 
 ness which may be owing by him to C. D. [or, any property 
 
 which he may have belonging to said C. D. ] on the 
 
 day of , 18 — , at — o'clock . 
 
 Whittaker's Civil Code, Sec. 5475. 
 
 No. 985. 
 Summons or Notice to be Served on Defendant. 
 
 [Caption .] 
 
 To the Sheriff of county: Whereas, Hon. 
 
 Judge of the Court of , of county, Ohio, has made 
 
 the following order : [copy of order], you are hereby com- 
 manded to summon C. D., therein named, to be and appear 
 
 before Hon. , Judge of the Court, county, 
 
 Ohio, on the day of , 18 — , to answer concerning
 
 PROCEEDINGS IN AID OF EXECUTION. 613 
 
 "his property as directed in said order, and abide the further 
 order of the court, and you will make due return of your 
 doings in the premises. 
 In witness whereof, etc. 
 
 The order must be in writing and signed by the judge who makes the 
 same, and served as a summons. Whittaker's Civil Code, Sec. 5487. This 
 should be issued by the clerk, but the entry should bear the signature of 
 the judge. 
 
 No. 986. 
 
 Entry appointing Referee. 
 
 [Caption.] 
 
 This day came the parties, the defendant, in obedience to 
 an order heretofore issued herein, requiring him to appear 
 and submit to an examination concerning his property (and 
 by consent of both parties hereto), (or, and upon motion of 
 plaintiff herein) it is by the court ordered that A. B. be and 
 he is appointed as referee herein ; and he is hereby required 
 and authorized to take the evidence herein and report [the 
 same herein without unnecessary delay] \or, the facts to the 
 court without unnecessary delay], duly certified according to 
 law. It is further ordered that the defendant appear before 
 the said A. B., and answer such questions as may be pro- 
 pounded concerning his property, on the day of , 
 
 18 — , at o'clock — . 
 
 Referee may be appointed. R. S. Sec. 5477. Examination must be 
 certified to the judge. R. S. Sec. 5480. 
 
 No. 987. 
 Entry applying Property held by Debtor. 
 
 [Caption. \ 
 
 This day this cause came on to be heard, the defendant 
 in having been examined concerning his property, and it 
 appearing to the satisfaction of the court, and the court does 
 hud that the defendant has the following property, which he 
 conceals, not exempt from execution, to wit: [description <>/' 
 property. \ 
 
 It is therefore ordered that said defendant deliver or cause 
 said property to be delivered to the sheriff of this county, 
 and that said sheriff proceed to sell the same according to 
 law and apply the proceeds arising therefrom to the payment 
 of the judgment of the plaintiff herein according to law. 
 
 R. S
 
 614 JUDGMENT ENTRIES. 
 
 No. 988. 
 Entry applying Property or Funds held by third Persons. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation heretofore filed herein for an examination of the 
 defendant herein, concerning his property, and of E. F., 
 concerning an indebtedness due from him to the said C. D., 
 and it appearing to the satisfaction of the court from the ex- 
 amination so had herein under said application that the said 
 
 E. F. is indebted to the said C. D. in the sum of $ \it 
 
 might be stated in brief how indebtedness arises]; that the 
 said C. D. is not entitled to hold said sum as an exemption 
 under the laws of Ohio, it is therefore ordered that the said 
 
 E. F. pay said sum of $ to the clerk of this court, and 
 
 that said clerk apply and pay the same upon the judgment 
 heretofore rendered and set forth in the application herein, 
 after first paying the costs herein. 
 
 R. S. Sec. 5483. The mode of applying property is not pointed out by 
 the code, but it must be by analogy, as to claims of the debtor against 
 third persons, to the remedies to which the debtor himself might resort. 
 Edgarton v. Hanna, 11 O. S. 323. Disputes between the debtor and third 
 persons can not be considered or settled by the court. Id. The judge has 
 no power to apply money or property of the judgment debtor to a judg- 
 ment, if there is prima facie evidence before him of an adverse claim to 
 such monev or property; nor can he apply money due the judgment 
 debtor, except so far as the person owing it admits on his examination 
 the amount of his indebtedness. Welch v. R. R. Co., 1 W. L. M., 87, 143. 
 
 No. 989. 
 Entry appointing Receiver to take charge of Rights and Credits. 
 
 [ Caption. ] 
 
 This day this cause came on for hearing upon the applica- 
 tion heretofore filed herein, and the testimony heretofore 
 taken herein in the examination had herein, and it being 
 made to satisfactorily appear therefrom that the defendant has 
 certain rights and credits not subject to the ordinary process 
 upon execution, to wit : a certain mortgage for the sum of 
 
 $ , due to him from J. H., with interest ; also certain stock, 
 
 20 shares of the capital stock of The Company. And 
 
 the court further finds that said defendant is not entitled to 
 hold said rights and credits exempt under the law. It is 
 therefore ordered that G. H. be and he is hereby appointed
 
 PROCEEDINGS IN AID OF EXECUTION. 615 
 
 receiver herein, and the said defendant is ordered to deliver 
 said mortgage and stock to said G. H. as such receiver; and 
 the said receiver is hereby authorized to collect, sell or dispose 
 of said rights and credits, and make the necessary transfers 
 thereof for that purpose, and apply the proceeds derived 
 therefrom to the payment of the judgment of the plaintiff 
 herein, and make due report to the court of his proceedings 
 hereunder. It is further ordered that said G. H. enter into 
 a bond as such receiver, conditioned according to law in the 
 sum of S . 
 
 R. S. Sec. 55S7. When claims are to be collected, the appointment of 
 a receiver is the proper course. Edgarton v. Hanna, 1 1 O. S. 323. 
 
 No. 990. 
 Entry subjecting Interest in Real Estate. 
 
 [Caption.] 
 
 This day this cause coming on further to be heard upon 
 the application of the plaintiff for an examination of the 
 defendant concerning his property, and the court having 
 heard all the testimony adduced with respect thereto, does 
 find that said defendant has a certain equitable interest, to 
 wit: [set forth interest briefly] in the following described real 
 estate situate in this county, of which the following is a 
 correct description, to wit: {describe property]. And it ap- 
 pearing to the court that the interest of said defendant can 
 be ascertained without controversy with other persons having 
 an interest therein, it is therefore ordered that the sheriff 
 proceed according to law to appraise, advertise and sell said 
 interest of said defendant in premises as upon execution, and 
 bring the proceeds into court for further order. On motion, 
 and for good cause shown, publication in German newspaper 
 is hereby dispensed with. 
 
 R. S. Sec. 54S6. The subsequent entries can be moulded from those 
 under foreclosure. 
 
 No. 991. 
 Entry where Examination fails to Disclose any Property. 
 
 [Caption.] 
 
 This day this cause came on to be heard npon the appli- 
 cation for the examination of the defendant herein concerning 
 his property, and the court having heard all the evidence 
 
 10
 
 6l6 JUDGMENT ENTRIES. 
 
 adduced, and said examination having failed to disclose any 
 property in the hands or under the control of the said defend- 
 ant which was applicable to the payment of the judgment, 
 it is ordered by the conrt that the proceedings be dismissed 
 at the cost of plaintiff. 
 
 ARBITRATION AND AWARD. 
 
 No. 992. 
 
 Form of Award of Arbitrators. 
 
 [ Caption. ] 
 
 Whereas the above-named plaintiff and above-named de- 
 fendants have submitted the question of damages and all 
 matters in controversy in the above-entitled action to the 
 award of A. C. A., H. E. B. and A. H. J., and said submis- 
 sion was by said parties duly made a rule of the Court of 
 
 Common Pleas of County, Ohio, and thereupon said 
 
 above cause was by said court duly referred to the award and 
 determination of the said A. C. A., H. E. B. and A. H. J. 
 Now therefore be it known that we, the said A. C. A., H. 
 E. B. and A. H. J., the arbitrators aforesaid, having taken 
 upon us the burden of the said reference, do hold said arbi- 
 tration between the said parties on the day of , 
 
 18 — , and by adjournment from time to time thereunder, as 
 agreed upon said parties and to suit their convenience, the 
 parties being present and duly represented by counsel at each 
 and all our meetings to hear and take evidence, said meetings 
 for the purpose of hearing and taking evidence being held 
 
 at the office of A. H. J. in the building in the city of 
 
 , Ohio. And having heard, examined and considered 
 
 the allegations, witnesses and evidence, submitted to us, we 
 do hereby find and award that the amount of damages due 
 from the defendant, the city of C. , to the said above-named 
 
 plaintiffs, R. C. S. and W. S. P. , is $ , and we hereby award 
 
 to said plaintiff from the defendant the said sum of $ , 
 
 and as to the payments of the costs of this arbitration we 
 award and determine that said defendant should pay the 
 same. 
 
 Signed and published by the said A. C. A., H. E. B. 
 and A. H. J. 
 
 Dated this of , 18 — .
 
 ARBITRATION AND AWARD. 617 
 
 No. 993. 
 Arbitration — Judgment on Award of Arbitrators. 
 
 [Caption. ] 
 
 This day came the parties hereto by their counsel and 
 presented to the court the arbitration and award duly returned 
 and filed herein according to the former order of this court, the 
 same having been duly made and returned and filed accord- 
 ing to the former orders of this court, and no (legal) excep- 
 tions having been taken thereto, and it appearing that an 
 arbitration bond was duly executed according to law, and 
 
 that the said was furnished with a true copy of said 
 
 award within the time required by law ;* and it appearing 
 
 therefrom that the amount awarded to the plaintiff is $ , 
 
 of date of the day of , iS — , and the plaintiff mov- 
 ing for judgment on said arbitration and award, it is therefore 
 considered, ordered and adjudged by the court that the said 
 plaintiff recover from the said defendant the said sum of 
 
 $ , so awarded to them as aforesaid to this date, to wit: 
 
 $ , making in all to this date the sum of $ , for which 
 
 execution is hereby ordered. 
 
 R. S. Sees. 5609-5612. 
 
 No. 994. 
 Entry of Judgment upon Award other than for Money. 
 
 [Caption.] 
 
 I Proceeding from :: in ante No. 993. ) And it appearing 
 
 from said award that the said is directed and required 
 
 to [here Uate the thing which is required]. 
 
 And it appearing that the said has wholly failed to 
 
 comply with the provisions of said award, and has wholly 
 failed and neglected to [state what he has failed to do]. 
 
 It is therefore ordered and adjudged that the said 
 
 [state what is required of him in the award], within 
 
 days from the date of this entry, or that he appear on the 
 
 day of , 18 — 1 before this court and make known 
 
 his reasons why he does not so comply with the terms of said 
 award 
 
 R. S. Sec. 5610.
 
 6l8 JUDGMENT ENTRIES. 
 
 No. 995. 
 
 Entry setting Award aside 
 
 [Caption.] 
 
 This cause came on to be heard upon the motion of 
 
 to set aside the award made herein by E. B., F. S. and D.A., 
 and filed herein, according to law, and the exceptions filed 
 
 thereto by said , and the evidence and arguments of 
 
 counsel, and was submitted to the court. 
 
 On consideration whereof, and the court being fully ad- 
 vised in the premises, finds that said exceptions are well 
 taken and does therefore sustain the same. It is therefore 
 ordered, adjudged and decreed that the said award be and 
 the same is hereby set aside and held for naught, to which 
 
 the said excepts. And said cause is retained for trial 
 
 in this court according to law. 
 
 R. S. Sec. 561 1. 
 
 ASSESSMENTS. 
 
 No. 996. 
 Entry of Judgment in Suit for Enforcement of Assessment. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence (a trial by jury having been waived by the 
 parties), and was argued by counsel. 
 
 On consideration whereof, and the court being fully ad- 
 vised, finds that the allegations in the petition are true, and 
 that the assessment set forth in plaintiff's petition has been 
 in all respects regularly and legally made, and that the same 
 is a valid lien upon the property of defendant described in 
 the petition, and that there is due plaintiff from said de- 
 fendant upon said assessments the sum of dollars. 
 
 It is therefore ordered and adjudged by the court that the 
 
 plaintiff recover from said defendant the said sum of $ , 
 
 and that unless said defendant pay to the clerk of this court 
 
 said sum of $ within days from the date hereof, 
 
 that said lien of said assessments be foreclosed and said 
 premises be sold, and the proceeds derived therefrom be ap-
 
 ASSESSMENTS. 619 
 
 plied to the payment of said assessment, and that an order 
 of sale issue to the sheriff of this county directing him to 
 advertise and sell said premises according to law. 
 
 R. S. Sees. 2286, 2287. 
 
 No. 997. 
 
 Allowance of Temporary Injunction on Collection of Street 
 
 Assessments. 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 and application of plaintiffs for a temporary restraining order 
 in said petition asked, upon consideration whereof, and being 
 fully advised in the premises, the court finds that the plain- 
 tiffs are entitled to said temporary order. 
 
 It is therefore ordered, adjudged and decreed that the de- 
 fendants, the city of C , O. E. D. B., treasurer of said 
 
 county, W. H., auditor of said county, be and each of them 
 are hereby enjoined until the further order of this court, from 
 collecting or in anywise attempting to collect from plaintiff 
 or from his said lots of real estate in the petition described, 
 the special assessments levied by the council of said city for 
 the improvement of said street. 
 
 No. 998. 
 Assessment— Minors Set Aside for want of Service upon Minors. 
 
 [Caption.] 
 
 This day came the parties, and this cause came on to be 
 heard on the petition and answers of defendants, exhibits and 
 testimony and evidence adduced, and was submitted t<> the 
 court, and the court being fully advised in the premises finds 
 that written notice of the resolution declaring it necessar) to 
 make said improvement was served upon the duly appointed 
 and qualified guardian of said minor children and that no 
 other n<-ti<c"t' the passa id resolution was eve] served 
 
 upon said minor < hildren, owners of said real estate, and the 
 court finds that said notice is insufficient in law, and that the 
 said pretended assessment is invalid, illegal, void, of no force 
 
 in law and no lien upon said premi libed in 
 
 the petition. 
 
 It i s th< ■ ' d< red, adjudged and I b) the court 
 
 that the petition be di missed as to the defendants and that 
 said defendants recover their respective costs herein, taxed 
 at % .
 
 620 JUDGMENT ENTRIES. 
 
 No. 999. 
 
 Entry declaring that certain Assessments against certain Real Es- 
 tate are Valid — Where Grantee had assumed Payment in Deed. 
 
 [Caption.] 
 
 This cause came on to be heard upon the petition, the an- 
 swer and cross petition of J. C, and the answer of the city 
 of C, and S. A. K. , treasurer of county, and the evi- 
 dence and the cause having been submitted to the court, 
 and upon consideration thereof the court finds that the 
 
 city of C. caused the roadway of avenue to be im-. 
 
 proved as in the petition averred, and that the city council, 
 
 on the day of , 18 — , caused an assessment of $ — 
 
 to be levied upon each front foot of the several lots and lands 
 
 on either side of said avenue ; that at the time of the 
 
 levy of said assessment the plaintiff, D. C, was the owner 
 of ]ot , of addition to said city; that said lot is lo- 
 cated at the corner of avenue and avenue, and 
 
 fronted feet on avenue, and had a side length of 
 
 feet along avenue, upon which said assessment was lev- 
 ied as aforesaid ; that prior to the bringing of this action on 
 the day of , 18 — , the plaintiff conveyed to the de- 
 fendant, J. C. , the south part of said lot, to wit : feet front 
 
 on the north side of avenue, and feet on the east side 
 
 of said lot on the west side of avenue ; thence across 
 
 said lot to the west side of the same ; thence along the west 
 
 side of said lot feet to the southwest corner of said lot 
 
 ; that at the time of the bringing of this action the said 
 
 plaintiff was the owner of feet on the north end of said 
 
 lot, which fronts on avenue, and that the defendant, J. 
 
 C, was the owner of the remainder of said lot which fronted 
 feet on avenue and feet on avenue. 
 
 The court further finds that the defendant, J. C, in his 
 deed from D. C. , assumed and agreed to pay as part of the 
 consideration for the purchase of said premises all of the 
 street assessments against said lot due and payable after 
 , 18—. 
 
 The court further finds that by reason of said assumption 
 the defendant, J. C, is not entitled to any relief on his cross 
 petition, and on the issue joined between the defendant, the 
 city of C. , the treasurer, S. A. K. , and the defendant, J. C. , 
 upon his answer and cross petition, the court finds in favor 
 of the defendant, the city of C, and S. A. K., treasurer, and 
 upon the issue joined between the plaintiff, D. C, and the
 
 ASSESSMENTS. 621 
 
 defendants, the city of C. , and S. A. K. , treasurer, the court 
 
 finds the feet owned by said plaintiffs should have been 
 
 assessed for said improvement with the sum of $ and no 
 
 more; that by the terms of the assessment ordinance said 
 
 assessment was made payable in annual installments. 
 
 The court further finds that the plaintiff has paid $ 
 
 ^ annual installments and interest upon said assessments, and 
 f{ that there remains due upon said assessment from said plain- 
 tiff the sum of $ , with interest at percent per 
 
 • annum from , and that said sum is payable in an- 
 nual installments of $ each, with interest as aforesaid. 
 
 It is therefore ordered, adjudged and decreed by the court 
 that said plaintiff shall pay to said defendant, the city of C, 
 in full payment for the assessment levied for the improvement 
 
 of said avenue, upon that part of said lot herein found 
 
 to be owned by said plaintiff annual installments of 
 
 $ each, with interest thereon at percent, payable 
 
 annually from , the first of which assessment was due 
 
 and payable , and by consent of parties it is ordered that 
 
 said plaintiff may pay all of said installments at his option on 
 
 , and in default of such payment an order of sale may 
 
 issue to the sheriff to sell said premises and apply the pro- 
 ceeds to the payment of said assessment. 
 
 It is further ordered, adjudged and decreed that the tem- 
 porary restraining order heretofore allowed herein, hereby be 
 and is made perpetual as to all the remainder of the assessment 
 
 in excess of said sum of $ , levied upon that part of said 
 
 lot now owned by the plaintiff for the improvement of 
 
 avenue, as aforesaid, and said restraining order is hereby 
 
 dissolved as to said sum of $ , with interest as aforesaid. 
 
 It is further ordered, adjudged and decreed by the court 
 that the temporary restraining order heretofore allowed here- 
 in against all of that part of the assessment for the improve- 
 ment of said avenue, levied and assessed against that 
 
 part of the lot herein found to be owned by J. C., be and 
 
 hereby is dissolved, and that the cross petition of said 
 
 be and the same is hereby dismissed. 
 
 No. 1000. 
 
 Entry Reducing Assessments and Enjoining Collection. 
 
 [Caption. \ 
 
 This day this cau e came on to be heard upon the petition 
 of the plaintiff, the joint answers of the defendants and the
 
 622 JUDGMENT ENTRIES. 
 
 testimony, was argued by counsel and submitted to the court. 
 On consideration whereof the court finds from the testimony 
 
 that the city of C. is a city of the grade of the 
 
 class, duly organized under the laws of Ohio ; that the de- 
 fendant, S. K., is the duly elected, qualified and acting 
 
 county treasurer of county, Ohio; that on the — day of 
 
 the city council of said city adopted and passed a reso- 
 lution declaring it necessary to improve avenue in said 
 
 city from street to street, by grading and con- 
 structing thereon an asphalt stone block, etc., [description of 
 street], in accordance with the plans and profile thereof made 
 by the civil engineer of said city, and that said improvement 
 was to be made under the provisions of an Act of the General 
 Assembly of the State of Ohio, passed May nth, 1886, as 
 amended March 21, 1887, entitled "An Act to provide, etc. " 
 
 The court further finds that said avenue in said city from 
 
 street to street was improved under the provisions 
 
 of said Act of May 11, 1886, as amended, by grading the 
 roadway and laying thereon an asphalt pavement and setting 
 a five-inch curb on each side of said roadway, and at the 
 time and in the manner set forth in the petition of plaintiff, 
 and that said council in order to pay for the cost and 
 expense of making said improvement and to provide a fund 
 for the redemption of bonds which, during the progress of 
 said improvement had from time to time been issued and 
 sold, levied an assessment of $ — -- upon each foot of real 
 estate lying or touching on either side of said avenue so im- 
 proved, without regard to the actual frontage of said lots or 
 lands. 
 
 The court further finds that at the time of levying said 
 
 assessment this plaintiff was the owner of lot No. — , of 
 
 division, in said city as the same is numbered and delineated, 
 etc., and further finds that at the time of said improvement 
 said lot was unfenced, vacant and unimproved. 
 
 The court further finds from the evidence that on the 
 
 day of , and after said assessment had been made, the 
 
 plaintiff sold and conveyed to one E. B. so much of said lot 
 
 No. as is embraced in the following description, to 
 
 • wit : [description]. 
 , And the court further finds from the evidence that the 
 
 plaintiff is still the owner in fee simple of all of said lot , 
 
 except said part so conveyed to said E. B. as aforesaid. 
 The court finds that said assessment was levied upon the entire 
 
 side length of avenue upon said lot No. , and that 
 
 the amount aggregate so levied upon said lot No. , ex- 
 clusive of interest, is the sum of $ , and was made pay-
 
 ASSESSMENTS. 623 
 
 able in equal annual installments, at percent interest, 
 
 payable annually. 
 
 The court further finds from the evidence that said plaintiff 
 
 should pay for feet only of the feet of said lot 
 
 still owned by him, the total assessment of feet thereof 
 
 amounting to the sum of $ , and that all of said total 
 
 assessment of $ was made on said lot in excess of said 
 
 sum of S is as to all that portion of said lot No. , 
 
 which is still owned by said plaintiff, and being the feet 
 
 as aforesaid, excessive, illegal and void. The court further 
 finds that the plaintiff was entitled to pay said assessment 
 
 of $ in equal annual installments of $ each, with 
 
 percent per annum, payable semi-annually, and that 
 
 said total assessment of $ was made on said lot No. 
 
 , and that this plaintiff has paid thereon, as prin- 
 cipal and interest, the following amounts, to wit: S^give 
 amounts]; that said installment so paid with interest as 
 aforesaid, was largely in excess of what was legally due and 
 payable on said assessment of S at the time of such pay- 
 ment as aforesaid, and that said plaintiff is entitled to have 
 the amount so illegally assessed and overpaid as aforesaid, 
 
 applied as a credit on said legal assessment of $ ; and 
 
 the court finds that after the amount so overpaid is applied 
 as a credit as aforesaid, there remains unpaid at the begin- 
 ning of this cause of said sum of $ the sum of $ . 
 
 It is therefore by the court considered, adjudged and 
 decreed that the defendant, the city of , and said treas- 
 urer, be and they are hereby perpetually enjoined from col- 
 lecting from this plaintiff or from any portion of said lot No. 
 
 , still owned by plaintiff, and being said feet siding 
 
 on avenue as aforesaid, any further part or portion of said 
 
 sum <>f $ , with interest so assessed against said lot No. 
 
 , still owned by him as aforesaid, and that plaintiff's title 
 
 ill that part of said lot No. , still owned by him as 
 
 said, be and tlie same is hereby quieted against any por- 
 tion of said assessment of said $ , with interest, which 
 
 may now remain unpaid, and said treasurer is directed to can- 
 
 and strike from said tax duplicateall that portion of said 
 
 ssment of which may stand against said feet, 
 
 still owned by this plaintiff said. 
 
 It is further ordered and adjudged that the plaintiff have 
 
 and lid defendant, the city of , his costs 
 
 herein expended, taxed at $ .
 
 624 JUDGMENT ENTRIES. 
 
 No. iooi. 
 
 Assessment— Entry of Declaring part Legal and part Illegal 
 — Enjoining Collection. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings herein, and the evidence, and was argued by counsel 
 and submitted to the court, and upon due consideration 
 whereof, and being fully advised in the premises, the court 
 finds that of the assessment complained of by the plaintiff in 
 
 the petition herein the sum of $ is a legal assessment, 
 
 and a valid and subsisting lien upon the several lots of land 
 described in the petition in the amount of the several sums 
 hereinafter specified and distributed [description]. 
 
 And the court further finds that the excess of the said 
 assessment above the said several sums so found to be a lien 
 upon the said several parcels of real estate to be illegal and 
 
 improperly levied by the said city of against the said 
 
 several lots of land and said several illegal assessments amount- 
 ing to the sum of $ . 
 
 Wherefore it is ordered, adjudged and decreed by the 
 court that as to said illegal assessment of $ the defend- 
 ants be and they are each hereby perpetually enjoined from 
 placing the same or any part thereof upon the tax duplicate 
 against the lots of plaintiff in the petition herein described, or 
 against any thereof for collection, and from attempting in 
 any manner to collect the same, or any part thereof, from the 
 plaintiff, and from attempting to enforce the same, or any 
 part thereof, against the said lots, or any thereof. 
 
 It is further ordered, adjudged and decreed by the court 
 that as to the said sum of $ herein found to be a sub- 
 sisting and valid lien against said lots, and distributed among 
 the same, as hereinabove set out, the temporary restraining 
 order herein heretofore allowed be and the same is hereby set 
 
 aside and held for naught, and that the city of pay the 
 
 costs of this action, taxed in the sum of $— — .
 
 ATTACHMENT. 625 
 
 ATTACHMENT. 
 
 No. 1002. 
 Entry appointing Master Commissioner to examine Garnishee. 
 
 [Caption.] 
 
 Upon motion of plaintiff, and upon good cause being 
 shown therefor, it is ordered that A. B. be and he is hereby 
 appointed as master commissioner to examine L. M., the 
 garnishee herein. 
 
 R. S. Sec. 5532 ; 18 O. S. 134 ; 45 O. S. 653. 
 
 No. 1003. 
 Receiver appointed — Short entry. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application of 
 the plaintiff, and good cause being shown therefor, it is 
 ordered that A. B. be and he is hereby appointed receiver 
 herein, and that he be authorized and required to take pos- 
 session of all property and effects that have been taken by 
 the sheriff as the property of the defendant in attachment. 
 It is further ordered that the said receiver proceed to \rnafo. 
 any order necessary to be made under the peculiar circum- 
 stances]. It is further ordered that said A. B. enter into a 
 
 bond as such receiver in the sum of $ , with sureties, to 
 
 the satisfaction oi the clerk of this court. 
 
 R. S. Sees. 5539, 5540.
 
 626 JUDGMENT ENTRIES. 
 
 No. 1004. 
 
 Receiver in Attachment — Appointment of, to take Possession of 
 Property on which there are Mortgage Liens — Liens in 
 Attachment and Execution Liens, and also an Order pre- 
 serving the Priority of Liens of all Parties interested. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the appli- 
 cation and motion of the plaintiff for the appointment of a 
 receiver of the property and effects of the defendant, A. P., 
 attached herein, the evidence adduced and arguments of coun- 
 sel. On consideration whereof, and the court being fully 
 advised in the premises (and by and with the consent of all par- 
 ties hereto), it is ordered that W. B. B. be and he is hereby 
 appointed receiver herein, and before entering upon his duties 
 he shall take an oath to faithfully perform them, and execute 
 a surety approved by the clerk of this court an undertaking 
 to the State of Ohio for the benefit of whom it may concern, 
 in the sum of $ , conditioned according to law. Where- 
 upon said receiver shall take possession of all the goods, 
 chattels, property and effects that have been taken by said D. 
 W., as constable, as the property of A. P. on attachment 
 proceedings by this plaintiff against said A. P., and on at- 
 tachment proceedings by defendants F. M. G. and J. S., 
 E. D. and A. K. W. against said A. P., and also all 
 goods, chattels, property and effects that have been taken or 
 
 levied on by the sheriff of county on execution issued 
 
 out of this court against defendant A. P., in favor of . 
 
 And he shall hold all money collected by him and property 
 which comes into his hands subject to the order of this court. 
 He shall receive from said constable, D. W., who is required 
 to deliver the same to him, all the property attached in the 
 case of F. M. G., J. S., E. D. and A. K. W. respectively, 
 against the defendant, A. P. , and in his possession, and shall 
 
 receive from the sheriff of county, Ohio, who is hereby 
 
 ordered, directed and required to deliver the same to him, all 
 the property levied on by him, and in his possession upon 
 executions issued out of this court on judgments against said 
 
 defendant, A. P. , in favor of bank and bank, M. 
 
 C. H. , W. R. G. , J. B. and W. B. B. , and also all property de- 
 scribed in aforesaid mortgage, and said receiver is further 
 required to give written or printed notice of his appointment 
 as receiver herein, and to abide and perform all the orders of 
 the court made upon him by the court herein, and it is hereby
 
 ATTACHMENT. 627 
 
 ordered that all questions relating to the liens on all property 
 
 or an}' part thereof and the of such liens and all issues 
 
 made or to be made by the pleadings in this case be reserved 
 for the future consideration of this court. 
 
 It is further ordered that the transfer of said property to 
 said receiver herein by the several parties and by said con- 
 stable or any others or either of them, shall in no way preju- 
 dice the right of either of any part, and that such transfer 
 shall in no way prejudice any lien or liens or any interest 
 which any party may have on or in said property or any part 
 thereof, and shall abide the further order of the court. And 
 thereupon came W. B. B., appointed receiver herein, and 
 was duly sworn to faithfully perform his duties as receiver in 
 this case, and giving his undertaking conditioned according 
 to law in the sum of $ , B. S. B., as surety, which un- 
 dertaking is approved by the clerk of this court. The clerk 
 of this court shall receive and retain the custody of said un- 
 dertaking of this court. 
 
 No. 1005. 
 Entry Ordering Sale of Attached Property. 
 
 [Caption.'] 
 
 This cause coming on to be heard upon the motion of 
 for an order of court to sell the property taken by the 
 
 sheriff under the writ of attachment herein, and it appearing 
 to the court that said property is of a perishable nature, and 
 that a sale thereof will be for the benefit of the parties hereto, 
 it is ordered by the court that said sheriff proceed to advertise 
 and sell said property according to law. 
 
 R. S. Sec. 5544. 
 
 No. 1006. 
 Attachment Discharged upon Error from Justice. 
 
 [Caption. } 
 
 This day this cause came on to be heard upon the petition 
 in error of said plaintiff and the transcript of the justice of the 
 pea< e duly certified thereto atta< lad, together with the proofs 
 and exhibits and the original papers from the said justice's 
 court, and was argued by counsel and submitted to the court. 
 And the court being fully advised in the premises, it is con- 
 sidered that the decision of the said justice {naming him] in
 
 628 JUDGMENT ENTRIES. 
 
 sustaining said attachment against said plaintiff be and the 
 same is hereby reversed, with costs, and the said attachment 
 be and- the same is hereby discharged, and the court further 
 orders that the judgment on the merits rendered by said 
 justice be and the same is hereby affirmed, and that each 
 party pay one half of the costs in this court made upon this 
 proceeding in error. 
 
 No. 1007. 
 Attachment Discharged by giving of Bond. 
 
 [Caption.] 
 
 This day came the defendant and tendered to the court 
 its bond and undertaking for the discharge of the attachment 
 and garnishment proceedings herein, and the said under- 
 taking was submitted to the court for approval, and the court 
 finding the said undertaking in due form and the surety 
 therein ample and sufficient and the said undertaking to be 
 in every respect in conformity to law and statutes in such 
 cases made and provided, the said bond and undertaking is 
 hereby approved and the said attachment is hereby discharged, 
 and the liability of the garnishee or garnishees in this action 
 for any of the property of the defendant in his or their hands 
 is likewise here also discharged. 
 
 R. S. Sec. 5545. 
 
 No. 1008. 
 Entry sustaining Motion to discharge Attachment. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the motion filed by 
 
 the defendant, A. B., on the day of 18— , and 
 
 was heard upon said motion, the affidavits, exhibits and tes- 
 timony, and was argued by counsel and submitted to the 
 court, and upon due consideration thereof, and being fully 
 advised in the premises, the court finds that said motion is 
 well taken and therefore sustains the same. 
 
 It is ordered that the attachment in this action be and 
 the same hereby is discharged, and the sheriff ordered to re- 
 store to the defendant, A. B., the property taken under the 
 attachment, and the garnishee is released from all liability 
 herein.
 
 ATTACHMENT. 629 
 
 No. 1009. 
 
 Garnishee discharged and Share of Stock received by filing 
 
 Bond. 
 
 \_Caption.~\ 
 
 This day came the defendant, C. R. P. Co., and filed an 
 undertaking execuced to the plaintiff, according to law, in 
 double the amount of plaintiff's claim as stated in the affi- 
 davits, which undertaking was approved by the court. 
 
 It is therefore ordered that the liability of the garnishee 
 in this action be discharged in the shares of stock of the C. 
 R. P. Co. sought to be held by said attachment and garnish- 
 ment are also discharged. 
 
 R. S. Sec. 5550. 
 
 No. 1010. 
 
 Entry ordering Garnishee (to deliver property) (or) to pay Money 
 
 into Court. 
 [Caption.] 
 
 This cause coming on to be heard upon the answer of 
 -, the garnishee herein, and it appearing therefrom that 
 
 sa id has in his possession (property) (or, money) be- 
 longing to the defendant herein, to wit : {describe property} 
 [or, state how much money], it is ordered that said de- 
 liver said property (or, pay said money) to the sheriff within 
 days from the date of this entry. 
 
 R. S. Sec. 5550. 
 
 No. ion. 
 Entry discharging Garnishee upon paying Money into Court. 
 
 [( 'option.] 
 
 This day came A. S., garnishee herein, and pays into 
 
 court the sum of S , which sum he admits by his answer 
 
 herein he- has in his hands belonging to the defendant, , 
 
 in. It is therefore ordi red that the said A. S. be and he 
 is hereby discharged from further liability as such garnishee 
 herein.
 
 63O JUDGMENT ENTRIES. 
 
 No. IOI2. 
 
 Another Form of Entry discharging Garnishee upon Payment 
 
 of Money. 
 
 \Caption.^ 
 
 This day this cause came on to be heard upon the report 
 of A. B., upon the order of the court made herein, requiring 
 him to appear and answer touching certain funds alleged to 
 be in his hands, belonging to the said C. D. , and it appear- 
 ing to the court that he has paid into court all of the moneys 
 in his hands belonging to the said C. D., it is ordered by the 
 court that he be and he is hereby discharged from all lia % 
 bility from the said C. D. , in respect to the subject of this 
 action, without liability for costs. 
 
 No. 1013. 
 
 Entry of Judgment against Garnishee for Failure to pay 
 Money over. 
 
 \Caption.~\ 
 
 This cause coming on to be heard upon the pleadings and 
 evidence (a jury being waived), was argued by counsel and 
 submitted to the court. On consideration whereof the court 
 finds that the defendant has failed to comply with the order 
 
 of this court, requiring him to pay the sum of $ into 
 
 this court, and that said defendant, , has in his hands of 
 
 the moneys of said defendant, , said sum of $ , and 
 
 that judgment for said sum has been rendered against said 
 for said sum by this court, which said judgment re- 
 mains wholly unpaid and unsatisfied. 
 
 It is therefore ordered and adjudged by the court that the 
 
 plaintiff recover from said defendant the sum of $ , with 
 
 interest from . 
 
 R. S. Sees. 5551, 5553. 
 
 No. 1014. 
 Entry ordering Sheriff to repossess himself of Property. 
 
 \_Caption.~\ 
 
 Upon motion of plaintiff herein, and it being made to 
 appear to the court that the property levied upon by the 
 sheriff under a writ of attachment issued herein, has passed
 
 ATTACHMENT. 63 1 
 
 out of his hands, it is ordered by the court that he retake 
 and repossess himself of said property, and that he proceed 
 to sell the same according to law. 
 
 R. S. Sec. 5557. 
 
 No. 1015. 
 
 Entry of Decree in Attachment determining rights of Attaching 
 Creditors upon motion for Distribution of Fund. 
 
 [ Caption. ] 
 
 And the court now coming to a distribution and rinding 
 of the liens upon the said goods sold under the former order 
 of said sale herein, and the priorities thereof, it is considered 
 and adjudged by the court that the first and best lien upon 
 
 said goods is that of the company for freight and storage, 
 
 being the sum of $ ; that the lien of P. H. & Co. being 
 
 the lien set out in favor of the claim set forth in cause No. 
 
 in this court being in dispute, it is ordered and adjudged 
 
 that the sheriff retain in his hands, after payment of the lien 
 
 of the company the sum of $ to meet the same, and 
 
 the costs of suit and attachment therein in case the same shall 
 be held a good and valid lien; that the next lien upon said 
 
 goods is the claim of J. A. D., being the sum of $ , 
 
 together with the cost of suit and attachment being the claim 
 set out in this cause; then the claim of S. A. C, being the 
 
 sum of $ , together with the cost of suit and attachment 
 
 in the claim set out in case No. in this court; then the 
 
 claim of G. R. Co., being the sum of $ , in which there 
 
 has been paid the sum of $ , leaving a balance with the 
 
 interest, together with the cost of said suit and attachment 
 being the case of No. in this court. 
 
 And the court coining now to distribute- the proceeds of 
 
 said sale, amounting to the sum of $ , it is ordered that 
 
 the sheriff out of the amounts in his hands pay first to the 
 
 company the sum of $ , being in full of the amount 
 
 found due it, with interest. Second, that he shall, after re- 
 serving the sum <»f % in order to meet the claim of I\ H. 
 
 & Co. and the cost of suit and attachment in case No. , 
 
 should the same be held a valid and subsisting lien, pay the 
 
 of this action and attachment herein, taxed at $ . 
 
 Third, to the plaintiff herein, ,1 A. I'., or his attorneys, the 
 amount heretofore found due with interest, being the sum of 
 
 Prom Putnam, Hooker & Co. v. Loeb <\: Schoenfeld, 2 O. C. C. no. 
 
 41
 
 632 JUDGMENT ENTRIES 
 
 ATTORNEYS AT LAW. 
 
 No. 1016. 
 
 Entry allowing Attorney certain Fees for Services out of certain 
 Properties in an Estate. 
 
 \Caption.~\ 
 
 This cause now coming on for hearing upon the questions 
 presented by the issues for allowance to L. J. C. for his 
 services as counsel for plaintiffs, for services rendered to said 
 estate, and the court, being fully advised in the premises, 
 finds and holds that such allowance to said L,. J. C. for his 
 
 said services should be $ , and said allowance and fee to 
 
 him are hereby fixed at that sum, to be paid to him as fol- 
 lows: $ of said sum to be paid to him by the plaintiff's 
 
 executors out of any of the assets of the estate of said F. C, 
 
 deceased. The remaining $ of said allowance the court 
 
 finds and holds to be a proper charge as against said real 
 estate of said testator, and the same are hereby made a charge 
 and lien upon said real estate of said testator in said sum. 
 The said charges against said estate for attorney's fees are 
 hereby so made against said real estate subject to the dower 
 estate of M. J. S. in said premises. 
 
 It is therefore ordered, adjudged and decreed that L. J. C. 
 do recover of J. C. D., the executor of said estate, said re- 
 spective sums, and in default of payment therefor at said 
 respective times, execution issue therefor. 
 
 No. 1017. 
 
 Disbarment, Proceedings in — Entry by the Court on its own voli- 
 tion appointing Attorneys to investigate unprofessional 
 charges against an Attorney at Law. 
 
 \_Captio7i.~\ 
 
 The matter of charges against , an attorney at law, 
 
 for alleged misconduct in office, etc., so coming to the knowl- 
 edge of this court and the judges thereof, by the testimony of
 
 ATTORNEYS AT LAW. 633 
 
 witnesses in the trial in this court of the case of against 
 
 , that , an attorney at law, practicing in this court, is 
 
 probably guilty of misconduct in his office as such attorney 
 at law, and of unprofessional conduct involving moral turpi- 
 tude in the matter of , it is ordered that , and , 
 
 and , attorneys at law of this court, be and they are here- 
 by appointed and ordered to file in this court written charges 
 
 against said in the said matter, stating distinctly the 
 
 grounds of complaint, and without unnecessary delay, and 
 that they prosecute any such written charges that may be 
 filed by them. 
 
 No. 1018. 
 
 Disbarment — Entry of Finding by the Court, exonerating said 
 Attorney at Law. 
 
 \Ca,ption.~\ 
 
 This day of , 18 — , this cause came on further 
 
 to be heard before the Honorable , of this court, the 
 
 hearing having been in progress continuously since the 
 
 day of , 18 — , and the testimony on behalf of the respond- 
 ent having been closed, thereupon the members of the com- 
 mittee appointed by the court to conduct the investigation on 
 
 behalf of the state, to wit : , and , and , announce 
 
 that they had no testimony to offer in rebuttal, and repre- 
 sented to the court that in their opinion the testimony did 
 not sustain the charges against the respondent herein, and 
 that on the contrary the evidence clearly shows that the re- 
 spondent was not guilty of any misconduct in office or un- 
 professional conduct, and was not engaged in any, either di- 
 rectly or indirectly connected with any attempt to have done 
 01- attempt to accomplish such a result, and was and is wholly 
 innocent of the matters alleged in the charges and speeifica- 
 tions herein. And the members of said committee unani- 
 mously recommend to the court, composed of , to dismiss 
 
 said charges, and each thereof, and fully to exonerate said re- 
 pondent as aforesaid. And thereupon the court, upon the 
 testimony and exhibits herein, all of the said judges concur- 
 ring therein, find that said charges and specifications, and 
 each thereof, is not supported by the evidence adduced ; that 
 respondent is in nowise guilty as therein charged; that all 
 the evidence introduced herein exonerates and vindicates 
 such respondent, and shows that he was not connected direct- 
 ly or indirectly with the alleged misconduct stated in the
 
 634 JUDGMENT ENTRIES. 
 
 charges and specifications heretofore filed herein, and that 
 said prosecution against him ought to be dismissed at the 
 
 cost of the county. 
 
 It is therefore considered, ordered and adjudged, and de- 
 creed that said charges and specifications, and each thereof, be 
 and they are hereby dismissed, and that said respondent go 
 hence without day, and that the costs of this proceeding, taxed 
 
 at $ , be and the same are hereby taxed against the county 
 
 of , and the said amount is ordered paid out of any funds 
 
 in the treasury of said county available therefor. 
 
 No. 1019. 
 
 Disbarment — Entry allowing Committee Fee for Services. 
 
 [Caption.] 
 
 This court hereby allows to the said , and , and 
 
 -, which sums the court deems reasonable for their 
 
 services in filing and prosecuting the within charges of this 
 proceeding against the defendant, under appointment and 
 order of this court heretofore made and entered, which said 
 amounts so allowed shall be paid out of the county treas- 
 ury of county, on the warrant of the county auditor, to 
 
 whom the clerk of this court is ordered to issue to a certified 
 copy of this entry under the seal of this court. 
 
 BASTARDY. 
 
 No. 1020. 
 Entry when Compromise made discharging Defendant. 
 
 \_Caplion.~\ 
 
 It appearing to the court that the complainant and de- 
 fendant herein have agreed to compromise and settle the 
 charge herein made, by which agreement the said defendant 
 is to pay or secure to be paid to the complainant in full of 
 her said claim against him on account of the charge herein 
 
 made, the sum of $ , and it appearing also that the said 
 
 defendant has secured to be paid said sum of $ , to the 
 
 satisfaction of said complainant, and that he has given bond 
 to the state of Ohio in the sum of $ , as required by law,
 
 BASTARDY. 635 
 
 which the court here approves, it is therefore ordered that the 
 said defendant be and he is hereby discharged from further 
 custody herein. It is further ordered that said defendant pay 
 
 the costs of this prosecution, taxed at $ , and that said 
 
 complaint be dismissed. 
 
 R. S. Sec. 5617. 
 
 No. 1021. 
 
 Entry discharging Defendant when Bond given. 
 
 [Caption.] 
 
 This day came the defendant into court and offered his 
 
 bond in the sum of $ , with T. E. and S. F. as sureties 
 
 thereon, conditioned according to law for his appearance 
 
 herein at , which said bond the court here approves. It 
 
 is therefore ordered that said defendant be discharged from 
 further custody. 
 
 R. S. Sec. 5619. 
 
 No. 1022. 
 Entry when Sureties Surrender Accused. 
 
 [Caption.] 
 
 This day came T. E. and S. F., sureties upon the bond 
 of the defendant herein, for his appearance before this court 
 
 at term thereof. It is therefore ordered that the said 
 
 defendant enter into a new recognizance in the sum of $ , 
 
 conditioned according to law for his appearance before this 
 
 court at , with sureties to the satisfaction of this court, 
 
 and that in default thereof that he be committed to the cus- 
 tody of the sheriff. 
 
 R. S. Sec. 5622. 
 
 No. 1023. 
 Entry Forfeiting Recognizance. 
 
 [Cap/ /On. ] 
 
 This day came the prosecuting attorney and presented to 
 the court a recognizance entered into by the defendant in the 
 
 sum of $ . conditioned for his appearance before this 
 
 court at this date, with T. K. and S. F. as sureties. And
 
 636 JUDGMENT ENTRIES. 
 
 thereupon said defendant was called three times to appear 
 and answer the charge herein according to the terms of said 
 recognizance, which he failed to do. It is therefore ordered 
 that said recognizance be and the same is hereby forfeited. 
 
 R. S. Sec. 5623. 
 
 No. 1024. 
 Entry of Plea — Ordering Trial by Jury. 
 
 \Caption.~\ 
 
 This day came the defendant, and the charge having been 
 read to him, he pleaded not guilty. It is thereupon ordered 
 by the court that the issue herein be tried by a jury. 
 
 [ The entry may then proceed with the impaneling of the 
 jury and the other entries as under heading "Trial by 
 Jury. 1 '] 
 
 No. 1025. 
 
 Entry overruling Motion for New Trial and Judgment upon 
 
 Verdict. 
 
 \_Caption.~\ 
 
 This day this cause coming on to be heard upon the 
 motion filed herein by the defendant for a new trial, was 
 argued by counsel and submitted to the court. On consider- 
 ation whereof it is ordered by the court that said motion 
 be and the same is hereby overruled. And the defendant 
 having been found guilty of the charge herein by the verdict 
 of the jury, it is therefore adjudged by the court that the 
 said defendant is the reputed father of the bastard child of 
 
 the said , complainant herein, and that said defendant 
 
 stand charged with the maintenance thereof in the sum of 
 
 ($ ) dollars, and the costs of this prosecution. It is 
 
 further ordered that he pay said sum of $ in the follow- 
 ing manner \_here specify how payments are to be made~\. And 
 it is further ordered that said defendant give security for the 
 performance of this judgment to the satisfaction of this 
 court, and in default of the payment of said sum, or in the 
 giving of such security, that said defendant shall stand com- 
 mitted to the jail of the county according to law. 
 
 R. S. Sec. 5626.
 
 BOUNDARY LINK. 637 
 
 No. 1026. 
 Entry substituting Child upon death of Mother. 
 
 [Caption.] 
 
 It having been made to appear to the court that 
 
 the mother of the child herein, has died since the commence- 
 ment of this prosecution, it is ordered by the court that the 
 name of the said child, M. P., be substituted for that of the 
 said mother, and that said proceeding proceed in the name of 
 said child.. And the court appoints R. T. as guardian ad 
 litem for said infant, M. P., who hereby accepts said appoint- 
 ment. 
 
 R. S. Sec. 5628. 
 
 No. 1027. 
 Entry reducing Judgment upon death of Child. 
 
 \C apt ion. ] 
 
 This day this cause came on to be heard upon the appli- 
 cation of the defendant herein for an order reducing the 
 judgment heretofore rendered herein against him, on ac- 
 count of the death of the child. And it appearing that due 
 notice has been given of the filing and hearing of this ap- 
 plication, and that the said child, as represented in said ap- 
 plication, has died since the rendition of the judgment 
 herein, it is ordered that the said judgment be and the same 
 is hereby reduced to . 
 
 R. S. Sec. 5630. 
 
 BOUNDARY LINE. 
 
 No. 1028. 
 Division Established— Mandatory Injunction Allowed. 
 
 [Ca/>tio>/.] 
 
 This day this cause came on to be heard upon the peti- 
 tion of the plaintiff, the defendants being in default for an- 
 swer or demurrer in the ease and the evidence, and was sub-
 
 638 JUDGMENT ENTRIES. 
 
 mitted to the court ; and the court find upon the issues ten- 
 dered in the petition in favor of the plaintiff, and that the 
 line of division between the premises of the plaintiff and 
 the defendants, a description of which is set out in the 
 plaintiff's petition, is described by the outside of the north 
 foundation wall of the structure described in the petition as 
 being under process of construction by the defendants, and it 
 is adjudged and decreed by the court that said division line be- 
 tween the plaintiff and defendant be and the same is hereby es- 
 tablished on the outside boundary line of said north founda- 
 tion wall and extending parallel therewith from High street to 
 the east boundary line of the aforesaid building. And the court 
 finds that the plaintiff is entitled to a mandatory injunction 
 against the defendants, requiring the defendants and each of 
 them to put the plaintiff's premises and the walk thereon in 
 the same condition as they were at the time of the trespassing 
 of the defendants thereon, as alleged in plaintiff's petition. 
 And it is further ordered, adjudged and decreed that the 
 
 defendants shall, at their own expense, prior to the day 
 
 of , put the plaintiff's premises in the same, or as good 
 
 condition, as they were prior to the date of the defendants 
 entering upon the premises of plaintiff, as alleged in the 
 plaintiff's petition, and in default of so doing the plaintiff 
 shall proceed to repair the walks on his said premises and 
 place them in the condition aforesaid at the expense of the 
 defendants, and that the defendants shall be liable to the 
 plaintiff for the costs and expense of such repairs, and in 
 default of so repairing said walks and premises, upon mo- 
 tion of the plaintiff at any time, made after the said 
 
 day of , this judgment and decree shall be opened up, 
 
 and this action set down for hearing upon the pleadings of the 
 plaintiff upon the issues therein tendered. And it is ad- 
 judged that the plaintiff herein shall recover of the defendants 
 
 his costs in this action, taxed at $ , and judgment is 
 
 awarded against the said defendants for the said sum of $ .
 
 CHANGE OF NAME. 639 
 
 CHANGE OF NAME. 
 
 (R. S. Sees. 5852—5857.) 
 
 No. 1029. 
 Entry Changing Name of Person. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the petition of 
 A. S., and it appearing to the court that due notice accord- 
 ing to law has been given of said intended application, and 
 that said petitioner has been a bona fide resident of this countv 
 for one year prior to the filing of his said petition, and the 
 court being satisfied of the truth of the facts set forth in his 
 said petition, and that there exists reasonable and proper 
 cause for the changing of the name of said petitioner, it is 
 by the court ordered that the name of said petitioner be and 
 
 it is hereby changed from to , as prayed for, and 
 
 that he pay the costs herein, taxed at $ . 
 
 R. S. Sec. 5853. 
 
 No. 102914. 
 Entry Changing Name of Town, Village, or Hamlet. 
 
 \C apt ion. I 
 
 This cause coming on to be heard upon the petition of 
 petitioners herein, and the evidence adduced by the parties. 
 I in consideration whereof, and the court being satisfied that 
 due notice according to law has been given of said petition, 
 that the prayer of said petitioners is just and reasonable, that 
 at least three fourths of the inhabitants of said \name Oj /<>:cn~\ 
 desire such change, and that t here is no other town in the state 
 of the same name as that which is prayed for, it is therefore 
 
 ordered and adjudged that the name of said town of be 
 
 and the same is hereby changed to , and that the petition- 
 ers pay tin' costs of this proceeding herein, taxed at $ . 
 
 R. S
 
 64O JUDGMENT ENTRIES. 
 
 No. 1030. 
 
 Change of Name of Corporation. 
 
 [Caption.'] 
 
 This day this cause came on to be heard upon the petition 
 herein, and the court being satisfied by the proofs adduced 
 by the said petitioners that they are the directors of the said 
 
 corporation, "The Company," which is a corporation 
 
 duly incorporated under the laws of this state, and located as 
 stated in the petition, that 30 days' notice of the object and 
 prayer of said petition has been duly given by publication in 
 the [name of paper], a newspaper of general circulation in said 
 
 county, Ohio, and that good cause has been shown the 
 
 court why said name of said corporation should be changed 
 as prayed for in the petition. 
 
 Whereupon it is ordered by the court that the name of 
 
 said corporation, "The Company," be and the same 
 
 hereby is changed to "The Company." It is also 
 
 further ordered that said corporation pay the costs of this 
 proceeding, taxed at $• , and that in default thereof exe- 
 cution issue against said corporation therefor. 
 
 R. S. Sec. 5855. 
 
 CHURCHES. 
 
 See also Partition. 
 
 No. 1031. 
 
 Entry authorizing Church to Sell Property to pay Debts and to 
 Invest in other Property. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application of 
 the said trustees of the said church for authority authorizing 
 them to sell the property of said church described in their 
 said application to pay debts and to invest in other property 
 for church purposes, and in the meantime to mortgage one 
 of said pieces, and it appearing to the court that notice of the 
 
 hearing of this application on the — day of had been 
 
 duly published in a newspaper published in the county of 
 and state of Ohio, as required by law ; and the court
 
 CONTEMPT. 641 
 
 having heard the evidence, and being fully advised in the 
 premises, doth find that the interests of said church will be 
 subserved by the sale of such property described in the peti- 
 tion, it is ordered and decreed that the plaintiff be permitted 
 to sell both pieces of property described in the petition as 
 soon as the same can be done to advantage, and that in the 
 meantime the plaintiffs be permitted to mortgage the property 
 
 purchased by H. M. for not more than $ , and that they 
 
 report their doings to this court. 
 
 R. S. Sees. 5812, 5813. 
 
 CONTEMPT. 
 
 (J?. S. Sees. 5639—5650.) 
 
 No. 1032. 
 Entry summarily punishing Contempt in Presence of Court. 
 
 [ Caption. ] 
 
 F. E. , having been guilty of misbehavior in the presence 
 of the court, which the court deems and considers contempt 
 of this court, it is therefore ordered that the said F. E. be 
 and he is hereby assessed and ordered to pay a fine in the 
 
 sum of $ , and in default of the payment thereof that he 
 
 stand committed to the jail of the county. 
 
 R. S. Sec. 5639. 
 
 No. 1033. 
 
 Entry instituting Contempt Proceedings. 
 
 \Caption. I 
 
 Information having been brought to the court of an al- 
 leged violation of an order made on the day of , 
 
 iQ — i [stale nature of order] [or if contempt be one other Mian 
 a violation of an ora\ r it may be varied to suit], it is therefore 
 ordered that A. I)., an attorney of this court, be and lie is 
 hereby appointed and instructed to prepare and prefer, in 
 writing, appropriate charges of contempt of this court, 
 claimed to have been committed by the said P. R., and file 
 the same in this court on 01 before .
 
 642 JUDGMENT ENTRIES. 
 
 No. 1034. 
 Entry upon Filing of Charge. 
 
 [Caption.] 
 
 This day came A. D. , heretofore appointed by this court 
 to prepare and prefer a charge of contempt against the said 
 P. R., and on behalf of the state of Ohio, and in pursuance 
 of the order of the court, filed written charges of contempt 
 of this court against the said P. R., for a violation of [state 
 whatever order may be\ * 
 
 It is therefore ordered by the court that a copy of said 
 charge of contempt be forthwith served upon the said P. R. , 
 together with a copy of this order, and that he be required 
 tolfile a written answer to said charge of contempt on or be- 
 fore the day of , and that he appear before this 
 
 court on the day of at — o'clock — M., ready 
 
 to answer said charge so made against him. 
 
 For practice in contempt proceedings, see fully Kinkead's Pleading, 
 Sees. 427-432. 
 
 No. 1035. 
 Rule for Contempt allowed against Purchaser of Real Estate. 
 
 [ Caption. ] 
 
 On motion of the defendant, A. M. S., and for good cause 
 shown, a rule is allowed to issue herein, directing M. E. to 
 appear before this court before the Honorable D. F. P., one 
 
 of the judges of this court, on , , 18—, at —o'clock, 
 
 to show cause why she should not be punished for contempt 
 of this court for her neglect and refusal to pay the purchase 
 price for the premises purchased by her in this cause at 
 sheriff's sale on the day of , 18 — . 
 
 ( NOTE.— The statute in this case contemplates that the charge shall be 
 made upon motion. R. S. Sec. 5397. 
 
 No. 1036. 
 
 Order to pay Costs in Rule for Contempt for Failure to pay 
 Purchase Money or stand committed to Jail. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the rule 
 heretofore issued against , requiring him to appear and
 
 CONTEMPT. 643 
 
 show cause why he should not be committed for contempt in 
 not paying the sheriff of this county the amount of the pur- 
 chase money for the real estate sold to him by the sheriff 
 herein, and it appearing that the said J. J. E. has been duly 
 served with a copy of said rule, and the court having heard 
 the testimony and being fully advised in the premises, it is 
 now ordered that said J. J. E. pay the said sheriff all the costs 
 made on the order of sale herein, and of these proceedings, 
 
 taxed at $ , within ten clays from the entry of this order, 
 
 or stand committed to the county jail of this county until 
 the same be paid. 
 R. S. Sec. 5397. 
 
 No. 1037. 
 
 Contempt for Failure to pay temporary Alimony — Order re- 
 quiring Defendant to appear. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard on the motion of 
 plaintiff to require the defendant to appear in open court and 
 show cause why he should not be punished as for contempt 
 for refusing to perform the order of the court heretofore on 
 
 the day of , 18 — , made in this case requiring him 
 
 to pay the plaintiff an allowance of temporary alimony 
 during the pendency of this action, and it being made to ap- 
 pear to this court that said defendant has willfully disre- 
 garded said order and has intentionally not performed the 
 same, and there being no fact or reason made to appear to 
 the court why the defendant lias not performed said order 
 but has clisregarded the same. It is now here ordered by the 
 court that said defendant, D. R. A., appear before said court, 
 
 before his Honor, D. C. B., a judge of this court, 011 the 
 
 day of , 18 — , and show cause- why he should not be 
 
 punished as for contempt of this court in not performing the 
 said order, and in disregarding and ignoring the same, and it 
 is ordered that a copy of this order be at once served upon 
 said I). R. A. 
 
 No. 1038. 
 
 Entry ordering Accused to be brought into Court. 
 
 [ ( 'aption. } 
 
 {Proceeding from '. in ante No. 1034.) It is therefore 
 ordered that a writ of attachment forthwith issue, directed to
 
 644 JUDGMENT ENTRIES. 
 
 the sheriff, commanding him to bring the body of the said 
 defendant into court to answer the charge of contempt so 
 made against him. 
 
 R. S. Sec. 5641. 
 
 No. 1039. 
 Entry upon Hearing — Finding Defendant Guilty. 
 
 \Caption. ] 
 
 This day this cause came on to be heard upon the charge 
 of contempt preferred against the defendant herein, and the 
 said defendant having been examined concerning the charge 
 so made against him, and the court having heard all the evi- 
 dence adduced herein, and the argument of counsel, and 
 being fully advised, finds that said defendant is guilty as 
 charged in said complaint, and is guilty of contempt of this 
 court. 
 
 It is therefore ordered that the said defendant pay a fine 
 of $ and the costs of this prosecution, for which execu- 
 tion is awarded. 
 
 No. 1040. 
 Entry allowing parties to Purge themselves of Contempt. 
 
 [ Caption. ] 
 
 This cause came on for hearing upon the evidence and 
 was submitted to the court ; and the court finding the said 
 H. R. G., etc., guilty of contempt as charged in the informa- 
 tion and complaint filed herein ; and thereupon the said H. 
 R. G. , etc. , having expressed a desire to purge themselves of 
 the aforesaid contempt, and in order so to do did in open 
 court say and declare that they would each of them forthwith 
 
 resign as directors of the company, now by virtue of 
 
 such declaration and conditioned thereon, the said H. R. G., 
 etc., are permitted to go hence, but the said F. V. H., per- 
 sisting in his aforesaid contempt, it is ordered and adjudged 
 
 that he pay a fine in the sum of $ , and the cost ot this 
 
 proceeding, taxed at $ .
 
 CORPORATIONS — DISSOLUTION OF. 645 
 
 CORPORATIONS— DISSOLUTION OF. 
 
 No. 1041. 
 Dissolution of Solvent Corporation — Appointment of Referee. 
 
 [ Caption. ] 
 
 Upon the filing of the petition, accounts, inventory, state- 
 ments and affidavit herein, the court doth here appoint I. H. 
 C. referee, to hear the allegations and proof of the parties 
 herein to take testimony in relation thereto, and with all con- 
 venient speed report the same to the court with a statement 
 of the property, effects, debts, credits and all engagements of 
 the said corporation C. E. M. Company, and all other matters 
 and things pertaining to this affair. The time fixed by said 
 
 I. H. C, referee, as aforesaid, is the — day of , 18 — , at 
 
 room — , in building, in the said city of C. , Ohio, and all 
 
 persons interested in said corporation are hereby required to 
 show cause, if any they have, before said referee at said time 
 and place, why said corporation should not be dissolved, and 
 said I. H. C. appeared before the court and was duly sworn as 
 said referee. 
 
 R. S. Sec. 5654. 
 
 No. 1042. 
 
 Entry Dissolving Corporation upon Report of Referee — Appoint- 
 ment of Receiver to wind up Affairs. 
 
 [ ( x aption. \ 
 
 This day this cause came on to be heard upon the report, 
 testimony and exhibits filed by I. II. C., referee, heretofore 
 appointed herein by a former order of this court, the court 
 finding that thn ' notice has been duly published as 
 
 required by said order, and being fully advised in said prem- 
 ises the court doth find that a dissolution of said corporation 
 C. 1'.. M. Company, organized under the laws of the state of 
 Ohio, will be beneficial to the stockholders thereof and not 
 injurious to the public intrusts, and that the business of the 
 said corporation has been entirely abandoned, and that it is
 
 646 JUDGMENT ENTRIES. 
 
 impossible to accomplish the business for which the same was 
 formed and incorporated. 
 
 It is therefore considered and adjudged by the court that 
 the said corporation, C. E. M. Company, be and the same 
 is hereby dissolved. 
 
 It is further ordered that the C. M. be and he is hereby 
 appointed receiver of the estate and effects of the said dis- 
 solved corporation, he being hereby invested with all the 
 estate, both real and personal, of said corporation, and to be 
 a trustee for the benefit of said dissolved corporation, with all 
 power and authority conferred by law upon trustees to whom 
 assignments are made for the benefit of creditors, upon giving 
 a bond payable to the state of Ohio in the penal sum of 
 
 $ , with surety to the approval of this court, conditioned 
 
 for the faithful discharge of the duties of his appointment 
 and for the due accounting of all money received by him. 
 
 R. S. Sec. 5656. 
 
 No. 1043. 
 Form of Report of Referee. 
 
 [Caption.'] 
 
 Now comes I. H. C, referee, heretofore appointed, to wit: 
 
 on the day of , 18 — , by this court, and submits his 
 
 report to the said court as follows, to wit : On the day 
 
 of , 18 — , pursuant to the notice herein filed, and at the 
 
 time and place named in said notice, and on the day of 
 
 5 x 8 — , to which dates respectively said hearing was 
 
 continued, I heard the testimony, on oath, of witnesses called 
 by the parties hereto, and considered the exhibits and testi- 
 mony offered herein. On consideration of said evidence, 
 exhibits and testimony, I do find : 
 
 1st. The said C. E. M. Company is a corporation organ- 
 ized under the laws of the state of Ohio, having its principal 
 
 office and place of business at the city of C, county, 
 
 Ohio. 
 
 1 2d. Said corporation was formed for the purpose of man- 
 ufacturing and publishing, and carried on said business at 
 C, Ohio, until the day of , 18—. 
 
 3d. The capital stock of said company consists of 
 
 shares of $ , of which the sum of $ has been paid 
 
 in by the respective stockholders. Said stock is held by 
 [here follows name and amount of stock].
 
 CORPORATIONS — DISSOLUTION OF. 647 
 
 4th. On the day of , iS — , a meeting of the 
 
 stockholders of the C. E. M. Company was held at the office 
 of said company in C. , and a resolution was duly adopted 
 requesting the directors of said company to enter into a con- 
 tract with H. A. C. Company, and therefore to sell and trans- 
 fer to said B. A. C. Company the stock of manufactured 
 goods and all property of said C. E. M. Company, and fur- 
 ther authorizing and directing the said board of directors to 
 take all necessary steps to bring about the dissolution and 
 winding up of the affairs of the said C. E. M. Company. 
 Said resolution was adopted by the affirmative votes of the 
 
 stockholders present, representing shares of the capital 
 
 stock. 
 
 5th. On the day of , 18 — , the directors of the 
 
 C. E. M. Company entered into a contract with the B. A. C. 
 Company to sell and convey to said company all of the prop- 
 erty of said C. E. M. Company on said last-mentioned date, 
 said board of directors authorizing and directing C. E. M. 
 and L. C. J., the president and secretary of the said C. E. 
 M. Company, to make the sale and transfer the property pro- 
 vided for by the aforesaid resolution, which was accordingly 
 done. 
 
 6th. The assets of the C. E. M. Company, on the 
 
 day of , 18 — , were as follows: [here follow with assets 
 
 and liabilities]. 
 
 No. 1044. 
 
 Form of Report of Receiver. 
 
 [ Caption. ] 
 
 Now comes C. E. M., receiver of said company, and rep- 
 ots to the court that since his said appointment herein 
 lie lias published, according to law, notice of his said ap- 
 pointment, a duly verified copy of which notice is hereto 
 attached; that since the- filing herein of the report of the 
 ree he has paid and discharged all of the liabilities and 
 
 debts of said company, amounting to the sum of % , the 
 
 herein taxed at $ ; to the stenographer ap- 
 pointed by the said i to take testimony at a hearing of 
 
 >aid referee, the said sum of % ; to I. H. C. for his ser- 
 vices as said referee the sum of % ; to M. M. B. for legal 
 
 services the sum of $ ; that there is left in his hands for 
 
 distribution among the stockholders of said company the 
 
 sum of $ . lie further represents to the court that since 
 
 coming in and filing of said report of said referee, C. E. M. 
 
 12
 
 648 JUDGMENT ENTRIES. 
 
 has purchased the shares of the capital stock of said com- 
 pany heretofore owned by J. P. G., the certificate of which 
 stock is hereto attached ; that prior to the filing of the peti- 
 tion herein for dissolution, the following described real estate 
 was by order and direction of said company, through its duly 
 authorized officers and agents, by deed in fee simple, con- 
 veyed to C. E. M. in trust for the use and benefit of said 
 company, to wit : \Jiere give description of real estate] ; that 
 said land was taken by said company in payment of the fol- 
 lowing debts due said company, the same being set out in 
 the said petition of the company. 
 
 No. 1045. 
 Final Entry allowing Report of Receiver. 
 
 \Caption.\ 
 
 Upon the coining in of the report of the receiver herein, 
 and it appearing to the court upon satisfactory evidence that 
 the same is correct in all respects, it is ordered, adjudged and 
 decreed that said report be the final account of the said receiver, 
 and that the same be conclusive on all the creditors and stock- 
 holders of said corporation and upon all persons having engage- 
 ments with it. It is further ordered, adjudged and decreed 
 
 that said sum of $ , now in the hands of said receiver for 
 
 distribution, be paid and distributed to C. E. M., he being 
 the owner of the entire stock of said company, and that all 
 the equitable right, title and interest heretofore had by said 
 company to the real estate be and the same is by the opera- 
 tion of this decree hereby vested in the C. E. M., his heirs 
 and assigns forever, with all promissory notes, accounts, prop- 
 erty, bills receivable and all choses in action of every kind 
 and description whatsoever belonging and due the said C. E. 
 M. Company, is hereby ordered to be assigned and the same 
 are hereby transferred to the said C. E. M. , in satisfaction of 
 the payment of the difference due him, the said C. E. M., 
 on account of his distributive share of and right to the assets 
 of the said dissolved company by reason of his being the 
 owner of all the capital stock of said company. 
 
 R. S. Sec. 5670.
 
 CORPORATIONS — DISSOLUTION OF. 649 
 
 No. 1046. 
 
 Dissolution of Masonic Mutual Benefit Association and Distri- 
 bution of Funds in the Hands of said Company. 
 
 \Ccip tion.~\ 
 
 This day this cause came on to be heard, having been 
 regularly assigned for trial, and was heard upon the pleadings, 
 evidence and exhibits, and was argued by counsel and submit- 
 ted to the cpurt, and on consideration thereof the court do 
 find that the defendants, W. V. H. and E. R. D., were not 
 members of the M. B. Association in the petition named at 
 the time of the bringing of this action, and that their names 
 were inadvertently among the list of defendants, and that 
 said parties, by reason of non-payment of assessment, had 
 forfeited their interest in the funds and property of said asso- 
 ciation, and have no right to nor interest in said associa- 
 tion; that the defendant, J. N., died during the pendency 
 of this action, and that C. E. T., A. C. and J. H. H. died at 
 or about the time of the bringing of this suit; that prior to 
 the commencement of this action the board of trustees of 
 said association paid in full the death claim of C. E. T. ; 
 that under the direction and order of this court the said 
 trustees has paid the claim arising from the death of A. C. 
 and J. H. H., and that there are no additional claims exist- 
 ing against said association. 
 
 The court do further find that there is now in the hands 
 of said trustees of said association, belonging to the expense 
 fund thereof, the sum of $ , which expense fund, except- 
 ing a few dollars realized from the sale of furniture, arose 
 wholly from assessments made in the manner provided for by 
 the constitution, rules and regulations governing said associa- 
 tion, and as in the petition mentioned; that all the surviving 
 members of said tion are defendants herein, and that 
 each and all have voluntarily entered their appearance herein, 
 and that tho have not consented to and requested a 
 distribution of the fund belonging to said association are in 
 ind demurrer; that the said surviving 
 members constitute, as regards said fund, a partnership, and 
 are the only persons in any manner interested in said fund; 
 that said fund constitutes theonly fund and the only property 
 of any character whatsoever belonging to said association; 
 that the purpose for which said association was organized 
 can no longer be carried on, and that it is not desirable, prac- 
 
 ble or possible to continue the operation thereof, and to
 
 650 JUDGMENT ENTRIES. 
 
 attempt to do so would work injustice to such members, and in 
 justice to said surviving members the said association ought 
 to be dissolved, and the fund belonging thereto distributed 
 among them as partners according to the amount contributed 
 thereto by each, and that each and all of said members ought 
 to be removed from any and all further assessments for any 
 purpose. 
 
 The court do further find that the allegations in the pe- 
 tition contained* are true; that J. E. S., as attorney for said 
 association, and E. M. , as president thereof, have rendered 
 valuable services to said association in the preparation and 
 trial of this proceeding, and in all distribution provided for 
 herein, and it is ordered that the said board of trustees shall 
 first pay out of said fund the costs of this action amounting 
 to $ ; to J. E. S., as compensation for his services ren- 
 dered herein, the sum of $ ; to E. M., as president and 
 
 acting secretary of said association, for services rendered by 
 
 him, the sum of $ , and the residue of the fund, to wit : 
 
 $ , belonging to said association, shall be distributed 
 
 among the surviving members thereof according to the 
 amount paid to said association by said respective members. 
 The court further finds that each of said members are en- 
 titled in said distribution to percent of the amount 
 
 paid in by him, and that the list of membership, the number 
 of assessments, and the amounts paid by each member, and 
 the sum to which each member is entitled, is as follows : 
 
 Names of Members. 
 
 Number of 
 Assessments. 
 
 Amount paid on 
 Assessment. 
 
 Dis. Share out 
 of Funds. 
 
 The court do further find that the amount placed opposite 
 the name of each person set out in the column " Distributive 
 share out of funds belonging to said association " is the 
 whole amount and the only amount to which each of said 
 members is entitled, and represents the entire interest of each 
 of said members in said association. It is therefore ordered, 
 adjudged and decreed that no further attempt shall be made 
 to operate the said association ; that each and all members 
 are hereby relieved from the payment of any and all further 
 assessments for any purpose whatever, and that the trustees 
 of said association are hereby forbidden to order, levy, col- 
 lect or receive any further assessments or to pay any further 
 death claims, and that E. M., the president and acting secre- 
 tary of said association, shall proceed forthwith to distribute 
 
 the said $ , and shall pay to each and all said members 
 
 the amount of his distributive share as the same is here- 
 inbefore determined, and report the same to this court.
 
 DIVORCE AND ALIMONY. 65 1 
 
 And thereupon came the parties hereto, and all being 
 before the court, and it appearing that the distribution here- 
 inbefore directed has been made as ordered by this court, and 
 that there remains nothing further to be done by the officers 
 or members of the said association, it is hereby ordered, ad- 
 judged and decreed that the said association be and the same 
 is hereby dissolved, and it appearing that the vouchers show- 
 ing judgments are very numerous, it is ordered that the same 
 be not recorded but preserved for the protection of said 
 E. M. 
 
 DIVORCE AND ALIMONY. 
 
 (It. 5. Sees. 5689—5706.) 
 
 No. 1047. 
 
 Entry ordering Personal Service of Summons and Petition Outside 
 
 of State. 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the affidavits 
 of A. C, the plaintiff, and it appearing to the court that the 
 
 defendant herein resides in the state of , in or near the 
 
 city of , and that service of summons can not be made 
 
 on him within this, the state of Ohio, it is hereby ordered 
 by the court that personal service of a copy of the summons 
 and petition be made upon him without the state, and that 
 ]•'.. J., a resident of the city of , be and is hereby author- 
 ized and directed to serve him with summons, and due return 
 thereof to make according to law on or before the — day of 
 
 R. S. Sec. 5693; Holland v. Holland, 29 \V. L. B. 98. 
 
 No. 1048. 
 
 Entry Authorizing Service by Publication. 
 
 \Captimi. ] 
 
 A. B., plaintiff, having filed herein her affidavit in which 
 she alleges that the residence of the defendant is unknown to
 
 652 JUDGMENT ENTRIES. 
 
 plaintiff, and that the same can not with reasonable diligence 
 be ascertained, said plaintiff is hereby authorized to give 
 notice to said defendant by publication according to law. 
 
 R. S. Sec. 5693. 
 
 No. 1049. 
 Entry Allowing Temporary Restraining Order upon riling Petition. 
 
 [ Caption. ] 
 
 This day this cause coming on to be heard upon the peti- 
 tion of the plaintiff and her application for a temporary 
 injunction, was submitted upon said petition, used as an 
 affidavit, and the arguments of counsel. And the court being 
 fully advised, that a temporary injunction should be allowed 
 against the defendant as prayed for. 
 
 It is therefore this day considered and adjudged that the 
 said defendant, L. M. L., be and he is hereby enjoined and 
 restrained until the further order of this court, from coming 
 
 about the property of the said plaintiff at No. street, 
 
 in the city of , Ohio, and from in anywise interfering 
 
 with her or offering any violence toward her, and the plain- 
 tiff is excused from giving any bond for this injunction 
 according to the statute in such cases. 
 
 No. 1050. 
 Allowance of Temporary Alimony. 
 
 [Caption.~\ 
 
 Upon motion of the plaintiff herein by her attorney, and 
 upon good cause being shown, it is hereby ordered that the 
 
 said plaintiff be allowed the sum of $ for the support and 
 
 maintenance of herself during the continuance of this action. 
 And it is therefore ordered that the said defendant pay to 
 
 said plaintiff or her attorneys the sum of $ immediately 
 
 after the filing of this entry, and the sum of $ on the — 
 
 day of , 18 — , and in default of any such payment after 
 
 — days, execution is allowed to issue therefor. 
 
 Whittaker's Civil Code, Sec. 5701 ; Kinkead's Code Pleading, Sec. 525.
 
 DIVORCE AND ALIMONY. 653 
 
 No. 1051. 
 Entry allowing additional Alimony pendente lite. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the motion of 
 the plaintiff for further and additional alimony pendente lite, 
 and was argued by counsel and submitted to the court. Upon 
 consideration thereof , and being fully advised in the premises, 
 the court finds that the said motion is well taken and there- 
 fore sustains the same. 
 
 And the court hereby orders that the plaintiff be allowed 
 
 the further additional sum of $ , for her support and 
 
 maintenance during the continuance of this action, and it is 
 ordered that the defendant pay to the clerk of this court, for 
 the use of the plaintiff herein, the said sum of $ in pay- 
 ments as follows, to wit : On the day of the sum 
 
 of $ , and on the day of the sum of $ , and 
 
 in default of said payments, or any of them being made when 
 due and payable, then it is ordered that execution issue there- 
 on as upon a judgment at law. 
 
 Whittaker's Civil Code, Sec. 5701 ; Kinkead's Code Pleading, Sec. 525. 
 
 No. 1052. 
 Divorce— Allowance of Temporary Alimony out of Salary. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the motion 
 of plaintiff for temporary alimony, and the affidavits filed in 
 support thereof, as well as those filed in opposition thereto, 
 was argued by counsel and submitted to the court. Where- 
 upon the court, being fully advised in the premises, doth 
 find the motion well taken and doth sustain the same. 
 
 It is therefore considered by the court that the wages of 
 the defendant, VY. 1'.., earned and due him for the current 
 
 month of . payable on payday, to wit: , e8 — , or 
 
 thereabout, bepaid bythe P. C. C. & St. L. Railway Company 
 ,,, ti oi this court, to be by him paid to the plaintiff 
 
 through her attorney of record in this ease, and that plaintiff 
 
 do recover as aforesaid the sum of $ , as alimony pendente 
 
 lit<\ to which finding and judgment defendant by his counsel 
 excepts.
 
 654 JUDGMENT ENTRIES. 
 
 No. 1053. 
 
 Ordinary Decree for Divorce. 
 [Caption.] 
 
 This day this cause came on to be heard upon the peti- 
 tion (or, pleadings) and the evidence (the defendant not 
 appearing). On consideration thereof, and the court being 
 fully advised in the premises, finds that the defendant has 
 been duly and legally served with summons and process, 
 (and that he has failed to appear, and is in default for an- 
 swer or demurrer) ; ** that at the time of the filing of the pe- 
 tition herein the plaintiff was a dona fide resident of the state 
 of Ohio, and of the county of , for one year next pre- 
 ceding said filing of said petition, and that said parties 
 
 were married on the day of , 18 — , as alleged in 
 
 said petition, and that (names) children were born of 
 
 said marriage and reside in , (or, and that no children 
 
 have been born of said marriage), and that the defendant has 
 been guilty of (extreme cruelty toward plaintiff), as alleged 
 in said petition ; (or, and that he has been an habitual 
 drunkard for more than three years prior to the filing of the 
 petition) ; and that said plaintiff is therefore entitled to a 
 divorce, as prayed for in said petition. 
 
 (a) It is therefore ordered, adjudged, and decreed that the 
 said marriage relation now existing between said parties be 
 and the same is now here dissolved, and the said parties are 
 hereby released therefrom, and that the said plaintiff be and 
 
 she is hereby restored to her maiden name of ,* and 
 
 that she pay the costs of this proceeding. 
 
 R. S. Sec. 5695 ; Kinkead's Code Pleading, Sec. 522. 
 
 No. 1054. 
 
 Withdrawal of Answer and Reply — Hearing upon Petition 
 and Evidence. 
 [Caption.'] 
 
 This day this cause came on to be heard upon the petition 
 of the plaintiff, the answer of the defendant and the reply of 
 the plaintiff having been, by consent of the court, withdrawn 
 from the files, and also upon the evidence adduced and argu- 
 ments of counsel. 
 
 [Proceed as in No. 1053.]
 
 DIVORCE AND ALIMONY. 655 
 
 No. 1055. 
 
 Entry where Constructive Service is had. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings, evidence and arguments of counsel, and the court being 
 fully advised in the premises finds that the defendant has 
 been duly and legally served by publication according to law, 
 and that he has failed to appear and is in default for answer 
 or demurrer to the petition and that the allegations thereof 
 are confessed by him to be true. 
 
 [Then proceed from **, ante No. 1053.] 
 
 No. 1056. 
 
 Entry of Decree on Answer and Cross Petition — When 
 
 contested. 
 [Caption.] 
 
 This cause came on this day to be heard upon the peti- 
 tion, the answer and cross petition, and reply thereto, and 
 the evidence adduced by the parties. On consideration there- 
 of, and the court being fully advised in the premises, finds 
 that the plaintiff at the time of filing his petition had been 
 
 a bona fide resident of the state of Ohio and county of 
 
 for one year next preceding the filing thereof, and that the 
 parties were married at the time and place alleged in said 
 petition, but that the other allegations in said petition con- 
 tained are not true, and that said plaintiff is not entitled to a 
 divorce as prayed therefor therein, and the court refuses the 
 same to him. 
 
 The court finds that the said allegations contained in the 
 answer and cross petition are true, and that the said plaintiff 
 has been guilty of extreme cruelty as alleged therein, and 
 that said defendant is, by reason thereof, entitled to be 
 divorced from said plaintiff. 
 
 [Proceed /mm [a] as in ante No. 1053.] 
 
 K. S. Sec. 5702.
 
 656 JUDGMENT ENTRIES. 
 
 No. 1057. 
 
 Divorce awarding Custody of Child to Mother, and Enjoining 
 Husband from Visiting it. 
 [Caption.] 
 
 [Proceed from * in ante No. 1053.] 
 
 It is further ordered, decreed and adjudged that the cus- 
 tody, care, maintenance, education and control of the said 
 minor child, C. W., until the further order of this court, be 
 and the same is hereby awarded and confided exclusively to 
 the said plaintiff, L. W., and the defendant, J. W., is hereby 
 enjoined from interfering in any manner with either of said 
 child, C. W., or with this plaintiff in her custody of said C. 
 W., and from visiting said child until the further order of 
 this court. 
 
 It is further ordered that (plaintiff) defendant pay the 
 costs of this proceeding. 
 
 Kinkead's Code Pleading, Sec. 523. 
 
 No. 1058. 
 
 Entry awarding exclusive Custody to One, and Enjoining Inter- 
 ference. 
 
 [Caption.] 
 
 [Proceed from *, ante No. 1053.] 
 
 It is further ordered, adjudged and decreed that the 
 care, custody, education and control of the said children, to 
 wit : [names], be and the same is hereby confided exclusively 
 to the said plaintiff, E. J. D., until the further order of this 
 court. And the said C. R. D. is hereby enjoined from in- 
 terfering in any manner with either of said children, or with 
 the said E. J. D. in the custody of said children, until the 
 further order of this court. 
 
 Kinkead's Code Pleading, Sec. 523. 
 
 No. 1059. 
 
 Entry decreeing Divorce where Contract has been made by the 
 Parties dividing Property. 
 [Caption.] 
 
 Now comes the plaintiff, and the defendant having been 
 duly served with a summons and a copy of the petition here-
 
 DIVORCE AND ALIMONY. 657 
 
 in and having failed to appear, the court find that he is in 
 default for answer and demurrer to said petition and amended 
 petition, and find that the allegations thereof are confessed 
 to be true. The court also finds that the plaintiff at the 
 time of filing her petition and amended petition, has been a 
 resident of Ohio for a year next preceding the same, and was 
 at the time a bona fide resident of this county, and that the 
 parties hereto were married as in said petition set forth. 
 The court further find upon the evidence adduced that the 
 defendant has been guilty of gross neglect of duty and cru- 
 elty to the plaintiff, and that by reason thereof the plaintiff 
 is entitled to a divorce as prayed for. 
 
 It is further ordered, adjudged and decreed by the court 
 that the marriage contract heretofore existing between the 
 said S. M. and S. N. be and the same is hereby dissolved, 
 and both parties are released from any obligations of the same. 
 
 The court further finds that the contract entered into by 
 the parties hereto, dividing the personal and real property, 
 is a valid and subsisting contract ; that its terms are satis- 
 factory to both parties, and therefore confirms the same ; that 
 the deeds heretofore made by these parties are confirmed, and 
 that the right of dower of the defendant in the property so 
 deeded to the plaintiff he barred and annulled therein. 
 
 No. 1060. 
 Allowance of Alimony in Real Estate — Also in Money. 
 
 \_Captio)i. I 
 
 [ Proceed from (a), No. 1053.] It is therefore ordered 
 and adjudged that the said plaintiff have and possess as and 
 for her alimony the following described real estate, to wit: 
 {Description.} And the said defendant is hereby ordered to 
 convey said premises and the improvement thereon and all 
 of the appurtenance thereunto belonging to said plaintiff, 
 her heirs, and assigns forever, by a good and sufficient deed 
 in fee simple, free from any right or claim of said defendant 
 to any estate in dower or otherwise therein. 
 
 And it is further ordered upon the failure by said defend- 
 ant to execute said conveyance within days from the 
 
 entry hereto, this decree shall operate as such conveyance, 
 
 and in that ease it is ordered that the clerk eause so much of 
 
 this deeree to be n 1 orded in the offii e of the recorder of this 
 county as will show such change of title. And it is further 
 ordered and adjudged that said plaintiff do also have and
 
 658 JUDGMENT ENTRIES. 
 
 possess and enjoy, as and for alimony, the following personal 
 property, with the right to use, sell or dispose thereof at her 
 pleasure, to wit : [Description. ] 
 
 It is further ordered and adjudged that the defendant pay 
 to the plaintiff, as her reasonable alimony, in money, the sum 
 of $ , payable as follows, to wit : 
 
 And in default of any such payment for three days, exe- 
 cution is allowed to issue therefor. 
 
 R. S. Sees. 5699, 3700 ; Kinkead's Code Pleading, Sees, 525, 526. 
 
 No. 1061. 
 Allowance of Alimony making it a Charge upon Real Estate. 
 
 [Caption.] 
 
 [Proceed from («), ante No. 1053.] It is further ordered, 
 adjudged and decreed that said plaintiff have and possess 
 
 and enjoy as and for permanent alimony the sum of $ , 
 
 as follows : The sum of $ in from the date of this 
 
 decree ; the sum of $ in from the date of this de- 
 cree, etc. ; and that execution may be issued on default of 
 any one of said payments within days after such de- 
 fault, and that all of said alimony be made a binding charge 
 and a valid and subsisting lien on the real estate owned by 
 said defendant, and which said real estate is described in the 
 petition in this case, and is here described as follows, to wit : 
 [Description. ] 
 
 R. S. Sees. 5699, 5700 ; Kinkead's Code Pleading, Sees. 525-6. 
 
 No. 1062. 
 
 Entry divesting Wife of Inchoate Right of Dower when Alimony 
 
 has been paid. 
 
 [ Caption. ] 
 
 [Proceed as in No. 1053 *.] 
 
 It is further ordered, adjudged and decreed that the said 
 defendant, J. W. , pay to said plaintiff as and for alimony the 
 
 sum of $ , one half in — days, and the residue in ; 
 
 and the court finds that at the entering of this decree that 
 said alimony has already been paid and secured to be paid to 
 the attorney for plaintiff in this case, and that the said defend- 
 ant, J. W., pay the costs herein, taxed at $ .
 
 DIVORCE AND ALIMONY. 659 
 
 It is further ordered, adjudged and decreed by the court 
 that said plaintiff be deprived and divested, in consideration 
 of the payment of said alimony, of her inchoate right of dower 
 in any and all real estate held by said defendant, J. W., 
 during coverture; and in like manner that the said defendant, 
 J. YY., be deprived and divested of all right of dower in any 
 and all real estate of said plaintiff owned and held by her 
 at any time during coverture, and that the said parties respect- 
 ively, upon the entering of this decree, shall quit-claim to 
 the other, or to such person or persons as are legal owners 
 holding title to any of said lands, the said inchoate right of 
 dower, and upon failing to make such quit-claim deed or 
 deeds, that this decree shall operate as such conveyance and 
 discharge of said inchoate right of dower. 
 
 No. 1063. 
 Decree settling Property Interest, Restoring to each their Property. 
 
 [ Caption. ] 
 
 [Proceeding from ante No. 1053.] 
 
 And the court finds that the plaintiff is the owner of the 
 following-described real estate in the petition mentioned, to 
 wit : [description], and the same is hereby restored to him, 
 divested of all and every claim, title or interest by dower or 
 otherwise of his said wife. And the court finds that the 
 defendant is the owner of the following-described real estate, 
 to wit: [description], and the same is hereby restored to her, 
 divested of all and every claim, title or interest by dower or 
 otherwise by her said husband. 
 
 And it is further ordered, adjudged and decreed thai the 
 said plaintiff do also have, possess and enjoy, as and for his 
 own. the following personal property, with the right to use, 
 sell or di I it at pleasure: [description. \ 
 
 And it is further considered by the court that the plaintiff 
 ' ni this proceeding, taxed at 5 . 
 
 No. 1064. 
 
 Divorce not granted -Alimony granted Plaintiff for Children and 
 
 Herself. 
 [( 'aption. \ 
 [pn ■ ■ ni tit, other entries herein.] 
 
 And the court finds that the defendant is the owm i ol 
 
 the following-described real e tate not heretofore disposed of, 
 to wit: [here di scribe the premises. \
 
 660 JUDGMENT ENTRIES. 
 
 The court further finds that the plaintiff is the owner of 
 the following-described premises, to wit: \Jiere describe the 
 premises], and the same is hereby restored to her, divested 
 of all and every claim, title or interest by curtesy or 
 •otherwise of her said husband, and she is hereby vested 
 with the right and power to acquire, hold and manage and 
 dispose of the property, money and choses in action, to 
 maintain suits in her behalf, free from the control and inter- 
 ference of the said defendant, and all right, title, claim or 
 interest of the said defendant, by dower or otherwise, is 
 hereby forever cut off from said premises, and the title thereto 
 vested in the plaintiff free and clear from any such right by- 
 dower or otherwise of said defendant. 
 
 The court further finds that said last-described property 
 is encumbered by three mortgages theretofore executed to 
 secure a debt of said defendant, which mortgpges are recorded 
 
 in volume — , page — , county, volume — , page — , 
 
 county, and volume — , page — , mortgage records 
 
 county, Ohio, and are also a lien upon the first-described 
 premises. 
 
 It is therefore ordered and adjudged as between plaintiff 
 and defendant that said first-described premises be subjected 
 to the payment of said three mortgages before the said prop- 
 erty owned by the said plaintiff is subjected thereto. 
 
 The court further finds that reasonable alimony for the 
 
 maintenance and support of two minor children, and 
 
 , ought to be decreed in this case, and it is thereupon 
 
 ordered and adjudged that the said defendant pay to the said 
 
 plaintiff the sum of $ per week for the maintenance and 
 
 support of said children, payable at the end of each — weeks, 
 and the same is made a charge upon said real estate as herein 
 described. 
 
 The court further finds that said plaintiff is entitled to 
 reasonable alimony, and it is further ordered and adjudged 
 that the defendant pay to the plaintiff's attorney, as her 
 
 reasonable alimony, in money, the sum of $ , within 
 
 days from the entering of this decree, and the same is hereby 
 made a lien upon said real estate here first described, and in 
 default of any such payment of any of such alimony herein- 
 before allowed, for three days, execution is allowed to issue 
 therefor; and the court further finds that said first-described 
 property is rental property, and rents for about the sum of 
 $ per month, and it is here now ordered that said plain- 
 tiff be and she is hereby authorized to lease said property 
 and collect the rents thereof, and apply the same upon the 
 amounts hereinbefore ordered to be paid by the defendants
 
 DIVORCE AND ALIMONY. 
 
 for the maintenance of said minor children until such time 
 as said property is sold, and the court hereby secures to said 
 plaintiff all her rights of dower in said property or otherwise. 
 
 No. 1065. 
 
 Decree for Alimony rendered by Circuit Court, where Money 
 is to be invested. 
 
 \Caption.'\ 
 
 This cause having been submitted on the evidence, the 
 court finds therefrom that the proof does not sustain the alle- 
 gations as to extreme cruelty so far as personal violence is 
 concerned, but the court is satisfied that the defendant was 
 guilty of gross neglect of duty and of abandonment of the 
 plaintiff without sufficient cause. Plaintiff is therefore 
 awarded by the court as alimony for the support of herself 
 
 and child the sum of $ per annum, payable in equal 
 
 quarterly installments beginning , 18 — , or, if she prefer, 
 
 the sum of S in gross, payable within a reasonable time, 
 
 the sum of $ to be vested in a trustee, to be invested in 
 
 mortgage or other safe security, and the yearly net income to 
 be applied to the support, maintenance and education of the 
 said child. That upon said child obtaining its majority, or 
 in the event of its death before that time, such trust fund, 
 with its unexpended accumulation, if any, shall be paid to 
 the plaintiff. But if the alimony in gross, if accepted, shall 
 be in full of all right and claim of plaintiff to dower vested 
 or contingent in the real estate now owned, or that may be 
 acquired by the defendant in full satisfaction and discharge 
 of any and all present or future interest of the plaintiJ 
 wife or widow in defendant's personal estate now owned, or 
 that may be hereafter acquired by him, that plaintiff may 
 elect which one of the foregoing provisions she will accept. 
 And thereupon the plaintiff, in open court, and by her coun- 
 sel, elects to accept the second of the aforesaid provisions, to 
 wit: alimony in gross. It is therefore adjudged and decreed 
 that within a reasonable time from theentering of this decree, 
 
 it: days, the defendant shall pay to the plaintiff the 
 
 sum of $ . and to some pro] n to be hereafter ap- 
 
 pointed by the court trustee .1- aforesaid, upon his giving 
 
 I to the satisfactiou of the probate court of county, 
 
 ( >hio. the snm of $ , within months, to be in\< 
 
 rding to the laws relating to the appointment and con- 
 duct of trustees in Ohio, and that the net yearly income
 
 662 JUDGMENT ENTRIES. 
 
 thereof is to be applied to the support, maintenance and edu- 
 cation of G. C. , the said child of the parties hereto. It is 
 further ordered, adjudged and decreed that upon said child 
 obtaining its majority, or in the event of its death before 
 that time, the trusteeship of said sum of $ shall termi- 
 nate, and the said trustee shall turn over the same, with any 
 unexpended accumulation, to the plaintiff. It is further 
 ordered, adjudged and decreed that for the security of the 
 payment of the said alimony heretofore ordered and decreed, 
 and accepted by the plaintiff, shall be a lien upon all the real 
 estate of the said defendant. It is further ordered and de- 
 creed that upon defendant paying the alimony, as aforesaid, 
 adjudged and decreed, and accepted by the plaintiff, the 
 plaintiff shall be forever barred of any further right or claim 
 or to dower vested or contingent in the real estate of the 
 defendant now owned or hereafter claimed by him, and 
 barred of any and all present or future interest in defendant's 
 personal estate as wife or widow. 
 
 DOWER. 
 
 (i?. S. Sees. 5707— 5725.) 
 
 No. 1066. 
 Entry of Judgment for Assignment of Dower. 
 
 {Caption.'] 
 
 This cause coming on to be heard upon the petition of 
 the plaintiff herein, and it appearing that all the parties 
 hereto have been duly and legally served, and that (they are 
 all in default for answer or demurrer), and the court being 
 fully advised in the premises finds that the plaintiff, \_name\ 
 is the widow of [name], deceased, and that the said [name] 
 died intestate, and possessed in fee simple of the premises in 
 the petition described, and that the plaintiff, as such widow, 
 is entitled to dower in said premises. 
 
 It is therefore ordered and adjudged by the court that 
 [names], three judicious, disinterested men of the county, 
 be and they are hereby appointed as commissioners herein to 
 assign the said dower of the said [name] in said premises;
 
 DOWER. 663 
 
 and it is further ordered that an order issue to the sheriff of 
 the county, commanding him that by the oaths of said com- 
 missioners above named, he cause to be set off and assigned 
 to said plaintiff her said dower by metes and bounds [or in 
 the manner desired], and that due report of their proceedings 
 be made thereunder. 
 
 R. S. Sec. 5712. 
 
 No. 1067. 
 
 Entry of Confirmation of Report of Commissioners and Return of 
 
 Sheriff. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the return of 
 the sheriff of the order for the assignment of dower to 
 plaintiff herein, heretofore issued herein, and of the proceed- 
 ings of the commissioners thereunder, and the court having 
 carefully examined the same and finding their said proceed- 
 ings and the assignment of the dower right of said plaintiff 
 in and to the premises in her said petition in all respects reg- 
 ular and in conformity to law and the order of the court, the 
 same are hereby approved and confirmed. 
 
 And it is further ordered by the court that the said assign- 
 ment be entered in the records of this court, and that the 
 same shall henceforth be valid and effective in law, and that 
 the said plaintiff shall hold her dower as therein assigned, 
 and that a writ of execution issue herein, directing the sheriff 
 to place the said plaintiff in full possession of the dower so 
 as aforesaid assigned to her, and that the plaintiff pay the 
 costs herein to be taxed. 
 
 R. S. Sec. 51 13. 
 
 43
 
 664 JUDGMENT ENTRIES. 
 
 EXECUTOR'S AND ADMINISTRATOR'S 
 SALE OF REAL ESTATE IN COM- 
 MON PLEAS COURT. 
 
 No. 1068. 
 
 Hearing and Order to Appraise. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the peti- 
 tion, the other pleadings in this case and the evidence, and 
 the court being fully advised in the premises finds that all 
 the parties in interest have been duly served with process 
 and are before this court ; that the statements and allega- 
 tions in the petition are true, and that it is necessary to sell 
 the real estate described in the petition for the purpose of 
 paying the debts of the decedent. 
 
 It is therefore, on motion to the court by counsel for 
 plaintiff, ordered that J. R., J. F. and L,. H., three judicious 
 and disinterested men in the vicinity, freeholders, being 
 duly sworn, do, upon actual view of the premises in the pe- 
 tition described, make a just valuation of said real estate, 
 free of dower interest of D. D., to this court with all con- 
 venient speed. 
 
 No. 1069. 
 Executor's Sale of Real Estate — Confirmation of Appraisement. 
 
 [Caption.] 
 
 Now comes counsel for the plaintiff and produced to the 
 court the report of the appraisement herein made by J. J. R. , 
 J. F. and L. H. , in pursuance of a former order of this court, 
 and it appearing upon examination that said report is in all 
 respects regular and correct the same is hereby approved and 
 confirmed, and it is ordered that said plaintiff proceed accord- 
 ing to law to sell the real estate in the petition described, 
 free of dower estate of V. D. upon the premises, at not less 
 than two thirds of said appraised value, and upon the de- 
 ferred payments not exceeding two years.
 
 executor's and administrator's sale. 665 
 
 No. 1070. 
 
 Confirmation of Sale. 
 [Caption."] 
 
 Now comes counsel for plaintiff and produced to the court 
 the report of sale made by said plaintiff in pursuance of an 
 order hereinbefore made, and it appearing upon examination 
 that said report has in all respects been legally made the 
 same is approved and confirmed, and the said plaintiff is or- 
 dered to execute and deliver to the purchaser, J. F., upon 
 his compliance with the terms of sale, a proper deed of the 
 real estate so by him sold as aforesaid. 
 
 The court now coming to distribute the proceeds of the 
 
 sale made in this cause, amounting to $ , it is ordered 
 
 that the plaintiff pay out out of said proceeds, first, taxes 
 and penalties which are now a lien on the premises described 
 in the petition, all street and sewerage assessments to be paid 
 by the purchaser according to agreement ; second, the costs 
 
 of this action, taxed at $ ; third, that he pay an attorney 
 
 fee of $ ; fourth, his own commission on proceeds of 
 
 sale, amounting to $ ; fifth, to V. D., $ ; sixth, to 
 
 S. D., $ ; seventh, to M. D., $ . After the payment 
 
 of all future costs and expenses of the administration of the 
 estate of said decedent, the balance of proceeds of said sale 
 shall be paid in equal shares to and and . 
 
 No. 1071. 
 
 Entry setting aside Deed by Deceased made in Fraud of 
 Creditors at Suit of Administrator. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ing- and evidence (a jury being waived by the parties), and 
 was submitted to the court. On consideration thereof the 
 court finds that the died as in the petition made by 
 
 the said A. I)., d 1, to F. S. , was made with intent to 
 
 hind' and defraud creditorsof the said A. I)., of all of 
 
 whicli the said grantee, I ; . S., was fully aware at the time- 
 said conveyance was made to him; the court finds that at the 
 time said deed was made by said decedent he was indebted 
 to numerous persons as set forth in said plaintiff's petition. 
 
 It is therefore considered and adjudged by the court that 
 the said deed SO made by said to the said be and
 
 666 JUDGMENT ENTRIES. 
 
 the same is hereby set aside and annulled ; and it is further 
 ordered that the said administrator cause said premises de- 
 scribed in his petition to be appraised upon the oaths of , 
 
 and , three disinterested freeholders of the county, 
 
 and report the same to this court. 
 R. S. Sec. 6140. 
 
 FORECLOSURE OF LIENS. 
 
 No. 1072. 
 Decree and Order of Sale in Foreclosure. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard on the petition 
 of the plaintiff, the defendants and each of them having 
 been duly and legally served with notice of the prior pend- 
 ency of this suit, and each being duly and properly before 
 the court, and each and all of the defendants being in default 
 for answer and demurrer, and submitted to the court, and on 
 consideration thereof the court do find that the allegations 
 in the petition contained are by the defendants and each of 
 them confessed to be true, and that there is due the said 
 plaintiff from the defendant, T. F. R., on the promissory 
 
 note set forth in the petition, with interest at the rate of 
 
 percent per annum, payable annually, computed to the first 
 day of this term of court, the sum of ($ ) dollars. 
 
 The court further find that in order to secure the payment 
 of said note the defendants, T. F. R., J. A. R., his wife, 
 executed and delivered to the plaintiff the mortgage deed in 
 the petition described and on the premises therein described ; 
 and that said mortgage was duly recorded in Mortgage Rec- 
 ord , page , in the recorder's office of county, 
 
 Ohio, and is the first and best lien on said premises, described 
 in the petition, excepting the taxes thereon. 
 
 The court further finds that the condition of defeasance 
 in said mortgage has been broken, and that the plaintiff is 
 thereby entitled to have the equity of redemption of the said 
 J. F. R. and others foreclosed, (a) 
 
 It is therefore considered, adjudged and decreed that un- 
 less the said defendants, T. F. R. and J. A. R., shall, within 
 
 days from the filing of this decree, pay or cause to be 
 
 paid to the clerk of this court the costs in this case, taxed at
 
 FORECLOSURE OF LIENS. 667 
 
 % , to the plaintiff the sum of $ , with interest from 
 
 the day of , iS — , according to the terms of said 
 
 mortgage deed, that the said defendants' equity of redemption 
 shall be foreclosed, and said premises shall be sold, and an 
 
 order of sale shall issue to the sheriff of county, Ohio, 
 
 directing him to appraise, advertise and sell said premises as 
 upon execution, and bring the proceedings into court for 
 further order. 
 
 On motion, and for good cause shown, publication in Ger- 
 man newspaper is hereby dispensed with. 
 
 No. 1073. 
 Decree in Foreclosure where Personal Judgment is rendered. 
 
 [ Caption, j 
 
 [Proceeding from [a) in last form No. 1072.] 
 
 It is therefore considered by the court that the plaintiff 
 recover from the defendant, T. F. R. [or, where there may 
 be several successive grantees who have assumed the debt, their 
 names might be given as follows : recover from the defend- 
 ants, T. F. R., G. H. and E. F.], the said sum of $ , so 
 
 found due, together with his costs herein expended. It is 
 also further ordered, adjudged and decreed that unless the 
 defendant, T. F. R., shall, within five days from the 
 entry of this decree, pay or cause to be paid to the clerk 
 of this court the costs of this case, and to the plaintiff herein 
 the sum so found due as aforesaid, with interest at the rate of 
 — percent from the first day of this term of court, the de- 
 fendant's equity of redemption be foreclosed, the said premises 
 
 old, and that an order of sale issue therefor to the sheriff 
 of said county, directing him to appraise, advertise and sell 
 said premises as upon execution, and report his proceedings 
 to this court for further orders. 
 
 No. 1074. 
 
 Entry upon Petition, amendment thereto — Answer — Reply — 
 Other Defendants in Default for Answer — Ordering Sale in 
 Foreclosure. 
 
 [ ( 'a.ption.~\ 
 
 This cause came on for hearing upon the petition and 
 amendment thereto; and the answer of L. B. and the amend-
 
 668 JUDGMENT ENTRIES. 
 
 ment thereto, and the reply of the plaintiff thereto, and the 
 answer of A. C. F. and N. C. , and the reply of plaintiff 
 thereto (the said D. S. B. being in default for answer and 
 demurrer), and the evidence, and was submitted to the court. 
 On consideration whereof the court find that the defendant, 
 D. S. B., executed and delivered to the plaintiff, M. J. S., 
 the mortgage deed in the petition described; that said mort- 
 gage was duly recorded in book — , page — , of the records of 
 
 mortgages of •■ county, and is the first and best lien on 
 
 the following proportion of the premises described in the 
 petition, to wit: [description of premises, although this is not 
 essential]. 
 
 The court further find that the condition of defeasance in 
 said mortgage has been broken, and that the said plaintiff is 
 thereby entitled to have the defendant's equity of redemption 
 foreclosed. * It is therefore considered and decreed by the 
 court that unless the said D. S. B. shall, within five days 
 from the entry of this decree, pay, or cause to be paid, to the 
 clerk of this court the costs in this case, and to the plaintiff 
 
 the sum of $ , with interest from the first day of this term 
 
 of the court, to wit: the — day of , 18 — , at the rate of 
 
 — percent per annum, according to the terms of said mort- 
 gage deed, the defendant's equity of redemption be foreclosed, 
 and said premises shall be sold, to wit: [description if part 
 only of premises described in petition be ordered sold], and an 
 
 order of sale shall issue therefor to the sheriff of county, 
 
 Ohio, directing him to sell said premises as upon execution, 
 and bring the proceeds into court for further orders. 
 
 No. 1075. 
 
 Entry — Foreclosure — Continued from No. 1072 Finding Party not 
 entitled to Personal Judgment. 
 
 [Caption. ] 
 
 [Following form ante No. 1072 down to (a).] 
 
 And the court further find in favor of the said L,. B., and 
 that the said L. B. is not liable to the plaintiff for a personal 
 judgment upon the matters and things set forth and claimed 
 in the petition and amendment thereto, but the court do find 
 that the said plaintiff is entitled to a foreclosure of said mort- 
 gage as to said undivided 48th part of said premises in the 
 petition described, to wit: 122^ acres of land, as against 
 each and all of said defendants. 
 
 [Proceed with form ante No. 1072 from (a).]
 
 FORECLOSURE OF LIENS. 669 
 
 No. 1076. 
 
 Hearing on Petition, and Answer and Cross Petition of Lien- 
 holders — Judgment upon Cross Petition, Decree making 
 Finding upon Both — Postponing Question of Priority. 
 
 \_Caption.~\ 
 
 This cause coming on now for hearing on the petition of the 
 plaintiff and the cross petition of the defendant, The H. Build- 
 ing and Loan Association, and the evidence, the court find 
 that the defendants, J. M. P. and C. P., are in default for 
 answer or demurrer, and that the allegations of the petition 
 are thereby confessed by them to be true, and that there is 
 due to the plaintiff from the defendant, J. M. P., on the prom- 
 issory note set forth in the petition, with interest to the date 
 
 of this decree, the sum of (S 1, and for this amount 
 
 judgment is accordingly entered against them, judgment to 
 bear eight percent interest until paid. The court further 
 find that in order to secure the payment of said notes the de- 
 fendants, J. M. P. and C. P., his wife, executed and deliv- 
 ered their certain mortgage as in said petition described; 
 
 that said mortgage was duly recorded in book , pages 
 
 , of the Record of -Mortgages of county, Ohio, and 
 
 is a good and valid lien on the premises described in the pe- 
 tition, and that the conditions .of said mortgage have been 
 broken, and the court further find that there is due to the de- 
 fendant, The H. Building and Loan Association, from the de- 
 fendant, J. M. P., on the note set up in the answer and cross 
 petition of the said defendant. The H. Building and Loan 
 Association, including dues, interest and lines, up to but not 
 
 including this date ( , 18 — ), the sum of , and that 
 
 to secure the payment of said note the defendants, J. M. P. 
 and C. P., his wife, executed and delivered to the said The 
 H. Building and Loan Association their certain mortgage as 
 in the cross petition described, and on the premises therein 
 ribed, being the same premises as described in the peti- 
 tion of the plaintiff; that said mortgage was duly recorded 
 
 in book , pages , of the Records of Mortgages of 
 
 county, and is a good and valid lien on said premises for 
 
 the amount SO found due to the said The II. Building and 
 Loan Association, as well as for the amount to Income due 
 
 on said note to said iation, and that the conditions of 
 
 said mortgage have been broken. It is therefore adjudged 
 and decreed that unless said defendants, J. M. P. and C. I'., 
 shall, within days from the entry of this decree, pay or
 
 670 JUDGMENT ENTRIES. 
 
 cause to be paid to the clerk of this court the costs in this 
 case, and to the plaintiff and to the defendant, The H. Build- 
 ing and Loan Association, the sum so found due them as 
 
 aforesaid, with percent interest from the day of 
 
 , 18 — , the defendant's equity of redemption be fore- 
 closed and said premises be sold, and that an order issue 
 
 therefor to the sheriff of county, Ohio, directing him 
 
 to appraise, advertise and sell said premises as upon execution, 
 and report his propeedings to this court for further orders. 
 The questions of the priority of liens is postponed for deter- 
 mination to the further order of the court. 
 
 No. 1077. 
 
 Entry overruling Demurrer to Answer and Cross Petition, and 
 
 Decree thereon. 
 [Caption.] 
 
 This day this cause came on to be heard upon the demur- 
 rer of J. C. W. to the answer and cross petition of H. & P. , and 
 was argued by counsel. On consideration whereof the court 
 does overrule the same, to which the defendant, J. C. W., 
 excepts ; and thereupon the defendant, not asking to plead 
 further, this cause came on to be heard upon the answer and 
 cross petition of said H. & P., the court find that there is 
 
 due to said H. & P. from said J. C. W. the sum of $ , 
 
 and that they did at the term of the common pleas 
 
 court of county, Ohio, recover a judgment against 
 
 said defendant, J. C. W., for the sum of $ , and $ , 
 
 costs of suit, and that said judgment became a lien upon 
 
 the premises described in the petition on the day of 
 
 , 18 — , as in their said answer and cross petition averred, 
 
 and that the same is a valid subsisting lien on said premises. 
 
 It is therefore considered by the court that unless the 
 defendant, J. C. W., shall within five days from the entry of 
 this decree pay, or cause to be paid, to the said H. & P. the 
 
 said sum of $ , and to the clerk of this court the costs of 
 
 this action herein, taxed at $ , the said real estate shall 
 
 be sold, and that an order of sale issue therefor to the sheriff 
 
 of county, Ohio, commanding him to appraise, advertise 
 
 and sell said real estate as upon execution, and return his pro- 
 ceedings to this court for further order. 
 
 To which judgment and order of the court the said J. C. 
 W. excepts.
 
 FORECLOSURE OF LIENS. 671 
 
 No. 1078. 
 
 Appraisement set aside and New Appraisement ordered by 
 
 Consent. 
 
 [Cap /ion.] 
 
 On motion of C. F. S. , one of the defendents herein, and 
 of the other parties herein consenting thereto, the sheriff of 
 
 county, Ohio, is hereby ordered to return the order of 
 
 sale hereinbefore issued without further proceedings there- 
 under, and the appraisements under said order are likewise 
 set aside and a new appraisement ordered. 
 
 No. 1079. 
 
 Entry setting aside Sale. 
 [Caption.] 
 
 This cause now coming on for hearing upon the motion 
 of defendant, H. G. D., to set aside the sale made herein by 
 
 the sheriff on the day of , to E. R., and upon the 
 
 offer of the said defendant, H. G. D., to bid for said premises 
 
 the sum of $ , and upon the evidence, the court, after full 
 
 consideration and for good cause shown hereto, sustains said 
 motion and orders that the said sale be and is hereby vacated 
 and set aside. It is further ordered by the court that an alias 
 order of sale for the said premises be allowed to be issued to 
 the said sheriff. 
 
 No. 1080. 
 Entry by consent setting aside Appraisement and Sale. 
 
 [ Captitm. ] 
 
 this cause came on to be heard upon the motion 
 
 of the defendant, J. C. W., tosetaside the- appraisement and 
 
 heretofore made upon the orders of sale, issued herein 
 
 , r8 — . <»f the said real estate in the petition described, 
 
 and all the parties consenting thereto it is ordered that the 
 said motion be sustained, ami that the said appraisement and 
 sale heretofore made upon the said order of sale be and the 
 same arc hereby set aside.
 
 672 JUDGMENT ENTRIES. 
 
 No. 1081. 
 Entry setting aside Sale in Foreclosure upon Motion of Purchaser. 
 
 [Caption.] 
 
 This day this cause came on for hearing upon the motion 
 of P. L. , the purchaser at the sale heretofore, to wit, on the 
 day of , 18 — , under the order of sale issued here- 
 in, on the day of , 18 — , to set said sale aside, and 
 
 was argued by counsel and was submitted to the court. On 
 consideration whereof the court find that said motion should 
 be granted and said sale set aside. It is therefore ordered by 
 the court that the said sale made under said order of sale to 
 P. L. of the said real estate be and the same is hereby set 
 aside and held for naught. 
 
 No. 1082. 
 
 New Appraisement ordered when Premises twice Offered, and 
 Sale on time. 
 [Caption.] 
 
 Upon motion of plaintiff (or, defendant), and it appear- 
 ing to the court that the premises herein have been twice 
 advertised and offered for sale, and remain unsold for want 
 of bidders, it is ordered that the said sheriff cause a new ap- 
 praisement to be made according to law, and that he there- 
 upon under such new appraisement to advertise and sell said 
 premises upon the following terms to wit : One third cash, 
 one third in nine months from the day of sale, and the re- 
 maining third in eighteen months from the day of sale, the 
 deferred payments to draw six percent interest, and to be 
 secured by mortgage on the premises. 
 
 R. S. Sec. 5417. 
 
 No. 1083. 
 
 Entry determining Priorities — Ordering Distribution — Separate 
 finding of Fact and Law — Notice of Appeal. 
 
 [Caption.] 
 
 This day this cause came on further to be heard upon the 
 question of the priority of liens and further and final dis- 
 tribution of the balance of the proceeds of the sale made
 
 FORECLOSURE OF LIENS. 673 
 
 under the former order of this court, and the parties having 
 submitted their allegations and proofs by request of counsel 
 the court states its findings of facts and law separately as 
 follows, to wit : The court find that the premises sold under 
 said former order were conveyed by E. and E. D. to the said 
 
 J. M. P. by deed dated , A. D. 18 — , and acknowledged 
 
 and delivered , A. D. 18 — , at about O'clock p. m. 
 
 of said day, and recorded on the day of , A. D. 1 8 — , 
 
 and is recorded on page — , of vol. — , of the records of 
 
 deeds of said county. On the day of , A. D. 18 — , 
 
 the said J. M. P. and wife executed and delivered to the said 
 defendant, The H. Building and Loan Association, their cer- 
 tain mortgage deed as in its answer and cross petition de- 
 scribed, and on the premises therein described, and which 
 
 mortgage was duly filed for record on the day of , 
 
 A. D. 18 — , at o'clock a. m., and said mortgage con- 
 tained covenants of warranty in the following form, to wit : 
 " And the said J. M. P. and C. P., his wife, for themselves 
 and for their heirs, executors and administrators, do hereby 
 covenant with the said H. Building and Loan Association, 
 its heirs and assigns, that they are the true and lawful owners 
 of the said premises and have full power to convey the same, 
 and that the title so conveyed is clear, free and unincum- 
 bered, and further that they will warrant and defend the 
 same against all claim or claims of all persons whomsoever. " 
 The mortgage given by said P. and wife to E. and E. D., to 
 secure the notes afterwards assigned to plaintiff and sued on 
 herein by the plaintiff was executed, acknowledged and de- 
 livered on the day of , A. D. 18 — , and filed for 
 
 record on said day of , A. D. 18 — , at — o'clock 
 
 a. m., and conveys the real estate sold under said former 
 order of this court, but said notes and mortgages were given 
 in renewal of two other notes given to said E. and E. D. for 
 the balance due them from said I'. on the purchase money for 
 said real estate and secured by mortgage executed, acknowl- 
 
 1 and delivered on the day of , A. D. 18 — , 
 
 and filed for record on said day of , 18 — , at — 
 
 o'clock p. m. The mortgage given to secure the note to C. 
 M. ()., described in his answer and cross petition herein, was 
 
 executed, acknowledged and delivered on the day of 
 
 , A. I). [8 — , and filed for record on the day of , 
 
 \, J). t 8 — f at — o'clock p. m., and conveys the real estate 
 
 sold under said former order. All of said mortgages are exe- 
 cuted in proper form. At the time of filing the mortgage 
 
 from P. and wife to the said E. and I). OH the day 
 
 of , A. D. 18 — , as aforesaid, the said I), had no actual
 
 674 JUDGMENT ENTRIES. 
 
 knowledge of the execution or filing of said mortgage of P. 
 and wife to the said H. Building and Loan Association, but 
 before the taking of the renewal notes and mortgage on the 
 
 day of , 18 — , they, the said D., as well as the 
 
 said plaintiff, had actual knowledge of the existence and filing 
 of said mortgage from said P. and wife to the said H. 
 Building and Loan Association. There is due to the said 
 plaintiff on the judgment heretofore rendered herein in his 
 
 favor, with interest to this date, the sum of $ . There 
 
 is due to the said C. M. O. on his mortgage lien, including 
 
 interest to this date, the sum of $ . There is due to the 
 
 said association on its mortgage loan for dues, interest and 
 fines to this date, the sum of $ . 
 
 The court finds as a conclusion of law from the foregoing 
 facts that the said plaintiff has the first best lien on said real 
 estate and is entitled to have his said mortgage satisfied first 
 out of the proceeds of said sale. That the said C. M. O. 
 has the second best lien on said real estate and is entitled to 
 be paid second out of the proceeds of said sale, and the 
 said defendant, The H. Building and Loan Association, the 
 third best lien on said real estate, and is entitled to be 
 paid third out of the proceeds of said sale. It is therefore 
 ordered, adjudged and decreed that the sheriff of this county, 
 out of the balance of the money in his hands arising from 
 the sale of said real estate, pay first the costs that have ac- 
 crued herein since the making of said order of confirma- 
 tion, to wit, the sum of $ . 
 
 Second, to the said C. C. P. the sum of $ , in full of 
 
 his mortgage lien on said premises. 
 
 Third, To the said C. M. O. the sum of $ , in full of 
 
 his mortgage lien on said premises. 
 
 Fourth, To the said defendants, The H. Building and 
 Loan Association, the remainder of the proceeds of said sale, , 
 to be applied as a credit on the amount hereinbefore found 
 due it. To all of which finding, order, judgment and de- 
 cree the said defendant, The H. Building and Loan Associ- 
 ation, by its counsel, excepts, and thereupon the said de- 
 fendant, The H. Building and Loan Association, gave notice 
 of its intention to appeal from the above order of distribu- 
 tion to the circuit court of this county, and the court fixed 
 the amount of the bond for such appeal at $ .
 
 FORECLOSURE OF LIENS. 675 
 
 No. 1084. 
 
 Sale confirmed— Deed and Distribution ordered. 
 
 \Captio)i. ] 
 
 This day this cause came on further to be heard, and 
 thereupon on motion of plaintiff and upon his producing the 
 report and return of the sheriff of the proceedings had and a 
 sale made by him under the former order and decree of the 
 court herein, and the court upon careful examination of the 
 proceedings of said sale of and by said sheriff had and made, 
 being fully satisfied, and it appearing that the same has been 
 had and made in all respects in conformity to law and the 
 former orders and decrees of the court ; and the court being 
 satisfied of the legality of such sale, it is therefore now by 
 the court here ordered, adjudged and decreed that said pro- 
 ceedings and sale and the same are hereby in all things 
 approved, ratified and confirmed. And it is further ordered 
 and decreed by the court that said sheriff convey to the pur- 
 chaser at said sale, F. H. , by good and sufficient deed in fee 
 simple, according to law, the land and tenements so sold 
 to him. And said purchaser is hereby subrogated to each 
 and all the rights of each and all the lienholders, plaintiffs 
 and defendants herein, in and to said premises, in so far as 
 they may be paid herein for the protection of his title, and a 
 writ of possession be issued by the clerk of this court to 
 the sheriff of this county is hereby adjudged and awarded to 
 put said purchaser into the full, peacable and quiet possession 
 of said premises and to each and every part and parcel 
 thereof. 
 
 And the court now coming to distribute the proceeds of 
 
 said sale, amounting to $ , finds, adjudges and decrees 
 
 that the liens upon said premises, and now upon said fund, 
 amount at this time to the sums hereinafter set forth respect- 
 ive! v, and stand in the order of priority as hereinafter set 
 forth, and should In- paid accordingly, and said sheriff is 
 therefore ordered and directed out of said fund to pay: first, 
 
 the costs herein, taxed at $ ; second, the taxes and penalty 
 
 flue and unpaid, amounting to $ (o/\ and owing to B. 1\ 
 
 upon his tax certificate herein sit up. 5 1; third, to the 
 
 defendant, M. K., in satisfaction of his mortgage claim herein, 
 
 tin sum of $ ; fourth, to plaintiff, F. B., the sum of 
 
 $ , in satisfaction of his mortgage claim; fifth, to the 
 
 defendant, M. P., the balance of said fund, amounting to the 
 sum of $ .
 
 676 JUDGMENT ENTRIES. 
 
 No. 1085. 
 
 Entry confirming Sale — Finding and Decrees on Answers and 
 Cross Petitions of several Defendants against Principal 
 Debtor, Defendant — And Distribution all in one. 
 
 [Caption. ~\ 
 
 On motion of the plaintiff, and on her producing the re- 
 turn of the sheriff of the sale made under the former order 
 of the court; and the court on careful examination of the 
 proceedings of the said sheriff being satisfied that the same 
 have been had in all respects in conformity to law and the 
 order of the court, it is ordered that the said proceedings and 
 sale be and they are hereby approved and confirmed. And 
 it is further ordered that the said sheriff convey to the pur- 
 chaser, C. W., by deed according to law, the property 
 so sold ; and the said purchaser is hereby subrogated to all 
 the rights of the lienholders in said premises so far as they 
 may be paid herein, for the protection of her title, and a writ 
 of possession is awarded to put said purchaser in possession of 
 premises. It is further ordered that the clerk cause satisfac- 
 tion of the mortgages herein sued on to be entered on the 
 
 records thereof in the office of the recorder of county, 
 
 Ohio. 
 
 And this cause coming on for further hearing upon the 
 answer and cross petition of J. B. W., upon the first and 
 second causes of action in the answer and cross petition of 
 
 the company, upon the answer and cross petition of G. 
 
 H. , and upon the answer and cross petition of J. H. W. , and the 
 said defendants, J. B. and R. B., being in default for reply, 
 answer or demurrer thereto, the court finds that the allega- 
 tions of each and all of said answers and cross petitions are 
 by said defendants, J. B. and R. B., thereby confessed to be 
 true, and the court further finds that there is due the defend- 
 ant J. B. W. from the defendant J. B. on the promissory 
 
 notes set up in his cross petition the sum of dollars 
 
 ($ ). It is therefore considered by the court that the said 
 
 defendant, J. B. W., recover from his co-defendant, J. B., 
 
 the said sum of $ , with interest at percent from , 
 
 18 — . And the court further finds that there is due to the 
 
 defendant, the company, from the defendant J. B., on the 
 
 promissory notes set up in the first cause of action in its 
 cross petition, the sum of dollars ($ ). It is there- 
 fore considered by the court that the said defendant, the 
 
 company, recover from its co-defendant, J. B., the said sum
 
 FORECLOSURE OF LIENS. 677 
 
 of $ , with interest at percent from , 18 — . 
 
 And the court further finds that there is due to the defendant 
 G. H., from the defendant J. B., upon the promissory note 
 
 set up in his cross petition the sum of dollars ($ ). 
 
 It is therefore considered by the court that the said defend- 
 ant, G. H., recover from his co-defendant, J. B., the said 
 sum of $ , with interest at percent from , 18 — . 
 
 And the court further finds that there is due to the de- 
 fendant, J. H. W., upon the promissory note set up in his 
 cross petition the sum of dollars ($ ). It is there- 
 fore considered by the court that the said defendant, J. H. 
 \Y., recover from his co-defendant, J. B., the said sum of 
 $ — — , with interest at percent from , 18 — . 
 
 And the court coming now to distribute the proceeds of 
 
 said sale, amounting to dollars (S ), it is ordered 
 
 that the sheriff, out of the money in his hands, pay the 
 claims or liens upon said real estate as far as said sum of 
 $ will reach, in the following order, to wit: 
 
 1st. The taxes due upon said real estate. 
 
 2d. The costs of this action. 
 
 3d. To J. B. \\\, on his answer and cross petition, the 
 sum of $ . 
 
 4th. To the company, on the notes and mortgage 
 
 set forth in the first and second causes of action in its answer 
 and cross petition, the sum of $ . 
 
 5th. To the company, on the notes and mortgage set 
 
 forth in the third and fourth causes of action in its answer 
 and cross petition, the amount, if any, to be hereafter deter- 
 mined by the court, if the same shall hereafter be determined 
 by the court to constitute a valid lien upon the said real es- 
 tate, the same being contested. 
 
 6th. To G. H., on his answer and cross petition, the 
 sum of $ . 
 
 7th. To the plaintiff, C. W., the amount heretofore found 
 due her, with interest, to wit: the sum of $ . 
 
 8th. To the defendant, J. II. W., on his answer and cross 
 petition, the sum of $ . 
 
 And this oming on for further hearing upon the 
 cross petition of the defendant, the company, the plain- 
 tiff, at her request, has leave to withdraw the demurrers to said 
 petition heretofore filed, and has leave t<> answer the 
 third and fourth causes of action in the cross petition of the 
 company within days from the day of ,
 
 678 JUDGMENT ENTRIES. 
 
 No. 1086. 
 
 Entry finding upon Answer and Cross Petition — Answer of Plain- 
 tiff thereto that there is no Lien — Notice of Appeal. 
 
 \Caption. ] 
 
 This cause coming on for further hearing upon the third 
 
 and fourth causes of action in the cross petition of the 
 
 company, and the answer of the plaintiff to said third and fourth 
 causes of action ; and the same was argued by counsel, upon 
 consideration whereof the court finds that the allegations of 
 the answer to said third and fourth causes of action are true, 
 and the court further finds that the mortgage set forth in the 
 
 fourth cause of action of the cross petition of the company, 
 
 does not constitute a lien upon the real estate therein de- 
 scribed, and said mortgage is hereby ordered canceled of 
 record. 
 
 To all of which the defendant, the company, then and 
 
 there excepted and gave notice of its intention to appeal this 
 
 hearing to the circuit court of county, Ohio. And the 
 
 court fixed the amount of the appeal bond at dollars. 
 
 No. 1087. 
 
 Entry ordering Liens on Real Estate transferred to the Fund 
 arising from the Sale of the same — Also ordering the Funds 
 to be deposited in Bank. 
 
 [ Caption. ] 
 
 This cause having come on for hearing, and all parties 
 being present, and it being represented to the court that the 
 real estate conveyed by plaintiff's alleged mortgage has been 
 sold, all the parties to this action consenting thereto in open 
 court, it is agreed by parties herein and ordered by the court 
 
 that the proceeds, to wit : the sum of $ cash, derived 
 
 from the sale of said premises, shall take the place of the 
 ( real estate, and for this litigation shall be considered as such 
 until the rights of the parties "herein are determined, and 
 that the real estate shall forever go acquitted and be dis- 
 charged from any and all lien by virtue of any said alleged 
 mortgage, and all rights of all and each of the parties here- 
 in are by the consent of the parties ordered transferred from 
 the said real estate to the said proceeds arising from said sale 
 thereof.
 
 FORECLOSURE OF LIENS. 679 
 
 It is further ordered by the court, by like consent of all 
 parties, that the proceeds of said sale shall be deposited with 
 
 the bank of C. , subject to the joint order of J. W. 
 
 N. and J. T. H., as attorneys, representing all parties inter- 
 ested or having claim upon said fund. 
 
 And it is further ordered, adjudged and decreed by the 
 court, all the parties consenting thereto, that all the rights 
 of the mortgage upon said premises and all the holders there- 
 of, be and they hereby are transferred from the said real estate 
 to the said fund arising from the sale thereof as aforesaid, and 
 all questions between said parties are to remain unaffected 
 as to their claim upon said proceeds, and the rights of said- 
 parties are to be hereafter adjudicated as to their right to par- 
 ticipate in said proceeds, and said real estate is released from 
 the lien and operation of said mortgage, and said mortgage 
 is hereby ordered to be canceled of record, and the rights of 
 all parties hereof to participate in the distribution of said 
 fund are not to be affected by said cancellation of said mort- 
 gage further than that all their rights are transferred from said 
 property to said fund. The said proceeds are not to become 
 or to be considered as personal property, but for the purposes 
 of this litigation the same is to be considered real estate, 
 and as standing in lieu and in place of said real estate. 
 
 No. 1088. 
 Mechanic's Lien — Foreclosure — Decree of Sale. 
 
 \CaptionJ\ 
 
 This day this cause came on to be heard upon the plead- 
 ings, evidence and arguments of counsel ; and the court upon 
 careful consideration thereof finds upon the issues joined for 
 the plaintiff; that there is (\uv said plaintiff from the defend- 
 ant, E. L., <"i account of the materials furnished and labor 
 
 performed, as set forth in the petition, the sum of $ ; 
 
 that on the — day of , [8 — , within four months after 
 
 furnishing said material and performing said labor, the said 
 plaintifi filed with the recordei of county a duly verified 
 
 Statement of his said account, which said statement was by 
 
 said recorder Tiled and recorded in Records of Mechanic's 
 Liens of said countv, volume — , page — ; and that the same 
 
 became upon the said — day of , 18 — , and is now a valid 
 
 and subsisting lien on the premises described in the plaintiff's 
 
 petition; and that the said plaintiff is entitled to have said 
 lien foreclosed. 
 
 If
 
 68o JUDGMENT ENTRIES. 
 
 It is therefore considered, adjudged and decreed that the 
 said plaintiff, W. M. , recover from the defendant, E. L. , the 
 
 sum of $ , together with his costs herein expended ; and 
 
 that unless the said defendant pays and satisfies said judg- 
 ment on or before the — day of , 18 — , that an order 
 
 may issue to the sheriff of county, Ohio, commanding 
 
 him to sell said premises as upon execution, and of his pro- 
 ceedings in the premises to make due return to this court. 
 And as to all questions of priority of liens, and as to the 
 several amounts due the other defendants to this suit, the 
 cause is continued. 
 
 No. 1089. 
 Confirmation of Sale — Distribution — Short Entry. 
 
 \Caption.~\ 
 
 On motion of the plaintiff, and on his producing the re- 
 turn of the sheriff of the sale made under the former 
 order of this court, and the court on careful examination of 
 the proceedings of said sheriff being satisfied that the same 
 have been had in all respects and conformity to law and the 
 orders of this court, it is ordered that said proceedings and 
 sale be and they are hereby approved and confirmed, and it 
 is further ordered that said sheriff convey to the purchaser, 
 VV. S., good and sufficient deed according to law, the property 
 so sold to him, and that said purchaser be and he is hereby 
 subrogated to all the rights of the lienholders of said prem- 
 ises so far as they may be paid herein for the protection of 
 his title and a writ of possession of his award to put the said 
 purchaser in possession of said premises. 
 
 It is further ordered that the clerk cause satisfaction of 
 the mortgage herein sued upon to be entered upon the record 
 thereof in the office of recorder of county, Ohio, to . 
 
 And the court now coming to distribute the proceeds of 
 
 said sale, amounting to $ , it is ordered that the sheriff, 
 
 out of the money in his hands, pay fully and first to the 
 treasurer of this county the taxes, penalty and interest 
 
 against said property, to wit, the sum of $ ; second, to 
 
 the treasurer of said county the amount of their assessments 
 remaining unpaid upon said premises, to wit, the sum of 
 
 $ ; third, the costs herein, taxed at $ ; fourth, to 
 
 the plaintiff, W. S. , the balance of said money remaining in 
 
 his hands, to wit, the sum of $ , to be applied as a credit 
 
 upon his judgment against the said defendant. There still 
 
 remaining due to the said W. S. the sum of $ , execution 
 
 is awarded against the said defendant therefor.
 
 FORECLOSURE OF LIEXS. 68l 
 
 No. 1090. 
 
 Entry confirming Sale — Ordering Deed — Subrogating Purchaser 
 to Rights of Lienholders — Partial Distribution, etc. 
 
 \C option J\ 
 
 On motion of the plaintiff, and on his producing his re- 
 turn of the sheriff of the sale made under the former order of 
 this court, and the court on careful examination of the pro- 
 ceedings of the said sheriff being satisfied that the same have 
 been had in all respects in conformity to law and the orders 
 of this coiirt, it is ordered that the said proceedings and sale 
 be and they are hereby approved and confirmed ; and it is 
 further ordered that the said sheriff convey to purchaser, 
 E. M., by deed according to law, the property so sold, and 
 the said purchaser is hereby subrogated to all the rights of 
 the said lienholders in said premises, so far as they may be 
 paid herein for the protection of her title. It is further 
 ordered that the clerk cause satisfaction of the mortgages 
 herein sued on to be entered on the record thereof, in the 
 office of the recorder of county, Ohio. 
 
 And the court coming now to a partial distribution of 
 
 the proceeds of said sale, amounting to $ , it is ordered 
 
 that the sheriff, out of the money in his hands pay, first, 
 to the treasurer of this county the taxes, penalty and interest 
 
 against said property, to wit, the sum of $ ; secoudlv, 
 
 the costs of this action, taxed at $ ; and it is ordered 
 
 that the further distribution of the proceeds of said sale, and 
 all questions as to the amount and priority of liens, be con- 
 tinued until the further order of this court. 
 
 No. 1091. 
 
 Entry of a Several Decree in favor of one Grantee who assumed 
 Mortgage and is compelled to Pay Deficiency — For Recovery 
 against several preceding Grantees who also assumed Mort- 
 gage for the Amount so paid — Payments to be made in the 
 inverse order in which Premises were sold — Payment of 
 such by any one to operate as a Satisfaction. 
 
 [Cap//"//. I 
 
 This day tli is cause came on for hearing on the answer 
 and cross petition and the amended and supplemental an- 
 swer and cross petition of the defendant \V. M., the separate
 
 682 JUDGMENT ENTRIES. 
 
 answers of the defendants S. C. and J. M. , and a jury being 
 waived, and no jury being demanded, was submitted to the 
 court ; on consideration whereof the court, being duly ad- 
 vised in the premises, find that all the defendants herein have 
 been duly and legally notified of the filing of said answer and 
 cross petition and said amended and supplemental answer and 
 cross petition, and of the prayer of the same ; and the court 
 find that the defendants O. D., J. E. and C. E., and G. A., 
 have failed to answer or demur to said answer and cross 
 petition, or amended and supplemental answer and cross peti- 
 tion of the said defendant W. M., and that the facts stated 
 and allegations therein set forth are confessed by them to 
 be true; the court find, from the evidence adduced on the 
 trial, that all the facts set forth in said answer and cross peti- 
 tion and said amended and supplemental answer and cross 
 petition of this defendant, W. M. , are true ; the court finds, 
 from the evidence, that said defendants O. D., J. M., J. E. 
 and C. E. , G. A. and S. C. , assumed and agreed to pay the 
 note and mortgage set forth in plaintiff's petition, and also 
 mentioned in this defendant's said amended and supplemental 
 answer and cross petition herein, and also the taxes and street 
 assessments ; and for the purpose and in the manner and form 
 as set forth in said amended and supplemental answer and 
 cross petition. The court further finds, from the evidence, 
 that after the sale of said premises in this case, on foreclosure 
 proceedings, and the application of the purchase money as 
 set forth in said amended and supplemental answer and cross 
 petition, there still remained unpaid to the plaintiff, I. K., 
 
 on said mortgage, the sum of dollars ($ ). The 
 
 court further finds that afterwards, and on or about the 
 
 day of , 1 8 — , this defendant, W. M., paid to said plain- 
 tiff, I. K. , the full amount of said balance, with interest, 
 amounting at the time of payment to the sum of dol- 
 lars ($ ). The court finds from the evidence that said 
 
 defendants, O. D., J. M., J. E. and C. E., G. A. and S. C, 
 did not pay said note and mortgage, nor said balance, nor 
 any part thereof, so remaining unpaid after the foreclosure of 
 said mortgage as aforesaid ; that by reason of said assump- 
 tions and agreements of said several defendants, as set forth 
 in this defendant's said (amended and supplemental) answer 
 and cross petition that this defendant, W. M., is entitled to 
 be reimbursed for said balance so paid by him, and that he 
 is entitled to recover from said defendants, O. D., J. M. , J. 
 E. and C. E. , G. A. and S. C, said balance with interest so 
 paid to said I. K. , as aforesaid; and the court find that upon 
 the payment by any one of the said defendants of said balance
 
 FORECLOSURE OF LIENS. 683 
 
 so due this defendant, W. M., that such payment should 
 operate as a satisfaction also of each and all the other judg- 
 ments against the other defendants as hereinafter rendered, 
 subject, however, to all rights of subrogation as hereinafter 
 stated. 
 
 The court further finds that, as between said defendants, 
 said balance should be paid by them in the inverse order in 
 which the sale of the premises so covered by said mortgage 
 was sold, and said mortgage assumed as set forth in this 
 defendant's said (amended and supplemental) answer and cross 
 petition, and that execution for the same should issue, first, 
 against the said O. D. , and upon a failure to collect the same 
 from said O. D., that then execution should issue against the 
 said J. M.'. ; and upon a failure to collect the same from the 
 said J. M., that then execution should issue against the said 
 J. E. and C. E; and that upon a failure to collect the same 
 from said J. E. and C. E. , that then execution should issue 
 against the said G. A. ; and that upon a failure to collect the 
 same from said G. A., that then execution should issue 
 against said S. C. 
 
 It is therefore considered, adjudged and decreed that the 
 said W. M. have and recover from the said defendant, O. D., 
 
 said balance, with interest, amounting to the sum of 
 
 dollars and costs herein expended, taxed at $ . It is 
 
 further ordered and adjudged by the court that this defend- 
 ant, W. M., have and recover from the said defendant, J M., 
 
 said sum of dollars and his costs herein expended, taxed 
 
 at $ . It is further ordered and adjudged that this de- 
 fendant, W. M., have and recover from said defendants, J. 
 
 E. and C. E. , said sum of dollars ($ ), and his costs 
 
 herein expended, taxed at $ . It is further adjudged and 
 
 decreed that this defendant, W. M., have and recover from 
 
 the said defendant. G. A., said sum of dollars and his 
 
 herein expended, taxed at $ . It is further adjudged 
 
 and decreed that this defendant, \V. M., have and recover 
 
 from said defendant, S. C, said sum of dollars and his 
 
 costs herein expended, taxed at $ . 
 
 It is further ad judged and decreed bythecourt that before 
 execution is issued against said J. M. on the judgment so 
 rendered against him, execution shall first be issued and re- 
 turned unsatisfied against said l ). 1). on said judgment so 
 rendered against -aid < ). I). It is further ordered that before 
 
 -ition shall issue against said J. I'.. and C. E. <>n the 
 
 judgment so rendered against them, execution shall first be 
 
 issued and be returned unsatisfied for want of goods or chat- 
 tels, lands or tenements, against the said J. M. on the judg-
 
 684 JUDGMENT ENTRIES. 
 
 ment so rendered against the said J. M., and that all the prop- 
 erty of the said J. M. shall first be exhausted before such 
 execution shall issue against the said J. E. and C. E. It 
 is further ordered that before execution shall issue against 
 said G. A., that execution shall first issue and be returned 
 unsatisfied against said J. E. and C. E., it is further ordered 
 that before execution shall issue against said S. C. , that exe- 
 cution shall first issue and be returned unsatisfied against the 
 said G. A. 
 
 It is further adjudged and decreed by the court that the 
 payment of any one of said several judgments so as above 
 rendered against each of said defendants shall, as to this de- 
 fendant, W. M. , and in so far as his rights and interests there- 
 in are concerned, operate and be a payment and satisfaction 
 in full of each and every other of said judgments so as above 
 rendered against said several defendants ; but each payment 
 shall not prejudice the right of such defendant as may have 
 paid said judgment, to be subrogated to all the rights and in- 
 terests of the said W. M. under such of said judgments, 
 against such of said defendants as assumed said mortgage 
 after the defendant, so paying such judgment, parted with 
 the title to the premises so covered by said mortgage. 
 
 No. 1092. 
 
 Decree modifying the former Decree requiring Premises sold in 
 the Order sold by Grantor. 
 
 \Caption.~\ 
 
 This day came the parties, and by consent of all the par- 
 ties herein it is ordered and adjudged that the decree here- 
 tofore rendered in this court in the case of A. S. against D. 
 
 S., and being No. upon the dockets and records of this 
 
 court, be so modified as to require that in subjecting the 
 premises therein described to the payment of the mortgage 
 indebtedness therein set forth, so as to require that the pro- 
 ceeds of the premises sold to J. F. H. shall be first applied to 
 the payment of said claim therein sued upon before the pro- 
 ceeds of the remaining portions of said premises shall be so 
 applied. 
 
 R. S. Sec. 5354.
 
 FORECLOSURE OF LIENS. 685 
 
 No. 1093. 
 
 Modification of former Decree and ordering Real Estate sold in 
 Parcels, and Proceeds of Sale of first Parcel to be applied 
 on Claim first. 
 
 \Captwn.~\ 
 
 This day came the parties, and thereupon it is ordered 
 that the decree of foreclosure and order of sale heretofore 
 entered herein be amended so as to require that in the sale of 
 said premises the same shall be sold in two parcels, to wit : 
 First parcel: \Jicrc give description.] 
 Second parcel : \Jiere give description of proper 'ty.~\ 
 It is further ordered that the proceeds of said first de- 
 scribed parcel be applied to the satisfaction of the payment 
 
 of the claim sued upon herein and now held by , before 
 
 any part of the proceeds of said second described parcel is 
 so applied. 
 
 R. S. Sec. 5354. 
 
 No. 1094. 
 Entry of Foreclosure of Chattel Mortgage. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the pleadings, 
 evidence and arguments, was submitted to the court. On 
 consideration thereof, and the court being fully advised, 
 finds in favor of the plaintiff, and that there is due plaintiff, 
 
 upon the note set up in the said petition, the sum of $ , 
 
 with interest at from the date of this entry. 
 
 And the court further finds that in order to secure the 
 pavment of said promissory note the said defendant executed 
 and delivered to said plaintiff his chattel mortgage upon 
 the property described in the petition, and that said chattel 
 
 mortgage was by the plaintiff duly filed with on the 
 
 day of , 18 — , and from that date became a lien 
 
 upon said property, and is now a valid and subsisting lien on 
 said property, and that the plaintiff is entitled, by reason of 
 the non-payment of said note, to have the said chattel mort- 
 foreclosed and the said property sold. 
 
 It is therefore ordered, adjudged and decreed that the 
 
 said plaintiff recover from the said defendant the said sum 
 
 of $ , with interest from , and that unless the 
 
 said defendant shall pay to said plaintiff the said sum of
 
 6S6 ■ JUDGMENT ENTRIES. 
 
 $ within days from the date of this entry, that the 
 
 said property described in said petition, and upon which said 
 mortgage set forth in said petition herein is a lien, be sold 
 according to law, by the sheriff, and that the proceeds de- 
 rived from such sale be applied to the payment of said 
 plaintiff's claim, after payment of costs herein expended. 
 
 No. 1095. 
 Foreclosure of Mechanic's Lien. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence, and was argued by counsel and submitted 
 to the court. On consideration thereof the court finds that 
 there is due the plaintiff from the defendant, upon the ac- 
 count set forth in his said petition, for labor and materials 
 performed and furnished by said plaintiff to and for said de- 
 fendant, in the construction of the building upon the prem- 
 ises set forth and described in the petition, and belonging to 
 
 the said defendant as owner, the sum of $ ; and the 
 
 court further finds that on the day of , 18 — , plain- 
 tiff served a copy of said account, duly sworn to as required 
 
 by law, upon the said defendant ; and that on the day 
 
 of , 18 — , said plaintiff filed a duly verified statement 
 
 of his said claim with the recorder of county, Ohio, 
 
 which was recorded in the Record of Liens of said county, in 
 volume — , page — , and that said claim became from said 
 date a valid and subsisting lien upon the premises described 
 in plaintiff's petition, and that the plaintiff is entitled, by 
 reason of the failure of said defendant to pay his claim, to 
 have said lien foreclosed and the said premises sold. 
 
 It is therefore ordered, adjudged and decreed that plain- 
 tiff recover from the defendant the said sum of $ , with 
 
 interest from , and that unless the said defendant shall 
 
 pay said sum of $ within days from the date of 
 
 this entry, that the said lien be foreclosed and said prem- 
 ises sold by the sheriff according to law, and that the pro- 
 ceeds arising from sale be applied to the payment of said 
 claim.
 
 FRAUD — FRAUDULENT CONVEYANCES. 687 
 
 FRAUD— FRAUDULENT CONVEYANCES. 
 
 See also Vacation of Judgments. 
 
 No. 1096. 
 Entry setting aside Deed for Fraud. 
 
 \CaptionJ\ 
 
 This cause came on to be heard upon the petition, an- 
 swer, reply and the evidence, and was submitted to the 
 court ; on consideration whereof the court finds that the de- 
 fendant obtained the deed of conveyance set forth in said 
 petition from the plaintiff by fraud and misrepresentation as 
 alleged in said petition. 
 
 It is therefore considered and adjudged by the court that 
 the deed of conveyance described in said complaint from the 
 plaintiff to the defendant for the [describe premises as in 
 complaint~\ be and the same hereby is vacated, set aside and 
 annulled and declared of no force and effect. And that the 
 plaintiff recover from the defendant his costs in the action, 
 taxed at $ . 
 
 No. 1097. 
 
 Order setting aside Conveyance to defraud Creditor, and Property 
 ordered to be Sold— Action begun by one on behalf of other 
 Creditors. 
 
 \Caption^\ 
 
 This day this cause came on to be heard upon the peti- 
 tion and evidi ace adduced by the plaintiff, the defendants 
 being in default for answer and demurrer, and the same 
 being submitted to the court, the court finds that the allega- 
 tions of the petition are confessed to be true. The court es- 
 pecially finds thai on the day of , 18 — , the de- 
 fendant, P. M., was indebted to sundry creditors in various 
 sums of money (among other these plaintiffs), and was on 
 said date the ownei in fee of the said premises hereinafter 
 
 cribed; that on said date in order to hinder, delay and 
 defraud his creditors, the said K M. conveyed to G. K. and
 
 688 JUDGMENT ENTRIES. 
 
 caused said G. K. to convey to E. M. , the wife of P. M. , all 
 of whom had full knowledge of the purpose and object of 
 said conveyance in fee the following described premises : 
 Xhere give description of the property conveyed^. 
 
 The court further finds that said conveyances were made 
 through the formalities of deeds with covenants of war- 
 ranty and were without any valuable consideration therefor 
 passing to the said P. M. from either of the said G. K. or E. 
 M., and the court here declares said conveyance fraudulent 
 
 and void. The court further finds that on the day of 
 
 , 1 8 — , the plaintiffs, B. & Co., in cause number , 
 
 wherein B. & Co. were plaintiffs and G. P. M., J. M. and 
 E. H. were defendants, these plaintiffs recovered a judgment 
 against the said defendants thereon, on their joint and prom- 
 issory note, in the sum of $ , together with interest at 
 
 percent from the date of said judgment, and their costs 
 
 therein expended, taxed at $ , which judgment is now in 
 
 full force and unreversed and unsatisfied. 
 
 The court further finds that the said P. M. is insolvent 
 except as to the premises hereinbefore described. The court 
 therefore finds that there is due the plaintiff from said P. M. 
 on the indebtedness in their petition described the sum of 
 
 $ , with interest as aforesaid, and costs as aforesaid ; that 
 
 this cause of action was brought by the plaintiffs under Sec- 
 tion 6344 of the Revised Statutes of Ohio for their own ben- 
 efit as well as for that of all the other creditors of said P. M. 
 who might come into this cause and be made parties hereto 
 to secure the payment of their pro rata share of the costs 
 and expenses of the prosecution of this action and file their 
 answer and cross petition herein, the said plaintiff having 
 given the notice provided for in said section of the pend- 
 ency and object of their said action by publication for four 
 consecutive weeks in a newspaper published in said county, 
 next after the day of , 18 — . 
 
 The court further finds that the defendant, H. M. & Co., 
 have been made parties hereto and filed their answer and 
 
 cross petition herein on the — day of , 18 — , but have 
 
 not given security for their share of the costs and expenses 
 of the prosecution of this action, and the court finds that 
 there is due from said P. M. to the said H. M. & Co. upon 
 the causes of action set forth in their said answer and cross 
 
 petition the sum of $ , together with interest and costs 
 
 as therein prayed for, and that H. M. & Co. have caused an 
 execution to be issued and levied upon the real estate de- 
 scribed in the plaintiff's petition, on the — day of , 18 — , 
 
 and that after paying the claim of said plaintiff, the claim of
 
 FRAUD — FRAUDULENT CONVEYANCES. 689 
 
 said H. M. & Co. is the next and first lien on said premises 
 and should be paid out of the residue of the proceeds of the 
 sale of said premises if any there be. 
 
 It is therefore here ordered, adjudged and decreed by the 
 court that the said conveyances be and the same are hereby 
 set aside ; that said premises be sold and the proceeds arising 
 therefrom be applied first to the payment of the claim of the 
 plaintiff herein ; second to the payment of the claim of said 
 H. M. & Co., and that the residue, if any there be, be paid 
 pro rata to such other creditors as may come in and prove 
 their claim, after paying the costs of this action. 
 
 For the purpose of carrying into execution the findings 
 and decrees of this court herein made, it is hereby ordered 
 that an order of sale issue to the sheriff of this county, com- 
 manding him to appraise, advertise and sell as upon an 
 execution at law the premises hereinbefore described and 
 report his proceedings in the premises herein to this court. 
 
 R. S. Sec. 6344. 
 
 No. 1098. 
 Entry declaring certain Deed Not Fraudulent. 
 
 [Caption.] 
 
 This cause came on for hearing and was heard upon the 
 pleadings, exhibits and testimony, and was argued by counsel 
 and submitted to the court, and upon consideration thereof 
 and being fully advised in the premises the court finds the 
 issues joined in favor of the defendants and that the plaintiff 
 is entitled to the relief prayed for in his petition. 
 
 And the court further finds that the deed made by the 
 plaintiff, S. G., to the defendants, J. G. and J. M. G., dated 
 
 the day of , 18 — , and appearing of record in deed 
 
 — , page — , of the county record of deeds, and 
 
 rred to in the petition herein, was not procured by fraud 
 
 tlleged in the petition, but, on the contrary, said <\>.x<\ 
 when executed was the free and voluntary acl of th< plaintiff, 
 and the same was and is supported by valuable consideration. 
 
 It is ordered thai the petition of plaintiff herein be and 
 the same is hereby dismissed at cost of the plaintiff, and it is 
 adjudged that each and all of the defendants recover of the 
 plaintiff their COStS herein expended, taxed at $ .
 
 69O JUDGMENT ENTRIES. 
 
 GUARDIAN'S SALE OF REAL ESTATE IN 
 COMMON PLEAS COURT. 
 
 See Other Entries in Probate Court. 
 
 No. 1099. 
 
 Decree authorizing Guardian to sell Real Estate — Divesting 
 Widower of Dower Interest on Account of Waste — Appoint- 
 ment of Appraisers. 
 
 \Caption.~\ 
 
 This day came the plaintiff by his attorney and on motion 
 the court doth order that this cause be entered upon the trial 
 docket of this term and assigned for hearing this day, and the 
 same being so accordingly done, the defendant, E. H., still 
 failing to demur or answer to the petition or otherwise plead 
 thereto, and being in default therefor, this cause came on to 
 be heard by the court upon the petition of plaintiff, answer of 
 L. G. B., guardian ad litem for the minor defendant, M. V. 
 H. , T. H. and A. H. respectively, the answer of S. V. M. and 
 J. W. S. by exhibits and testimony, and the court having 
 fully and carefully considered the same, and being fully ad- 
 vised in the premises, doth find that each and all of the 
 defendants have been duly and legally notified of the pend- 
 ency and prayer of the petition according to law, and that 
 the facts stated and allegations contained in the petition are 
 true. The court do further find that as set forth the real 
 estate in said petition described, and each parcel thereof, ought 
 to be sold for the proper maintenance and education of said 
 wards as prayed for in said petition, and that it will be for 
 the best interests of said ward to sell said real estate and re- 
 invest the money arising therefrom in loans upon mortgage. 
 
 The court do further find that the defendant, E. H., as 
 widower of the said M. H. H., deceased, is or was seized of 
 
 estate by curtesy or dower in said lot containing as in 
 
 said petition set out acres of land and in said lot 
 
 containing as aforesaid acres of land. The court further 
 
 find that the said E. H. has neglected to pay or caused to be 
 paid the taxes on said real estate aforesaid, notwithstanding
 
 guardian's sale of real estate. 691 
 
 it was his duty so to do so long as each of said tracts have 
 been sold for the payment of the taxes levied against the 
 same, and that the said E. H. has not caused the same to be 
 redeemed according to law, and that more than one year has 
 elapsed since said tracts were so aforesaid respectively sold 
 for taxes. 
 
 The court further finds that the said E. H. has wholly 
 failed, neglected and refused to keep the buildings and fences 
 on said premises in a proper condition, whereby great waste 
 has been committed by said E. H. in this regard, and the 
 estate of said wards has suffered from it. The court further 
 finds that the said E. H. has by his negligence in regard to 
 the proper payments by him of the taxes as aforesaid by his 
 failure and refusal to make the needful, necessary and proper 
 repairs on said premises, wholly forfeited to said wards, \Y. 
 V. H., T. H. and A. H., who are the persons next entitled 
 to said lands in remainder and reversion of all the estate 
 which he, the said E. H., or may have had in said lands as 
 aforesaid as by the statutes in such cases made and provided. 
 
 The court further find that the defendant, S. V. M., is or 
 was the owner of the dower formerly held and owned by 
 A. H. as widower of H. H., deceased, in the premises men- 
 tioned, and described as lot , and containing acres, 
 
 and that the said A. H. did convey the same to the said S. 
 
 V. M. by deed dated the day of , 18 — , and recorded 
 
 in the recorder's office of said county, in deed book 
 
 page 
 
 The court further find that the said S. V. M. has neg- 
 lected to pay or caused to be paid the taxes thereon, notwith- 
 standing it was his duty so to do so long as said acre 
 
 tract has been sold for the payment of ' taxes levied against 
 the same; that the said S. V. M. has not caused the same to 
 be redeemed according to law, and that more than one year has 
 
 elapsed since said acre aforesaid was sold for taxes, and 
 
 find that the said S. V. M., by his negligence in the pay- 
 ment by him of the taxes as aforesaid on the said acre 
 
 of tract as forfeited to W. V. EL, T. II. and A. Pi., who are 
 the persons next entitled to the lands in remainder and re- 
 version all of the estate which he, the said S. V. M., had or 
 may have had in said land as aforesaid, as by the statute in 
 such cases made and provided. 
 
 And it further appearing to the court by the answer filed 
 herein of the said S. V. M. that he has waived all right, 
 title and interest in said premises, and consents that the 
 said premises may be sold free and clear of any dower right 
 or claim that he has or may have had in the same.
 
 692 JUDGMENT ENTRIES. 
 
 It is therefore now here by the court ordered, adjudged 
 and decreed that the dower interest of the said E. H. and S. 
 V. M. in the premises described in the petition and in each 
 parcel thereof respectively, be and the same are hereby de- 
 clared forfeited, and the said dower interest or claim of the 
 said E. H. and S. V. M. respectively in said premises by 
 this decree be held for naught, forever cut off, made null and 
 void and of no effect either in law or equity. It is further 
 ordered and adjudged and decreed that the said E. H. and S. 
 V. M. respectively shall and will, by good and sufficient 
 deed in fee simple, according to law, immediately convey to 
 the said M. V. H., T. H. and A. H., their heirs and assigns 
 forever, all their and each of their right, title and interest of, 
 in and to said premises, and upon their failure, or the failure 
 of either so to do, then and forever thereafter this decree 
 shall and will stand for and in the place of and instead of 
 such conveyance or conveyances, so that they, the said M. 
 V. H., T. H. and A. H., shall be invested and the said E. H. 
 and S. V. M. divested of all right, title, interest and estate 
 of, in and to the premises described in the petition, and here- 
 tofore held or claimed by the said E. D. or S. V. M., or 
 either of them, in said premises or either parcel thereof. 
 
 It is therefore now further ordered that S. S. , O. S. and 
 N. H. G., three judicious and disinterested freeholders of 
 this county, and not akin to the petitioners, be and are hereby 
 appointed appraisers of said cause, and that they be sworn as 
 required by law before entering upon the discharge of their 
 duty as said appraisers; that said appraisers, upon actual 
 view of the premises described in the petition, appraise the 
 same at their fair cash value, free from the dower of the said 
 E. H., and free from the dower of the said S. V. M., re- 
 spectively therein, and that said appraisers make return of 
 their appraisement and other doings to this court without 
 unnecessary delay. 
 
 No. 1100. 
 
 Order of Court authorizing Guardian to sell Real Estate at 
 Private Sale at not less than the Appraised Value. 
 
 [Caption."] 
 
 This cause coming on this day further to be heard, and it 
 appearing to the court that the appraisement heretofore or- 
 dered has been made and confirmed by the court, that the 
 said T. M. C, guardian, the plaintiff above named, has given 
 bond in double the amount of said appraisement, with T. J.
 
 guardian's sale of real estate. 693 
 
 R. and others as sureties, conditioned as provided by law, 
 and which bond is approved by the court; that it has been 
 made to appear upon satisfactory evidence to the court that 
 it would be more for the interest of said wards to sell the 
 lands described in the petition in this cause at private sale, it 
 is therefore now here by the court ordered that the petitioner 
 proceed to sell the lands in the petition described, free from 
 the dower estate of E. H. and W. W. V. respectively, and 
 that the petitioner may sell said lands at private sale at not 
 less than at the appraised value thereof upon the following- 
 terms: one third cash, one third in one and one third in two 
 years from day of sale, deferred payments to bear interest at 
 
 percent, and to be secured by mortgage on the premises 
 
 sold, and that said petitioner make return of his proceedings 
 herein without unuecessarv delay. 
 
 No. 1101. 
 Confirmation of Guardian Sale and Deed Ordered. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the motion 
 of the petitioner to confirm the sale made in obedience to the 
 order heretofore made in this cause, and the court having 
 carefully examined the proceedings of the petitioner upon 
 said order of sale and finding them in all matters correct and 
 being satisfied that said sale was fairly and legally made, it 
 is ordered that the said sale be and it is hereby ratified, ap- 
 proved and confirmed, and it is further ordered that the pe- 
 titioner make a deed of all the right, title and interest of the 
 said M. V. H., T. II. and A. H., minors, in and to said land, 
 to the purchaser, C. II. 0., upon his executing to said guard- 
 ian a mortgage upon the premises to secure the deferred pay- 
 ment of the purchase money, with interest, payable ; 
 
 and it is further ordered that the petitioner pay the cost of 
 
 these proceedings, taxed at $ , out of said money for 
 
 which said land was sold, without unnecessary delay.
 
 694 JUDGMENT ENTRIES. 
 
 HABEAS CORPUS. 
 
 No. 1102. 
 
 Entry Granting Writ. 
 
 [ Caption. ] 
 
 This day came J. H. and made application to the court 
 for a writ of habeas corpus for the production of the body of 
 
 one , now in the custody of the sheriff [or, now in the 
 
 custody of ], and it appearing to the court that the 
 
 writ ought to issue, the same is hereby granted, returnable 
 on the — day of , 18 — , at — o'clock — M. 
 
 R. S. Sees. 5727, 5730. 
 
 No. 1103. 
 Entry Refusing allowance of Writ. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the petition 
 and application of J. H. for the allowance of a writ of habeas 
 corpus on his own behalf, and it appearing to the court that 
 the said J. H. is restrained of his liberty by the sheriff of 
 
 county under process issued by the court of 
 
 county [or, by C. D., justice of the peace], and that said 
 court [or, justice] had jurisdiction to issue said process, the 
 said writ is therefore refused. 
 
 Whittaker's Civil Code, Sec. 5729. This may be easily modified if the 
 custody of a minor is sought by following the statute. Kinkead's Code 
 Pleading, Sec. 659. 
 
 No. 1 104. 
 Entry Continuing Cause and Remanding Prisoner. 
 
 [Caption.] 
 
 For good cause shown to the court it is ordered that the 
 hearing of this cause be and the same is hereby continued to
 
 HABEAS CORPUS. 695 
 
 , 18 — . It is ordered that the said C. D., petitioner, be 
 
 remanded to the custody of the sheriff until the final hearing 
 of said cause. 
 
 R. S. Sec. 5740. 
 
 No. 1105. 
 Entry of Continuance when Custody of Minor involved. 
 
 [Caption.] 
 
 For good cause shown to the court, it is ordered that the 
 hearing of this cause be and the same is hereby continued to 
 
 , 18 — . And it is further ordered that the said A. C. be 
 
 committed to the care and custody of until the final 
 
 hearing hereof [or, that the said A. C. remain in the custody 
 of the respondent until the final hearing of this cause]. 
 
 R. S. Sec. 5740. Kiukead's Code Pleading, Sec. 655. 
 
 No. 1106. 
 Entry awarding Custody of Child upon Final Hearing. 
 
 [Caption."] 
 
 This day this cause came on to be heard and was sub- 
 mitted to the court upon the pleadings, exhibits, testimony 
 and argument of counsel. Upon consideration thereof, and 
 the court being fully advised in the premises, finds that there 
 was no express agreement between the parties hereto to sur- 
 render the custody of the child, K. M., from the plaintiff to 
 the defendant, but that there was an implied understanding 
 from the fact that said child was permitted to remain in the 
 custody of the defendant for a period of about — years; that 
 the custody of said child was given by the plaintiff to the 
 defendant. 
 
 The court further finds that the plaintiff is a competent 
 person and well qualified to maintain, rear and educate snch 
 child, and that he < an furnish a good home for it; that the 
 best interest and welfare of snch child will be subserved by 
 refusing the prayer of the petition herein, and by continuing 
 said custody, care and control of said infant child in the 
 defendant, X. I„. 
 
 It is therefore ordered, adjudged and decreed by the court 
 that the care, custody, control, maintenance and education of 
 Said infant child, K. M., be and the same are hereby adjudged 
 and decreed to remain in the defendant, X. L,.
 
 696 JUDGMENT ENTRIES. 
 
 And it is further ordered and adjudged that the defendant 
 do have and recover from plaintiff her costs hererein expended, 
 taxed at $ , and execution is awarded therefor. 
 
 No. 1 107. 
 
 Entry remanding Prisoner to Jail on Final Hearing — Motion 
 for Rehearing overruled. 
 \Caption^\ 
 
 Now comes the sheriff of county, Ohio, and made 
 
 return of the writ of habeas corpus heretofore issued in this 
 case, and also brought the body of said J. J. , petitioner here- 
 in, and upon the hearing of the case the court finds that the 
 said J. J. is lawfully imprisoned and held in custody by the 
 
 sheriff of county, Ohio, and the petition of said J. J. 
 
 is therefore dismissed. 
 
 It is therefore ordered that the said J. J. be remanded 
 
 back into the custody of the said J. R. , sheriff of said 
 
 county, Ohio, to be detained as heretofore by virtue of said 
 mittimus named in said petition of J. J., and that he pay the 
 
 costs of this proceeding, taxed at $ , and to all of which 
 
 orders, findings and judgment of the court the said J. J. at 
 the time excepted and still excepts. 
 
 Thereupon within three days the said J. J. filed a motion 
 for a rehearing of his petition and said motion the court 
 overruled, and to which judgment the said J. J. excepts, and 
 forty days given said J. J. in which to prepare, present and 
 have allowed his bill of exceptions herein. And this day 
 came said J. J. and filed in the office of the clerk of said 
 court his bill of exceptions below allowed and signed by the 
 court, and which is ordered by the court to be made part of 
 the record, but not to be spread at large upon the journal. 
 
 R. S. Sec. 5729. 
 
 No. 1 108. 
 Entry remanding the Prisoner to Custody of . 
 
 \CaptionJ\ 
 
 This application coming on for hearing upon the return of 
 the and the evidence, was argued by counsel and sub- 
 mitted to the court, and upon due consideration whereof the 
 court finds that the prisoner is lawfully in the custody of said 
 
 , and therefore dismisses the application and remands the 
 
 relator to such custody.
 
 INFANTS. 697 
 
 No. 1109. 
 
 Entry on final Hearing as to Custody of Child, remanding 
 
 Custody to Respondent. 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings, evidence and was argued by counsel. On consideration 
 whereof, and the court being fully advised in the premises, 
 finds that the best interests of the child, T. C, demand that 
 she remain in the custody of her father, and that he is a 
 suitable person to have the custody of said child. 
 
 It is therefore adjudged, ordered and decreed that the said 
 T. R. be remanded to the care and custody of the said A. L. 
 C., that the petition herein be dismissed. It is further 
 ordered that said petitioner, W. R. B., pay the costs of this 
 proceeding, taxed at $ , to all of which finding and judg- 
 ment said petitioner by his counsel excepts. 
 
 INFANTS. 
 
 See Parties. 
 
 No. 1110. 
 
 Infancy — Order setting aside Deed made by an Infant — Also 
 Mortgages, encumbering Infant's interest included in said 
 Deeds — Holding Assignees of Notes before Maturity bona fide 
 Holders. 
 
 [( % aption.~\ 
 
 This day this cause came on to be heard upon the demur- 
 of the defendants \V. D. 1)., E. H. II., administrator 
 of J. H., deceased, to the petition, was argued by counsel 
 and was submitted to the court. Upon due consideration 
 whereof the court overrules the same, and thereupon the said 
 defendant W. D. I'., and E. H. EL, as administrator, not 
 taking leave to further plead herein, and the defendant M. H. 
 being in default for answer or demurrer to the petition, in 
 this cause came "ii for trial upon the petition of the plaintiff, 
 
 the amended answer and cross petition of company and 
 
 the answer and cross petition of company, and the evi- 
 dence, was argued by counsel, submitted to the court, and
 
 698 JUDGMENT ENTRIES. 
 
 upon due consideration whereof the court doth find for the 
 plaintiff F. H. ; that she was at the time of the execution of 
 her quit-claim deeds to J. H. in the petition described, dated 
 
 the day of , 18 — , and the day of , 18 — , 
 
 respectively, recorded in the book, pages, county 
 
 records, for the premises in the petition described, to wit: 
 [Description of premises], a minor under the age of eighteen 
 years, and is entitled to have the said quit-claim deeds from 
 her, the said F. H. , canceled and held for naught as against 
 her in so far as the same purports to convey from her the un- 
 divided one half interest in said premises because of her said 
 infancy at the time of the execution of the same; and is 
 further entitled to have the deed in the petition described, 
 
 from J. H. and M. H., his wife, to W. D. D., dated the 
 
 day of , 18 — , and recorded in deed book , pages — 
 
 and — , so far as the same purports to convey her one half 
 interest, set aside and held for naught as against her; and 
 is further entitled to have the mortgage deed from W. D. D. 
 
 to J. H., dated the day of , 18 — , and recorded in 
 
 mortgage record , pages — and — , set up herein by the 
 
 defendants, the company, and company, set aside as 
 
 against her in so far as the same purports to convey mortgage 
 deed encumbered the undivided one half interest of her, the 
 said F. H. , in said premises, and the court finds that the said 
 
 W. D. D. is and was on the day of , 18 — , when 
 
 he executed and delivered said notes and mortgages to said 
 J. H., the owner in fee simple of the undivided one half of 
 said real estate, with full power to sell, convey, mortgage and 
 encumber his said undivided one half, and that said mort- 
 gage is a valid and subsisting lien upon his, the said W. D. 
 D., undivided one half of said premises. As to all questions 
 relating to rents and profits the court reserves its judgment 
 and decree for further consideration. 
 
 It is therefore adjudged and decreed that the following 
 deeds and mortgage be and the same are hereby set aside and 
 held for naught as against the said F. H. in so far as the 
 same purports to convey or encumber her undivided one half 
 interest in said premises in the petition and hereinbefore 
 described, to wit : 
 
 1. The quit- claim deeds from S. H. to J. H., dated the 
 
 day of , 18 — , and the day of , 18 — , 
 
 respectively, recorded in deed book , pages and 
 
 , of the County Records. 
 
 2. The warranty deed from J. H. and wife to W. D. D., 
 
 dated the day of , 18 — , and recorded in deed book 
 
 , pages and County Records.
 
 INFANTS. 699 
 
 3. The mortgage from W. D. D. to J. H. , now claimed 
 
 to be held by the defendants, the company, and the 
 
 company, dated the day of , 18 — , and recorded in 
 
 Mortgage Record , pages and , County 
 
 Records, in so far as the same, his deed, purports to be a lien 
 upon her said undivided one half of said real estate. But 
 it is ordered, decreed and adjudged that said mortgage be 
 and remain a lien upon the other undivided one half of said 
 real estate. 
 
 And the court doth further find, upon the cross petition 
 
 of the said company and company, that said notes 
 
 in their said cross petition respectively set forth, were taken 
 and received by them respectively before maturity thereof 
 bona fide for value in the usual course of business and with- 
 out notice of any defense to the same or either thereof or to 
 the mortgage securing the same in favor of any person whom- 
 soever, and that there is justly owing thereon from said W. 
 D. D. to the said company and company, and re- 
 maining wholly unpaid, the sums by them respectively in 
 their cross petitions set forth and claimed, and with interest 
 
 as named by them, to wit : To said company, on said 
 
 one-year note, the sum of $ , and on said note the 
 
 sum of $ , and to said company on said note the 
 
 sum of $ , and on said note the sum of $ , with 
 
 interest on each and all of said notes and on amounts afore- 
 said owing, with interest at the percent per annum from 
 
 the day of , 18 — , payable annually. 
 
 And the court further finds without now deciding or 
 determining any questions of priority or preference or other 
 
 questions made by or between said company and 
 
 company, all of which are reserved for future consideration, 
 that said two companies are likewise the lawful owners and 
 holders of the mortgage aforesaid so far as the same as here- 
 inbefore held valid, viz. : to the extent of the undivided one 
 half of said real estate described in the petition for the 
 protection, security and payment of said notes and each of 
 them by them respectively held and owned as aforesaid. 
 
 And it i> hereby ordered, considered and adjudged by the 
 
 court that said W. I). I), pay or cause to be paid the notes 
 
 Fori -iid, and interest as aforesaid, to the parties aforesaid 
 
 now holding and owning the same respectively, or their 
 
 .mis, when and as they respectively fall due as aforesaid 
 
 ording to the terms of said notes, and that the same be 
 and remain a lien upon the said undivided one half of said 
 real estate described in said petition, to which said W. D. D. 
 lias title as hereinbefore found.
 
 700 JUDGMENT ENTRIES. 
 
 INJUNCTION. 
 
 See also Assessments. 
 
 {R. S. Sees. 5571—5586.) 
 
 No. mi. 
 
 Entry granting temporary Restraining Order — (To prevent Sale 
 or Incumbrance of Real Estate) without Notice. 
 
 [Caption.] 
 
 This da) 7 this cause came on for hearing upon the petition, 
 motion and affidavit of plaintiff for a temporary restraining 
 order as prayed for in the petition; (and for good and satis- 
 factory reasons notice of this application is dispensed with), 
 and it being made to satisfactorily appear to the court, by the 
 affidavit of plaintiff [other persons, if necessary] that said 
 plaintiff is entitled to a temporary restraining order as prayed 
 for in his said petition, does hereby grant and allow a tempo- 
 rary restraining order, as prayed for by said plaintiff in his 
 said petition, and upon the plaintiff entering into a bond in 
 
 the sum of $ , with sureties to be approved by the clerk 
 
 of this court, the said defendant is hereby restrained until 
 the further order of this court [here insert in the language 
 of the prayer* of the petition, as] from selling, encumbering, 
 or in any way disposing of the following described real estate, 
 to wit: [Description]. 
 
 R. S. Sees. 5574, 5575. 
 
 No. 1112. 
 
 Entry directing reasonable Notice to Defendant before hearing. 
 
 [Caption.] 
 
 This day this cause came on for hearing upon the petition 
 and application of plaintiff herein for a temporary restraining 
 order as prayed for in said petition, and it being the opinion 
 of the court that the defendant herein should have notice
 
 INJUNCTION. 701 
 
 hereof, and that he should have an opportunity to be heard 
 before granting the injunction prayed for, it is ordered by 
 the court that said plaintiff cause a reasonable notice to 
 be given to said defendant of the time, place, and purpose 
 of said application, by giving said defendant not less than 
 
 days' notice hereof, and that said application be set 
 
 for hearing on the day of , 18 — , at o'clock 
 
 — . M., and until further ordered by the court, and until the 
 decision of the application for an injunction, a restraining 
 order is allowed, restraining said defendant from [state acts to 
 be refrained from], upon the plaintiff's entering into an un- 
 tertaking with sureties to be approved by the clerk of this 
 court in the sum of $ . 
 
 R. S. Sees. 5574, 5575. 
 
 No. 1113. 
 
 Entry granting Rule to show Cause why Defendant should not 
 be Punished as for Contempt for Violation on Injunction. 
 
 [Caption.^ 
 
 Upon motion of plaintiff, and the court being satisfied 
 by the affidavit of (plaintiff or any other person) that the said 
 defendant has been guilty of a breach of the restraining order 
 (or injunction) heretofore granted herein, it is by the court 
 ordered that (a) a rule issue requiring said defendant to appear 
 
 before this court on the day of , 18 — , and show 
 
 cause why he should not be punished as for contempt in so 
 violating the said restraining order of this court. 
 
 (Or if writ of attachment is ordered issued, from (a), a 
 writ of attachment issue, directed to the sheriff of this countv, 
 commanding him to bring the body of the defendant into 
 court. ) 
 
 R. S. See. 5581. 
 
 No. 1114. 
 Entry upon hearing of Charge for Violation. 
 
 [Caption. ) 
 
 This day this cause came on for hearing upon the rule 
 hereinbefore issued, requiring the defendant to appear and 
 show cause why he should not be punished as for contempt 
 for the violation of the temporary restraining order allowed 
 herein, and the court having heard the examination of said
 
 702 JUDGMENT ENTRIES. 
 
 defendant concerning his said alleged violation of said order, 
 and the other evidence adduced, and the arguments of coun- 
 sel, finds upon consideration thereof that the defendant has 
 been guilty of violating the said restraining order as alleged, 
 and is guilty of a contempt of this court. 
 
 It is therefore ordered and adjudged by the court that the 
 
 said defendant pay a fine in the sum of $ , and the 
 
 costs of this proceeding, for which the court awards execu- 
 tion. 
 
 R. S. Sec. 5581. 
 
 No. 1115. 
 
 Entry requiring Additional Security to be given upon Motion of 
 
 Defendant. 
 
 [Caption.] 
 
 Upon motion of defendant, and it appearing to the 
 court that due and proper notice has been given to the plain- 
 tiff thereof, and that the security heretofore given by plaintiff 
 herein for the allowance of the temporary restraining order 
 herein, it is ordered that unless the said plaintiff shall enter 
 
 into an additional undertaking in the sum of $ , with 
 
 sureties to the satisfaction and approval of the clerk of this 
 court, within — days from the date of this entry, the said 
 temporary restraining order heretofore granted herein shall 
 stand dissolved and held for naught. 
 
 R. S. Sec. 5582. 
 
 No. 1116. 
 
 Injunction — Temporary Restraining Order (in Divorce) so Modified 
 as to allow Part of Real Estate to be Encumbered. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the order of 
 the court heretofore entered herein requiring the defendant 
 herein not to dispose of nor encumber certain real estate 
 described in the petition, and it appearing to the court that 
 said restraining order ought to be modified, it is, upon due 
 consideration, hereby ordered that said restraining order be 
 and the same is hereby so modified as to allow the defendant 
 
 to encumber — acres of said real estate for $ , $ of 
 
 which sum shall remain in the hands of the mortgagee until 
 the final adjudication of this case (divorce) on its merits.
 
 INJUNCTION. 703 
 
 No. 1117. 
 
 Injunction — Entries Enjoining for Breach of Contract in Restraint 
 
 of Trade. 
 [Caption. ] 
 
 On motion of plaintiff, by his attorney, and good cause 
 being shown therefor, it is ordered that on an undertaking 
 
 being given in the sum of S , with sureties to the approval 
 
 of the clerk, an injunction be allowed to issue herein enjoin- 
 ing said defendant from soliciting, personally or otherwise, 
 as respects the horse-shoeing business, patronage, trade and 
 custom of the public generally within ten squares of the 
 
 blacksmith shop situated on street, Ohio, known by the 
 
 street number — , either for himself or for the defendant's 
 
 shop on street, between and streets in said 
 
 city and in the petition described, or for any one who may 
 transact business herein, and from soliciting, personally or 
 otherwise, the patronage, trade or custom in the horse-shoeing 
 business of any and all persons who formerly transacted busi- 
 ness and dealt with him at said shop and who now 
 
 transact business said shop with plaintiff, and from 
 
 further fitting up and opening said shop on street or 
 
 any shop within ten squares of said street shop for the 
 
 purpose of shoeing horses or engaging directly or indirectly 
 in the horse-shoeing business or from engaging in, conduct- 
 ing and continuing said business at said shop or at any point 
 
 within ten squares of said street shop, or from renting 
 
 said street shop or any other shop within ten squares of 
 
 said street shop to any person or persons whatsoever, or 
 
 for himself for the purpose of conducting therein a horse- 
 nig business in any of its several branches for the period 
 
 of — years from the — day of , 18 — , until further order 
 
 of this court. 
 
 No. 1118. 
 Entry of Perpetual Injunction in Restraint of Trade. 
 
 [ ( 'aptionJ\ 
 
 This day this cause came on to be heard on the- pleadings, 
 evidence, and exhibits, and was submitted to the court, and 
 on consideration thereof the court finds that the facts and 
 
 allegations in the petition contained are true, and that the 
 plaintiff is entitled to the relief prayed for.
 
 704 JUDGMENT ENTRIES. 
 
 It is therefore adjudged and decreed that the injunction 
 heretofore granted in this action be and the same is hereby 
 made perpetual ; that the defendant be and he is hereby en- 
 joined from soliciting personally, or otherwise, in reference 
 to the horse-shoeing business for himself and said shop, or 
 for anyone who may transact business therein, the patronage, 
 
 trade, and custom generally within ten squares of said 
 
 street shop, and of persons who formerly transacted business 
 
 and dealt with him at said street shop, or who now 
 
 transact business at said shop, and with plaintiff ; that he be 
 enjoined from further fitting up and opening said shop on 
 
 street, or any shop within ten squares of said street 
 
 shop, and from directly or indirectly engaging, conducting, 
 and continuing said horse-shoeing business at said shop, or 
 
 at any shop within ten squares of said street shop, 
 
 known as number — on said street, or from renting said 
 
 Street shop, or any other shop within ten squares of said 
 
 street shop, to any person or persons whatsoever, or for 
 
 himself, for the purpose of conducting therein a horse-shoeing 
 business in any of its several branches. 
 
 It is further ordered and adjudged that the plaintiff re- 
 cover his costs expended herein and taxed at $ , and the 
 
 defendant is adjudged and ordered to pay the same. 
 
 No. 1 1 19. 
 
 Same continued — Application for Proceedings in Contempt of 
 Court — Rule Issued. 
 \CapUoni\ 
 
 This day this cause came on to be heard on the written 
 application and charges of plaintiff against defendant, alleging 
 that the said defendant is guilty of contempt of court in that 
 he has, since the granting of the injunction and restraining 
 order herein, engaged in, continued and still continues to en- 
 engage in and conduct and continue the business of horse- 
 shoeing at number — on street in said city of C, Ohio, 
 
 and within ten squares of the shop on street, known as 
 
 number — , and in the petition and restraining order here- 
 tofore granted and described herein, and has shod horses of 
 divers persons in said application mentioned, and is soliciting 
 trade and patronage of the public generally within ten squares 
 
 of said street shop, and the trade and custom of those 
 
 dealing with plaintiff at said street shop, since the issu- 
 ing of the said order, and threatens to continue his said busi-
 
 INJUNCTION. 705 
 
 ness at said place, and to solicit horse-shoeing business within 
 
 said territory lying within ten squares of said street 
 
 shop and disregard the orders of said court, and to continue 
 the said business and soliciting in violation to and to the 
 prejudice of the plaintiff's rights. 
 
 It is ordered that summons issue directing the defendant 
 
 to appear before this court on the — day of , 18 — , at — 
 
 o'clock — M., to show cause why he should not be punished 
 for his contempt. 
 
 No. 1120. 
 Injunction against Use of Name. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence, and the same having been argued by 
 counsel and submitted to the court, and the court being fully 
 advised in the premises, doth find the issues herein joined 
 for the defendants, and that the defendants are entitled to the 
 relief prayed for. 
 
 It is therefore considered, ordered, and adjuged by the court 
 that the injunction heretofore granted in this suit to the said 
 defendants and against said plaintiff be and it is hereby made 
 perpetual, and it is therefore considered and decreed that the 
 said plaintiff, J. M. M., be and he is perpetually enjoined 
 from using the words "Wholesale and Retail Implement 
 Company." or either of them, in connection with his own 
 name in his business. And it is further ordered and adjudged, 
 on motion of defendants, that the previous injunction here- 
 tofore granted the said plaintiff against the said defendants 
 be and the same is hereby dissolved and held for naught. 
 
 It is further considered and ordered that the said defend- 
 ants recover of the said plaintiff their costs herein expended, 
 taxed at % . 
 
 And thereupon notice of appeal was given by the plaintiff 
 and the appeal bond is fixed in the sum of $ .
 
 706 JUDGMENT ENTRIES. 
 
 NO. II2I. 
 
 Entry declaring Law under which Assessments made Unconsti- 
 tutional — Assessments invalid — To be Stricken from Tax 
 Duplicate — Granting Perpetual Injunction against their Col- 
 lection. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the petition, 
 the defendants and each of them having duly entered their 
 appearance herein, and each and all of them being in default 
 for answer and demurrer, and was submitted to the court, 
 and upon due consideration whereof the court doth find that 
 the plaintiff is the owner of and seized in fee simple of the 
 
 premises in the petition described, having a frontage of 
 
 on the street, extending from to in said city. 
 
 The court doth further find that the amount of the assess- 
 ment charged against plaintiff's property, as determined by 
 the said O. E. D. B. , as county treasurer of said county, for 
 the making of the improvement in the petition mentioned 
 in front of and along his premises, is, at the date hereof, 
 
 $ ; that the allegations in the petition, and each and 
 
 every of them, are true, and that the said act of the General 
 
 Assembly, passed , iS — , and the amendments thereto 
 
 of , 1 8 — , controverts and is in violation of Sec. — , 
 
 of Art. — , of the constitution of the state of Ohio, in that 
 said act is a law of a general nature, but has no application, 
 and can have no application to any county in said state other 
 than county; that said improvement is not yet com- 
 pleted and can not be completed by reason of the judgment 
 and decree rendered in the proceedings in the petition men- 
 tioned by the said ; that said assessment, and each and 
 
 every part thereof, made for the construction and by reason 
 of the improvement in the petition mentioned, is illegal, null, 
 and void, and does not constitute a lien upon the premises of 
 plaintiff, or any portion thereof, and that the plaintiff is 
 entitled to have the same stricken from the tax duplicate of 
 said county, as a lien against his premises, and to have his 
 said premises wholly relieved from the operation thereof, and 
 that she is entitled to a permanent and perpetual injunction 
 as prayed for in the petition. 
 
 It is therefore considered, adjudged and decreed that the 
 defendants, S. B. B., J. B. M., and G. W. B., and each of 
 
 them, as commissioners of said county of , O. E. D. B., 
 
 as treasurer of said county, and W. H. H. , as auditor of said 
 county, and each of them, be and are hereby perpetually
 
 INJUNCTION. 707 
 
 enjoined from demanding and collecting from the plaintiff 
 on her said property any portion of the aforesaid assessment, 
 or of the interest thereon, and the said defendants and each 
 of them are hereby directed to strike from the tax duplicate 
 
 of said county the amount so charged and assessed 
 
 against her premises, and are directed to cancel the same as 
 a lien against said premises ; that said treasurer be and he is 
 hereby directed to accept the taxes legally due on his said 
 premises ; that the defendants and each of them are perpetu- 
 ally enjoined from asserting any lien on said premises by 
 reason of said improvement. 
 
 No. 1122. 
 
 Nuisance — Entry of Decree enjoining Perpetual Commission 
 of a Nuisance. 
 
 \CapHonJ\ 
 
 This day this cause came on to be heard on the pleadings 
 and the evidence adduced by the parties, was argued by 
 counsel and submitted to the court. On consideration 
 whereof the court finds that defendants have been and are 
 discharging sewerage, filth and waste water upon plaintiff's 
 premises, and said discharge of sewerage, filth and waste 
 water constitutes a private nuisance upon plaintiff's premises 
 near his dwelling house. The court further finds that the 
 plaintiff is entitled to a restraining order restraining the de- 
 fendants, their agents and servants from creating this nui- 
 sance on plaintiff's premises. 
 
 It is therefore adjudged and decreed that the defendants 
 and each of them be and they are each and all hereby per- 
 petually enjoined and restrained from causing or permitting 
 sewerage or filth or waste water from said sewerage, or from 
 any other source under their control, to flow or empty on the 
 land of plaintiff aforesaid, or into plaintiff's open branch or 
 dit( h, or otherwise causing or permitting filth or sewerage or 
 waste water from their said premises to be dumped 01 dis- 
 charged upon or so near plaintiff's premises as to be a nui- 
 sance thereto, or from increasing by artificial means the 
 natural flow of water in said open branch or ditch. 
 
 It is further adjudged that the plaintiff recover from the 
 
 defendants his COStS herein, taxed at $ , to which rulings, 
 
 orders and decrees of the court the defendants except and 
 forthwith filed their motion for a new trial, and thereupon at 
 the same time said motion was argued and submitted to the
 
 ;o8 JUDGMENT ENTRIES. 
 
 court, and upon consideration thereof the court overrules 
 said motion, to which ruling and order the defendants ex- 
 cept. 
 
 No. 1123. 
 Entry allowing Mandatory Injunction against Nuisance. 
 
 \_Capti01i.~] 
 
 This day this cause came on to be heard upon the plead- 
 ings, the evidence, the arguments of counsel, and was sub- 
 mitted to the court. On consideration whereof the court finds 
 that the defendant in the operation of its garbage plant is cre- 
 ating a nuisance, and in the creation of such nuisance there is 
 cast upon the plaintiff's land and into and about his dwelling, 
 noxious odors, vapors and gases, causing material inconven- 
 ience and discomfort to him and his family. The court fur- 
 ther finds that the plaintiff is entitled to an injunction 
 restraining the defendant from operating its said garbage 
 plant so as to cause offensive and noxious vapors and gases to 
 be cast upon plaintiff's premises in the petition described, 
 and into and about his said dwelling. It is therefore ordered, 
 adjudged and decreed by the court that an injunction be and 
 the same is hereby granted, restraining the defendant from 
 operating its plant so as to create, or caused to be cast upon 
 the land of the plaintiff, in the petition described, any of- 
 fensive or noxious odors, vapors or gases, or into or about 
 
 the dwelling of plaintiff from and after day of , 
 
 18—. 
 
 This date, to wit, , 18 — , is named and fixed by the 
 
 court in order to enable the defendant between the date of 
 this judgment and the said day of , 18 — , if it de- 
 sires so to do, avail itself of the means and agencies within its 
 power to prevent said nuisance. If, however, it shall be made 
 to appear to the court that the defendant does not propose 
 or intend in good faith to make use of the proper means and 
 agencies to prevent said nuisance, said injunction shall be 
 and become operative from and after the day of this entry. 
 
 The costs incurred in this case, taxed at $ , are hereby 
 
 adjudged taxed and assessed against the defendant.
 
 INJUNCTION. 709 
 
 No. 1124. 
 
 Entry Finding for Defendants, and Dissolving Temporary Re- 
 straining Order. 
 
 \Ca.ption. ] 
 
 This case came on to be heard upon the pleadings and 
 the evidence, and was submitted to the court, and upon due 
 consideration thereof the court finds on the issues joined in 
 favor of the defendant. 
 
 It is therefore considered, ordered and adjudged by the 
 court that the temporary restraining order heretofore allowed 
 herein be and the same is hereby dissolved, and that the 
 plaintiff's petition and the answer and cross petition of G. D. 
 J. be and the same is hereby dismissed. 
 
 No. 1125. 
 
 Entry of General Finding for Defendant— Dissolving Injunc- 
 tion — Notice of Appeal to Circuit Court — Bond. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard on the issues 
 joined, the exhibits, testimony, and the same having been ar- 
 gued by counsel, was submitted to the court. Whereupon 
 the court doth find upon said issues in favor of the defend- 
 ant and against the plaintiff. 
 
 It is therefore considered, ordered, adjudged and decreed 
 that the temporary restraining order heretofore allowed 
 herein, be and the same is hereby dissolved. 
 
 Thereupon the plaintiff gives notice of his intention to 
 
 appeal this cause to the circuit court of county, Ohio, 
 
 and for that purpose the court fixes the amount of the ap- 
 peal bond at the sum of $ , to be given by plaintiff, with 
 
 sureties to the acceptance of the clerk of this court, con- 
 ditioned according to law. 
 
 No. 1 1 26. 
 
 Demurrer Sustained— Temporary Restraining Order Dissolved — 
 Petition Dismissed 
 
 [ ( 'aption. ] 
 
 This day this cause came on to be heard upon the de- 
 murrer to the petition, was argued by counsel and submitted
 
 710 JUDGMENT ENTRIES. 
 
 to the court ; upon consideration thereof the court finds said 
 demurrer well taken, and that said petition does not state 
 facts sufficient to constitute a cause of action against the de- 
 fendant. 
 
 It is therefore ordered and adjudged that said demurrer 
 be and the same is hereby sustained, and that the temporary 
 restraining order heretofore allowed herein be and the same 
 is hereby dissolved, and that said petition be and the same 
 is hereby dismissed, and that the defendants recover their 
 costs herein expended. 
 
 INTERPLEADER. 
 
 (i?. 5. Sees. 5016— 5018.) 
 
 No. 1127. 
 Order for Interpleader. 
 [Caption.'] 
 
 It appearing to the court by the affidavit of the defend- 
 ant that G. C. and D. C. make claim to the subject of this 
 action, and that he, the said defendant, is ready to dispose 
 of the same as the court may direct, it is ordered that the 
 said defendant, under the former order of the court in re- 
 gard to the same, retain the stock and money, the subject of 
 this action, and it is ordered that the said G. C. and D. C. 
 within ten (10) days from the service of this order appear 
 and maintain or relinquish their said claims to the subject 
 of this action, and that in default thereof they be forever 
 barred from all claims thereon. 
 
 R. S. Sec. 5016. 
 
 No. 1128. 
 Entry of Interpleader — Directing Money to be Paid into Court. 
 
 \Caption.~\ 
 
 This day this cause came on for hearing upon the peti- 
 tion and affidavit of the defendant for an order of inter- 
 pleader, and it appearing therefrom that one D. S. makes 
 some claim to the money (or, property) herein sued for, and
 
 INTERPLEADER. 711 
 
 the court being satisfied that said claim is so made by the 
 said D. S. without collusion on the part of the defendant, 
 A. C, and the said A. C. being ready to pay the money sued 
 for herein (or, being ready and willing to dispose of the 
 property involved herein), as the court may direct, it is ordered 
 that, upon payment by the said defendant A. C. of said sum 
 
 of S , the amount claimed by plaintiff in his petition, 
 
 with interest from , iS — , subject to the further orders 
 
 of this court, within days from the date of this entry, he 
 
 shall be discharged from all liability to either plaintiff or the 
 said D. S. with respect thereto. It is further ordered by the 
 court that the said D. S. appear before this court on or be- 
 fore the day of , 18 — , and maintain whatsoever 
 
 claim he may have to said money, or relinquish the same, 
 and that a copy of this order be served upon the said D. S.. 
 according to law. 
 
 R. S. Sec. 5016. 
 
 No. 1129. 
 
 Entry of Interpleader directing Property to be delivered to Re- 
 ceiver appointed by the Court. 
 
 \Ca,ption.~\ 
 
 This day this cause came on to be heard by the court 
 upon the petition and the affidavit of the defendant for an 
 order of interpleader, and it appearing therefrom that one 
 D. S. makes some claim to the property mentioned in plain- 
 tiff's petition, and in the possession of said defendant, and 
 the court being satisfied that said claim is made by said D. S. 
 without collusion on the part of the defendant, A. C, and the 
 said A. C. being ready and willing to deliver said propertv t«> 
 such person as the court may direct, it is ordered by the court 
 that < ». I', be and he is hereby appointed receiver herein to 
 take charge of said property so held by said defendant, and 
 that upon tlie delivery of .said property t<> said receiver by 
 
 tlie said defendant A.C., the said A. C. shall be discharged 
 
 from further responsibility with respect thereto, cither to the 
 plaintiff or to tin said I >. S. It is further ordered that the 
 
 said ( ). P. enter into a bond as sneh receiver, in the sum o! 
 
 $ , and that when the property shall be turned over and 
 
 delivered to him by the said A. C., he shall retain, manage 
 and care for the same and hold it subject to the further orders 
 of this court. 
 
 It is also further ordered that the said D. S. appeal befor< 
 this court on or before the day of , 18 — , and make 
 
 46
 
 yi2 JUDGMENT ENTRIES. 
 
 known his claim to said property, or relinquish the same, 
 and that a copy of this order be served upon him according 
 to law; 
 
 R. S. Sec 5016. 
 
 No. 1130. 
 
 Entry substituting Attachment or Execution Creditor in Lieu of 
 Attaching or Execution Officer. 
 
 [Caption. ~\ 
 
 Upon application of A. F., and it appearing that the 
 defendant J. R., as sheriff, levied upon the property involved 
 herein under and by virtue of a writ of attachment {or, exe- 
 cution) in a cause wherein the said A. F. was plaintiff and 
 
 was defendant, and that the said A. F. is the real party 
 
 in interest, it is ordered that the said A. F. be and he is 
 hereby substituted for the said sheriff J. R., and that the 
 action proceed in the name of the said A. C. as such de- 
 fendant. 
 
 R. S. Sec. 5018. 
 
 No. 1131. 
 
 Entry discharging Defendant upon Payment of Money or Delivery 
 
 of Property. 
 
 [Caption.] 
 
 It appearing to the court that the defendant A. C. has 
 complied with the order of this court heretofore made herein 
 
 by paying to the clerk of this court the sum of $ (<?r, 
 
 by delivering the property to O. P., the receiver appointed 
 herein), it is ordered that the said A. C. be and he is hereby 
 discharged from further responsibility with respect to said 
 money {or, property) to either of said parties. 
 
 No. 1132. 
 Interpleader — Entry where Third Person fails to appear. 
 
 [Caption.] 
 
 This cause came on to be heard upon the previous 
 order of the court requiring C. D. to appear and maintain or 
 relinquish his claim against A. B., and it appearing to the 
 court that the said A. B. was duly served with a copy of
 
 JUDGMENTS — SUITS UPON. 713 
 
 said order, and has failed to appear, and the court being 
 fully advised in the premises does order and adjudge that the 
 said C. D. be and he is hereby barred of all claim as to the 
 
 subject-matter of this action as against . And the costs 
 
 of this proceeding in interpleader is to be taxed against . 
 
 JUDGMENTS— SUITS UPON. 
 
 No. 1133. 
 
 Judgment rendered in another County — Judgment and Decree of 
 
 Court in. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the peti- 
 tion, the exhibits, evidence and testimony, and the defend- 
 ant being in default for answer or demurrer to the peti- 
 tion, and the same being argued by counsel was submitted 
 to the court, and the court being fully advised in the prem- 
 ises doth find all the allegations contained in the petition 
 are true and that the plaintiff ought to recover from the 
 
 defendant the sum of $ , with interest thereon from this 
 
 date at percent, and their costs herein expended, taxed 
 
 at I . 
 
 It is therefore here ordered, adjudged and decreed by the 
 court that the plaintiff recover from the defendants said sum 
 
 of $ , with percent thereon from this date, together 
 
 with their costs herein expended. 
 
 No. 1134. 
 Decree when Judgment set up in Answer and Cross Petition. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence, was argued by counsel, and submitted to 
 the court. And upon due consideration thereof the court 
 finds that the allegations of said answer and cross petition are 
 true, and that there is due the said defendant B. N., from 
 the said defendant \V. H., and upon the judgment set forth 
 
 in said answer and cross petition, the sum of $ , with 
 
 interest from this date at the rate of — percent per annum 
 until paid, and the court further finds that by virtue of the
 
 714 JUDGMENT ENTRIES. 
 
 judgment set forth in said petition" and cross petition, and 
 the levy of execution on said judgment upon the real estate 
 of said W. B. , as in said answer and cross petition set forth, 
 the amount so found by the court to be due to the said de- 
 fendant B. N., from said defendant W. B., upon said judg- 
 ment is a valid and subsisting lien for the amount so found 
 due upon the following described real estate of said W. B. , 
 
 to wit : Situate in the county of , state of Ohio, and in 
 
 the city of ^_De scrip tioii\. 
 
 It is therefore ordered, adjudged, and decreed by the court 
 
 that an order of sale issue to the sheriff of county, Ohio, 
 
 commanding him to sell said above-described real estate as 
 upon execution, and to report his proceedings under said 
 order of sale, together with the proceeds of said sale, to this 
 court for further orders, and the court upon good cause 
 shown therefor further orders that publication of the notice 
 of sale of said premises in a German newspaper be dispensed 
 with. 
 
 LIENS. 
 
 See Foreclosure. 
 
 No. 1135. 
 Entry distributing Lienholders pro rata. 
 
 \Caption.~\ 
 
 This cause this day coming on to be heard on the answer 
 and cross petition of the C. P. M. Co., the reply thereto, the 
 answer and cross petition, and the reply thereto, and the 
 exhibits and evidence, and being argued and submitted to 
 the court, and the court being fully advised in the premises, 
 do find that the respective liens of said The C. P. M. Co. and 
 the W. M. P. N. and G. Co. are each valid and subsisting 
 liens on the premises therein described, and that said defend- 
 ants and each of them are entitled to pro rate with the other 
 valid lienholders in the fund arising out of the sale of said 
 premises. 
 
 And the court do further find that there is due the de- 
 fendants The C. P. M. Co., from the defendant J. K. B., 
 
 the sum of $ , with interest from the date of the entry of 
 
 this decree, and that there is due the defendant, the W. M.
 
 LIENS. 715 
 
 P. M. and G. Co., from these defendants the sum of $ , 
 
 with interest from the date of the entry of this decree. 
 
 It is therefore considered by the court that the said The 
 C. P. M. Co. and the W. M. P. and G. Co. each recover from 
 the defendant J. K. B., said sums respectively, with interest 
 from the date of the entry of this decree and judgment, their 
 costs herein expended, for which execution is hereby awarded. 
 
 No. 1136. 
 
 Entry upon Petition to Marshal Liens for Sale of Real Estate 
 on Account of former Judgment and Levy, also Setting 
 Aside Conveyance to Defraud Creditors. 
 
 [Caption.] 
 
 This day this cause was duly and regularly assigned for 
 trial, and came on for hearing on the petition and answer of 
 guardian ad litem for the minor defendants, and the evidence, 
 and was submitted to the court; on consideration whereof the 
 
 court finds that on the — day of , 18 — , this plaintiff 
 
 recovered a judgment against said defendants. H. S. and 
 
 A. H. S., in the court of common pleas in county, for 
 
 the sum of $ , with interest thereon at the rate of — per- 
 cent per annum from said date, and cost of suit ; that said 
 judgment is a valid and subsisting judgment, and that no 
 preceedings are pending for its reversal and retrial, and that 
 there is now due thereon from said defendants, H. S. and 
 
 A. II. S., to the plaintiff the sum of $ , with interest 
 
 from the first day of this term and cost of suit. 
 
 The court further finds that said judgment is and has been 
 
 from the said — day of , 18 — , a lien on thereal estatede- 
 
 scribed in the Inst cause of action in the petition, to wit : [Here 
 givi description. Not usually necessary or advisable. \ 
 
 Tin- court further finds thai tin- conveyance from the said 
 II. S. to A. S. II., ;is trustee for the use of the defendants, 
 H. L. S.. I-.. R. S., and S. B. S., on tin- — day of — , 18— , of 
 the premises described in the second cause of action of the 
 petition, as follows: [Give description^ was made with intent 
 to hinder, delay, and defraud this creditoi and other creditors 
 of the said II. S. , as tin- said plaintiff as in his petition averred. 
 
 It is therefore considered and adjudged by die court here 
 that the said deed < >\ conveyance from the said II. S. to the 
 said A. S. II, as trustee, for the use of the said II. L. S. , 
 
 E. R. S. , and S. B. S., !)<■ and the same is hereby set aside, 
 vacated, and declared to he of no force or effect in law or
 
 716 JUDGMENT ENTRIES. 
 
 equity to affect or convey the title of said premises described 
 in said second cause of action in the petition, to wit : [Here 
 describe premises. ] 
 
 It is further considered and adjudged by the court that 
 the said real estate described in the second cause of action in 
 the petition be subjected to the payment of the debts of the 
 said H. S., according to the priorities hereafter to be deter- 
 mined. 
 
 MANDAMUS. 
 
 {R. S. Sees. 6741 — 6759.) 
 
 No. 1137. 
 
 Entry Setting Time for Hearing of Application and requiring 
 
 Notice. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the application of 
 the relator herein for the allowance of a writ of mandamus, 
 it is by the court ordered that the same be set for hearing on 
 the — day of , 18 — , and that — days' notice of such ap- 
 plication and of the time set for the hearing thereof be given 
 to the defendant. 
 
 R. S. Sec. 6743. This is not usual. Kinkead's Code Pleading, Sees. 
 800, 806. 
 
 No. 1 138. 
 Entry allowing Alternative Writ after Notice. 
 
 \C option J\ 
 
 This cause coming on to be heard upon the application 
 of the relator herein for the allowance of an alternative writ 
 of mandamus, notice thereof having been duly given, and 
 no sufficient reason having been shown why such writ should 
 not issue, it is ordered that an alternative writ of mandamus 
 be allowed to issue against defendant, requiring said defendant 
 to \do whatever the act may be\ or to appear before this court 
 
 on the — day of , 18 — , and show cause why he has not 
 
 done so, at which date this writ is made returnable. 
 
 R. S. Sees. 6743, 6745, 6746. Kinkead's Code Pleading, Sees. 806, 807.
 
 MANDAMUS. 717 
 
 No. 1 139. 
 
 Entry allowing Alternative Writ — Another Form. 
 
 [ Caption. ] 
 
 And now this cause coining on to be heard upon the mo- 
 tion for the allowance of a writ of mandamus, the petition, 
 and the arguments of counsel. On consideration thereof the 
 court, finding no sufficient cause has been shown against the 
 same, do allow an alternative writ of mandamus to issue 
 against the said J. F. O., auditor of the state of Ohio, re- 
 turnable to this court according to rule, commanding him 
 that immediately after the receipt of the writ he issue and 
 deliver to the said H. H. his warrant upon the treasurer of 
 
 the state of Ohio for the sum of $ , as prayed for in said 
 
 petition, or that he show cause why he has not done so. 
 
 Kinkead's Code Pleading, Sees. S06, S08. 
 
 No. 1 140. 
 
 Mandamus Requiring Justice of the Peace to Sign a Bill 
 of Exceptions. 
 
 [Caption.] 
 
 And now this cause coming on for hearing upon the ap- 
 plication for the allowance of the writ of mandamus, on 
 consideration whereof, the court finding that no cause has 
 been shown against the same, it is ordered that , respond- 
 ent herein, do immediately sign the bill of exceptions, as 
 prayed for by this relator, to bear date of , 18 — . 
 
 No. 1141. 
 
 Mandamus — Demurrer to Petition Sustained — Injunction Dis- 
 solved — Cause Dismissed. 
 
 [ l 'ttf>tion.~\ 
 
 This day this cause came on to be heard upon the de- 
 murrers of the defendants, Hoard of Education of the Village 
 of W., and T. J , to the petition, and the same being argued 
 by counsel was submitted to the court. I'pon consideration 
 thereof, the court, being fully advised in the premises, finds 
 that said deinurreis are well taken and therefore sustains each 
 thereof, to which ruling of the court the relator excepts.
 
 yiS JUDGMENT ENTRIES. 
 
 And thereupon said cause came on further for hearing 
 upon motion of the defendant, the Board of Education of the 
 Village of W., to dissolve the temporary injunction heretofore 
 granted, and the same being argued by counsel was submitted 
 to the court, upon consideration whereof the court finds that 
 said motion is well taken and does sustain the same, and does 
 dissolve and vacate said injunction, the court here finding 
 and adjudging that said injunction ought not to have been 
 granted, and the Relator not desiring to plead further, it is 
 here ordered and adjudged by the court that this cause be 
 and the same is hereby dismssed, and that the relator pay 
 within — days from this date the costs of this action, taxed 
 
 at $ , and on failure so to do that execution be awarded 
 
 as upon judgment at law. 
 
 No. 1 142. 
 
 Allowance of Alternative Writ to Compel School Board to 
 Award Contract and Temporary Injunction 
 
 [Caption.^ 
 
 And now comes the relator and makes application for the 
 allowance of a writ of mandamus herein and injunction pend- 
 ing the hearing, as prayed for, and on consideration thereof 
 the court allows an alternative writ to issue against said 
 
 Board of Education of the township of , county, 
 
 Ohio, returnable to the court on the — day of , at — 
 
 o'clock — M. ; and it is ordered that the said Board of Edu- 
 cation do, immediately upon the service of this writ, proceed 
 to award the contract for the erection and completion of said 
 school building, exclusive of heating and ventilation thereof, 
 to the relator at the price named in his proposition therefor, 
 or at the time and place of the return of this writ show cause 
 why the same has not been done. And it is also further 
 ordered that a temporary restraining order be and the same 
 is allowed, as prayed for in the petition, against said Board 
 of Education and said T. J. , upon plaintiff's executing an 
 
 undertaking in the sum of $ , with surety to the accept- 
 
 ! ance of the clerk of this court, and conditioned according to 
 law.
 
 MANDAMUS. 719 
 
 No. 1143. 
 
 Entry Allowing Peremptory Writ of Mandamus against Clerk 
 
 of Courts. 
 
 [ Caption. ] 
 
 And now this cause coming on for hearing upon the ap- 
 plication for the allowance of the writ of mandamus, on 
 consideration thereof the court finds that no cause has been 
 shown against the same, and the court finds that the relator's 
 right to require the performance of the act hereinafter com- 
 manded to be clear, and that no valid excuse can be given 
 for not performing it, and therefore allows a peremptory writ 
 to be issued, as prayed for; and it is ordered that the said 
 C. F. G. , clerk of the court of county, Ohio, do imme- 
 diately upon service of this writ issue a writ of execution to 
 
 the sheriff of county, Ohio, to levy on the goods and 
 
 the chattels of the said defendant in the case of J. R. M. 
 
 and J. B. M. v. V. S. , court of common pleas, county, 
 
 Ohio, and that for want thereof that he levy on the real estate 
 of the defendants. 
 
 Kinkead's Code Pleading, Sec. 814. 
 
 No. 1 144. 
 
 Entry Refusing Peremptory Writ. 
 
 [ Caption. ] 
 
 This cause came on to be heard upon the alternative writ 
 of mandamus heretofore issued herein, the answer of respond- 
 ent, and upon the application of the plaintiff for a writ of 
 mandamus, and was argued by counsel. ( ra 
 [deration whereof it is considered by this court that the 
 relators are not entitled to the peremptory writ of mandamus 
 For. It is therefore ordered that the defendant go 
 hence without day and re< ovei of the relators his costs herein 
 expended, to be taxed. 
 
 Kinkead's Code Pleading, Sec. 814.
 
 720 JUDGMENT ENTRIES. 
 
 No. 1 145. 
 
 Mandamus— Entry Awarding Peremptory Writ Restoring to 
 Membership in Corporation. 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the petition 
 of the relator and the issues joined between the parties, and 
 the court having heard all the evidence adduced by the par- 
 ties, and the arguments of counsel, and being fully advised in 
 the premises, does award a peremptory writ of mandamus 
 against the respondent, as prayed for in the petition herein, re- 
 storing the relator to his membership in the defendant corpora- 
 tion, with all the rights, privileges, and benefits of membership 
 therein. And it is further adjudged that said relator recover 
 from the said respondent his costs made in this behalf, to be 
 taxed, to which rulings, orders, and judgments of the court 
 
 defendant excepts. And thereupon the defendant, The 
 
 Company, files its motion to vacate and set aside said judg- 
 ment, and for a new trial for reasons therein stated, which 
 motion was submitted to the court, and the court being ad- 
 vised in the premises overrules the same, to which action 
 and judgment of the court in overruling said motion the 
 defendant at the time excepted and presented here its bill of 
 exceptions in this cause, which being examined and found 
 correct is allowed, signed, and sealed, and made a part of the 
 record in this case. 
 
 MARRIAGE. 
 
 No. 1 146. 
 
 Entry Annulling Marriage Contract with an Idiot and Setting 
 aside and Annulling Deeds made during Coverture. 
 
 \Caption.~\ 
 
 This day this cause, having been regularly assigned for 
 trial on the docket of this court, came on to be heard upon 
 the petition and evidence and exhibits, the defendant being 
 in default for answer, demurrer, or motion of any kind, and 
 was argued by counsel and submitted to the court ; and the 
 court being fully advised in the premises, on consideration 
 (the summons and return of service on the defendant by the
 
 MARRIAGE. 72 r 
 
 sheriff of county, Ohio, being before the court) the court 
 
 finds that the defendant has been duly served with summons 
 herein, and further that she is duly represented by counsel 
 herein, to wit, M. & C, attorneys at law, duly authorized 
 in the premises by the defendant herein. And the court 
 further finds on the evidence adduced that the allegations of 
 
 the petition are true; that J. J. was, on the — day of , 
 
 1 8 — , duly appointed guardian of the person and estate of the 
 
 said J. L. by the probate court of county, and was on 
 
 said date by said probate court duly found, determined, 
 
 and adjudged an idiot, and that letters of such guardianship 
 were on such date issued to J. I. by said probate court, and 
 
 that on said date, to wit, — day of , 18 — , J. I. duly 
 
 qualified as such guardian, and entered upon the performance 
 of his duties as such guardian, and that the said J. I. was 
 at the commencement of this action, and still is, the duly 
 appointed, qualified, and acting guardian of the person and 
 estate of said J. L. ; that said J. L., at the date of the pre- 
 tended marriage with the defendant, E. L,., in the first cause 
 of action in the petition stated, was an idiot, wholly inca- 
 pable of entering into a marriage contract ; that he was an 
 idiot from his birth, and has continuously been, and still is 
 such idiot, and that said pretended marriage contract ought 
 to be set aside, declared null and void, and held for naught. 
 
 It is therefore hereby considered, ordered, adjudged and 
 decreed that said alleged marriage contract between said 
 J. L. and E. L. be and the same is hereby cancelled, annulled, 
 and set aside, and held for naught. 
 
 The court further finds that the deed of conveyance was 
 fraudulent, and that the said E. L. took advantage of J. L. 's 
 idiotic condition and caused him to make, execute, and deliver 
 the said deed of conveyance described and set out in the 
 second cause of action in the petition contained, and that the 
 same was wholly without any consideration whatever, and 
 ought to be annulled, cancelled, set aside, and held for naught. 
 
 It is therefore considered, ordered, adjudged and decreed 
 that the said deed of conveyance, attempting to convey from 
 the said J. L. to said E. L. the following described premises, 
 
 situate in the county of , state of ( >hio, and township 
 
 of , and bounded and described as follows: \Here give 
 
 , iptimi\ be and the same is hereby annulled, cancelled, 
 iside, and held for naught; it is further decreed that by 
 -aid deed of conveyance no title to the said premises ever 
 passed from the said J. L. to the said ]•".. I,. ; that the said 
 alleged deed of conveyance was wholly inoperative to pass 
 such title, and was null and void by reason of the fact that
 
 722 JUDGMENT ENTRIES. 
 
 J. L. was an idiot at the time of the execution and delivery 
 of said deed, and incompetent mentally to make and exe- 
 cute the same, and because no consideration whatever passed 
 therefor, and the title and possession of said premises are 
 hereby decreed to be and remain in the said J. L. , and he is 
 hereby adjudged and decreed to be reinvested therewith the 
 same as in his former estate, and the same as before the exe- 
 cution and delivery of said deed of conveyance, and the same 
 as if the said deed of conveyance had never been made, exe- 
 cuted, and delivered, and for the benefit of the said J. L. 's 
 title to the said premises, and to remove all cloud there- 
 from it is hereby ordered, adjudged and decreed that the 
 said defendant convey by quit-claim deed, duly executed ac- 
 cording to law, the said premises to the said J. L. within 
 
 days from this date, to wit, the — day of , 18 — , 
 
 and in default thereof that this judgment and decree have 
 the operation and effect of such deed, and that the clerk have 
 so much thereof as will show the transfer of title placed on 
 
 record in the office of the recorder of county, Ohio, and 
 
 that the auditor of this county be directed and authorized to 
 make the transfer on the tax duplicate and records of his 
 office. 
 
 MISTAKE. 
 
 No. 1 147. 
 
 Entry Correcting Mistake in Insurance Policy, and Finding 
 thereon as Corrected. 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the plead- 
 ings and the testimony, and the same was argued by counsel 
 for both parties. And on the said issues joined on the first 
 count of the petition the court finds in favor of the plaintiff, 
 and that said parties to said policy of insurance by mutual 
 mistake inserted therein the name of W. H. L. , assignee of 
 A. L., when it was their intention to have inserted the name 
 of A. L., the plaintiff; and that the plaintiff is entitled to 
 have said policy corrected to conform to the intention of said 
 parties, as in the petition prayed. Therefore it is considered 
 that the said policy of insurance be and the same is hereby 
 amended and corrected by striking out the name of W. H. L. , 
 assignee of A. L,., and by inserting in lieu thereof the name
 
 NUNC PRO TUNC ENTRIES. 723 
 
 A. L. , conformably to the said intention of the parties. And 
 thereupon, this action coining on further to be heard upon 
 the issues joined in the second count of the petition, and the 
 testimony, together with the argument of counsel of both 
 parties, the court finds said issues in favor of the plaintiff, 
 and assesses his damages in the premises at $ . 
 
 Therefore it is considered that the plaintiff, A. L,. , recover 
 
 of the defendant, the F. I. Co., the said sum of $ , his 
 
 damages aforesaid, together with the costs herein expended, 
 taxed at $ . 
 
 Now comes the defendant, the F. I. Co., and gives notice 
 of its intention to appeal this cause to the circuit court of 
 county, Ohio, and the court fixes the penalty of the ap- 
 peal bond at double the amount of the judgment, to wit, 
 ($ ) dollars and cents. 
 
 NUNC PRO TUNC ENTRIES. 
 
 Note. — The office of a nunc pro tunc entry is to record some act of the 
 court done at a former term, which was not carried into the record, and 
 can not be employed to do some act which a party failed to have the court 
 do at the term at which a final judgment has been rendered. Its province 
 is to correct the record in a cause so as to make it set forth an act of the 
 court, which, though actually done at a former term, was not entered on 
 the journal. It can not be employed to amend the record. 
 
 Cleveland Leader Print. Co. v. Green, 52 O. S. 487 ; Mitchell v. Thomp- 
 son, |oO. S. no; Bothe v. Railway Co., 37 O. S. 147; Johnson v. Railway 
 Co., l7 <». S. }i8. 
 
 Several ways of preparing nunc pro tunc entries arc given, and it 
 would be well for the examiner to consult all before moulding his own 
 from the one he follows as a guide. 
 
 No. 1 149. 
 
 Nunc pro tunc Entry showing an Exception to overruling of 
 Motion for New Trial. 
 [ < 'option. I 
 
 This cause coming on this day to be heard upon the mo- 
 tion of the defendant, the city of , for an entry man fro 
 
 iit)u\ as of , iS — , showing the exception of defendant 
 
 to the overruling of tin- s a i<] defendant's motion for a new- 
 trial, and upon the evidence taken thereon, and it appearing 
 to the court that tlu- exception of the defendant, the city of 
 , was taken at tin- time to the overruling of said motions
 
 724 JUDGMENT ENTRIES. 
 
 for a new trial, and that by inadvertence and oversight of 
 the court and clerk the said exception so taken was, at the 
 time, not noted on the journal, the court finds said motion 
 »of defendant well taken, and doth grant the same. 
 
 It is therefore now ordered by the court that the exception 
 
 of the defendant, the city of , be and the same is hereby 
 
 noted to the overruling of said defendant's motion for a new 
 trial, and it is further ordered by the court that this entry be 
 now made as of — , 18 — , nunc pro tunc. 
 
 To all of which plaintiff by his counsel excepts. 
 
 Such an order is not reviewable upon error. Cincinnati v. Steadman, 
 53 O. S. 312. 
 
 No. 1 150. 
 
 Nunc pro tunc Entry of Exceptions, and Filing and Allowance 
 of Bill of Exceptions. 
 
 \Caption.~\ 
 
 The motion of H T. for a new trial nunc pro tunc order 
 coming on to be heard, and it appearing to court that upon 
 
 the trial of this action at the term thereof, A. D. 18 — , 
 
 the said defendant, H. T., excepted to the holding and judg- 
 ment of the court and took his bill of exceptions therein, 
 which was duly and legally allowed, signed, and sealed by 
 said court, and duly and legally filed in this action during 
 said term, and that the journal entry fails to show the same : 
 It is now by the court ordered that the following entry as 
 
 of sa id term, A. D. 18 — , be made upon the journal of 
 
 this court as part of the record in said case, to wit, \copy 
 the nunc pro tunc entry as it should have beeii\ : 
 
 To which ruling, decision, holding, and judgment of the 
 court the said defendant H. T. excepted and took his bill of 
 exceptions thereto, which said bill of exceptions were duly 
 allowed, signed and sealed by the court, and were duly filed 
 in said court, and ordered made part of the record therein. 
 
 No. 1151. 
 Entry nunc pro tunc Supplying omitted Entry. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the motion of plain- 
 tiff (or, defendant) for the allowance of an entry nunc pro time 
 of an order and judgment duly made by this court on the —
 
 NUNC PRO TUN'C ENTRIES. 725 
 
 day f j 18 — , at the term thereof, in said cause as 
 
 prayed in said motion. * And it appearing to the court that 
 an order and judgment were duly made by this court on said 
 date at said term, sustaining the demurrer to the petition 
 herein and dismissing said petition, but that the same was 
 through misadvertence not entered at said time, the court 
 grants said motion, and orders that the following entry be 
 now entered by the clerk of this court upon the journal of 
 
 this court as of the — day of , 18 — , and term of 
 
 said court, to wit: [Copy of entry. , ] 
 
 No. 1152. 
 Entry nunc pro tunc Amending and Correcting former Entry. 
 
 [Caption. ,] 
 
 [Proceed from * in ante No, 11 51.] 
 
 And it appearing to the court that the entry made in said 
 
 cause on the said — day of , 18 — , through inadvertence, 
 
 did not express the order and judgment of the court as ren- 
 dered by the court upon said date, the said motion is therefore 
 sustained. It is therefore ordered that the said entry and 
 
 judgment herein entered on said — day of , 18 — , be and 
 
 the same is hereby corrected and amended so as to read as 
 follows, to wit: [Copy amended entry. ~\ 
 
 And it is further ordered that the said entry be made as 
 of the said — day of , 18 — . 
 
 No. 1153. 
 
 Entry nunc pro tunc Amending Entry by showing Discharge 
 
 of Jury. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the motion of 
 plaintiff for an order of court to be entered nunc pro tunc as 
 of the January term, 18 — , amending and correcting the entry 
 
 made at said term on the — day of , by reciting that the 
 
 jury was discharged at that term for the reason that there 
 was no probability of said jurors agreeing. And it appearing 
 to the satisfaction of the court that such an order was made, 
 but that the clerk of the court in making up the journal, by 
 inadvertence, omitted to journalize the statement from the 
 court docket that there was no probability of the jurors agree- 
 ing, it is ordered that the said entry be amended so as to
 
 726 JUDGMENT ENTRIES. 
 
 conform to the order as made at that time, and that the fol- 
 lowing entry be entered upon the journal of this court as of 
 the term, and of the date of , 18 — . [Copy entry. ,] 
 
 Benedict v. State, 44 O. S. 679. 
 
 No. 1 154. 
 
 Entry and Allowance of nunc pro tunc Order of Allowance of 
 Bill of Exceptions. 
 
 [ Caption. ] 
 
 This day, , this cause came on for hearing upon 
 
 the motion of the defendant, the C. C. and M. Co., for nunc 
 pro time order showing the allowance, signing, sealing, an<J 
 placing on file, and making part of the record in this case the 
 bill of exceptions, which was taken at the trial of this cause 
 within the time allowed by law, and the orders of this court 
 therefor, and said motion was heard upon the evidence ; and 
 from the evidence introduced by said defendant in support of 
 its said motion the court find that upon the overruling of the 
 motion for a new trial in this case the defendant asked and 
 
 obtained days' time within which to prepare its bill of 
 
 exceptions taken at the trial of this case, and present the same 
 to the court, and have the same signed, sealed, allowed, and 
 ordered placed on file, and made a part of the record in this 
 case, and that for said purpose the record of this court for 
 
 said term, A. D. 18 — , of said court, at which this case 
 
 was tried, was ordered to be kept open, and the court further 
 find that the said bill of exceptions was actually prepared and 
 presented to the court, to the trial judge who sat at the trial 
 
 of said case, within the days so allowed by the court and 
 
 the law for that purpose, and was actually signed by said 
 trial judge of said court within said days from the over- 
 ruling of the motion for a new trial, to wit, on the — day 
 
 of , A. D. 18 — , and was then allowed, signed, sealed, 
 
 and ordered placed on file, and made part of the record in 
 this case, as the true bill of exceptions taken at said trial 
 thereof; the court further find that on the next day, to wit, 
 
 on the — day of , A. D. 18 — , within the said days 
 
 allowed for that purpose, the said bill of exceptions was 
 actually placed on file in the office of the clerk of this court, 
 
 and on said — day of , A. D. 18 — , a journal entry was 
 
 prepared by the attorney of said defendant and placed in the 
 office of the clerk of this court, with the other file papers in 
 this case to be filed and entered on the journal of the court,
 
 OCCUPYING CLAIMANT. 727 
 
 of which journal entry the following is a true copy, to wit : 
 [Copy journal entry as at No. 934 and proceed .] 
 
 The court further find that said journal entry was not 
 
 actually entered upon the journal within days from the 
 
 overruling of the motion of said defendant for a trial. It is 
 therefore ordered and adjudged by the court that the said 
 journal entry be now entered upon the journal of this court 
 
 in said case as of said — day of , 18 — , at which time it 
 
 was furnished to the clerk and should have been entered on 
 the journal. 
 
 OCCUPYING CLAIMANT. 
 
 (JR. S. Sees. 5786—5796.) 
 
 No. 1155. 
 Entry Impaneling Jury to try Question of Value and Damages. 
 
 \Captzon.~\ 
 
 This day this cause came on for hearing upon the demand 
 of M. P. (defendant) for an assessment of the value of im- 
 provements heretofore made herein under the statute for the 
 relief of occupying claimants. And thereupon came the fol- 
 lowing named jurors, who were duly impaneled and sworn 
 according to law; and thereupon this cause came on for hear- 
 ing, and said jury is ordered to view the premises in contro- 
 versy herein, and that the same be shown to them by J. C, 
 and that they return forthwith after making said view. 
 
 K. s. Sec. 57S9. 
 
 No. 1156. 
 Entry of further Hearing and Verdict. 
 
 \CapHon."\ 
 
 This day again came the parties, and also came the jury 
 heretofore impaneled and sworn, and having viewed the 
 premises, said cause proceeded, and the jury having heard 
 the evidence adduced, and the argument of counsel, and 
 charge of the court, retired into their room for deliberation. 
 
 17
 
 728 JUDGMENT ENTRIES. 
 
 And now comes the jury into open court with their verdict, 
 signed by their foreman, which is as follows: [Copy verdict.'] 
 And thereupon came the plaintiff (or, defendant) and 
 made a motion to set said verdict aside, and the further hear- 
 ing of said cause is continued.* 
 
 No. 1 157. 
 
 Entry upon Motion to set aside Verdict— Judgment for success- 
 ful Claimant — Electing to receive Value of Land. 
 
 [Caption.] 
 
 This cause coming on further to be heard upon the motion 
 to set aside the verdict herein, and the court being fully ad- 
 vised in the premises, overrules said motion. 
 
 And the said (successful claimant) having elected 
 
 to take the value of the land as assessed by the jury without 
 
 the improvements at the sum of $ , and to execute a deed 
 
 to the said for said premises, it is therefore ordered that 
 
 the said be allowed days within which to make 
 
 payment, and the said is allowed the same time to de- 
 liver his deed to the said , and that if the said fails 
 
 to pay said sum within said time, that a writ of possession 
 be allowed to issue in favor of the said . 
 
 R. S. Sec. 5795. 
 
 No. 1158. 
 Entry of Judgment for successful Claimant. 
 
 [Caption.] 
 
 [Proceed from * in ante No. 1156.] 
 
 It is therefore ordered that the said plaintiff recover from 
 the said defendant the difference between the damages sus- 
 tained by said plaintiff by reason of the waste committed by 
 
 said defendant, as found by the jury, of the sum of $- , 
 
 and the value of the improvements so awarded by the jury, 
 
 $ , amounting to the sum of $ , together with his 
 
 costs herein, for which execution is awarded. 
 
 R. S. Sec. 5792.
 
 PARTITION. 729 
 
 No. 1159. 
 
 Entry setting aside Valuation by Jury, and Ordering another 
 
 Valuation. 
 
 [Caption.^ 
 
 This cause coming on further to be heard upon the motion 
 to set aside the verdict of the jury, and the court having 
 heard the argument of counsel, and being fully advised, finds 
 that said motion is well taken, and does therefore sustain the 
 same, and the said verdict and assessment is hereby set aside 
 and held for naught. It is also further ordered that another 
 jury be impaneled, and that a new valuation of said im- 
 provements be made. 
 
 R. s. Sec. 5791. 
 
 PARTITION. 
 
 No. 1 160. 
 
 Entry Authorizing Service by Publication. 
 
 \Caption.~\ 
 
 Upon motion and affidavit of plaintiff herein, and it ap- 
 pearing to the court that the residence of [names of heirs] 
 arc unknown to the plaintiff {or, that the names and resi- 
 dence of the heirs of T. E., deceased, are unknown to plain- 
 tiff), it is therefore ordered that service may be made upon 
 the said non-resident defendants (or, that proceedings may 
 be had against said unknown heirs, that they may be served) 
 by publication according to law, and that said unknown heirs 
 may be designated as the unknown heirs of T. E., deceased. 
 
 R. S. Sec. 505-, authorizt pro< eeding9 against unknown heirs without 
 naming them. An affidavit must l"- also filed .1^ in Sec 51149. 
 
 No. 1161. 
 Ordering Creditors having Liens to be made Parties. 
 
 [Caption. ] 
 
 It appearing to the court that there are creditors having 
 liens on the premises herein who are not parties hereto [name 
 them\ it is therefore upon motion ordered that said persons 
 be made parties hereto.
 
 730 JUDGMENT ENTRIES. 
 
 No. 1162. 
 Order of Partition where Dower is to be Assigned. 
 
 [Caption.] 
 
 This day this cause came on to be heard on the petition 
 and answers of J. T. , etc., and the court upon due consider- 
 ation finds that alj of the defendants have had due and legal 
 notice of the filing, pendency, and demand of the said petition 
 herein, and that, excepting J. T. and M. T., they are all in 
 default for answer or demurrer to said petition, and that 
 more than a year has elapsed since the death of , de- 
 ceased ; (or, that the debts of the said , deceased, have 
 
 been paid, or secured to be paid ; or, that the personal estate 
 is sufficient to pay the debts of said estate. ) The court further 
 finds that the said plaintiff and the said defendants herein- 
 after named are tenants in common in the estate described in 
 the petition; that the widow of A. W. , deceased, is entitled 
 
 to dower in the undivided part thereof, and that the 
 
 said plaintiff has a legal right to the part thereof of said 
 
 real estate ; and that subject to the dower right of the said 
 widow of the said A. W. , the said C. P. has a legal right to 
 
 the part of said estate, and that subject to the said dower 
 
 estate the heirs of the said A. W. , deceased, have a legal 
 
 right to the part of said estate ; that the said N. T. , J. 
 
 T. , A. T., etc., have each a legal right to the part of 
 
 said estate, and that the said P. T., W. T., M. M., etc., have 
 
 each a legal right to the part of said estate, and that 
 
 more than a year has elapesd since the death of , deceased 
 
 (or, that the debts have been secured to be paid), and that 
 the plaintiff is entitled to have partition made of the premises, 
 as prayed for in his petition. * 
 
 It is therefore ordered, adjudged, and decreed that parti- 
 tion of said premises described in the petition be made, and 
 that the dower of the said widow of A. W., deceased, be 
 assigned in the said several shares or interest of the said A. 
 W., deceased, and that J. H., J. K., and B. L., three judi- 
 cious and disinterested freeholders of the vicinity, are hereby 
 appointed as commissioners to make and set off the same. 
 And it is further ordered that if said estate is entire and can 
 not be divided by metes and bounds, that the dower of the said 
 
 widow of the said A. W., deceased, be assigned as a 
 
 part of the rents, issues, and profits of the said shares or 
 interest belonging to the said A. W., deceased, and that the 
 said estate be appraised subject to such dower interest, and
 
 PARTITION. 731 
 
 the said shares or interests of the heirs of said A. W. , and 
 that the sheriff make return of his proceedings under this 
 order with all convenient speed. 
 
 R. S. Sees. 5756, 5757. 
 
 No. 1163. 
 
 Another Form of Decree where there is no Widow, and there 
 have been Intermarriages. 
 \Ca.ptipn.~\ 
 
 This day this cause came on to be heard upon the petition 
 of plaintiff, pleadings, and evidence, and the record in the 
 case, and was argued by counsel, and the court being fully 
 advised in the premises do find that all of the defendants 
 have had due and legal notice of the pendency and demands 
 of said petition, and that they are in default for answer there- 
 to, and that the allegations in said petition contained are 
 thereby confessed by them to be true. 
 
 The court further find that the widow of the said A. H., 
 deceased, does not survive him, and that the defendants A. 
 H., J. H.. W. H., P. H. H., M. M., A. B. H., C. S. nee H., 
 who intermarried with the said P. S., defendant, C. W. nee 
 H., who intermarried with the said F. \V. , defendant, and 
 A. A. W. nee K., who intermarried with the said J. I. \\\, 
 defendants, are tenants in common in the estate described in 
 the petition, to wit : [Description.] 
 
 The court further finds that the plaintiff W. H. K. has 
 the legal right in the one part thereof; that the defend- 
 ants A. H., J. H., P. II. II., C. S. nee H., who intermarried 
 
 witli the defendant I'. S.. have each a legal right to the 
 
 part thereof; that the defendant C. W., who intermarried 
 with the defendant F. \V., C. W. has a legal right to the 
 
 part thereof; that the said W. II., defendant, lias a 
 
 legal right to the part thereof; that the said M. II. and 
 
 A. B. II.. defendants, have each a legal right to the part 
 
 thereof, and that the said A. \V. nee K., who intermarried 
 
 with the said ( ',. I. W. , defendant, has a legal right to the 
 
 part thereof. The court do further find that tin- plain- 
 tiff is entitled t<> have partition oi said estate made, as prayed 
 for in his petition. 
 
 It is thi irdered, adjudged, and decreed that partition 
 
 of said estate be made in favor of all parties in interest, and 
 that W. P. P.- C. P.S., <'>. II., three judicious and disinter- 
 ested freeholders of the vicinity, are hereby appointed com- 
 missioners to make the same, if the same can lie done without
 
 732 JUDGMENT ENTRIES. 
 
 manifest injury to the value of said premises, and if not, that 
 said premises be appraised by said commissioners at the true 
 value thereof in money, and it is further ordered that a writ 
 
 and order of partition issue to the sheriff of county, 
 
 commanding him to cause said partition to be made accord- 
 ingly, and of his proceedings to make due return. 
 
 No. 1 164. 
 
 Order of Partition where there is no Widow — Where Personal 
 Property is sufficient to Pay all the Debts. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the petition 
 and the evidence, and the court being fully advised in the 
 premises finds that all of the defendants have had due and 
 legal notice of the pendency and demand of the said petition, 
 and are in default for answer thereto, and that the personal 
 property is sufficient to pay all the debts owing by the estate 
 of"G. M., deceased, and that since the bringing of this suit 
 the defendant J. N. has conveyed and transferred his undi- 
 vided one-fourth interest in said premises to the defendant 
 J. M., as set forth in said petition. Thereupon the court 
 further finds that the plaintiff and the defendants M. M., J. 
 N., and F. W., hereinafter named, are tenants in common 
 in the estate described in the petition, and that each of the 
 above-named tenants in common have a legal right to equal 
 portions of said estate, as set out in the said petition, as fol- 
 lows: 
 
 1. W. M., the plaintiff, the one interest in said 
 
 estate in fee. 
 
 2. F. M., the one part of said estate in fee. 
 
 3. To J. B. M., grantee of J. M., the part thereof 
 
 in fee. 
 
 4. To M. M., the one part thereof in fee. 
 
 And that the plaintiff is entitled to have partition of 
 said estate made as prayed for in his petition, (a) 
 
 It is therefore ordered, adjudged and decreed that parti- 
 tion of said estate be made in favor of all parties interested ; 
 
 and that J. M., of , J. H., of , and H. H., of — — , 
 
 three judicious and disinterested freeholders of the vicinity, 
 are hereby appointed to make said partition. And it is now 
 
 ordered that a writ of partition issue to the sheriff of 
 
 county, Ohio, commanding him that by the oaths of the 
 commissioners above named, he cause to be set off and di-
 
 PARTITION. 723 
 
 vided to each of the above-named parties the part and pro- 
 portion of said estate to which they are severally above found 
 entitled, and of all his proceedings herein said sheriff is or- 
 dered to make due return. 
 R. S. Sees. 5756, 5757. 
 
 No. 1165. 
 Entry ordering Partition — Determining Ownership of Interests. 
 
 \CaptionJ\ 
 
 This day came the parties, and this cause coming on to 
 be heard, the same was submitted to the court upon the 
 pleadings and evidence, and the court having heard the evi- 
 dence and the arguments of counsel, and being fully advised 
 in the premises, finds the issues joined between said plaintiff 
 and said P. W. in favor of said plaintiff, that said plaintiff 
 is seized of the legal title to the undivided two fifths of the 
 lands and tenements in the petition described in fee simple, 
 is entitled to the immediate possession thereof, and to have 
 the same partitioned and set off to her as in the petition 
 prayed. 
 
 It is therefore considered and adjudged that said plaintiff 
 recover of said defendant, P. W. , the said undivided two equal 
 fifth parts of said lands and tenements, and that partition of 
 the same be made so that said two equal fifth parts thereof 
 be set off to said plaintiff in severalty, and to that end it is 
 ordered further that a writ or order of partition issue herein, 
 directed to the sheriff of this county, and commanding him by 
 the oaths of A. S., T. O. D., and J. D., three disinterested 
 freeholders of this county, who are hereby appointed com- 
 missioners for that purpose, he cause partition to be made of 
 said lands and tenements in the petition described, so that 
 two equal fifth parts thereof be set off to said plaintiff in sev- 
 eralty, and it is further considered and adjudged that said 
 plaintiff recover of said defendant, P. W., the costs of said 
 plaintiff in this behalf expended, taxed at $ . 
 
 No. 1 166. 
 
 Entry when amicable Partition is made. 
 
 \Captit»i. j 
 
 This day this cause came on forbearing upon the petition, 
 and thereupon came each and all of the defendants, E. R.,
 
 734 JUDGMENT ENTRIES. 
 
 T. R., W. R., and J. E., against whom partition is demanded, 
 in person and by their attorney, and consented to the partition 
 of the premises in the petition described, agreeably to the 
 prayer and facts set forth in the petition, producing their said 
 written consent to partition, and it appearing from the alle- 
 gations in the petition and from the proof adduced that all of 
 the debts and claims against said C. R. , deceased, have been 
 paid, or been secured to be paid (or, that the personal prop- 
 erty is sufficient to pay the debts of said estate; or, that a 
 year has elapsed since the death of said decedent), and that 
 all of the parties hereto have agreed to and signed said written 
 
 consent, the court thereupon finds that the plaintiff, , 
 
 and the defendants [naming them\ are each the owners of the 
 
 undivided part of said premises, and are entitled 
 
 to have partition made thereof agreeably to the petition and 
 the consent of parties entered herein. It is therefore ordered 
 by the court the said parties each hold the several parts of 
 said premises as partitioned by them in severalty, and that 
 said written amicable partition and plat thereof be recorded 
 according to law, when it shall be valid and binding between 
 the parties thereto. It is further ordered that the sheriff 
 execute and deliver a good and sufficient deed to the said 
 several parties for the portion so set off and assigned to such 
 parties. 
 
 \Or, It is therefore ordered that {where commissioners are 
 appointed, proceed as in entry No. 1 164 from (a) ; where the 
 parties have made partition among themselves, proceed with 
 order accordingly, as in post No. 11 70 from *).] 
 
 R. S. Sec. 5761. 
 
 No. 1 167. 
 
 Entry where Dower is waived by Widow. 
 
 [Caption.] 
 
 [Proceeding from * in ante No. 1 162.] 
 
 And it appearing from the answer of , widow, that 
 
 she has waived the assignment of her dower in said premises 
 by metes and bounds, and asked to have the same allowed 
 to her in money out of the proceeds of the sale of said prem- 
 ises, if it be found by the commissioners that said premises 
 can not be divided, it is ordered that [names of commissioners], 
 three judicious and disinterested freeholders of the vicinity, 
 who are hereby appointed for that purpose, do upon their 
 oaths set off and divide to the said parties hereinbefore named 
 the several parts and portions of said premises to which they
 
 PARTITION. 735 
 
 are entitled, as herein found and determined ; and to also set 
 
 off and assign to , widow, her dower therein, if the same 
 
 can be divided ; and that if, in the opinion of said commis- 
 sioners, the said premises can not be divided according to 
 the order of this court and the writ issued to them without 
 manifest injury to the value thereof, that they return that 
 fact to the court, together with a just valuation and appraise- 
 ment of said premises. 
 
 R. S. Sees. 5719, 5770. 
 
 No. 1 168. 
 
 Appointment of Receiver in Partition. 
 [Caption. ] 
 
 And now come the said parties, by their attorneys, and 
 thereupon this cause came on to be heard upon the motion of 
 the plaintiffs for the appointment of a receiver herein, and 
 was submitted to the court upon affidavit of the plaintiff and 
 the papers in the case, and was argued by counsel, and the 
 court, being fully advised in the premises, do sustain said 
 motion, and it is hereby ordered that B. D., Esq., be and he 
 is hereby appointed receiver herein of all the property de- 
 scribed in this action, to take charge of the same, rent, and 
 maintain ordinary repairs, collect rents now clue and owing, 
 .sell grain, etc., pay taxes, and protect said property from 
 trespass and damage, and perform such other duties in the 
 premises as may be required of him from time to time by the 
 court. And it is further ordered that the said D., before 
 entering upon his duties as such receiver, that he execute to 
 
 the state of Ohio an undertaking in the sum of $ , with 
 
 good and sufficient security to the satisfaction of the clerk, 
 conditioned according to law. And it is further ordered that 
 the defendant, M. !■'.. I)., who is now in the occupancy of the 
 dwelling house on said premises, be not disturbed or molested 
 in such occupancy until the further order of the court. 
 
 No. 1169. 
 
 Report of Commissioners confirmed where Dower assigned by 
 Metes and Bounds, and Land divided. 
 
 \( ll/>t/(>)l.~\ 
 
 This day this cause came on for hearing upon the motion 
 of the plaintiff to confirm the report of the commissioners
 
 736 JUDGMENT ENTRIES. 
 
 heretofore filed. And the court, being fully advised and 
 having examined said report and proceedings of said commis- 
 sioners, and having found them to be in all respects in ac- 
 cordance with law, hereby approves and confirms the same. 
 It is therefore considered and adjudged that said plaintiff, 
 B. C. , be endowed as therein provided and hold said real es- 
 tate set off for her dower interest and real estate described in 
 said petition, and that the said parties each hold in severalty 
 the parts and portions of said premises so set off and assigned 
 to each of them respectively. 
 
 No. 1 170. 
 
 Entry Overruling Exceptions to Report of Commissioners — Con- 
 firmation of Same when Lands Divided— Declaring a Right 
 of Way in Premises Perpetual. 
 
 \Captzon.~\ 
 
 This day this cause came on to be heard on the excep- 
 tions of V. H. to the commissioner's report filed herein, and 
 the motion of the said V. H. to set aside the report of the 
 aforesaid commissioners, and that an alias order of partition 
 issue therein, and upon the affidavits and exhibits produced 
 for and against said exceptions, and said motion was argued 
 by counsel and submitted to the court. Whereupon the 
 court being fully advised in the premises, and having exam- 
 ined fully the evidence and being satisfied that in all respects 
 said proceedings were had regularly, and that said exceptions 
 were not well taken, and that said motion should not be sus- 
 tained, and doth overrule said exception and said motion. 
 
 And coming on further to the hearing of the motion of 
 plaintiff J. H. to confirm the return of the sheriff and the 
 report of the commissioners heretofore appointed herein, and 
 the same having been examined by the court and found in 
 all respects correct and in conformity to law and the former 
 orders of this court, the said proceedings and report are 
 hereby approved and confirmed. 
 
 * It is therefore ordered and decreed that the said parties 
 hold in severalty the parts and premises so set off and as- 
 signed to each respectively. It is further adjudged and de- 
 creed that the roadway extending from the county road, ex- 
 tending west along the south side of lot number 10 of a 
 former partition, etc. , being fifteen feet in width off the 
 south side of lot number ten and extending along the south 
 side of said lots eleven and twelve of this partition, be and
 
 PARTITION. 737 
 
 remain perpetually a right of way to lots eleven and twelve, 
 and it is further ordered that the costs of this action, taxed 
 
 at $ , including counsel fee of $ to , attorney, 
 
 for services herein, be taxed as part of the costs in this case, 
 to be paid by the parties in proportion to their respective 
 shares of interest herein. 
 
 No. 1171. 
 
 Report of Commissioners Confirmed — Order of Sale free of Dower 
 — No one Electing to Take. 
 
 \CaptionJ\ 
 
 This day this cause came on for hearing on the return of 
 the sheriff and the report of the commissioners heretofore 
 appointed herein, and upon the plaintiff's motion to confirm 
 same. Upon consideration whereof, and the court being fully 
 advised in the premises, and upon careful examination of said 
 report, and it appearing from said report and return, and the 
 court also being satisfied that said estate can not be divided 
 without manifest injury thereto, and that said commissioners 
 have made and returned their appraisement and estimate of the 
 value of said premises in the petition, desribed as follows : \JDe- 
 
 scription\ at the sum of $ , free from the dower of A. B. , 
 
 widow; and the court finding said return and report and said 
 proceedings to be in all respects correct and in conformitv to 
 law and the former order of this court, it is therefore now by 
 the court here ordered, adjudged and decreed that said return, 
 said report and said proceedings be and the same are herebv in 
 all respects approved and confirmed. And each and all of the 
 parties herein having failed and neglected to take said prem- 
 at their appraised value, it is now, therefore, upon mo- 
 tion of the plaintiff, ordered, adjudged and decreed that said 
 premises be sold at public auction, at not less than two 
 thirds of the appraised value, at the door of the courthouse 
 
 of said county, < )hio, by the sheriff of said county, 
 
 according to law, free from dower, upon the following terms, 
 it: [stale terms\ and that said sheriff is ordered to return 
 his proceedings hereunder without unnecessary delay. 
 
 R. S. Sees. 5763, 5764.
 
 738 JUDGMENT ENTRIES. 
 
 No. 1172. 
 
 Entry of Confirmation of Commissioners' Report — Ordering Sale 
 where no one Elects to Take Premises. 
 
 [ Caption. ] 
 
 On motion of the court by , attorneys for plaintiff, 
 
 and upon producing the proceedings of the sheriff and also 
 the report of the proceedings of the commissioners hereinbe- 
 fore appointed, and the same being examined by the court, it 
 is ordered by the court that said proceedings and report be 
 and the same are hereby approved and confirmed. And 
 thereupon none of the parties electing to take said estate at 
 the valuation thereof as returned by said commissioners, on 
 motion of the petitioner it is ordered by the court that said 
 estate be sold at public auction by the sheriff of said county 
 
 of , according to the statutes made and provided, upon 
 
 the following terms, to wit : 
 
 One third cash on the day of sale, one third in one year, 
 and one third in two years thereafter, with interest from 
 date of sale; such deferred payments to be evidenced by 
 promissory notes of the purchaser, payable to the parties 
 respectively entitled and secured by mortgage upon the 
 premises. 
 
 No. 1173. 
 
 Confirmation of Sale when made to Third Person — Deed ordered 
 — Order of Distribution — Where there are Street Assessments 
 [Dower in Money]. 
 
 [Caption.] 
 
 On motion to the court by , attorneys for plaintiff, 
 
 and upon producing the proceedings of the sheriff with re- 
 spect to the sale of the premises in the petition described by 
 him made in pursuance of the former order of this court, and 
 the same being examined by the court, the court here finds 
 that the said proceedings and sale have been had and made 
 in pursuance to law, and the same are hereby approved and 
 affirmed, and the said sheriff is ordered and directed to exe- 
 cute and deliver to the said purchaser at said sale, W. B. B., 
 a deed in fee simple for said premises, upon compliance by 
 said W. B. B. with the terms and conditions of said sale, and 
 the court coming now to make a distribution of the proceeds 
 
 of said sale, amounting to the sum of $ (the court finds 
 
 that the improvements of the street under the provisions of
 
 PARTITION. 739 
 
 the law so called that the assessments therefor constitute 
 liens on said premises and that the same are entitled to pay- 
 ment out of said proceeds, and that the same amount to 
 
 $ . The court finding- further that the said purchaser is 
 
 willing - to assume said assessments and pay the same as they 
 fall due in installments, it is ordered and adjudged by the 
 court that the said liens for assessments as aforesaid be as- 
 sumed by said purchaser and that he receive a credit upon 
 his cash payment therefore, the same to be repaid to him out 
 of the money by him paid into the hands of the sheriff in this 
 case). 
 
 [Where there is dower, and the widow having 
 
 waived the assignment of dower to her by metes and bounds 
 and elected to take the same in money, the court finds the 
 just and reasonable value thereof to be $ .] 
 
 And the court coining now to distribute the balance of 
 
 said cash payment, to wit, $ , it is ordered that the said 
 
 sheriff pay out of the said proceedings, first, to the treasurer 
 
 of the county, Ohio, the taxes due on the said property 
 
 for the last half year of the , 18 — , to wit, $ ; second, 
 
 the costs of this action, amounting to $ , including there- 
 in an attorney fee to the attorneys of plaintiff, amounting 
 
 tc $ , also attorney fee to the attorney for defendant, 
 
 amounting to $ ; third, that said sheriff distribute the 
 
 residue of the said purchase price of said premises and take 
 promissory notes from said purchaser for deferred payment 
 and distribute the same and likewise the residue of said cash 
 payment between the said heirs of the said A. H., deceased, 
 
 in the following proportions, to wit: To , the widow, 
 
 the sum of $ ; to P. II., part; to A. H., part; 
 
 to J. H., part; to W. H., part; to C. S., 
 
 part; to C. W., part; to M. A. H., part; to A. 
 
 B. II.. part; to W. H. K., part; to A. W., 
 
 part; tin- said deferred payments are to be secured by mort- 
 gage on said land and tenements, which, being produced to 
 the court, air hereby approved. 
 
 R S. Sees. 5765-67. 
 
 No. 1 174. 
 
 Entry confirming Sale to one of the Parties electing to take 
 
 Premises. 
 I ( 'aption. I 
 
 This cause coming on to be heard upon the motion to 
 confirm the return of the commissioners heretofore appointed
 
 740 JUDGMENT ENTRIES. 
 
 herein to make partition of the premises as prayed for in 
 plaintiff's petition, and it appearing to the court upon exam- 
 ination thereof that said premises could not be divided without 
 manifest injury to the parties, and that said commissioners 
 therefore returned an appraisement of said premises (free 
 from the dower of T. E., widow), and the court having found 
 said return and report in all respects regular and in conform- 
 ity to law, the same is hereby approved and confirmed. 
 
 And thereupon came R. E. , [or others] one of the parties 
 hereto, and made known to the court his election to take the 
 said premises at its appraised value. It is therefore ordered 
 and adjudged by the court that said estate be adjudged to 
 said R. E. , and that the said sheriff make, execute and de- 
 liver a good and sufficient deed for said premises to the said 
 R. E. , upon payment by the said R. E. to said sheriff of the 
 purchase price thereof at not less than the appraised value 
 
 thereof, $ , cash in hand, and upon the execution of a 
 
 mortgage upon said premises to secure the remainder thereof, 
 one third in one year, and one third in two years, said de- 
 ferred payments to bear interest, and that said sheriff hold 
 the funds arising from said sale subject to the further orders 
 of this court. 
 
 R. S. Sees. 5762, 5763. Judge Yaple (Prac. and Prec. p. 842) says that 
 the statute (5763) means that if they elect to take it together as tenants in 
 common ; that if each elects to take the whole premises for himself to the 
 exclusion of the other, then the premises must be sold. 
 
 PERPETUATION OF TESTIMONY. 
 
 (R. S. Sees. 5873—58790 
 
 No. 1 175. 
 Filing of Petition for Perpetuation of Testimony. 
 
 [ Caption. ] 
 
 Now comes A. B. and files herein his petition for an order 
 allowing him to make an examination of witnesses for the 
 perpetuation of his testimony. And the court having care- 
 fully examined the said petition and being fully advised in 
 the premises, finds that said petition is properly verified; 
 that it states the subject-matter relative to which the testi- 
 mony is to be taken, the names of the persons interested, the
 
 PERPETUATION OF TESTIMONY. 74-1 
 
 names of the witnesses and the interrogatories to be pro- 
 pounded ; and the court being satisfied that the applicant 
 expects to be a party to an action in a court, in this state, 
 and that the testimony will be material thereto, and that the 
 said petitioner can not now commence said action, it is ordered 
 by the court that the said A. B. be allowed to make an exam- 
 ination of the witnesses therein named, upon the written 
 interrogatories in his petition set forth, and that said exami- 
 nation be conducted at the office of , on the — day of 
 
 , before C. D., who is hereby authorized to take such 
 
 examination and report the same to this court. It is also 
 further ordered that the parties interested in said matter 
 mentioned in said petition be given — days notice of the 
 time and place such examination is to be made. 
 
 R. S. Sec. 5873 et seq. 
 
 No. 1 176. 
 Notice to be Given of such Examination. 
 
 \CaptionJ\ 
 
 You are hereby notified that in the courtroom of the 
 
 courthouse, in the city of , on the day of , 
 
 18 — , at M., the undersigned will proceed before N. 
 
 P., a notary public, pursuant to an order of the court 
 
 made on the day of , 18 — , to take the deposition 
 
 of R. L. of and concerning the following facts [state them], 
 to be used and read in evidence in any trial or controversy 
 hereafter arising concerning said matter; and the taking 
 of said deposition will be adjourned and continued from 
 day to day until completed. 
 
 Dated , 18—. A. B., 
 
 Per L. T., 
 Attorney for said A. B. 
 
 1 hereby acknowledge service of the above notice at the 
 
 city of , Indiana, on this day of , 18 — . 
 
 C D. 
 
 No. 1 177. 
 Entry of Approval of Examination. 
 
 \Caption.~\ 
 
 This day came A. B. and presented to the court the re- 
 port of the examination made herein by C. D., heretofore ap-
 
 742 JUDGMENT ENTRIES. 
 
 pointed to conduct such examination ; and the court having- 
 carefully examined said report, and finding that such exam- 
 ination has been conducted in conformity to law and the 
 order of this court, does approve the same, and order that 
 said deposition and examination be filed in this court for 
 the uses and purposes according to law. 
 
 It is ordered that the petitioner herein pay the costs 
 herein to be taxed. 
 
 R. S. Sec. 5878. 
 
 PROMISSORY NOTES. 
 
 No. 1178. 
 
 Judgment on Joint and Several Note. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 of plaintiff, the answer of defendants and the reply of plain- 
 tiff thereto, and the evidence, and was argued by counsel and 
 submitted to the court, and the court upon careful considera- 
 tion whereof doth find on the issues joined in favor of the 
 plaintiff in this action; that the said defendants, W. A. C, 
 F. E. H. and J. O. K., and each of them, are jointly and in- 
 dividually liable on said note as in the petition alleged ; that 
 there is due plaintiff from said defendants and each of them 
 
 the sum of $ , including interest to the — day of , 
 
 18—. 
 
 It is therefore ordered, adjudged and decreed that the 
 plaintiff herein, E. G. W., recover from the defendants, W. 
 A. C, F. E. H., and J. O. K., jointly and individually, the 
 
 said sum of $ , with interest at the rate of — percent 
 
 per annum from the — day of , 18 — , and his costs herein 
 
 expended, taxed at $ . 
 
 No. 1 179. 
 
 Entry of finding that Note not purchased in usual course of Busi- 
 ness, etc.— Motion for New Trial Overruled — Judgment upon 
 Note — Injunction by Circuit Court Dissolved. 
 
 [Caption.'] 
 
 This day this cause came on for hearing upon the plead- 
 ings and the evidence and the record in said cause, and was
 
 PROMISSORY NOTES. 743 
 
 argued by counsel, and the court being fully advised in the 
 premises on the issue joined in said cause between the said 
 plaintiff and the defendant and cross petitioner, C. C, do 
 find the same in favor of said defendant and cross petitioner, 
 and against the said plaintiff. The court do also find that 
 the said plaintiff, S. M., did not purchase the promissory note 
 in his said petition described, in the usual course of business 
 and for a good and valuable consideration, as in his said pe- 
 tition alleged, and is not the owner thereof, and that the 
 allegations regarding the same in his petition contained are- 
 untrue. The court further find that the allegations set forth 
 in the joint answer and cross petition of the said defendants, 
 J. H. and H. B., and the answer and cross petition of C. C. 
 are true, and that by reason thereof the legal rights and equi- 
 ties of the case are with her, and she is entitled to the owner- 
 ship of said note, and the proceeds arising therefrom, as in 
 her said answer and cross petition prayed for. 
 
 And thereupon the plaintiff filed his motion for a new 
 trial herein for the reasons in said motion stated, which was 
 argued by counsel, and the court being fully advised in the 
 premises do overrule said motion, to which judgment of the 
 court in overruling said motion the plaintiff at the time ex- 
 cepted. It is therefore ordered, adjudged and decreed by said 
 court that the defendant, H. B., pay the money due and 
 
 payable on said promissory note, to wit, the sum of 
 
 dollars ($ ), with interest from the — day of , A. D. 
 
 18 — , the date of the death of said P. S., Sr., to the — day 
 
 of , A. D. 18 — , the date of the filing of his answer and 
 
 cross petition herein, to J. E. M., clerk of courts of said 
 county, for the benefit of the said C. C, and in satisfaction 
 of the judgment in her answer and cross petition described, 
 and that the said C. C. recover of the said plaintiff, S. M., her 
 
 costs herein, taxed at $ , and that said plaintiff pay his 
 
 own costs, taxed at $ , and that the injunction heretofore 
 
 allowed in this cause by the court of common pleas be hereby 
 annulled, set aside and held for naught, to all of which judg- 
 ment and decree the plaintiff, by his attorneys, at the' time 
 
 excepted, and on motion by him, fifty days from the 
 
 day of , 18 — , is allowed said plaintiff in which to prepare 
 
 and have signed and sealed a hill of exceptions in said cause. 
 
 Thereupon on the — day of , 18 — , the same being 
 
 within the time allowed by the court, the said plaintiff pre- 
 sented his said bill of exceptions duly allowed, signed and 
 sealed by the court, and filed the same herein. 
 
 1-
 
 744 JUDGMENT ENTRIES. 
 
 QUIET TITLE— ACTION TO. 
 
 No. 1180. 
 
 Entry Quieting Title (Approving Service by Publication) — 
 
 Usual Entry. 
 [Caption.] 
 
 This day came the plaintiff by his attorney and offered 
 proof of publication of the pendency of this action, and of 
 the prayer of the petition herein ; and the court finding said 
 petition and proof thereof in all respects regular and accord- 
 ing to law and the former order of this court, the same is 
 hereby approved and confirmed. 
 
 Thereupon this cause came on further to be heard, and 
 was heard upon the pleadings, exhibits and the testimony, 
 and was argued by counsel and submitted to the court. And 
 upon due consideration thereof and the court being fully 
 advised in the premises finds that due and legal service has 
 
 been made upon the defendants, the unknown heirs of , 
 
 according to law, and that the court has thereby acquired 
 jurisdiction of the said defendants and of the subject-matter 
 of this action ; and the court further finds that each and all 
 of the averments and allegations of facts contained in the 
 petition are true, and that the plaintiff is entitled to the re- 
 lief in said petition prayed for. 
 
 The court finds that at the time this action was com- 
 menced the said plaintiff was in possession of the said real 
 estate described in the petition, and that he has a legal 
 estate therein and is entitled to the possession of the same ; 
 that the said defendants, and neither of them, have any estate 
 therein, and neither of them is entitled to the possession of 
 said real estate or any part thereof, and that the plaintiff 
 ought to have his title quieted as against each and every 
 person claiming by, through, or under them, or either of 
 them, as prayed for in his said petition. 
 
 It is therefore ordered, adjudged and decreed that the 
 title and possession of the said J. D. to all and singular the 
 premises in the petition described, be and the same are here- 
 by quieted as prayed for in the petition as against the de- 
 fendants, each and all of them, and all persons claiming by,
 
 QUIET TITLE — ACTION TO. 745 
 
 through or under them, or either of them ; and the said de- 
 fendants, and each and all of them, are hereby forever en- 
 joined from setting up any claim to said premises, or any 
 part thereof, adverse to the title and possession of said J. D., 
 or from in any manner interfering with his use and enjoy- 
 ment of the same. 
 
 It is further ordered that the plaintiff pay the costs of 
 this action, taxed at $ . 
 
 R. S. Sec. 5779 ; Kinkead's Code Pleading, Sec. 1039 ; Whittaker's Civil 
 Code, p. 445 note. 
 
 No. 1181. 
 
 Entry of decree cancelling Conveyance to Wife by Husband —De- 
 claring Title in him — Quieting his Title against Heirs — 
 Awarding Deed to Plaintiff from the Defendants, and in 
 default thereof, decree to pass Title ; also in default of Deed 
 from Defendants, Sheriff made Special Master to convey Deed. 
 
 [Caption.] 
 
 This day comes the plaintiff, W. H. I., by , his at- 
 torneys, and also D. B. S., as guardian ad litem, duly appointed 
 by the court for the minor defendants C. G. I., R. F. I. and 
 E. M. I., and also came the defendant J. G. W., and there- 
 upon this cause came on to be heard upon the issues joined 
 between the plaintiffs and the said guardian ad litem, D. B. 
 S., and was submitted to the court on the petition and answer 
 of D. B. S., as guardian ad litem, as aforesaid, and the evidence, 
 and was submitted by counsel. Upon due consideration 
 whereof, the court being fully advised in the premises finds 
 that the defendant C. G. I. is a minor over 14 years of age, 
 R. F. 1. and E. M. I. are minors under 14 years of age, and 
 the court further finds that all the defendants in this case 
 have either been duly served with summons or have waived 
 the issuance of summons and voluntarily entered their appear- 
 ance to this action, and that all the defendants are now before 
 the court, and that the real estate described in the petition is 
 
 situated in the county of , state of , in the city of 
 
 , and is therefore within and subject to the jurisdiction 
 
 of the court. And the court further finds upon the issues in 
 
 ir of the plaintiff, and that the facts stated in his petition 
 are tine as therein alleged, and that the plaintiff is entitled to 
 the relief therein prayed for. That the plaintiff on the — 
 
 day f , 18—, purchased of J. M. A. and A. M. A. the 
 
 real estate described in the petition, to wit: [here follow
 
 746 JUDGMENT ENTRIES. 
 
 ivith description of premise s\ and that said plaintiff paid for 
 said premises hereinbefore described with his own separate 
 means and money, and that the legal title to said premises 
 was conveyed to the wife of the said plaintiff then living, A. 
 M. L, for the purpose as in the said petition set forth. The 
 court further finds that the said A. M. I., at the time of her 
 
 death, on the — day of , 18 — , held the naked legal title 
 
 to the premises only in trust for her husband ; that the said 
 A. M. I. paid, or caused to be paid, no part whatever of the 
 consideration for* said property ; that the said plaintiff has put 
 lasting and valuable improvements on the premises at his own 
 expense ; that since the conveyance to the said A. M. I. the said 
 plaintiff has been seized, possessed of, and is now the complete 
 and full owner in his own right of the equitable title to said 
 premises, and the court doth further find that at the time of 
 the death of said A. M. I. that she held the legal title to said 
 premises as a trustee in trust and for the use and benefit of 
 the plaintiff, and that the subject of said trust has failed, and 
 the death of said A. M. I. has made it impossible to fully fill 
 the same ; that the plaintiff is the full owner in equity of said 
 premises and entitled to the whole beneficiary interest thereto, 
 and that the plaintiff is entitled to have the legal title of said 
 premises conveyed to him and to have his title quieted against 
 any and all claim of said defendants except the claim secured 
 by mortgage to said J. G. W. , whose rights are hereby as 
 against the plaintiff and the other defendants protected. 
 
 It is therefore considered, ordered, adjudged and decreed 
 that each and all of said defendants, except the said defendant 
 J. G. W., within — days from the date of this decree release 
 and convey to this plaintiff all the claim, title and interest they 
 or either of them have in or to said premises, and in default 
 thereof, then that this decree stand and operate and have the 
 force and effect of such conveyance. 
 
 It is further ordered, adjudged and decreed that W. J. W., 
 the present sheriff of county, be and he is hereby ap- 
 pointed as a special master commissioner herein, and is 
 hereby ordered and commanded that in case the defendants 
 last above named, except the defendant J. G. W., fail for — 
 days from the entry of this decree to execute to plaintiff a 
 deed conveying said premises in the petition described and 
 all their claim, right and interest thereto, that he, as such 
 special master commissioner, by good and sufficient deed, 
 convey to the plaintiff, the premises in the petition and in 
 this entry described.
 
 QUIET TITLE — ACTION TO. 747 
 
 No. 1182. 
 
 Decree Quieting Title. 
 
 \Caption.~\ 
 
 Now comes plaintiff, by her attorney, and the defendants 
 having all been legally served with summons or by publica- 
 tion, and all being in default for answer and demurrer, and 
 after the examination of witnesses for plaintiff the court 
 finds that the allegations of the petition are confirmed by 
 them and proved to be true. 
 
 The court finds that at the time of bringing this action 
 the said plaintiff was in possession of the real property de- 
 scribed in" 'the petition, and that she had a legal estate and 
 was entitled to and in possession of the same; that neither 
 of the defendants, nor any of them, have any estate in or are 
 entitled to the possession of said real estate or any part there- 
 of, and that the plaintiff ought to have her title and posses- 
 sion quieted as against each and every one of said defendants, 
 as prayed for in the petition. 
 
 It is therefore ordered, adjudged, and decreed that the 
 title and possession of said J. W. H. to all and singular the 
 premises described in the petition, to wit : {here follows the 
 description of the real estate], be and the same hereby are 
 quieted as against the defendants, and each and every one of 
 them, and all persons claiming under them or any of them, 
 and they are hereby forever enjoined from setting up any 
 claim to said premises or any part thereof adverse to the 
 title and possession of said J. W. H., his heirs or assigns 
 thereto. 
 
 No. 1 183. 
 
 Subrogating Purchaser to Right of Lienholders, at Sheriff Sale- 
 Lien for Permanent Improvements allowed — Finding against 
 Lienholders for Resale of Premises, because of Want of Ten- 
 der—Quieting Title against Mortgage. 
 
 [Caption.] 
 
 This dav this cause came on t<> Ik- heard and was submit- 
 ted to the court upon the petition and evidence, the de- 
 fendants having been duly served with summons and being 
 in default for answer or demurrer m the case, and the court 
 finds that the averments of the petition are confessed and 
 proven to be true and that the equities of the case are with
 
 74S JUDGMENT ENTRIES. 
 
 the plaintiff; and the court further finds that in the case 
 heretofore pending in this court and known on the records 
 
 of this court as case number , there was a decree and 
 
 order of sale entered in favor of the plaintiff in said case 
 
 number . That said order of sale was issued to the 
 
 sheriff of county, Ohio, and that in pursuance of said 
 
 order the said sheriff caused the real estate described in the 
 petition to be appraised and advertised for sale according to 
 
 law, and that on the day of , 18 — , said real estate 
 
 was offered for sale at public vendue by said sheriff, and 
 
 that at said sale the plaintiff, M. G. , was the highest bidder, 
 and that said real estate was struck off by said sheriff to her, 
 
 and that afterwards, on the day of , 18 — , said sale 
 
 was approved and confirmed by the court, and the said 
 sheriff was ordered to make delivery to the plaintiff accord- 
 ing to the forms of law, conveying said premises to the 
 plaintiff, and that in pursuance of said last-named order 
 said sheriff did make, execute and deliver such deed, and did 
 convey to the plaintiff, her heirs, and assigns, said real estate 
 situate in said county and state aforesaid, and in the city of 
 , and known as follows: [here give description.^ 
 
 The court further finds that at the date of said sale there 
 remains on said real estate set up in the case, prior to the 
 mortgage of the defendant F. O. , alleged in the petition, 
 
 liens to the amount of $ ; that said liens were paid out of 
 
 the purchase money of said premises by the plaintiff to the 
 
 sheriff of said county, to the extent of $ , and that the 
 
 remainder thereof, amounting to $ , not set up in the 
 
 case, were paid by the plaintiff for the protection of her title 
 in and to said premises, out of her own money and means, 
 
 and that all said liens, amounting to $ , were assigned 
 
 to the plaintiff, who is the owner thereof, and that plaintiff 
 as the purchaser of said real estate is subrogated to the 
 rights of all said lienholders so paid by her as aforesaid ; that 
 
 the plaintiff, having paid $ for the cost, and erection, 
 
 and construction of permanent improvements on said real 
 estate since the day of the purchase, and by the conveyance 
 of the same to her, she has a lien thereon for said sum of 
 
 $ , prior to the lien of said F. on his said mortgage, and 
 
 is entitled to be reimbursed to the said sum of $ , in ad- 
 dition to the said amount of $ , being the amount of the 
 
 lien so as aforesaid paid by her. 
 
 And the court further finds that before said F. would be 
 entitled to a decree and order of sale of said premises for the 
 resale thereof on his said mortgage, he must tender to the 
 plaintiff the amount of said lien as aforesaid, including the
 
 QUO WARRANTO. 749 
 
 sum of $ , the cost of said improvements ; that he has 
 
 not made such tender or offer to pay said sum or any part 
 thereof to plaintiff either before or since the pendency of 
 this action, although he has been duly served with summons 
 and notice of the filing and pendency of the petition in this 
 case, and that he has had his day in court and has waived his 
 right, either in law or equity to hereafter make such tender or 
 offer, and ought not to insist on the enforcement of his said 
 mortgage by suit or otherwise, and that plaintiff is entitled to 
 have her title and right of possession quieted and forever put 
 to rest in her as against said offer of said F. and against any 
 claim he may have in law or equity on account of said mort- 
 gage or by the claim thereby secured, and that said mortgage 
 is void as against said plaintiff or her assigns. 
 
 It is therefore ordered, adjudged, and decreed that the 
 said mortgage of the defendant F. be and the same is hereby 
 canceled and the title and right of possession of plaintiff in 
 and to said premises is quieted and forever put at rest in 
 her and her assigns as against said mortgage or any claim 
 of any person either at law or equity, and the clerk of this 
 court is ordered to place on the record of said mortgage of 
 said F., in the said recorder's office, a cancellation of said 
 mortgage in due form of law, and that plaintiff pay the costs 
 of this proceeding, taxed at $ . 
 
 QUO WARRANTO. 
 
 (R. S. Sees. 6760 — 6793.) 
 
 No. 1 184. 
 
 Entry Allowing Action to be Brought on Relation of Another 
 
 Person. 
 [Caption. ] 
 
 This cause coming on to be heard upon the motion of 
 the prosecuting attorney for leave to institute an action in 
 quo warranto in this court upon the relation of E. R. And 
 the court being fully advised grants such motion, and leave is 
 hereby granted to bring said action accordingly. 
 
 R. S. Sec. 6763.
 
 750 JUDGMENT ENTRIES. 
 
 No. 1 185. 
 Entry Substituting Member of Bar for Prosecuting Attorney. 
 
 [Caption. ] 
 
 Upon motion, and it appearing to the court that A. B., 
 the prosecuting attorney is absent (or, that the office of pros- 
 ecuting attorney is vacant) (or, is interested in said (proposed) 
 action), it is ordered that C. F., a member of the bar, be 
 and he is hereby appointed and substituted in place of said 
 prosecuting attorney, and directed to prosecute this action. 
 
 R. S. Sec. 6765. 
 
 No. 1 186. 
 Entry of Filing Application Requiring Notice. 
 
 [Caption.] 
 
 It is ordered by the court that the application filed herein 
 
 be set for hearing on the day of , 18 — , and that 
 
 days' notice of the hearing thereof be given the de- 
 fendant, which hearing is set for the day of , 
 
 18—. 
 
 R. S. Sec. 6769. 
 
 No. 1 187. 
 Entry Granting Leave to File Petition. 
 
 [Caption."] 
 
 This cause coming on to be heard upon the application 
 of the relator herein for leave to file his petition, and the 
 court being fully advised grants said application and allows 
 said petition to be filed. 
 
 R. S. Sec. 6769. 
 
 No. 1188. 
 Entry of Judgment in Favor of Incumbent in Office. 
 
 [Caption.] 
 
 This day this cause came on for hearing on the pleadings, 
 evidence and arguments of counsel. And the court being 
 fully advised in the premises finds therefrom in favor of the
 
 QUO WARRANTO. 75 1 
 
 defendant and against the relator; that the said defendant 
 [name] has not intruded into or usurped the office of [title], 
 but that under and by virtue of the (appointment, or, 
 election), in his answer set forth and alleged, he is entitled 
 to hold such office and perform the duties thereof until the 
 day of , 18 — . 
 
 No. 1189. 
 Entry of Judgment in Favor of Claimant and Ouster. 
 
 [Caption.] 
 
 This day this cause came on for hearing upon the plead- 
 ings, evidence and arguments of counsel. And the court 
 being fully advised finds therefrom in favor of the relator 
 and against the said defendant ; (a ) that the said [name] is 
 entitled to the office of [title] by virtue of the (appointment, 
 or, election), alleged in said petition, and that the said de- 
 fendant is guilty of intruding into said office. 
 
 It is therefore considered and adjudged by the court that 
 the said [name] be and he is hereby declared entitled to said 
 office, and that the defendant [name] be and he is hereby 
 ousted and excluded from said office and all its privileges 
 and emoluments. It is further ordered that the relator re- 
 cover from the defendant his costs herein expended. 
 
 R. S. Sec. 6764. 
 
 No. 1 190. 
 
 Entry of Judgment Against Director of Corporation. 
 
 [Cap/ inn.] 
 
 [Proceed from [a] in ante 1189]; that at the election of 
 the directors of said corporation illegal votes were received 
 (o>\ rejected), which were sufficient to have changed the re- 
 sult of such election; [then the entry in ante No. 1189 may 
 be followed from (a).] 
 
 R. S. Sec. 6775.
 
 752 JUDGMENT ENTRIES. 
 
 No. 1191. 
 
 Entry of Judgment Against Director of Corporation — Ordering 
 
 New Election. 
 
 [Caption. ~\ 
 
 [ Proceed from, (a) in mite No. 11 89, and with the alle- 
 gation in ante No. 11 90.] 
 
 It is therefore considered and adjudged by the court that 
 a new election be held by the stockholders of said corpora- 
 tion for said office of director on the day of , 
 
 18 — , and that notice of the time and place of said election 
 be given according to law, and that a duly certified copy of 
 this order be served upon the secretary of said corporation. 
 
 R. S. Sec. 6776. 
 
 No. 1192. 
 
 Entry of Judgment Ousting Corporation of Franchise 
 or Privilege. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the information, 
 plea, replication, and demurrer to the replication, and argu- 
 ments of counsel. On consideration whereof the court finds 
 that the defendant, the said , has, as alleged in the in- 
 formation, (a) and admitted in the plea, exercised the fran- 
 chise and privilege of charging meter rent, and for measuring 
 gas, etc. ; and that the defendants exercise said franchise 
 and privilege contrary to and without authority of the law 
 of the state of Ohio. 
 
 Wherefore it is ordered, adjudged and decreed that said 
 defendant, The , be and is hereby ousted from exer- 
 cising said franchise and privilege of charging meter rent, 
 and for measuring gas when the amount consumed is over 
 five hundred cubic feet per month, and that said relator re- 
 cover of said defendant his costs herein expended to be 
 taxed. 
 
 R. S. Sec 6780.
 
 QUO WARRANTO. 753 
 
 No. 1 193. 
 
 Entry of Judgment when Corporation has forfeited Rights — 
 Dissolving same. 
 [Caption.] 
 
 [Proceed from (a) in ante No. 11 92.] [State facts show- 
 ing acts done or omitted\ by reason whereof the said defendant 
 corporation has surrendered {or, forfeited) its corporate rights, 
 privileges, and franchises. 
 
 Whereupon it is ordered and adjudged by the court that 
 defendant corporation be and it is hereby excluded from all 
 its corporate rights, privileges, and franchises, and that its 
 charter be revoked and annulled, and that said corporation 
 be dissolved. It is therefore further ordered that [names], be 
 and they are hereby appointed trustees of the creditors and 
 stockholders of said corporation, and that they enter into a 
 
 bond in the sum of $ , conditioned according to law, with 
 
 sureties to the approval of the court, and that they there- 
 upon proceed to properly pay and apply all money coming 
 into their hands as such trustees, and settle all the affairs of 
 said corporation, collect and pay all outstanding debts, and 
 divide among the stockholders the money and other property 
 which may remain after payment of debts and necessary ex- 
 penses. 
 
 R. S. Sec. 6781. 
 
 No. 1 194. 
 Entry approving Report of Trustees. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the report of the 
 trustees heretofore appointed herein to close up and settle 
 tin affairs of the defendant corporation, and the court finding 
 it in all respects regular and correct, approves and confirms 
 the same, and allows the expenses and fees and compensations 
 as therein specified. It is further ordered that the said trus- 
 tees be and they are hereby discharged from their said trust.
 
 754 JUDGMENT ENTRIES. 
 
 No. 1195. 
 
 Entry granting Injunction against Directors from disposing of 
 
 Assets. 
 
 [ Caption. ] 
 
 Upon motion of -, and good cause being shown there- 
 for, an injunction is hereby granted against the directors 
 [names], of said, defendant corporation, restraining them from 
 making any disposition of the assets of said corporation pre- 
 judicial to the interests of the stockholders thereof before the 
 final termination of this action. 
 
 R. S. Sec. 6786. 
 
 No. 1 196. 
 
 Entry requiring Directors to give Security. 
 
 [Caption ] 
 
 Upon motion of the relator, and upon satisfactory proof 
 that the directors of the defendant corporation have violated 
 (or, are about to violate) the privileges and franchises of said 
 corporation, it is therefore ordered that the said [names of 
 
 directors] enter into a bond of security in ( the sum of $ , 
 
 with sureties to be approved by the court, conditioned for 
 the proper discharge of their duties, and for the proper man- 
 agement and security of the assets of said corporation. And 
 it is further ordered that said directors be enjoined, during 
 the pendency of these proceedings, from paying out or issu- 
 ing the notes of circulation of said bank, and from incurring 
 any additional liabilities, except for the payment of the nec- 
 essary services of the employees and officers thereof. 
 
 R. S. Sec. 6787. 
 
 No. 1 197. 
 
 Entry of Judgment for Defendant. 
 
 [ Caption. ] 
 
 This cause came on to be heard upon the pleadings, evi- 
 dence, was argued by counsel, and submitted to the court, on 
 consideration whereof the court finds upon the issue joined 
 herein for the defendant. 
 
 It is therefore ordered that the petition be dismissed, and 
 that the defendant go hence without day, and that he re- 
 cover his costs from the relator.
 
 RECEIVERS — APPOINTMENT OF. 755 
 
 REAL ACTIONS. 
 
 See Quiet Title — Actions to, Occupying Claimants, 
 Recovery of Possession of Real Property. 
 
 RECEIVERS. 
 
 (R. S. Sees. 5587— 5593.) 
 
 Receivers have such powers usually as are conferred by the court ap- 
 pointing, to bring and defend actions, to take and keep possession of 
 property, to receive rents, collect, compound for, and compromise de- 
 mands, make transfers, and do generally such acts concerning the prop- 
 ertv pi li ed in their hands as may be directed by the court. R. S. Sec. 5590. 
 
 Tl tatute does not prescribe any mode of procedure, but it is gov- 
 erned entirely by the orders of the court, and the course pursued in the 
 settlement of the affairs placed in their hands is, by analogy that fol- 
 lowed in the settlement of the affairs of estates of insolvent debtors. 
 
 (a) APPOINTMENT OF RECEIVER. 
 
 No. 1 198. 
 
 Appointment of Receiver where notice has been given of 
 Application. 
 
 [Caption."] 
 
 This day this cause came on to be heard upon the appli- 
 
 on, motion, and notice of application for the appointment 
 of receiver, and the same being argued by counsel was sub- 
 mitted to the court. Whereupon the court cloth find thai 
 notice to the defendants of the application for the appoint- 
 ment of a receiver has been duly given to them, and of the 
 time and place of the hearing thereof. And the court being 
 fully ad\ised in the premises finds that a receiver ought to 
 be appointed as prayed for, etc. [proceed as in No. 1201 post, 
 from (a)].
 
 756 JUDGMENT ENTRIES. 
 
 No. 1 199. 
 Entry of Appointment where notice is dispensed with. 
 
 {Caption.'} 
 
 This cause coming on to be heard upon the application 
 and motion of plaintiff herein for the appointment of a re- 
 ceiver herein, as prayed for in said petition, and the court, 
 for good and sufficient reasons, dispenses with notice of said 
 application (or, and the court, being of the opinion that 
 notice to the defendants of this application would destroy the 
 rights of plaintiff herein, the same is hereby dispensed with), 
 and being fully advised in the premises finds that a receiver 
 ought to be appointed as prayed for, etc. [proceed as in No. 
 1 201 post, from (#)]. 
 
 Note. — As to when notice should be given see Beach's Eq. Pr., Sec. 730. 
 
 No. 1200. 
 
 Receiver — Time of hearing for Appointment of postponed, and 
 Injunction allowed. 
 
 \Caption.~\ 
 
 Upon plaintiff's application for a temporary injunction 
 and for the appointment of a receiver, it is ordered that the 
 hearing as to appointment of a receiver be continued until 
 , and the sheriff be directed to so notify forthwith the de- 
 fendants, and all of said defendants and their agents and em- 
 ployees are restrained from disposing, selling, transferring, 
 or carrying away any of such property until further order, 
 upon plaintiff giving bond, etc. 
 
 No. 1201. 
 
 Appointment of Receiver of Corporation. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the motion 
 of the plaintiff for the appointment of a receiver herein, and 
 upon good cause shown therefor (a) it is therefore ordered that 
 J. C. be and he is hereby appointed receiver of all the property, 
 real and personal, equitable interests, and things in action 
 belonging to said defendant, wheresoever the same may be 
 found or situated, and the said receiver, upon being duly
 
 RECEIVERS — APPOINTMENT OF. 757 
 
 qualified according to law, is ordered to take charge of all 
 and singular the property, books, accounts, and papers of said 
 company, and to have exclusive charge of the business and 
 affairs thereof, and proceed to collect all debts due said cor- 
 poration, and adjust the same, and to collect all amounts due 
 on account of subscription to the capital stock of said com- 
 pany, by suit or otherwise as may become necessarv, and make 
 report to this court of the same, together with a schedule of 
 all the debts and liabilities of said corporation for further 
 order in the premises. And it is further ordered that the 
 said defendant corporation, and all officers and agents there- 
 of, and all other persons having any of said property, books, 
 or papers of said corporation in their possession, or under 
 their control, deliver the same to the said receiver, and that 
 all persons indebted to said defendant corporation pay said 
 indebtedness to said receiver, and it is ordered that before 
 entering upon his duties as such receiver the said J. C. exe- 
 cute an undertaking according to law, in the sum of $ , 
 
 with sureties to be approved by the clerk of this court. 
 
 Now comes the said J. C. and presents his undertaking 
 herein, witli as sureties, which said bond and undertak- 
 ing is approved by the clerk of this court, and the said J. C. 
 was duly sworn as receiver, according to law. It is further 
 ordered that said receiver proceed to cause an inventory and 
 appraisement to be made of said property upon the oaths of 
 , , and , and that he give notice of his appoint- 
 ment by publication in a newspaper of general circulation. 
 
 Kinds of property over which receiver may be appointed. Beach on 
 Eq. Pr., Sec. 719. 
 
 NO. 1202. 
 
 Appointment of Receiver to collect Rents and Profits of Property- 
 pending Suit. 
 
 [ ( 'option. ] 
 
 This day this cause came on to be heard on the applica- 
 tion of F. C. M. to appoint a receiver to collect and preserve 
 the rents and profits of the premises described in plaintiff's 
 petition, and the court being fully advised in the premises 
 finds that it is necessary that a receiver be- appointed to pre- 
 serve the said rents and profits of said premises, as prayed 
 f<»r in defendant's, F. C. M., cross petition, and hereby ap- 
 points L. (/,. A. to act as such receiver, and fixes his bond 
 at $ .
 
 758 JUDGMENT ENTRIES. 
 
 No. 1203. 
 
 Entry of Appointment of Receiver to take non-exempt Property 
 of Judgment Debtor (under R. S. Sec. 5484). 
 
 [Caption,] 
 
 It having been made satisfactorily to appear to the court 
 that the defendant judgment debtor has certain property 
 which is not exempt to him under the law, as disclosed by 
 the examination made herein, and which can not be directly 
 applied to the satisfaction of plaintiff's claim, and the court 
 deeming it for the best interests of the parties hereto, there- 
 fore appoints E. W. receiver of said property, to wit : [give 
 sufficient description of proper -ty], who is hereby directed and 
 empowered to take charge of said property, and said defend- 
 ant is directed and required to turn the same over to said 
 receiver, who is hereby ordered and directed to convert said 
 property into money, and to hold the same subject to the 
 further orders of the court ; and that said receiver enter into 
 
 a bond in the sum of $ , with sureties to the approval of 
 
 the clerk of this court. 
 
 No. 1204. 
 
 Entry of Appointment of Receiver to take charge of Attached 
 
 Property. 
 
 [ Caption. ] 
 
 Upon motion of plaintiff herein, and good cause therefor 
 being shown, it is by the court ordered that T. F. be and he 
 is hereby appointed receiver herein to take charge of the 
 property so levied upon by virtue of the writ of attachment 
 herein, and that the said T. F. enter into a bond as such re- 
 ceiver in the sum of $ , with sureties to the approval of 
 
 the clerk of this court. And it is further ordered that the 
 said receiver take possession of said property, care for, and 
 do all things proper to be done under the further orders of 
 the court, and any further orders that the circumstances 
 may require. 
 
 R. S. Sec. 5539.
 
 RECEIVERS — APPOINTMENT OF. 759 
 
 No. 1205. 
 
 Appointment of Receiver to Investigate the Death of Person sus- 
 pected of having committed Suicide — Application made by- 
 Accident Association. 
 
 \Caption. \ 
 
 This day came the N. E. M. Accident Association, of 
 -, and filed its petition, duly verified, with the clerk of this 
 
 court, reciting the fact that on or about the — day of 
 
 1 8 — , one G. E. W. died in the county of under such 
 
 circumstances as leads the applicant to believe that his death 
 was caused by suicide, and not the result of unforeseen acci- 
 dent, or of natural causes, and it appearing to the court that 
 the circumstances of said death are of such character as would 
 justify the fullest inquiry therein on the part of said appli- 
 cant, and the court further finding that the said applicant 
 has fully complied with the terms and conditions required in 
 such cases by Sec. 5874, Revised Statutes of Ohio, hereby 
 orders that the witnesses named in said petition be examined 
 under oath, and their answers obtained to the questions out- 
 lined in said petition, and the court further orders that such 
 
 examination shall take place at the in , beginning 
 
 at — o'clock on — day of , 18 — , and continuing from 
 
 day to day until same is completed. 
 
 And the court further orders that, if necessary, said wit- 
 nesses shall be notified by subpoena issued by special officer 
 appointed herein, which subpoena shall be addressed to said 
 sheriff of said county, and said sheriff is hereby ordered to 
 serve said subpoena and obey the orders that may be issued 
 to him by the said special officer appointed herein to enforce 
 the attendance of said witnesses so that the testimony of said 
 witnesses named herein may be properly obtained. Said 
 witnesses shall have two hours' notice of such examination 
 before they testify, if they desire such amount of time. Said 
 witnesses are hereby required to answer fully and satisfactorily 
 questions given in said petition, and each and every one of 
 said witnesses arc hereby ordered to exhibit for the inspection 
 of said special officer, 'on application herein, and the attor- 
 neys, any papers, books, or written instruments in their 
 ; ession, or under their control, that may in any way throw 
 light on the manner of life or the circumstances of the death 
 of said decedent. Said applicant is hereby directed to give 
 one day's notice of the taking of said testimony to the ad- 
 ministrators of said decedent, and the court hereby appoints 
 
 49
 
 760 JUDGMENT ENTRIES. 
 
 L. P. M., a notary public of county, Ohio, as a suitable 
 
 person and special officer, and authorizes him to proceed to 
 take the testimony of said witnesses as above ordered, and to 
 secure such testimony he is given full authority to issue such 
 subpoenas and other writs as may be necessary for this pur- 
 pose, and when said testimony is so taken said special officer 
 is ordered to make due return thereof to the clerk of this 
 court, and said applicant is hereby ordered to pay all of the 
 costs of the proceedings herein. 
 
 No. 1206. 
 
 Following is Bond required in the foregoing proceeding in Appoint- 
 ment of Receiver. 
 [Caption.] 
 
 Whereas W. W. B. was on the — day of , 18 — , 
 
 duly appointed a receiver in the case of J. E. M. , plaintiff, 
 vs. A. P., et al., defendants, now pending in the court of 
 
 common pleas, within and for the county of , and state 
 
 of Ohio; now, 
 
 Therefore we, W. W. B., as principal, and B. S. B., as 
 
 surety, undertake to the state of Ohio in the sum of $ 
 
 that the said W. W. B. shall faithfully discharge the duties of 
 receiver in the said action and obey the orders of said court 
 therein. 
 
 [seal] W. W. B. 
 [seal] B. S. B. 
 I approve the above undertaking and the surety therein. 
 
 , Clerk of the Court. 
 
 No. 1207. 
 
 Receiver — Application for, Denied. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the application 
 of the plaintiff for the appointment of a receiver, and 
 ' the evidence therein adduced, the court finds that the ap- 
 pointment of a receiver would involve great expense that 
 would overcome any advantage thereby accruing if a trial on 
 the merits of the case can be had at a speedy day, and 
 therefore denies the said application, but said denial is on 
 the condition that an issue can be made by the defendant 
 without delay so that this action may be heard at this term
 
 RECEIVERS — APPOINTMENT OF. 76 1 
 
 of court, and if such is not done, then this plaintiff may 
 renew his said application and this court will give further 
 consideration thereto. 
 
 No. 1208. 
 
 Entry of appointment of Receiver in Foreclosure to receive Rents 
 
 and Profits. 
 [Caption.] 
 
 This cause coming on to be heard upon the application of 
 plaintiff herein for the appointment of a receiver herein to 
 take charge of the property involved herein, and it appearing 
 that due and proper notice has been given of said motion, 
 and it appearing that the mortgaged premises are an inadequate 
 security for the mortgage indebtedness herein of plaintiffs, and 
 to satisfy the claims of the defendant lienholders, and that 
 
 no one but the defendant, , is liable for said debts, it is 
 
 ordered that A. R. be and he is hereby appointed receiver 
 herein, with the usual powers and directions of all the rents 
 and profits now due and unpaid arising from the said prem- 
 ises, or to become due pending this action ; that said receiver 
 be and he is hereby directed and empowered to demand, 
 collect and receive from the tenants in possession all the rents 
 due and unpaid or hereafter to become due. And the said 
 receiver is hereby also authorized to rent said premises for 
 terms as the court may approve, and to keep the same in 
 repair and insured against loss by fire, and to pay the taxes, 
 assessments, and water rents thereon as the same mature, and 
 to hold the funds arising from the rents and profits of said 
 premises subject to the further orders of this court. 
 
 R. S. Sec. 55S7. 
 
 No. 1209. 
 Entry of appointment of Receiver for Partnership Property. 
 
 [Caption. \ 
 
 This cause coming on to be heard upon the application 
 of for the appointment of a receiver herein, and it ap- 
 
 ring that all the parties hereto have been duly notified 
 hereof, and it appearing that the best interests of the said 
 parties require the appointmenl of a receiver herein as asked 
 for, it is therefore considered and ordered by the court that 
 R. E. be appointed with the usual powers and duties of the 
 partnership property, assets and effects of the firm of A. B. &
 
 762 JUDGMENT ENTRIES. 
 
 Co., and that said receiver enter into a bond in the sum of 
 
 $ , with sureties to be approved by the clerk of this court, 
 
 and that said receiver, when he has duly qualified as such, 
 shall forthwith take possession of the property of said part- 
 nership, and that the said parties hereto and members of said 
 firm deliver and transfer the same and all the partnership 
 books and papers and effects belonging to said partnership to 
 said receiver; and that said receiver complete all unsatisfied 
 contracts of said partnership, but that he shall not enter upon 
 any new contracts as such receiver, and that he shall convert 
 the said property and assets of said partnership into money, 
 and recover and collect all claims, demands, bills, accounts, 
 by suit or otherwise, belonging to said partnership, and hold 
 the same and all funds coming into his hands subject to the 
 further orders of the court. 
 
 No. 1210. 
 Entry Removing Receiver and Appointing Another. 
 
 [Caption.] 
 
 [Preliminary recitals as occasion requires.] 
 
 It is therefore ordered that the said E. S. be and he is 
 hereby removed from the office of receiver of the defendant 
 corporation [or, herein], [stale grounds of removal and that 
 
 A. R. be and he is hereby appointed receiver of , with 
 
 the powers and duties conferred by the order heretofore en- 
 tered herein on the day of , 18 — [or they may be 
 
 specified] . 
 
 It is further ordered that before entering upon the dis- 
 charge of his duties as such receiver the said A. R. enter 
 into a bond as such receiver in the sum of $ , with sure- 
 ties to the approval of the clerk of this court. That upon 
 the filing and approval of said bond the said E. S. shall de- 
 liver to the said A. R. all the property and assets belonging 
 to the said defendant corporation [name], [or, of defendant 
 herein], which have heretofore come into his hands as receiver 
 herein. 
 
 As to removal see, fully, Beach's Eq. Pr., Sec. 749. When appoint- 
 ment is made without notice. Id., Sec. 730.
 
 RECEIVERS — APPOINTMENT OF. 763 
 
 No. I2II. 
 
 Entry authorizing Receiver to give notice by Publication to all 
 Creditors, requiring their Claims to be presented within six 
 months therefrom (as in assignments, R. S. Sec. 6352). 
 
 \Caption?\ 
 
 It is ordered by the court that the said A. C, receiver 
 herein, of , give a notice of his appointment in a news- 
 paper of general circulation in the county, for three consecu- 
 tive weeks, to the creditors and all persons interested in the 
 
 company, and that all persons having claims of any 
 
 kind are required to present the same, duly verified, to the 
 said receiver for allowance, within six months from the date 
 of the first publication of said notice; and that any who fail 
 to present their claims before final distribution of the assets 
 
 of said company is made by said receiver (#r, within 
 
 said time), that they will be precluded from any distribution 
 so made by said receiver herein. 
 
 XoTE. — There is no statute in Ohio, and it is presumably within the 
 discretion of the court, as to when a creditor shall be barred. Some time 
 ought to be fixed, and that prevailing in assignments for the benefit of 
 creditors ought to be reasonable. But if a creditor should not present 
 his claim to the receiver within the time specified in the entry, but before 
 distribution is actually made, he would undoubtedly be entitled to share 
 therein; for it has been held to be within the discretion of the court, in 
 the absence of statutes, to let the claim in. Attorney General v. Insurance 
 Company, 11 Abb. N. C. 139; 96 N. Y. 49; People v. Ins. Co., 79 N. Y. 267. 
 
 No. 1212. 
 Report of Liabilities by Receiver. 
 
 [Caption. ] 
 
 This day came J. W., heretofore appointed receiver in 
 
 this case of the property of the company, and makes 
 
 report to the court of the liabilities of the said com- 
 pany, showing that the total liabilities of said company 
 amount to the sum of $ . 
 
 It is therefore ordered that said report be filed with the 
 other papers in this case, and be made a part of the record 
 herein.
 
 764 JUDGMENT ENTRIES. 
 
 (6) SALES BY RECEIVER. 
 
 No. 1213. 
 Entry ordering Receiver to sell Real Estate. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application 
 of A. C, receiver herein, for authority of court to sell the 
 real estate in his said application described, and in his hands 
 as such receiver by order of this court, and belonging to the 
 
 said [defendant], company, and it appearing to the court 
 
 that it will be for the best interests of said trust and the par- 
 ties interested therein, it is ordered by the court that the said re- 
 ceiver cause said premises to be appraised by the oaths of , 
 
 -, and , three disinterested freeholders of the vicinity, 
 
 and that when said premises shall have been so appraised the 
 said receiver shall proceed to advertise said premises for sale 
 by publication in some newspaper of general circulation in 
 the county for four consecutive weeks, and that he then pro- 
 ceed to sell the same at public auction (upon the premises) 
 or, at the door of the courthouse, at not less than two thirds 
 of the appraised value thereof, upon the following terms, to 
 wit : \_state terms], and report his proceedings hereunder to 
 the court for further orders. 
 
 No. 1214. 
 
 Receiver ordered to sell Real Estate and Personal Property — 
 Common Form of Entry. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the motion 
 for an order of sale, and the court having heard the evidence 
 submitted by the parties thereto upon the said motion, as 
 well as the arguments of counsel, and having carefully con- 
 sidered the same, and being fully advised in the premises, 
 finds that it is for the best interests of the creditors, as well 
 as for all other parties interested in this suit, that a sale of 
 the real estate and other property in the hands of the receiver 
 herein should be made at this time. 
 
 It is therefore ordered that said receiver shall proceed 
 without delay to appraise, advertise, and sell all of the prop- 
 erty in his hands, including the real estate and furniture, as
 
 RECEIVERS — SALES BY. 765 
 
 well as the machinery and other property connected with the 
 business of the said defendants and embraced in the orders 
 by which said receiver was appointed herein, as well as the 
 other orders of the court herein and now in his possession 
 and under his control as such receiver, upon the following 
 terms, to wit : 
 
 One third of the purchase price to be paid in cash on the 
 day of sale; one third thereof in two (2) years after date, the 
 deferred payments to bear interest at — percent per annum, 
 and to be secured by mortgage upon the real estate and other 
 property so sold, and said receiver is ordered to make due re- 
 turn of his proceedings hereunder, and to bring the purchase 
 money into court for further order herein. 
 
 No. 1215. 
 Order to sell Stock of Goods by Retail at Private Sale. 
 
 \Caption.~\ 
 
 Upon application of the receiver herein, and it appearing 
 to the court that it is to the best interest of all the parties 
 herein that the stock of goods of the firm of , and in- 
 cluded in the schedule heretofore filed in this case, now in 
 his hands, be sold at private sale, he is hereby directed by 
 the court to sell the same at retail, and to continue such sales 
 until the further order of this court. 
 
 No. 1216. 
 Entry ordering Public Sale of Personal Property. 
 
 [Caption. | 
 
 Upon application of A. C, receiver herein, of [name], it 
 is ordered that said receiver be and he is hereby authorized 
 and ordered to proceed to advertise for weeks by publi- 
 cation in some newspaper of general circulation in the county, 
 and sell the said property in his said application mentioned 
 at public auction, and report his proceedings to this court.
 
 j66 JUDGMENT ENTRIES. 
 
 No. 1217. 
 Entry authorizing Sale of Personal Property at Private Sale. 
 
 [Caption. ] 
 
 Upon motion and application of A. C, receiver herein, 
 and it appearing that it will be for the best interests of the 
 .parties in interest that the said property mentioned and set 
 forth in said application of said receiver to sell the same at 
 private sale at and for the price offered therefor in cash, it is 
 therefore ordered by the court that the said receiver proceed 
 to sell the said property in said application mentioned and 
 set forth at private sale at the best price he can obtain there- 
 for in cash, not less than $ , and hold the proceeds sub- 
 ject to the orders of this court. 
 
 No. 1218. 
 Confirmation of Private Sale of Property by Receiver. 
 
 [Caption.] 
 
 This day came J. W., receiver heretofore appointed in 
 this case, and made report to the court that in pursuance of 
 a former order of this court he made a private sale of the 
 
 remainder of the property belonging to the late company 
 
 in his hands, as shown by said order of L. H. for the sum of 
 
 $ , and the court upon investigation thereof finds that 
 
 said sale has in all respects been made in accordance with the 
 orders of this court, and according to law. 
 
 It is therefore ordered and adjudged by the court that said 
 sale so made and reported as aforesaid be and the same is 
 hereby approved and confirmed. 
 
 No. 1219. 
 
 Entry Confirming Sale of Real Estate by Receiver. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the report of 
 
 A. C, receiver of company herein, of a sale of the real 
 
 estate belonging to said company, in pursuance of a former 
 order of this court, and the motion to confirm the same, and 
 the court having carefully examined said report and^ being 
 satisfied that said sale has in all respects been made in con-
 
 RECEIVERS — SALE OF DESPERATE CLAIMS. 767 
 
 fortuity to law and the order of this court, it is ordered by 
 the court that said sale be and the same is hereby approved 
 and confirmed, and the said receiver is hereby authorized to 
 
 convey to said purchaser, , the following described real 
 
 estate belonging to the said company, upon receipt by 
 
 said receiver of the purchase money for said real estate [de- 
 scription], and that he hold the funds arising therefrom sub- 
 ject to the further orders of the court. 
 
 No. 1220. 
 
 Entry confirming Report of Sale of Personal Property. 
 
 [ Caption. ] 
 
 This matter coming on now to be heard on the report of 
 
 sale of certain horses, cows, etc. , to for the sum of $ , 
 
 all which is more particularly described in the report, and 
 it appearing to the court that said sale has been made for the 
 highest and best price that could be obtained for the same, 
 and that it will be for the best interest of all concerned to 
 have the same consummated, 
 
 It is therefore ordered and adjudged that said sale be and 
 the same is hereby confirmed as to each and every item of the 
 same, and the receiver is hereby ordered to deliver to said 
 
 the said personal property on payment of the purchase 
 
 price thereof. 
 
 (c) SALE OF DESPERATE CLAIMS. 
 
 No. 1221. 
 Receiver Authorized to Sell Desperate Claims. 
 
 [Caption.] 
 
 This day this cause came on for hearing on motion of 
 receiver for an order to sell at public sale certain desperate 
 claims and uncollectible judgments therein stated, and was 
 submitted to the court; and the court finds that the claims 
 and judgments stated in the motion of the receiver this day 
 filed are of such a character that they are not at present 
 collectible, and that it would be to the best interest of the 
 trust that said accounts and judgments be by the receiver 
 advertised and sold at public auction. It is therefore by the
 
 768 JUDGMENT ENTRIES. 
 
 court here ordered, adjudged and decreed that the said re- 
 ceiver proceed to advertise and sell at public sale said des- 
 perate claims and uncollectible judgments according to law, 
 and that said sale be made on the premises where the late 
 partnership conducted its business. 
 
 (d) AUTHORITY TO RECEIVER TO DO 
 
 THINGS IN FURTHERANCE 
 
 OF TRUST. 
 
 No. 1222. 
 
 Receiver Authorized to Borrow Money to Conduct Business. 
 
 \_CaptionC\ 
 
 On motion of receiver of the company, and the 
 
 court finding it necessary that said receiver should have the 
 power to borrow money to effectually carry on the business of 
 
 company, according to a former order of this court, it 
 
 is therefore ordered and adjudged by this court that said 
 receiver as aforesaid borrow money necessary for the proper 
 conducting of said business, said sum so borrowed not to 
 
 exceed the sum of $ , and that said loan be a first lien 
 
 on the assets of said company, except judgment and 
 
 mortgage lien paid out of the profits of said business or the 
 sale of said assets. 
 
 No. 1223. 
 
 Receiver Authorized to Lease Property. 
 
 \CapHon.~\ 
 
 This day this cause came on to be heard upon the appli- 
 cation of S. A. M. , the receiver of the defendant, heretofore 
 appointed herein, for an order authorizing him to lease and 
 sub-let said premises heretofore operated and conducted by 
 the defendant corporation, and was submitted to the court, 
 and the court being fully advised in the premises finds that 
 said receiver is unable to operate such plant under the order 
 heretofore obtained for that purpose on account of insufficient 
 funds in his hands to put the machinery and other appliances 
 in proper repair to manufacture ; and the court further finds 
 that it would be greatly to the advantage of said defendant
 
 RECEIVERS — SPECIAL ORDERS. 769 
 
 corporation and to its creditors to have said plant run and 
 operated and machinery and appliances put and kept in proper 
 condition, and that said corporation and its creditors will be 
 damaged and will suffer large and substantial losses on account 
 of the nature and condition of the property now in the hands 
 of said receiver unless said plant is operated. Wherefore said 
 receiver is authorized and empowered by this court to lease 
 
 or rent the plant heretofore operated by the defendant 
 
 company by the month at the cash rental value stated in said 
 motion, until the further order of this court. 
 
 No. 1224. 
 
 Receiver authorized to Employ Help and to Sell Property in same 
 
 proceeding. 
 
 [ Caption. ] 
 
 Now comes the receiver, W. W. B., heretofore appointed 
 by the court, and says that there has come into his hands as 
 receiver a large number of horses, cattle, hogs, also hay, 
 grain, etc. ; that in order to properly care for and protect the 
 property in his hands it will be absolutely necessary for said 
 receiver to employ help to assist in the care thereof, and that 
 it will be necessary for the best interest of all parties hereto 
 that such additional help should be employed. The receiver 
 also represents to the court that the chief and most valuable 
 property in his hands are a large number of horses, hogs, etc; 
 that it requires a large amount of hay, grain, etc., to feed the 
 same; that in feeding the same from hay and grain on hand, 
 the value and amount of property on hand is continually de- 
 preciating, and that it will be for the best interest of all parties 
 hereto that the receiver be authorized to sell for cash for the 
 best prices that he can obtain, the property in his hands either 
 at private or public sale. But in case the property is sold at 
 public sale, public notice ought first be given for at least 
 thirty days before- date of sale. 
 
 And said receiver also asks for an order from the court 
 authorizing him to employ an assistant in the care and pro- 
 tection of the property in his hands at a salary not to exceed 
 
 $ per day, dining the time he is employed, and for an 
 
 i' authorizing him to immediately sell the property in his 
 hands for casli or best juices obtainable by him either at pri- 
 vate or public sale, but in case of public sale, notice for thirty 
 
 days shall be first given before date of sale. 
 
 And the court coming now to a hearing of said application 
 of said receiver to employ help and sell goods and chattels,
 
 yjO JUDGMENT ENTRIES. 
 
 and upon the evidence doth find the facts and matters in said 
 application to be true, and that it will be for the best interest 
 of all persons concerned herein that said receiver employ help 
 and sell goods and chattels as prayed for: 
 
 It is therefore by the court considered and ordered 
 that the receiver be and he is hereby authorized to employ 
 help to assist in the care and protection of property in his 
 
 hands at a salary not to exceed $ per day, until further 
 
 orders by this cpurt. 
 
 It is further by the court considered and ordered that the 
 receiver be and he is hereby authorized to immediately com- 
 mence the sale of property in his hands either at private or 
 public sale, all sales however to be for cash or the best prices 
 obtainable by said receiver, provided where property is sold 
 at public sale, public notice shall be given for at least thirty 
 davs before date of sale. 
 
 No. 1225. 
 
 Receiver— Same Proceeding— Entry Authorizing Receiver to 
 Deliver Property to Judgment Lienholder. 
 
 [Caption.'] 
 
 Now comes W. W. B. , receiver herein, and represents to the 
 court that he has in his possession certain [describe property], 
 name d , which the bank of , who have here- 
 tofore obtained a judgment against defendant A. P., in this 
 
 court, for $ , are ready and willing to accept from this 
 
 receiver in full satisfaction of their aforesaid judgment. This 
 receiver represents that said price is much larger than can 
 otherwise be obtained, and asks for an order authorizing him 
 to deliver said property to said bank of , in consid- 
 eration of said bank entering satisfaction of said judgment. 
 
 And the court coming now to a hearing of said applica- 
 tion, finds the matter set forth therein to be true, and the 
 court finding that all parties having any interest in said 
 property having consented to the release of their lien or liens 
 upon said property, subject to other releases and reservations 
 as hereinafter ordered by the court. 
 
 It is therefore by the court considered and ordered that 
 said receiver be and he is hereby authorized to deliver to 
 
 said bank of , said property upon a judgment by 
 
 them obtained against said A. P. being satisfied, and it is 
 further ordered that the liens of all parties hereto on said 
 property be and the same are released subject to the reserva- 
 tions hereinafter ordered.
 
 RECEIVERS — SPECIAL ORDERS. JJT 
 
 And it is further ordered by the court that such release of 
 said property shall in no way operate as a release of any lien 
 or liens, or any part thereof, which any party or parties 
 hereto may have by reason of any attachments or otherwise, 
 on any of the other property now in the hands of such re- 
 ceiver. And it is further ordered that such release of such 
 property shall in no way reduce the amount of judgment of 
 any attaching creditor, and shall in no way prejudice, or pre- 
 vent such attaching creditor from securing the full amount 
 of his judgment from the remainder of any property in the 
 hands of such receiver, and on which he may have any at- 
 tachment lien or liens. This order shall in no way be con- 
 strued as a finding by the court upon the priorities of any 
 lien or liens which may now be on said property, or upon any 
 other property in the hands of said receiver. 
 
 No. 1226. 
 
 Receiver Ordered to Pay Taxes. 
 
 \Capti<m.~\ 
 
 This day this cause came on to be heard on the applica- 
 tion of the receiver herein for an order authorizing him to 
 
 pay taxes assessed on the property of the late company, 
 
 amounting to $ , and was submitted to the court, where- 
 upon the court finds that there is due the county treasurer of 
 
 , as taxes on the personal property of the late 
 
 company, the sum of $ . 
 
 It is therefore ordered that the receiver, out of the money 
 now in his hands, pay to the said treasurer the said taxes, 
 amounting to the sum of $ . 
 
 No. 1227. 
 Receiver Authorized to Begin an Action to Enforce Judgment. 
 [ t aption. J 
 
 Upon application of G. I!. 0., receiver herein, he is 
 
 by authorized and directed to commence an action in his 
 
 own name as su< h receiver, to subject the property of B. F. 
 
 S., •' to the payment of the judgment rendered by 
 
 court on the day of .
 
 y72 JUDGMENT ENTRIES. 
 
 No. 1228. 
 
 Receiver Granted Authority to Manufacture and Sell Stock 
 
 on Hand. 
 
 \_Caption^\ 
 
 This day came h. W. H., receiver, and filed with the 
 court his report touching certain work now on hand and in 
 his possession as receiver, and asking for permission of the 
 court to complete such goods as are now partially manufac- 
 tured, and to manufacture the residue of material on hand 
 into manufactured goods, and for authority to purchase such 
 material as is necessary to complete said work. The court 
 being fully advised in the premises finds that it would be 
 best for all parties concerned to grant said application, and 
 the same is hereby granted, and the said receiver is hereby 
 directed to purchase such new material as he may think 
 proper to partially manufacture, and to manufacture the 
 residue of the stock in his possession into manufactured 
 goods which have been worked up heretofore, and that he 
 proceed to dispose of such goods after being so manufactured 
 at the usual market price therefor as the same were hereto- 
 fore sold by said partnership ; and said receiver is directed to 
 report his proceedings in the premises to the court after his 
 compliance with this order. 
 
 No. 1229. 
 
 Receiver Ordered to Pay Note. 
 
 \Caption^\ 
 
 This day this cause came on to be heard upon the appli- 
 cation of the receiver herein for authority to pay a certain 
 
 promissory note to for insurance upon the property of 
 
 the C. P. A. Company, as more fully set forth in said appli- 
 cation; and the court being fully advised in the premises, 
 and upon the evidence adduced, finds the statements and 
 allegations contained in said application true, and that said 
 note should be paid, and that it will be for the best interest 
 of the creditors and of the C. P. A. Company to have said 
 note paid now and promptly. Said receiver is therefore 
 authorized, ordered, and directed to pay out of any fund he 
 may have in his hands of said M. B. H. said note, with 
 interest up to the present time, amounting to $ .
 
 RECEIVERS — DISTRIBUTION OF FUNDS. JJ2> 
 
 (e) DETERMINATION OF PRIORITIES 
 OF LIENS. 
 
 No. 1230. 
 
 Receiver — Validity of Chattel Mortgage Determined — Order 
 
 to Pay. 
 \CaptionJ\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and evidence and argument of counsel, and was sub- 
 mitted to the court, whereupon the court being fully advised 
 in the premises, do find the issues in favor of the plaintiff, 
 and that said plaintiff, by reason of his said chattel mort- 
 gage, has the first and best valid and subsisting lien upon 
 the partnership of the late H. & C. and the funds remaining 
 from the sale thereof. 
 
 It is therefore this day considered and adjudged that the 
 said answer and cross petition of the E. H. & Co. be and the 
 same is hereby dismissed. The court coming on to distrib- 
 ute the funds in the hands of the receiver, and pass upon his 
 third account filed in this court, do allow and confirm the 
 same; and it is ordered that out of the moneys in his hands 
 he first pay the costs of this action, including an addi- 
 tional allowance to himself as receiver, of $ , and out of 
 
 the balance he pay in full the mortgage claim of the plain- 
 tiff, amounting to $ , with interest thereon ; and that if 
 
 there be any balance after paying said claim, he hold it sub- 
 ject to the further order of this court. And thereupon the 
 defendants, E. H. & Co., gave notice of their intention to 
 
 appeal this case to the circuit court of county, and 
 
 asked the court to fix the penalty of an undertaking to be 
 given by them to perfect such appeal, which the court 
 accordingl) fixes at $ . 
 
 (/; DISTRIBUTION OF FUNDS. 
 
 No. 1231. 
 Receiver — Order of Distribution in Same Proceeding. 
 {Caption. I 
 
 This day this cause came on to be heard on application 
 of \V. \V. B., receiver herein, for an order of distribution of
 
 774 JUDGMENT ENTRIES. 
 
 the money in his hands heretofore by him reported to this 
 court ; and upon the evidence and pleadings herein, and 
 arguments of counsel, and the court being fully advised in 
 the premises, doth find that the plaintiff, J. E. M., the 
 defendants F. M. G., J. S., E. D., A. K. W., and S. H. S., 
 after the payment of the costs in this case, the receiver's 
 compensation, and attorney's fee to receiver, have the first 
 and best lien on the money now in the hands of the receiver, 
 by reason of their attachment proceedings as set up respec- 
 tively in the petition of said J. E. M. and the answer and 
 cross petition of the aforesaid defendants. The court further 
 
 finds that the defendant the bank of , obtained a 
 
 judgment in this court in the term, 18 — , against the 
 
 defendant A. P., in the sum of $ and costs, on the 
 
 day of , 1 8 — , as in its answer and cross petition set out. 
 
 And execution was thereupon issued to the sheriff of 
 
 county, Ohio, who, on the day of , 18 — , levied 
 
 on the property of defendant A. P., which property 
 was the same as came into the hands of the receiver 
 herein; that the defendant M. C. H. obtained a judg- 
 ment in this court, in the term, 18 — , against the 
 
 defendant A. P., in the sum of $ and costs, on the 
 
 day of , 1 8 — , as in her answer and cross petition set up; 
 
 and execution was thereupon issued to the sheriff of 
 
 county, Ohio, who, on the day of , 18 — , levied 
 
 on the property of the said defendant A. P., which property 
 sO levied on was the same as came into the hands of the 
 
 receiver herein; that the defendant, the bank of C, 
 
 obtained a judgment in this court at the term, 18 — , 
 
 against the defendant A. P. , in the sum of $ and costs, 
 
 on the day of , iS — , as in its answer and cross 
 
 petition set up ; and execution was thereupon issued to the 
 
 sheriff of county, Ohio, who, on the day of , 
 
 18 — , levied on the property of the said defendant A. P., 
 which property so levied on was the same as came into the 
 hands of the receiver herein ; that the defendant W. R. G. 
 
 obtained a judgment in this court at the • term of 18 — , 
 
 against the defendant A. P. , in the sum of $ and costs, 
 
 'and on the day of , 18 — , as in his answer and 
 
 cross petition set up ; and execution was thereupon issued to 
 
 the sheriff of county, Ohio, who, on the day of 
 
 , 1 8 — , levied on the property of the said defendant A. 
 
 P. , which property so levied on was the same as came into 
 the hands of the receiver herein. 
 
 The court doth further find that the defendant, the 
 
 bank of , has been paid in full its aforesaid judgment
 
 RECEIVERS — DISTRIBUTION OF FUNDS. 775 
 
 by the return of a certain stallion, as per a former order of 
 this court, and has no claim or interest in the money now in 
 the hands of the receiver. 
 
 The court doth further find, from the evidence and plead- 
 ings, that the defendant J. B. M. has no lien, interest, or 
 claim in or to the moneys now in the hands of the receiver. 
 The court doth further find that as between the claims 
 
 and judgments of the bank of C. and M. C. H. on the 
 
 one part and the judgment of J. B. on the other, that said 
 
 judgment of the bank of C. and M. C. H. are the best 
 
 and prior liens on said moneys in the hands of said receiver, 
 and should be paid as against said claim of J. B. in full. 
 
 The court doth further find, as between the various de- 
 fendants herein, who obtained judgments in this court in the 
 
 term, 18 — , and issued execution thereon to the sheriff 
 
 of county, Ohio, that all said judgments shall pro rate 
 
 in the amount that may be payable to the bank of C. 
 
 and M. C. H., as between them and J. B. 
 
 The court cloth further find that the judgment of the 
 the said defendant J. B. shall pro rate with the judgment of 
 the defendant W. R. G. in any money that may be payable 
 to the said defendant W. R. G. 
 
 And the court coming now to a distribution of the sum 
 
 of S , being the money now in the hands of said receiver, 
 
 doth order and adjudge that he pay : 
 
 Item 1, To the clerk of this court the costs herein, taxed 
 
 at I . 
 
 Item 2, To the clerk of this court the costs in the case of 
 
 bank of C. against A. P. ; the bank of vs. A. 
 
 P. ; W. R. G. vs. A. P. ; M. C. H. vs. A. P. ; W. W. B. 
 
 vs. A. P.; and J. B. vs. A. P., amounting in all to 
 
 $ , to the clerk of the court of county, Ohio, 
 
 the costs in the case of J. B. vs. A. P., and others, 
 
 amounting to $ . 
 
 Item 3, To himself, as his compensation as receiver, $ . 
 
 Item 4, To(). P.. M. C. G., attorneys foi receiver, the sum 
 
 of $ . 
 
 Item 5, To the J. E. M., F. M. G., J. S., E. D., A. K. W., 
 
 and S. II. S., their respective judgments and costs in 
 
 their actions against A. P., as follows: To J. E. M., 
 
 - c : to P. M. G., $ ; to J. S., $ ; to E. D., 
 
 $ ; to A. K. \\\, $ ; to S. II. S., $ . 
 
 Item 6, And it appearing to the court that, after the pay- 
 ment of the judgments and costs as provided tor in Item 
 5 herein, there is not sufficient money in the hands of 
 the receiver to pay the judgment taken in this court 
 
 50
 
 776 JUDGMENT ENTRIES. 
 
 and in the court of county, Ohio, it is further 
 
 ordered and adjudged that the receiver pay to M. C. H. , 
 W. R. G., and W. W. B. and J. B. their pro rata share 
 of money in his hands in proportion that their respective 
 claims bear to the moneys in his hands for distribution 
 according to the preceding five classes, which pro rata 
 
 shares are as follows: To the bank of C, $ ; to 
 
 M. C. H., $ ; to W. R. G., $ ; to W. W. B., 
 
 $ ; to. J. B., $ ; the payments to W. R. G., 
 
 W. W. B., and J. B. being, however, subject to Items 
 7 and 8 herein. 
 
 Item 7, That the said defendant J. B. shall pro rate on his 
 judgment with the defendant W. R. G. in any sum 
 payable to said W. R. G. under Item 6 herein, in the 
 proportion that the said claim of J. B. and W. R. G. 
 have to the amount so payable to W. R. G. under Item 6 
 
 herein, which is as follows: To W. R. G., $ ; to 
 
 J. B., $ . 
 
 Item 8, And it appearing to the court that the executions 
 issued and levied on the judgment in favor of the 
 defendants W. W. B. and J. B. were subsequent in time 
 to the execution issued and levied on the judgment of 
 the defendant J. B., it is considered by the court that 
 so much of the funds as were set aside to said W. W. B. 
 and J. B. under Item 6 herein, are subject to the supe- 
 rior claim of said J. B., and it is ordered that said 
 amount shall be paid to said J. B. on his said judgment. 
 
 No. 1232. 
 Receiver Ordered to Pay Balance of Claims. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application 
 of the receiver appointed herein for an order of distribution 
 of the funds now in his hands, and upon due consideration 
 whereof, the court orders that the receiver pay the remainder 
 
 of the claims of the creditors of the said company as 
 
 shown by the schedule of liabilities heretofore filed herein 
 by the receiver, fifty percent of said claims having been by 
 the former order of this court ordered paid.
 
 RECEIVERS — REPORTS AND ACCOUNTS. 777 
 
 {g) REPORTS AND ACCOUNTS. 
 
 No. 1233. 
 
 Report of Receiver Approved — Partial Dividend Ordered Paid. 
 
 \CapHonJ\ 
 
 This cause coming on to be heard upon the motion to 
 confirm the partial report of the receiver herein, and the 
 court having carefully examined said report, and finding the 
 same to be in all respects correct, and that the said receiver 
 has fully obeyed all the orders of the court to him issued, 
 and has duly paid over all moneys coming into his hands as 
 such receiver, does therefore approve and confirm the same; 
 and upon motion of the said receiver it is ordered that he 
 
 be allowed and paid the sum of $ , in full for his services 
 
 herein to date. It is further ordered that all acts and things 
 done by him, as well as his said report, be and they are 
 hereby approved and confirmed, and that the said F. S. be 
 discharged from further liability and responsibility as to all 
 moneys contained in his said report as such receiver, (a) 
 
 And the court further finds that there is in the hands of 
 said receiver, upon the allowance of said account, the sum 
 
 of $ , and that the indebtedness of said amounts to 
 
 the sum of $ , and that it will be expedient and safe for 
 
 said receiver to pay a final dividend of percent. It is 
 
 therefore ordered that the said receiver proceed to pay to the 
 
 creditors of said a dividend of percent, and report 
 
 such payment to this court. 
 
 No. 1234. 
 Allowance of Final Account, and Final Dividend Declared. 
 
 \C apt ion. ] 
 
 {Proceed from (a) in ante form No. 1233.] 
 
 And the court finds that there remains in the hands of 
 
 said receiver the sum of % , and that the remainder of 
 
 the indebtedness due from the said [name] amounts to $ , 
 
 and that said sum in the hands of said receiver will pay a 
 
 dividend upon said debts of percent. It is ordered by 
 
 the court that the said receiver pay a final dividend upon the 
 
 said claims and indebtedness of percent, and that he 
 
 report the payment thereof to this court within days 
 
 from the date of this entry.
 
 778 JUDGMENT ENTRIES. 
 
 No. 1235. 
 
 Entry of Filing of Report of Final Dividend and Discharge of 
 
 Receiver. 
 
 \Caption.~\ 
 
 This day came , receiver of , and filed herein 
 
 his report of payment by him of a final dividend to the 
 
 creditors of said , according to the former order of this 
 
 court. And it 'appearing to the court that said receiver has 
 fully complied with the order of this court, and that he has 
 made a full and complete settlement of the affairs of said 
 , it is ordered that said be and he is hereby dis- 
 charged as such receiver. 
 
 RECOVERY OF POSSESSION OF REAL 
 PROPERTY. 
 
 {R. S. Sees. 5781—5785.) 
 
 No. 1236. 
 
 Entry of Recoupment in Action for Recovery of Purchase Price 
 
 of Real Estate. 
 [Caption.] 
 
 This cause came on this day to be heard upon the plead- 
 ings, and the evidence adduced by the parties, and the argu- 
 ments of counsel. And the court being fully advised finds 
 that there is due the plaintiff (vendor) from the defendant 
 
 E. T. (vendee), as claimed in said petition, the sum of $ , 
 
 being a balance due upon the sale of the premises set forth 
 and described in the petition, and as part of the purchase 
 price therefor; and the court further finds that said premises 
 were incumbered at the time of the sale by said plaintiff to 
 said defendant T. E. by street assessments for the years of 
 
 , when said deed from said plaintiff to said defendant 
 
 specially covenanted and warranted that said premises were 
 free and clear from all encumbrances, and that there has 
 therefore been a breach in the covenants in said deed, and 
 that the said defendant is entitled to recover upon his counter- 
 claim the amount so paid by him upon said street assessments^
 
 RECOVERY OF POSSESSION OF REAL PROPERTY. 779 
 
 to wit, the sum of $ , from the said plaintiff, and that 
 
 he is entitled to recoup against the amount claimed by plain- 
 tiff and herein found to be due said plaintiff from the said 
 defendant, as the purchase price for said premises, the amount 
 
 of said street assessments, to wit, the sum of $ . 
 
 It is therefore ordered that the plaintiff recover from the 
 defendant the balance of said purchase money so found to be 
 
 due him, after deducting therefrom the said sum of $ , 
 
 so found to be due said defendant on account of said street 
 
 assessments, to wit, the sum of $ , and that he recover 
 
 his costs herein expended to be taxed. 
 
 R. S. Sec. 5780. Or this entry may be modified where cause is sub- 
 mitted to jury. 
 
 No. 1237. 
 
 Entry where Defendant is in Default— Without Jury. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition, 
 and it appearing to the court that the defendant has been 
 duly served with process and summons according to law, and 
 is in default for demurrer or answer, and the plaintiff herein 
 having waived a trial by jury, said cause was submitted to 
 the court upon the evidence adduced. On consideration 
 thereof the court finds as alleged in the petition that the 
 plaintiff had, at the time of the filing of his petition, and now 
 
 a legal title to the premises in the petition described, and 
 is entitled to the immediate possession thereof, and that the 
 defendant has unlawfully kept said plaintiff out of the posses- 
 sion thereof. 
 
 It is therefore considered and adjudged by the court that 
 the plaintiff recover the possession of the said premises, and 
 that an execution issue from this court to place said plaintiff 
 in possession of said premises, and that he recover his costs 
 herein expended. 
 
 R. S. Sec. 5781 ; Kinkead's Code Pleading, Sees. 1046, 1050. 
 
 No. 1238. 
 
 Entry Impaneling Jury to try Action for Recovery of Real 
 
 Property. 
 [Caption.] 
 
 This day this cause came on to be heard upon the plead- 
 ings, and thereupon came the following jury, who were duly
 
 780 JUDGMENT ENTRIES. 
 
 impaneled and sworn according to law, to wit : {names of 
 jurors). And said jury having heard the evidence adduced 
 by the parties, the arguments of counsel and the charge of 
 the court, upon due deliberation returned the following ver- 
 dict, to wit: {copy verdict), {a) 
 
 And thereupon the defendant gave notice of a motion 
 for a new trial. 
 
 No. 1239. 
 
 Entry Overruling Motion for New Trial, and Judgment upon 
 
 Verdict. 
 \Caption.~\ 
 
 This cause coming on to be heard upon the motion of 
 defendant for a new trial was submitted to the court. Upon 
 due consideration thereof the court finds said motion not 
 well taken and overrules the same. * 
 
 It is therefore considered and adjudged by the court that 
 the said plaintiff has been unlawfully kept out of the pos- 
 session of the premises in said petition described by said de- 
 fendant, and that he is entitled to the immediate possession 
 thereof; and that he therefore recover from the said de- 
 fendant the possession of said premises, and also the sum 
 
 of $ , his damages so awarded to him by the verdict of 
 
 the jury, and also his costs herein expended, to be taxed. 
 
 R. S. Sec. 5781. 
 
 No. 1240. 
 Entry upon Verdict for Defendant. 
 
 \C option. ] 
 
 [Proceed from (a) in ante No. 1238.] It is therefore 
 considered and adjudged by the court that the said defend- 
 ant go hence without day and recover from the said plaintiff 
 his costs herein expended, to be taxed. 
 
 No. 1 241. 
 
 Sale by Executor declared Valid in an Action to Recover 
 
 Possession. 
 
 [ Caption. ] 
 
 This day came the parties and their respective attorneys, 
 and thereupon this cause, having been regularly assigned,
 
 REFORMATION, ETC., OF INSTRUMENTS. 78 1 
 
 was submitted to the court without the intervention of a 
 jury, on the pleadings, agreements of the parties, the evi- 
 dence, exhibits and arguments of counsel, and on due con- 
 sideration whereof, and being fully advised in the premises, 
 the court finds in favor of A. E. D., defendant, on his answer 
 and cross petition, and against said M. E. F., plaintiff, that 
 the executors of the last will and testament of P. F., de- 
 ceased, had power thereunder to sell and convey in fee sim- 
 ple and receive the proceeds arising from the sale of the 
 real estate described in the petition of the said plaintiff, and 
 in the answer and cross petition of said defendant ; that said 
 defendant is seized in fee simple of said premises, that said 
 plaintiff's claim is a cloud thereon, and said defendant is 
 entitled to have his said title quieted as against the said 
 plaintiff; that the equity of the case is with the defendant; 
 that plaintiff's said claim is null and void and the prayer 
 of the said answer and cross petition ought to be granted. 
 It is thereupon ordered, adjudged and decreed by the 
 court that the title of fee simple of the defendant to the 
 premises aforesaid, and each and every part thereof be and 
 the same is hereby quieted as against any and all claims 
 or demands of said plaintiff in, to, or against the same, 
 and said plaintiff is hereby forever enjoined from asserting 
 or prosecuting any such claim or demand against the same 
 or any part thereof, and that said defendant recover his 
 costs herein against said plaintiff, taxed at $ . 
 
 REFORMATION, RESCISSION, AND CAN- 
 CELLATION OF INSTRUMENTS. 
 
 No. 1242. 
 
 Entry Reforming and Correcting Deed where Mistake in Name 
 is made, and Title quieted. 
 \Ca.ptionJ\ 
 
 This cause this day came on to be heard on the petition 
 of plaintiff and the answer of the infant defendants by their 
 guardian ad lihm, the other defendants being in default for an- 
 swer or demurrer, and was heard on the proofs. Whereupon the 
 court finds that all the defendants have been duly and legally 
 served with process, or have voluntarily entered their appear-
 
 782 JUDGMENT ENTRIES. 
 
 ance herein and are before the court ; and the court having 
 heard the evidence and carefully considered the same, and 
 being fully advised in the premises, finds that the deed referred 
 to hfthe petition, or the premises therein described, was by 
 mistake and inadvertence made to and in the name of A. J. 
 N. instead of E. A. N. ; that the said property was purchased 
 by the said E. A. N. in her lifetime with the means of the 
 estate of the said A. N., deceased, and that she was only en- 
 titled to a life estate therein, and that, as alleged in said 
 petition, she is now deceased. 
 
 It is therefore ordered, adjudged, and decreed by the court 
 that the said deed referred to in the petition, and dated the 
 
 , be and the same is hereby corrected and reformed so as 
 
 to invest the title of said premises in fee simple in the said 
 E. A. N. in trust for her own use and benefit during her 
 natural life, and after her death seized of the same to be and 
 remain the property of the estate of the said A. N., deceased, 
 and subject to the provisions of his will and title to said 
 premises as against the heirs of said E. A. N. is hereby 
 quieted. 
 
 No. 1243. 
 
 Reformation of Deed where mutual Mistake made in Clause in 
 
 Warranty. 
 [Caption.] 
 
 This cause came on this day to be heard upon the plead- 
 ings and evidence and was argued by counsel, and the court 
 having carefully considered the same, and being fully advised 
 in the premises, finds that the allegations contained in the 
 petition are true, and that by mutual mistake of the parties 
 there was added to the general warranty of the deed referred 
 to in said petition a clause "excepting from the same the 
 taxes that were then a lien for the year 1892, which the 
 grantee agrees and assumes to pay. " The court further finds 
 that the deed referred to in the petition should not have con- 
 tained the clause above referred to, and it is therefore ordered 
 ,and adjudged by the court that the said deed referred to in 
 
 said petition, and recorded in deed book number , page 
 
 — , of county, Ohio, records, be and the same is hereby 
 
 corrected and reformed so that said deed shall not have 
 written therein the following clause: "Excepting from the 
 same the taxes that were then a lien for the year 1892, which 
 the grantee agrees and assumes to pay. ' '
 
 REFORMATION, ETC., OF INSTRUMENTS. 783 
 
 And the court further orders that this decree shall have 
 the force and effect of the reformation of said deed as fully 
 and completely as though said deed had originally been made 
 by the C. E. to the said E. N. with said clause omitted, to 
 which said judgment and decree the defendant excepts. 
 
 No. 1244. 
 Reformation of Deed — Correcting Description. 
 
 [Caption.^ 
 
 [Proceed from ante No. 1243.] 
 
 The court further finds that all of the allegations of the 
 petition herein are true, and that on and prior to the — day 
 of , one J. M. was the owner in fee simple and in pos- 
 session of the following described premises, to wit: [Descrip- 
 tion. ] 
 
 The court further finds that on the — day of , said 
 
 J. M. and the defendant, S. J. M., his wife, executed and 
 delivered to one R. A. their certain deed of conveyance for 
 the above-described premises and thereby conveyed to said 
 R. A. the said above-described premises which said deed is 
 recorded in deed book number — , page — , of the records of 
 deeds in said county. 
 
 The court further finds that by the mutual mistake and 
 inadvertence of the parties to said deed, a scrivener who pre- 
 pared the same, the description of said premises in said deed 
 were made indefinite and uncertain, as follows: [Here give 
 erroneous description.^ 
 
 The court further finds that said description in said deed 
 is indefinite and uncertain for the reason that the same does 
 not definitely state from what side or portion of said lots 
 
 numbers said premises so conveyed by said deed were 
 
 taken. That the premises described in said deed, and which 
 were- not to be conveyed by all the parties to said deed, and 
 which were in fad conveyed by said deed, are the same iden- 
 tical premises firsl hereinbefore described as being owned by 
 said J. M. "u said — day of , as aforesaid; that imme- 
 diately after the execution and delivery of said (VaX the- said 
 grantee, R. A., took possession of said premises so first here- 
 inalio- e d( cribed under said (]i'v<\, and on and thus claiming 
 through subsequent successive conveyances under him have 
 ever since paid the taxes on the same and have used and 
 occupied the same, and have been in the open and adverse 
 possession of the same; that the plaintiffs [naming tiicm\ are
 
 784 JUDGMENT ENTRIES. 
 
 respectively owners of a portion of said premises first herein- 
 above described in fee simple, and in possession and occu- 
 pancy of the same, and are entitled to have the description of 
 said deed corrected and reformed, and that the said descrip- 
 tion in said deed should be reformed so as to locate and iden- 
 tify said premises thereby conveyed and so as to conform the 
 description thereof to the defendants a certain description 
 first hereinabove set forth. 
 
 It is therefore ordered, adjudged, and decreed that the 
 said description 'in said deed be and the same is hereby cor- 
 rected and reformed so as to locate and identify said premises 
 thereby conveyed, and so as to conform the description thereof 
 to the certain and definite description as hereinabove set out 
 as follows, to wit: [Here give correct description.] 
 
 The court further finds that the plaintiff is the owner in 
 fee simple and in actual possession and occupancy of said 
 premises. 
 
 And it is therefore ordered, adjudged and decreed that 
 the title and the possession of the said plaintiff to all and 
 singular premises described be and the same are hereby quieted 
 as against the defendants, and each and every one of them, 
 and all persons claiming under them, or any of them, and 
 they are hereby forever enjoined from setting up any claim 
 to said premises, or any part thereof, adverse to the title and 
 possession of said plaintiff. 
 
 No. 1245. 
 
 Entry Correcting Deed — Corrected Deed Ordered Executed — 
 Motion for New Trial Overruled. 
 
 [Caption.] 
 
 This cause came up for trial upon the issue joined by the 
 petition, answer, and reply. The evidence of both parties 
 and the arguments of counsel being concluded, the same was 
 submitted to the court, who, upon consideration, find each 
 and all the allegations of the plaintiff's petition to be true. 
 
 It is therefore ordered, adjudged, and decreed by the 
 court that the deed or conveyance be corrected as prayed for 
 in the petition, and that that part of the deed which is a 
 description of the property conveyed be so corrected as to 
 
 read as follows: Situated in the township of , county of 
 
 , and state of Ohio, and known as . 
 
 And it is further ordered that the defendant execute and 
 deliver a deed to J. M. , reconveying to him all the lands in-
 
 REFORMATION, ETC., OF INSTRUMENTS. 785 
 
 eluded in the deed in excess of the quantity of land herein- 
 before described, which said lands to be reconveyed are 
 briefly described as follows: [Description.} 
 
 And that in default of the execution and delivery of said 
 deed by said defendant to said J. M. within thirty (30) days 
 from the entry of this decree this decree shall operate as such 
 conveyance. 
 
 The defendant therefore files its motion for a new trial, 
 and the same having been heard and submitted the court 
 overruled said motion. 
 
 To all of which orders, holdings, and decrees the defendant 
 excepts. 
 
 No. 1246. 
 
 Contract — Reformation of Contract, and Judgment on same as 
 
 Reformed. 
 
 \Caption.~\ 
 
 This day came the parties in person and by their attor- 
 neys, and by the consent of the parties this cause was sub- 
 mitted to the court upon the pleadings of the parties respec- 
 tively, the exhibits and testimony upon all the issues herein, 
 and the court being fully advised in the premises finds upon 
 the issues herein for the plaintiff. The court further finds 
 upon the testimony that the contract in writing, a copy of 
 which is set forth in the petition, should be reformed for the 
 reason set forth in said petition ; that the contract which was 
 in fact entered into between said parties was in substance 
 that plaintiff should sell and deliver to the defendant a certain 
 
 team of horses at the agreed price of $ ; that the plaintiff 
 
 should sell and deliver to the defendant a quantity of building 
 
 stone at the agreed price of $ ; that the plaintiff, to the 
 
 satisfaction of defendant, delivered said horses to the defend- 
 ant, and also delivered to him perches of stone; that 
 
 in consideration of said contract on the part of plaintiff the 
 defendant agreed to convey to the plaintiff the following de- 
 ted real estate: [Description], at the agreed priceof# ; 
 
 that the balance which should he due to the plaintiff from 
 the defendant for the price of said horses and the value of 
 said stone the defendant agreed to pay cash. 
 
 The court further finds that the defendant, at or about 
 the time in the petition stated, owed to the plaintiff on said 
 
 contract the sum of $ , and that there remains due and 
 
 Unpaid on said indebtedness from the defendant to the plain- 
 tiff over and above the agreed value of said real estate the 
 cash so paid as aforesaid, the sum of $ .
 
 786 JUDGMENT ENTRIES. 
 
 The court further finds from the testimony that said 
 promissory note should, for the reasons in said petition speci- 
 fied, be cancelled and delivered to the plaintiff. 
 
 Wherefore the court does, by reason of the finding of the 
 facts aforesaid, order that said written contract be reformed to 
 accord with said findings; that said defendant, G. C. W., con- 
 vey to the plaintiff, C. O. N., by good and sufficient deed of 
 general warranty, the real estate aforesaid within thirty days 
 from this date, and in default thereof this judgment have 
 the same operation and effect as such deed; that said promis- 
 sory note be cancelled and delivered to the plaintiff, and 
 that plaintiff recover from the said defendant the sum of 
 
 $ , with interest thereon from the — day of , 18 — , 
 
 together with costs herein expended. 
 
 No. 1247. 
 Entry declaring Deed a Mortgage— Cancelling same. 
 
 [Caption.] 
 
 This cause came on to be heard to the court upon the 
 pleadings, evidence, and arguments of counsel (the right to 
 a trial by jury being waived by the parties hereto), and the 
 court being fully advised in the premises finds that on the — 
 
 day f , 18 — , plaintiff was the owner in fee simple of 
 
 [describe premises]; that on the — day of , 18 — , the 
 
 said S. V. D. executed and delivered to E. D. D. a deed ab- 
 solute upon its face, thereby conveying to the said E. D. D. 
 said premises ; that said deed was and is in fact a mortgage 
 given by the said S. V. D. to the said E. D. D. to save the 
 said E. D. D. harmless against any loss that might or could 
 occur to him by reason of his having become surety for the 
 said S. V. D. upon a note made by him to F. E. H. ; and 
 that it was agreed and understood by and between said parties 
 at the time of the execution and delivery of said conveyance 
 that upon payment of said note by said S. V. D. the said S. 
 V. D. should thereupon recouvey said premises to plaintiff. 
 The court further finds that said note has been paid, and that 
 the conditions of their contract have been complied with, 
 and that said S. V. D. is entitled to have said deed, which is 
 in fact a mortgage, annulled and cancelled. 
 
 It is therefore ordered, adjudged, and decreed that the 
 said deed of conveyance so made by said S. V. D. to the said 
 E. D. D. for the premises more particularly described [de- 
 scription], be and the same is hereby declared a mortgage,
 
 REFORMATION, ETC., OF INSTRUMENTS. 787 
 
 and that said contract and deed be and is hereby cancelled, 
 annulled, and held for naught ; that the said S. V. D. is by 
 reason of the premises the owner of and seized in fee simple 
 of the said premises, and that he is entitled to have the same 
 transferred to his name on the grand duplicate of taxable 
 property of said county. 
 
 It is further adjudged and decreed that the recorder of 
 county, O., duly enter the cancellation of said convey- 
 ance declared to be a mortgage and the substance of this 
 decree upon the record of said mortgage deed in volume — , 
 p. — , and that the auditor of said county be authorized to 
 transfer said premises on the tax duplicate to the said S.V. D. 
 
 No. 1248. 
 
 Life Insurance Policy Cancelled of Assignment of Policy of Life 
 Insurance wherein the Assignment was made in Trust but 
 not apparent on Face of Instrument. 
 
 \Caption. ] 
 
 This day this cause came on to be heard, and the plaintiff 
 
 appearing by his attorney, and the said defendant, Life 
 
 Insurance Company, failing to appear, and this cause came 
 on to be heard upon the petition, exhibits, and testimony, 
 and was argued by counsel, and the court being fully advised 
 in the premises finds that the equity of this case is with the 
 plaintiff, and that the allegations of said petition are true. 
 
 It is therefore ordered, adjudged, and decreed by said 
 court that said paper wi iting, purporting to be an assignment 
 
 of said number — in the Insurance Company, be and 
 
 the same is hereby set aside and counted for naught, and the 
 said defendant is hereby ordered to cancel upon his book any 
 and all record of the said proposed assignment, and to restore 
 the title and right in said policy, and all its belongings, and 
 all the rights therein contained to the said J. M. M., and to 
 place him as to his said police in the same position and rights 
 as to the records and books of said defendant as he, the said 
 plaintiff, had before the writing of said proposed assignment, 
 and to cancel upon its said books and records all memoran- 
 da of said proposed assignment, and in default of said de- 
 fendant so doing as herein directed and ordered, then that 
 this decree stand for and instead of such cancellation and acts 
 herein ordered.
 
 788 JUDGMENT ENTRIES. 
 
 REPLEVIN. 
 
 {JR. S. Sees. 5814— 5831.) 
 
 No. 1249. 
 
 Entry ordering Sale of Perishable Property. 
 
 [Caption.'] 
 
 Upon motion of , and it appearing that the property 
 
 herein levied upon is of a perishable nature, and that a sale 
 thereof will be for the benefit of the parties herein, it is 
 ordered that the sheriff proceed to sell the same at public 
 auction, as upon execution, upon the following terms, to wit : 
 [state terms']. It is ordered that the sheriff hold the said 
 funds arising therefrom subject to the decision and order of 
 the court. 
 
 R. S. Sec. 5820a. 
 
 No. 1250. 
 
 Entry of Judgment against Plaintiff on Demurrer. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the demurrer to 
 the petition, and the court having heard the arguments of 
 counsel, and being fully advised, sustains said demurrer; and 
 the plaintiff not pleading further, and having failed to further 
 prosecute said action, the court finds upon the evidence ad- 
 duced by defendant that said plaintiff was not entitled to the 
 possession of said property in the petition described at the 
 commencement of this action, but that the right to the pos- 
 session thereof vested in defendant. And upon application 
 of said defendant, without the intervention of a jury, the 
 court finds upon the evidence for the defendant, and does 
 assess to the defendant damages for the right of property 
 (or, possession) the sum of $ . 
 
 It is therefore considered and adjudged by the court that 
 
 said defendant recover from the plaintiff said sum of $ , 
 
 with his costs herein to be taxed. 
 
 R. S. Sec. 5824.
 
 REPLEVIN 789 
 
 No. 1251. 
 
 Entry of Assessment of Damages by Jury after Demurrer 
 
 sustained. 
 [Caption.] 
 
 The demurrer to plaintiff's petition herein having been, 
 sustained, and the said plaintiff having failed to further 
 plead, it is ordered that the assessment of damages to the 
 defendant be referred to a jury, and thereupon came the fol- 
 lowing jury, to wit : [names], who were duly impaneled and 
 sworn according to law, and having heard the evidence ad- 
 duced touching the damages sustained by defendant herein, 
 returned their verdict into court, as follows: [copy verdict]. 
 
 It is therefore considered and ordered and adjudged by 
 the court that the defendant recover from the plaintiff the 
 amount so assessed by the verdict of said jury, to wit, the 
 sum of $ , together with his costs herein to be taxed. 
 
 R. S. Sec. 5824. 
 
 No. 1252. 
 Entry of Judgment against Defendant. 
 
 [ Caption. ] 
 
 [Proceed tenth usual entry, ante 1251, of impaneling and 
 verdict of jury.] 
 
 It is therefore considered by the court that the defendant, 
 in accordance with the verdict so rendered by the jury, is 
 entitled to the immediate possession of said property in his 
 petition claimed, and that the defendant unlawfully detains 
 the same from plaintiff. 
 
 It is therefore adjudged by the court that the plaintiff 
 
 recover from the defendant the sum of $ , the amount of 
 
 damages so awarded to him by the jury, together with his 
 costs herein expended to be taxed. 
 
 R. S. Sec. 5825. 
 
 No. 1253. 
 Entry of Finding and Judgment for Plaintiff without Jury. 
 
 [Cap/ion.] 
 
 This clay came the parties and their counsel, and a jury 
 being waived by both parties, this cause was submitted to
 
 790 JUDGMENT ENTRIES. 
 
 the court by consent of both parties upon the pleadings, ex- 
 hibits, testimony, and evidence. And the court being fully 
 advised in the premises doth find on the issues joined in favor 
 of the plaintiff, and that the plaintiff at the commencement 
 of this action was the owner and entitled to the immediate 
 possession of the goods and chattels described in the petition 
 herein, and that the defendant wrongfully detained the same 
 from the said plaintiff to the damage of the said plaintiff, 
 
 in the sum of $ . It is therefore considered and adjudged 
 
 by the court that the plaintiff, W. S. Co. , recover of the de- 
 fendants herein the said sum of $ , together with its costs 
 
 herein expended, taxed at $ , and execution is awarded 
 
 therefor. 
 
 No. 1254. 
 
 Entry Adjustable to any Finding. 
 
 [Caption.] 
 
 [Recital of proceeding or entry down to verdict, as under 
 heading "Trial by Jury," continuing} 
 
 And said jury having found a verdict upon all the issues 
 of fact for the plaintiff (or, defendant), and (where value and 
 damages were assessed) assessed the value of the property at 
 ($ ) dollars, and the damages of the (plaintiff) (de- 
 fendant) by reason of the (taking and) detention of the prop- 
 erty at dollars, it is therefore adjudged by the court (for 
 
 possession, or deliver; where delivery has not been had), that 
 the plaintiff recover from the defendant [name] the possession 
 of the [description of property sufficient to identify it], being 
 the property described in the petition herein, and that (plain- 
 tiff) (defendant) recover also of said (defendant) (plaintiff) 
 
 the sum of $ , the damages so assessed for the (taking 
 
 and) detention thereof, and his costs herein expended to be 
 taxed. 
 
 (If property be not delivered to plaintiff) that the plaintiff 
 
 recover from defendant the sum ($ ) dollars, the 
 
 value thereof, with interest from , 18 — , with his costs, 
 
 etc. 
 
 (If property be in the hands of sheriff) And it is further 
 ordered that the sheriff deliver said property to said plaintiff. 
 
 ( Or, if property goes to one having it in his possession, 
 the following:) and the property having been into the pos- 
 session of [proceeding with fitiding as above].
 
 SALE OF ENTAILED ESTATES. 79 1 
 
 It is therefore adjudged that the plaintiff (or, defendant) 
 have and retain possession of the personal property described 
 in the petition, and also recover dollars damages, to- 
 gether with his costs. 
 
 R. S. Sees. 5825, 5826. Kinkead's Code Pleading, Sees. 1078-1093. 
 
 SALE OF ENTAILED ESTATES. 
 
 See Churches. 
 
 (/?. 5. Sees. 5803—5813.) 
 
 No. 1255. 
 
 Entry ordering Sale of Entailed Estate. 
 
 [Caption."] 
 
 This cause coming on to be heard upon the petition here- 
 in, and the court being satisfied that all the parties interested 
 herein have been made parties hereto, and have been duly 
 served with process, and that plaintiff has an interest in said 
 premises in the petition described and as therein alleged, and 
 it appearing to the court by satisfactory proof that a sale of 
 said premises will be beneficial to the plaintiff, and that such 
 sale will do no substantial injury to the heirs in tail, the 
 defendants, it is ordered by the court that said premises in 
 the petition described be sold free from the entailment, limi- 
 tation (or, condition) by the sheriff of said county at public 
 auction in the same manner as execution sales are made, and 
 that he report his proceedings to this court. 
 
 R. S. Sec. 5805. If the parties consent, that feature may be added to 
 the entry. R. S. Sec. 5806. 
 
 No. 1256. 
 
 Entry of Confirmation. 
 [Caption. I 
 
 This cause coming on further to be heard upon the return 
 of sale by the sheriff, and the motion to confirm the same, 
 and the court having carefully examined said proceedings of 
 said sheriff, and being satisfied that the sale so reported by 
 
 51
 
 792 JUDGMENT ENTRIES. 
 
 the sheriff to has been in all respects regular and in con- 
 formity to the law and order of this court, the same is hereby 
 approved and confirmed. 
 
 It is therefore ordered that the said sheriff execute and 
 
 deliver to the said , purchaser, a good and sufficient deed 
 
 for said premises from the entailment set forth in the petition 
 herein. It is further ordered that the said sheriff pay the 
 costs of this proceeding out of the proceeds of said sale, and 
 that [then follow with an order of investment as provided for 
 in R. S. Sec. 5809]. 
 
 SETTLEMENT OR COMPROMISE. 
 
 No. 1257. 
 Settlement of Cause by Payment of a Specific Sum. 
 
 [Caption.] 
 
 This day came the parties to this cause, and settled the 
 matters in controversy by the plaintiff offering to accept 
 and the defendant offering to pay to plaintiff the sum of 
 
 $ , in full satisfaction of his claim herein sued upon as 
 
 against all parties to this action, which said sum is now paid ; 
 and it is also further agreed that each party, plaintiff and 
 defendant, pay one half of the costs herein. Whereupon it 
 is ordered and adjudged by the court that this case stand 
 settled upon the terms aforesaid, and that the plaintiff pay 
 to the clerk of this court one half of the costs herein taxed, 
 
 amounting to $ , and that the defendant pay the other 
 
 half of the costs herein taxed, and amounting to $ , and 
 
 that a complete record of the papers and pleadings herein be 
 omitted by the clerk. 
 
 SPECIFIC PERFORMANCE. 
 
 No. 1258. 
 
 Entry Decreeing Specific Performance of Contracts. 
 
 [Caption.] 
 
 This cause was heard upon the pleadings and evidence, 
 was argued by counsel, and submitted to the court, and upon
 
 STOCK — STOCKHOLDER'S LIABILITY. 793 
 
 due consideration thereof the court finds on the issues joined 
 in favor of the plaintiff, and that the plaintiff is entitled to 
 the specific performance of his contracts with the defendants, 
 as set forth in the petition and duly approved herein, and 
 that the agreements in the petition mentioned can be fully 
 performed and executed. 
 
 It is therefore considered, ordered, adjudged, and decreed 
 by the court that the plaintiff within three (3) days execute 
 and deliver to the clerk of this court for the defendants a 
 proper deed of assignment to the defendants of plaintiff's 
 interest in the patent of the United States, No. , men- 
 tioned in the petition, for the said real estate, and plaintiff 
 may comply with this decree by deposit with the clerk the 
 deed heretofore executed, and tender to the defendants, or by 
 depositing one of same purport executed after this decree is 
 
 entered, and that the defendants and shall, within 
 
 three (3) days, execute and deliver to the plaintiff W. H. R. 
 a good and sufficient deed, with covenants of general war- 
 ranty, conveying to said W. H. R. the premises described 
 
 in the petition, to wit, , and in default thereof that this 
 
 judgment and decree have the operation and effect of such 
 deed, and that the clerk have so much thereof as will show 
 the transfer of title of said premises to said W. H. R. 
 entered on the record in the office of the recorder of this 
 county. 
 
 NOTE. — The entry must require the plaintiff to comply with his part 
 of the agreement as well as the defendant. Owens v. Hall, 13 O. S. 571. 
 
 STOCK— STOCKHOLDER'S LIABILITY. 
 
 For other Entries connected with Master's Report see Trial 
 by Master Commissioner. 
 
 No. 1259. 
 
 Stockholder's Liability— Report Upon by Master Commis- 
 sioners — Exceptions Thereto and Approval. 
 
 \Caption. I 
 
 This cause now coming on for hearing upon the report 
 of the master commissioners, to whom the same is heretofore 
 referred, and the exceptions filed thereto by plaintiffs, the
 
 794 JUDGMENT ENTRIES. 
 
 court, upon careful consideration thereof, finds that the 
 exceptions herein filed to the report of the master commis- 
 sioners are not well taken, and therefore overrules the same ; 
 and the report of all matters and findings therein are hereby 
 approved and confirmed as the findings of the court, and 
 upon said report and the testimony offered, the court finds 
 
 that the amount of the indebtedness of the said the , a 
 
 corporation under the laws of Ohio, over and above its assets, 
 
 is $ , which includes a counsel fee of $ to , and 
 
 the master fee herein, including his stenographer, of $ , 
 
 which sum the court allows in favor of said counsel and said 
 master commissioner. 
 
 And the court further finds, from the evidence and report 
 of said master commissioner, that each of the said defendants 
 hereinafter named were, at the time the several liabilities 
 
 accrued, stockholders of the said the company, in the 
 
 amounts found and set opposite their names respectively in 
 the columns of stock in the schedule set out below. 
 
 And the court further finds, from the report above named 
 and the evidence, that said corporation is insolvent, and that 
 to pay the liability aforesaid it will require an assessment on 
 the amount of stock held by each and all of the defendants, 
 stockholders, who are solvent and within the jurisdiction of 
 the court, of the sums hereby found and set opposite their 
 names respectively in the column "judgment" in the 
 following schedule, viz. : 
 
 $ . Per Share. Stock. Judgment. 
 
 J. W. 
 
 w. s. 
 
 M. R. 
 
 It is therefore ordered and adjudged by the court that 
 each of the stockholders, defendants named in the above 
 
 schedule, pay, on or before the day of , 18 — , into 
 
 the hands of V. L., the receiver heretofore appointed herein, 
 and now for the purpose of receiving and distributing the 
 money to be paid in pursuance of this order, or into the 
 hands of the clerk of this court (to be by him distributed to 
 the creditors, etc.), the sums above specified, set opposite his 
 name in the judgment column of the schedule, together with 
 
 interest from the day of , 18 — , and in default 
 
 thereof that execution issue therefor. 
 
 It is further ordered by the court that out of the money 
 so to be collected the receiver pay first the costs of this case, 
 
 taxed at $ , including the fee to the attorneys and master 
 
 commissioner in full, and that he pay them the money re- 
 ceived by him to the several parties named below, according
 
 STOCK — stockholder's liability. 795 
 
 to the sum set opposite their names respectively, and to 
 which they are herein found entitled, to wit: [schedule of 
 debts. ] 
 
 No. 1260. 
 
 Order assessing the Statutory Liability of Stockholders. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the ques- 
 tion of the statutory liability of the stockholders of the de- 
 fendant, the C. W. Co., for an amount equal to an amount 
 of stock held by each stockholder, and the court having heard 
 the evidence and being fully advised in the premises, do find 
 that it is necessary for each of said stockholders of said de- 
 fendant, the C. W. Co. , to pay amounts equal to amount of 
 stock held by each respectively, in order to pay the creditors 
 of the said the C. W. Co., and that said amount when so paid 
 by said stockholders will not be sufficient to pay in full all of 
 the creditors of the C. W. Co. 
 
 It is therefore ordered, adjudged, and decreed by the court 
 that the following named stockholders, whom the court here 
 finds to have been duly served with summons, or to have 
 entered their appearance in this case, pay to P. H. B., the 
 receiver herein, within thirty (30) days from this date, to 
 wit, the — day of , 18 — , an amount equal to the orig- 
 inal stock held by them respectively, being the statutory 
 liability (not including the stock created by stock dividends 
 as to which all questions are reserved for the further consider- 
 ation and order of the court), with interest on said amounts 
 
 from the — day of , 18 — , and in default of such pav- 
 
 ments that execution issue therefor as upon said judgments 
 at law, namely : 
 
 Na»i<\ Original Slock. Stat 11 lory Liability. 
 
 G. B. ' % $ 
 
 G. D. $ $ 
 
 And it is further ordered by the court that said receiver 
 credit such of said stockholders as have paid — percent, or 
 any portion of their stock liability to him under a former 
 order of this court as of the date or dates at which such pay- 
 ments were made. And it appearing to the court that < ). S., 
 J. A. S., stockholders of the defendant, the C. W. Co., have 
 not been served with process, it is ordered by the court that 
 summons issue to the said parties and service be personally 
 made in pursuance of the statute in such case made and pro- 
 vided.
 
 796 JUDGMENT ENTRIES. 
 
 SURETIES— RIGHTS AND REMEDIES OF. 
 
 (J?. S. Sees. 5419, 5832 tf/j*^.) 
 
 No. 1261. 
 
 Entry Judgment on Cross Complaint of Surety. 
 
 [Caption.] 
 
 And the court having heard the evidence, and being fully 
 advised in the premises, finds for the plaintiff; that the alle- 
 gations of the complaint are true, and that there is due from 
 the defendants to the plaintiff the sum of dollars. 
 
 The court further finds that C. D. is the principal, that 
 the defendant E. F. executed the note sued on as the surety 
 of the defendant C. D., and that the property of said C. D. 
 should be first levied upon and exhausted before levying on 
 the property of the said E. F. 
 
 It is therefore considered and adjudged by the court that 
 the plaintiff recover of and from the defendants the sum of 
 
 dollars, together with his costs and charges in this cause 
 
 laid out and expended, taxed at dollars. 
 
 It is further considered and adjudged by the court that 
 execution be first levied upon the property of the said C. D. , 
 and that his property subject to execution be first exhausted 
 before levying upon the property of the said E. F. (and that 
 there shall be no stay of execution unless the bail for the stay 
 of execution will undertake specially to pay the judgment in 
 case the amount thereof can not be levied of the said C. D. ). 
 
 R. S. Sec. 5419. Gatch v. Simpkins, 25 O. S. 89. 
 
 No. 1262. 
 
 Entry of Judgment relieving Surety after Notice by him to 
 Prosecute, and Failure so to do by Creditor. 
 
 [Caption.] 
 
 {Continuing after usual judgment.] And it appearing to 
 the court that the defendant A. C. is a surety upon the obli-
 
 VACATION, ETC., OF ORDERS AND JUDGMENTS. 797 
 
 gation herein for the defendant T. S., and that said defendant 
 
 A. C. did, on the — day of , serve notice in writing upon 
 
 the plaintiff herein to commence an action against the said 
 defendant T. S., who is the principal aforesaid, and it further 
 appearing that said plaintiff failed and neglected to comply 
 with the request of said defendant A. C. to so commence said 
 action against said defendant T. E. and to prosecute the same 
 with due diligence, the court finds therefore that the said 
 plaintiff has forfeited his right by reason of his said neglect 
 to demand and receive from the said A. C, as such surety,. 
 the amount due upon said obligation, by reason whereof the 
 said defendant A. C. is wholly released therefrom. 
 
 It is therefore ordered that the said A. C. be and he is 
 hereby released from said obligation and discharged as a party 
 defendant in this case. 
 
 R. S. Sec. 5833. 
 
 TAXES AND ASSESSMENTS. 
 
 See Assessments, Injunction. 
 
 VACATION, MODIFICATION OR OPENING 
 OF ORDERS AND JUDGMENTS- 
 RELIEF AFTER JUDGMENT. 
 
 (£. S. Sees. 5354— 5365.) 
 
 No. 1263. 
 
 Setting Judgment aside for Fraud— Restraining Plaintiff therein 
 from Collecting Same. 
 [ ( 'aption. I 
 
 This day this cause came on for hearing upon the petition 
 and amended petition of the plaintiff, answer of the defendant 
 exhibits, and testimony, and was argued by counsel. On 
 ideration whereof the court, after hearing all the proofs 
 and allegations of the parties, and being fully advised in the 
 premises, find that the equity of the case is with the plaintiff;.
 
 798 JUDGMENT ENTRIES. 
 
 that all the allegations of plaintiff's petition and amended 
 petition are true, and that the allegations of the defendant's 
 answer contrary thereto are untrue, and that the plaintiff is en- 
 titled in equity to the relief prayed for in her said petition and 
 amended petition, and that the injunction heretofore allowed 
 in this action ought to be made perpetual ; and the court also 
 finds that the judgment of the court of common pleas of this 
 county, in the case of H. T. against I. S., in error, and being 
 
 case No. , and in said petition described, was obtained 
 
 against the said 'H. T. by fraud of the said defendant I. S., 
 and that the same is fraudulent and should in equity be wholly 
 set aside and held for naught. It is therefore by the court 
 ordered, adjudged, and decreed that the said judgment of 
 
 No. be and the same is hereby wholly annulled, set aside, 
 
 and held for naught, and that said I. S. pay the costs of the 
 
 same, taxed at $ , and execution is hereby awarded against 
 
 said I. S. therefor, and that he be and is hereby perpetu- 
 ally restrained and enjoined from collecting the same from 
 this plaintiff. And it is also by the court ordered, adjudged, 
 and decreed that the said I. S. be and hereby is perpetually 
 restrained and enjoined from collecting the same from this 
 plaintiff, and it is also by the court ordered adjudged, and 
 decreed that the said I. S. be and is hereby perpetually re- 
 strained and enjoined from further prosecuting his said action 
 
 before B. M. G., J. P. of township, county, in 
 
 said petition and amended petition of plaintiff mentioned 
 and described, or from in any manner enforcing or collecting 
 the same, or of attempting so to do, and that the injunction 
 heretofore allowed in this action be and the same is hereby 
 made perpetual. 
 
 It is also ordered and adjudged that the plaintiff recover of 
 
 the defendant her costs herein expended, taxed at $ , and 
 
 that the defendant pay his own costs, taxed at $ , and 
 
 execution is awarded. 
 
 And thereupon the defendant gave notice of his intention 
 to appeal this cause to the circuit court, and the court being 
 of opinion that this is an appealable case do allow the same, 
 and fix the amount of the bond for such appeal at $ . 
 
 Note.— The court may modify its own judgment or order after the 
 term when made, for fraud practiced by the successful party. R. S. 5334. 
 See 2 Kinkead's Code Pleading, Sec. 1217.
 
 VACATION, ETC., OF ORDERS AND JUDGMENTS. 799 
 
 No. 1264. 
 
 Entry setting aside Judgment on Motion — Granting Defendant 
 Permission to Answer. 
 [ Caption. ] 
 
 This case came on for hearing upon the motion of said 
 J. B. Y. to set aside and vacate the judgment heretofore ren- 
 dered in this case, and upon the evidence, and was argued 
 by counsel ; and the court being fully advised in the premises 
 finds that said motion should be sustained, and does sustain 
 the same; and the court further finds that said J. B. Y. is 
 entitled to have said judgment set aside and vacated against 
 him ; and the court further finds that said defendant, J. B. Y., 
 has a valid defense to set up against the cause of action set 
 forth in the petition herein; and it is therefore ordered that 
 said judgment be and the same hereby is set aside and vacated, 
 as against him, and a new trial is granted, and by consent 
 leave is given said J. B. Y. to file his said answer herein 
 during this term of court. 
 
 R. S. Sec. 5354. 
 
 No. 1265. 
 
 Order setting aside Judgment taken by Confession to let in 
 
 Defense. 
 
 [ Caption. ] 
 
 This cause now coming on for hearing upon the petition 
 of the plaintiff, J. \V., to vacate the judgment heretofore had 
 at former term of this court rendered, and in what is known 
 
 as case No. on the records of this court, wherein the 
 
 said W. H. I., then in full life, was plaintiff, and the said 
 J. W. and others were defendants, the answer of said defend- 
 ant A. <'.. I., executor, and the reply of the plaintiff thereto, 
 and the evidence, and the court finds that the judgment 
 rendered in said cause was taken on an alleged promissory 
 . to which was attached an alleged power and warrant of 
 attorney; that said J. \\'., defendant in said case, had no 
 notice of the time and place of the application for and the 
 taking of said judgment; that said judgment was taken for a 
 greater sum than was due and owing from the makers of the 
 said alleged note to the said VY. II. I. at the time of taking 
 of said judgment; that said judgment was taken and rendered 
 
 in said case No. upon the presentation of the said \V. 
 
 H. I. by and through his attorney therein to the court, and
 
 800 judgment entries. 
 
 the bringing in in evidence of said alleged note and warrant 
 of attorney in support of the averments and facts stated in the 
 petition in said case; that there is evidence before this court 
 tending to show that said alleged promissory note and warrant 
 of attorney thereto attached was not signed, executed, and 
 delivered by said J. W., and was not his note or obligation, 
 and that the same was as to the said J. W. a forge^, and the 
 court finds that the said J. W. has a valid defense to the 
 merits of said case, and that said judgment therein should be 
 opened up and vacated for the purpose of allowing said J. W. 
 to make said defense. 
 
 It is therefore adjudged that the said judgment in the said 
 case No. be and the same is hereby opened up and va- 
 cated, and a new trial of the case is granted to the said J. W. 
 All liens on the real estate of the said J. W. created and ob- 
 tained heretofore in favor of the said W. H. L, or his repre- 
 sentative, by rendition of the said judgment are hereby pre- 
 served and suspended until the final trial of and judgment in 
 said case No. in this court. 
 
 And the defendant herein, A. G. I., executor, etc., wishing 
 to take an appeal from the said judgment to the circuit court 
 of said county, and it appearing to the court that he has not 
 given bond as such executor in the probate court of said 
 county, he is required to give bond in this appeal case, and 
 the bond is fixed at $ . 
 
 R. S. Sec. 5354. 
 
 No. 1266. 
 Entry setting Time for Hearing of Motion to open Judgment. 
 \_Caption.~\ 
 
 Now comes the defendant, C. D. , and files his application 
 
 to open the judgment in this cause rendered , 18 — , and 
 
 also his affidavit showing that he had no actual notice of the 
 pendency of said action in time to appear in court and object 
 to said judgment, which application and affidavit are in the 
 following words, to wit : \here insert\ ; and also files his an- 
 swer to the complaint in said cause, which answer is in the 
 following words, to wit: \Jiere insert\. And thereupon the 
 defendant moves the court to fix the time for hearing said 
 application and the notice to be given the plaintiff. 
 
 It is therefore ordered by the court that said application 
 be and the same is hereby set down for a hearing on the — 
 day of , 18 — , at — o'clock — M., and that the defend-
 
 VACATION, ETC., OF ORDERS AND JUDGMENTS. Soi 
 
 ant notify the plaintiff thereof by personal service of a written 
 notice of the time and place of said hearing — days before 
 the time fixed therefor. 
 
 No. 1267. 
 
 Entry setting aside Judgment at Instance of subsequent bona 
 fide Purchaser or Mortgagee — Discharging Premises from 
 Lien. 
 
 [Caption.] 
 
 Now come the parties, and the court being advised herein, 
 it is ordered that the judgment (confessed by Y. Z. in favor 
 
 of A. B., and entered on the — day of , 18 — ) be vacated 
 
 and set aside as to the said M. N. (the moving party), and 
 as to the real estate hereinafter described, and that the exe- 
 cution issued on said judgment and all proceedings had under 
 it be set aside so far as they relate to or affect the said real 
 estate, and that the said real estate is hereby made and de- 
 clared to be freed and discharged of and from the apparent 
 lien of said judgment, and of and from any and every and all 
 proceedings whatsoever under and by virtue of the same. 
 The premises above referred to are bounded and described as. 
 f ol lows: [description] . 
 
 Note.— From Kendall v. Hodgins, 1 Bosw. 659; S. C. 7, Abb. Pr. 309. 
 
 No. 1268. 
 
 Entry Granting or Denying Motion to Open Default — 
 Short Form. 
 
 [Cap//'"/;.] 
 
 Now come the parties, and after having considered the 
 evidence touching the defendant's motion to set aside the 
 judgment and default herein : 
 
 It is ordered that the said motion be denied, with 
 
 dollars costs [or, be granted, and the said judgment (describ- 
 ing it) is hereby set aside and the default opened, and the 
 judgment entered thereon and all proceedings founded thereon 
 be vacated as to the defendant C. I), [naming which, if not 
 all the defendants), and said defendant let in to defend the 
 
 action [or, t<> file his proposed answer herein).] 
 
 [If terms are i»if>,>\, ?d, add] This order is made upon con- 
 dition that [statingitas in tlu jor>>i\ below, and add] Ordered
 
 802 JUDGMENT ENTRIES. 
 
 further that in default of compliance with any of the terms 
 
 of this order the defendant's motion be denied, with $ 
 
 costs to plaintiff. 
 
 No. 1269. 
 Entry Opening Judgment and allowing Defense to be Made. 
 
 [Cap/ ion. ] 
 
 This cause coming on for hearing upon the motion of the 
 defendant herein to open up the judgment rendered herein 
 
 against him on the — day of , 18 — , and it appearing 
 
 to the court due notice hereof was served on the plaintiff on 
 the — day of , 18 — . 
 
 [Or, Come the parties, and the motion of the defendant 
 for an order opening the judgment rendered against him in 
 
 this cause on the — day of , 18 — , coming on for a 
 
 hearing. ] 
 
 And it appearing to the court that the only notice given 
 of the pendency of said action was by publication in a news- 
 paper, and that the defendant had no actual notice thereof in 
 time to appear in court and object to said judgment, it is 
 therefore considered and adjudged by the court that the judg- 
 ment rendered in this action on the — day of , 18 — , be 
 
 and the same is hereby opened and vacated, and that the 
 defendant be and he hereby is allowed to defend said action. 
 
 It is further ordered that the defendant pay the costs oc- 
 casioned by this application. 
 
 R. S. Sec. 5355. 
 
 No. 1270. 
 
 Entry Amending Judgment. 
 
 [Caption.^ 
 
 Ordered and adjudged that the judgment herein (and the 
 findings on which it was entered) be and the same are hereby 
 amended {nunc pro tunc) by striking out (etc.), and by insert- 
 ing (etc.), or be amended in the following respects [enumer- 
 ating them; see other forms below\. 
 
 That the clerk of this court correct the judgment record 
 (and the docket of the judgment) in this action to conform 
 herewith, and make a note of this order at the bottom of said 
 judgment. 
 
 That C. D. pay to A. B., or his attorney, dollars, 
 
 costs of this motion.
 
 VACATION, ETC. , OF ORDERS AND JUDGMENTS. 803 
 
 [Or may impose costs on moving party, thus:] This motion 
 
 is granted on condition of payment by C. D. to A. B. of $ 
 
 costs within from the date of this order. 
 
 [ To insert a bill of particulars in complaint. ] That the 
 plaintiff be and hereby is required to file the bill of particulars 
 of his claim in this action furnished by him, and the clerk 
 is hereby directed to annex said bill of particulars to and 
 make it part of the complaint in this action. 
 
 [To reduce excessive recovery.] That the said judgment 
 in this action in favor of the plaintiff and against the defend- 
 ants for the sum of $ , entered on the — day of , 
 
 ;[8 — , be and the same is hereby directed to be corrected by 
 
 reducing the amount thereof to the sum of $ ; and the 
 
 clerk of this court is hereby directed to correct the docket of 
 said judgment accordingly. 
 
 [ To insert costs in judgment and perfect judgment nunc 
 pro tunc, notwithstanding lapse of years. .] That the amount 
 
 of costs and disbursements as herein taxed, to wit, $ , be 
 
 inserted in the judgment herein, and that said judgment be 
 
 perfected and said judgment docketed in said county of , 
 
 as of the date of , 18 — , and that the plaintiff have leave 
 
 to issue execution in this action for the collection of the costs 
 and disbursements entered in said judgment and the amount 
 of alimony granted in said decree, with interest on each in- 
 stallment thereof from the day when the same became due 
 to the time of the issuing of said execution. 
 
 No. 1271. 
 Vacation of Judgment of Dismissal— Reinstating Cause. 
 
 [c option.] 
 
 This day this cause came on for hearing upon the motion 
 of the plaintiff to set aside the order and judgment of dismis- 
 sal heretofore entered by the court herein, and the court being 
 fully advised in the premises does hereby order that the said 
 oidcr of dismissal heretofore entered herein, to wit, on the 
 
 day of . 18 — , be and the same is hereby set aside and 
 
 held for naught; and it is also further ordered that said 
 above-entitled cause be and the same is hereby reinstated up- 
 on the dockets of this court.
 
 ■804 JUDGMENT ENTRIES. 
 
 No. 1272. 
 
 Judgment of Dismissal set aside, and Cause Reinstated by- 
 Consent. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard on the motion of 
 the plaintiff to set aside the judgment entered herein on the 
 
 — day of ', 18 — , dismissing this case at the plaintiff's 
 
 cost, without prejudice to a new action, was argued by counsel 
 and submitted to the court. 
 
 On consideration whereof, and with the consent of the 
 defendants, said order and judgment is vacated, set aside, 
 and held for naught. 
 
 No. 1273. 
 
 Order to Loan Money Rescinded. 
 
 [Caption.'] 
 
 This day this cause came on for hearing on the motion of 
 the plaintiffs and all the other judgment creditors of the 
 defendants interested in the funds realized on the orders of 
 sale issued in this case joining in said motion to vacate, set 
 aside, and hold for naught the order of the court heretofore 
 made in this cause, on the first day of , 18 — , authoriz- 
 ing and directing the clerk of this court to loan said funds 
 upon conditions therein named, was argued by counsel, and 
 the court upon consideration thereof doth grant said motion. 
 
 It is therefore ordered by the court that said order author- 
 izing and directing the clerk of this court to loan the said 
 funds now in his hands be and the same hereby is rescinded, 
 vacated, and held for naught. 
 
 No. 1274. 
 Entry Correcting Order and Judgment. 
 
 [Caption.] 
 
 It being shown to the court that the entry of the judg- 
 ment herein rendered on the — day of , 18 — , as the 
 
 same was entered upon the journal, is imperfect and does not 
 fully express the order of the court, it is hereby ordered that 
 said entry of said judgment be and the same is hereby set 
 aside. The said finding and judgment of the court were and
 
 WILLS. 805 
 
 are as follows: [give entry as corrected\ It is ordered that 
 
 this order and judgment be entered as of the — day of , 
 
 18 — , and that it shall stand as the order and judgment of 
 the court of that date. 
 
 WILLS. 
 
 Nature of Issue to be Made by the Journal Entry in the Contest of Will, 
 as Reflecting Upon the Entry to be Drawn. — The statute has prescribed what 
 the issue shall be in a contest of a will, and its provisions must, therefore, 
 be followed, and the issue to be so made up must be in exact accord with 
 that prescribed by the statute (Green v. Green, 5 Ohio 279). 
 
 An answer in proceedings to contest the validity of a will is, in reality, 
 unnecessary to form the issues to be tried, nor to answer, change, vary, 
 limit, or confine the issues, which the statute requires (Dew v. Reid, 52 
 O. S. 523). 
 
 The provision of the statute prescribing the issue in such cases, and 
 requiring that it be made up and tried in conformity with the statute, is 
 imperative in its terms, and was deliberately made so, with a view to pre- 
 vent a disposition of cases for the contest of wills upon the mere consent 
 or acquiescence of parties, in any form (Walker v. Walker, 14 Ohio St. 157 ; 
 Dew v. Reid, 52 Ohio St. 524). 
 
 The character of evidence which may be introduced in such cases is 
 not to be confined to any pleadings which may be filed (Haynes v. Haynes, 33 
 Ohio St. 598), the rule being that so tar as this form of action is, by reason 
 of its being governed by special statutory regulations, inconsistent with 
 the rules of pleading and procedure under the code, the latter are inappli- 
 cable Dew v. Reid, 52 Ohio St. 526). 
 
 And while the issue may be made up, either by the pleadings, or by 
 an order entered upon the journal of the court, it must be the broad issue 
 required by the statute, whether the instrument produced is the valid will 
 of the testator (Whittaker's Code, Sec 7. 5861) ; and the proof may be com- 
 mensurate with the issiu-, any evidence tending to prove the validity or 
 invalidity, for any reasons whatever, being admissible. The scope of the 
 inquiry on the contest may be as broad as that for the admission of the 
 will to probate | Dew v. Reid, 52 Ohio St. 526). 
 
 The importance of the journal entry to be drawn in such cases is thus 
 made apparent. 
 
 No. 1276. 
 Ordering Jury Impaneled to try Validity of Will. 
 
 \Capli<>)i. j 
 
 It is this day ordered by the court thatajurybe impaneled 
 according to law to try the issues in the above-entitled action 
 brought to contest the validity of the instrument purporting 
 to be the last will and testament of U. R., deceased. 
 
 It is also further ordered by the court that an issue be and 
 the same is hereby made according to law, whether the writing
 
 806 JUDGMENT ENTRIES. 
 
 produced in the above action is the last will (or, codicil) of 
 the testator, the said U. R., deceased, or not. 
 
 Code, Sec. 5861 ; Kinkead's Code Pleading, Sec. 1207. 
 
 [Or a shorter form, as given in Dew v. Reid.] 
 Hattie E. Dew and others ^ 
 
 8139 vs. > Civil Action. 
 
 Thomas Reid and others. J 
 
 Ordered by Jhe court that a jury be impaneled to try the 
 issues whether the paper writing produced, purporting to be 
 the last will and testament of U. R. , deceased, is or is not the 
 valid last will and testament of the said deceased. 
 
 No. 1277. 
 Entry upon Rendition of Verdict in Contest of Will. 
 
 Hattie E. Dew and others, 1 
 
 vs. > Verdict. 
 
 Thomas Reid and others. J 
 
 The jury impaneled and sworn in this action on the issues 
 joined between the parties do find that the paper writing here 
 shown to us and admitted to probate in the probate court of 
 county, state of Ohio, on the — day of , 18 — , pur- 
 porting to be the last will and testament of U. R., deceased, 
 is the valid last will and testament of said U. R., deceased, 
 (signed) W. H. W., E. H. C, H. S., J. M., W. C. S., A. C, 
 A. B. S., S. P. M., H. J. H., L. C, J. W., and J. H. C., 
 jury. And thereupon plaintiff by her attorneys gave notice 
 of her intention to move herein to set aside said verdict, and 
 for a new trial. Entry of , 18 — . 
 
 Code Sees. 5858 to 5866. 
 
 No. 1278. 
 
 Entry Overruling Motion for New Trial and Judgment upon 
 Verdict establishing Will in Action to Contest. 
 
 [Caption. ] 
 
 And now again came said parties by their attorneys, and 
 the jury impaneled and sworn in this action having on a 
 former day of this term rendered a verdict for the defendants, 
 finding that said paper writing purporting to be the last will 
 aad testament of U. R., and admitted to probate in the said 
 probate court of this county on the — day of , 18 — , is.
 
 WILLS. 807 
 
 the valid last will and testament of said U. R., deceased. 
 And the plaintiff having filed her motion to set aside said 
 verdict, and for a new trial, and the same coming on now to 
 be heard after argument of counsel, the court on consideration 
 overrules said motion. And therefore, in accordance with 
 said verdict, it is adjudged by the court that said paper writ- 
 ing produced in this case and offered in evidence, purporting 
 to be the last will and testament of said U. R., deceased, is 
 his valid last will and testament. To which ruling and. 
 judgment, and particularly the said order and judgment over- 
 ruling said motion to set aside said verdict, and for a new 
 trial, said plaintiff excepts, and on motion of plaintiff leave 
 is granted for fifty days after the entry of this judgment to 
 file her bill of exceptions herein, and the clerk is ordered 
 to keep the journal of this court open for said time for the 
 purpose of allowing the order and entry of filing said bill of 
 exceptions to be entered thereon. 
 
 Ex. Dew v. Reid, 52 O. S. 520. Code Sees. 5858 to 5866. 
 
 No. 1279. 
 
 Entry Construing Will. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the plead- 
 ings and the evidence, in so far as they relate to the construc- 
 tion to be placed upon said will, and was argued by counsel ; 
 on consideration whereof the court, finding that all of the 
 defendants have been duly served with notice and are before 
 the court, at the request of counsel for W. A. P. and M. A. 1 '. . 
 finds the facts to be as follows : 
 
 That said will was executed by said testator on the — 
 
 day of , A. D. 18 — ; that said testator died on the — 
 
 day of , A. D. 18 — , his wife having died prior thereto 
 
 on, to wit. — day of , 18 — ; that I. P., one of the devisees 
 
 under said will, was living at the time of the execution of 
 
 said will, and died in , 18 — ; that the said I. P., at the 
 
 time- of the execution of said will, had living tour children, 
 to wit, [names] ; that the said !•'.. \V. died intestate on the — 
 
 day of , and tin- said X. K. C. died intestate on the — 
 
 day of , and that both of them died before the death of 
 
 I. and said testator, etc. 
 
 And the court upon said facts, including the 8th item of 
 said will, finds the law to be as follows: [state finding.] 
 
 52
 
 8o8 JUDGMENT ENTRIES. 
 
 To which finding of law and this application thereof to 
 the said finding of facts the said W. A. P. excepts. 
 It is therefore ordered, adjudged, and decreed: 
 
 No. 1280. 
 Entry Construing Will and Quieting Title. 
 
 [Caption.'] 
 
 On motion of counsel for plaintiff this cause is placed 
 upon the trial docket of the present term of this court. 
 
 Thereupon this cause came on to be heard upon the peti- 
 tion and answer of J. J. S., guardian ad litem for infant de- 
 fendants G. L. A. and E. M. A., heretofore by the court for 
 that purpose appointed, the said defendant N. K. being in 
 default for answer, demurrer, or other pleading, thereupon 
 came the plaintiff and said J. J. S., guardian ad litem, and 
 this day was heard and submitted to the court upon the plead- 
 ings, exhibits, and testimony adduced, and argument of 
 counsel. Upon consideration whereof, and the court being 
 fully advised in the premises finds that all the defendants 
 have been duly served with summons, or have voluntarily 
 entered their appearance herein, and that each and all the 
 parties are properly before the court, and that the allegations, 
 matters, and things in said petition set forth are each and all 
 true as therein averred, and that the plaintiff is entitled to 
 the relief as prayed for in her petition, and the court finds 
 further that the correct and lawful construction of said will 
 
 of said h. A., deceased, is, ; and the court finds that 
 
 there was devised to the plaintiff J. E. K. (formerly J. E. A., 
 and named E. A. in said will) the real estate in the petition 
 described, in fee simple absolute, and that no claim, demand, 
 right, title, interest, or estate was thereby devised to any or 
 either of the defendants ; that at the time of the bringing of 
 this action the said plaintiff was and is now in possession of 
 said real estate; that she had and has the legal estate in fee 
 simple absolute thereto; that neither of the defendants, nor 
 any one of them, has any claim, demand, right, title, interest, 
 or estate in or entitled to the possession of the same, or any part 
 thereof, and that the plaintiff ought to have her title quieted 
 as against each and every one of the defendants as prayed 
 for in the petition. 
 
 It is therefore ordered, adjudged, and decreed that the 
 title and possession of the said J. E. K. to all and singular 
 the premises in the petition described be and the same is
 
 ERROR — PROCEEDINGS IN. 809 
 
 hereby quieted as against the defendants, each and every one, 
 and all persons claiming under them, or either of them. 
 
 And the court finds and adjudges further that the said M. 
 K. has no other interest in said premises except a contingent 
 right of dower therein as the husband of the plaintiff. 
 
 2 Kinkead's Code Pleading, Sec. 1213. R. S. Sec. 6202. 
 
 ERROR— PROCEEDINGS IN. 
 
 NOTE. — Attorneys are not concerned with the entries in the Supreme 
 Court as they are mostly drawn by the clerk, except in special cases, where 
 the judge delivering the opinion, or some one of the judges specially as- 
 signed, draws the same. There is, of course, a similarity in the entries in 
 the Supreme and Circuit Courts, and in the latter counsel must draft the 
 entries. 
 
 No. 1281. 
 Entry Granting Leave to File Petition in Error. 
 
 {Caption. ] 
 
 This day this matter came on to be heard upon the appli- 
 cation of C. L. W. for leave to file a petition in error herein, 
 and leave being granted for that purpose by the court, said 
 petition was forthwith filed, and thereupon upon his applica- 
 tion it is ordered that the judgment and sentence of justice 
 court be suspended pending the final determination of this 
 proceeding in error, upon the plaintiff in error giving a bond 
 conditioned according to law, with sureties to the satisfaction 
 of the clerk of this court, and in the penal sum of $ . 
 
 No. 1282. 
 
 Entry in Supreme Court staying Execution of Judgment in 
 Circuit Court until Cause Disposed of. 
 
 [ Caption. ] 
 
 Upon the motion of plaintiffs in error herein it is ordered 
 
 that execution of the judgment of the circuit court of 
 
 county, Ohio, for the reversal of which the petition in error 
 in this case was filed, be staved until the final hearing of the 
 cause in this court upon plaintiffs in error giving bond to the 
 said defendants in error, \naming thc»i\ said bond to be ex-
 
 3iO JUDGMENT ENTRIES. 
 
 ecuted on the part of the plaintiffs in error with sufficient 
 
 sureties in the sum of $ , to the satisfaction and. approval 
 
 of the clerk of courts of county, Ohio, conditioned and 
 
 to the effect that the plaintiffs in error will prosecute their 
 petition in error to effect, and will abide and perform the 
 judgment of this court, and pay all damages, penalties, and 
 costs that may be awarded against them, and that they will 
 pay to the said [name all defendants in error] interest on so 
 much of said fu.nd as shall finally be awarded respectively to 
 the said defendants at 6 percent per annum from the date of 
 the said judgment of the circuit court. 
 
 No. 1283. 
 Entry upon Motion for Supersedeas in Supreme Court. 
 
 [Caption.'] 
 
 On application of the plaintiff in error, and for good cause 
 shown, a temporary restraining order as prayed for in the peti- 
 tion below is allowed pending the determination of this action 
 
 in this court, and the bond is fixed at the sum of $ , to 
 
 be given with sureties to the acceptance of the clerk of this 
 court ; and on application of the defendant in error, and it 
 appearing that in this cause the constitutionality of a statute 
 is involved and the state is virtually a party, the cause is 
 advanced on the docket and assigned for oral argument on 
 
 No. 1284. 
 
 Entry requiring New Bond for Stay of Execution within 
 days. 
 
 [Caption.] 
 
 In this cause the court upon application of C. S., admin- 
 istrator of the estate of , deceased, holds that the bond 
 
 herein given for the stay of execution is insufficient. 
 
 It is therefore ordered by the court that the clerk of this 
 court shall issue execution upon demand of said C. S., as ad- 
 ministrator of said estate, unless a new bond be given herein 
 by said A. C. D., with sufficient surety and in due form of 
 law, in — days from the entry of this decree.
 
 ERROR — PROCEEDINGS IN. 8ll 
 
 No. 1285. 
 
 Entry of Judgment Affirming the Judgment of a Justice of 
 
 the Peace. 
 \Caption.~\ 
 
 This cause came on for hearing upon the petition in error, 
 the transcript, the bill of exceptions and the original papers 
 and pleadings from F. B. C. , a justice of the peace in and for 
 township, county, Ohio, and was argued by coun- 
 sel, and on due consideration whereof the court finds that 
 there is no error apparent on the record of said proceedings 
 and judgment. 
 
 It is therefore considered by the court that the judgment 
 aforesaid be and the same is hereby affirmed, and the defend- 
 ant in error recover from the plaintiff in error his costs herein 
 expended. 
 
 No. 1286. 
 Entry of Revivor of Proceeding in Error. 
 [Caption.] 
 
 And now come M. R. and M., attorneys, and suggest to 
 the court that the said M. B., defendant in error, has died 
 since the filing of the petition in error herein, and that A. B. 
 has been duly appointed and qualified as administrator of the 
 estate of said M. B., deceased. 
 
 And the court being fully satisfied thereof, and all parties 
 consenting, it is hereby, on motion of said A. B., administrator 
 as aforesaid, ordered that this action stand revived in the 
 name of said A. B., administrator of the estate of M. B., 
 deceased, and proceed against him. 
 
 No. 1287. 
 Circuit Court Entry overruling Motion and Demurrer. 
 
 \Caption. ] 
 
 This day this cause came on to be heard u]>on the motion 
 of the defendants in error to strike from the petition in error 
 the third, fourth, and fifth assignments of error. Upon con- 
 sideration thereof the court finds said motion not well taken 
 and overrules the same. And thereupon said cause came on 
 further to be heard upon the demurrer of the defendants in 
 error to said petition in error, and the court being fully ad- 
 vised finds that said demurrer is not well taken and overrules
 
 8l2 JUDGMENT ENTRIES. 
 
 the same. And thereupon said cause came on further to be 
 heard upon the motion of the defendant in error to strike the 
 bill of exceptions from the files for the reason set forth in said 
 motion. And upon consideration thereof the court finds said 
 motion not well taken and overrules the same. 
 
 No. 1288. 
 Entry Affirming Proceedings in Police Court. 
 
 \_Caption.~\ 
 
 This cause came on for hearing upon the petition in 
 error, transcript, and the original papers and pleadings from 
 
 the police court in and for the city of , Ohio, and was 
 
 argued by counsel, and upon consideration whereof the court 
 finds that there is no error apparent on the record in said pro- 
 ceedings and judgment of said police court of said city. 
 
 It is therefore considered by the court that the said peti- 
 tion in error be dismissed, the judgment aforesaid be and the 
 same is hereby affirmed ; that the said defendant in error re- 
 cover from the plantifl in error his costs herein expended, to 
 be taxed. 
 
 It is further ordered that a special mandate be sent to the 
 
 police court in and for the city of , Ohio, to carry this 
 
 judgment into execution. 
 
 No. 1289. 
 Reversal of Judgment and Proceedings before Mayor of Village. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the petition 
 in error, bill of exceptions, transcript from the docket of the 
 
 mayor of the village of , of county, Ohio, and the 
 
 original papers herewith filed and made a part of the petition 
 herein, and the same being argued by counsel was submitted 
 to the court. And the court being fully advised in the 
 premises doth find that there are numerous errors in the 
 record and proceedings of said mayor complained of in the 
 petition in error herein, the court finding that the ordinance 
 of said village of , under which the prosecution com- 
 plained of before said mayor is illegal, and void for the fol- 
 lowing reasons, to wit : 
 
 1. The said ordinance is inoperative and of no effect, no 
 date being designated when it should take effect.
 
 ERROR — PROCEEDINGS IN. 813 
 
 2. That the subject-matter of said ordinance is not 
 clearly set forth in the title thereof. 
 
 3. That said ordinance was not published as required by 
 law, and that said proceedings had before said mayor under 
 said ordinance were illegal and void. 
 
 It is therefore here ordered and adjudged that the judg- 
 ment and proceedings of said mayor herein be and the same 
 are hereby reversed, vacated, and set aside; that the plaintiff 
 in error recover from the defendant in error his costs herein 
 
 expended, taxed at $ , and that he be discharged from the 
 
 prosecution in the petition in error complained of. 
 
 No. 1290. 
 
 Entry Affirming Lower Court — Circuit Court. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the petition in error 
 
 of the said , plaintiff in error herein, and each assignment 
 
 of error therein, together with the original papers and plead- 
 ings and a duly certified transcript of the orders and judgment 
 
 of the court of common pleas of county, Ohio, filed 
 
 therewith in the said cause, wherein L. D. was plaintiff and 
 the Street R. R. Co. is defendant, mentioned and re- 
 ferred to in said petition in error, and was argued by counsel. 
 Upon consideration whereof the court find that there is no 
 error manifest upon the face of the record in said orders and 
 judgment of said court of common pleas. 
 
 It is thereupon considered, ordered, and adjudged by this 
 court that the judgment and proceedings of the said court of 
 common pleas in said cause in favor of the said defendant in 
 error and against the said plaintiff in error be and the same 
 are hereby in all things affirmed; there being, however, in 
 the opinion of the court, reasonable ground for this proceed- 
 ing in error, no penalty is allowed. ( Or, if penalty, And 
 there being, in the opinion of the court, no reasonable 
 grounds for this proceeding in error, it is therefore considered 
 and ordered that the plaintiff in error pay the costs herein, 
 
 and to the defendant in error the sum of dollars as a 
 
 penalty. ) 
 
 It is further considered and ordered that the plaintiff in 
 
 error pay the costs of this proceeding in error, taxed at S , 
 
 and in default thereof that execution issued therefor. 
 
 To which judgment and order of the court in so affirming 
 said judgment said plaintiff now and here duly excepts.
 
 814 JUDGMENT ENTRIES. 
 
 Ordered that a special mandate be sent to the court of 
 
 common pleas of county to carry this judgment into 
 
 execution. 
 
 No. 1291. 
 
 Entry in Circuit Court Modifying Judgment by Remittitur of 
 Portion of Verdict and Affirming Lower Court. 
 
 \Caption.~\ 
 
 This cause coming on for hearing upon the petition in 
 error, the transcript and the original papers and pleadings 
 
 from the court of common pleas of county, was argued 
 
 by counsel and submitted to the court ; on consideration 
 whereof the court find that there is error in the record in said 
 proceedings and judgment in this, to wit : 
 
 That the assessment of damages and judgment are exces- 
 sive in the amount of ($ ) dollars, the amount of 
 
 the physician's bill, and that said judgment should therefore 
 be reversed, unless the defendant in error will remit said ex- 
 cess of ($ ) dollars, but that if said excess is remitted 
 
 then said judgment should be affirmed to the amount of 
 dollars. 
 
 The defendant in error having appeared in open court and 
 consented to said remititur, it is therefore considered by the 
 court that the judgment aforesaid be and the same is hereby 
 
 affirmed to the amount of $ , and that the defendant in 
 
 error recover from the plaintiff in error her costs herein ex- 
 pended, taxed at $ , to all of which the plaintiff in error 
 
 excepts. 
 
 It is further ordered that a special mandate be sent to the 
 
 common pleas court of county, Ohio, for the execution 
 
 upon said judgment as herein modified, to which the plain- 
 tiff in error excepts. 
 
 From Mt. Adams & E. P. I. Ry. v. Wysong, Hamilton County. 
 
 No. 1292. 
 Error — Entry of Reversal pointing out Specific Error. 
 
 \Cafttion.~\ 
 
 This cause coming on to be heard upon the petition in 
 error, together with the original papers and pleadings, and a 
 duly certified transcript of the orders and judgment of the 
 
 court of common pleas of county, Ohio, filed herewith 
 
 in the said action, wherein the said M. D. was plaintiff, and
 
 ERROR — PROCEEDINGS IN. 815 
 
 the said was defendant, mentioned and referred to in 
 
 said petition in error, and was argued by counsel. Upon 
 consideration thereof the court finds in the record and pro- 
 ceedings aforesaid that there is manifest error upon the face 
 of said record to the prejudice of the plaintiff in error in this 
 case, to wit: (specify errors as, that the general verdict of 
 said jury rendered in said action was contrary to the manifest 
 weight of the evidence, and not sustained by sufficient evi- 
 dence. ) 
 
 It is therefore considered, ordered and adjudged by this 
 court that the judgment and proceedings of the said court of 
 common pleas in said action in favor of the said defendants 
 in error and against the said plaintiff in error be and the 
 same are hereby set aside, reversed, and held for naught, and 
 that the said plaintiff in error be restored to all things which 
 he has lost by reason of said judgment. That the said action 
 be and it is hereby remanded to said court of common pleas 
 
 of county, Ohio, to be proceeded in according to law 
 
 and the rights of the party. That the said defendant in error 
 pay the costs of this proceeding in error to be taxed, and that 
 a special mandate be sent to the court of common pleas to 
 carry this judgment and order into execution. 
 
 No. 1293. 
 
 Entry in Supreme Court of Reversal, rendering Judgment which 
 Lower Court should have rendered. 
 
 [ Caption. ] 
 This cause came on to be heard upon the transcript of the 
 
 record of the circuit court of county, Ohio, and was 
 
 argued by counsel. On consideration whereof it is ordered 
 and adjudged by this court that the judgment of the circuit 
 court be and the same is hereby reversed at the cost of the 
 defendants in error for the reason that the lot of the plaintiff 
 
 in error should not be assesed for the improvements on 
 
 avenue for the full length thereof, but should be assessed 
 
 only thereon for the number of feet it fronts on avenue, 
 
 that being the proper frontage of the property as shown by 
 the finding of facts. And thereupon this court proceeding 
 
 to render judgment which the circuit court of said county 
 
 should have rendered, it is ordered and adjudged that the 
 assessments made on the property of the plaintiff for the im- 
 provement made on avenue be reduced to an assessment 
 
 for the number of feet at the rate fixed by the ordinance, 
 equal to the breadth of the property, or its frontage on
 
 816 JUDGMENT ENTRIES. 
 
 avenue, and that the collection of the assessment made on the 
 
 property for the improvement on avenue in excess of 
 
 the amounts so ascertained be and the same is hereby en- 
 joined. And it is further considered and ordered that the 
 plaintiffs in error recover of the defendants in error their costs 
 in this court, in the circuit court, and in the court of common 
 pleas expended, to be taxed. Ordered that a special man- 
 date be sent to the circuit court of county to carry this 
 
 ^judgment into execution. 
 
 No. 1294. 
 
 Entry in Supreme Court on exceptions to Court of Common Pleas 
 in Criminal Case. 
 
 [Caption.'] 
 
 This cause came on to be heard upon the transcript of the 
 
 record of the court of common pleas of county, and 
 
 was argued by counsel. On consideration whereof it is ordered 
 and adjudged by this court that the said exceptions of the 
 prosecuting attorney to the ruling of the court of common 
 pleas be and the same are hereby sustained. It is ordered 
 
 that a fee of $ be allowed the attorney representing 
 
 the judge of the court of common pleas, to be paid out of the 
 treasury of county. Ordered that a special mandate be sent 
 
 to the court of common pleas of county to carry this- 
 
 judgment into execution.
 
 JUDGMENT ENTRIES IN 
 CRIMINAL CASES. 
 
 817
 
 PROCEEDINGS TO PREVENT CRIME. 819 
 
 PROCEEDINGS TO PREVENT CRIME. 
 
 (£. S. Sees. 7106— 7128.) 
 
 No. 1295. 
 Entry of Discharge on Failure to Prosecute Complaint. 
 
 [Caption.] 
 
 The defendant herein, having appeared in compliance 
 with the conditions of his recognizance, entered into before 
 
 , justice of peace [or, judge of the police court], which 
 
 said recognizance has been filed in this court, and it appear- 
 ing that the complainant has failed to prosecute said com- 
 plaint, and no good cause being shown to the contrary, it 
 is ordered that the said defendant be and he is hereby dis- 
 charged from his said recognizance. 
 
 R. S. Sec. 7112. 
 
 No. 1296. 
 Hearing of Peace Warrant Charge in Common Pleas Court. 
 
 [Caption. ] 
 
 This day came the prosecuting attorney on behalf of the 
 
 state of Ohio, and the complainant, A. B., and the defendant 
 
 in person, and thereupon this cause came on to be heard upon 
 
 the complaint preferred by said A. B. against the defendant to 
 
 the peace, the said complaint and recognizance of said 
 
 defendant having been certified to this court by , justice 
 
 of the peace of . And the court having heard all the 
 
 evidence adduced by the parties, orders that the said 
 
 cuter into a recognizance in the sum of $ , to keep the 
 
 peace with the complainant, A. B., as well as all other per- 
 sons, for the period of one year from this date, and upon his 
 failure to enter into such recognizance that he be committed 
 to the jail of said county until he shall comply with this 
 order or be otherwise discharged, and that he pay the costs 
 of these proceedings. 
 
 R. S. Sec. 7113-14-
 
 820 JUDGMENT ENTRIES. 
 
 ARREST, EXAMINATION, BAIL, ETC. 
 
 (i?. S. Sees. 7129 — 7188.) 
 
 No. 1297. 
 Entry of taking of Recognizance before Indictment. 
 
 \Caption.~\ 
 
 This day came the defendant, with and , his 
 
 sureties, and entered into recognizance before the court in 
 
 the sum of $ , conditioned for his appearance on the first 
 
 day of the next term to answer said charge herein, filed 
 against him for . 
 
 R. S. Sec. 7164. 
 
 No. 1298. 
 Entry of Discharge of accused by Examining Court. 
 
 \Caption.~\ 
 
 This day came the defendant herein, charged with the 
 crime of , and also came the clerk of courts and prose- 
 cuting attorney of said county, and attended herein as an 
 examining court as provided by law, and it appearing that 
 at least three days' notice has been given of the time of hold- 
 ing said examining court, and the court having examined 
 the witnesses, including the person accused, and finding that 
 there is no probable cause for holding said defendant to an- 
 swer said charge, , therefore orders that said defendant 
 
 be discharged from further imprisonment. 
 
 ( Or, and it appearing to the court that there is probable 
 cause for holding said defendant, it is ordered that he enter 
 into a recognizance to answer said charge at the first day of 
 the next term of said court cf common pleas, and that in 
 default of the giving of such recognizance that he shall be 
 recommitted to the custody of the sheriff. ) 
 
 R. S. Sec. 7165.
 
 ARREST, EXAMINATION, BAIL, ETC. 82 1 
 
 No. 1299. 
 Entry of Order fixing Recognizance by Examining Court. 
 
 [Caption.] 
 
 It appearing to the court that the defendant herein has 
 failed to enter into a recognizance as heretofore ordered by said y 
 examining court for his release and discharge from the custody 
 of the sheriff, it is therefore ordered that the amount of recog- 
 nizance for his discharge at any time hereafter be fixed at the 
 
 sum of $ , with sureties to the approval of any judge 
 
 discharging him, and it is ordered that this entry be entered 
 upon the journal by the clerk of the common pleas court. 
 
 R. S. Sec. 716S. 
 
 No. 1300. 
 
 Entry of Recognizance taken after Indictment found. 
 
 [Caption.] 
 
 This day came the defendant, with and , his 
 
 sureties, and entered into a recognizance before the court in 
 the sum of $ , conditioned for the appearance of said de- 
 fendant before the court from day to day and term to term, to 
 answer a certain indictment filed against him for [state offense]. 
 
 Note. — This is a compliance with Section 7174, which provides that 
 the court may at its discretion make an entry on the journal, fixing the 
 amount in which the party indicted may be recognized for his appearance, 
 and no previous entry determining the amount is necessary. 
 
 It is an advisable practice to take the recognizance from day to day 
 
 and from term to term in order to avoid the necessity of taking a new 
 
 ni/.ance at the close of the term, and thus requiring persons whose 
 
 trials have not been had during the term to again appear and enter into a 
 
 new recognizance. 
 
 No. 1301. 
 Entry fixing Amount of Recognizance in Felony. 
 
 [Caption.] 
 
 It appearing that the defendant has been indicted for the 
 crime of [state it], and that he lias not been arrested or recog- 
 nized to appear before the court, the sheriff is hereby author- 
 ized to take his recognizance for his appearance according 
 to law in the sum of $ . 
 
 R. S. Sec. 7174.
 
 822 JUDGMENT ENTRIES. 
 
 No. 1302. 
 Return of Recognizance and Record of same. 
 
 [Caption.] 
 
 This day came the sheriff and returned the recognizance 
 of the defendant herein, according to an order of the court, 
 which recognizance is as follows: [copy.] 
 
 R. S. Sec. 7176. * 
 
 No. 1303. 
 
 Surrender of Defendant by his Surety. 
 [Caption.] 
 
 This day came , surety on the recognizance of the de- 
 fendant herein, and delivered said defendant in open court, 
 
 and at the request of said he is discharged from further 
 
 responsibility on said recognizance, and it is ordered that in 
 default of the giving of a new recognizance the defendant 
 be remanded to the custody of the sheriff. 
 
 R. S. Sec. 7177. The same entry substantially can be used under Sec. 
 7173. ' 
 
 No. 1304. 
 
 Entry Forfeiting Recognizance. 
 
 [Caption."] 
 
 This day came the prosecuting attorney of said county on 
 behalf of the state of Ohio, and it appearing to the court that 
 the said defendant entered into a recognizance in the sum of 
 
 $ before (the clerk of this court), on the — day of , 
 
 r 8— , {or, before J. S., justice of the peace of township, 
 
 county, Ohio), and thereupon the said defendant having 
 
 been three times called to appear and answer said charge in 
 accordance with the terms and conditions of his said recog- 
 nizance, and said defendant having failed to appear, and still 
 failing so to do, the said L. M., surety upon said recognizance 
 was thereupon three times called to produce the body of the 
 said defendant in court as provided in said recognizance, 
 which he failed to do, it is therefore ordered by the court that 
 the said recognizance be and the same is hereby forfeited 
 absolutely.
 
 THE GRAND JURY. 823 
 
 THE GRAND JURY. 
 
 (i?. 5. Sees. 7189— 721 1.) 
 
 No. 1305. 
 Entry Ordering Venire for Grand Jury. 
 
 It is ordered by the court that the clerk thereof draw 
 from the jury wheel according to law the names of twenty 
 
 qualified electors of county, and state of Ohio, to serve 
 
 as grand jurors for the term of , the court of com- 
 mon pleas of county, and the state of Ohio, and the 
 
 same was accordingly so done by , clerk of the court of 
 
 common pleas of county, and state of Ohio, and , 
 
 sheriff of county, and state of Ohio, and in the presence 
 
 of Honorable , one of the judges of the court of common 
 
 pleas of county, and state of Ohio. The following 
 
 names were drawn, to wit: [insert names]. The venire facias 
 
 was issued to the sheriff of county, and state of Ohio, 
 
 commanding him to summon the aforesaid twenty persons so 
 
 drawn to appear on the — day of , 18 — , to serve as 
 
 grand jurors aforesaid, and of this writ to make due return 
 on the — day of , 18 — . 
 
 No. 1306. 
 
 Entry upon return of Venire Facias for Grand Jury and Impanel- 
 ing Same. 
 
 The venire facias for a grand jury, heretofore issued to 
 
 the sheriff of county, < >hio, returnable this day, was duly 
 
 returned by said sheriff with his endorsement thereon. And 
 upon calling same in open court in answer thereto accepted 
 \names\ and for good cause shown the court excused the fol- 
 lowing persons, to wit: [names excused], and ordered the 
 clerk to draw from the wheel according to law the names of 
 — persons, additional jurors, to fill up the panel, and to issue 
 a venire facias to the sheriff of said county commanding them
 
 824 JUDGMENT ENTRIES. 
 
 to appear on — day of , 18 — , and the same was accord- 
 ingly so done by , clerk of the court of common pleas of 
 
 county, state of Ohio, and sheriff of county, state 
 
 of Ohio, and in the presence of Honorable , one of the 
 
 judges of the court of common pleas within and for said 
 county, and the following names were drawn, to wit: \_names 
 of additional jurors drawn]. 
 
 And thereupon the court took a recess until — o'clock 
 P. M. on the same day. And afterwards, to wit: on the 
 same day at the hour of — o'clock P. M., upon a recall of 
 the first venire all of the jurors heretofore present and not 
 excused appeared in answer thereto, and upon the calling of 
 the alias venire the following persons, to wit: [names] ap- 
 peared ; J. R. S. being absent, T. C. out of the county, and 
 J. S. sick, and for good cause shown the court excused [names], 
 and the panel being complete the court appointed T. R. fore- 
 man, and each with his fellow juror took the oath in manner 
 and form prescribed by law, and the grand jurors after being 
 instructed by the court in relation to their duties were con- 
 ducted to their room by , deputy sheriff. The following 
 
 persons compose the grand jury for the term, , 18 — , 
 
 the names thereof having been drawn from the wheel accord- 
 ing to law, to wit : [names and residences]. 
 
 No. 1307. 
 Form of Special Oath administered to Foreman of Grand Jury. 
 
 You solemnly swear in the presence of Almighty God that, 
 saving yourself and fellow jurors, you, as foreman of this grand 
 inquest, shall diligently inquire and true presentment make 
 of all such matters and things as shall be given you in charge 
 or otherwise come to your knowledge touching the present 
 service. The counsel of the state, your own, and your fellows 
 you shall keep secret, unless called upon in a court of justice 
 to make disclosures. You shall present no person through 
 malice, hatred, or ill will, nor shall you leave any person go 
 unpresented through fear, favor, or affection, or for any re- 
 ward or hope thereof. But in all your presentments you shall 
 present the truth, the whole truth, and nothing but the truth, 
 according to the best of your skill and understanding. 
 
 R. S. Sec. 7191.
 
 THE GRAND JURY. 825 
 
 No. 1308. 
 Form of Oath administered to the Remainder of Grand Jury. 
 
 The same oath which A. B., your foreman, has taken 
 before you, you and each of you shall well and truly observe 
 and keep on your respective parts, and this you swear in the 
 presence of Almighty God. 
 
 R. S. Sec. 7192. 
 
 No. 1309. 
 
 Form of Oath administered to Grand Jury Witnesses. 
 
 You solemnly swear that the testimony you shall give 
 before the grand inquest now in session within and for the 
 
 county, state of Ohio, shall be the truth, the whole 
 
 truth, and nothing but the truth, as you shall answer to God. 
 
 R. S. Sec. 7199. 
 
 No. 1310. 
 
 Entry showing administration of Oath to Grand Jury Witnesses. 
 
 This day came [names], who were by order of court, at 
 the request of the prosecuting attorney, duly sworn in open 
 court to testify before the grand jury now in session for this, 
 
 the county of , which was ordered by the court to be 
 
 duly certified, and the same was accordingly so done. 
 
 No. 1311. 
 
 Entry when one Juror sick and another takes his Place. 
 
 It appearing to the court that L. L., one of the grand 
 jurors heretofore impaneled and sworn herein, is sick and 
 unable to further serve as such grand juror, the said L. h. is 
 excused, and is sworn to act in his place. 
 
 R. s. See. 7202. 
 
 No. 1312. 
 
 Entry of Report of Grand Jurors. 
 
 This day appeared at the bar of this court the grand jury 
 heretofore duly impaneled and sworn in and for the body of
 
 826 JUDGMENT ENTRIES. 
 
 the county of , and state of Ohio, namely: [names of the 
 
 jurors], and presented to the court through their foreman, F. 
 R., the following indictments, to wit: [names of indictments]. 
 And there being no further business to come before the 
 grand jury, the court thereupon discharged the said grand 
 jury without day. 
 
 No. 1313. 
 
 Entry Ordering Capias to Issue for Persons Indicted not in 
 Custody of Sheriff. 
 
 It is ordered by the court that capiases issue for the fol- 
 lowing named persons not in custody, they having been 
 indicted by the grand jury: [names of persons]. 
 
 INDICTMENT AND PROCEEDINGS 
 THEREON. 
 
 {R. S. Sees. 7212 — 7239.) 
 
 No. 1314. 
 Election when two Indictments Pending against Defendant. 
 
 [ Caption. ] 
 
 There being two indictments pending against the defend- 
 ant at this time for the same criminal act, upon motion of 
 said defendant the prosecuting attorney is required to elect 
 upon which he will proceed. And the prosecuting attorney 
 elected to proceed to trial for the crime of . 
 
 R. S. Sec. 7212. 
 
 No. 1315. 
 
 Entry where Indictment is Joint — Election made by State to try 
 one of Defendants. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendants in their own
 
 PROCEEDINGS BETWEEN INDICTMENT AND TRIAL. 827 
 
 proper persons in the custody of the sheriff. Thereupon defend- 
 ants demanded separate trial, and the state elects to try H. 
 C. first. Thereupon came a jury, to wit : [names]. 
 
 Note. — Then follows the usual entry. 
 
 PROCEEDINGS BETWEEN INDICTMENT 
 
 AND TRIAL— ARRAIGNMENT 
 
 AND PLEA. 
 
 (R. S. Sees. 7240 — 7266.) 
 
 No. 1316. 
 
 Entry — Insanity of Defendant suggested and Order for Jury to 
 
 try Question. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person and by counsel. Thereupon P. and H., attor- 
 neys for defendant, suggested to the court that the defendant 
 in this case is not sane, and also presented to the court the 
 certificate of H. M. T., M. D., to the same effect. It is 
 ordered that a jury be impaneled to try the question whether 
 or not the said defendant, G. K., is sane, and it is ordered 
 
 that the said cause be set for hearing on the — day of , 
 
 18 — , to which time it is ordered that the venire be made 
 returnable, and the jurors of the regular panel not heretofore 
 
 excused are discharged until the — day of . Thereupon 
 
 the clerk drew from the wheel according to law in the pres- 
 ence of Hon. , judge of the court, the names of twenty 
 
 persons to appear on the — day of , 18 — , at — M. 
 
 o'clock, to serve as such special jurors. 
 
 From State v. Kalh, Franklin County Common Pleas. R. S. Sec. 7240. 
 
 No. 1317. 
 
 Entry of Impaneling Jury to try Question of Insanity. 
 [Capt 'ion. I 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own
 
 828 JUDGMENT ENTRIES. 
 
 proper person and by counsel. Thereupon the venire here- 
 tofore issued to the sheriff and returnable this day was duly 
 returned by the sheriff, and upon calling the same in open 
 court all appeared in answer thereto excepting [names], and 
 for good cause shown the court excused [names], and there 
 being twelve qualified jurors remaining in the box, to wit : 
 [names], who were duly impaneled and sworn to well and 
 truly try the question in this case, to wit : whether the de- 
 fendant, G. K., is or is not sane, and a true verdict render 
 according to law and the evidence, so help you God. And 
 thereupon the trial of this cause progressed, and the same 
 not being concluded, and the time of adjournment having 
 arrived, the court adjourned the further hearing of this case 
 
 until . 
 
 From State v. Kalb, Frankliu County Common Pleas. R. S. Sec. 7240. 
 
 No. 1318. 
 Entry of return of Verdict finding Defendant Sane. 
 
 [Caption^] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person, in custody of the sheriff, and by counsel ; also 
 came the jury heretofore duly impaneled and sworn to try the 
 question in this case. Thereupon the trial of this cause pro- 
 gressed, and the jury having heard the evidence, arguments 
 of counsel, and charge of the court, retired to the room to 
 deliberate upon a verdict, and after due deliberation thereon 
 returned again into open court and presented their verdict in 
 writing in the words and figures following, to wit: (We, the 
 jury duly impaneled and sworn to try the question in this, 
 case, to wit, whether the defendant, G. K. , is sane or is not, 
 find that said defendant, G. K. , is sane and was sane at the 
 commencement of the trial of this case, to wit, on the — 
 day of , 18 — . ) 
 
 (Signed by all the jurors. ) 
 
 R. S. Sec. 7242. 
 
 No. 1319. 
 Entry of Arraignment — Plea of not Guilty. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and his assistants 
 on behalf of the state of Ohio, and the defendant in his own
 
 PROCEEDINGS BETWEEN INDICTMENT AND TRIAL. S29 
 
 proper person (and by counsel), and the said defendant having 
 been duly served with a copy of the indictment herein as 
 required by law, and not desiring further time to examine 
 the same or to prepare exceptions thereto, was first thereupon 
 duly arraigned in open court and waived the reading of in- 
 dictment to him, and for plea thereto says he is not guilty, 
 which plea was entered accordingly upon said indictment. 
 
 R. S. Sec. 7244. 
 
 No. 1320. 
 Entry of Arraignment and Plea — Appointment of Counsel. 
 
 \_Caption.\ 
 
 This day came the prosecuting attorney and his assistants 
 on behalf of the state of Ohio, and the defendant in his own 
 proper person, in the custody of the sheriff, and the defendant 
 being without counsel and unable to employ any, the court 
 
 thereupon appointed to defend him. And the defendant 
 
 having been duly served with a copy of the indictment hereof 
 as required by law, and not desiring further time to examine 
 the same or prepare exceptions thereto, was thereupon ar- 
 raigned in open court and waived the reading of the indict- 
 ment to him, and for plea thereto says that he is not guilty, 
 which plea was entered accordingly upon said indictment. 
 
 R. S. Sees. 7245, 7247. 
 
 No. 1321. 
 Entry of withdrawal of Plea and Entry of Defendant's Plea. 
 
 [ Captioii. ] 
 
 This day came the prosecuting attorney and his assistants 
 on behalf of the state- of Ohio, and the defendant, G. J., in 
 his own proper person, in the custody of the sheriff, and by 
 his counsel i V. S. ), and thereupon leave was granted said 
 defendant, G. J., to withdraw his former plea, and the same 
 was accordingly so done. Thereupon tin- defendant was ar- 
 raigned in Open court and tin- indictment was read to him by 
 L. L., deputy clerk of court, and for plea thereto says that 
 lie is guilty as charged therein, which plea was entered ac- 
 cordingly upon said indictment. Thereupon said defendant 
 was inquired of if he had anything to say why judgment 
 should not he pronounced against him, and after hearing his 
 statement and that of counsel, it is therefore adjudged by the
 
 830 JUDGMENT ENTRIES. 
 
 court that the said defendant, G. J., be imprisoned in the 
 penitentiary of this state and kept at hard labor for the period 
 of — years (on the charge of burglary and larceny), no part 
 of said time to be kept in solitary confinement, and that he 
 pay the costs of prosecution, taxed at $ , for which execu- 
 tion is awarded. 
 
 No. 1322. 
 Entry Allowing Fees to Counsel Appointed. 
 
 [Caption."] 
 
 It is ordered by the court that C. D. S. , who was hereto- 
 fore appointed by the court to defend G. H., charged herein 
 
 with the crime of , be and he is hereby allowed the sum 
 
 of $ ; and it is further ordered that said amount be certi- 
 fied by this court to the county commissioners and county 
 auditor for allowance and payment, and the same is accord- 
 ingly done. 
 
 R. S. Sec. 7246. 
 
 No. 1323. 
 
 Entry where Plea in Abatement is sustained and Prisoner 
 Committed. 
 
 [ Caption. ] 
 
 This day this cause coming on to be heard upon the in- 
 dictment and plea in abatement interposed by the defendant 
 thereto, and was argued by counsel. And the court being 
 fully advised finds that said plea is well taken and sustains 
 the same, (a) It is therefore further ordered that the defend- 
 ant be committed to the custody of the sheriff. 
 
 R. S. Sec. 7252. 
 
 No. 1324. 
 Same Continued — Prisoner Discharged on his Recognizance. 
 
 [Caption.] 
 
 [Continuing from (a) in ante No. 1323.] It is also further 
 ordered that the defendant be allowed to enter into a recog- 
 nizance in the sum of $ , conditioned for his appearance 
 
 at the first day of the next term of this court to answer the 
 charge against him, and that upon his failure to so enter into 
 his said recognizance that he be remanded to the custody of 
 the sheriff.
 
 PROCEEDINGS BETWEEN INDICTMENT AND TRIAL. 83 1 
 
 No. 1325. 
 
 Entry of Withdrawal of Plea and the Filing of a Motion to Quash 
 on Plea in Abatement and Judgment thereon. 
 
 [ Caption. ] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person, in the custody of the sheriff, and by counsel, 
 and asked and was granted leave to withdraw his former plea 
 of not guilty, and the same was accordingly so done. And 
 thereupon the said defendant filed his motion to quash (or, 
 plea in abatement), and thereupon said motion (or, plea) 
 came on to be heard, and was argued by counsel and was 
 submitted to the court. On consideration thereof, and the 
 court being fully advised, finds that said motion (or, plea in 
 abatement ) is not well taken, and does therefore overrule the 
 same (or, that said motion or plea in abatement is well taken, 
 and does therefore sustain the same). 
 
 [. hid where tlic motion is overruled a plea is to be entered 
 as follows :] 
 
 And thereupon the defendant was duly arraigned in open 
 court and waived the reading of the indictment, or the indict- 
 ment having been read to him, and for plea thereto says that 
 he is not guilty, which plea was entered accordingly upon 
 said indictment. 
 
 No. 1326. 
 
 Entry upon Plea in Abatement where the Defendant is Charged 
 by an Incorrect Name. 
 
 \C apt ion. ] 
 
 This cause coming on to be heard upon the plea in abate- 
 ment interposed by the defendant to the indictment herein 
 against him, and it appearing that he has not been indicted 
 bv his true name, and that his true name is [slate what\ % it is 
 ordered by the court that said indictment be and the same is 
 hereby corrected so as to show the true name of the said de- 
 fendant, and that the said charge be proceeded upon against 
 the said defendant under the indictment as herein corrected. 
 
 R. S. Sec. 7254.
 
 S3 2 JUDGMENT ENTRIES. 
 
 No. 1327. 
 
 Entry of hearing upon Demurrer to Indictment. 
 
 \CaptionJ\ 
 
 This day this cause came on to be heard upon the demurrer 
 to the indictment heretofore filed herein ; the same was argued 
 by counsel and submitted to the court ; and the court upon 
 consideration thereof, being fully advised in the premises, 
 finds that said demurrer is not well taken, and overrules the 
 same; to which finding and ruling of the court the defendant 
 excepts, he being present in court in his own proper person, 
 in the custody of the sheriff, at the time the said demurrer 
 was overruled. And thereupon said defendant not being at 
 this time ready to be arraigned upon said indictment to enter 
 his plea thereto, requested further time, which was thereupon 
 granted. 
 
 R. S. Sec. 7256. 
 
 No. 1328. 
 
 Former Plea withdrawn — Rearraigned Plea of Guilty Entered 
 and Sentenced. 
 [Caption^ 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person and by counsel. Thereupon leave was granted 
 said defendant to withdraw his former plea heretofore entered 
 herein, and the same is accordingly done. Thereupon said 
 defendant was rearraigned in open court and waived the 
 reading of the indictment to him, and for plea thereto says 
 that he is guilty as charged therein. Thereupon said defend- 
 ant was inquired of whether he had anything to say why 
 judgment should not be pronounced against him, and after 
 hearing his statement, it is therefore adjudged by the court 
 that the said defendant, J. R. , be imprisoned in the jail of 
 this county for the period of — days, and that he pay a fine 
 
 of $ and the costs of prosecution, taxed at $ , for 
 
 which execution is awarded.
 
 PROCEEDINGS BETWEEN INDICTMENT AND TRIAL. 833 
 
 No. 1329. 
 
 Entry of Withdrawal of former Plea in Felony and Change of 
 Plea upon Charge for Misdemeanor and Sentence. 
 
 [Caption.] 
 
 This day came the prosecuting attorney on behalf of the 
 state of Ohio, and the defendant in his own proper person 
 and by counsel. Thereupon leave was granted said defend- 
 ant to withdraw his former plea heretofore entered herein,, 
 and the same was accordingly so done, and thereupon defend- 
 ant was rearraigned in open court and waived the reading of 
 the indictment to him, and for plea thereto says that he is 
 guilty of petit larceny as charged in the indictment, which 
 plea was accepted by the state and entered accordingly upon 
 said indictment, and nolle prosequi as to the felony is entered 
 herein by order of court at the request of the prosecuting 
 attorney. Whereupon said defendant was inquired of whether 
 he had anything to say why judgment should not be pro- 
 nounced against him, and after hearing his statement it is 
 therefore ordered that the said defendant, J. C, pay a fine of 
 $ and the cost of the prosecution, and that he be im- 
 prisoned in the jail of this county for the period of — days. 
 
 No. 1330. 
 Entry Ordering change of Venue. 
 
 [Caption.] 
 
 (This day this cause came on to be heard upon the separate 
 
 motion of the defendant, P. J. E., filed on the — day of , 
 
 18 — , to dismiss this case as to him upon the- grounds stated 
 therein, and was argued by counsel and submitted to the 
 court. And thereupon the prosecuting attorney stated in open 
 court that the stale was ready and willing to proceed and try 
 the accused at this term of court, said motion to dismiss was 
 overruled, to which the defendant excepted, and said ease 
 
 was set down for trial on the — day <>f , 18 — , by order 
 
 of the court. A panel of thirty-six persons was drawn and 
 summoned to appear on said day, and thereupon the prose- 
 cuting attorney having filed his written motion to continue 
 the case to the next term of court t'oi want of time to try the 
 same at this present term of court), the said defendant, P. J. 
 E., filed his written motion in writing, praying the court to
 
 834 JUDGMENT ENTRIES. 
 
 send this case for trial, and direct that he be tried in some 
 adjoining county according to statute in such case made and 
 provided, for the reason and upon the ground stated in said 
 motion, and filed in support thereof affidavits; and there- 
 upon this cause came on to be heard upon said motion and 
 application aforesaid, and it appearing to the court by said 
 affidavits that a fair and impartial trial of this case can not 
 be had in this county, and no counter affidavits being filed 
 by the state, it is ordered and directed that the venire herein 
 be and the same is hereby changed to the adjoining county 
 
 of . 
 
 From State v. Elliott, Franklin County Common Pleas. 
 
 TRIAL, VERDICT AND JUDGMENT. 
 
 (^?. 5". Sees. 7267 — 7305.) 
 
 No. 1331. 
 Entry Special Plea in Bar tried to a Jury. 
 
 State vs. W. R. 
 
 This day this cause came on to be heard upon the answer 
 of the state of Ohio to the special plea in bar heretofore filed 
 by the defendant, in which the defendant plead a former 
 acquittal of the offense herein charged, and the issue thus being 
 made up as to whether or not the said defendant had hereto- 
 fore had a judgment of acquittal of said charge, the same was 
 tried to a jury composed of [«rt;««],whowere duly impaneled 
 and sworn to well and truly try and true deliverance make 
 between the state of Ohio and the prisoner at bar, W. R., 
 and all of the testimony on both sides having been offered, 
 and the cause having been duly argued on both sides by 
 counsel, and the charge of the court having been duly and 
 lawfully delivered to the said jury, the said jury retired for 
 consultation, and thereafter reported in court a verdict on 
 behalf of the state of Ohio and against the defendant, which 
 verdict was in the words following, to wit : 
 
 We, the jury in this case, find upon the issues joined by 
 the special plea in bar and the answer thereto herein, in favor 
 of the state. , Foreman.
 
 TRIAL, VERDICT AND JUDGMENT. 835 
 
 No. 1332. 
 
 Entry Ordering Commission to take Testimony. 
 
 [Caption.] 
 
 The defendant herein having made application in writing 
 
 for a commission to examine , a witness in his behalf, 
 
 residing at , it is by the court ordered that , Esq., 
 
 of , be and he is hereby appointed a special commissioner 
 
 to take the testimony of the said , upon the interroga- 
 tories which will be annexed thereto, and that notice 
 
 be given to the prosecuting attorney of this order. 
 
 R. S. Sec. 7293. 
 
 No. 1333. 
 
 Entry Impaneling Jury — Other than Capital. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and his assistants 
 on behalf of the state of Ohio, and the defendant in his own 
 proper person, in the custody of the sheriff, and by counsel, 
 and thereupon came a jury, to wit: [names of jury], who 
 were duly impaneled and sworn to well and truly try and 
 true deliverance make between the state of Ohio and the 
 prisoner at the bar, J. S., so help you God. And thereupon 
 the trial of this cause progressed. And the said jury having 
 heard the evidence, arguments of counsel, and charge of court, 
 retired to their room to deliberate upon a verdict, and after 
 due deliberation thereon, returned again into open court and 
 through their foreman presented their verdict signed by their 
 foreman, in the words and figures following, to wit: "We, 
 the jury in this case, find the defendant, J. S. , guilty of 
 [offenSi I in manner and form as he stands charged in the in- 
 dictment. S. S., Foreman."* 
 
 Thereupon defendant by counsel gave notice of a motion 
 for a new trial. 
 
 No. 1334. 
 Entry ordering Jury to View Premises or Place. 
 
 I ( 'option. I 
 
 Upon motion, and the court being of the opinion that the 
 jury should view the place where [state], it is ordered that
 
 836 JUDGMENT ENTRIES. 
 
 the said jury be conducted in a body, under charge of the 
 sheriff, to said place, together with the defendant, which shall 
 
 be shown to them by , who is appointed by the court 
 
 for that purpose. 
 
 R. s. Sec. 7283. 
 
 No. 1335. 
 Entry overruling Motion for New Trial and Sentence. 
 
 \_Caption.~\ 
 
 This day came again the prosecuting attorney and his 
 assistants on behalf of the state of Ohio, and the defendant 
 in his own proper person, in the custody of the sheriff, and 
 by his counsel, and thereupon this cause came on further to be 
 heard upon the motion of the defendant for a new trial filed 
 in this case, and the same was argued by counsel and sub- 
 mitted to the court. On consideration whereof and being 
 fully advised in the premises find that said motion is not 
 well taken, and does therefore overrule the same, to which 
 ruling and order of the court the defendant by counsel then 
 and there excepted. Thereupon the court informed the de- 
 fendant of the finding of the jury and inquired of him if he 
 had anything to say * why judgment should not be pronounced 
 against him, and after hearing his statement and that of 
 counsel it is therefore ordered and adjudged by the court that 
 the defendant, J. S., be imprisoned in the penitentiary of this 
 state for the period of — years, and kept at hard labor, no 
 part of said time in solitary confinement, and that he pay the 
 
 costs of prosecution, taxed at $ , for which execution is 
 
 hereby awarded. 
 
 No. 1336. 
 
 Entry of Judgment and Sentence upon Verdict where no 
 Motion for New Trial is made. 
 
 [Caption.^ 
 
 [Continuing from * in ante No. 1333.] 
 
 And thereupon said defendant not desiring to file a motion 
 for a new trial, the state thereupon moved the court for 
 sentence. Thereupon the court informed the defendant of 
 the verdict of the jury, and inquired of him if he had any- 
 thing to say, etc. [and proceed as in ante No. 1335 from *.]
 
 TRIAL, VERDICT AND JUDGMENT. 837 
 
 No. 1337. 
 
 Entry upon Motion to Arrest from Jury and for Judgment 
 for Defendant. 
 [Caption."] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person, and in the custody of the sheriff, and by coun- 
 sel, and also came the jury, to wit: [names], who were duly 
 impaneled and sworn according to law, and thereupon the 
 trial of this cause progressed, and the state having introduced 
 its testimony and rested its case, thereupon the defendant 
 made a motion to arrest the testimony from the jury and have 
 judgment for his discharge for the reason that there is a vari- 
 ance between the evidence and the indictment. And the 
 court being advised finds that there is a variance between the 
 statement in the indictment and the proof offered in support 
 thereof as to a material fact, to wit: {state what variance is], 
 and that by reason thereof the defendant has been prejudiced. 
 It is therefore ordered that the jury be discharged from fur- 
 ther consideration of this case, and that the defendant be 
 discharged. 
 
 R. S. Sec. 7216. The language of this section is peculiar. Such an 
 entry as this is rare. Variances sufficient to authorize an acquittal do not 
 frequently occur. "A variance is not now regarded as material unless it 
 is such as might mislead the defense, or might expose the accused to the 
 danger of being put twice in jeopardy for the same offense." Abbott's 
 Crim. Brief, p. 411. 
 
 No. 1338. 
 
 Entry arresting Case from Jury where Mistake made in 
 Indictment. 
 
 [Caption.] 
 
 This day came the jury heretofore impaneled and sworn 
 in the above-entitled cause, and the prosecuting attorney and 
 his assistants, and the prisoner in his own proper person, and 
 in the custody of the sheriff, and his attorney, !•'.. B. K., and 
 the state having no further testimony to offer in its behalf 
 thereupon rested its ease, and the defendant thereupon moved 
 the court to strike out and withdraw from the consideration 
 of the jury all the testimony heretofore offered in this ease 
 relating to the forgery of the endorsement of the signature 
 purporting t<> be thai of R. \V. C. upon the back of the check 
 set forth in the indictment herein, which motion the court
 
 838 JUDGMENT ENTRIES. 
 
 sustained. And thereupon the defendant further moved the 
 court to instruct the jury to return a verdict of not guilty 
 under the indictment herein, which motion the court over- 
 ruled, and to which ruling and order of the court the defend- 
 ant at the time excepted. And thereupon on a motion of 
 the prosecuting attorney, and it appearing to the court that 
 a mistake has been made in this case in charging the proper 
 offense in the [indictment against the defendant, the jury in 
 this case was thereupon discharged by the court without pre- 
 judice to the prosecution, to which discharge and to which 
 order and ruling of the court discharging the jury the defend- 
 ant by his counsel objected and excepted, and the jury were 
 discharged without the consent of the defendant. And it 
 further appearing to the court that there is good cause to 
 detain the said defendant in custody, it is ordered by the 
 court that he be held in bail in the sum of $ for his ap- 
 pearance on the first day of next term by this court to answer 
 the charge against him, and that in default thereof that he 
 be committed to jail in the custody of the sheriff, which 
 order and ruling of the court the defendant by his counsel 
 excepts. 
 
 R. s. Sec. 7303. 
 
 No. 1339. 
 Entry discharging Jury on Account of Sickness of Juror. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and defendant in his own proper 
 person and by counsel, and it appearing to the court that on 
 account of the sickness of one of the jurors in this case, to 
 wit, F. L. , and the continued sickness of said F. L. , the trial 
 can not proceed. It is therefore ordered by the court that 
 the jury in this case be discharged without day from the 
 further consideration of this case, and without prejudice to 
 the prosecution of the said case, and that this case be con- 
 tinued, to which discharge of said jury and ruling and order 
 of the court the said defendant excepts.
 
 TRIAL, VERDICT AND JUDGMENT. 839 
 
 No. 1340. 
 Entry where Defendant charged as an Habitual Criminal. 
 
 [Caption.] 
 
 [ // 'here jury find defendant guilty, follow form No. 1333 
 dozen to *. If defendant pleads guilty, form No. 1328, and 
 then proceed:] 
 
 And it appearing further to the court that the said de- 
 fendant, G. J., has been three times convicted, sentenced, and 
 imprisoned in the penitentiary for three several felonies, to 
 wit: burglary, petit larceny, and grand larceny, and burglary 
 and larceny heretofore committed in this state as charged in 
 the indictment in this case, the said defendant is hereby 
 deemed and taken to be a habitual criminal. It is therefore 
 ordered and adjudged by the court that the said defendant, 
 G. J., at the expiration of the said term of years for which 
 he is herein sentenced, shall not be discharged from imprison- 
 ment from the penitentiary, but shall be detained therein for 
 and during his natural life unless pardoned by the governor, 
 and his said liability to be so detained is hereby made a part 
 of said sentence of said defendant to be imprisoned in the 
 penitentiary under and pursuant to an act of the General As- 
 sembly of the state of Ohio, passed May 4, 1885. 
 
 No. 1341. 
 
 Capital Case — Entry of Filing of Precipe for Jury — Jury 
 drawn and Venire issued to Sheriff. 
 
 [Caption. ] 
 
 This day came the prosecuting attorney on behalf of the 
 state of Ohio, this cause having been regularly assigned for 
 
 trial for the , and filed in the office of the clerk of this 
 
 court his precipe for a jury of thirty-six persons, qualified 
 
 electors of the county, state of < >hio, to appear before 
 
 this court on the — day of , 18 — , at — A. M. o'clock, 
 
 at the courthouse in said county. Thereupon the clerk of 
 
 this court in the pn »f the court and , sheriff of 
 
 county, Ohio, drew from the wheel according to law 
 
 thirty-six ballots containing the nanus of the following per- 
 sons, to wit: \names\y and issued a venire facias to the sheriff 
 of county, Ohio, commanding him to summon the per- 
 sons so drawn to appear before this court on the — day of 
 
 54
 
 84O JUDGMENT ENTRIES. 
 
 18— , at — A. M., at the courthouse in said county, 
 
 then and there to act as special jurors in the case of State of 
 Ohio vs. W. T., and of this venire to make due return by 
 the — day of , 18 — . 
 
 From State v. William Taylor, Franklin County Common Pleas. R. 
 S. Sec. 7267. 
 
 No. 1342. 
 Capital Case continued — Entry on Return of Venire facias. 
 
 [Caption.] 
 
 The venire facias for a special jury in this case heretofore 
 
 issued to the sheriff of county, Ohio, and returnable 
 
 this day was duly returned by said sheriff with his endorse- 
 ment thereon as follows : 
 
 county, ss. 
 
 Received this writ — day of , 18 — , and pursuant to 
 
 its command on the — day of , 18 — , I served the within- 
 named [giving each name with the manner of service], and 
 after diligent search I was unable to find the within-named 
 persons, to wit : [state names not found] within the county. 
 
 J. R., sheriff. 
 
 No. 1343. 
 Capital Case continued — Entry Ordering Alias Venire. 
 
 [Caption.] 
 
 It appearing from the return of the sheriff, made on the 
 
 day of , 18 — , on the venire facias heretofore issued 
 
 in this case on the — day of , 18 — , and returnable , 
 
 jS — , that the following named persons, to wit: [names] 
 persons named in said venire, was returned by said sheriff 
 not found. Thereupon the clerk of this court, in the pres- 
 ence of this court and J. R., sheriff, drew from the jury 
 wheel, according to law, eight ballots containing the names 
 of the following persons, to wit : [names], and issued an alias 
 venire facias to the sheriff of county, Ohio, command- 
 ing him to summon the jurors so drawn to appear before 
 the court of common pleas of said county on Monday morn- 
 ing, , 18 — , at — A. M., to act as jurors in this case, 
 
 returnable forthwith.
 
 TRIAL, VERDICT AND JUDGMENT. 841 
 
 No. 1344. 
 Capital Case continued — Entry upon the Return of Alias Venire. 
 
 [Caption. ] 
 
 The alias venire facias in this case for eight additional 
 
 jurors, heretofore issued to the sheriff of county, Ohio, 
 
 returnable forthwith, was this day duly returned by said 
 sheriff, with his indorsement thereon in the words and fig- 
 ures following, to wit: [copy of endorsement}. 
 
 No. 1345. 
 
 Capital Case continued — (Appointment of Stenographer) — 
 Impaneling of Jury. 
 
 [Caption."] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and defendant in his own proper 
 person, in the custody of the sheriff, and by counsel. And 
 thereupon, on application of defendant, M. O'D. is appointed 
 to take and transcribe the testimony in this case; and upon 
 calling the alias venire heretofore issued to the sheriff of 
 
 county, Ohio, and duly returned by him, all appeared 
 
 in answer thereto except [names], of the first venire, who 
 were returned by the sheriff not found, and C. H., who was 
 absent, included, there being thirty-six jurors present, to wit: 
 [names of those present]. And thereupon A. S. S. was first 
 called, sworn, and examined, and challenged for cause by 
 state, and same sustained ; J. G. was next called, sworn, 
 examined, and challenged for cause by defendant, and same 
 overruled, and the juror ordered to take his place in the box ; 
 I,. E. was next called, and excused on being a judge of the 
 election; S. J. I. was next called, sworn, and examined, and 
 challenged for cause by the state, and the same sustained, 
 [and \<> on down until (lure are twelve jurors, and thenpro- 
 (,,d\. And there being now twelve jurors in the box passed 
 for cause, the court ordered that the state exercise one 
 peremptory challenge, after which the defendant exercise 
 twelve of his peremptory challenges before the state is al- 
 lowed to call its last peremptory challenge. Thereupon 
 the state challenges peremptorily I. I). R., and he was ex- 
 cused; thereupon A. X. was next called, sworn, and exam- 
 ined, and there being no challenge he was ordered to take 
 his place in the box; thereupon the defendant challenged
 
 S42 JUDGMENT ENTRIES. 
 
 peremptorily J. G. , and he was excused ; and thereupon E. 
 N. was next called, sworn, and examined, and there being 
 no challenge he was ordered to take his place in the box ; 
 thereupon the defendant peremptorily challenged W. H., 
 and he was excused; thereupon W. C. was next called, 
 sworn, and examined, and there being no challenge for 
 cause he was ordered to take his place in the box ; and there- 
 upon the defendant challenged peremptorily J. S., and he 
 was excused; J..R. was next called, sworn, and examined, 
 and there being no challenge he was ordered to take his 
 place in the box; thereupon the defendant challenged per- 
 emptorily E. N., and he was excused; G. N. was next called, 
 sworn, and examined, and there being no challenge for cause 
 he was ordered to take his place in the box; thereupon de- 
 fendant challenged peremptorily J. A., and he was excused; 
 thereupon C. G. was next called, sworn, and examined, and 
 challenged by defendant for misnomer, and same overruled, 
 and he was ordered to take his place in the box, to which 
 defendant excepted ; thereupon defendant challenged peremp- 
 torily R. G., and he was excused; and thereupon W. R. was 
 next called, sworn, and examined, and there being no chal- 
 lenge for cause he was ordered to take his place in the box; 
 thereupon the defendant peremptorily challenged C. G., and 
 he was excused; thereupon J. P. was next called, sworn, 
 and examined, and was challenged for cause by the state, 
 and the same sustained; thereupon J. L. was next called, 
 and excused by the court, he being registrar of election; 
 thereupon J. G. was next called, sworn, and examined, and 
 there being no challenge for cause he was ordered to take 
 his place in the box; thereupon defendant challenged per- 
 emptorily J. R., and he was excused; thereupon J. R. N. 
 was next called, sworn, and examined, and there being no 
 challenge for cause he was ordered to take his place in the 
 box; thereupon defendant peremptorily challenged T. J., 
 who was excused ; thereupon H. D. was next called, sworn, 
 and examined, and there being no challenge he was ordered 
 to take his place in the box ; thereupon defendant challenged 
 J. R. N., and he was excused; and the panel being ex- 
 hausted, on motion, and by consent of parties hereto, the 
 court ordered the clerk to draw from the wheel, according 
 to law, the names of twenty persons, and issue a venire to 
 the sheriff, commanding the persons so drawn to appear to- 
 morrow morning at 9 o'clock, and the same was so done by 
 C. F. G., clerk, in presence of the court and sheriff, for the 
 following persons, to wit: [names of persons].
 
 TRIAL, VERDICT AND JUDGMENT. 843 
 
 No. 1346. 
 
 Capital Case continued — Impaneling of Jury progressed. 
 
 [ Caption. ] 
 
 This day came the prosecuting attorney and assistants 
 on behalf of the state of Ohio, and the defendant in his own 
 proper person and in the custody of the sheriff and by coun- 
 sel ; also came the jury heretofore examined and passed for 
 cause, to wit: [names of jurors passed for cause], and upon 
 calling the special venire heretofore issued and returnable 
 this day, [names of jurors] appeared in answer thereto. 
 Thereupon F. C. M. was first called, sworn and examined, 
 and there being no challenge for cause, was ordered to take 
 his place in the box; [ana 1 so on, with the exercise of the per- 
 emptory challenges. A fid if the panel is again exhausted, 
 proceed]. And the panel being exhausted the clerk was or- 
 dered to draw from the wheel, according to law, the names 
 
 of persons, and issue a venire to the sheriff, commanding 
 
 them to appear forthwith, and the same was accordingly done 
 
 by , clerk, in the presence of the court and of the sheriff, 
 
 for the following named persons [names of additional jurors 
 drawn], and upon a call of the said venire in open court the 
 following persons, to wit : [names], appeared in answer thereto. 
 Thereupon J. B. K. was called, sworn and examined, and 
 there being no challenge for cause, was ordered to take his 
 place in the box. 
 
 And the panel being complete, the following named per- 
 sons have been tried and accepted, to wit: [names of twelve 
 jurors accepted] were duly impaneled, and the following 
 oath administered to them: 
 
 "You and each of you shall well and truly try and true 
 deliverance make between the state of Ohio and the prisoner 
 at the bar, \V. T., so help you God." 
 
 Thereupon the trial of this cause- progressed, and the same 
 not being concluded, and the time of adjournment having ar- 
 rived, the court ad journed the further hearing thereof to . 
 
 No. 1347. 
 Capital Case continued -Entry upon Return of Verdict. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own
 
 844 JUDGMENT ENTRIES. 
 
 proper person in the custody of the sheriff and by counsel ; 
 also came the jury heretofore duly impaneled and sworn in this 
 case, and thereupon the trial of this cause progressed. And 
 the jury having heard the evidence, arguments of counsel 
 and charge of the court, retired to their room to deliberate 
 upon their verdict, and after due deliberation thereon returned 
 again into open court and presented their verdict in writing 
 in the words and figures following, to wit: [First style 
 of case, etc.] "We the jury in the case find the defendant, 
 W. T., guilty of murder in the first degree, committed in the 
 perpetration of robbery, in the manner and form he stands 
 charged in the indictment, and not guilty as he stands charged 
 in the second and third charge of the indictment. 
 
 F. C, Foreman." 
 Thereupon the court, at the request of the defendant, or- 
 dered that the jury be polled, and upon each juror being 
 called by name and inquired of if the verdict just read was 
 that of each for himself, separately answered: "It is." 
 
 No. 1348. 
 
 Capital Case continued — Entry overruling motion for New Trial 
 
 and Sentence. 
 
 \Cap tion.~\ 
 
 This day came the prosecuting attorney and assistants on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person, in the custody of the sheriff, and by counsel. 
 Thereupon this cause came on further to be heard on the 
 motion herein filed for a new trial, and the same was argued 
 by counsel and submitted to the court. And the court upon 
 due consideration thereof overrules said motion, to which rul- 
 ing of the court defendant excepted, and the said defendant 
 having on a former day of this term been convicted of murder 
 in the first degree, committed in the perpetration of a robbery, 
 was this day informed by the court of the verdict of the jury 
 and inquired of if he had anything to say why judgment 
 should not be pronounced against him, and after hearing his 
 statement, it is therefore considered and adjudged by the 
 court that the said defendant W. T. be taken hence to the 
 
 jail of county, and within the next thirty days the 
 
 sheriff of county convey the said W. T. to the Ohio 
 
 penitentiary, at Columbus, Ohio, and deliver him to the 
 warden of said penitentiary, and that he be there safely kept 
 until the — day of , 18 — , on which day, between the
 
 TRIAL, VERDICT AND JUDGMENT. 845 
 
 hours of 12 A. M. and sunrise of the same day, within an 
 enclosure inside the walls of the Ohio penitentiary, prepared 
 for that purpose, according to law, the said defendant shall 
 be electrocuted by the warden of the Ohio penitentiary, or in 
 case of his death, inability, or absence, by the deputy warden 
 of said penitentiary; that said warden, or his duly author- 
 ized deputy, shall cause to pass through the body of the said 
 defendant W. T. a current of electricity of sufficient intensity 
 to cause death, and that the application of such current of 
 electricity shall be continued by said warden of said peniten- 
 tiary, or said deputy warden as aforesaid, until the said defend- 
 ant W. T. is dead ; and that said defendant W. T. pay the 
 
 costs of this prosecution, taxed at $ , for which execution 
 
 is ordered. 
 
 No. 1348^. 
 
 Death Warrant. 
 
 (Sees. 7388 to 7344, as amended 92 V., 159.) 
 
 Court of Common Pleas. 
 
 The State of Ohio, 
 
 County. 
 
 To the Sheriff of said County : 
 
 Whereas, on the day of , in the year , as 
 
 is shown by the record of proceedings of said court, was 
 
 sentenced to be put to death by means of electricity, said 
 punishment to be inflicted within the walls of the Ohio peni- 
 tentiary, at Columbus, Ohio, on the day of , in the 
 
 year , and before the hour of sunrise on said day. You 
 
 are hereby commanded that within the next thirty days from 
 
 this day of , in the year , in as private and 
 
 secure a manner as is possible to be done, you convey the 
 
 said to the Ohio penitentiary, where the said prisoner 
 
 shall be received by the warden, and securely kept until the 
 day designated for his execution. 
 
 And the warden of said penitentiary is hereby commanded 
 to proceed, at the time and place named in this warrant, to 
 cause a current of electricity, of sufficient intensity to cause 
 death, to pass through the body of said , and to con- 
 tinue the application of such current of electricity to the 
 
 body of said until he be dead; and of the manner of 
 
 his execution of this warrant, and his doings thereon, he 
 make return to the- undersigned clerk of the county from 
 which the prisoner was sentenced.
 
 846 JUDGMENT ENTRIES. 
 
 Given under my hand and the seal of said court at 
 
 county, this day of , in the year . 
 
 Clerk of Court of Common Pleas County, Ohio. 
 
 warden's return. 
 
 Warden's Office, 
 Ohio Penitentiary. 
 
 To the Clerk of County, Ohio: 
 
 On the day of , in the year , I received this, 
 
 your warrant, together with the prisoner named herein, 
 whom I securely kept until the day designated for his exe- 
 cution; and on the day of , in the year , I 
 
 caused the said to be executed in the manner set forth 
 
 in the foregoing warrant. 
 
 Warden Ohio Penitentiary. 
 
 J 
 
 No. 1349. 
 Entry Withdrawing Juror — Indictment Nollied. 
 
 [Caption.] 
 
 This day came the prosecuting attorney and assistant on 
 behalf of the state of Ohio, and the defendant in his own 
 proper person, in the custody of the sheriff, and by counsel, and 
 the jury heretofore duly impaneled and sworn in this case, 
 and thereupon the prosecuting attorney made a motion to 
 withdraw a juror and enter a nolle in the case on the ground 
 that the state had not sufficient evidence to warrant a convic- 
 tion, and the court being fully advised in the premises sus- 
 tains said motion and orders that a juror be withdrawn, the 
 case nollied and the defendant discharged. 
 
 From State vs. Craft, Franklin County Common Pleas. 
 
 No. 1350. 
 Entry carrying Trial of Case from one term to another. 
 
 [Caption.] 
 
 This day came the state of Ohio by the prosecuting at- 
 torney and assistants, and the defendants in their own proper 
 persons and by their counsel, and the jury heretofore impan- 
 eled herein, and this cause progressed but the same was not
 
 MISCELLANEOUS. 847 
 
 concluded. This being the last day of the present term, the 
 
 term of , 18 — , of this court, and it being obvious that 
 
 the trial of this cause can not be finished before said term 
 terminates, for this cause or reason that it is proper to continue 
 and adjourn the trial of said cause to the next term of this 
 court, it is therefore ordered and directed that the said trial 
 be and the same is now hereby adjourned to the first day of 
 
 the next succeeding term, to wit, the — day of , 18 — , 
 
 on which day the case shall proceed and be disposed of as if 
 the trial had commenced at such succeeding term. 
 
 MISCELLANEOUS. 
 
 No. 1351. 
 Entry of Appointment of Assistant Prosecutor. 
 
 To the Honorable Judges of the Court of Common Pleas re- 
 siding in county, Ohio. 
 
 Gentlemen : 
 
 I hereby nominate as assistant prosecuting attorney of 
 
 county, Ohio, Mr. C. D. S., Esq., an attorney of this 
 
 county, for the period of one year, from day of 
 
 18 — , and request his appointment by your Honor, and that 
 his salary be fixed agreeably to Section 1271 R. S., as 
 amended by the General Assembly of Ohio February 26, 
 1896. Respectfully, 
 
 Prosecuting Attorney of county, Ohio. 
 
 We, the undersigned judges of the Court of Common 
 Pleas, residing in county, ( > 1 1 i < > , by virtue of the au- 
 thority conferred upon us by an act of the General Assembly 
 of the state of I >hio, entitled, An Act to Amend Section 1271 
 of the Revised Statutes of Ohio as amended February 26, 
 1896, do hereby appoinl C. I). S. , an attorney and counsellor 
 at law, duly licensed to practice in the state of Ohio, as as- 
 sistant prosecuting attorney of county, he, the said 
 
 C. D. S., having been nominated for said office by , 
 
 prosecuting attorney of said county, subsequent to the pas- 
 sage of said above recited act, for the period of one year from 
 and after the day of , [8 — , and we hereby fix the
 
 848 JUDGMENT ENTRIES. 
 
 salary of said assistant prosecuting attorney at the sum of 
 
 $ per annum, to be payable out of the county treasury 
 
 of said county as follows, to wit: in twelve monthly install- 
 ments of dollars, that is to say, on the day of , 
 
 dollars, and on the day of each and every month 
 
 thereafter until said amount is paid, and said auditor is or- 
 dered to draw his warrant for said respective sums when and 
 as they become due as specified. 
 
 Dated day of , 18 — . 
 
 [Signed by the Judges. "\ 
 
 OATH OF ASSISTANT PROSECUTOR. 
 
 I, C. D. S., do solemnly swear that I will support the 
 Constitution of the United States, the Constitution of the 
 state of Ohio, and faithfully discharge the duties of assistant 
 
 prosecuting attorney of county, Ohio, to the best of my 
 
 ability. C. D. S. 
 
 Sworn to before me and subscribed in my presence by 
 the said C. D. S. this day of , 18— . 
 
 R. S. Sec. 1271 ; 92 O. L. 37.
 
 JUDGMENT ENTRIES IN THE 
 PROBATE COURT. 
 
 8 49
 
 WILLS — PRODUCTION THEREOF. 85 1 
 
 WILLS— PRODUCTION THEREOF. 
 
 No. 1352. 
 Entry Upon Motion to Produce Will. 
 
 \Caption.~\ 
 
 This day came C. D. and filed herein a motion for the 
 issuance of a citation directed to one E. F., alleged to have 
 the custody of the will of one G. H., deceased, compelling 
 him to produce said will before this court that it may be 
 probated. 
 
 And it appearing that said C. D. is interested in said will 
 said motion is granted, and it is ordered that a citation issue 
 
 requiring said E. F. to appear in this court on the day 
 
 of and show cause why he should not produce said al- 
 leged will for probate in this court. 
 
 R. S. Sec. 5921. 
 
 No. 1353. 
 Entry Ordering Attachment to Issue. 
 
 \Caption.~\ 
 
 This canst- coming on further to be heard upon the mo- 
 tion heretofore filed herein for a citation against the said 
 E. F. to produce the will of G. H., deceased, and this being 
 the day set for the appearance of the said 1-'.. F., and he fail- 
 ing to appear in obedience to the order of this court, and 
 having also failed to produce the said alleged will, it is by 
 the court ordered that an attachment issue directed to the 
 sheriff of this county commanding said sheriff to forthwith 
 bring the body of the said I-',. F. into this court to abide such 
 order as may be made herein.
 
 852 JUDGMENT ENTRIES. 
 
 No. 1354. 
 
 Entry Committing to Jail. 
 
 [Caption. - ] 
 
 This day came the parties hereto (the saia E. F. in the 
 custody of the sheriff, in obedience to the attachment herein 
 before issued) and this cause coming on to be heard upon 
 the motion to compel the said E. F. to produce a certain al- 
 leged will of the said G. H., late of this county, deceased, 
 the said E. F. was examined concerning his refusal to pro- 
 duce said will, and the said E. F. still refusing to produce 
 said will, and the court being satisfied that he has not 
 reasonable cause for his refusal to produce said will, it is by 
 the court ordered that the said E. F. be committed to the 
 jail of this county, and be there confined until he shall be 
 willing to comply with the order of this court and produce 
 said will. 
 
 WILLS— PROBATE THEREOF. 
 
 No. 1355. 
 Entry of Filing of Will for Probate. 
 
 [Caption.] 
 
 This day came and presented to the court a paper 
 
 writing purporting to be the last will and testament of C. D., 
 late of said county, deceased, and made application for its 
 admission to probate as the last will and testament of said 
 C. D., deceased. It is therefore ordered that due notice ac- 
 cording to law be given to the widow and next of kin resid- 
 ing in Ohio of the filing thereof, and of the time set for 
 the hearing of said application, and that said application be 
 set for hearing on the day of , 18 — . 
 
 No. 1356. 
 
 Entry of Taking Testimony— Admitting Will to Probate. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the appli- 
 cation heretofore filed herein for the admission to probate a
 
 WILLS — PROBATE THEREOF. 853 
 
 paper writing purporting to be the last will and testament of 
 C. D. , deceased ; and it appearing to the court that due and 
 legal notice has been given to the widow and all the next of 
 kin of the said C. D., deceased, residing within the state of 
 Ohio, the said subscribing witnesses to said will thereupon 
 appeared and testified concerning the due execution of said 
 will, which said testimony was reduced to writing, and by 
 said witnesses subscribed and filed herein with said will. * 
 
 And the court being fully advised in the premises finds 
 that said instrument of writing is the last will and testament 
 of the said C. D., deceased; that the same was duly and 
 legally executed, and that the said C. D., at the time of mak- 
 ing and executing said will, was of legal age, of sound mind 
 and memory, and not under any restraint. 
 
 It is therefore considered, ordered and adjudged that the 
 said will be and the same is hereby admitted to probate, that 
 the same with all of the testimony taken be duly recorded in 
 the records of will in this court. 
 
 Note. — R. S. Sec. 5929. If there be interlineations in the will, the 
 court ought to make a finding that they were made before the execution 
 of the will. 
 
 R. S. Sec. 5926. 
 
 No. 1357. 
 Entry ordering Commission to issue to take Testimony. 
 
 [Caption.] 
 
 [Proceeding from * in ante No. 1356.] 
 
 And it appearing to the court that A. B., one of the sub- 
 scribing witnesses to said will does not reside in this countv, 
 
 but is a resident of , it is therefore ordered that a com- 
 
 mission with the will annexed issue, directed to C. D., em- 
 powering and requiring him to take the testimony of the said 
 A. I'.., said subscribing witness to said will, and to return the 
 same without delay to this court. 
 
 R. S. Sec. 5928. 
 
 No. 1358. 
 Entry taking Testimony of one Witness and Cause Continued. 
 
 [Co/)/ /on.] 
 
 This day this cause came on to be heard upon the appli- 
 cation heretofore filed herein for the admission to probate of 
 a paper writing, purporting to be the last will and testament
 
 854 JUDGMENT ENTRIES. 
 
 of C. D., deceased, and the court find that due notice accord- 
 ino- to law has been given to the widow and all of the next 
 of\in of said decedent residing within the state of Ohio. 
 
 And thereupon came E. F. , one of the subscribing wit- 
 nesses to said paper writing, who was duly sworn according 
 to law and testified as to the due execution of said will, whose 
 testimony was reduced to writing and filed herein. And 
 thereupon said cause is continued for further testimony. 
 
 No. 1359. 
 
 Entry taking Testimony of remaining Witness and Admitting 
 Will to Probate. 
 
 \_Caption.~] 
 
 This day came H. , the other subscribing witness to the 
 paper writing heretofore filed herein, purporting to be the 
 last will and testament of C. D., deceased, and testified con- 
 cerning the due execution of said will, which said testimony 
 was reduced to writing and subscribed by said witness and 
 filed herein. 
 
 And this cause coming on further to be heard, and the 
 court being fully advised in the premises, finds from the tes- 
 timony that said instrument of writing is the last will and 
 testament of the said C. D., deceased, that the same was duly 
 and legally executed according to law, and that the testator 
 was at the time of the making and execution of said will of 
 legal age, of sound mind and memory, and not under any 
 restraint. 
 
 It is therefore by the court ordered and adjudged that the 
 said will be and the same is hereby admitted to probate, and 
 that the same, together with the testimony of the subscribing 
 witnesses thereto, be recorded in the record of wills of this 
 court. 
 
 R. S. Sec. 5929. 
 
 No. 1360. 
 Entry of Refusal to Admit Will to Probate. 
 
 [Caption.'] 
 
 This day this cause came on to be heard upon the appli- 
 cation heretofore filed herein, to admit to probate a certain 
 paper writing purporting to be the last will and testament 
 of C. D., deceased. And the court finds that due notice,
 
 WILLS — PROBATE THEREOF. 855 
 
 according to law, has been given to the widow and next of 
 kin of said decedent residing in the state of Ohio, of the 
 filing of said application, and of the time set for the hearing 
 thereof. * 
 
 And thereupon came A. and B. , the subscribing witnesses 
 to said will, who, being duly sworn, testified concerning the 
 execution thereof, which said testimony was reduced to writ- 
 ing, and by said witnesses subscribed and filed herein. 
 
 And the court being fully advised in the premises finds 
 from the testimony taken herein that the said decedent, at 
 the time of making and executing said will, was not of sound 
 mind and memory, and the court does therefore refuse to 
 admit said alleged will to probate. And thereupon came 
 
 , and gave notice of his intention to appeal from this 
 
 decision to the court of common pleas of said county. 
 
 R. S. Sees. 5934, 5935. 
 
 No. 1361. 
 
 Entry when Testimony is Taken as to Genuineness of Signa- 
 tures of Subscribing Witnesses. 
 
 [ Caption. ] 
 
 [Proceeding from * in ante No. 1360.] 
 
 And it appearing to the court that A. and B. , the sub- 
 scribing witnesses to said paper writing, are deceased, there- 
 upon came E. and F., who were duly sworn and examined 
 concerning the genuineness of the signatures of said subscrib- 
 ing witnesses, whose testimony was reduced to writing and 
 filed herein with said will. 
 
 And thereupon came also and , who were duly 
 
 sworn, according to law, and testified as to the mental condi- 
 tion of said deceased, whose testimony was reduced to writ- 
 ing and subscribed by such witnesses, and filed herewith, 
 and the court being fully advised finds from the testimonv 
 so adduced that the said paper writing is the last will and 
 testament of the said C. I)., deceased, and that the same 
 was duly executed and attested, and that at the time of its 
 Mtion said testator was of full age, of sound mind and 
 memory, and not under any restraint. 
 
 It is therefore ordered that said will be admitted to pro- 
 bate, and that the same, together with all the evidence taken 
 herein, be entered of record in the record of wills of this 
 court. 
 
 R. S. Sec. 5929. 
 
 55
 
 856 JUDGMENT ENTRIES. 
 
 No. 1362. 
 Entry upon return of Commission — And Admission to Probate. 
 
 [Caption.] 
 
 This day the commission heretofore issued herein to , 
 
 of , to take the testimony of , one of the subscribing 
 
 witnesses to the will of said C. D., deceased, was returned 
 and filed herein. ■ 
 
 And thereupon this cause coming on further to be heard, 
 and the court being fully advised, does find from the testi- 
 mony taken herein that the said paper writing is the last will 
 and testament of the said C. D., deceased; that the said tes- 
 tator at the time of making and executing the same was of 
 full age, and of sound mind and memory, and not under any 
 restraint. 
 
 It is therefore ordered that the said will be admitted to 
 probate, and that the same, together with the testimony here- 
 tofore taken, be entered in the record of wills of this court. 
 
 R. S. Sec. 5929. 
 
 No. 1363. 
 
 Entry admitting Authenticated Copy of Will to Record. 
 
 [Caption.] 
 
 This day came and produced to the court an authen- 
 ticated copy of the last will and testament of C. D., late of 
 county, Indiana, deceased, for record herein. 
 
 And the court having carefully examined said authenti- 
 cated copy, and being satisfied that the said will of the said 
 C. D., deceased, was duly executed and proved according to 
 the laws of the said state of Indiana, and that there is prop- 
 erty situated in this county belonging to said testator which 
 is devised by said will, it is hereby ordered that said copy 
 be and the same is hereby admitted to record in this court. 
 
 R. S. Sees. 5937-40. 
 
 No. 1364. 
 
 Entry admitting Authenticated Copy to Record in another County 
 
 in the State. 
 
 [Caption.'] 
 
 This day came and produced to the court for record 
 
 an authenticated copy of the last will and testament of C. D.,
 
 WILLS — PROBATE THEREOF. 857 
 
 late of county, Indiana, together with a copy of an order 
 
 made by the probate court of county, Ohio, admitting 
 
 said authenticated copy to record therein, duly certified thereto 
 by the probate judge of said count}- under the seal of said 
 court. 
 
 And it appearing to the court that there is property be- 
 longing to the said C. D., deceased, and devised by him in 
 said will, which is situated in this county, it is ordered that 
 the said certified copy of said will and said order for record 
 be filed and recorded in this court according to law. 
 
 No. 1365. 
 
 Entry of filing of Authenticated Copy and continuance of Hearing. 
 
 [Caption.] 
 
 This day a paper writing purporting to be the last will 
 and testament of C. D., deceased, late of London, England, 
 and of the probate thereof, was presented by A. B., who 
 made application for the admission of the same to probate and 
 record herein. 
 
 Whereupon it is ordered that notice of the filing of such 
 application be given to all persons interested according to 
 law, and the said application to admit to probate and record 
 is hereby continued to . 
 
 Note.— R. S. Sec. 5939. 
 
 No. 1366. 
 
 Entry Admitting Foreign Wills to Probate. 
 
 [Caption. ] 
 
 Tli is day this cause came on to be heard upon the motion 
 heretofore made herein for the admission of a certain paper 
 writing purporting to be the last will and testament of C. D., 
 
 eased, late of London. England, and the court being sat- 
 isfied that due notice hereof has been given according to law, 
 the court having carefully examined said authenticated copy 
 of said will and probate thereof, and it appearing therefrom 
 that >aid will was executed and proved according to the laws 
 
 of England, and that there is property in this county devised 
 
 in said will, and that the same should be allowed and re- 
 corded herein, it is therefore ordered that said authenticated 
 copy be and the same is hereby admitted to record in this 
 court. 
 
 R. S. Sec. 5958
 
 858 JUDGMENT ENTRIES. 
 
 No. 1367. 
 
 Entry of Filing of Application to Admit Spoliated Will to 
 
 Probate. 
 
 [Caption."] 
 
 This day came A. B. and filed herein an application al- 
 leging that C. D., late of county, Ohio, deceased, died 
 
 leaving in existence at the time of his death a certain will 
 which has been destroyed since his death, and made applica- 
 tion for the admission of the same to probate. It is therefore 
 ordered that written notice be given of the filing of said ap- 
 plication to all persons whose interest it may be to resist the 
 
 probate, residing within the county of , and of the time 
 
 set for the hearing thereof according to law, which the court 
 fixes for the day of , 18 — , at — o'clock — M. 
 
 Note.— R. S. Sees. 5944, 5945. 
 
 No. 1368. 
 Entry Admitting Spoliated Will to Probate. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation heretofore filed herein for the admission to probate of 
 a certain will of the said C. D., deceased, alleged to have 
 been destroyed subsequent to his death, and the court being 
 satisfied that due and proper notice has been given as 
 required by law to all persons interested in said will, residing 
 
 in said county of , thereupon came and , the 
 
 subscribing witnesses to said will, and also , and 
 
 , who were duly sworn according to law, and testified 
 
 concerning the execution of said will and the contents 
 thereof, which said testimony was reduced to writing and by 
 said witnesses severally subscribed and filed herein. 
 
 And the court being fully advised, and upon a careful 
 consideration of said testimony, finds that the said C. D., 
 
 deceased, did, on the day of , make and execute his 
 
 last will and testament according to law, and that said will 
 remained unrevoked at the time of his death, but that the 
 same has been destroyed since his death, and that the said 
 testator at the time of making and executing said will was of 
 full age, of sound mind and memory, and not under re- 
 straint.
 
 WILLS — PROBATE THEREOF. 859 
 
 And the court further finds the following to be substan- 
 tially the contents of said will of said testator: [Set out the 
 contents of the will as established by the court. ~\ 
 
 It is therefore ordered that said will be and the same is 
 hereby admitted to probate, and that the same, together with 
 the testimony taken herein, be entered of record in the record 
 of wills of this court. 
 
 NOTE.— R. S. Sees. 5946, 5947. 
 
 No. 1369. 
 
 Entry Admitting to Record Authenticated Copy of Destroyed Will. 
 
 [Caption.] 
 
 This day came A. B. , and presented to the court a copy 
 of the last will and testament of C. D., deceased, and made 
 application for the admission of the same to record herein, 
 in lieu of the record of said will heretofore destroyed. 
 
 And it appearing to the court that the record of said 
 original will has been destroyed, and that the copy presented 
 is a true copy of the original will of the said C. D., deceased, 
 it is ordered that the same be recorded in this county, accord- 
 ing to law. 
 
 Note.— R. S. Sec. 5949. 
 
 No. 1370. 
 
 Entry Admitting Nuncupative Will to Probate. 
 
 [Caption. \ 
 
 This day came A. B., and represented to the court that 
 
 C. D., late of township, county, Ohio, deceased, 
 
 died on the day of , 18 — , and that during his last 
 
 sickness made a nuncupative will. And thereupon came E. 
 F. and C. II., who were witnesses to the speaking of said 
 testamentary words by the said C. D., deceased, who were 
 duly sworn, according to law, and testified concerning the 
 speaking of said testamentary words, whose testimony was 
 reduced to writing, and by them subscribed and filed herein. 
 And the court being fully advised, and upon a careful consid- 
 eration of said testimony, finds that on the day of , 
 
 18 — ( the said C. D. , being in his last sickness, at his resi- 
 dence in township, county, Ohio, in the presence 
 
 of the said E. F. and G. II., two competent, disinterested
 
 860 JUDGMENT ENTRIES. 
 
 witnesses, did speak the following testamentary words, which 
 
 were reduced to writing, on the day of , 18 — , and 
 
 are as follows: \Copy nuncupative will\. 
 
 And the court being satisfied that the said testator was of 
 sound mind and memory, and not under any restraint, and 
 that he called upon said witnesses, at the time the said testa- 
 mentary words were spoken, to bear testimony to said dispo- 
 sition as his will, and that said witnesses are competent and 
 disinterested, it is ordered that the said testamentary words 
 be and the same are hereby admitted to probate as the verbal 
 will of the said C. D., deceased, and that the same, together 
 with the testimony of the witnesses, be entered of record in 
 this court. 
 
 R. S., Sees. 5991, 5992. 
 
 SELECTION OF WIDOW. 
 
 k-- 
 
 {R. 5. Sees. 5963— 5966.) 
 
 No. 1371. 
 Entry ordering Citation to Widow to make Election. 
 
 [Caption.] 
 
 The last will and testament of C. D., deceased, having 
 been heretofore duly admitted to probate herein, it is ordered 
 that a citation issue to , widow of said deceased, requir- 
 ing her to appear in this court within twelve (12) months 
 after the service of said citation upon her and make known 
 to this court whether she will elect to take the provisions 
 made for her by said will, or whether she will reject said will 
 and take under the law. 
 
 Note.— R. S. Sec. 5963. 
 
 No. 1372. 
 
 Entry of Election of Widow. 
 
 \Caption.~\ 
 
 This day came , widow of the said C. D. , deceased, 
 
 in obedience to the citation heretofore issued herein requiring 
 her to appear and make her election under the will.
 
 ELECTION OF WIDOW. S6l 
 
 And the court having fully explained and made known 
 to her the provisions of said will and her rights under it, as 
 
 well as her rights under the law, the said elected to 
 
 take under said will. 
 
 No. 1373. 
 
 Entry ordering Commission to issue to take Election of Widow. 
 
 [Caption.] 
 
 It appearing to the court that A. B., widow of C. D., late 
 of said county, deceased, is unable by reason of ill health to 
 appear in person in this court and make her election whether 
 she will take under the will of C. D. , deceased, or not, it is 
 by the court ordered that a commission issue to one E. F. , 
 with a cop}' of the will of said testator annexed thereto, re- 
 quiring him to proceed without delay and take the election 
 of said widow according to law. 
 
 No. 1374. 
 Entry of return of Commission. 
 [Caption.] 
 This dav the commission heretofore issued herein to 
 
 requiring him to take the election of A. B. , widow of said 
 C. D., deceased, was returned and filed herein, and it appears 
 from said return that the said widow elects to take under the 
 will, and the same is hereby entered of record herein. 
 
 No. 1375. 
 
 Entry appointing person to ascertain value of Rights of Insane or 
 Imbecile Widow. 
 
 [Caption."] 
 
 It being made satisfactorily to appear to the court that A. 
 B., widow of C. I)., deceased, is l>v reason of insanity unable 
 t<> appear in this court and make her election under the will 
 of her said husband, it is ordered that K. F. he and he is 
 hereby appointed and required to ascertain the value of the 
 provision made by said testator for said widow in lieu of the 
 provisions made by law, and the value of the rights by law 
 in the estate <>f the deceased husband and report the results of 
 his investigation herein without delay. 
 
 Note.— R. S. Sec. 5966.
 
 862 JUDGMENT ENTRIES. 
 
 No. 1376. 
 
 Entry Upon Report of Commissioner Declaring Election of 
 Insane Widow. 
 [Caption.] 
 
 This day came E. F. , heretofore appointed herein to as- 
 certain the value of the provision made by the said C. D., 
 deceased, in his will for his widow, A. B. , and also the value 
 of her interest by law in the estate of said testator, and filed 
 his report herein, and the court having carefully examined 
 said report, and being satisfied that the provision made in 
 said will is more advantageous and for the best interest of the 
 said widow than her rights under the law, does now enter 
 and declare an election for said widow to take the provisions 
 made for her in the will of said decedent. 
 
 TESTAMENTARY TRUSTEES. 
 
 (X. S. Sees 5981—5990.) 
 
 No. 1377. 
 
 Entry Appointing Trustee. 
 [Caption.] 
 
 This day came A. B., named in the last will and testa- 
 ment of C. D., deceased, heretofore admitted to probate 
 herein, and made application to be appointed as such trustee, 
 and filed herein a statement of the property to be administered 
 by him as such trustee under said will. 
 
 It is therefore ordered by the court that the said A. B. be 
 and he is hereby appointed trustee under said will, and that 
 
 he enter into a bond in the sum of $ , as such trustee, 
 
 conditioned according to law, with sureties to the approval of 
 this court. And thereupon came the said A. B. , and accepted 
 said appointment and filed herein his bond in the sum of 
 $ , with B. H. and I. J. as sureties, which bond is ap- 
 proved by the court. 
 
 It is thereupon ordered that letters of trusteeship under 
 the will of said C. D. , deceased, issue to said A. B. , and that 
 he proceed to administer said trust according to the terms of 
 said will and the law.
 
 TESTAMENTARY TRUSTEES. 863 
 
 No. 1378. 
 
 Entry Appointing Person to Execute Trust Upon Declination 
 
 of Trustee. 
 \Ca,ptionJ\ 
 
 A. B., named in the last will and testament of C. D., 
 deceased, as trustee, having declined to act, it is by the court 
 ordered that E. F. be and he is hereby appointed trustee to 
 execute said trust according to the will, and that he enter 
 into a bond as such trustee in the sum of $ . 
 
 And thereupon came the said E. F. and filed herein his 
 
 bond in the sum of $ , with and as sureties, 
 
 which bond is approved by the court. 
 
 R. S. Sec. 59S6. 
 
 No. 1379. 
 
 Entry Authorizing Foreign Trustee to Act. 
 
 \Caption.~\ 
 
 This day came A. B. and filed herein a duly authenticated 
 copy of his appointment as trustee under the will of C. D., 
 
 late of . And the court upon examination thereof finds 
 
 that said appointment was duly and legally made according 
 
 to the laws of , and that there is land situated in this 
 
 county belonging to the said deceased, it is ordered that let- 
 ters of trusteeship be granted to the said A. B. under said 
 will and that he enter into a bond as such trustee in the sum 
 of $ , conditioned according to law. 
 
 And thereupon the said A. B. filed herein his bond as 
 
 such trustee in the sum of $ , with and as 
 
 sureties, which is approved by the court. And the said A. 
 B. is thereupon authorized to execute the trust in this 
 county. 
 
 Note.— R. S. Sec. 5987.
 
 864 JUDGMENT ENTRIES. 
 
 APPOINTMENT OF EXECUTORS AND 
 ADMINISTRATORS. 
 
 {R. S. Sees. 5994 — 6022.) 
 
 No. 1380. 
 
 Entry appointing Executor — Appraisement dispensed with — 
 Inventory ordered. 
 
 [Caption.] 
 
 This day came A. B., named in the last will and testament 
 of C. D., deceased, as the executor thereof, and accepted said 
 appointment and filed herein an estimate of the value of said 
 estate. 
 
 It is therefore ordered by the court that the said A. B. be 
 and he is hereby appointed executor of the last will and tes- 
 tament of the said C. D., deceased, and that he enter into a 
 
 bond as such executor in the sum ot $ ( dollars), 
 
 conditioned according to law, with sureties to the approval of 
 the court. [Or, if no bond is required say : and the will having 
 expressed a desire that the said A. B. be not required to give 
 bond as such executor the same is hereby dispensed with by 
 the court.] 
 
 And thereupon came the said A. B. and filed herein his 
 
 bond in the sum ot $ , with and as sureties, 
 
 which said bond is approved by the court. It is therefore 
 ordered that letters testamentary issue to the said A. B. And 
 the said testator having expressed a desire in his said will 
 that an appraisement of his personal goods and chattels be 
 dispensed with, it is ordered that no appraisement be made, 
 but that the executor make and return herein an inventory 
 without appraisement of the personal property belonging to 
 said estate. 
 
 R. S. Sees. 5994, 5995.
 
 APPOINTMENT OF EXECUTORS, ETC. 865, 
 
 No. 1381. 
 
 Entry appointing Widow or Next of Kin. 
 
 \Caption.~\ 
 
 This day came A. B., widow (or son) of C. D., late ot 
 said county, deceased, and filed herein an application to be 
 appointed administrator of the estate of said C, D. , deceased, 
 and filed herein an estimate ot the estate ot said deceased. 
 
 It is therefore ordered by the court that the said A. B. be 
 and she is hereby appointed administratrix of the estate of C. 
 D. , deceased, and she is ordered to enter into a bond as such 
 
 administratrix in the sum of % to the approval of this 
 
 court. And thereupon came the said A. B. and filed her 
 
 bond herein in the sum ot $ , conditioned according to 
 
 law, with E. F. and G. H. as sureties thereon, which bond 
 is approved by the court. 
 
 It is therefore ordered that letters of. administration issue 
 to the said A. B. as such administratrix, and that she proceed 
 tc administer said estate according to law. 
 
 It is further ordered that , , and be and 
 
 they are hereby appointed appraisers. 
 
 R. S. Sec. 6005. 
 
 No. 1382. 
 
 Entry Ordering Citation to Widow and Next of Kin. 
 
 [c~V?/>/Ww.] 
 
 Upon motion, it is ordered that a citation issue requiring 
 widow, and , next of kin of C. D., late of said 
 
 county, deceased, to appear on or before the day of 
 
 , 18 — , and make known whether or not they will accept 
 
 or decline the administration of the estate of the said C. D., 
 deceased, and that return be made of said citation on or 
 before said date. 
 
 No. 1383. 
 
 Entry of Appointment Upon Declination of Widow or Next of Kin. 
 
 \Caption. I 
 
 The widow and next of kin of C. D., deceased, having 
 filed herein their declination to accept the administration of 
 said estate, thereupon came A. B. (etal.), and filed herein theil
 
 866 JUDGMENT ENTRIES. 
 
 declination to accept the administration of said estate ; there- 
 upon came E. F., and filed herein an application to be ap- 
 pointed administrator of the estate of said C. D. , deceased, 
 and also a statement of the value of the estate of said de- 
 cedent. 
 
 It is therefore by the court ordered that the said E- F. be 
 and he is hereby appointed administrator of said estate of 
 said C. D., deceased, and he is ordered to enter into a bond 
 as such administrator in the sum of $ , conditioned ac- 
 cording to law, with sureties to the approval of the court. 
 And thereupon came the said A. B. , and accepted said ap- 
 pointment, and presented his bond in the sum of $ , with 
 
 an d as sureties, which said bond is approved by 
 
 the court and filed herein. It is therefore ordered that letters 
 •of administration issue to the said A. B. as such adminis- 
 trator, and that he proceed, according to law, to administer 
 
 said estate. It is further ordered that , and 
 
 be and they are hereby appointed appraisers. 
 
 No. 1384. 
 Entry Appointing Special Administrator. 
 
 \Caption. ] 
 
 Upon motion, and for satisfactory reasons, it is by the 
 court ordered that A. B. be and he is hereby appointed spe- 
 cial administrator of the estate of C. D., deceased, and he is 
 ordered to enter into a bond in the sum of $ . 
 
 And thereupon came A. B. and accepted said appoint- 
 ment, and filed herein his bond as such special administrator 
 
 in the sum of $ , conditioned according to law, with 
 
 an d as sureties thereon, which bond is approved 
 
 by the court. 
 
 It is therefore ordered that the said A. B. proceed to 
 collect and preserve the effects of the estate of said decedent 
 until letters testamentary, or of administration, may be 
 granted. 
 
 R. S. Sees. 6007-1 1. 
 
 No. 1385. 
 Entry Appointing Administrator, with the Will Annexed. 
 
 \CaptionJ\ 
 
 A. B., named in the last will and testament of C. D., 
 deceased, as the executor thereof, having declined to accept
 
 APPOINTMENT OF EXECUTORS, ETC. 867 
 
 said trust, thereupon came E. F., and filed herein his appli- 
 cation to be appointed administrator with the will annexed 
 of the estate of said C. D., deceased, and also a statement of 
 the value of said estate, and also a declination of the widow 
 and next of kin to administer said trust. 
 
 It is therefore by the court ordered that said E. F. be 
 and he is hereby appointed administrator with the will an- 
 nexed of the estate of said C. D., deceased, and he is ordered 
 to enter into a bond in the sum of $ , conditioned accord- 
 ing to law, with sureties to the approval of this court; and 
 thereupon came the said E. F., and filed herein his bond in 
 
 the sum of $ , conditioned according to law, with 
 
 and as sureties, which said bond is approved by the 
 
 court. 
 
 It is therefore ordered that letters of administration upon 
 the estate of said C. D., deceased, be issued to the said E. F., 
 and that he proceed to administer said estate according to 
 the will and the law. 
 
 R. S. Sec. 6000. 
 
 No. 1386. 
 Entry Appointing Administrator de bonis non. 
 
 \Ca,ption.~\ 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and filed herein his resignation as such adminis- 
 trator, which is accepted by the court. 
 
 And thereupon came C. D., and filed herein his applica- 
 tion to be appointed administrator dc bonis non of the estate 
 of the said C. D., deceased, and also a statement of the value 
 
 of said estate. It is therefore ordered that the said be 
 
 and he is hereby appointed administrator de bonis non of the 
 estate of the said C. D., deceased, and he is ordered to enter 
 
 into a bond in the sum of $ , conditioned according to 
 
 law, with sureties to the approval of the court; and there- 
 upon came the said and accepted said appointment, 
 
 and filed his bond herein in the sum of $ , conditioned 
 
 according to law, with and as sureties, which said 
 
 bond is approved and filed. 
 
 It is thereupon ordered that letters of administration de 
 boms non issue to the .said , and that he proceed to ad- 
 minister the estate not yet disposed of according to law. 
 
 R. S. Sec. 601S.
 
 868 JUDGMENT ENTRIES. 
 
 No. 1387. 
 Entry Granting Leave to give Notice of Appointment. 
 
 [Caption.] 
 
 This day came A. B. , administrator [or, executor of the 
 last will and testament] of C. D., deceased, and filed herein 
 his petition representing that by accident he failed to give 
 notice of his appointment within the three months limited 
 by law for that purpose and asking leave to give such notice 
 
 now. . 
 
 It is therefore ordered by the court that the said admin- 
 istrator be and he is hereby granted leave to give such notice 
 forthwith according to law. 
 
 R. S. Sec. 6088. 
 
 RESIGNATION, DEATH OR REMOVAL OF 
 EXECUTOR OR ADMINISTRATOR. 
 
 (i?. S. Sees. 6015— 16— 17.) 
 
 No. 1388. 
 Entry of Resignation of Administrator. 
 
 [Caption.'] 
 
 This day came , administrator of the estate of 
 
 deceased, and tendered and filed his resignation as such ad- 
 ministrator, which the court for satisfactory reasons accepts. 
 
 [ Then may follow appointment of new administrator as 
 in ante No. 1383.] 
 
 R. S. Sec. 6015. 
 
 No. 1389. 
 Entry Removing Administrator. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the motion here- 
 tofore filed herein for an order to remove A. B. , administrator
 
 ADMINISTRATION BOND, ETC. 869 
 
 of the estate of C. D., deceased, and the court having heard 
 the evidence adduced, and due notice hereof according to law 
 having been given to said administrator, finds that said 
 administrator has failed to file an account of his administra- 
 tion according to law [or other reasons], it is by the court 
 ordered that the said A. B. be. and he is hereby removed as 
 such administrator and his letters of administration revoked. 
 R. S. Sec 6017. 
 
 ADMINISTRATION BOND — RELEASE OF 
 SURETIES, ETC. 
 
 (R. S. Sees. 6204 — 6216.) 
 
 No. 1390. 
 
 Entry of Filing of Application of Surety to be Released. 
 
 [ Caption. ] 
 
 This day came M., one of the sureties on the bond of 
 D., as administrator of the estate of F., deceased, and filed 
 herein his application to be released as such surety. 
 
 It is therefore ordered that said application be set for 
 
 hearing on the day of , 18 — , at o'clock — M., 
 
 and that said give said administrator notice in writing 
 
 according to law. 
 
 R. S. Sec. 6204. 
 
 No. 1391. 
 
 Entry Releasing Surety. 
 
 [Caption. J 
 
 This day this cause coming on to be heard upon the ap- 
 plication of , heretofore filed herein, to be released as 
 
 surety upon the bond of , administrator of the estate of 
 
 , deceased, and it appearing to the satisfaction of the 
 
 court that due notice has been given of the filing and of the 
 time set for the hearing of said application, and it appearing 
 to the court that there is good reason for granting said ap-
 
 870 JUDGMENT ENTRIES. 
 
 plication, it is ordered that the said be and he is hereby 
 
 released and discharged from further liability upon said bond, 
 
 and that [the said , as such administrator, enter into a 
 
 new bond in the sum of $ , with sureties according to 
 
 law, on or before , 18 — . 
 
 R. S. Sec. 6204. 
 
 No. 1392. 
 Entry of filing of New Bond upon Release of Surety. 
 \CaptionJ\ 
 
 This day came A. D. , administrator of the estate of E. F. , 
 deceased, and filed herein a new bond in obedience to the 
 
 order of the court in the sum of dollars, conditioned 
 
 according to law, with and as sureties, which said 
 
 bond is approved by the court and ordered recorded. 
 
 No. 1393. 
 Entry of Removal when New Bond not filed as per Order. 
 
 \Caption. ] 
 
 It appearing to the court that A. D., administrator of the 
 
 estate of , deceased, has failed to comply with the order 
 
 of the court heretofore made requiring him to give an addi- 
 tional (0/-, a new bond) in the sum of $ , with sureties to 
 
 the approval of the court, on or before , 18 — , and that 
 
 said A. D. has not filed such additional bond as required of 
 him, it is ordered that he be and he is hereby removed from 
 his trust as administrator of said estate and his letters revoked, 
 and he is required to file an account of his doings as such 
 administrator on or before , 18 — . 
 
 \A new appointment may be made in same entry as in ante 
 No. 1383.] 
 
 No. 1394. 
 Entry ordering Administrator to give Bond of Indemnity. 
 
 \Caption. ] 
 
 This day this cause came on for hearing upon the appli- 
 cation of M. R., surety upon the bond of N. O., administrator 
 [<?r, executor of the will] of the estate of C. D., deceased, for
 
 ADMINISTRATION BOND, ETC. 871 
 
 an order requiring said administrator to render an account, 
 and to execute to said M. R. a bond of indemnity ; and it 
 appearing to the court that said administrator has had due 
 and proper notice hereof, and the court being satisfied that 
 said administrator has unfaithfully administered said estate, 
 it is ordered that he render an account of his acts and doings 
 
 as such administrator to this court on or before , 18 — , 
 
 and that he enter into a bond of indemnity to said M. R. as 
 
 such surety, in the sum of $ within — days hereof, with 
 
 sureties to the approval of this court. 
 
 R. S. Sec. 6208. 
 
 No. 1395. 
 
 Entry Removing Administrator upon failure to give Bond of 
 Indemnity. 
 
 \Caption.~\ 
 
 It appearing to the court that N. O. , administrator of the 
 estate of C. D., deceased, has neglected and failed to execute 
 to M. R., surety upon his bond as such administrator, a bond 
 of indemnity as required by a former order of this court, and 
 good cause being shown herefor, it is ordered that N. O. be 
 and he is hereby removed from his trust as administrator of 
 such estate, and his letters revoked, and that he file an ac- 
 count herein on or before , 18 — . 
 
 R. S. Sec. 6208. 
 
 No. 1396. 
 
 Entry authorizing Suit upon Administration Bond. 
 
 \Caption.~\ 
 
 This cause coming on to be heard upon the motion of 
 (a creditor, next of kin, etc.) for an order authorizing 
 
 him to bring suit upon the bond of A. B. as administrator 
 executor] of the estate of C. D., deceased, and it appear- 
 in- as represented by said that said administrator [or, 
 
 executor] lias failed to perform his duty as represented by said 
 
 in nis said motion, it is ordered that he be and he is 
 
 hereby authorized to bring suit upon the bond of said A. B. 
 
 as administrator of said estate. 
 R. S. Sec. 6212. 
 
 r,»;
 
 $J2 JUDGMENT ENTRIES. 
 
 INVENTORY AND APPRAISEMENT. 
 
 (R. S. Sec. 6023.) 
 
 No. 1397. 
 Appointment of Appraisers. 
 
 R. S. Sec. 6023. Usually, if not always, made when appointment is 
 made. Ante No. 1381. 
 
 No. 1398. 
 Appraisement Dispensed with. 
 
 R. S. Sec. 6023. Made as in ante No. 1380. 
 
 No. 1399. 
 Entry of Filing of Inventory and Appraisement. 
 
 [ Caption. ] 
 
 This day came R. S., administrator of the estate of A. B., 
 deceased, and returned and filed herein an inventory and ap- 
 praisement of the property and assets of said estate. And the 
 court upon examination thereof, finding the same in all re- 
 spects regular and correct, does therefore approve and con- 
 firm the same and order that it be duly entered of record 
 herein. 
 
 No. 1400. 
 Entry ordering Citation to Return Inventory. 
 
 \Caption.~\ 
 
 It appearing to the court that A. B., administrator of the 
 estate of C. D. , deceased, has neglected and refused to return 
 an inventory and appraisement of the property and assets of said 
 estate within three months after his appointment, as required
 
 INVENTORY AND APPRAISEMENT. 873 
 
 by law, it is ordered by the court that a citation issue requir- 
 ing said administrator to make return and file herein an in- 
 ventory, according to law, on or before , 18 — . 
 
 R. s. 6047. 
 
 No. 1401. 
 
 Entry ordering Attachment of Administrator for Failure to Obey 
 Citation to return Inventory. 
 [Caption.] 
 
 It having been made to appear to the court that A. B. , 
 administrator of the estate of C. D., deceased, has been served 
 personally with a citation issued from this court requiring 
 him to return an inventory and appraisement of the estate of 
 
 the said C. D. , deceased, on or before the day of , 
 
 18 — , and that said A. B., as such administrator, has wholly 
 failed and refused to comply with said order of court and 
 said citation, it is therefore ordered that an attachment issue 
 herefrom, directed to the sheriff of this county, commanding 
 him to attach the person of the said A. B. and bring his body 
 before this court that he may answer for his disobedience to 
 comply with the order of this court. 
 
 N OT E —.Although tne Statute, Sec. 6048, authorizing an attachment 
 against the administrator has been repealed, nevertheless the court has 
 power, independently thereof, to punish an administrator for violating 
 an order of court, as for contempt, and it is believed, therefore, that 
 the foregoing entry is good. 
 
 No. 1402. 
 
 Entry removing Administrator for Failure to File and Return 
 Inventory as ordered. 
 
 [Caption.] 
 
 R. S , administrator, having failed and neglected to com- 
 ply with tin- order of this court, heretofore made herein, re- 
 quiring him to return an inventory of the property and assets 
 of the estate of the said A. I >.. deceased, within the time re- 
 quired by said <nd<r. it is ordered by the court that the said 
 R. S. be and he is hereby removed from his said trust, as ad- 
 ministrator of said estate, and his letters of administration 
 revoked. And it is further ordered that said R. S. make, 
 render, and file an account of his doings as such administra- 
 tor on or before , iS — .
 
 S74 JUDGMENT ENTRIES. 
 
 No. 1403. 
 Entry of Filing of Exceptions to Inventory. 
 
 [Caption.] 
 
 This day came [name], one of the heirs at law of the said 
 decedent, A. B. , [or a creditor of said estate], and filed his 
 written exceptions to the inventory of R. S. , as administrator 
 of the estate of the said A. B., deceased. It is ordered that 
 
 the same be set for hearing on the day of , 18 — , 
 
 and that the said [name] cause a written notice thereof to be 
 given to the said R. S. , as such administrator, not less than 
 five days before the said day of , 18 — . 
 
 R. S. Sec. 6024. 
 
 No. 1404. 
 Entry Upon Hearing of Exceptions. 
 
 [Caption.] 
 
 This cause coming on for hearing upon the exceptions 
 filed herein by [name] to the inventory filed herein by R. S., 
 as administrator of the estate of A. D., deceased, and it ap- 
 pearing to the court that due notice thereof has been given 
 to the said administrator as required by law, said exceptions 
 and the evidence adduced by the parties were submitted to the 
 court. On consideration thereof, and being fully advised, 
 the court finds that the said exceptions are well taken in the 
 following particulars, and to that extent does sustain the 
 same, to wit : [state]. 
 
 It is therefore considered and adjudged by the court that 
 [follow with whatever the order may be]. 
 
 R. S. Sec. 6023. 
 
 No. 1405. 
 Entry Reviewing Allowance to Widow. 
 
 [Caption.] 
 
 This cause came on this day to be heard upon the petition 
 of A. B., widow of C. D., deceased, to review the allowance 
 made to her by the appraisers heretofore appointed to ap- 
 praise the estate of the said C. D., deceased, and for an in- 
 crease of the amount so allowed to her ; and the court having 
 heard the evidence adduced by the parties, and being fully
 
 CONCEALMENT OF ASSETS. 875 
 
 advised in the premises, finds that the sum so set off and al- 
 lowed to such widow by said appraisers is not an adequate 
 
 sum for her support, but that the sum of $ is necessary 
 
 for the support of said widow for one year. 
 
 It is therefore ordered by the court that said allowance so 
 made by said appraisers be and the same is hereby set aside ; 
 and it is further ordered that E. F., administrator of the 
 estate of the said C. D., deceased, pay to said widow the said 
 
 sum of $ out of the moneys first coming into the hands 
 
 of the said administrator belonging to said estate. 
 
 Note.— R. S. Sec. 6043. 
 
 No. 1406. 
 
 Entry Ordering New Assets After Return of First Inventory 
 and Appraisement. 
 
 \Captio)i.~\ 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and represented that certain assets and property 
 belonging to said estate has come to his knowledge [<?/-, pos- 
 session] ; it is therefore upon motion of said administrator 
 hereby ordered that said property be appraised upon the 
 oaths of E. F., G. H. and I. J., and that the said adminis- 
 trator return an inventory and appraisement of said property 
 on or before the day of , 18 — . 
 
 NOTE. — R. S. Sec. 6061. The return must be made within two months 
 after the discovery. 
 
 CONCEALMENT OF ASSETS. 
 
 (A'. S. Srcs. 6053 — 6060.) 
 
 No. 1407. 
 Entry Upon Complaint for Concealing Assets. 
 
 [Caption.] 
 
 This day came A. B., administrator of the estate of C. D., 
 
 deceased, and filed herein a complaint, charging with 
 
 concealing assets belonging to the estate of said deceased.
 
 876 JUDGMENT ENTRIES. 
 
 It is therefore ordered that a citation issue requiring the 
 
 said to appear before this court on the day of , 
 
 18 — , and be examined on oath touching the matter of said 
 complaint. 
 
 R. s. Sec. 6054. 
 
 No. 1408. 
 
 Entry Ordering Attachment of Person Charged with Concealing 
 Assets for Contempt in Refusing to Obey Citation. 
 
 [ Caption. ] 
 
 It having been made to appear to the court that A. B., 
 against whom a citation has been heretofore issued from this 
 
 court, requiring him to appear on the — day of , and be 
 
 examined concerning an alleged charge of concealing certain 
 assets belonging to the estate of C. D., deceased, it is ordered 
 by the court that a writ of attachment issue, directed to the 
 sheriff of this county, commanding said sheriff to attach the 
 body of the said A. B. , and bring him forthwith into this 
 court, to show cause why he shall not be punished for the 
 violation of the said order so as aforesaid made in this behalf. 
 
 No. 1409. 
 
 Entry Ordering Person Charged with Concealing Assets to be 
 Committed to Jail for Failing to Answer Questions. 
 
 [ Caption. ] 
 
 This day this cause coming on to be heard upon the com- 
 plaint heretofore filed herein against the said E. F., charging 
 him with the concealment of certain assets described therein, 
 and the cause proceeding to trial, the said E. F. refused to 
 answer certain questions propounded to him during the prog- 
 ress of such examination, and the said E. F. still refusing to 
 answer said questions after having been ordered to do so by 
 this court, it is therefore considered and ordered that the said 
 E. F. be committed to the jail of this county, and be there 
 confined until he shall be ready and willing to answer the 
 questions so propounded to him, or until he shall be other- 
 wise discharged. 
 
 R. S. Sec 6054.
 
 CONCEALMENT OF ASSETS. 877 
 
 No. 1410. 
 Entry Not Sustaining Charge of Concealment of Assets. 
 
 [Caption/] 
 
 This cause coming on further to be considered, upon the 
 complaint hereinbefore filed by , charging , admin- 
 istrator of the estate of C. D., deceased, with having con- 
 cealed certain assets belonging to the estate of said C. D., 
 deceased, as therein described, neither party having demanded 
 trial by jury; and the court having heard the examination of 
 the accused [naming him], and the other testimony adduced 
 
 by the parties, finds therefrom that the said has not 
 
 been guilty of concealing assets belonging to said estate, as 
 charged in said complaint, and does therefore discharge him 
 herefrom. 
 
 R. S. Sec. 6057. 
 
 No. 1411. 
 
 Entry finding Accused Guilty of Concealment of Assets, and 
 Judgment thereon. 
 
 [Caption/] 
 
 This day this cause came on to be heard upon the com- 
 plaint hereinbefore filed by [or, by A. B., administrator 
 
 of the estate of C. D., deceased, or creditor, devisee, legatee, 
 heir or other interested person, as the ease maybe] and the 
 parties hereto having waived their right to trial by jury the 
 cause proceeded to hearing before the court. And the court 
 having heard the examination of , who is accused of con- 
 cealing the assets of said estate, and of the other witnesses, 
 
 and being fully advised in the premises finds that said 
 
 is guilty as charged in the complaint of having concealed [or, 
 embezzled, or, conveyed away] the property described in the 
 said complaint, the value of which property the court finds to 
 
 be the sum of $ , and that the said estate has been damaged 
 
 by reason thereof in the sum of $ . 
 
 It is therefore considered, ordered and adjudged that 
 [where the accused u not the administrator] A. B., the admin- 
 istrator of the estate of the said C. I).. de< eased, recover from 
 
 the said the said sum of $ , being the value of the 
 
 property so as aforesaid found to have been concealed, to- 
 gether with ten percent penalty and the costs of this proceed- 
 ing, taxed at 9 .
 
 878 JUDGMENT ENTRIES. 
 
 [ When the judgment is against the administrator or exec- 
 utor it may be in the following form :] 
 
 It is therefore considered and adjudged that the state of 
 Ohio, for the use and benefit of the estate of C. D., deceased, 
 recover from the said A. B., administrator as aforesaid, the 
 
 sum of $ , the value of the property aforesaid, together 
 
 with a penalty of ten percent, and the costs of this proceed- 
 ing herein, taxed at $— . 
 
 NOTE. — R. S. Sec v 6o57. The entry should show a waiver of trial by 
 jury as that right exists. In order to make the money upon such a judg- 
 ment, a transcript thereof should be fded with the clerk of the common 
 pleas court, and thenceforth proceedings on execution will be had as in 
 ordinary cases. 
 
 Note.— R. S. Sec. 6058. 
 
 COMPOUNDING WITH DEBTOR. 
 
 No. 1412. 
 
 Entry authorizing Administrator or Executor to Compound with 
 Insolvent Debtor. 
 
 [ Caption. ] 
 
 This day came A., administrator [or } executor] of the 
 estate of B. , and represented to the court that one C. is in- 
 debted to said estate in the sum of $ , but that he is 
 
 insolvent and unable to pay all of his debts, including the 
 one due said estate, in full, and asks for an order authorizing 
 him to compromise and compound said claim. 
 
 And the court finding that such representations are true, 
 and believing it to be for the best interests of the estate of 
 said B., deceased, does therefore authorize said administrator 
 to receive from the said C. the sum of $ in full satisfac- 
 tion of said claim. 
 
 Note.— R. S. Sec. 6073.
 
 ACTIONS TO COMPLETE CONTRACTS. 879 
 
 ACTIONS TO COMPLETE CONTRACTS. 
 
 No. 1413. 
 
 Entry of Filing of Petition— Time Set for Hearing. 
 
 \CaptionJ\ 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and filed herein his petition for authority to com- 
 plete a certain contract therein alleged to have been entered 
 into by the said C. D., deceased, with one E. F. 
 
 It is ordered by the court that notice be given to all of 
 the heirs at law of said C. D., defendants herein, according 
 to law, and that said petition be set for hearing on the — 
 day of . 
 
 R. S. Sec. 5800. 
 
 No. 1414. 
 
 Entry Ordering Administrator to Complete Contract. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the peti- 
 tion heretofore filed herein by A. B., administrator of C. D., 
 deceased, for authority to complete a contract alleged to have 
 been entered into by said decedent with one E. F. , for the sale 
 and conveyance of certain premises therein mentioned and 
 described. And the court having heard all the evidence 
 adduced by the parties, and being fully satisfied that due 
 and legal notice has been given to all the defendant heirs at 
 law of the said C. D., deceased — persons interested in this 
 proceeding — and being fully advised in the premises, finds 
 that the allegations of said petition are true; that the said 
 C. \>. did, during his lifetime, cuter into a contract with the 
 said E. F., by which it was agreed that he would, for the 
 
 consideration of $ , sell and convey to said K. F. the 
 
 premises in the petition described. 
 
 It is therefore ordered and adjudged by the court that the 
 said A. B., administrator aforesaid, Ik- and he is hereby 
 authorized and empowered to complete and carry out said
 
 88o JUDGMENT ENTRIES. 
 
 contract according to its terms and conditions, and to receive 
 
 from the said E. F. the sum of $ , the balance due upon 
 
 said contract, as the purchase money, and to make, execute, 
 and deliver a good and sufficient deed for all the right, title, 
 and interest of all the defendant heirs at law of the said C. D., 
 deceased, in and to the premises described in the petition, to 
 the said purchaser, E. F. , and that said plaintiff pay the costs 
 of this proceeding, taxed at $ . 
 
 SALE OF PERSONAL PROPERTY. 
 
 (R. S. Sees. 6074—6087.) 
 
 No. 1415. 
 Entry Dispensing with Sale of Personal Property. 
 
 [Caption.] 
 
 It appearing to the court that by the terms of the last 
 will and testament of the said C. D., deceased, that said tes- 
 tator expressed a desire therein that there should be no sale 
 of his personal property, the court, for satisfactory reasons, 
 does therefore order, in accordance therewith, that a sale of 
 the personal property belonging to said estate, as requested 
 in said will, be omitted and not made by said administrator. 
 
 NOTE. — R. S. Sec. 6074. This entry may be made in connection and 
 at the close of the entry appointing administrator, or as a separate one. 
 
 No. 1416. 
 
 Entry of Subsequent Order that Personal Property be Sold 
 Upon Motion of Creditor. 
 
 [Caption."] 
 
 This day came A. B., and filed a motion herein, repre- 
 senting to the court that he is interested in the estate of 
 C. D., deceased, as a creditor thereof, and that it will be 
 necessary to sell the personal property belonging to said 
 estate for the payment of the debts due therefrom ; and the 
 court being fully advised sustains said motion, and orders
 
 SALE OF PERSONAL PROPERTY. 88r 
 
 that A., B., and C. be and they are hereby appointed to 
 
 appraise the said property belonging to said estate ; and , 
 
 the administrator of said estate, is hereby required to return, 
 said appraisement to this court without delay, and that he 
 thereafter proceed to sell said personal property, according 
 to law. 
 
 R. S. Sec. 6075. 
 
 No. 1417. 
 
 Entry ordering Private Sale of Personal Property at its Appraised 
 
 Value. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the motion of A., 
 administrator of the estate of B. , deceased, for an order au- 
 thorizing him to sell the personal property belonging to said 
 estate at private sale ; and it having been made to appear to 
 
 the satisfaction of the court from the affidavits of [names 
 
 of persons], that it is for the best interest of the estate to sell 
 said property at private sale, it is therefore ordered and ad- 
 judged that said administrator proceed to sell said property 
 at private sale at not less than its appraised value upon the 
 following terms, to wit : [state terms.] The said administra- 
 tor is ordered to make due return of his proceedings here- 
 under. 
 
 R. S. Sec. 6o?6. 
 
 No. 1418. 
 
 Entry ordering Private Sale of Personal Property at less than 
 Appraised Value. 
 [Caption.] 
 
 T'pon motion of A. B., administrator of the estate of C. D., 
 deceased, and it appearing to the court from the affidavits of 
 [at least three disinterested persons, naming them] that said 
 property can not be sold at its appraised value, and that it 
 will be for the best interest of the- estate to sell the same at a 
 price, it is therefore ordered that said A. B., as such ad- 
 ministrator, be and he is hereby authorized to sell said prop- 
 erty at private sale at less than its appraised value, and that 
 he make due report of his proceedings hereunder. 
 
 Mots. — R. S. Sec. 6076.
 
 882 JUDGMENT ENTRIES. 
 
 No. 1419. 
 
 Entry ordering Sale of Personal Property at Public Sale upon 
 Failure to Sell under Order of Private Sale. 
 
 [Caption.'] 
 
 Upon motion, and it appearing to the court that A. B., 
 administrator of the estate of C. D., deceased, has been un- 
 able to sell the personal property belonging to said estate 
 under the order of private sale hereinbefore made, it is now 
 therefore ordered that said administrator proceed to sell the 
 same at public sale in the same manner as though a private 
 sale had not been ordered. 
 
 Note.— R. S. Sec. 6076. 
 
 No. 1420. 
 
 Entry Requiring Return of Sale Bill. 
 
 Use same entries as in ante Nos. 1400, 1401, as to return of inventory. 
 R. S. Sec. 60S7, 6040. 
 
 No. 1421. 
 Entry Approving Sale of Personal Property. 
 
 [ Caption. ] 
 
 This day came A., administrator of the estate of C, de- 
 ceased, and made return of the order to sell the personal prop- 
 erty belonging to said estate at public (or) private) sale. 
 
 And the court having carefully examined said report, and 
 finding the same in all respects correct, and that said pro- 
 ceedings of said administrator have been regular and in con- 
 formity to law, the same are hereby approved and confirmed.
 
 SALE OR DISPOSAL OF DESPERATE CLAIMS. 883 
 
 SALE OR DISPOSAL OF DESPERATE 
 CLAIMS AND STOCKS. 
 
 (i?. 5. Sees. 6077 — 6080.) 
 
 No. 1422. 
 Entry ordering Claim to be filed in Court for benefit of Heirs, etc. 
 
 [Caption.] 
 
 Satisfactory proof having been produced to the court by 
 A., administrator of the estate of C, deceased, that a certain 
 claim belonging to said estate due from one E. F. is desperate 
 and difficult of collection for the reason that [here state the 
 ground mentioned in the statute^ 6077, under which it comes\ 
 it is by the court ordered that said claim be filed in this court 
 for the benefit of such heirs or creditors of the estate of said 
 C., deceased, as may desire to sue for and recover the same. 
 
 Note.— R. S. Sec. 6077. 
 
 No. 1423. 
 Entry ordering Private Sale of Desperate Claims. 
 
 {Caption.'] 
 
 This cause coming on to be heard upon the motion of A. r 
 administrator of the estate of C, deceased, for an order au- 
 thorizing him to sell certain claims therein mentioned be- 
 longing to said estate in his hands to be administered, for the 
 reason that the same are desperate and difficult of collection; 
 and it appearing to the court that said claims exceed the sum 
 
 , and that said administrator has given due notice ac- 
 
 cording to law of his intention to apply t<> this court for an 
 order to sell said claims, and that it is for the best interest 
 
 lid estate that said order be- made, * it is therefore ord< r< d 
 and adjudged that said administrator proceed t<> give public 
 notice of the time and place of sale for three weeks previous 
 to the day of sale, and that he proceed to sell the claims in 
 his motion set forth at public auction according to law. 
 
 [Or, if made at private sale proceed from * above as fol- 
 lows : ]
 
 884 JUDGMENT ENTRIES. 
 
 And it appearing to the court that the best interests of 
 said estate will be subserved by a private sale of such debts 
 and demands, it is therefore ordered that said administrator 
 proceed to sell said claims in his motion set forth at private 
 sale at not less than their appraised value for cash. 
 
 No. 1424. 
 Entry Ordering Sale of Stock or Shares in Corporations. 
 
 [Caption. - ] 
 
 This cause coming on to be heard on a motion of A. B., 
 administrator of the estate of C. D. , deceased, for an order 
 
 authorizing him to sell certain shares of stock in the 
 
 company, a corporation, as therein set forth, and it appear- 
 ing to the court that the best interest of said estate re- 
 quires that said stock be sold at private sale, it is ordered that 
 said administrator proceed to sell said shares of stock at pri- 
 vate sale at not less than $ per share, upon the following 
 
 terms [state terms], and he is ordered to make such transfers 
 thereof to the purchaser as may be necessary. 
 
 Note.— R. S. Sec. 6080. 
 
 ARBITRATION OF CLAIMS AGAINST 
 ESTATE. 
 
 No. 1425. 
 
 Entry of Approval of Referees. 
 
 [ Caption. ] 
 
 This day came A., administrator of the estate of C. D., 
 deceased, and represented to the court that he had entered 
 into an agreement, in writing, with one E. F., to refer a con- 
 troversy concerning the claim of the said E. F., against said 
 estate, to G. H., I. J., and K. L., three disinterested per- 
 sons as referees, for decision, said claim amounting to the 
 sum of $ , and asking the approval of this court. 
 
 It is therefore ordered that the acts of said administrator 
 in this behalf be and the same are hereby approved. 
 
 Note. — R. S. Sec. 6093.
 
 ARBITRATION OF CLAIMS AGAINST ESTATE. 885 
 
 No. 1426. 
 Entry Referring Claim Exceeding $100.00 to Referees. 
 
 \Caption.~\ 
 
 A. B., administrator of the estate of C. D., deceased, hav- 
 ing filed herein a certain agreement of reference made by 
 him with one E. F. , who holds a claim against said estate, 
 the amount of which exceeds $100.00, it is ordered .by the 
 court that said cause be docketed and that the matter in 
 controversy, with respect to said claim, be and the same is 
 
 hereby referred to , , and , the referees named 
 
 in said agreement, who are hereby ordered to proceed to hear 
 and determine the matter, and make their report thereon to 
 this court without unnecessary delay. 
 
 Note.— R. S. Sec. 6095. 
 
 No. 1427. 
 
 Entry Setting Aside Report of Referees. 
 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the motion 
 
 of to set aside the report of the referees, to whom the 
 
 claim of E. F. against the estate of C. D., deceased, was re- 
 ferred by agreement of parties, and was argued by counsel 
 and submitted to the court. Upon consideration thereof the 
 court does sustain said motion, and orders that said report be 
 and the same is hereby set aside, and that said controversy 
 
 concerning said claim be referred to , , and , 
 
 upon the terms and conditions designated in the agreement 
 heretofore made by the parties, and the said referees are di- 
 rected to make report to this court without delay. 
 
 k. S. Sec. 6096. 
 
 No. 1428. 
 Entry Confirming Report of Referees and Judgment thereon. 
 
 [ ( 'option. ] 
 
 This cause came on to be heard on the report of the ref- 
 erees, to whom the controversy concerning the claim of C. 
 against the estate of D., deceased, was heretofore referred by 
 agreement of parties, and upon the motion to confirm the 
 same was argued by counsel and submitted to the court.
 
 886 JUDGMENT ENTRIES. 
 
 On consideration whereof, and it appearing to the court 
 that the said report is in all respects in conformity to the 
 agreement so made by said parties, and that their proceed- 
 ings have been in all respects regular and in conformity to 
 
 law, and that they have awarded to the said upon his 
 
 claim against the estate of said , deceased, the sum of 
 
 $ , the said report is hereby approved and confirmed, 
 
 whereupon it is ordered and adjudged by the court that the 
 
 said recover-from the said , as administrator of the 
 
 estate of said , deceased, the said sum of $ , so as 
 
 aforesaid awarded to him, together with his costs herein ex- 
 pended, taxed at $ , for which execution is awarded. 
 
 Note. — R. S. Sec. 6096, which as amended makes the judgment of 
 the probate court as valid and effectual in all respects as in other cases. 
 The amendment authorizes judgment by the probate court, which under 
 theretofore judgment had to be rendered in the common pleas cour* 
 
 REQUISITION TO REJECT CLAIM. 
 
 No. 1429. 
 
 Entry requiring Administrator to reject Claim at instance of Heir 
 
 or Creditor. 
 \Caption.\ 
 
 This day came , (heir) or (creditor) of A. B., de- 
 ceased, and filed herein a written requisition requiring C. D., 
 as administrator of said estate, to disallow and reject a cer- 
 tain claim made by one E. F., and presented to said admin- 
 istrator for allowance, and filed therewith a certain under- 
 taking in the sum of $ , with sureties, which is approved 
 
 by the court. 
 
 It is therefore by the court ordered that , said ad- 
 ministrator of said estate, be and he hereby is ordered and 
 directed to disallow said claim. And that notice hereof shall 
 issue to said administrator requiring him to notify said 
 claimant that his claim is rejected and disallowed. 
 
 Note.— R. S. Sec. 6098.
 
 ALLOWANCE OF ADMINISTRATOR'S CLAIMS. 887 
 
 ALLOWANCE OF ADMINISTRATOR'S OR 
 EXECUTOR'S CLAIMS. 
 
 No. 1430. 
 
 Entry of Presentation of Administrator's Claim and hearing set. 
 
 \CaptionJ\ 
 
 This day came E. F. , administrator of the estate of G. 
 H., deceased, and presented to this court his claim against 
 said estate, amounting to the sum of $ for allowance. 
 
 It is ordered that the same be set for hearing on the 
 
 day of , 18 — , at — o'clock M., and that an order 
 
 forthwith issue, directed to said administrator, requiring him 
 to give notice thereof in writing to all the heirs, legatees, 
 devisees, or creditors of said decedent interested in said estate 
 according to law. 
 
 Note. — R. S. Sec. 6100. 
 
 No. 1431. 
 
 Entry of Hearing and Allowance of Claim. 
 
 \Ca,ption.~\ 
 
 This cause coming on to be heard upon the claim of , 
 
 administrator against the estate of C. D., deceased, hereto- 
 fpre presented to this court for allowance, and it appearing 
 to the court that due and proper notice of the hearing hereof 
 has been given to all persons interested as required by a 
 former ordei of this court, and the court having heard all of 
 the proof adduced and the arguments of counsel, upon due 
 consideration thereof does find that said claim is a just and 
 valid one against said estate, and does therefore allow the 
 same- against said estate in the Mini of % , to which find- 
 ing and decision by his counsel excepts. 
 
 Notk. — R. S. Sec. 6101, Either an app< al or error may be prosecuted. 
 
 •>»
 
 88S JUDGMENT ENTRIES. 
 
 EXECUTION AGAINST ADMINISTRATOR 
 OR EXECUTOR. 
 
 No. 1432. 
 Entry Authorizing Execution Against Administrator. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the motion of 
 for an order authorizing an execution to be issued 
 
 against as administrator of the estate of , deceased, 
 
 on a certain judgment obtained in the court of common pleas 
 
 of this county for the sum of $ , on due consideration 
 
 thereof said motion is allowed, and said execution, as therein 
 prayed for, is allowed to issue against said administrator. 
 Note.— R. S. Sec. 6105. 
 
 CLAIMS NOT DUE FOR FOUR YEARS 
 AFTER BOND. 
 
 No. 1433. 
 
 Entry Ordering Payment of Claim which does not become 
 Due within Four Years after Administration. 
 
 [ Caption. ] 
 
 This day came A. B., a creditor of the estate of C. D., 
 deceased, and presented to the court a claim, which he holds 
 against said estate, but which does not become due and pay- 
 able until the — day of , 18 — , within four years after 
 
 the date of the said administrator's bond. * And the court, 
 upon examination thereof, and it appearing that the same is 
 justly due from said estate, and by consent of said A. B., and 
 
 , administrator of said estate, it is ordered that said 
 
 claim be paid by said administrator out of the funds belong- 
 ing to said estate, in like manner as if due, to wit, the sum
 
 DISTRIBUTION WITHIN FOUR YEARS. 889 
 
 of $ , the present value of said claim, which is to be in 
 
 full thereof. 
 
 [Or the order may be to require the administrator to retain 
 in his hands sufficient money to satisfy the claim when it shall 
 become payable. ] 
 
 Note.— R. S. Sec. 61 15. 
 
 No. 1434. 
 
 Entry where Heir Files Bond. 
 
 [Caption.] 
 
 [Proceeding from *, in ante No. 1433.] 
 
 And thereupon came L. M. , one of the heirs at law of 
 said decedent [or other person interested may do so\ and 
 offered to give a bond to said creditor, with sufficient surety, 
 for the payment of said demand when it became payable ; 
 and it appearing that said claim is justly due from the estate, 
 
 orders that said bond be taken by the said , and that the 
 
 said administrator be released from payment of said claim. 
 
 And thereupon said filed said bond in the sum of $ , 
 
 with and as sureties, which bond is approved by 
 
 the court. 
 
 Note.— R. S. Sec. 61 15. 
 
 DISTRIBUTION WITHIN FOUR YEARS. 
 
 No. 1435. 
 Entry Ordering Distribution to Heirs upon their Giving Bond. 
 
 It having been made to appear that A. B. and C. D., next 
 of kin of ]•'.. F., deceased, have required ('.. II., adminis- 
 trator of tin- estate of I. J., deceased, t" make payment of 
 their distributive shares of said estate, it is, upon motion of 
 said administrator, by thecourt ordered that he beauthorized 
 
 and empowered, upon the execution by said distributees of a 
 
 bond in the sum of $ , with sureties to the approval of 
 
 the court, conditioned to refund any amount paid to them 
 as may be necessary to satisfy demands that may afterwards 
 be recovered against the estate of the deceased, and to indem-
 
 890 JUDGMENT ENTRIES. 
 
 nify the said administrator against any loss accruing by 
 reason of such payment, to pay each of said distributees the 
 
 part of said estate upon their distributive shares thereof. 
 
 Note.— R. S. Sec. 6128. 
 
 ACTION FOR WRONGFUL DEATH. 
 
 No. 1436. 
 
 Entry Authorizing Administrator to Compromise Action for 
 wrongful Death. 
 
 [Caption.~\ 
 
 This day came A. B., administrator of the estate of C. 
 D. , deceased, and represented to the court that he has a suit 
 pending in the court of common pleas of said county, as 
 
 such administrator, against the company for the recovery 
 
 of damages for the wrongful death of said deceased, alleged 
 
 to have been caused by said company, and that said 
 
 company has made an offer to compromise and settle 
 
 said claim for damages by paying to said administrator the 
 
 sum of $- , and now moves the court to authorize him to 
 
 accept said sum, and to compromise and settle said claim 
 therefor. 
 
 On consideration thereof, and the court believing from 
 the statements and representations made by said administrator 
 that the proposed settlement is for the best interests of said 
 estate, it is therefore by the court ordered that said adminis- 
 trator be and he is hereby fully empowered and authorized to 
 compromise and settle said claim for damages and the action 
 
 therefor by receiving from said company the said sum 
 
 of $ , in full satisfaction of said claim against said com- 
 pany for damages. 
 
 R. S. Sec. 6135. 
 
 No. 1437. 
 Entry apportioning Money for Recovery in Wrongful Death. 
 
 [Caption."] 
 
 ( This entry should properly be made in connection and at 
 the close of the entry allowing the account filed by the admin- 
 istrator, after it has been delermijied what amount of money 
 there is to distribute and apportion to the widow and heirs 
 after deducting all expenses. )
 
 SALE OF REAL ESTATE TO PAY DEBTS. 891 
 
 And thereupon this cause coming on further to be heard 
 upon the motion of said administiator for an order apportion- 
 ing among the beneficiaries the amount remaining in his 
 hands, being the amount recovered by him as such adminis- 
 trator, in an action for the wrongful death of said deceased, 
 and it appearing that the widow and heirs of said decedent 
 have not made any division of said funds among themselves, 
 and the court being fully advised, finds the following to be the 
 fair and equitable division and apportionment of said funds 
 
 among the beneficiaries, to wit: to , the widow, the sum 
 
 of $ ; to , one of the heirs, the sum of $ [and so 
 
 mi 1. It is therefore by the court ordered that said sum be so 
 apportioned and paid to said widow and heirs by said admin- 
 istrator in accordance with this order, and that he make due 
 report of said distribution to this court. 
 
 Xote. — R. S. Sec. 6135. The division of such fund is to be made by 
 the court with reference to the age and condition of the beneficiaries and 
 the laws of descent and distribution of personal estates. The Supreme 
 Court has recently held that in such cases tin- jury should return a verdict 
 for a gross sum, which should be distributed among the beneficiaries not 
 found guiltv of contributory negligence, that no damages should be 
 awarded to them, and that the jury should find which, if any, of the bene- 
 ficiaries were negligent. Wolf, Admr., v. Ry. Co., 37 W. L. B. 23; 54 O. S. 
 
 SALE OF REAL ESTATE TO PAY DEBTS. 
 
 No. 1438. 
 Entry of Filing of Petition. 
 
 \CapHonJ\ 
 
 This day came A. B., administrator of the estate of C. D., 
 
 :. and filed herein his petition as such administrator, 
 
 ng for the- sale of certain real estate belonging to said 
 
 ■ in the petition described, to pay the debts of said estate. 
 
 It is therefore ordered that due notice be given of the filing 
 
 of said petition and of the time set for the hearing thereof. 
 
 law, and that the same be set for hearing on the 
 
 — day <>f , 18 — . 
 
 Note.- .61 ;;. M.42, 6143-
 
 892 JUDGMENT ENTRIES. 
 
 No. 1439- 
 As to Parties. 
 
 (See that heading, ante page 507.) 
 
 No. 1440. 
 As to Service of Process. 
 
 (See ante heading, page 515.) 
 
 No. 1441. 
 Entry of appointment of Guardian ad litem. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 of A. B., administrator of the estate of C. D., deceased, for 
 the sale of real estate to pay debts, and the motion of said 
 administrator for the appointment of a guardian ad litem of 
 E. F. and G. H., minor defendants and heirs of said de- 
 cedent. And it appearing that the prayer of the petition is 
 contested, and that said E. F. and G. H., said minor defend- 
 ants, have been duly and legally served with process herein, 
 the court does therefore appoint L. M. guardian ad litem for 
 said minor defendants, who thereupon appeared in open court 
 and accepted said appointment. 
 
 Note. — R. S. Sec. 6144. The statute provides that an appointment of 
 a guardian ad litem need not be made unless the prayer of the petition for 
 sale is contested, but it is the universal practice in some places to have an 
 appointment made in every case, whether contested or not. It does not 
 do any harm, and although not essential it may be a matter of choice. 
 
 No. 1442. 
 
 Entry of the Giving of Bond by Persons Interested to 
 Prevent Sale. 
 
 \Caption.] 
 
 This cause coming on this day to be considered upon the 
 petition filed by E. M., administrator of O. P., deceased, 
 asking for the sale of real estate for the payment of the debts 
 of said estate, and it appearing to the court that C. D. [and 
 others interested in the estate] have given a bond in the sum
 
 SALE OF REAL ESTATE TO PAY DEBTS. 893 
 
 of $ to said administrator, conditioned according to law, 
 
 that said heirs will pay all the debts of said estate mentioned 
 in the petition, or that shall be eventually found due from 
 said estate, together with the charges of administering the 
 same, and the allowance of the widow, so far as the personal 
 estate of said decedent shall be sufficient for that purpose. 
 It is by the court ordered that said bond be and the same is 
 hereby approved and confirmed, and the said petition herein 
 is dismissed. 
 
 Note.— R. S. Sec. 6146. 
 
 No. 1443. 
 
 Entry Ordering Sale when Appraisement made in Inventory. 
 
 {Caption. \ 
 
 This cause coming on to be heard upon the petition 
 heretofore filed herein by A. B., administrator of the estate 
 of C. D., deceased, for the sale of real estate therein de- 
 scribed, and it appearing to the court that all of the defend- 
 ants and heirs at law of said deceased have been duly served 
 with process herein, [or, have voluntarily entered their ap- 
 pearance herein], and that it is necessary to sell the real estate 
 in said petition described for the payment of the debts due 
 from said estate, and the costs of administering the same, 
 and it appearing that an appraisement of said real estate has 
 been heretofore made by the appraisers appointed to appraise 
 the personal property of said estate, which was returned with 
 the inventory and appraisement made of said estate, and ap- 
 proved by the court, it is therefore considered, ordered and 
 adjudged by the court that said C. D., as such administrator, 
 proceed to advertise and sell said real estate in the petition 
 described, at public sale, at the door of the courthouse [or, 
 upon the premises], at not less than two thirds of the ap- 
 praised value thereof, upon the following terms, to wit: [slate 
 terms\ and that due report of his proceedings hereunder be 
 made without delay. 
 
 NOTE — R. S. Sees. 6147, 6148, 6149. The entry may be changed to con- 
 form to an order for a Bale of a part only of the real estate.
 
 894 JUDGMENT ENTRIES. 
 
 No. 1444. 
 Entry Ordering Appraisement and Assignment of Dower. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the petition of A. 
 B., administrator of the estate of C. D., deceased, for the 
 sale of the real estate therein described for the payment of 
 the debts of said estate, and the answer of the widow, and 
 the court being satisfied that all of the defendants have been 
 duly served with process [or, have voluntarily entered their 
 appearance herein], and that it is necessary to sell the real 
 estate in said petition described for the payment of the debts 
 of said estate; and it appearing that S. D., widow(er) of 
 C. D., deceased, has by her said answer asked to have her 
 (his) dower in said premises assigned to her (him) by metes 
 and bounds, it is therefore ordered that G. H., I. J. and K. 
 L. , three disinterested freeholders of said county, do, upon 
 their oaths and actual view of said premises, assign and set 
 off to said widow (er) out of the lands in said petition de- 
 scribed, her (his) dower therein by metes and bounds, and 
 that they appraise said premises subject to the dower of said 
 widow (er), so by them assigned therein, at their true value 
 in money, and that they make due return of their proceed- 
 ings thereunder to this court. 
 
 Note.— R. S. Sec. 6155. 
 
 No. 1445. 
 Entry Ordering Appraisement and Sale Free from Dower. 
 
 \Captton.~\ 
 
 This day this cause coming on to be heard upon the peti- 
 tion of A. B., administrator of the estate of C. D., deceased, 
 for the sale of the real estate therein described belonging to 
 said estate, for the payment of the debts due therefrom, the 
 answer of G. H., widow of said deceased, the answer of L. 
 M., guardian ad litem, and the answer and cross petition of 
 the defendant O. P. ; and the court being fully advised in 
 the premises finds that the defendants herein have been duly 
 and legally served with process, or have voluntarily entered 
 their appearance herein, and that it is necessary to sell the 
 real estate in said petition described for the payment of the 
 debts due from said estate, and the costs of administering the 
 same ; and it appearing from the answer of , widow(er)
 
 SALE OF REAL ESTATE TO PAY DEBTS. 895 
 
 of said deceased, that she (he) waives the assignment to her 
 (him) of her dower in said premises by metes and bounds, 
 but that she (he) desires that the same may be sold free and 
 clear of her (his) said dower, and that the same may be set 
 off to her (him) in money out of the proceeds of the sale of 
 said premises, it is therefore ordered and adjudged by the 
 court that D. C, E. F. , and I. J., three disinterested free- 
 holders of the county, do, upon their oaths and actual view 
 of said premises in the petition described, appraise the same 
 
 at its true value in money, free from the dower of said , 
 
 widow(er) of said deceased; and it is further ordered that 
 
 when said premises are so appraised that the said , as 
 
 administrator as aforesaid, do proceed, according to law, to 
 advertise and sell said premises, at not less than two thirds 
 of their appraised value, at the door of the courthouse (or 
 upon the premises) upon the following terms, to wit: [state 
 terms], and that due report of his proceedings hereunder be 
 made forthwith without delay. 
 
 No. 1446. 
 
 Entry on Return of Appraisement Ordering Sale Subject to Dow- 
 er, including Title of Heirs in Land Assigned to Widow. 
 
 [ Caption. ] 
 
 This day came B. A., administrator of the estate of D. C. , 
 deceased, and made return of the order of appraisement here- 
 tofore issued herein, of the real estate in the petition de- 
 scribed ; and the court having carefully examined said return, 
 and finding that said appraisement and assignment of dower 
 to the widow have been in all respects regularly made, the 
 same are hereby approved and confirmed. 
 
 It is therefore ordered by the court that the said , 
 
 '.vi en of said deceased, have and hold for her (his) dower 
 in said premises the land so assigned to her (him), as 
 
 ribed in said order of appraisement, and that B. A., as 
 
 such administrator aforesaid, do proceed to advertise and sell 
 
 (d) said real estate, subject to the dower of the widow(er) 
 
 ised, but including the title of the heirs at law 
 
 ised in the premises SO assigned and set off to 
 
 the widow(er) for her (his) dower, at public sale upon the 
 premises (or at the door of the courthouse), on the following 
 terms, to wit: [state terms]] that the said administrator make 
 due return of his proceedings hereunder to this court.
 
 896 JUDGMENT ENTRIES. 
 
 No. 1447. 
 
 Entry of Return of Appraisement where Dower Assigned in Rents 
 and Profits, and Order of Sale. 
 
 [Caption.^ 
 
 This day came D. K., administrator of the estate of L. 
 M., deceased, and produced his return of the order of ap- 
 praisement heretofore issued herein; and the court having 
 carefully examined the same, and finding it to be in all re- 
 spects regular and legal, and that the dower of said widow(er) 
 has been assigned to her (him) out of the rents and profits 
 
 arising from said premises in the annual sum of $ , the 
 
 said proceedings and return are hereby approved and con- 
 firmed. 
 
 Whereupon it is ordered by the court that the said , 
 
 widow(er) of said deceased, do have, hold, and reserve out of 
 the rents and profits arising from said premises the sum of 
 
 $ , to be paid to her (him) annually out of said premises 
 
 during the term of her (his) natural life; and said annual 
 
 sum of $ is hereby made a charge upon said real estate. 
 
 It is ordered by the court that the said D. K. , as such admin- 
 istrator, do proceed to advertise and sell [proceed as in ante 
 form No. 1446, from {b)\ 
 
 No. 1448. 
 Entry ordering Additional Bond to be given. 
 
 [Cap tion.~\ 
 
 This day it appearing to the court that the bond hereto- 
 tofore given by A. B., administrator of the estate of C. D., 
 deceased, is insufficient in amount to secure said estate for 
 the amount of money likely to come into the hands of said 
 administrator arising from the sale of the real estate as peti- 
 tioned for herein, it is ordered that said A. B. enter into an 
 
 additional bond as such administrator in the sum of $ , 
 
 conditioned according to law, with sureties to the approval 
 of the court.
 
 SALE OF REAL ESTATE TO PAY DEBTS. S97 
 
 No. 1449. 
 
 Entry of Hearing and ordering Appraisement — Answer of Widow 
 Waiving Dower — Answer of Guardian ad litem. 
 
 [Caption.] 
 
 This cause came on to be heard upon the petition of the 
 
 plaintiff, the waiver and consent of , and the answer of 
 
 L. B., widow of said decedent, G. H., waiving the assign- 
 ment to her of her dower by metes and bounds and in rents 
 and profits in the real estate in the petition described, and 
 waiving any and all estates, titles and interests in said 
 premises, the answer of the guardian for the suit of the de- 
 fendants, H. B. and A. B., both minors over [or, under] the 
 age of 14 years, and the exhibits and testimony, and was 
 argued by counsel and submitted to the court. 
 
 Upon consideration whereof, and being fully advised in 
 the premises, the court cloth find that all the parties in inter- 
 est have been properly and legally served with summons, or 
 have waived the same and entered their appearance herein, 
 and that all are properly before the court; that the facts 
 stated in the petition are true as therein averred ; that the sale 
 of the premises therein described is necessary for the payment 
 of the debts of said estate as in the petition averred ; and the 
 court doth now here order, adjudge and decree that the real 
 estate in the petition described shall be appraised and sold 
 according to law and the further orders of this court; and 
 it is therefore now here by the court accordingly ordered 
 that L. \V., C. K., and J. B., three judicious, disinterested 
 freeholders of the vicinity, be and they are hereby appointed 
 to appraise said real estate upon actual view at its true value 
 in money, and according to law, and free from dower, and 
 that due return be made of their proceedings without delay. 
 
 No. 1450. 
 
 Entry Ordering Assignment of Homestead and Dower and 
 Appraisement. 
 
 [ ( 'option. ] 
 
 This cause coming on to be heard upon the petition of 
 administrator of the estate of , deceased, and the 
 
 answer of , widow of said deceased; and the court find- 
 ing that all of the parties have b< < n duly served with pro<
 
 898 JUDGMENT ENTRIES. 
 
 herein, or have voluntarily entered their appearance herein, 
 and that it is necessary to sell the premises in said petition 
 described for the payment of the charges of administration 
 and the debts due from said estate as prayed for in said peti- 
 tion ; and it appearing to the court from the answer of , 
 
 widow, that the said deceased left a family homestead, and 
 the said widow having by her answer asked to have a home- 
 stead set off to her, and also to have her dower in said prem- 
 ises in the petition described assigned to her by metes and 
 bounds, and the' court rinding that said widow is entitled to 
 such homestead and dower, it is ordered and adjudged that 
 , , and , three judicious, disinterested free- 
 holders of the vicinity, after having been duly sworn, do pro- 
 ceed upon actual view of said premises to set off and assign 
 such homestead to said widow not exceeding in value the sum 
 of one thousand dollars ($1,000) ; and that said appraisers do 
 further proceed to assign and set off to said widow as her 
 dower in said premises in the petition described by metes and 
 bounds, the one equal one-third part of the lands in said 
 petition described, and that they further appraise the said 
 premises subject to such homestead and dower, and that due 
 return be made of their proceedings to this court. 
 
 Note.— R. S. Sees. 6155, 5437, 5438. 
 
 No. 1451. 
 
 Entry Approving Assignment of Homestead and Dower and 
 Appraisement, and Ordering Sale. 
 
 [Caption.] 
 
 This day came , administrator of the estate of , 
 
 deceased, and produced to the court his return of the order 
 
 for the assignment of a homestead and dower to , widow, 
 
 and the appraisement of the premises subject thereto; and 
 the court having carefully examined said return and finding 
 the same to be in all respects regular and legal, does there- 
 fore approve and confirm the same. 
 
 It is therefore ordered that the said , widow, do have 
 
 and hold said premises so assigned to her as her homestead 
 and dower in said premises for and during her natural life. 
 
 It is further ordered that said administrator proceed to 
 advertise and sell said premises \_proceed with usual order of 
 sale as in No. 1446.]
 
 SALE OF REAE ESTATE TO PAY DEBTS. 899 
 
 No. 1452. 
 
 Entry Ordering Assignment of Homestead to Minor Child — 
 
 Appraisement and Sale. 
 [Caption."] 
 
 This cause coming on to be heard upon the petition of 
 -, administrator of the estate of , deceased, and the 
 
 answer of , guardian of , a minor child of said 
 
 deceased. 
 
 And the court being fully advised, finds that all of the 
 defendants herein have been duly and legally served with 
 process, and that it is necessary to sell the premises in the 
 petition described for the payment of the debts and charges 
 of administration of said estate. And it appearing from the 
 
 answer of , as guardian of , a minor child of said 
 
 decedent, that said decedent left a family homestead, and that 
 
 sa id j minor as aforesaid, is entitled to have the same 
 
 set off and assigned to him, it is therefore by the court or- 
 dered and adjudged that , , and , three judicious 
 
 and disinterested freeholders of the vicinity, do upon their 
 oaths and actual view of said premises proceed to set off to 
 said minor child by metes and bounds a homestead in the 
 premises in the petition described not exceeding one thousand 
 dollars ($1,000) in value, and that they proceed to appraise 
 said premises subject to such homestead according to law, 
 and that due return be made of their proceedings thereunder. 
 
 NOTE. — R. S. Sec. 6155. There is no provision designating how the 
 claim of a minor entitled to the assignment of a homestead shall be brought 
 to the attention of the court, but the above entry assumes that it may be 
 done by an answer of a guardian. 
 
 No. 1453. 
 
 Entry Approving Assignment of a Homestead to Minor and 
 Appraisement and Ordering Sale. 
 
 [Caption.] 
 
 This day came , administrator of , deceased, 
 
 and produced a return of the order of appraisement heretofore 
 issued herein; and the court having carefully examined the 
 same, and it appearing that the appraisers have assigned and 
 
 ge t off to , minor child of said decedent, a homestead as 
 
 in said return described, and that the proceedings of said 
 appraisers have hem in all respects regular and legal, the 
 same are hereby approved and confirmed.
 
 gOO JUDGMENT ENTRIES. 
 
 It is therefore ordered that the said , as such minor 
 
 child of said deceased, do have, hold, possess and enjoy the 
 homestead so assigned to him by said appraisers, and in said 
 return described, as long as he shall remain thereon and oc- 
 cupy the same as a homestead until he arrives at the age of 
 majority. 
 
 It is further ordered by the court that , as such ad- 
 ministrator of such estate, do proceed to advertise and sell 
 said premises in the petition described, subject to the home- 
 stead so assigned to , minor child aforesaid, at public 
 
 sale, etc. 
 
 No. 1454. 
 
 Entry ordering Appraisement and Sale when no Widow or 
 Minor Child. 
 
 [Caption.'] 
 
 This day this cause came on to be heard on the petition 
 
 of , administrator of the estate of , deceased, for the 
 
 sale of the real estate therein described for the payment of 
 the charges of administration and debts due from said estate, 
 and the court being satisfied that due notice according to law 
 has been given to all the heirs and persons interested in said 
 estate finds that it is necessary to sell the real estate in said 
 petition described for the payment of the debts of said estate 
 and the charges of administration. 
 
 It is therefore ordered that , , and — — , three 
 
 disinterested and judicious freeholders of the vicinity, do 
 upon their oaths and actual view make an appraisement of 
 said premises of their true value in money, and that when 
 said premises are so appraised the said , as such admin- 
 istrator, proceed to advertise and sell said premises accord- 
 ing to law at not less than two thirds of the appraised value 
 upon the premises, upon the following terms, to wit ; one 
 third cash in hand, one third in six months, and one third in 
 twelve months from the date of sale, said deferred payments 
 to bear interest and be secured by a mortgage upon the prem- 
 ises sold, and that due report be made to this court of the 
 proceedings hereunder.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 9OI 
 
 No. 1455. 
 
 Entry appointing Appraiser to fill Vacancy. 
 
 [ Caption. ] 
 
 Upon motion of , administrator of the estate of 
 
 deceased, and it appearing that , heretofore appointed as 
 
 an appraiser, is unable to discharge his duties, it is ordered 
 by the court that M. D., a judicious and disinterested free- 
 holder of the vicinity, be and he is hereby appointed as an 
 appraiser under the former orders of this court. 
 
 R. a Sec. 6156. 
 
 No. 1456. 
 
 Entry setting aside Appraisement and ordering New One 
 and Sale. 
 
 \Caplion.\ 
 
 D. C, administrator of the estate of L. M., this day pro- 
 duced to the court his return of the order of (appraisement) 
 (and sale) heretofore issued herein, and the court upon the 
 examination thereof finds that said administrator has twice 
 offered the premises therein described for sale, and that the 
 same were not sold for want of bidders. 
 
 It is therefore considered, ordered, and adjudged by the 
 court that the appraisement heretofore made of said appraise- 
 ment be and the6ame hereby are set asideand held for naught; 
 
 and it is further ordered that . , and , three 
 
 judicious and disinterested freeholders of the vicinity, do upon 
 their oaths and actual view of said premises' make an appraise- 
 ment thereof (free of the dower of , widow, or, subject 
 
 to the dower of , widow), and that when said premises 
 
 shall have been so appraised the said , as such adminis- 
 trator, do proceed according to law to advertise and sell said 
 
 premises at the door of the courthouse (or, on the premises) 
 at not less than two thirds of their appraised value, upon the 
 following terms, to wit: (and upon motion, and good cause 
 being shown therefor, German publication of notice is hereby 
 dispensed with }. 
 
 r. s. Sec. 6160.
 
 902 JUDGMENT ENTRIES. 
 
 No. 1457. 
 
 Entry ordering Sale for certain Amount after being twice 
 
 Offered. 
 [Caption.] 
 
 This cause coming on to be heard upon the report of 
 
 administrator of the estate of , deceased, and it appearing 
 
 therefrom that said premises have been twice offered for sale, 
 
 it is therefore upon motion ordered by the court that , as 
 
 such administrator of said estate, do proceed to sell said real 
 
 estate for the sum of $ , and report his proceedings to 
 
 this court. 
 
 R. s. Sec. 6160. 
 
 No. 1458. 
 
 Entry ordering Private Sale. 
 [Caption.] 
 
 [Proceed as in other forms Nos. 1443, 1445, 1446, down 
 to this point, adjusting entry to circiunstanees. ] 
 
 And this cause coming on further to be heard upon the 
 motion of said administrator for an order authorizing him to 
 sell said premises at private sale, and it having been satisfac- 
 torily made to appear to the court that it will be more for the 
 interest of said estate to sell said real estate at private sale, it 
 is therefore ordered and adjudged by the court that the said 
 
 , as such administrator, proceed to sell said premises in 
 
 the petition described (subject to dower, or, free of dower), 
 according to law, at private sale, at not less than their ap- 
 praised value, upon the following terms, to wit : [state terms], 
 and that due report be made of his proceedings hereunder. 
 
 R. S. Sec. . 
 
 No. 1459. 
 Entry confirming Sale — Ordinary Short Form. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the return made 
 this day by , as administrator of the estate of , de- 
 ceased, of the order for the sale of the premises therein de- 
 scribed, and upon his motion to confirm the sale therein 
 reported to have been made. And the court having carefully
 
 SALE OF REAL ESTATE TO PAY DEBTS- 903 
 
 examined said return, and finding that said sale has been in 
 all respects legally made, the same is hereby approved and 
 confirmed ; and it is ordered that said , as such adminis- 
 trator, do make, execute, and deliver to , the purchaser 
 
 of said premises, a good and sufficient deed of conveyance 
 therefor. * 
 
 It is further ordered that said administrator, out of the 
 funds in his hands arising from said sale, pav, 
 
 First : The costs of this action, taxed at $ , and a 
 
 counsel fee of the sum of $ to , and that he apply 
 
 the balance of said funds towards the payment of the debts 
 due from said estate according to law and the further orders 
 of this court. 
 
 No. 1460. 
 
 Entry confirming Sale and Finding Amount due Widow as 
 her Dower in Money. 
 \Captton.~\ 
 
 [Proceed from * in ante Form No. 1459.] 
 
 This cause coming on further to be heard upon th^ answer 
 
 of , widow, and it appearing therefrom that she has 
 
 elected to receive in lieu of her dower its value in money out 
 of the proceeds of the sale of said premises, which the court 
 finds to be the sum of $ . 
 
 It is therefore ordered that the said administrator, out of 
 the funds in his hands arising from such sale, pay, 
 
 First: The costs of this action, 
 
 Second : To , widow, the sum of $ , the amount 
 
 so found due her. [Proceed further as circumstances require.'] 
 
 No. 1461. 
 
 Entry confirming Sale ordering Deferred Installments secured 
 
 by Mortgage. 
 [ ( 'option.] 
 
 I /'-■ eed from * in ante Form No. 1459.] 
 It is further ordered that the said , as such adminis- 
 trator, before delivering said deed to said , purchaser, 
 
 secure from such purchaser a mortgage for the balance of the 
 purchase money due upon said premises. 
 
 [t is further ordered by the court that the said adminis- 
 trator pay, out of the funds in his hands arising from the 
 sale of said premises [proceed with order of distribution as 
 usual]. 
 
 58
 
 904 JUDGMENT ENTRIES. 
 
 No. 1462. 
 
 Entry of Confirmation of Sale and Finding upon Answer and 
 Cross Petition of Lienholders. , 
 
 [Cap lion.] 1 
 
 This day this cause came on to be heard upon the petition ] 
 
 of , as administrator of the estate of , deceased, the 
 
 answer and cross, petition of , and the return of , as 
 
 such administrator, of the order of sale heretofore issued here- 
 in ; and the court having made a careful examination of said 
 return, and finding that the sale of said premises therein re- 
 ported to have been made to L. M. has iu all respects been 
 legally made, the same is hereby approved and confirmed, and 
 the said administrator is ordered to make and deliver to said 
 purchaser a good and sufficient deed for the premises so sold, 
 and to take from such purchaser a mortgage upon the premises 
 for the deferred payments. 
 
 And this cause coming on further to be considered upon 
 
 the answer and cross petition of , the court being fully 
 
 advised finds that there is due the said , upon the note 
 
 therein set forth, from the estate of , deceased, the sum 
 
 of $ y w ith interest thereon from the date of this entry; 
 
 that the said , deceased, during his lifetime, and , 
 
 his wife, to secure the payment of said promissory note, gave 
 a mortgage upon the premises in the petition described, which 
 is now a valid and subsisting lien upon said premises, and 
 now upon the fund in the hands of said administrator arising 
 from the sale of said premises. It is ordered that satisfaction 
 of the mortgage set forth in the answer and cross petition of 
 
 be entered of record thereof in the office of the recorder 
 
 of county, Ohio. 
 
 It is therefore ordered that said , as such administra- 
 tor, out of the funds in his hands arising from the sale of said 
 premises, pay, 
 
 First : To the treasurer of county the taxes upon 
 
 said premises, 
 
 Second : The costs of this action, including $ as a 
 
 counsel fee, to , 
 
 Third : To the said the sum of $ , the amount 
 
 found due him upon his answer and cross petition.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 905 
 
 No. 1463. 
 
 Entry authorizing Administrator to accept Cash Offer from 
 Purchaser after Sale. 
 [ Caption. ] 
 This day came , administrator of the estate of 
 
 deceased, and represented to the court that L. M., who pur- 
 chased the premises belonging to said estate heretofore sold 
 by said administrator upon deferred payments, has offered to 
 pay the full amount of the purchase money in cash, and moves 
 the court for an order authorizing him to accept the same. 
 
 And the court deeming it for the best interests of the estate 
 to accept said offer does hereby authorize and empower the 
 said administrator to accept from said purchaser the sum of 
 
 $ , and that he proceed to distribute the same according 
 
 to law and the former orders of this court. 
 
 R. S. Sec. 6162. 
 
 No. 1464. 
 
 Entry authorizing Sale of Purchase Notes. 
 
 \CaptionJ\ 
 
 This day came , administrator of the estate of 
 
 deceased, and moved the court for an order directing and 
 authorizing him to sell the notes for the deferred payments 
 taken by said administrator from the purchaser at the sale of 
 the premises hereinbefore had and made in this action. And 
 the court being fully advised, and deeming for the best inter- 
 ests of the said estate, does hereby direct and authorize said 
 administrator to sell all of said notes so taken by him for the 
 deferred payments without recourse, and at not less than their 
 face value with accrued interest, and that said administrator 
 proceed to distribute the proceeds arising therefrom according 
 to law and the further order of this court. 
 
 R. S. Sec. 6162. 
 
 No. 1465. 
 
 Entry of Order of Appraisement and Sale of Equitable Interest 
 
 in Real Estate. 
 
 [ ( 'option. \ 
 
 This day this cause came on to be heard upon the petition 
 filed herein by , as administrator of the estate of ,
 
 906 JUDGMENT ENTRIES. 
 
 deceased, for the sale of a certain interest in the premises 
 therein described, and it appearing to the court that all the 
 parties defendant have been duly and legally served with proc- 
 ess, and that said deceased was the owner of the equitable 
 interest in said premises, as in the petition set forth and de- 
 scribed, and that a sale thereof is necessary for the payment 
 of the debts of said estate (and , the widow of said de- 
 ceased, having filed her answer herein, electing to receive her 
 dower therein in .money), it is by the court ordered that said 
 interest of said decedent in said premises be appraised by the 
 
 oaths of , , and , at its value in money ; and that 
 
 when said appraisement is made the said administrator pro- 
 ceed to sell said interest in said real estate in the petition 
 described at private sale, at not less than the appraised value 
 thereof, for cash [or deferred payments as the case may bc\ 
 and that due report be made herein. 
 
 Note. — R. S. Sec. 6166. The proceedings under this section may be 
 similar in form to the regular sales of real estate, and the former entries 
 may be used. 
 
 No. 1466. 
 
 Entry setting aside Appraisement and Sale upon Motion 
 
 of Heirs. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the motion of 
 
 heirs at law of , deceased, heretofore filed herein, to set 
 
 aside the appraisement and sale of the premises made in this 
 
 proceeding by , administrator of such estate, the evidence 
 
 and arguments of counsel, and was submitted to the court. 
 
 On consideration whereof the court finds that said motion 
 is well taken, and therefore sustains the same, and orders that 
 said appraisement and the said sale of said premises made by 
 
 said administrator to be and the same is hereby set aside 
 
 and annulled. 
 
 It is further ordered that , , and , three ju- 
 dicious and disinterested freeholders of this county, do, upon 
 their oaths and actual view of the premises in the petition 
 described, appraise the same at their true value in money 
 
 (free from dower, or, subject to the dower) of , widow of 
 
 said deceased. 
 
 It is further ordered that when said premises shall have 
 been so appraised that the said administrator proceed to ad- 
 vertise and sell the same [as in ante Form No. 1456].
 
 SALE OF REAL ESTATE TO PAY DEBTS. 907 
 
 No. 1467. 
 Entry making Lienholder Party Defendant. 
 
 XCaption. ] 
 
 Upon motion of , and it appearing that he claims 
 
 some interest in the premises and petition described, he is 
 hereby made a party defendant herein, with leave to file an 
 answer and cross petition. 
 
 No. 1468. 
 
 Entry of Confirmation of Sale — Where Purchaser assumes 
 Assessments. 
 \Ca,ptionJ\ 
 
 This day this cause came on to be heard upon the motion 
 of A. B., petitioner herein, to confirm the sale made by him as 
 administrator {or, executor) of the estate of C. D., deceased, 
 made in obedience to the former order of this court, return of 
 which sale has been made by the petitioner according to law 
 and the order of the court. 
 
 Upon consideration whereof, and the court being fully 
 advised in the premises, and being satisfied that such sale 
 was legally and fairly made, and that the proceedings of the 
 petitioner in that behalf have in all things been had in con- 
 formity with law and the order of the court, it is now here 
 ordered, adjudged, and decreed that said sale be and the same 
 is hereby approved, ratified, and confirmed; and it is further 
 ordered that said administrator {or, executor) convey to the 
 purchaser, H. N., by a good and sufficient deed in fee simple, 
 free from the dower estate and any and all other rights, titles, 
 interests of said widow, L. B., in said lands and tenements so 
 to him sold, and in the petition and proceedings herein de- 
 scribed (the same to be subject to and said purchaser to as- 
 sume all liability and charges for the improvement of any and 
 all streets abutting on said premises). 
 
 And the court coming now to distribute the proceeds aris- 
 ing from said sale, etc.
 
 908 JUDGMENT ENTRIES. 
 
 ACCOUNTS OF EXECUTORS AND 
 ADMINISTRATORS. 
 
 (J?. S. Sees. 6175 — 6192.) 
 
 No. 1469. 
 Entry of the Filing of Account. 
 
 [Caption."] 
 
 This day came A. B., administrator [or, executor] of the 
 
 estate of C. D. , deceased, and filed his account as such 
 
 administrator. 
 
 It is therefore ordered that said account be set for hearing; 
 
 on the — day of , and that due notice, according to law, 
 
 be given of the filing, and of the time set for the hearing 
 thereof. 
 
 No. 1470. 
 Entry Confirming Partial Account. 
 
 ( Caption. ] 
 
 This cause coming on to be heard upon the partial 
 
 account of A. B. , administrator [or, executor] of the estate of 
 C. D., deceased, and due notice, according to law, having been 
 given of the filing, and of the time set for the hearing of 
 said account, and no exceptions having been filed thereto, 
 and the court having carefully examined the same, and find- 
 ing it in all respects regular and correct, the same is hereby 
 approved and confirmed ; and the court finds that there is a 
 balance remaining in the hands of said administrator of the 
 sum of $ , which he is ordered to hold according to law.
 
 ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. 909 
 
 No. 1471. 
 
 Entry of Filing of Exceptions to Account. 
 
 [Caption.] 
 
 This day came , and filed exceptions to the first par- 
 tial [or, final] account of C. D., administrator of the estate 
 of E. F. , deceased, heretofore filed herein. Whereupon the 
 court orders that said exceptions and account be set for hear- 
 ing on the — day of , 18 — . 
 
 No. 1472. 
 
 Entry Referring Account and Exceptions to Special Commissioner. 
 
 [Caption.] 
 
 Upon motion of , and the court deeming it expedient 
 
 and proper, does refer the first partial [or, final] account of 
 A. B., administrator of the estate of C. D., deceased, and 
 the exceptions filed thereto by E. F., to H. K., as special 
 commissioner, to hear and determine the same, and report 
 his findings to this court without unnecessary delay. 
 
 R. S. Sec. 6186. 
 
 No. 1473. 
 
 Entry of Hearing of Account and Exceptions Thereto — Allowing 
 
 Account. 
 
 [ Caption. J 
 
 This day this cause came on to be heard upon the final 
 account of A. B. , administrator [or, executor] of the will of 
 the estate of C. D., deceased, and the exceptions filed thereto 
 
 by . And the court having heard the evidence adduced 
 
 by the parties, and arguments of counsel, the same was sub- 
 mitted to the court. On consideration thereof the court finds 
 that said exceptions to said account are not sustained, and 
 therefore overrules the same.* And it appearing to the court 
 that due notice, according to law, has been given of the 
 filing, and of the time set for the hearing of said account, 
 and having carefully examined the same, and finding it to 
 be in all respects regular and correct, docs therefore approve 
 and confirm the same. And the court finds that there is a 
 balance remaining in the hands of the said administrator [or,
 
 9IO JUDGMENT ENTRIES. 
 
 executor], which he is ordered to distribute according to law 
 (and the will), and make due report to this court. * * 
 
 No. 1474. 
 Same continued — Sustaining Exceptions. 
 \Caption.~\ 
 
 This day this cause came on to be heard upon the final 
 account of R. S., (executor of the will, etc.) administrator of 
 the estate of J. H. , deceased, and the exceptions thereto, and 
 the court having heard the evidence adduced by the parties, 
 and being fully advised in the premises, finds that the first 
 
 exception to said account as to the sum of $ is well 
 
 taken, and it is ordered that the sum of $ of the first 
 
 item of credit in the said account be disallowed and the bal- 
 ance of said item be allowed ; that said second exception is 
 overruled. [Proceed from *, ante No. 1473.] 
 
 No. 1475. 
 Entry Allowing Account of Distribution. 
 
 \C option J\ 
 
 This day this cause came on to be heard upon the account 
 of distribution heretofore filed herein by A. B., administrator 
 (or, executor) of the estate of C. D. , deceased, and the court 
 being satisfied that due notice according to law has been given 
 of the filing and of the time set for the hearing of said ac- 
 count, and that the same is in all respects regular and correct, 
 does therefore approve and confirm the same. And the court 
 further finding that the said A. B., as such administrator, has 
 paid over and distributed all of the money in his hands to 
 the heirs of the said C. D., deceased, it is therefore ordered 
 that the said A. B. be and he is hereby discharged and re- 
 leased as such administrator, and his sureties are hereby 
 discharged from any further liability except for fraud or 
 manifest error. 
 
 R. S. Sec. 6190.
 
 ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. 9H 
 
 No. 1476. 
 
 Entry Ordering Distribution of Notes in kind. 
 
 [Caption.] 
 
 [Proceeding fron. * ¥ \ in ante form No. 1473.] 
 And it also appearing that there is in the hands of said 
 administrator certain notes belonging to said estate, and that 
 the assent and agreement of the persons entitled to receive 
 the same as distributees has been obtained by said adminis- 
 trator, it is further ordered that the said administrator be and 
 he is hereby allowed to distribute said notes (bonds, stocks, 
 claims or other rights in action) to said persons who are 
 willing to receive the same. 
 
 R. S. Sec. 6189. 
 
 No. 1477. 
 
 Entry Authorizing Investment of Funds held Six Months. 
 
 [Caption.] 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and represented to the court that he has filed his 
 final account as such administrator, and that he has been 
 ordered to make distribution of the balance of the funds re- 
 maining in his hands belonging to said estate to the heirs of 
 said decedent according to law ; that he has paid over and 
 distributed all of said funds except the share going to one 
 
 E. F., an heir of said deceased, to wit, the sum of $ , 
 
 which has remained in his hands unclaimed for six months, 
 and that he is unable to ascertain the whereabouts of said E. 
 I-'., and asks for an order authorizing him to invest said sum 
 as provided by law. It is therefore ordered by the court that 
 said A. B., as such administrator, be and he is hereby em- 
 powered and authorized to invest said sum of $ in stocks 
 
 [ <tl \ to loan the same upon mortgage security), for the benefit 
 of the said I ; . !•'.. said investment to be made in the name of 
 V . C, judge- of said court, and his successors in office, the 
 same to be so held subject to the further orders of the court. 
 
 R. S. Sec. 6191.
 
 912 JUDGMENT ENTRIES. 
 
 No. 1478. 
 
 Entry Authorizing Money to be Paid Into County Treasury 
 when it can not be Loaned. 
 
 [Caption.] 
 
 Upon motion of E. C, administrator of the estate of P.M., 
 deceased, and it appearing that the said administrator has 
 been unable to make a satisfactory loan of the funds now re- 
 maining in his hands and belonging to one E. F., an heir of 
 the said decedent, whose whereabouts he is unable to ascer- 
 tain, it is hereby ordered that the said administrator pay said 
 
 sum of $ , so held by him, into the treasury of the 
 
 county, as provided by law, the same to be credited to the 
 general fund. 
 
 R. S. Sec. 6161. 
 
 No. 1479. 
 
 Entry Ordering Sum Deposited for Heir to be Paid Over to 
 Him Upon Satisfactory Proof. 
 
 [ Caption. ] 
 
 Now comes E. F. , and represents to the court that he is 
 an heir at law of C. D., deceased, and entitled to the sum of 
 
 $ , deposited by order of court by L. P., administrator 
 
 of said estate, in the county treasury of said county, and the 
 court being satisfied that the said E. F. is an heir at law 
 of said decedent, and the person he represents himself to 
 be, does order that the county auditor deliver to him a war- 
 rant for the sum of $ , so as aforesaid deposited in the 
 
 county treasury for his benefit. 
 
 R. S. Sec. 6192.
 
 DISTRIBUTION ENFORCED. 913 
 
 DISTRIBUTION ENFORCED. 
 
 (R. S. Sees. 6195 — 6200.) 
 
 No. 1480. 
 
 Entry of Filing of Petition to Compel Distribution — 
 Ordering Citation. 
 
 [Cap/ ton. ] 
 
 This day came S. F., and filed herein his petition to com- 
 pel G. J., administrator of the estate of N. L., deceased, to 
 pay over and distribute to him, as an heir at law of said de- 
 ceased, certain money therein alleged to be due him as his 
 distributive share of said estate. It is therefore ordered that 
 a citation issue against said administrator commanding him 
 
 to appear before this court on the day of , 18 — , 
 
 at — o'clock — M. , and show cause why judgment should 
 not be rendered and execution awarded against him for the 
 amount claimed by the petitioner. 
 
 R. S. Sec. 6195. 
 
 No. 1481. 
 Entry Ordering Service by Publication. 
 
 \Caption.~\ 
 
 It having been made to satisfactorily appear to the court 
 tli.it A. B., administrator of the estate of C. D., deceased, 
 resides without the state, it is ordered that notice be given to 
 him by publication according to law, and that said petition 
 be set for hearing on the day of , 18 — . 
 
 R. S. Sec. 6196.
 
 914 JUDGMENT ENTRIES. 
 
 No. 1482 
 
 Entry Ordering other Necessary Parties in. 
 
 [Caption.] 
 
 This cause coming on further to be considered upon the 
 petition heretofore filed herein by S. F. to compel G. J., 
 administrator of the estate of N. L,. , deceased, to make distri- 
 bution as therein prayed for, and it having been made satis- 
 factorily to appear to the court that in order to hear, determine 
 and settle the rights and claims of all the parties interested 
 therein, it will be necessary for that purpose to make other 
 parties in interest parties to said petition, to wit : \11ame them], 
 it is by the court ordered that said persons be and they are 
 hereby made parties herein, and that plaintiff file an amended 
 [or, supplemental] petition setting forth the nature of their 
 relationship to said controversy, and that service of notice be 
 given as required by law, and that said administrator [or, 
 
 executor] appear on the — day of , 18 — , and show cause 
 
 why judgment should not be rendered against him according 
 to law. 
 
 R. S. Sec. 6198. 
 
 No. 1483. 
 Judgment Rendered upon Petition. 
 
 [Caption.] 
 
 This cause came on this day for hearing on the petition 
 filed herein to compel distribution to be made by G. J., ad- 
 ministrator [or, executor] of the estate of N. L., deceased, 
 and it appearing that all the parties interested therein are 
 properly before the court, and that said administrator [or, 
 executor] has been duly notified hereof, said cause was sub- 
 mitted to the court. On consideration whereof the court 
 finds that the facts alleged in said petition are true, and that 
 said S. F. is entitled to have distribution made to him 
 by said administrator as prayed for in said petition. It is 
 therefore ordered that said S. F. do recover from G. J., as 
 
 administrator [or, executor] of said estate, the sum of $ , 
 
 together with the costs of this proceeding, for which execu- 
 tion is awarded. 
 
 Note. — In many instances a special finding of the facts (briefly) might 
 be made in the entry. R. S. Sees. 6197, 6198. This may be adapted to the 
 ■common pleas court. R. S. Sec. 6200.
 
 DISTRIBUTION ENFORCED. 915, 
 
 No. 1484. 
 
 Entry of Judgment upon Petition for Distribution Ordering Money 
 paid to Attorney in Fact. 
 
 [Caption.] 
 
 This day came the parties by their attorneys and this 
 cause came on to be heard upon the petition of the plaintiff, 
 the answer of the defendant, the evidence, exhibits and testi- 
 mony, was argued by counsel and submitted to the court. 
 And the court being fully advised in the premises, having 
 duly considered the same, doth find that the said R. M. died 
 intestate, and that on the — day of , 18 — , the defend- 
 ant was by this court duly appointed as administrator of the 
 
 estate of said R. M., deceased; that on the — day of , 
 
 !8 — , the defendant as such administrator filed his final ac- 
 count in this court for settlement, and that said account was 
 
 by this court finally settled on the — day of , 18 — , and 
 
 there was found to be due in the hands of the defendant of 
 
 the money of said estate for distribution the sum of $ . 
 
 That the amount found due was all the proceeds of the per- 
 sonal property that ever came to the hands of said adminis- 
 trator, excepting, however, the amount so paid out for debts 
 and expenses of administration, as shown by said account of 
 said administrator, that the court by its judgment duly en- 
 tered on said — day of , 18 — , ordered and directed the 
 
 defendant to distribute the said amount so as aforesaid found 
 due according to law. The court further finds that M. O., 
 H. O., M. D. and M. S. are the sole surviving heirs at law 
 and next of kin of the said R. M., deceased, and as such were 
 entitled by law to and did inherit the personal property of 
 said R. M., deceased, intestate, remaining after the payment 
 of debts, and that said property descended to and did vest in 
 said persons. 
 
 The court further finds that the plaintiff is the attorney 
 iii fact of said \naming them\ and as such is entitled to re- 
 ceive their distributive shares of said intestate's estate. 
 
 It is therefori ordered and adjudged by the court that the 
 defendant, as such administrator, pay the said sum so found 
 due said estate, being the amount mentioned in the petition 
 herein, less the costs, charges and taxes that have accrued 
 since said settlement, to the said C G. as attorney in fact 
 for said persons, whose receipt shall be sufficient voucher for 
 said payment, and upon said payment being made the de- 
 fendant shall be forever discharged from his said trust as 
 administrator of said estate.
 
 916 JUDGMENT ENTRIES. 
 
 No. 1485. 
 Entry Granting Motion to send Case to Common Pleas Court. 
 
 [Caption.] 
 
 Upon motion of , one of the parties to this proceed- 
 ing, it is ordered that this cause be and the same is hereby 
 reserved and sent to the court of common pleas of this county 
 for trial and judgment. 
 
 R. S. Sec. 6199. 
 
 INSOLVENT ESTATES. 
 
 (R. S. Sec. 6224.) 
 
 No. i486. 
 
 Entry Appointing Commissioners to Receive and Examine 
 Claims of Creditors. 
 
 Caption. ] 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and filed herein a motion, representing that the 
 real and personal estate of said decedent will probably be 
 insufficient for the payment of the debts of said estate, and 
 asking the appointment of commissioners to receive and ex- 
 amine claims of creditors. 
 
 It is therefore ordered by the court that G. H. and L. M. 
 be and they are hereby appointed commissioners to receive 
 and examine all claims of creditors against the estate of said 
 decedent, including those duly presented and allowed by 
 said administrator, and any and all other claims which may 
 be duly verified and presented to them, and that they return 
 to this court a list of all the claims which may be thus pre- 
 sented to them, together with the sum which they shall allow 
 on each claim. 1 
 
 It is further ordered that said commissioners appoint times 
 and places at which they will receive and examine claims, and 
 that they give notice thereof in writing according to law. 
 
 Note. — R. S. Sees. 6224, 6225.
 
 INSOLVENT ESTATES. 917 
 
 No. 1487. 
 
 Entry Allowing Further Time to Creditors to Present Claims 
 to Commissioners. 
 
 [Caption.] 
 
 Upon motion, it is ordered by the court that the time 
 within which the creditors of the estate of C. D., deceased, 
 may have to present their claims to and , commis- 
 sioners heretofore appointed herein, be extended for a period 
 of , from . 
 
 Note. — R. S. Sec. 6226. 
 
 No. 1488. 
 
 Entry of Hearing upon Appeal from Commissioners to Court — 
 Disallowing Claim. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the appeal of 
 
 from the commissioners' action in rejecting his claim against 
 the estate of G. D., deceased, and the court having heard the 
 evidence and arguments of counsel, was submitted to the 
 court. 
 
 On consideration thereof the court finds that said claims 
 
 of the said against said estate ought not to be allowed, 
 
 and does therefore order that the same be not allowed as a 
 valid claim against said estate. 
 
 It is therefore ordered that said pay the costs of this 
 
 proceeding, taxed at $ . 
 
 Note.— R. S. Sec. 6230. 
 
 No. 1489. 
 Entry of Filing of Petition to be ahowed to Prosecute Appeal. 
 
 [Cafition.] 
 
 This day came E. F. and filed herein his petition asking 
 that he be allowed to claim and prosecute an appeal from 
 the commissioners of insolvency of the estate of C. D., de- 
 ceased, heretofore appointed herein. 
 
 It is therefore ordered that said claimant give notice to A. 
 B., administrator of said (.state, and that the same be set for 
 hearing on the — day of , 18 — . 
 
 R. S. Sec. 6231.
 
 918 JUDGMENT ENTRIES. 
 
 No. 1490. 
 Entry of Hearing upon Petition for Allowance of Appeal. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 
 of , heretofore filed herein, asking that he be allowed to 
 
 prosecute an appeal from the action of the commissioners of 
 insolvency of the estate of C. D., deceased, heretofore ap- 
 pointed herein. And it appearing that due notice of the fil- 
 ing and of the time set for hearing of said petition has been 
 
 given to the administrator of said estate, and that said 
 
 failed (by accident, mistake, or otherwise), and not by his 
 own neglect to prosecute his said appeal within the time al- 
 lowed by law for that purpose, and that justice requires a 
 further examination of his claim. It is therefore ordered 
 
 that said 's appeal to this court be allowed, and that the 
 
 further hearing thereof be continued. 
 
 r. s. Sec. 6231. 
 
 No. 1491. 
 Entry of further Hearing of Appeal Allowing Claim. 
 
 \CapHon.~\ 
 
 This day this cause coming on to be further heard upon 
 
 the appeal of from the action of the commissioners of 
 
 insolvency of the estate of C. D., deceased, and the court 
 having heard the evidence adduced, and being satisfied that 
 said claim is a just and valid one against said estate and 
 ought to be paid, does therefore allow the same and order 
 that A. B., administrator of said estate, pay said claim from 
 the funds of said estate according to law. 
 
 R. S. Sec. 6232. 
 
 No. 1492. 
 
 Entry ordering Distribution in Accordance with Report of 
 
 Commissioners. 
 \Caption. ] 
 
 This day this case coming on to be further considered up- 
 on the report of the commissioners of the estate of the said 
 C. D., deceased, the court upon inspection finds therefrom 
 that the claims which have been presented to said commis-
 
 INSOLVENT ESTATES. 919 
 
 sioners and allowed by them as valid claims against said es- 
 tate amount to the sum of $ , and that the probable cost 
 
 and expense of administration of said estate amount to the 
 sum of $ , and that there is in the hands of the adminis- 
 trator of said estate applicable to the payment of said indebt- 
 edness the sum of $ , which will pay a dividend of — 
 
 percent thereon. It is therefore ordered that the said admin- 
 istrator of said estate pay the remaining sum in his hands, 
 
 amounting to $ , by paying to each one of said creditors 
 
 — percent of their claims, and that he make due report 
 thereof to this court. 
 
 No. 1493. 
 
 Entry declaring Estate insolvent, authorizing Executor (or 
 Administrator) to receive Claims. 
 
 \Caption.^\ 
 
 This day came A. B., administrator of the estate of C. D., 
 deceased, and represented to the court that said estate will be 
 probably insolvent, and the court not considering it necessary 
 to appoint commissioners does therefore authorize, direct, and 
 empower said administrator to receive and examine all claims 
 of the creditors of said estate which may be presented to him 
 as such administrator. 
 
 It is further ordered that said administrator give due no- 
 tice according to law to the creditors of said estate of the 
 insolvency thereof according to law. 
 
 R. S. Sec. 6236. 
 
 No. 1494. 
 
 Entry of Hearing of Exceptions to allowance of Claim by 
 Administrator. 
 
 \Capti<m. } 
 
 This day this cause came on to be heard upon the excep- 
 tions heretofore filed to the allowance by A. B., administrator 
 of C. I)., deceased, and the court having heard the evidence 
 produced, upon due consideration thereof finds that said claim 
 is just and ought to be allowed and does therefore overrule 
 said exceptions. ( Or, finds that said claim ought not to be 
 allowed, and therefore sustains said exceptions.) 
 
 R. S. Sec. 6244. 
 
 59
 
 920 JUDGMENT ENTRIES. 
 
 APPOINTMENT OF GUARDIAN. 
 
 (It. S. Sees. 6254—6265.) 
 
 No. 1495. 
 Entry of Appointment of Guardian. 
 
 [ Caption. ] 
 
 1. \Where named in will.~\ 
 
 This day came E. F., who was named in the last will and 
 testament of A. D., deceased, as the guardian of the (person 
 and estate) of R. D., a minor child of said decedent, and made 
 application to be appointed as such guardian, and filed herein 
 his statement of the probable value of all the property and 
 estate of such minor, and it appearing to the court that said 
 R. D. is a minor, is under the age of twelve years (or, if 
 over twelve years, that said R. D. is of the age of fourteen 
 years, and makes choice of said E. F. as his guardian. ) 
 
 R. S. Sec. 6267. 
 
 2. \_Where minor makes choice. ~\ 
 
 This day came A. D., minor child of C. D., late of said 
 county, deceased, over the age of twelve years, and made 
 choice of T. E. as his guardian, which choice is approved by 
 the court. And thereupon came the said T. E. and made 
 application to be appointed guardian of the said A. D., and 
 filed herein a sworn statement of all the property and assets 
 of the said minor, and the probable value thereof, and it ap- 
 pearing that it is necessary to appoint a guardian of said 
 minor, it is, etc. 
 
 3. [ Where mi)ior is cited to make choice and fails so to do. ] 
 A. D., minor child of C. D., late of said county, deceased, 
 
 having been heretofore cited by this court to appear on this 
 day, and make choice of a guardian, and said minor having 
 failed so to do, thereupon came T. E. and made application 
 to be appointed as guardian of the (person and) estate of the 
 said A. D., and filed a sworn statement of the probable value 
 of the whole estate of said minor, and the court being satisfied
 
 APPOINTMENT OF GUARDIAN. 92 1 
 
 that the said A. D. is a minor of the age of — years, and that 
 he is a resident of this county, and that it is necessary to 
 appoint a guardian of the (person and) estate of said minor, 
 and the court deeming the said T. E. a suitable person to be 
 appointed as such guardian, it is therefore ordered by the court 
 that the said T. E. be and he is hereby appointed as guardian 
 of the (person and) estate of the said A. D., and that he enter 
 into a good and sufficient bond as such guardian in the sum 
 
 of dollars, with sureties to be approved by this court, 
 
 and conditioned according to law. And the said T. E. there- 
 upon accepted said appointment, (a) and filed herein his bond 
 as such guardian in the sum of dollars, conditioned ac- 
 cording to law, with and as sureties, which bond is 
 
 hereby approved by the court and ordered recorded. It is 
 further ordered that the letters of guardianship issue to the 
 said T. E. , and that he return an inventory of the property 
 and estate of said minor according to law. 
 R. S. Sees. 6254-6261. 
 
 No. 1496. 
 Recital in Entry where Mortgage is given in Lieu of Bond. 
 [Caption.] 
 \Contimiing from (a) in ante Form No. 1495.] 
 
 And the said , in lieu of a bond, produced to the 
 
 court a mortgage upon good and unincumbered land, executed 
 
 to said , together with affidavits showing the value 
 
 thereof, and an abstract of the title to said lands, and it ap- 
 pearing to the court that the said lands, exclusive of all im- 
 provements thereon, are sufficient security for said bond, the 
 same is hereby approved by the court. [Thai follow as in 
 ante No. 1495.] 
 
 No. 1497. 
 
 Filing of Exceptions to Bond. 
 \Caption.~\ 
 
 This day came , and filed exceptions to the bond of 
 
 -, as guardian of the said , a minor, for the reasons 
 
 stated therein. It was thereupon ordered that not less than 
 
 — days' notice be given to the said , to appear and show 
 
 cause against the allowance of said exceptions, and that the 
 
 same be set for hearing on the , 18 — . 
 
 R. S. Sec. 6261.
 
 922 JUDGMENT ENTRIES. 
 
 No. 1498. 
 
 Hearing of Exceptions. 
 
 [Caption."] 
 
 This cause coming on to be heard upon the exceptions 
 
 heretofore filed herein by , to the bond given herein by 
 
 , as guardian of , a minor, and the court having 
 
 heard all the evidence adduced by the parties, finds that said 
 exceptions are not well taken, and therefore overrules the 
 same. (Or, and finds said exceptions well taken, and there- 
 fore sustains the same. It is therefore ordered that the said 
 
 , as such guardian, enter into an additional bond in the 
 
 sum of $ , with sureties according to law on or before 
 
 , 18-.) 
 
 R. S. Sec. 6261. 
 
 No. 1499. 
 Recital in Entry of Dispensing with Bond by Will. 
 
 [Caption!] 
 
 And the said testator, , having expressed a desire in 
 
 his said will that the said A. B. be not required to give a 
 bond as such guardian, the court for good reasons therefore 
 dispenses with the same, and the said is not now re- 
 quired to give bond. 
 
 R. S. Sec. 6268. 
 
 REMOVAL AND RESIGNATION OF 
 GUARDIAN. 
 
 No. 1500. 
 
 Entry of Filing of Motion for Removal of Guardian. 
 
 [Caption.] 
 
 This day came , and filed a motion for the removal 
 
 of as guardian of , a minor. It is ordered that 
 
 proper notice be given said , and that the said motion 
 
 be set for hearing on , 18 — .
 
 REMOVAL AND RESIGNATION OF GUARDIAN. 923 
 
 No. 1501. 
 
 Entry removing Guardian. 
 [Caption."] 
 
 This cause coming on to be heard upon the motion of 
 heretofore filed herein, to remove , as guardian of 
 
 the said , and the court having heard all the evidence 
 
 adduced by the parties, and being fully advised in the prem- 
 ises, finds that the said motion is well taken, in this, to wit, 
 [state grounds on which sustained.] 
 
 It is therefore ordered by the court that the said be 
 
 and he is hereby removed as guardian of the said , and 
 
 his powers and letters of guardianship revoked. It is further 
 ordered that the said file his final account as such guard- 
 ian on or before , 18 — . 
 
 [Or. if not sustained.] And the court finds that the said 
 motion is now well taken, and therefore overrules the same, 
 
 and orders and adjudges that the said pay the costs 
 
 hereof to be taxed. 
 
 R. S. Sec. 6272. 
 
 No. 1502. 
 Entry of Filing of Request of Surety to be Released. 
 
 [Caption.] 
 
 This day came , one of the sureties on the bond of 
 
 , guardian of , a minor, and filed herein his written 
 
 request to be released as surety of the bond of said , as 
 
 such guardian. It is ordered that the same be assigned for 
 
 hearing on the , 18 — , and that said give notice to 
 
 the guardian as required by law. 
 
 R. s. Sec. 6273. 
 
 No. 1503. 
 
 Entry releasing Surety. 
 [ Caption. I 
 
 This day this cause came on for hearing on the application 
 
 and request of to be released as surety on the bond of 
 
 . as guardian of ; and it appearing that due notice 
 
 according to law has been given to said guardian of the filing 
 of said request and of the time set for the hearing thereof,
 
 924 JUDGMENT ENTRIES. 
 
 and there appearing good and sufficient reasons for releasing 
 
 said , it is ordered that the said enter into a new 
 
 bond as such guardian on or before , 18 — , in the sum 
 
 of $ , with sureties to be approved by the court and con- 
 ditioned according to law. 
 R. S. Sec. 6273. 
 
 No. 1504. 
 Entry of Filing New Bond and Releasing Surety. 
 
 [Caption.] 
 
 This day came , guardian of , a minor, and filed 
 
 a new bond as such guardian, in obedience to an order here- 
 tofore made herein, in the sum of $ , conditioned accord- 
 ing to law, with and as sureties, which bond the 
 
 court approves, and orders that the same be recorded in the 
 record of bonds of said court. 
 
 It is therefore ordered that the request of , surety on 
 
 the former bond of said , as such guardian, to be released 
 
 therefrom, be and the same is hereby granted, and the said 
 
 is hereby released from further obligation on the bond 
 
 of the said , as such guardian. 
 
 R. S. Sec. 6273. 
 
 No. 1505. 
 
 Entry of Removal of Guardian where he Fails to Give a 
 
 New Bond. 
 [Caption.] 
 
 This being the day within which the said , guardian 
 
 of , a minor, was required by a former order of this court 
 
 to enter into a new bond in the sum of $ , by reason of the 
 
 request of , one of the sureties, to be released upon his 
 
 bond as such guardian, and the said having failed to file 
 
 such new bond, and still failing so to do, it is ordered that 
 he be and he is hereby removed as such guardian, and his 
 letters of guardianship revoked. 
 
 No. 1506. 
 Guardian removed when Ward removes to another State. 
 [Caption.] 
 
 This cause came on to be heard by the court upon the 
 application heretofore filed herein by , who was appointed
 
 REMOVAL AND RESIGNATION OF GUARDIAN. 925 
 
 guardian of , a minor, by the court of , for the 
 
 removal of , guardian of the said , appointed in this 
 
 state and county. A.nd it appearing that due notice accord- 
 ing to law has been given to the said , guardian as afore- 
 said in this state, of the filing and of the time set for the 
 
 hearing of this application, and that the said minor has 
 
 removed from this county and state to , and it appearing 
 
 from the exemplification of the record of the appointment 
 
 of the said made in said state of , that he is the duly 
 
 appointed and qualified guardian of said minor in said state, 
 and that said exemplification of said record is in due form of 
 law as required by the act of Congress made and provided, and 
 
 that the said state of has enacted a similar provision as 
 
 to wards removing from said state of , as in Ohio, and 
 
 that the removal of said ward from this state was for his best 
 interest, it is therefore ordered by the court that the said 
 
 be and he is removed as guardian of said , and his 
 
 letters of guardianship terminated and revoked ; and he is 
 ordered to render his accounts as such guardian in this court. 
 
 No. 1507. 
 
 Entry of Filing of Account by such Resident Guardian, and 
 Authorizing him to Pay to Foreign Guardian. 
 
 \Caption7\ 
 
 This day this cause came on to be heard upon the final 
 
 account of , guardian of , a minor, and due notice 
 
 according to law having been given of the filing and of the 
 time set for the hearing of said account, and no exceptions 
 having been filed thereto, and the court having carefullv 
 examined said account, and finding the same to be in all re- 
 spects regular and correct, the same is hereby approved and 
 confirmed ; and the court finds that there is a balance in the 
 hands of said , as such guardian, the sum of $ . 
 
 And thereupon this matter came on to be heard upon the 
 
 application of , who was appointed guardian of said , 
 
 who lias removed to the state of , and the court having 
 
 tofore examined and approvi d the exemplification of the 
 
 rd of appointment of said , as guardian of said , 
 
 minor, the said , as such foreign guardian is now here 
 
 permitted to receive tin- sum of $ , now iii tile hands of 
 
 the said , as guardian in this state, and due the said 
 
 , minor, and the said is hereby ordered to pay and 
 
 turn over to the said foreign guprdian the said sum of $ . 
 
 R. S. Sec. 6277-79.
 
 926 JUDGMENT ENTRIES. 
 
 SALE OF REAL ESTATE BY GUARDIAN. 
 
 (J?. 5. Sees. 6281—6287.) 
 
 No. 1508. 
 Entry of Filing of Petition, and ordering Notice. 
 
 [Caption.] 
 
 This day came , guardian of , a minor, and filed 
 
 a petition duly verified, asking for the sale of the real estate 
 therein described belonging to his said ward. It is therefore 
 
 ordered by the court that the said guardian cause days' 
 
 notice of the filing of his said petition, and of the time set for 
 the hearing thereof, to his said ward in the manner and form 
 in which service of process is made upon minors according to 
 law, and to [here give names of other defendants], and that 
 said petition be set for hearing on the day of , 18 — . 
 
 R. s. Sec. 6282. 
 
 No. 1509. 
 
 Entry of Hearing of Petition, Order to Appraise, and Sale 
 
 in One. 
 [Caption.] 
 
 This day this cause came on for hearing upon the petition 
 
 of , as guardian of , a minor, for the sale of the real 
 
 estate therein described belonging to said minor, and it ap- 
 pearing to the court that notice according to law and the 
 order of this court has been given hereof to said minor, and 
 to the defendants hereto, and that, as alleged in said petition, 
 it is necessary to sell said real estate of said minor for the 
 payment of debts due from him [or for any of the reasons 
 Provided in statute\ * it is therefore ordered by the court that 
 
 said premises be appraised by the oaths of , , and 
 
 , three freeholders of the county who are not of kin to the 
 
 petitioner, (a) and that when said premises are so appraised, 
 that the said , as such guardian, proceed to advertise said
 
 SALE OF REAL ESTATE BY GUARDIAN. 927 
 
 premises for sale at public auction at the door of the court- 
 house (or on the premises) by publication for four successive 
 weeks in some newspaper of general circulation in the county, 
 and that said guardian thereupon proceed to offer and sell 
 said premises in accordance with said notice and this order, 
 at not less than two thirds of the appraised value thereof, 
 upon the following terms, to wit : [state terms], said deferred 
 payments to bear interest, and to be secured by mortgage 
 upon the premises, and that he make report of his proceed- 
 ings hereunder forthwith upon execution of the same. 
 
 R. S. Sec. 6286. 
 
 No. 1510. 
 Entry where Order is Made to Sell at Private Sale. 
 
 [Caption.] 
 
 [Continuing from (a) in ante Form No. 1509], and it being 
 made to appear to the court that it will be for the best inter- 
 ests of said ward that said premises be sold at private sale, it 
 is therefore ordered that said guardian proceed to sell said 
 premises at private sale at not less than the appraised value 
 thereof, upon the following terms, to wit : [as in ante No. 1509]. 
 
 R. s. Sec. 6286. 
 
 No. 1511. 
 
 Entry when there is a Widow who Waives Dower by Metes 
 
 and Bounds. 
 
 [ Caption. ] 
 
 [Continuing from * in Form No. 1509], and it appearing 
 
 that . widow of , deceased, is entitled to dower in 
 
 the- premises in the petition described, and that she has by 
 her answer filed herein waived the assignment of her dower 
 therein by metes and bounds, and elected to receive its tine 
 value in money out of the- proceeds of said premises, it is 
 therefore ordered by the court that [proceed with the order 
 t<> appraise, etc., as in Form No. 1509, except to insert" free 
 front dower."
 
 928 JUDGMENT ENTRIES. 
 
 No. 1512. 
 
 Approval of Appraisement and Order of Sale. 
 
 [Caption.'] 
 
 This cause coming on to be heard upon the return of the 
 appraisement of the premises made herein, and the motion 
 of plaintiff to approve the same and for an order of sale, 
 and the court having carefully examined the said return, 
 and finding that the appraisement has been legally made does 
 therefore approve the same. And the said guardian having 
 heretofore given a bond sufficient to cover the amount of 
 money that may come into the hands arising from a sale of 
 said premises, he is not required to give further bond. And 
 the court finding that it is necessary to sell said premises as 
 alleged in said petition, it is therefore ordered that the said 
 guardian [proceed as in ante No. 1509 from *]. 
 
 No. 1513. 
 
 Entry of Hearing and Order for the Assignment of Dower 
 and Appraisement. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the petition 
 
 of , as guardian of , a minor, for the sale of the real 
 
 estate therein described, and the court being fully advised 
 finds that the said ward [name] has been duly served with 
 notice as required by law and the order of this court, and 
 that all of the other defendants thereto have been likewise 
 duly served with process herein, have due notice of these 
 
 proceedings, and that is the widow of , deceased, 
 
 and as such is entitled to dower in said premises. 
 
 It is therefore ordered that , , and , three- 
 
 freeholders who are not of kin to the said petitioner, be 
 and they are hereby appointed appraisers herein, and as such 
 are required upon their oaths and actual view of said premises 
 to set off and assign to the said , widow, her dower in- 
 terest in said premises, and that they thereupon proceed to 
 appraise said premises subject to said dower interest, and that 
 they make due report of their proceedings to this court. 
 
 R. S. Sec. 6283.
 
 SALE OF REAL ESTATE BY GUARDIAN. 929 
 
 No. 1514. 
 
 Entry ordering New Bond. 
 \Ca.ption.~\ 
 
 It appearing to the court that the said guardian, 
 
 has not given a bond sufficient to cover the amount which 
 will probably be realized from the sale of the premises de- 
 scribed in the petition herein, and the appraisement thereof 
 having been this day returned, showing an appraisement 
 
 thereof in the sum of $ , it is therefore ordered that the 
 
 said , as guardian of said , a minor, enter into an 
 
 additional bond in the sum of $ . And thereupon came 
 
 the said , and filed his bond in the sum of $ , condi- 
 tioned according to law, with and as sureties, which 
 
 is approved by the court. 
 
 R. S. Sec. 6285. 
 
 No. 1515. 
 
 Entry approving Assignment of Dower and order of Sale. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the return of the 
 order heretofore issued herein for the assignment of dower 
 and appraisement of the premises in the petition described, 
 and the court having carefully examined said proceedings 
 and return, and finding the same to be in all respects regular 
 and correct, therefore approves and confirms the same. It is 
 
 therefore ordered that the said , as such widow, hold the 
 
 portion of said premises so assigned to her as and for her dower, 
 as described and shown in said return according to law. 
 [T/u/t continue with order of sale as in ante Form No. 1509 
 from . J 
 
 No. 1516. 
 Entry of Confirmation of Appraisement and giving Bond. 
 
 [Caption.] 
 
 This day came the plaintiff, T. M. C, guardian of M. V. 
 H., T. H., and A. II., minors, and produced to the court the 
 appraisement herein made by S. S., ( >. S., and X. G. II., of 
 the real estate described in the petition, in pursuance of a 
 former order of thiscourt, and it appearing that said appraise- 
 ment is in all things regular and correct the same is hereby
 
 930 JUDGMENT ENTRIES. 
 
 approved and confirmed. It is further ordered that said T. 
 M. C. , as such guardian as aforesaid, execute within — days 
 to the state of Ohio a bond, with sufficient freehold sureties 
 to the acceptance of the court, in the sum of $ , condi- 
 tioned according to law. 
 
 No. 1517. 
 Entry ordering New Appraisement — When twice Offered. 
 
 \Captiqn.~\ 
 
 It appearing from the return of the order of sale this day 
 
 made by , as guardian of , a minor, that he has as 
 
 such guardian twice offered said premises for sale at public 
 auction under a former order of this court, and that the same 
 have not been sold for want of bidders, it is now here ordered 
 that the former appraisement of said premises be and the 
 same is hereby set aside ; and it is ordered that said premises 
 
 be reappraised by the oaths of , , and , three 
 
 freeholders of the county, and not of kin to the petitioner 
 herein, and that when said premises are so appraised that the 
 
 said , as such guardian, thereupon proceed to sell the same 
 
 at public auction [etc. , as informer entry, No. 1509]. 
 
 No. 1518. 
 
 Entry of Confirmation of Sale. 
 
 \CaptionJ\ 
 
 This day this cause came on to be heard upon the return 
 of , as guardian of , a minor, of the order of (ap- 
 praisement and) sale, and the motion of said guardian to 
 confirm the sale therein reported to have been made by him. 
 And the court having carefully examined said proceedings 
 and return of said guardian, and finding the same to be in 
 all respects regular and in conformity to the law and former 
 order of this court, it is ordered that the said sale so made 
 
 by said guardian to be and the same is hereby approved 
 
 and confirmed ; and it is ordered that the said , as such 
 
 guardian, execute and deliver to the purchaser \iiame\ a good 
 and sufficient conveyance for the said premises described in 
 the petition and order of sale, when the said purchaser shall 
 have complied with all the terms of said sale. 
 
 It is further ordered that the said guardian pay the costs 
 herein, taxed at $ . 
 
 Note. — If there are any liens the forms in "Administrators' Sales" 
 may be followed.
 
 LEASE OF WARD'S LANDS. 931 
 
 No. 1519. 
 
 Foreign Guardians — Sales by. 
 
 The same entries will apply to sales of real estate by foreign guardians. 
 
 The entry should recite the fact, if a fact, that the bond given by the 
 foreign guardian where he was appointed is sufficient to cover the amount 
 to be realized from the sale of the real estate. If not sufficient, he may be 
 ordered to give new bond as in entry No. 1514. 
 
 LEASE OF WARD'S LANDS. 
 
 No. 1520. 
 
 Entry on Hearing of Petition — Appointing Freeholders to 
 
 Report Opinion. 
 \_Caption.~\ 
 
 This cause coming on to be considered by the court upon 
 the petition of , as guardian of , a minor, for author- 
 ity to lease the premises in said petition described and belong- 
 ing to said ward, it is ordered that , , and , three 
 
 freeholders of the county, and not of kin to said petitioner, 
 be and they are hereby appointed to view the premises, and 
 report under oath their opinion of the probable cost of the 
 improvements proposed by said guardian, and whether the 
 lease proposed will be for the best interests of the said ward, 
 and if so, upon what terms the lease should be made, and that 
 
 they report their proceedings to this court on or before , 
 
 18—. 
 
 R. S. Sees. 6296-99. 
 
 No. 1521. 
 
 Entry of Final Hearing of Petition and Report of Freeholders — 
 Authorizing Lease. 
 
 [ ( 'aption.~\ 
 
 This day the petition for authority to lease the lands of 
 
 the said ward, heretofore filed herein by , guardian, came 
 
 OB for final hearing, and it appearing from the report of the 
 freeholders heretofore appointed that they are of the opinion 
 that the said lease should be made, and the court being of 
 the opinion that it will be to the advantage of said ward to
 
 932 JUDGMENT ENTRIES. 
 
 improve and lease the said real estate as prayed for by said 
 guardian, and that such lease is necessary to secure the im- 
 provements and increase the rents, and that such increase is 
 necessary for [any of the purposes named in the statute]^ it is 
 
 therefore ordered that the said , as such guardian, be and 
 
 he is hereby authorized to make a lease to for the prem- 
 ises in the petition described at an annual rental of $ , 
 
 etc. [upon such terms as the court shall deem proper], 
 
 R. S. Sec. 6299. 
 
 No. 1522. 
 
 Lease of Minor's Land for Gas or Oil — Entry of Filing of 
 
 Petition — Ordering Notice. 
 [Caption.] 
 
 This day came , guardian of , a minor, and filed 
 
 his petition for authority to lease the premises therein de- 
 scribed for (petrolium oil or natural gas purposes). It is 
 ordered that not less than — ■ days' notice thereof and of the 
 time set for the hearing of said petition be given the said 
 ward (and all other defendants), and that the same be set for 
 hearing on , 18 — . 
 
 R. S. Sees. 6301-2-3. 
 
 No. 1523. 
 
 Entry on Final Hearing. 
 [Caption.] 
 
 This day this cause came on for hearing upon the petition 
 filed herein by , as guardian of , a minor, for au- 
 thority to lease the premises therein described for (petroleum 
 oil) (gas purposes), and it appearing that due and proper 
 notice thereof has been given to the said ward (and other 
 defendants thereto) according to law and the order of this 
 court, and the court being satisfied from' the evidence adduced 
 that it will be for the best interests of said ward to lease said 
 real estate for the purposes aforesaid, does grant the prayer 
 
 of said petition, and it is therefore ordered that the said , 
 
 as such guardian, be and he is hereby authorized to make a 
 lease of said premises for the purpose of boring for oil in 
 accordance with the terms set forth in the petition, and when 
 said lease is so made by said guardian that he report the 
 same to the court for approval. 
 
 R. S. Sees. 6301-4.
 
 LEASE OF WARD'S LANDS. 933 
 
 No. 1524. 
 Entry approving Lease made for Oil Purposes, etc. 
 
 \Caption.~\ 
 
 This day came , guardian of , a minor, and re- 
 ported to the court the lease made by him in accordance with 
 a former order of the court of the premises described in his 
 
 petition to , for the privilege of boring for oil upon the 
 
 terms therein stated. And the court having examined said 
 report and said lease, and finding the same in all respects 
 regular, does therefore approve the same. 
 
 R. S. Sees. 6301-4. 
 
 No. 1525. 
 
 Lease for Mining Purposes. 
 \Caption.~\ 
 
 [The proceedings are like the ordinary lease, and the en- 
 tries at Nos. 1520-24 can be followed.] 
 
 R. S. Sees. 6301, 5 to 8. 
 
 No. 1526. 
 
 Report by Guardian of Royalty, and Bond Fixed. 
 
 \_Captio>i.~\ 
 
 This day came , as guardian of , and reported 
 
 the royalty received by him as such guardian under the lease 
 made by him of the ward's premises for [state parposes\ for 
 the six months after the execution of said lease, which said 
 
 royalties amount to the sum of $ . It is therefore ordered 
 
 that the said guardian enter into an additional bond in the sum 
 
 to cover the amount of money which may come 
 
 into his hands from such lease, with sureties to be approved 
 by the court. And thereupon said guardian presented his 
 
 said bond in the sum of $ , with as sureties, which 
 
 is approved by the court. 
 
 R. S. Sees. 6301-9.
 
 934 JUDGMENT ENTRIES. 
 
 INDENTURE OF WARD. 
 
 No. 1527. 
 Approval of Indenture by Probate Court. 
 
 \_Caption.~\ 
 
 A. B., guardian of , having produced to the court 
 
 articles of indenture purporting to have been made on , 
 
 !8 — , by him as such guardian, and the said , by the 
 
 terms of which the said A. B. as such guardian bound his 
 
 said ward to the said as in said indenture set forth, and 
 
 the court being satisfied that the said is a proper person 
 
 to whom the said ward may be bound, and that the terms of 
 said indenture are reasonable and just, the same is hereby 
 approved. 
 
 R. S. Sec. 6293. 
 
 GUARDIANS OF LUNATICS, IDIOTS 
 AND IMBECILES. 
 
 No. 1528. 
 Entry of Appointment of Guardian of Lunatic, Idiot or Imbecile. 
 
 \Caption.~\ 
 
 This day this cause came on fo^ hearing upon the appli- 
 cation of to be appointed guardian of , an imbecile 
 
 (or, an idiot, or lunatic), and the court being satisfied that due 
 notice according to law has been given to the next of kin of 
 
 said , residing within the county, and that said is an 
 
 imbecile (idiot or lunatic), and incapable of taking care of and 
 
 managing his property, and that the said is a resident 
 
 of this county, having a legal settlement in the township 
 
 of , in said county, it is therefore ordered that the said 
 
 be and he is hereby appointed guardian of the said 
 
 , an imbecile (idiot or lunatic), and that he enter into a
 
 GUARDIANS OF LUNATICS, ETC. 935 
 
 bond as such guardian in the sum of $ , conditioned ac- 
 cording to law, and with sureties to the approval of this 
 
 court. And thereupon the said presents his bond as 
 
 such guardian in the sum of $ , with and as 
 
 sureties, which bond being deemed by the court to be suffi- 
 cient, is approved and ordered recorded. It is further ordered 
 that letters of guardianship issue to the said . 
 
 R. S. Sec. 6302. 
 
 No. 1529. 
 
 Entry authorizing Sale or Adjustment of Dower Interest. 
 
 [Caption. ] 
 
 This day came , as guardian of , an imbecile 
 
 1 or lunatic), and made application to the court for its ap- 
 proval of the sale of a certain right of dower (or, contingent 
 right of dower), which his said ward has in the premises 
 described in his said application, and of which the husband 
 (or wife) of said ward was seized as an estate of inher- 
 itance. And the court being satisfied that it will be to the 
 advantage of said ward to sell said dower interest as reported 
 by said guardian and upon the terms set forth in his said 
 application, the said sale so reported by him to have been 
 made is hereby approved. 
 
 R. S. Sec. 6307. 
 
 No. 1530. 
 
 [As to proceedings to lease the lands of idiots, imbeciles, 
 or lunatics, under Sec. 6308, to Sec. 6312, the same entries 
 as in ante Xos. 1520-1526 can be modified for use.] 
 
 No. 1531. 
 Entry authorizing Guardian to Complete Contract. 
 I ( aption. ] 
 
 This cause coming on to be heard upon the petition of 
 guardian of , an imbecile (or, lunatic), for author- 
 
 ity to complete a contract alleged to have been made by his 
 said ward, and the court being satisfied that all parties hereto 
 have been duly and legally notified hereof, finds that the said 
 
 60
 
 936 JUDGMENT ENTRIES. 
 
 on the — day of , while he was of sound mind, 
 
 entered into a contract with the said , etc. [Proceed as 
 
 inform of entry in ante No. 14 14.] 
 
 R. S. Sec. 6313. 
 
 No. 1532. 
 Entry upon Filing of Petition to Improve Lands. 
 
 [Caption.] 
 
 This day came , guardian of , an imbecile, and 
 
 filed herein his application for authority to improve the lands 
 of his ward. It is ordered that the said guardian cause — 
 days' notice hereof to be given to the wife (or, husband) of 
 
 the said , and to his next of kin, defendants hereto, and 
 
 that said petition be set for hearing on the — day of , 
 
 18—. 
 
 R. S. Sees. 6313-2. 
 
 No. 1533. 
 Same Continued — Entry appointing Freeholders. 
 
 [Caption.] 
 
 This cause coming further to be heard upon the petition 
 
 of , guardian of , an imbecile, (and the answer of 
 
 , his wife) and the evidence, on consideration thereof 
 
 the court finds that due notice according to law and the order 
 of this court has been given to all of the parties and defend- 
 ants herein, it is ordered that , , and , free- 
 holders of the county, be appointed as commissioners, whose 
 duty it shall be to examine the premises proposed to be im- 
 proved, and described in the petition herein, and to report to 
 the court their opinion whether the improvement proposed 
 will be advantageous to the estate of the said ward or not, 
 within — days from this date. 
 
 R. S. Sec. 6313. 
 
 No. 1534. 
 
 Same Continued — Final Entry. 
 
 [Caption.] 
 
 [May be moulded after Form No. 1523, ante.] 
 
 R. S.Secs. 6313-3.
 
 GUARDIANS OF DRUNKARDS. 937 
 
 No. 1535. 
 
 Entry terminating Guardianship. 
 
 [Caption.] 
 
 It appearing to the satisfaction of the court that the said 
 has been restored to his reason, it is ordered that said 
 
 guardianship be terminated, and that the letters of guardian- 
 ship issued to , as his guardian, be revoked, and that 
 
 said , as guardian, file herein his final account as such 
 
 guardian. 
 
 R. S. Sec. 6316. 
 
 No. 1536. 
 Sale of Real Estate. 
 
 [ Caption. ] 
 
 [See ante Nos. 1508-15 19.] 
 
 R. S. Sec. 6306. 
 
 GUARDIANS OF DRUNKARDS. 
 
 No. 1537. 
 
 Entry of Appointment. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the appli- 
 cation of , heretofore filed herein, for the appointment of 
 
 a guardian of , an alleged drunkard, and it appearing to 
 
 the court that at least five days' notice in writing of this 
 application, setting forth the time and place of the hearing 
 
 of said application, lias been served upon the said , upon 
 
 satisfactory proof the court finds that the said is inca- 
 pable of taking care of himself or of his property by reason of 
 intemperance and habitual drunkenness. 
 
 It is therefore ordered that be and he is hereby ap- 
 pointed guardian of the said , an habitual drunkard, and 
 
 that he enter into a bond as such guardian. [Proceed as in 
 ante No. 1495.]
 
 938 JUDGMENT ENTRIES. 
 
 ACCOUNTS OF GUARDIAN. 
 
 No. 1538. 
 
 , Entry of Filing of Account. 
 
 \Caption.~\ 
 
 This day came , guardian of , a minor, and filed 
 
 his (partial) final account as such guardian, which the court 
 orders advertised according to law and set for hearing on the 
 — day of , 18 — . 
 
 No. 1539. 
 
 Entry Allowing Account. 
 
 \Caption.~\ 
 
 This cause came on to be heard upon the (first partial) 
 final account of , guardian of , a minor, and it ap- 
 pearing to the court that said account has been advertised for 
 hearing according to law, and having carefully examined the 
 same and finding it in all respects correct and regular, it is 
 therefore ordered that said account be and the same is hereby 
 approved and allowed, and that it be recorded in the record 
 of accounts of said court. And the court finds that there is 
 
 a balance remaining in the hands of , as such guardian, 
 
 of the sum of $ , which he is ordered to (hold according 
 
 to law). (Or, pay over to his ward according to law.) 
 
 TRUSTEES FOR NON-RESIDENTS. 
 
 (R. S. Sees. 6320 — 6327-3.) 
 
 No. 1540. 
 Entry appointing Trustee of Non-Resident to Manage Real Estate. 
 [Caption.] 
 
 This day this cause came on for hearing upon the appli- 
 cation to this court to appoint a trustee for certain premises
 
 TRUSTEES FOR NON-RESIDENTS. 939 
 
 situated in township, county, in this state, of 
 
 which J. C. died seized, as represented by application filed 
 in this court, said premises being devised to W. C, the son 
 of said J. C. On consideration whereof, and being fully 
 advised in the premises, the court is of opinion that it is for 
 the best interest of said W. C. and his estate to appoint a 
 trustee to take charge of said premises until further order 
 herein ; it is therefore ordered that C. K. be and he is hereby 
 appointed trustee to take charge of said real estate in said 
 application described, belonging to said non-resident until 
 further order of this court, with full power to lease and rent 
 the same, collect all rents, to pay taxes on said premises, and 
 all cost of insurance and repairs and necessary charges and 
 expenses ; and it is further ordered that he make due account 
 to this court of his doings as such trustee. It is further 
 ordered that said C. K. enter into a bond as such trustee in 
 the sum of $ , with sureties according to law. 
 
 R. S. Sec. 6320 ct seq. 
 
 No. 1541. 
 
 Entry of Filing of Petition to Sell Real Estate of Non-Resident 
 Minor — Ordering Service of Notice. 
 
 \Caption.~\ 
 
 This day came R. E., trustee of the estate of H. K., a 
 non-resident minor, and filed his petition herein, praying for 
 the sale of the undivided interest of said minor in the real 
 •.state in said petition described. It is therefore ordered that 
 the plaintiff cause notice to be served on the defendants I. S. ,M. 
 B., and L. V., of the filing of said petition and the object and 
 lemand thereof, and that the same will be for hearing on the 
 — ( ] a y f , 18 — , and that plaintiff cause like notice, to- 
 gether with a certified copy of the petition herein, to be served 
 on the defendants II. K. and \Y. W. K. 
 
 R. S. Sic 6323. 
 
 No. 1542. 
 
 Entry of Hearing — Ordering Real Estate of Non-Resident Minor 
 to be Subdivided and Appraised. 
 
 \Capti'>n. I 
 
 This da}' this cause came on for hearing upon the peti- 
 tion, answer of \Y. \V. K.. widower, the answer of H. M. B.,
 
 940 JUDGMENT ENTRIES. 
 
 guardian ad litem, and the evidence, and was submitted to 
 the court. On consideration whereof, and being satisfied 
 that the notice heretofore ordered has been served upon the 
 defendant H. K., and upon her father, W. W. K., with whom 
 she resides, and that said H. K. has been duly and legally 
 notified of the pendency and prayer of said petition, and that 
 each and all of the other defendants have been duly and 
 legally served (or, have entered their appearance herein), the 
 court finds that, as set out in the petition, the real estate 
 therein described "ought to be sold as prayed for. 
 
 (And it appearing to the court that it will be to the ad- 
 vantage of said minor in common with the other defendants 
 
 to have said lands divided in two tracts of acres, it is 
 
 therefore ordered that the petitioner herein cause the same to 
 be done, dividing the same into two tracts as aforesaid, and 
 return a plat thereof to this court ; and he is hereby author- 
 ized to employ some competent surveyor to lay out and plat 
 said lands.) 
 
 And it appearing that said widower W. W. K. by his 
 answer waived the assignment of dower by metes and bounds, 
 it is ordered and adjudged that after such subdivision said 
 
 tracts be appraised free from dower upon the oaths of , 
 
 1 an d , three disinterested freeholders of the vicinity, 
 
 and that due return be made of the proceedings hereunder. 
 
 No. 1543. 
 
 Entry approving Appraisement— Ordering Sale of Minor's Undi- 
 vided Interest (Private) (Public). 
 
 [Caption.'] 
 
 This day came the parties and this cause now coming on 
 to be heard on the return of the appraisers heretofore ap- 
 pointed by the court of their proceedings in the appraisement 
 of said premises, and the court being fully advised finds the 
 same in all respects regular and in conformity to law, and 
 therefore approves the same. 
 
 And the court finds that it is to the best interests of said 
 minor to sell her undivided interest in said real estate. It is 
 ordered that said R. E., trustee of said H. K., proceed to sell 
 the undivided interest and share of said real estate as sub- 
 divided. 
 
 (And it appearing to the court upon the evidence adduced 
 that it would be more to the interest of said minor to sell 
 said real estate at private sale, it is therefore ordered, ad-
 
 TRUSTEES FOR NON-RESIDENTS. 941 
 
 judged, and decreed that the said trustee proceed to sell said 
 undivided part and interest of said minor in the real estate 
 described in the petition in two tracts, as shown in the report 
 of the said appraisers, free from dower, at private sale, at not 
 less than the appraised value thereof, for cash, etc. 
 
 NOTE. — For entry confirmation, the usual entries as given in previous 
 pages 902, 903, 904. 
 
 No. 1544. 
 
 Entry ordering Transfer of Funds of Non-Resident Minor to 
 Foreign Guardian. 
 
 \CafitionJ\ 
 
 This day this cause came on to be heard upon the petition 
 of A. F. W., foreign guardian of H. K, a non-resident minor, 
 heretofore filed herein, for the transfer of the funds in the 
 hands of R. E., trustee of said H. K., non-resident minor, to 
 him as such foreign guardian. The court upon careful con- 
 sideration of the premises doth find that the said R. E., trus- 
 tee aforesaid, has waived the service of notice upon him, and 
 has entered his appearance herein, and that said A. F. W. , 
 said foreign guardian, has produced and filed herein an ex- 
 emplification under the seal of the clerk of the court of 
 
 county, , which is in all respects in compliance with 
 
 law. 
 
 It appearing that it is for the best interests of the estate 
 of said minor that said funds now in the hands of said trustee 
 should be transferred to such foreign guardian, the court doth 
 order that said R. E. shall transfer and pay to said A. F. W., 
 said foreign guardian, the amount now in his hands belonging 
 to the estate of said minor, and make report to this court in 
 his final account. 
 
 R. S. Sec. 6326.
 
 942 JUDGMENT ENTRIES. 
 
 ASSIGNMENTS FOR CREDITORS- 
 INSOLVENT DEBTORS. 
 
 No. 1545. 
 
 Deed of Assignment Filed. 
 [Caption.] 
 
 On this — day of , 18 — , at the hour of — o'clock 
 
 — M., there was filed in this court a deed of assignment from 
 to for the benefit of the creditors of said . 
 
 R. s. vSec. 6335. 
 
 No. 1546. 
 Entry of Filing of Bond by Assignee. 
 
 [Caption.] 
 
 This day came , named in the deed of assignment 
 
 heretofore filed herein by , as the assignee thereof, and 
 
 accepted said trust, and filed herein his bond as such assignee 
 
 in the sum of $ , conditioned according to law, with 
 
 and as sureties, which bond is approved. And there- 
 upon upon motion of said , , , and are 
 
 hereby appointed to appraise the property and assets of the 
 sa id j and said assignee is required to return said ap- 
 praisement to this court without delay. 
 
 No. 1547. 
 Entry removing Assignee and appointing Trustee. 
 
 [Caption. ] 
 
 A. B., who was named in the deed of assignment filed in 
 
 'this court on the — day of , 18 — , by S. F., as the assignee 
 
 thereof, having failed for ten days after the execution of said 
 deed of assignment to appear in this court and file his bond 
 as required by law, the court therefore upon application of 
 
 (assignor) or ( , creditor) orders that the said A. B. 
 
 be and he is removed as such assignee.
 
 ASSIGNMENTS FOR CREDITORS, ETC. 943 
 
 It is further ordered by the court that be and he is 
 
 hereby appointed trustee herein in place of said as such 
 
 assignee, and that said enter into a bond as such trustee 
 
 in the sum of $ , with sureties to the approval of the 
 
 court. And thereupon the said filed his bond in the 
 
 sum of $ as such trustee, with and as sureties 
 
 thereon, which is approved by the court. [Appointment of 
 appraisers as in ante No. 1546.] 
 
 R. S. Sec. 6336. 
 
 No. 1548. 
 
 Entry showing Resignation of Assignee and Appointment of 
 
 Trustee. 
 [Caption.^ 
 
 This day came A. B. and tendered herein his resignation 
 as assignee of , an insolvent debtor, which for satisfac- 
 tory reasons is accepted by the court. 
 
 It is therefore ordered by the court that be and he is 
 
 hereby appointed as trustee in trust for the benefit of creditors 
 herein, and that as such trustee he enter into a bond in the 
 
 sum of $ , with sureties to the approval of the court. 
 
 And thereupon the said filed his bond, etc., [as in ante 
 
 No. 1546.] 
 
 R. S. Sec. 6337. 
 
 No. 1549. 
 
 Entry of Filing of Complaint against Trustee by Creditors. 
 
 [Caption. \ 
 
 A complaint by the creditors of , assignor, having 
 
 been this day filed against , assignee, it is ordered that a 
 
 citation issue to the said assignee and assignor requiring them 
 to appear before this court on the , 18 — . 
 
 R. S. Sec. 6338. 
 
 No. 1550. 
 
 Entry on Hearing of Complaint — Fixing Day for Election of 
 Trustee for Creditors. 
 \i 'aptton, ] 
 
 This day this cause came on for hearing upon the com- 
 plaint heretofore tiled herein by the creditors of said ,
 
 944 JUDGMENT ENTRIES. 
 
 assignor, against as assignee herein, and it being made to 
 
 appear to the court that said complaint is true, and a petition 
 having been filed herein by the creditors of the assignor, own- 
 ing not less than one thousand dollars of debts against said 
 
 assignor, it is ordered that , 18 — , be fixed for the election 
 
 by the creditors of a trustee of said , and that notices be 
 
 sent to the creditors of said date according to law. 
 
 R. S. Sec. 6338. 
 
 No. 1551. 
 
 Entry appointing Trustee chosen by Creditors. 
 
 [ Caption. ] 
 
 This day came , who was chosen as the trustee of 
 
 assignor, at the election by creditors held , if 
 
 and presented to the court his bond as such trustee. And 
 
 the court being satisfied that the said was duly and 
 
 legally elected by the said creditors as such trustee, and 
 deeming him a suitable person to be appointed as such trus- 
 tee, the said choice so made by the said creditors is hereby 
 
 approved, and the said is hereby appointed as such 
 
 trustee of , and the said , as assignee, is hereby 
 
 removed. 
 
 R. S. Sec. 6338. 
 
 No. 1552. 
 
 [For removal of assignee under Sec. 6339, follow and 
 modify form No. 1389.] 
 
 No. 1553. 
 
 Entry of Appointment of Trustee for Property Recovered under 
 R. S. Sec. 6344- 
 
 \Caption.~\ 
 
 This day came , one of the creditors of , and 
 
 made application for the appointment of a trustee.
 
 ASSIGNMENTS FOR CREDITORS, ETC. 945 
 
 No. 1554. 
 Entry of Filing of Inventory and Appraisement. 
 
 \Cafition.~\ 
 
 This day came , assignee of , an insolvent debtor, 
 
 and filed an inventory and appraisement of the property and 
 assets of the said , together with a schedule of the liabil- 
 ities which are ordered by the court to be recorded. 
 
 No. 1555. 
 
 Entry ordering Assignor to Appear and be Examined. 
 
 [ Caption. ] 
 
 Upon motion of , a creditor of , an insolvent 
 
 debtor, it is ordered that the said assignor, , be and ap- 
 pear before this court on the — day of , 18 — , and sub- 
 mit to an examination upon oath on all matters relating to 
 the disposal of his property. 
 
 R. S. Sec. 6349. 
 
 No. 1556. 
 
 Filing of Sale Bill. 
 
 [Caption.^ 
 
 This day came , assignee of , an insolvent debtor, 
 
 and filed herein his sale bill of the personal property sold by 
 him at public auction, which is approved and ordered re- 
 corded. 
 
 No. 1557. 
 Entry Order for Sale of Personal Property at Public Auction. 
 
 [ Caption.] 
 
 On application of G. L. C, assignee in said matter, for 
 an order to sell the planing mill equipment, to wit: [describe 
 
 the property^ set out in schedule of the inventory and 
 
 appraisement of said assignor, heretofore filed in this court, 
 it is ordered that said assignee proceed to advertise said 
 property for sale, and to sell the same at public auction on 
 the premises to the highest bidder, according to law, and 
 that the planing mill equipment, to wit: [describe proper ty\ y
 
 946 JUDGMENT ENTRIES. 
 
 be sold as a whole, and upon the following terms, to wit: 
 [state terms], said deferred payments to be evidenced by notes 
 secured by mortgage on the property sold, and that he make 
 due return of his doings concerning such sale as the statutes 
 require. 
 
 No. 1558. 
 
 Entry authorizing Personal Property to be Sold at Private Sale. 
 
 [Caption.] 
 
 This cause coming to on be heard upon the application of 
 -, assignee, for authority to sell the personal property 
 
 mentioned and described in his said application at private 
 sale, and the court being satisfied that it would be to the 
 advantage of the creditors of the assignor to sell said property 
 at private sale, it is ordered that the said , as such as- 
 signee, proceed to sell said personal property at private sale 
 (for not less than two thirds the appraised value), and for good 
 cause shown said assignee is authorized to sell the same for 
 [less than two thirds], upon the following terms, to wit: [state 
 terms]. 
 
 R. S. Sec. 6350c. 
 
 No. 1559- 
 
 Sale of Personal Property ordered at Public Auction when not 
 Sold at Private Sale. 
 [ Caption. ] 
 
 This day came , assignee of , an insolvent debtor, 
 
 and returned the order for private sale of the personal prop- 
 erty heretofore issued herein ; and it appearing that said as- 
 signee has not sold the said personal property within the time 
 prescribed by the order, it is ordered that said assignee pro- 
 ceed to sell said property at public auction according to law. 
 
 R. S. Sec. 6350^. 
 
 No. 1560. 
 
 Entry ordering Business of Assignor carried on by Assignee. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the appli- 
 cation of the assignee of A. D., an insolvent debtor, and the
 
 ASSIGNMENTS FOR CREDITORS, ETC. 947 
 
 creditors, for authority to carry on the business of said as- 
 signor, and the court being fully advised in the premises finds 
 that it will be to the advantage of the creditors of said as- 
 signor to carry on said business, as prayed for, and does there- 
 fore grant said application and empower and order the said 
 
 , as such assignee, to carry on the said business of said 
 
 assignor, and to sell the said goods and property of said as- 
 signor in the regular course of business, until the further 
 orders of the court, and make due report of the sales so made 
 by him to the court. 
 
 R. S. Sec. 6350^. 
 
 No. 1561. 
 Entry ordering Discontinuance of Business by Assignee. 
 
 \Caplion. ] 
 
 It appearing to the court that it will be to the best inter- 
 est of the creditors of said assignor to discontinue the carry- 
 ing on of the business of said assignor, it is therefore ordered 
 
 that the said , assignee, discontinue said business, and 
 
 that he proceed to sell the remaining property so assigned to 
 him, at public auction according to law. 
 
 R. S. Sec. 6350. 
 
 No. 1562. 
 
 Entry upon Motion to strike Property from Inventory where 
 Assignor has sold Same prior to Assignment. 
 
 \Caption.~\ 
 
 This day this matter came on to be heard on the motion 
 of S. C. & Co. and L. M. B., heretofore filed herein, to strike 
 from the inventory and appraisement of the assets of said 
 assignor certain piles of lumber in said motion referred to 
 and embraced in said inventory and appraisement herein, and 
 on the exhibits, testimony, and arguments of counsel in be- 
 half of said movers, of the assignee, and of certain general 
 creditors of said assignor. 
 
 ' )ii consideration whereof, and being fullv advised in the 
 premises, the court finds that said lumber had, prior to said 
 assignment, for full value, been sold, transferred, and set over 
 to said moving parties, S. C. & Co. and L. M. B., and had 
 for several months been, and then was, and has ever since 
 been, in the bonafide^ full, and unquestioned possession and
 
 948 JUDGMENT ENTRIES. 
 
 control of said movers under the terms and conditions of said 
 sale and transfer to them, and that said motion ought to be 
 sustained. 
 
 It is thereupon ordered and adjudged that said motion be 
 and the same is hereby sustained, and said several piles of 
 lumber in said inventory and appraisement hereinbefore so 
 described be and they are wholly stricken from said inventory 
 and appraisement as improperly embraced therein, and said 
 assignee is hereby relieved and discharged from all further 
 duties and responsibility with reference thereto, or to any 
 
 part or portion thereof, at the cost, taxed at $ , of said 
 
 assignee, to be paid from the general funds in his hands as 
 such assignee. 
 
 No. 1563. 
 
 Entry determining Title and Ownership of certain Accounts 
 transferred by Assignor before Assignment. 
 
 \CaptionJ\ 
 
 This day this matter came on to be heard upon the appli- 
 cation of C. T., heretofore filed herein, praying for an order 
 of court to determine the title and ownership of certain ac- 
 counts and the proceeds thereof in said application set forth, 
 and that the said assignee herein may be required to and de- 
 liver the same to said applicant. 
 
 Upon consideration thereof and of the evidence and argu- 
 ments of counsel, the court finds that the book accounts set 
 forth and described in said application were on or about the 
 
 — day of , 18 — , and prior to the assignment of E. K. 
 
 to said G. L. C, transferred and assigned for a valuable con- 
 sideration by said E. K. to said C. T. ; that said assignment 
 and transfer of said accounts was made and delivered in the 
 manner and for the purposes set forth in said application ; 
 and that said applicants are entitled to have said accounts 
 and proceeds thereof. 
 
 It is therefore considered, ordered, and adjudged that said 
 applicants are entitled to said accounts and the proceeds 
 thereof, and that said assignee pay to them all amounts 
 which he has collected or may hereafter come to his hands 
 on account of said claims.
 
 ASSIGNMENTS FOR CREDITORS, ETC. 949 
 
 No. 1564. 
 
 Entry ordering Assignee to Pay for Goods Not Delivered until 
 after Assignment Made. 
 
 [Caption.] 
 
 This cause came on to be heard upon the application of 
 G. W. L., filed herein, and the answer of G. L. C, assignee 
 of said E. K. & Co., and the evidence; and in consideration 
 thereof the court finds that the said E. K. & Co. purchased, on 
 account of the contract set out in the application, lumber to 
 
 the amount of $ , and that said lumber was, on or about 
 
 the — day of , delivered to said E. K. & Co. at , 
 
 Ohio, and came into the possession of said G. L. C. as such 
 
 assignee, and was of the value of $ . And the court 
 
 further finds that said G. W. L. are entitled to have paid to 
 
 them by said assignee the sum of $ as a preferred claim 
 
 upon the proceeds of the sale of lumber which came into his 
 hands, and the court therefore orders and adjudges that 
 said G. L,. C, as such assignee, pay to said G. W. L. said sum 
 of $ as a preferred claim as aforesaid. 
 
 No. 1565. 
 
 Entry upon Motion of Assignee for Advice and Direction as 
 to Renting Property. 
 
 [Caption. ] 
 
 This day came G. h. C. , as assignee in trust for the benefit 
 
 of the creditors of E. K. , and filed his application herein, 
 
 asking for the advice and direction of the court as to the offer 
 of C. P. to rent the (planing mill) belonging to said estate, 
 located [state location\ for the period of one year at a rental 
 of $ , payable [state kow~\. 
 
 On consideration whereof the court finds that the facts 
 stated in the petition are true, and that it will be for the best 
 interests of the creditors of said assignor, and of said assignor 
 for said assignee to accept said offer and to rent said mill to 
 said C. P. for said time upon said terms of rental. 
 
 It is therefore considered, ordered, and adjudged that said 
 G. Iv. C, assignee as aforesaid, lease- said premises to said 
 
 C. I', for the period of one year, and for the sum of $ , 
 
 payable [stair how].
 
 950 JUDGMENT ENTRIES. 
 
 No. 1566. 
 Entry ordering Payment of Interest on Mortgage. 
 
 [Caption.] 
 
 This day came G. L. C, as assignee in trust for the benefit 
 of the creditors of E. K., and filed his application herein, 
 asking the permission of the court for payment of the interest 
 due on a certain mortgage upon the described property, given 
 
 on the — day of , 18 — , to , said interest amounting 
 
 to $ . On consideration whereof the court doth find that 
 
 the facts stated in the petition are true, and it is therefore 
 ordered and adjudged that said G. h. C, as such assignee, pay 
 
 the interest so as aforesaid due on the mortgage to said , 
 
 provided that said mortgagee shall agree to pay back the 
 amount of said interest to said assignee in the event that the 
 property covered by said mortgage shall sell for sufficient to 
 pay said mortgage claim and interest. 
 
 No. 1567. 
 
 Entry upon Motion of Assignee for Advice and Direction as 
 to Insurance upon Property Assigned. 
 
 [Caption.'] 
 
 This day came G. L. C, as assignee in trust for the benefit 
 of the creditors of E. K., and filed his application herein, 
 asking for the advice and direction of the court as to the 
 insurance on the property assigned to him by said E. K., 
 and for an order as to the payment of the earned premiums 
 on the several insurance policies covering the property so 
 assigned to him, and the same was submitted to the court on 
 the arguments of counsel and the evidence, and on consider- 
 ation whereof the court doth find that the facts stated in said 
 application are true, and that it will be for the best interest 
 of the creditors of said assignor, and of said assignor for said 
 assignee to accept a transfer of said insurance policies from 
 
 said companies as set out in schedule attached to the 
 
 application, and to pay for the premiums upon said policies. 
 
 It is therefore considered, ordered, and adjudged that said 
 G. L. C, assignee as aforesaid, pay the earned premiums upon 
 said several policies as set out in the schedule filed with said 
 
 application, to wit, the sum of $ , first out of any money 
 
 now in his hands or that may come into his hands as assets 
 belonging to said estate.
 
 ASSIGNMENTS FOR CREDITORS, ETC. 95 1 
 
 No. 1568. 
 
 Entry authorizing Assignee to Repair Property. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application 
 of G. L. C, assignee, for permission to repair the roof over 
 the planing mill and boiler house belonging to said estate, 
 
 situate on street, in the city of , Ohio, and the 
 
 court upon consideration of the same does authorize and direct 
 said assignee to repair the said roof over said planing mill 
 and boiler house, and to pay for the same out of the rents of 
 said property. 
 
 No. 1569. 
 
 Entry authorizing Assignee to Compromise and Settle Claim 
 against Debtor. 
 
 [Caption^ 
 
 This cause coming on to be heard upon the application of 
 said assignee for permission to compromise and settle the 
 
 claim of said assignor against the company of , 
 
 amounting to $ , for — percent of the face value of said 
 
 claim, to be paid [stale how\. 
 
 Upon consideration whereof the court orders and directs 
 said assignee to compromise and settle said claim for — per- 
 cent of the face value thereof, and to accept in payment of 
 
 said settlement the notes of the said , falling due in — 
 
 months from date, with security to be approved by this court. 
 
 No. 1570. 
 
 Entry authorizing Assignee to Pay for Services rendered 
 Assignee. 
 
 \Caption.~\ 
 
 This cause coming on to be heard upon the application of 
 assignee, for the direction of the court as to the payment of 
 the bill of K. K. for services rendered said assignee in the 
 matter of the said estate, and the court upon consideration 
 thereof does order and direct said assignee to pay said E. K. 
 at the rate of % per day for the time said E. K. was ac- 
 tually employed by said assignee as aforesaid. 
 
 til
 
 952 JUDGMENT ENTRIES. 
 
 No. 1571. 
 
 Entry fixing Amount of Fees of Appraisers. 
 
 [Caption.] 
 
 Upon the application of G. L. C, assignee in trust for the 
 benefit of the creditors of E. K., to the court for an order 
 fixing the amount of the fees to be paid the appraisers of said 
 estate, the court on consideration thereof does fix said fees at 
 
 the amount' of $ , to be paid to each of the said appraisers, 
 
 $ thereof being the amount of the fees of the appraise- 
 ment of the personal property, and $ being for the ap- 
 praisement of the real estate belonging to said trust. • 
 
 ASSIGNMENTS— SALE OF REAL ESTATE 
 BY ASSIGNEE. 
 
 No. 1572. 
 
 Entry ordering Sale of Real Estate. 
 
 [Caption.^ 
 
 This day this cause came on to be heard upon the petition 
 
 of , assignee of A. D., an insolvent debtor, for the sale 
 
 of the real estate therein described and assigned to him by 
 
 said (the answer and cross petition of R. S. , and the 
 
 answer of , wife of said assignor), and it appearing that 
 
 all parties in interest are properly before the court herein, 
 and the court being fully advised in the premises, finds that 
 there is due the said R. S. upon the claim set up in his said 
 
 answer and cross petition the sum of $ , and that the said 
 
 , assignor, and , his said wife, gave the mortgage 
 
 set up in said answer and cross petition, and that said mort- 
 gage is a valid and subsisting lien upon the premises described 
 in the petition of said assignee herein, and assigned to him 
 
 by the said assignor, , and that the said , wife of 
 
 said assignor, has a contingent right of dower in the said 
 premises, in any surplus over and above the payment of the 
 mortgage of the said R. S. (or, except in the premises covered 
 by the mortgage of the said R. S. ), and that she has by her
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 953 
 
 answer elected to receive the value of the same in money out 
 of the proceeds of sale, and the said premises having been 
 heretofore appraised by the appraisers appointed to make an 
 appraisement of the personal estate of said assignor, it is 
 ordered that the said assignee proceed to advertise and sell 
 the said premises (free from the contingent right of dower of 
 
 the said ), according to law, upon the premises (or, at 
 
 the door of the courthouse), upon the following terms, to 
 wit : [state terms], and that he make due report of his pro- 
 ceedings hereunder. 
 
 No. 1573. 
 
 Ordinary Entry when there are no Liens. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation of , assignee of , an insolvent debtor, for the 
 
 sale of the real estate assigned to him, and it appearing that 
 the said premises have been heretofore appraised, and that 
 said appraisement was regularly and duly made, it is ordered 
 that said assignee proceed to advertise and sell said premises 
 according to law, at public auction at the door of the court- 
 house (or, on the premises), at not less than two thirds of the 
 appraised value thereof, upon the following terms, to wit: 
 [state terms], and that due return of such sale be made herein. 
 
 R. S. Sec. 6350a. 
 
 No. 1574. 
 Entry confirming Sale and ordering Deed. 
 
 [ Caption, j 
 
 This cause coming on to be considered upon the return of 
 -, assignee, of the order of sale heretofore issued herein, 
 
 and the motion to confirm the sale therein reported to have 
 
 been made by him to , and the court having carefully 
 
 examined said return, and being satisfied that the said sale- 
 has been regularly and legally made, it is ordered that the 
 same be and is hereby approved and confirmed, and it is 
 
 ordered that the said , assignee, execute and deliver to 
 
 the said , purchaser, a good and sufficient deed for the 
 
 premises so sold to him, Upon the said purchaser complying 
 with all the terms of said sale.
 
 954 JUDGMENT ENTRIES. 
 
 It is further ordered that the said assignee, out of the pro- 
 ceeds of said sale, pay, first, the taxes (and street assessments), 
 and that he hold the balance subject to the further orders of 
 this court. 
 
 The entries in sales by executors and administrators may be followed,. 
 ante pages 891, 907. 
 
 No. 1575. 
 
 Entry ordering Sale at Private Sale. 
 
 [Caption.] 
 
 [The entry at ante No. 1458 may be followed.] 
 
 The entries in sales by an assignee adjusting liens, etc., are so similar 
 to those in sales by executors and administrators that the latter, found 
 from page 891 to 907, may be followed. 
 
 No. 1576. 
 Entry allowing Chattel Mortgage, and ordering Same Paid. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the appli- 
 cation of A. B., a preferred creditor of the said assignor, 
 praying the court to find and adjudge the mortgage held by 
 him on the goods and chattels assigned by the said A. E. S. 
 to the said C. C. to be a valid lien thereon, and said applica- 
 tion was on this day, after due notice to all the creditors, 
 heard upon the evidence. Whereupon the court finds that 
 there is due the said J. W. M. on his claim set forth in his said 
 
 application the sum of $ , with interest at — percent from 
 
 , 18 — , as specified in said note; and the court further 
 
 finds that in order to secure the payment of said promis- 
 sory note in said application set forth the said A. E. S. exe- 
 cuted and delivered to the said J. W. M. a mortgage upon 
 the goods and chattels in said mortgage designated, which 
 mortgage said J. W. M., after making due affidavit thereon, 
 
 filed with the recorder of county, Ohio, as stated in said 
 
 application ; that said mortgage is valid and was the first and 
 best lien on said goods and chattels in said mortgage described 
 when they were sold by the assignee, and that by reason of 
 said mortgage said J. W. M. has a valid and the first lien 
 upon any and all of said goods and chattels remaining unsold, 
 and also upon the fund arising from any and all of said 
 goods and chattels in said mortgage described sold by the 
 said assignee.
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 955 
 
 It is therefore ordered by the court that the said assignee, 
 out of the proceeds of the sale of said goods sold, and which 
 may hereafter be sold, after paying the costs and expenses of 
 administering this trust, pay to the said J. W. M., or to his 
 attorney, the amount of his claim if sufficient there be for 
 that purpose. 
 
 No. 1577. 
 
 Entry of Judgment and Order fixing Priority of Liens. 
 
 [Caption.] 
 
 This day this matter came on to be heard by the court 
 upon the application of the assignee herein for an order de- 
 termining the priority of liens on the proceeds of the sale of 
 the personal property of said assignor, the separate applica- 
 tions filed herein of A. H. J., the M. & M. Bank, and B. S., 
 and upon the evidence, and the same was submitted to the 
 court. On consideration whereof the court finds that the 
 said B. S. recovered a judgment, and execution was issued 
 thereon, and levied on the goods and chattels then the prop- 
 erty and in the possession of said assignor, and said goods and 
 chattels were seized by the said sheriff in execution as is al- 
 leged in said application of said B. S. ; that the said judg- 
 ment lien of B. S. is a good and valid lien as and from the 
 time of the levy of this said judgment as stated in said appli- 
 cation upon the proceeds of the property included and de- 
 scribed in schedule E, of the inventory and appraisement 
 herein, and there is due thereon to said B. S. the sum of 
 
 $ , with interest from , 18 — , and $ , costs of suit, 
 
 and also $ , increased cost ; that the said respective chattel 
 
 mortgages of s;ti<l bank and said J. individually are each also 
 good and valid liens upon the proceeds of the property in- 
 cluded and described in said schedule E, as and from the re- 
 spective times said mortgages were filed in the recorder's 
 office as stated in said application herein, and there is due 
 to the said bank on its said claim so secured by its said 
 
 chattel mortgage the sum of $ , with interest from ; 
 
 and there is due to the said J. on his said claim so secured by 
 
 his said chattel mortgage the sum of $— — , with interest 
 
 from ; that the said liens of B. S. , said bank, and said 
 
 J., as aforesaid, are upon the- same fund; that, in addition to 
 their said liens on said fund as aforesaid, the said bank and 
 said J. have each a lien upon the notes and book accounts 
 mentioned and described in said application, which said notes 
 are held by said bank and J. as collateral security for their
 
 956 JUDGMENT ENTRIES. 
 
 said claims, and that said B. S. has no lien whatever on said 
 notes and accounts or any part thereof ; that it is equitable 
 that said bank and said J. should be first required to exhaust 
 said notes and accounts so held by them as collateral security 
 as aforesaid, according to law, and apply the same or the pro- 
 ceeds thereof to the payment of their said claims and lien 
 before being permitted to share in the proceeds of said prop- 
 erty described and embraced in said schedule E, as aforesaid ; 
 that it is also equitable that whatever balance of the proceeds 
 of the property embraced in said schedule E, as aforesaid, may 
 remain after the payment therefrom of the liens thereon, if 
 any, that may hereafter be determined to be prior in right to 
 the said liens of said B. S. shall be applied as follows : that 
 is to say, first to the payment and satisfaction of the balance 
 of the claims and lien of said bank, if any, that may remain 
 after said bank has exhausted and applied to the payment 
 and satisfaction of its said claim and lien, according to law, 
 the said notes and accounts held by it as collateral security 
 as aforesaid, but if no such balance of the claim of said bank 
 shall remain, then ratably to the payment and satisfaction of 
 the claim of said B. S. and of whatever balance, if any, that 
 may remain unpaid upon all said claims and lien of said J. 
 after he shall have exhausted and applied to the payment and 
 satisfaction of his said claims and lien, according to law, the 
 said notes and accounts held by him as collateral security as 
 aforesaid, and in the ratio of said claim of B. S. to such bal- 
 ance, if any, of the said claims and lien of said J. ; but if there 
 remains no such balance upon the said claims of said J. , then 
 wholly to the payment and satisfaction of the said claim and 
 lien of the said B. S. 
 
 It is therefore ordered, adjudged, and directed by the court 
 that said bank and J. be and they are hereby required to 
 exhaust according to law the said notes and accounts so held 
 by them as collateral security as aforesaid, and apply the 
 same or the proceeds thereof to the payment of their said 
 
 claims and lien before they share in the proceeds of the 
 
 property embraced and described in said schedule E, as afore- 
 said ; and that whatever balance of the proceeds of the prop- 
 erty embraced in said schedule E, as aforesaid, shall remain 
 after the payment therefrom of the liens thereon, if any, that 
 may hereafter be determined to be prior in right to the said 
 liens of said B. S., said bank, and said J., shall be applied as 
 follows: that is to say, first, to the payment and satisfaction 
 of the balance of the claim and lien of said bank, if any, that 
 may remain after said bank shall have exhausted and applied 
 to the payment and satisfaction of its said claim and lien„
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 957 
 
 according to law, the said notes and accounts held by it as 
 collateral security as aforesaid ; but if no such balance of the 
 claims and lien of said bank shall so remain, then ratably to 
 the payment and satisfaction of the claim of said B. S. of 
 whatever balance, if any, may remain unpaid upon the said 
 claims and lien of said J. after he shall have exhausted and 
 applied to the payment and satisfaction of his said claim and 
 lien, according to law, the said notes and accounts held by 
 him as collateral security as aforesaid; and in the ratio of 
 said claim of B. S. to such balance, if any, of said claims and 
 lien of said J. ; but if there shall then remain no such balance 
 upon the claims and lien of said J., then wholly to the pay- 
 ment and satisfaction of the said claim and lien of B. S. 
 
 No. 1578. 
 Entry ordering Assignee to Pay Preferred Claim. 
 
 \Caption. ] 
 
 This day came and filed his application for an order 
 
 of court authorizing G. L. C, as assignee of E. K., insolvent 
 debtors, to pay out of the proceeds now in the hands of said 
 assignee and realized from the sale of the personal property, 
 including the machinery, a claim for labor and material fur- 
 nished by said to the said E. K., amounting to the sum 
 
 of $ , and representing that he has taken a lien upon the 
 
 property of the said E. K. 
 
 This cause coming on for hearing, the said assignee being 
 represented by his counsel, and the court having heard the 
 arguments of counsel and the evidence, finds that the said 
 
 did, on the — day of , 18 — , file with the recorder 
 
 of county a sworn statement of their said account for 
 
 labor and material furnished by them to the said E. K., which 
 said attested account was by said recorder recorded on the — 
 
 day of , [8 — , Records of Liens, Vol. , at pages , 
 
 which said ( laim became on said — day of , 18 — , and 
 
 is now a valid and subsisting lien upon the property and 
 machinery of said K. K. assigned to the said G. L. C, and 
 is entitled to be paid out of the funds now in the hands of 
 said assignee derived from the sale of the machinery. 
 
 It is therefore considered, ordered, and adjudged by the 
 court that said assignee pay out of said fund the said claim 
 
 and lien of the said , amounting to the sum of $ , 
 
 with interest at — percent from , 18 — .
 
 958 JUDGMENT ENTRIES. 
 
 No. 1579. 
 
 Entry of Allowance of Preferred Claims under Sec. 6355. 
 
 [Caption. ] , 
 
 This day this cause came on to be heard upon the appli- / 
 cation of A. H. J., assignee, for an order determining the 1 
 validity and priority of the work and labor claims set forth 
 in said application^ and the court finds from the evidence 
 
 that the claims of J. N., etc., amounting to $ , are the 
 
 valid claims for labor as operatives in the service of the said 
 assignors, performed within twelve months preceding the 
 assignment. 
 
 And the court find that all of said claims in the amounts 
 herein found due are the next best lien after the taxes and 
 the costs of administering the assets of said assignors, in- 
 cluding the assignee's fee and a reasonable attorney's fee to 
 be hereafter determined, and should be so paid. The court 
 further orders said assignee, after paying the taxes and the 
 costs of the court, including assignee's and attorney's fees, 
 to pay out of said funds to said parties the amounts of their 
 claims herein found due. 
 
 No. 1580. 
 Entry of Filing of Application to sell Desperate Claims. 
 
 [Caption. ] 
 
 This day came , assignee of , an insolvent debtor, 
 
 and filed herein his application for authority to sell desperate 
 claims therein set forth. It is ordered that the said assignee 
 cause notice thereof to be given by [state how notice shall be 
 given], and that said application be set for hearing on the — 
 day of . 
 
 No. 1581. 
 
 Order to Sell Desperate Claims. 
 
 [ Caption. ] 
 
 This cause coming on for hearing upon the application 
 
 of , assignee of , an insolvent debtor, for authority 
 
 to sell certain claims belonging to said assignor which are 
 desperate and difficult of collection ; and due notice of the 
 filing and time set for the hearing of said application, and
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 959 
 
 the court being fully advised, grants said application and 
 orders that the said assignee proceed to (compromise and ad- 
 just, etc.), advertise and sell the claims set forth in his said 
 application. 
 R. S. Sec. 6350. 
 
 No. 1582. 
 Entry authorizing Completion of Contract. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 
 of , assignee of , an insolvent debtor, for authority 
 
 to complete the contract therein set forth, and the court being 
 fully advised finds that the parties hereto have been duly and 
 
 legally notified of this proceeding, that the said , on the 
 
 — day of , 18 — , entered into a contract with one 
 
 for [slate nature of contract, as ] for the sale of the prem- 
 ises described in his said petition. And it appearing that 
 
 the said is ready and willing to carry out and complete 
 
 his part of the contract, and that it will be for the best interest 
 of the creditors of said assignor that said contract be carried 
 
 out, it is ordered that said , as assignee, be and he is 
 
 hereby authorized to complete and carry out said contract 
 according to its terms, and that upon the said comply- 
 ing with his part of said agreement by paying the purchase 
 
 price for said real estate, the said , as such assignee, 
 
 execute and deliver a deed to said for the said premises 
 
 according to law. 
 
 No. 1583. 
 
 Requisition to Reject Claim — Entry. 
 
 [Caption. ] 
 
 This day came (assignor) one of the creditors of the 
 
 assignor herein, and filed herein a written requisition on , 
 
 as assignee, to disallow and reject a certain claim presented 
 
 to him by for dollars; and the said having 
 
 also entered into a bond in the sum of dollars, condi- 
 tioned to pay the costs and expenses connected with the 
 contesting of the same, which bond is approved, it is ordered 
 
 that the said , assignee, disallow and reject thesaid claim 
 
 of so presented to him for allowance. 
 
 R. S. Sec. 6353.
 
 960 JUDGMENT ENTRIES. 
 
 No. 1584. 
 Entry of Filing of Account by Assignee. 
 
 \CapHon.~\ 
 
 This day came , assignee of , an insolvent debtor, 
 
 and filed herein his final (first partial) account as such as- 
 signee, which the court orders set for hearing on the — day 
 of , 18 — , an'd that due notice thereof be given accord- 
 ing to law. 
 
 No. 1585. 
 Entry allowing Account— Dividend Ordered. 
 
 \CaptionJ\ 
 
 This day this cause came on to be heard upon the final 
 
 account of , assignee of , an insolvent debtor, and 
 
 it appearing that due notice according to law has been given 
 of the filing and of the time set for the hearing thereof, and 
 no exceptions having been filed thereto, the court having 
 carefully examined the same, and finding the same in all 
 respects regular and correct, it is ordered that said account 
 be and the same is hereby approved and allowed. 
 
 And the court finds that there remains a balance in the 
 hands of said assignee after paying all the costs and expenses 
 
 of administration in the sum of dollars, and that there 
 
 have been claims presented to and allowed by said assignee, 
 
 amounting to the sum of dollars, and that the amount 
 
 in his hands aforesaid will pay upon said claims a dividend 
 of — percent. 
 
 It is therefore ordered that the said assignee pay upon the 
 claims so presented to and allowed by him a dividend of — 
 percent, and that he give notice according to law of the time 
 and place of payment of said dividend, and that he report 
 payment thereof to this court without delay. 
 
 No. 1586. 
 Entry of Filing Report of Dividend and Discharge of Assignee. 
 
 [Caption."] 
 
 This day came , assignee of , an insolvent debtor, 
 
 and filed his report of the dividend paid by him as such as-
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 961 
 
 signee according to the former order of the court. It is or- 
 dered that said report be recorded, and it appearing that the 
 said assignee has paid out all the funds coming into his hands 
 as such assignee, and that he has fully performed all of the 
 duties required by law of him, it is ordered that he be and 
 is hereby discharged as such assignee. 
 
 No. 1587. 
 Entry authorizing Assignee to Accept Bid. 
 
 [Caption.] 
 
 This cause coming on to be heard upon the application 
 of the assignee herein as to bids received by him in response 
 to an advertisement therefor, and in response to his personal 
 efforts to obtain bids for the purchase of the balance of the 
 stock on hand, and for the safe and all fixtures in said as- 
 signment, and it appearing from said report that the bid of 
 J. YV. for the sum of $ is the highest and best bid there- 
 for, and that it would be for the best interest of the creditors 
 in said matter to accept said bid of said J. W., it is hereby 
 ordered that C. C, assignee, accept said bid and sell said 
 
 property to said J. W. at private sale for the sum of $ , 
 
 and make due report thereof. 
 
 No. 1588. 
 
 Entry ordering New Appraisement on Account of Mistake in 
 Description by which First Appraised. 
 
 [Caption. \ 
 
 It appearing to the court that in the inventory and ap- 
 praisement heretofore filed in this court in the matter of the 
 assignment <>f E. K., no appraisement was made of the real 
 
 estate described respectively in tracts in the petition to 
 
 sell real estate heretofore filed in this case, and it appearing 
 further that in said inventory and appraisement the real 
 estate described in the fifth, etc., tracts in said petition was 
 attempted to be appraised under the following description: 
 . ription briefly, showing particular mistake^ and that 
 said description is untrue, vague, and uncertain, and the at- 
 tempted appraisement thereunder does not constitute a valid 
 and legal appraisement.
 
 .962 JUDGMENT ENTRIES. 
 
 It is therefore ordered that the assignee above named 
 
 cause said tract, as follows : [description], and said fifth 
 
 ;ract, as follows : {description], to be appraised according to 
 
 law by , , and , and return said appraisement 
 
 to this court forthwith. 
 
 No. 1589. 
 
 Entry ordering Property upon which Executions are Levied on 
 Prior to Assignment to be Turned over by Sheriff to As- 
 signee (by consent) — Transferring Liens to Proceeds. 
 
 [ Caption. ] 
 
 It now appearing to the court that, prior to the filing of 
 the deed of assignment herein, the sheriff of said county seized 
 in execution upon judgment against said assignors rendered by 
 the court of common pleas of said county in favor of B. B. for 
 the sum of $ , the entire stock of goods, wares, merchan- 
 dise, fixtures, and other property of the said E. R. G. & Co., 
 comprising floors at No. — , street, said stock con- 
 sisting of [state], and said sheriff has ever since and now 
 holds possession thereof and every part thereof under said 
 execution and the levy thereof on said property ; and it now 
 appearing that prior to said assignment certain instruments 
 purporting to be chattel mortgages upon the property now in 
 the sheriff's possession, together with other property, were 
 made and delivered by said assignor to the M. & M. Bank of 
 
 , and to A. H. individually, and the same were filed in 
 
 the recorder's office of said county, as appears of record, and 
 now remain on file. And it further appearing to the court 
 that it will be for the benefit of all parties that said assignee 
 should come into possession of the said property now held by 
 said sheriff as aforesaid, and that the said property should be 
 delivered by said sheriff to the said assignee, to be sold by 
 him instead of by the said sheriff, and that the proceeds 
 thereof should stand in place of the property itself, and that 
 the nature, extent, validity, and priority of the rights and 
 liens of all the parties should be and remain in said proceeds 
 as they now exist in said property without any waiver of or 
 prejudice to the rights of any of the parties, either with 
 respect to each other or to said assignor. 
 
 Now, therefore, it is hereby ordered by the court that 
 upon the delivery by said sheriff of said goods and property 
 as aforesaid to the said assignee, that the said assignee shall 
 take possession of the same, and convert the same into money
 
 ASSIGNMENTS — SALE OF REAL ESTATE. 963 
 
 under the assignment laws of this state, and hold the proceeds 
 thereof subject to the further order of the court ; and that the 
 rights of all parties in and to such proceeds shall stand and 
 remain therein as they existed in such property or any part 
 thereof at the time of such delivery, the nature, extent, valid- 
 ity, and priority of the rights and liens of all the parties in 
 said proceeds to be hereafter determined by the court without 
 any waiver of or prejudice to such rights or liens of the 
 parties, either with respect to each other or with respect to 
 said assignor. 
 
 No. 1590. 
 Entry continuing Consideration of Bids. 
 
 [ Caption. ] 
 
 This cause coming on to be heard upon the report of the 
 assignee as to bids received by him in response to his personal 
 efforts to obtain bids for the sale, at private sale, of all or any 
 
 part of the property of said assignor set out in schedule 
 
 of the inventory and appraisement of the property of said 
 assignor hereinbefore filed in this court, and it appearing 
 from said report and said bids, which were opened and read 
 in the presence of the court, that G. B., J. N., and S. R. have 
 each bid two thirds or more of the appraised value for the 
 property included in such schedule, it is ordered that the 
 consideration of said bids be continued till , 18 — . 
 
 No. 1591. 
 
 Entry authorizing Assignee to accept Bid and sell Property at 
 
 Private Sale. 
 
 \Caplion.\ 
 
 Tins cause coming on to be heard upon the report of the 
 assignee herein as to bids received by him, in accordance 
 
 with the order of this court made on the — day of , 
 
 18 — , for the sale, at private sale, of all or any part of the 
 
 persona] property of said assignor included in schedule 
 
 of the inventory and appraisement of said assignor heretofore 
 hied herein, for not less than two thirds of the appraised value 
 thereof, and it appearing from said report and bids filed 
 therewith that the bid of E. K. for the lumber contained in 
 said schedule for — percent of the appraised value thereof, 
 upon the following terms, to wit, $ to be in cash and
 
 964 JUDGMENT ENTRIES. 
 
 the balance to be evidenced by three notes falling due respect- 
 ively in six, nine, and twelve months from date, bearing 
 interest at — percent per annum, and with sureties to be 
 approved by this court, is the highest and best bid therefor, 
 and that it will be for the best interest of the creditors in said 
 matter to accept said bid of E. K. , it is hereby ordered that 
 said G. L. C, assignee, accept said bid and sell said property 
 to said E. K. at private sale, at said price, and upon said 
 terms of payment. 
 
 No. 1592. 
 Entry Confirmation of Sale of Personal Property. 
 
 [Caption.] 
 
 This cause coming on for hearing upon the report of G. 
 L. C, assignee, of his proceedings and sale of personal prop- 
 erty to E. K. , said report having been filed in this court on 
 
 the — day of , 18 — (a number of creditors being present 
 
 and no one objecting to the same), and the court having 
 examined said report finds said proceedings and sale in all 
 respects regular and in accordance with law, and therefore 
 approves and confirms the same, and approves the sureties 
 offered, and order that said G. L. C, as such assignee, deliver 
 said property to said E. K. upon their compliance with the 
 terms of the said sale.
 
 MISCELLANEOUS MATTERS 
 PROBATE COURT. 
 
 965
 
 DUTIES AND RIGHTS OF SURVIVING PARTNERS. 967 
 
 DUTIES AND RIGHTS OF SURVIVING 
 PARTNERS. 
 
 (R. S. Sees. 3167 — 3170.) 
 
 No. 1593. 
 
 Entry appointing Appraisers for Partnership Property on 
 Application of Partner. 
 
 \Caption.~\ 
 
 M. R., surviving partner of the late firm of M. R. & Co., 
 having made application for the appointment of appraisers of 
 the assets of said partnership, and it appearing that due notice 
 thereof has been given to A. B., administrator of the estate 
 of C. D., deceased, it is ordered that H. J., L. K., and N. O., 
 three disinterested persons, be and they are hereby appointed 
 appraisers and required to make out under oath a full and 
 complete inventory and appraisement of the entire assets of 
 said partnership (including real estate), together with a sched- 
 ule of the debts and liabilities thereof, and that they forth- 
 with file the same in this court. 
 
 R. S. Sec. 3167. 
 
 No. 1594. 
 
 Entry of Appointment of Appraisers on Application of 
 
 Administrator. 
 \Caption. ] 
 
 It appearing to the court that M. R., the surviving part- 
 ner of the late firm of M. R. & Co., has neglected to make 
 
 application to have an inventory and appraisement of the 
 assets of said partnership, upon motion of A. B., administrator 
 of the estate of C. D., deceased, II. J., L. K., and X. O. are 
 appointed appraisers, and are required to make out on oath a 
 full and complete inventory and appraisement of the entire 
 
 ts of said partnership (including real estate), together 
 with a schedule of the debts and liabilities thereof, and file 
 the same forthwith herein. 
 
 R. S. Sec. 3168. 
 62
 
 -968 JUDGMENT ENTRIES. 
 
 No. 1595. 
 
 Entry of Filing of Inventory. 
 [Caption."] 
 
 This day came M. R., surviving partner of the firm of 
 M. R. & Co. {or, A. B., administrator of the estate of C. D., 
 deceased), and filed an inventory and appraisement of all the 
 assets of the said partnership made in pursuance of a former 
 order of this court, together with a statement of the debts and 
 liabilities of said partnership, which the court finds upon 
 careful examination to be correct, and approves the same. 
 
 No. 1596. 
 Entry when Partner Elects to take Assets. 
 
 [Caption."] 
 
 This day came M. R., surviving partner of the late part- 
 nership of M. R. & Co., and made known to the court his 
 election to take the interest of the deceased partner, C. D., 
 deceased, at the appraised value thereof. And thereupon 
 also came A. B., administrator of the deceased partner of said 
 firm, C. D. , deceased, and gave his consent thereto. 
 
 And the said M. R. having executed his promissory note 
 
 for the sum of $ , with interest payable in , which 
 
 is the amount of the appraised value of said assets after de- 
 ducting therefrom the debts and liabilities payable to the 
 said A. B., administrator of the estate of C. D., deceased, 
 with R. O. and J. E. as sureties, which the said M. R. offers 
 to said administrator for the payment of the interest of the 
 deceased partner, C. D., in the partnership, and also tenders 
 
 a bond in the sum of $ , with R. O. and J. E. as sureties, 
 
 payable to said administrator, conditioned for the payment of 
 the debts and liabilities of said firm and the performance of 
 all actual obligations of said firm. The court being fully 
 advised in the premises does approve said note and said bond, ' 
 and also approves the taking of said partnership assets by said 
 surviving partner, and does therefore authorize the said ad- 
 ministrator to transfer to said M. R. the assets and property 
 of said partnership. 
 
 R. S. Sec. 3169.
 
 IN RELATION TO JUSTICES OF THE PEACE. 969 
 
 PROCEEDINGS IN RELATION TO JUSTICES 
 OF THE PEACE. 
 
 No. 1597. 
 Entry ordering additional Justice to be Elected. 
 
 [Caption.] 
 
 Application having been made to this court by E. J. for 
 
 an additional justice of the peace in township, said 
 
 county, and it appearing that public notice has been given 
 in said township of the making of this application, and the 
 court being satisfied that there is not sufficient number of 
 
 justices in said township, and that it is expedient to add- , 
 
 additional justice therein, it is ordered that , additional 
 
 justice, be elected and qualified in said township. 
 
 r. s. Sec. 568. 
 
 No. 1598. 
 Entry upon Intention to Contest being made known. 
 
 \Caption.^\ 
 
 This day came , an elector (<?r, candidate) of the 
 
 township of , in said county, and made known to this 
 
 court his intention to contest the election of J. H., who was 
 declared elected justice of the peace in said township. 
 It is therefore ordered that a citation issue to said J. H., 
 
 notifying him that said contests his election, and of the 
 
 points relied upon by him, requiring him to appear herein 
 
 on t ne — day of , 18 — , and that notice be given to the 
 
 clerk of common pleas to withhold the return of such con- 
 tested election until the same is decided. 
 
 R. s. Sec. 572.
 
 970 JUDGMENT ENTRIES. 
 
 No. 1599. 
 Entry appointing Freeholders to try Contest. 
 
 \Ca.ption.~\ 
 
 [ This may be made in connection with preceding entry. ] 
 It is ordered that M. N., E. L., and J. W., three respect- 
 able freeholders of the county, not residing in township, 
 
 be and they are hereby appointed to try said contest, and that 
 a summons be issued for them according to law. 
 
 R. S. Sec. 573- 
 
 No. 1600. 
 
 Entry of Decision. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the contest 
 of the election of as justice of the peace in town- 
 ship, and the said M. N., E. L.,*and J. W., three freeholders 
 of the county, summoned herein to try said contest, were duly 
 sworn according to law, and said cause was heard upon the 
 testimony, and was submitted to said jury. And thereupon 
 said freeholders after due deliberation signed their decision 
 and the same was duly attested by the court, which is as fol- 
 lows: \copy\ 
 
 It is therefore ordered that a copy of said decision be 
 transmitted to the trustees of said township (or, to the clerk 
 of the court of common pleas). 
 
 R. S. Sec 575. 
 
 PROCEEDINGS AGAINST MUNICIPAL 
 OFFICERS. 
 
 No. 1601. 
 
 This day A. B., an elector of , filed a complaint under 
 
 oath, signed and approved by four other electors, charging 
 that C. E., a member of the council [R. S. Sec. 1732] (with) 
 [specify charge] has been guilty of (mal) misfeasance in office. 
 It is ordered that a citation issue, requiring said C. E. to 
 appear before this court on the — day of , 18 — . 
 
 R. S. Sec. 1732.
 
 PROCEEDINGS AGAINST MUNICIPAL OFFICERS. 9JI 
 
 No. 1602. 
 Entry ordering Jury to be Impaneled. 
 
 [ Caption. ] 
 
 This day this cause coming on to be considered upon 
 the complaint heretofore filed herein against C. E. , who de- 
 manded a jury, it is therefore ordered that a venire be 
 issued for a jury according to law, returnable , 18 — . 
 
 R. S. Sec. 1733. 
 
 No. 1603. 
 Jury Impaneled — Verdict of Acquittal. 
 
 [Caption.] 
 
 This day came the parties, this cause came on to be heard 
 upon the complaint filed herein against C. E., and thereupon 
 came the following named jurors: [names], who were duly 
 impaneled and sworn according to law. And the jury having 
 heard the evidence, arguments of counsel, and being instructed 
 by the court, retired for consideration of their verdict ; and 
 said jury after due deliberation returned and delivered their 
 verdict as follows: [copy verdict].* 
 
 It is therefore ordered by the court that said defendant be 
 discharged. 
 
 R. S. Sec. 1736. 
 
 No. 1604. 
 Entry removing Officer found Guilty. 
 
 [Caption.] 
 
 I rroceed from * in ante No. 1603.] 
 
 It is therefore ordered that said C. E. be and he is hereby 
 removed from the office of council [or whatever it may be], 
 of the [name of corporation]. 
 
 It is ordered that the said defendant pay the costs herein, 
 taxed at % . 
 
 R. S. Sec. 1736.
 
 972 JUDGMENT ENTRIES. 
 
 APPROPRIATION OF PROPERTY BY 
 MUNICIPAL CORPORATIONS. 
 
 (jR. S. Sees. 2232 — 2261.) 
 
 No. 1605. 
 
 Application to Assess Compensation filed by City Solicitor- 
 Ordering Notice and Time for Hearing. 
 
 [Cafition.] 
 
 This day came the plaintiff by P. J., city solicitor, and 
 filed in this court its application to assess compensation for 
 certain property therein described and owned by the persons 
 therein named, and filed therewith a precipe for summons 
 and notice for the defendant. 
 
 Whereupon it is ordered that summons and notice issue 
 
 to the sheriff of county, Ohio, for the defendants, which 
 
 is done. And the court fixes the — day of , 18 — , at 
 
 — o'clock — M., as the day for hearing the preliminary 
 questions herein, to which this proceeding is continued. 
 
 No. 1606. 
 
 Filing of Return of Notice. 
 
 [Caption.] 
 
 This day came J. R., sheriff of this county, and filed herein 
 his return of the notice heretofore issued to him for the de- 
 fendants in this case, with service endorsed thereon, and the 
 same was by the court ordered recorded. 
 
 No. 1607. 
 
 Same continued — Entry ordering Impaneling of Jury. 
 
 [Caption.] 
 
 This cause came on to be heard upon the application of 
 the city of C. to impanel a jury to assess the compensation to
 
 APPROPRIATION OF PROPERTY. 973 
 
 be paid to the owners of the property sought to be appropri- 
 ated herein and described in the application, and it appearing 
 to the court that notice of the time and place of such applica- 
 tion has been given to all the owners of such property in the 
 ordinary manner of serving legal process five days previous 
 to said application, and that said notice is reasonably specific 
 and certain; and the court doth order and adjudge that a 
 
 jury be impaneled on the — day of , 18 — , at — o'clock 
 
 — M., to make inquiry into and assess the compensation to 
 be paid for said property. 
 
 R. S. Sec. 2238. If the finding should be against the corporation on 
 any jurisdictional question, a dismissal should follow. 
 
 No. 1608. 
 Same continued — Impaneling Jury — Order to View Premises. 
 
 [ Caption. ] 
 
 This day came the plaintiff by his attorney, and C. W., 
 defendant, the other defendants failing to appear, and also 
 came the following named persons, and were duly impaneled 
 and sworn as jurors herein according to law: \jiaming thcm\ 
 and thereupon, on motion of the plaintiff's attorney, an order 
 was issued to the sheriff to conduct the jury to view the prem- 
 ises sought to be appropriated forthwith in the presence of 
 C. W., appointed on motion and agreement of counsel with 
 plaintiff and defendant W. to show the jury said premises, 
 returnable according to law. 
 
 R. S. Sec. 2242. 
 
 No. 1609. 
 Entry of Hearing — Judgment on Verdict. 
 
 \( 'option. ) 
 
 This cause came on to be heard upon the application of 
 
 the- city of for the assessment of compensation to be 
 
 paid the owners of the property described in the said appli- 
 cation, and the court being satisfied that all the parties hereto 
 have been duly served with process, thereupon came the fol- 
 lowing jury, who were- duly impaneled and sworn, to wit: 
 [names <>! jurors\. And the said jury having viewed the 
 lises, heard the testimony, arguments of counsel, and 
 charge of the court, retired for deliberation. And after due
 
 974 JUDGMENT ENTRIES. 
 
 deliberation said jury returned the following verdict : [copy 
 verdict]. [If a motion for new trial should be made, it should 
 be noted and disposed of before the following is made.] 
 
 And the court having examined the proceedings, and 
 being satisfied that the same are in all respects regular, does 
 hereby approve the said verdict. 
 
 It is further ordered that the said corporation pay within 
 
 days the amount of compensation so assessed for the use 
 
 of the following named persons : [names]. 
 
 And it is further ordered that upon payment by said cor- 
 poration of the said several amounts so allotted by the jury 
 to the said owners, or into court, that the said corporation 
 shall be entitled to all the interests and estate of said persons 
 in and to said real estate, and that an order issue to the sheriff 
 of said county to put said corporation into possession thereof. 
 
 It is further ordered that the said corporation pay the 
 costs herein, taxed at $ . 
 
 No. 1610. 
 
 Same continued — Entry upon Verdict decreeing Appropriation 
 
 of Property. 
 
 [ Caption. ] 
 
 This day this cause came on for trial, and the same having 
 been submitted to the jury upon the pleadings and testimony, 
 and the jury having assessed the amount of compensation and 
 damages in this case to be paid to the owners of the premises 
 described in the application by reason of the appropriation of 
 the same to the order of the plaintiff as follows, to wit : To 
 C. W., owner of the first parcel, for land taken, the sum of 
 
 $ ; damages to residue, $ ; and for the value of 
 
 building standing upon said first parcel, the sum of $ ; 
 
 to C. B., owner of the second parcel, for land taken, the sum 
 of $ [and so on). 
 
 It is now, therefore, adjudged and decreed that said verdict 
 be confirmed, and that said plaintiff upon the payment of said 
 amount of verdict into this court for the several defendants, 
 as herein found due them, and all of costs due from it, shall 
 be entitled to take possession of and hold the premises afore- 
 said with all rights and interests thereunto belonging and 
 appertaining, for the uses and purposes for which the appro- 
 priation was made, and all necessary process to put plaintiff 
 into possession of the same is thereupon awarded.
 
 APPROPRIATION OF PROPERTY. 975 
 
 No. 1611. 
 
 Same continued — Judgment in Court of Common Pleas upon 
 Appeal fixing Compensation. 
 \Caption.~\ 
 
 This cause came on for trial, and a jury having been 
 waived, was submitted to the court upon the pleadings and 
 testimony, and upon consideration thereof the court assessed 
 the amount of compensation and damages to be paid to M. D., 
 
 the owner of parcel of land described in the application, 
 
 by reason of the appropriation of the same to the use of the 
 plaintiff at the sum of $ . 
 
 It is therefore ordered, adjudged, and decreed that said 
 M. D. recover from the plaintiff as compensation for the land 
 taken and damages to the residue by reason of the appropria- 
 
 ton as aforesaid the sum of $ , and upon the payment by 
 
 the plaintiff of the amount of said verdict into court, and all 
 the costs due from it, it shall be entitled to take possession of 
 and hold the premises aforesaid, with all right, title, and 
 interest thereunto belonging and appertaining, for the uses 
 and purposes for which the appropriation was made, and all 
 necessary process to put the plaintiff into possession of the 
 same is ordered. 
 
 APPROPRIATION OF PROPERTY BY 
 PRIVATE CORPORATION. 
 
 (R. S. Sees. 6414 — 6453.) 
 
 No. 1612. 
 Petition filed by Corporation and Set for Hearing. 
 
 [ ( 'aption.~\ 
 
 This day came the plaintiff and files herein its petition, 
 dulv verified, to appropriate the property therein described, 
 and this cause- is set for hearing on the — day of , 18 — . 
 
 R. s. Sees. 6416, 6418.
 
 976 JUDGMENT ENTRIES. 
 
 No. 1613. 
 
 Entry upon Filing of Petition to Compel Corporation to make 
 
 Appropriation. 
 
 [Caption.] 
 
 This day came L. P. and presented his petition against 
 the V. R. Co., a corporation organized under the laws of 
 Ohio, defendant, praying for such process and proceedings as 
 are authorized by law to compel the said defendant to appro- 
 priate certain property and property rights alleged to be owned 
 by said plaintiff, and said to be used and occupied by said 
 defendant. And the same being duly verified by the oath of 
 said plaintiff is placed on file. And it is ordered that the 
 preliminary hearing of said petition be had in this court on 
 
 the — day of , instant, at — o'clock forenoon, and our 
 
 writ of summons is thereupon accordingly issued for said 
 defendant, directed to the sheriff of said county, returnable 
 according to law. 
 
 No. 1614. 
 Entry settling the Preliminary Questions. 
 
 [ Caption. ] 
 
 This day this cause came on to be heard upon the plead- 
 ings, evidence, and arguments of counsel, and was submitted 
 to the court. Upon careful consideration whereof the court 
 finds that service of process has been duly and legally made 
 upon the defendants ; that the plaintiff herein is a corporation 
 duly organized under the laws of Ohio, and that said plaintiff 
 corporation has a legal right to make the appropriation which 
 they ask in their petition, which the court finds to be neces- 
 sary, and that the said plaintiff and the said defendants are 
 unable to agree upon the compensation to be paid by plain- 
 tiffs to defendants for the land sought to be taken. 
 
 It is therefore ordered that a jury be impaneled according 
 to law to assess the compensation to be paid by plaintiff to 
 defendants for the land sought to be taken, and that said jury 
 
 be required to appear in this court on the — day of , 
 
 !8 — , at — o'clock — M. 
 
 R. S. Sees. 6420, 6421.
 
 APPROPRIATION OF PROPERTY. 977 
 
 No. 1615. 
 
 Filing of Petition by Owner against Corporation after having 
 served Notice to institute Proceedings. 
 
 [Caption.] 
 
 And now this day came the plaintiff and filed his petition 
 against said railroad company, praying for proceeding in 
 appropriation and condemnation of land, and for judgment 
 
 against said railroad company in the sum of $ for land 
 
 taken and damaged. It is therefore ordered that this matter 
 
 be for hearing on the — day of , 18 — , at — o'clock — 
 
 M., and that summons issue according to law. 
 
 Whittaker's Probate Code, Sec. 6448. 
 
 No. 1616. 
 
 Entry of Hearing when Company failed to institute Proceed- 
 ings — Ordering Impaneling of Jury. 
 
 [Caption.] 
 
 And now this day came the plaintiff by L. C. J. and E. 
 B. T., his attorneys, and the defendant by J. M. S., Esq., its 
 attorney, and this case coming on for hearing, and being 
 submitted to the court upon the evidence produced, the court 
 find that the defendant has been properly served with process, 
 and is properly before the court; that due and legal notice 
 was given by the plaintiff to the said defendant company to 
 proceed to appropriate said lands, and that said company has 
 failed to institute such proceedings; and the court do further 
 find that the defendant, said P. & W. R. Co., is a corporation 
 as averred in the petition herein ; that it has a legal right to 
 make the appropriation prayed for in the petition, and that 
 the same is necessary, and that plaintiff is unable to agree 
 with the defendant as to the compensation to be paid for the 
 property and rights to be appropriated herein. It is therefore 
 ordered that to assess compensation for said property herein 
 sought to be appropriated a jury be impaneled according to 
 
 law, and that said jury come on the — day of , A. D. 
 
 18 — , at — o'clock — M., which time is hereby fixed for the 
 impaneling of the same.
 
 978 JUDGMENT ENTRIES. 
 
 No. 1617. 
 Impaneling Jury — Adding new Party — Jury ordered to View. 
 
 \Cap tion^\ 
 
 And now this day came the parties and their said attor- 
 neys, and this cause came on to be heard, and it being repre- 
 sented that the P. P. & F. R. Co. is a necessary party defendant 
 in this proceeding, on motion made by its attorney said P. P. 
 & F. R. Co. is granted leave to become party defendant in 
 this action and file answer instanter. And now came the fol- 
 lowing named jurors heretofore summoned, viz. : \11ame the 
 jurors\ and the panel being complete, and each juror being 
 interrogated as to whether he was in any way interested, 
 either as owner, or agent, or otherwise, in the property sought 
 to be condemned and appropriated, and each answering in 
 the negative, and neither party excepting thereto, the said 
 jurors were duly sworn, and on motion of both parties a writ 
 was issued to the sheriff for a view by the jurors, in the pres- 
 ence of L,. C. J. for the plaintiff, and J. M. S. for the defend- 
 ant, of the premises sought to be appropriated, returnable 
 
 according to law , 18 — , at — o'clock — M., to which 
 
 time this cause is now adjourned. 
 
 No. 1618. 
 
 Entry of Daily Hearing. 
 
 ( Caption. ] 
 
 And now this day came the parties, and with their attor- 
 neys, and also the jury heretofore impaneled and sworn in 
 this case, and the trial of this case proceeds, and the same 
 not having been completed at the hour of adjournment, the 
 further trial of said case is adjourned to . 
 
 No. 1619. 
 
 Entry when Plaintiff rests — Motion made to Dismiss for Want 
 of Jurisdiction — Overruled — Trial Proceeds. 
 
 \Caption.~\ 
 
 And now this day came the parties, and with their attor- 
 neys, and also the jury heretofore impaneled and sworn in 
 the case of said plaintiff against said P. & W. R. Co., and 
 the trial of this case proceeds, and the plaintiff having rested
 
 APPROPRIATION OF PROPERTY. 979 
 
 his case, thereupon the defendant by its attorneys moved the 
 court to dismiss this cause upon the ground that this court 
 has no jurisdiction of said cause, which motion being heard 
 and understood is by the court overruled, to which ruling the 
 defendant excepted, and the same not having been completed 
 at the hour of adjournment, the further trial of said case is 
 adjourned to , at — o'clock — M. 
 
 No. 1620. 
 Return of Verdict— Notice of Motion for New Trial. 
 
 [Caption.] 
 
 And now this day again came the parties hereto, and their 
 attorneys, also the jury heretofore impaneled and sworn, and 
 the trial proceeds, and upon his own motion the plaintiff has 
 leave to withdraw the amendment to his petition heretofore 
 filed herein, which is done, and thereupon after hearing the 
 testimony of witnesses, arguments of counsel, and charge 
 of the court, said charge having been reduced to writing at 
 the request of and for the defendant, the jury after due de- 
 liberation return their verdict in writing to the court as fol- 
 lows, to wit : 
 
 [Title.'] 
 
 We, the jurors in this case, having inspected the premises 
 of the said J. P., and having heard the testimony offered by 
 the parties, and the arguments of counsel, do award and 
 
 determine that the said J. B. P. be paid the sum of $ as 
 
 compensation for the land belonging to him which is appro- 
 priated to the use of the P. & W. R. Co., without deduction 
 for benefit to any property of the said J. B. P., derived or to 
 be derived by the location of said road. And we do also find 
 and determine that the premises of the said J. B. P., from 
 which said appropriation is taken, will be rendered less valu- 
 able by the location of said road the sum of $ . 
 
 A. T., Foreman. 
 
 And thereupon the defendant by its attorney gave notice 
 of its intention to file a motion for a new trial. 
 
 No. 1621. 
 Entry overruling Motion for New Trial, and Judgment. 
 
 [Caption.'] 
 
 And now this day came the parties and by their attorneys, 
 and this cause came on to be heard upon the motion of the
 
 980 JUDGMENT ENTRIES. 
 
 defendant for a new trial hereinbefore filed in this cause, and 
 was argued by counsel, on consideration whereof the court do 
 find that said motion is not well taken, and the same is hereby 
 overruled, to which decision of the court in overruling said 
 motion the defendant excepted, and its exceptions are entered 
 of record, and thereupon the court proceeded to enter judg- 
 ment upon said verdict as required by law, and the jury 
 herein having assessed the amount of compensation in this 
 case to be paid to the owner of the premises described in the 
 petition by reason of the appropriation of the same to the use 
 
 of the said defendant, said P. & W. R. R. Co., at $- , it 
 
 is now adjudged that said verdict be and the same is con- 
 firmed ; and it is further considered by the court that the 
 plaintiff herein recover of. the said P. & W. R. R. Co. the 
 
 sum of $ and his costs herein, to be taxed, and execution 
 
 is awarded therefor. To the rendering of judgment herein 
 against defendant herein defendant then and there excepted, 
 and thereupon defendant presented to the court its bill of 
 exceptions, which is allowed, signed, sealed, and made a part 
 of the record in this case. 
 
 APPEALS IN ROAD CASES. 
 
 No. 1622. 
 
 Transcript of Record from County Commissioners filed and 
 Day set for Hearing in Probate Court. 
 
 \Caption.~\ 
 
 This day came A. B., the appellant, and filed herein a 
 transcript of the proceedings had before the county commis- 
 sioners of this county, duly certified as required by law, 
 showing all the proceedings had before the said county com- 
 missioners in the matter of the petition of A. B. and others 
 for the establishmet of a county road, and also all the original 
 papers therein. 
 
 It is ordered that said cause be set for hearing on the — 
 day of , 18 — , at — o'clock — M. 
 
 Note.— The hearing must not be later than the twentieth day after 
 docketing the appeal. R. S. Sec. 4690.
 
 APPEALS IN ROAD CASES. 981 
 
 No. 1623. 
 Entry affirming Proceedings before County Commissioners. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the trans- 
 cript and original papers in the matter of the appeal from the 
 county commissioners in the establishment of a county road 
 petitioned for by the said appellant herein ; and the court 
 having heard the arguments of counsel and carefully exam- 
 ined the original papers and the transcript from the county 
 commissioners, and being fully advised in the premises, and 
 no exception having been taken by any claimant to the as- 
 sessment of compensation and damages returned to and ap- 
 proved by the county commissioners,* and the court finding 
 that the proceedings previous to this appeal have been had 
 in all respects regular and legal, said proceedings are hereby 
 approved and confirmed, and it is ordered that said appellant 
 pay the costs of this appeal herein, taxed at $ . 
 
 R. S. Sec 4691. 
 
 No. 1624. 
 
 Entry reversing Proceedings. 
 
 [ Caption. ] 
 
 [Continuing from * in ante No. 1623.] 
 
 The court finds that said proceedings have not been in 
 all respects regular and legal, that they are erroneous in the 
 following particulars, to wit : [state error], and the same are 
 herein' reversed and set aside. 
 
 It is therefore considered and ordered by the court that 
 C. D., E. F., and G. H., three judicious and disinterested 
 freeholders of the county, be and they are hereby appointed, 
 together with tin- surveyor of the county, to view said prem- 
 ises as required bylaw, and that they meet at [name place] 
 
 on the — day of , at — o'clock — M., and after being 
 
 first duly sworn that they proceed to view and survey said 
 road according to law, and that they make report to this 
 
 court of their proceedings on or before the — day of , 
 
 is_. 
 
 R. S. Sec. 4691.
 
 982 JUDGMENT ENTRIES. 
 
 No. 1625. 
 Entry approving Report of Viewers. 
 
 [Caption.] 
 
 This cause coming on this day to be heard upon the re- 
 port of the viewers heretofore filed herein, and the court 
 having made a careful examination of said report, and having 
 heard the arguments of counsel, and being fully advised in 
 the premises, finds that said report and the proceedings of 
 said viewers are in all respects regular and in conformity to 
 law; and the court further finding that the said proceedings 
 and report of said viewers* substantially coincides with the 
 order of the county commissioners appealed from, the same 
 are hereby approved and confirmed. It is therefore ordered 
 that the said pay the costs of this appeal, taxed at $ . 
 
 R. S. Sec. 4693. 
 
 No. 1626. 
 
 Entry where Report of Viewers on Appeal materially Varies 
 from Order Appealed from, etc. 
 
 [Cap Won.] 
 
 \ Proceeding from * in ante No. 1625] is favorable to the 
 petitioners, and materially varies from the order appealed 
 from, but is substantially legal and is within the scope of the 
 petition, the same is hereby approved and confirmed. 
 
 It is therefore ordered that the appellants pay the costs 
 herein, taxed at $ . 
 
 R. S. Sec. 4693. 
 
 No. 1627. 
 
 Entry ordering Review of Road when Report of Viewers is 
 Adverse to Establishment of Road. 
 
 [Caption.] 
 
 This day this cause coming on to be heard upon the report 
 of the viewers heretofore filed herein, and it appearing there- 
 from that the same is against the establishment of said road, 
 and twelve of the petitioners having filed their motion asking 
 for a review of said road as provided by law, and the court 
 being satisfied that the request of said motion is reasonable 
 and proper, it is by the court ordered that , , ,
 
 APPEALS IN ROAD CASES. 983 
 
 , and , five disinterested freeholders of the county, 
 
 be and they are hereby appointed a committee to review said 
 road ; and said reviewers are hereby ordered to examine the 
 proposed road as defined and referred to in the order appealed 
 from, and report in writing their opinion for or against the 
 same, together with their reasons, to this court on or before 
 
 the — day of , 18 — . 
 
 R. S. Sec. 4694. 
 
 No. 1628. 
 Entry upon Report of Reviewers. 
 [Caption.] 
 
 This day this cause coming on to be heard upon the report 
 of the reviewers heretofore appointed herein, and it appearing 
 therefrom that said report is adverse to the establishment of 
 said road, it is by the court ordered and adjudged that no 
 further proceedings be had herein upon the petition of the 
 petitioners, and that the said petitioners pay the costs herein 
 expended, taxed at $ . 
 
 R. S. Sec. 4694. 
 
 No. 1629. 
 
 Entry on Appeal from Final Decision from Township Trustees 
 — Ordering Jury Impaneled and Day for Hearing. 
 
 \Capt£on.~\ 
 
 This day came and filed herein a duly certified tran- 
 script, showing all proceedings had before the township trus- 
 tees of township, in this county, in the matter of the 
 
 petition of for the establishment of a road, and it ap- 
 pearing that said appellants have entered into a bond according 
 to law, it is ordered that a venire issue, directing that a jury 
 be selected according to law, requiring them to appear in this 
 court on the- — day of , 18 — . 
 
 R. S. Sees. 4697, 4700. 
 
 No. 1630. 
 
 Same Continued— Jury Impaneled and Ordered to View 
 Premises. 
 
 [Cap/ ion. ] 
 
 This day this cause coming on to be heard, and thereupon 
 also came the following named jurors: [naming them\ who 
 
 63
 
 984 JUDGMENT ENTRIES. 
 
 were duly impaneled and sworn according to law. And 
 thereupon, upon motion of the appellants herein, it is ordered 
 that the jury in charge of the sheriff proceed to examine the 
 road as established or ordered, and the property of the several 
 claimants (appellants) taken therefor, and when they have 
 so made such examination that they then return into this 
 court on the — day of . 
 
 R. S. Sec. 4703. Some one other than the sheriff may be appointed to 
 show the jury the premises. 
 
 No. 1631. 
 Entry upon Return of Jury, and of Hearing and Verdict. 
 
 [Caption. ] 
 
 This day came the parties hereto by their attorneys, and 
 also came the jury heretofore impaneled and sworn, and hav- 
 ing made an examination of the premises through which the 
 road proposed will pass by order of this court, the trial there- 
 upon proceeded. 
 
 And the jury having heard the evidence, the arguments 
 of counsel, and the instructions by the court, delivered their 
 verdict into court as follows: 
 
 \_Copy verdict.^ 
 
 And the said jury by their verdict having awarded the 
 said appellants a sum greater than that awarded by the town- 
 ship trustees, it is ordered and adjudged that the state of Ohio 
 
 recover from the defendants [names] the sum of $ , being 
 
 the amount of the costs of this appeal, and that said verdict 
 of the jury be entered upon the record of this court as pro- 
 vided by law. (Sec. 4703.) And no motion for a new trial 
 having been made, it is ordered that a transcript be sent to 
 
 the township trustees of township, and that all of the 
 
 original papers be returned to said trustees. 
 
 R. S. Sec. 4707. 
 
 No. 1632. 
 
 Same continued— Entry when Motion for New Trial is Made- 
 Judgment thereon. 
 
 [Cap /ion.] 
 
 [Proceeding from * in ante No. 1631.] And thereupon 
 came the defendants and filed a motion for a new trial, and 
 the court having heard the arguments of counsel thereon, and
 
 ONE MILE ASSESSMENT PIKE. 985 
 
 being fully advised in the premises, finds that said motion is 
 not well taken, and does therefore overrule the same. 
 
 It is therefore ordered by the court that said verdict of the 
 jury be entered upon the record of this court, and that all of 
 the original papers received from the township trustees, to- 
 gether with a duly certified transcript of the record of this 
 
 cause in this court, be transmitted to the said trustees of 
 
 township as provided by law. 
 
 And it appearing from said verdict that the award made 
 by said jury is not greater than that made by the said trus- 
 tees, it is considered by the court that the state of Ohio do 
 recover from the defendants the costs of this appeal, taxed at 
 
 R. S. Sees. 4706, 4703, 4707. 
 
 ONE MILE ASSESSMENT PIKE. 
 
 (J?. 5. Sees. 4782 — 4784.) 
 
 No. 1633. 
 
 Entry appointing Appraisers to assess Value of Material and 
 Damages for Removal through Premises. 
 
 \Captit»i. J 
 
 This day came the count} - commissioners of this county 
 and filed herein their application for the appointment of ap- 
 praisers to assess the value of material which they are author- 
 ized to procure for the construction and repair of- pike, 
 
 senting that they can not agree with , owner, as to 
 
 the price which should be paid for said materials, it is by the 
 court ordered that A. B., C. D., and E. F., three disinterested 
 freeholders of the county, be and they are hereby appointed 
 sess the value of the materials set forth in said applica- 
 tion (lied herein, and also any damages which may accrue to ] 
 the owner of such materials by the removal thereof through 
 his premises; it is also further ordered that said appraisers, 
 after being first duly sworn to impartially assess the valu< of 
 said materials, do enter upon the premises of the owner of 
 said materials and assess the value thereof, as well as any 
 damages whi< h may accrue to the owner by the removal of
 
 9S6 JUDGMENT ENTRIES. 
 
 the same through his premises, and that they return their 
 said award into this court within ten days herefrom. 
 
 NOTE. — The statute — Sees. 4782, 4783 — does not require that notice 
 shall be given to the owner of the filing of the application, but seems to 
 contemplate that the appointment maj T be made at once, although it may 
 be the better practice to first give the notice before the appraisers are ap- 
 pointed. Forms will answer for two mile assessments under 4859. 
 
 No. 1634. 
 Entry on Return of Award. 
 \Caption.~\ 
 
 This day came the appraisers heretofore appointed to as- 
 sess the value of the materials which the commissioners are 
 
 authorized to procure for the construction and repair of 
 
 pike, and any damages accruing to the premises of the owner 
 thereof. And the court having carefully examined said award 
 so made, and finding the same in all respects regular and 
 correct, does approve and confirm the same. It is therefore 
 ordered by the court that the said county commissioners do 
 
 pay or secure to be paid to the said the said sum of 
 
 $ , the value so assessed by the said appraisers, and the 
 
 further sum of $ , the damages so assessed to said , 
 
 and that they pay the costs herein, taxed at $ . 
 
 ABANDONMENT OF ROADS. 
 
 (£. S. Sees. 4915— 4917.) 
 
 No. 1635. 
 Petition Filed and Set for Hearing. 
 
 [Adversary Form.] 
 
 This day came [naming them\ twelve freeholders of this 
 
 county through which turnpike has been constructed, 
 
 and filed herein their petition, alleging therein that said road 
 and parts thereof has not been kept in repair for the six 
 months next preceding the filing of their said petition, and 
 asking that the same may be declared abandoned and vacated. 
 
 It is thereupon ordered by the court that the said petition
 
 ABANDONMENT OF ROADS. 987 
 
 be set for hearing on the — day of , 18 — , at — o'clock 
 
 — M. , and that a written notice be given to the defendants 
 of the filing of said petition and of the time set for the hear- 
 ing thereof according to law. * 
 R. S. Sec. 4915. 
 
 No. 1636. 
 Entry ordering Notice by Publication on Non-Resident. 
 
 [Caption."] 
 
 [Proceeding from * in last Form.] And it being made to 
 
 appear to the court by the affidavit of A. D. that one is 
 
 a non-resident of the state, it is by the court further ordered 
 that said petitioners give notice to such person by publication 
 for three consecutive weeks in some newspaper printed and 
 of general circulation in this county, according to law. 
 
 No. 1637. 
 
 Entry on Final Hearing. 
 
 [Caption.] 
 
 This day this cause came on to be heard upon the petition 
 
 heretofore filed herein for the abandonment of turnpike, 
 
 and it appearing that due and legal notice has been given all 
 of the defendants hereof, and the court having heard all the 
 evidence adduced by the parties, and being fully advised in 
 the premises, finds that the facts stated in said petition are 
 true, and that said road has been out of repair for a period of 
 six months next preceding the filing of this petition. It is 
 therefore considered by the court that the said road be and 
 the same is hereby declared abandoned and vacated. 
 
 R. S. Sec. 4916.
 
 INDEX. 
 
 Note. — References to both Instructions and Entries are to the numbers. 
 To some matter, page references are made, which are indicated by p. 
 Every Instruction and Entry has a number. The reference in this Index 
 is to that number. 
 
 Abandonment of Roads. 
 
 Petition filed Entries, . . 
 
 Ordering notice " ... 
 
 Final hearing " ... 
 
 Abatement — Sec Motions. 
 
 Abutting Owner. 
 
 Rights of, in streets Instructions, 
 
 damages from construction of railroad . . " . 636,637,638 
 to egress and ingress " .... 638 
 
 Accomplice. 
 
 Defined Instructions, 
 
 Offering immunity to " . . 
 
 Credit to be given to " . . 
 
 Corroboration of " . . 
 
 Accord and Satisfaction. 
 
 Free from fraud, binding Instructions, . . 7 
 
 Of claim for damages " . . . . 8 
 
 By creditor with debtor " . . . . 9 
 
 Account. 
 
 Note given in settlement of, effect . . . Instructions, . . 10' 
 [^imitation in " . . . . 634 
 
 Account — Probate Court. 
 
 Of administrators and executors filed . Entries, .... 146^ 
 
 Confirmation of partial " 147" 
 
 Of filing of exceptions to " 1471 
 
 referring to commissioner " [472 
 
 of hearing, allowing account " 1473 
 
 same, sustaining exceptions " 1474 
 
 999 
 
 No. 
 
 1635 
 1636 
 
 1637 
 
 636 
 
 5 
 
 6 
 6, note
 
 TOCO INDEX. 
 
 Account — Probate Court — Continued. No. 
 
 Allowing distribution Entries, .... 1475 
 
 Ordering distribution of notes in kind . . " 1476 
 
 Authorizing investment of funds held six 
 
 months " 1477 
 
 Authorizing money paid into county 
 
 treasury " 1478 
 
 Ordering sum deposited for heir paid over " H79 
 
 Distribution enforced " . . 1480, etc. 
 
 Of guardians . ." " . . 1538, 1539 
 
 Actions — See Joinder of Actions, Venue of Actions. 
 
 Continued from one term to another . . Entries, .... 1350 
 Consolidation of " 821 
 
 Administration of Estates — See Executors and Administra- 
 tors. 
 
 Administrators — See Executors and Administrators. 
 
 Admissions — See Evidence. 
 
 Admission and Inspection of Documents. 
 
 Ordering inspection and copy Entries, . . . . 918 
 
 Appointing master to make private ex- 
 amination " 919 
 
 Order on oral application to defendant 
 
 to allow inspection " 920 
 
 Judgment of dismissal against plaintiff 
 
 failing to produce books " 921 
 
 Administrators' Claims — See Claims. 
 
 Adverse Possession — See Recovery of Possession. 
 
 What constitutes Instructions, . . 121 
 
 need not be under color of title " .... 122 
 
 meaning of continuous possession .... " .... 123 
 
 occupation of well-defined limits " .... 124 
 
 lines between owners .... 125 
 
 surveyor's marks " .... 125 
 
 possession extends to what " .... 127 
 
 mistake in boundary line " .... 128 
 
 nature of occupancy " .... 128 
 
 declarations of owner " . , . 129 
 
 Abandonment <( .... 126 
 
 Advertisement — See Sale of Real Estate, Foreclosure, etc. 
 
 Agency. 
 
 What constitutes Instructions,. . 11 
 
 Ratification of, effect " . . . . 12 
 
 Right of agent to recover where double 
 
 agency known to principals " . . . . 13
 
 INDEX. 
 
 IOOI 
 
 Agreed Case. 
 Trial of . 
 
 Entries, 
 
 No. 
 
 882 
 
 Aider and Abettor. 
 
 To constitute an, essentials Instructions, . 15 
 
 When present without knowledge .... 
 
 Assisting by words, gestures, etc 
 
 Old definitions of no use under statute . . 
 Reasons of the law making liable .... 
 
 Mere presence not sufficient 
 
 Person present doing no overt act not . . 
 
 Aid of Execution. 
 
 Nature of proceedings in Entries, • p. 608, 
 
 Application for an order for examina- 
 tion of judgment debtor 
 
 in independent proceeding 
 
 Affidavit requiring defendant to appear 
 and answer 
 
 Upon filing of petition and affidavit, 
 debtor to appear 
 
 Ordering arrest 
 
 Allowance of undertaking 
 
 Ordering third person to appear 
 
 Summons or notice to be served on de- 
 fendant 
 
 Appointment of referee 
 
 Applying property held by debtor .... 
 
 held by third persons . 988 and 
 
 Appointment of receiver to take charge 
 of rights and credits 
 
 Subjecting interest in realty 
 
 Where examination fails to disclose property, 
 
 , 16 
 
 14 
 16 
 16 
 16 
 16 
 244 
 
 note 
 
 978 
 979 
 
 980 
 
 981 
 982 
 
 983 
 984 
 
 985 
 
 986 
 
 987 
 
 note 
 
 989 
 990 
 991 
 
 Alibi. 
 
 Explained fully Instructions, 
 
 proof of " • • 
 
 Character of evidence to prove " • • 
 
 preponderance " • • 
 
 Failure to prove, effect " • • 
 
 Alienation of Affection. 
 
 i )| wife Instructions, 
 
 Affections and confidence of wife of value . . " . . 
 
 Mistreatment of wife by husband as a defense " . . 
 
 Bad character of husband . . 
 
 Measure ol damage in action for " . . 
 
 Separation ol husband and wife, inquiry into . . 
 
 Alighting from Street Car — See Street Railways. 
 
 Instructions as to Instructions, . . 
 
 541, 542, 543, 547, 550, 551 
 
 • • 43 
 
 • • 179 
 
 • • 44 
 
 44, note 
 
 • 17 
 
 • 17 
 18 
 
 l.S, note 
 19 
 19
 
 1002 INDEX. 
 
 Alighting from Train. No. 
 
 Duty of company to passenger .... Instructions, . . 428 
 
 contributory negligence of " . . . . 429 
 
 Alimony. See Divorce and Alimony. 
 
 Allowance to widow — See Inventory and Appraisement. 
 
 Alteration of Instruments — See Bills and Notes. 
 
 Amendment. 
 
 Of summons Entries, .... 809 
 
 To conform pleadings to proof " ... 810, 813 
 
 To cure material variance "... 811,926 
 
 On demurrer sustained " 803 
 
 Animals. 
 
 Scienter, proof of Instructions, . . 24 
 
 Owner of domestic, liable for injury 
 
 when 
 
 when in place rightfully 
 
 Breaking into close of another 
 
 Ferocious dog when at large 
 
 as to vicious character 
 
 who is the keeper or harborer of 
 
 defense that dog was fastened 
 
 person going where dog is fastened . . . 
 
 Appeal — Trial On. 
 
 Notice of Entries, .... 901 
 
 by administrator " 902 
 
 Suspension of injunction by circuit court . " 903 
 
 Dismissal of, because jury case " 904 
 
 Judgment set aside and leave to file petition " 905 
 
 Upon motion to dismiss " . ... 906 
 
 Upon motion to require plaintiff to give 
 
 new bond " 907 
 
 Appeal from justice dismissed because not 
 
 perfected and judgment for appellee . " 908 
 
 Hearing and judgment in circuit court . . " 909 
 
 Decree in foreclosure, in circuit court . . " 910 
 
 Decree in circuit court upon, separate 
 
 finding of fact and law " 911 
 
 Of judgment under Sec.6588 when appeal 
 
 not perfected " 912 
 
 When plaintiff fails to file petition on answer " 913 
 
 Appraisement — See Execution. Foreclosure, Inventory, and 
 Appraisement, Sale of Real Estate. 
 
 ... 25 
 
 ... 25 
 
 ... 25 
 
 ... 26 
 
 ... 28 
 26, note, 29 
 
 ... 27 
 
 ... 27
 
 INDEX. IOO3 
 
 Appropriation of Property. No. 
 
 By Municipal Corporations Entries, . . . ^.972 
 
 Application filed by city solicitor ... " 1605 
 
 filing return of notice " 1606 
 
 ordering jury impaneled " 1607 
 
 jury impaneled, order to view .... " 1608 
 
 of hearing, judgment " 1609 
 
 By Private Corporation " . . . . p. 975 
 
 Petition filed " 16 12 
 
 Filing of petition to compel " . . 1613, 1615 
 
 Settling preliminary questions " 16 14 
 
 Of hearing, when company failed to in- 
 stitute proceedings, ordering jury . " 1616 
 
 impaneling jury, new party added, 
 
 order to view " 161 7 
 
 of daily hearing " 1618 
 
 when plaintiff rests, motion to dis- 
 miss, etc " 16 19 
 
 return of verdict, motion new trial . . " 1620 
 
 motion new trial overruled, judgment " 1621 
 
 Arbitration and Award. 
 
 Form of award Entries, .... 992 
 
 Judgment on " 993 
 
 other than for money " 994 
 
 Setting aside " 995. 
 
 Arbitration of Claims, 
 
 Of approval of referees Entries, .... 1425 
 
 Referring claim exceeding $100 " 1426 
 
 Setting aside report of referees " 1427 
 
 Confirmation of report of referees, judgment " 1428 
 
 Arraignment and Plea. 
 
 Of, plea not guilty Entries, . . . .1319 
 
 And appointment of counsel " 1320 
 
 Withdrawal of plea, etc " . . 1321, 1329 
 
 Arrest. 
 
 Without warrant Instructions, . . 30 
 
 By policeman " . . . . 31 
 
 what force may be used " . . . . 31 
 
 authority of, to judge of necessity of killing " . . 31, note- 
 Arresting from Jury. 
 
 Entry Entries, .... 872 
 
 Overruling motion to arrest, defendant 
 
 not offering testimony, overruling 
 
 motion for new trial, verdict and 
 
 judgment " 927' 
 
 Granting motion, judgment " 928
 
 ioo4 
 
 INDEX. 
 
 Arrest of Judgment. No. 
 
 Granting motion in Entries, .... 876 
 
 Assault and Battery. 
 
 Defined . . Instructions, . . 32 
 
 Criminal charge no defense to civil suit ...".... 33 
 
 may consider same for what purpose ...".... 33 
 Self defense, in civil action "..... 34 
 
 degree of force used in " ... 34,35 
 
 Damages recoverable in civil action ....".... 36 
 
 Protecting himself and child "..... 37 
 
 Resisting first assault " . . . . 38 
 
 excessive force in so doing " . . . . 38 
 
 One voluntarily provoking may recover 
 
 if he afterwards withdrew " . . . . 39 
 
 By school-teacher upon pupil "'.... 40 
 
 right of teacher to punish, cause for 
 
 punishment, etc " . . . . 40 
 
 Assault with intent to rob includes ....".... 41 
 
 (See Robbery) 
 Assault with intent to kill includes .... " . 42 and note 
 With intent to rape " . . 593. 594 
 
 Assault with Intent to Kill. 
 
 Of what defendant may be found guilty 
 
 Assessments — See Injunction. 
 
 Of judgment, enforcing Entries, . . 
 
 Temporary injunction against collection 
 
 of street • ... 
 
 Set aside for want of service upon minors . "... 
 
 Declaring that certain, against realty, val- 
 id, where grantee assumed payment . " . . . 
 
 Reducing, and enjoining collection ...."... 
 
 Declaring part legal, part illegal, enjoin- 
 ing collection ... 
 
 Law under which levied declared uncon- 
 stitutional, assessments to be stricken 
 from tax duplicate, perpetual in- 
 junction " ••• 
 
 Assignee — See next heading. 
 
 Replevin from, by owner of property 
 
 fraudulently purchased Instructions, 
 
 Assignment for Creditors. 
 
 Deed filed Entries, . . 
 
 Bond of assignee filed " ... 
 
 Removing assignee, appointing trustee . . " ... 
 
 Resignation of assignee, appointing trus- 
 
 << 
 tee ... 
 
 Filing complaint against trustee " ... 
 
 Instructions, . . 42 
 
 996 
 
 997 
 998 
 
 999 
 1000 
 
 1001 
 
 1121 
 
 214 
 
 1545 
 1546 
 1547 
 
 1548 
 1549
 
 INDEX. IOO5 
 
 Assignment for Creditors — Continued. No. 
 
 hearing, fixing day for election . . . Entries, .... 1550 
 
 appointing trustee chosen by creditors . " 1551 
 
 Removal of assignee " I55 2 
 
 Appointment of trustee under R. S. Sec- 
 tion 6344 " 1553 
 
 Filing of inventory and appraisement . . . " 1554 
 
 Ordering assignor to appear and be ex- 
 amined " 1555 
 
 Filing of sale bill " 1556 
 
 Order of sale of personalty, public .... 1557 
 
 at private sale " 1558 
 
 at public when not sold at private ... " 1559 
 
 Ordering business carried on 1560 
 
 discontinuance " 1561 
 
 Upon motion to strike property from in- 
 ventory when sold by assignor ... " 1562 
 
 Determining title to accounts transferred 
 
 by assignor 1563 
 
 Order to assignee to pay for goods not 
 
 delivered until assignment " 1564 
 
 On motion for advice and direction as to 
 
 renting property " 1565 
 
 as to insurance " 1567 
 
 Ordering payment of interest on mortgage, " 1566 
 
 Authorizing assignee to repair property . . " 1568 
 
 to compromise and settle claim .... 1569 
 
 to pay for services 1570 
 
 Fixing fees of appraisers 1571 
 
 Sale of real estate by assignee " . . . . p. 952 
 
 order of sale " I57 2 
 
 where no liens " 1573 
 
 confirmation J 574 
 
 Allowing chattel mortgage, ordering paid . " 1576 
 
 priorities of liens determined 1577 
 
 Assignee ordered to pay preferred claim . 1578 
 
 Allowance of preferred claim under R. S. 
 
 Section 6355 157-) 
 
 rate 1 laims . . 1580, 1581 
 
 Authorizing completion of contract ... [582 
 
 Requisition to reject claim 1583 
 
 \> count filed 1584 
 
 ;ill<r'. ince, dividend ordered 1585 
 
 r< porl "i dividend, discharge of as- 
 signee " 1586 
 
 Assignee authorized to accept bid . . . . " 1587 
 
 New appraisement ordi red on account 
 
 ol mistake " 15.SS 
 
 Ordering property on which executions 
 levied prior to, turned over 1>\ sh< 1 
 iff to assignee l S%9
 
 1006 INDEX. 
 
 Assignment for Creditors — Continued. No. 
 
 Continuing consideration of bids . . . .Entries, .... 1590 
 Authorizing assignee to accept bid and 
 
 sell property at private sale " 1591 
 
 Confirmation of sale of personalty .... " 1592 
 
 Assumption of Risks. 
 
 By servant Instructions, . . 
 
 438, 439.. 440. 44i. 443 
 
 in selection of servants Instructions, . . 438 
 
 of negligence of fellow servants " .... 442 
 
 by brakeman " .... 442 
 
 from insufficient force .... 443 
 
 Knowledge of dangerous methods, amounts to " .... 459 
 
 By hatchtender .... 464 
 
 Attachment — See Contempt. 
 
 Appointing master to examine garnishee Entries, .... 1002 
 
 Receiver appointed in " . . 1003, 1004 
 
 Ordering sale of property " 1005 
 
 Discharged upon error from justice . ... " 1006 
 
 upon giving bond " 1007 
 
 Sustaining motion to discharge " 1008 
 
 Garnishee discharged, share of stock re- 
 ceived by filing bond 1009 
 
 Ordering garnishee to deliver property 
 
 or to pay money " 1010 
 
 Discharging garnishee upon paying 
 
 money into court . . ion, 1012 
 
 Judgment against garnishee for failure 
 
 to pay money into court " 1013 
 
 Ordering sheriff to repossess himself of 
 
 property " 1014 
 
 Decree determining rights of attaching 
 
 creditors " 1015 
 
 Of witnesses " 9 10 
 
 discharging 9 J 7 
 
 Attorneys. 
 
 Zeal of, must not mislead jury Instructions, . . 1,2 
 
 Allowing fees out of certain properties 
 
 of an estate Entries,. . . . 1016 
 
 Disbarment proceedings ' 1017, 1018, 1019. 
 
 Award — See Arbitration and Award. 
 
 Form of, of arbitrators Entries, .... 992 
 
 Baggage — See Common Carriers. 
 
 Duty of R. R. Co., as to Instructions,. 87,88 
 
 Bail — See Recognizance. 
 
 Bailments — See Common Carriers.
 
 INDEX. 
 
 IOO7 
 
 Instructions, 
 
 Banks and Banking. 
 
 What officers may receive deposits . . . 
 
 Duty of bank directors 
 
 Bank estopped to deny authority of offi- 
 cers, when 
 
 Relation of directors to public 
 
 their liability for defaulting officers . . 
 
 Liability of drawer of check 
 
 Nature of check, rights of parties thereto 
 
 Bank Checks — See Banks and Banking. 
 
 Bastardy. 
 
 Who is the father of the child Instructions, . 
 
 When compromise made discharging de- 
 fendant Entries, . . . 
 
 Discharging defendant when bond given . " .... 
 When sureties surrender accused .... .... 
 
 Forfeiting recognizance " . . . . 
 
 Entry of plea, ordering trial by jury ... . . . . 
 
 Overruling motion for new trial and 
 
 judgment " . . . . 
 
 Substituting child upon death of mother . . . . . 
 
 Reducing judgment upon death of child . . . . . 
 
 Benefits — See Eminent Domain. 
 
 Bigamy. 
 
 Defined Instructions, . 
 
 Domicile of divorced parties . . . 
 
 Bill of Exceptions. 
 
 Allowance of Entries, . . 
 
 Bills and Notes. 
 
 Delivery Instructions, 
 
 Denial of signature 
 
 proof of, by comparison 
 
 expert testimony as to 
 
 Pun base before maturity without consideration, " 
 
 Ti tnsf< 1 before maturity 
 
 Consideration 
 
 I lenial of execution 
 
 Alterations in note, what constitutes .... 
 
 Alterations in date 
 
 Additions of words as to interest 
 
 Adding name <>t third party 
 
 Inserting words "to be paid annually" . . . 
 burden of proof as to 
 
 Transfei after matui ■ ' 
 
 Endorsement in blank explained 
 
 Reviving liability of surety on " 
 
 Extension of note 
 
 No. 
 
 45 
 46 
 
 47 
 48 
 48 
 49 
 50 
 
 51 
 
 1020 
 1021 
 1022 
 1023 
 1024 
 
 1025 
 1026 
 1027 
 
 573 
 
 574 
 
 934. 935 
 
 54 
 52 
 52 
 54 
 53 
 56 
 53. 5 l 
 5 1 
 59 
 5! 
 59 
 
 6i 
 
 54 
 55 
 56 
 57 
 58
 
 iooS 
 
 INDEX. 
 
 Bills and Notes — Continued. 
 
 Payment of interest in advance .... Instructions, 
 Can not dispute note 
 
 unless some inadvertence or mistake . . . 
 Indorsers, demand and notice to hold .... 
 
 waiver of 
 
 Indorsement defined 
 
 Maker of note when not entitled to demand . 
 
 Blasting. 
 
 Injury to house from, with dynamite 
 measure of damages 
 
 Instructions, 
 
 No. 
 
 . 58 
 
 . 60 
 
 . 60 
 62, 63 
 
 . 62 
 
 ■ 63 
 
 . 64 
 
 501 
 502 
 
 Bohemian Paper — See Execution. 
 
 Bond — See Executors and Administrators, Guardians, Sale 
 of Real Estate, etc. 
 Of filing new, upon release of surety . . Entries, . . . .1392 
 
 Removal when new, not filed 1393 
 
 Administrator ordered to give, of indemnity " 1394 
 
 removal upon failure to give " 1395 
 
 Authorizing suit upon " 139° 
 
 Boundary Line. 
 
 Division established, mandatory injunc- 
 tion Entries, 
 
 Breach of Promise to Marry. 
 
 Contract, how entered into Instructions, 
 
 Marriage contract of, defined 
 
 What amounts to 
 
 Promise made in consideration of sexual 
 
 intercourse, effect 
 
 Evidence of preparation for marriage . . . 
 Measure of damages 
 
 seduction, effect on 
 
 value of defendant's estate 
 
 subsequent acquisitions of property . . 
 
 Building Contracts — See Contracts. 
 
 Deviation from written Instructions, 
 
 Recovery for extras 
 
 Claim that work not done in workman- 
 like manner 
 
 Compliance with what is 
 
 Unfinished work 
 
 Acquiescence by owner in work not ac- 
 cording to contract 
 
 Acceptance of building 
 
 Settlement, conclusive in absence of fraud 
 
 1028 
 
 ictions 
 
 » • • 
 
 65 
 
 " ... 65, < 
 
 " .... 
 
 66 
 
 " . 67 and note 
 
 " 
 
 68 
 
 11 
 
 
 69 
 
 << 
 
 69, 
 
 note 
 
 " . 
 
 69, 
 
 note 
 
 
 69, 
 
 note 
 
 ictions, . . 
 
 107 
 
 " . . 10; 
 
 ', 114 
 
 K 
 
 108 
 
 «< 
 
 109 
 
 ti 
 
 no 
 
 " . . . . 
 
 11 1 
 
 it 
 
 112 
 
 it 
 
 
 "3
 
 INDEX. 
 
 IOO9 
 
 Burden of Proof. 
 
 As to proof of waiver of conditions in in- 
 surance policy Instructions, . . 273 
 
 In malicious prosecution " .... 338 
 
 Burglary. 
 
 Force necessary Instructions, . 70, 7 r 
 
 Constructive breaking of the common law . . " . . 70, note 
 
 Must have been an entry .... 72 
 
 Must be in night time " . . . . 73 
 
 night denned " -73 and note 
 
 Entry and breaking " . . 7 2 . note 
 
 must be malicious " . . . . 75 
 
 Intent to steal " . . . . 74 
 
 Of railroad car " . . . . 76 
 
 Cancellation. 
 
 Of insurance policy, whether or not 
 
 there was Instructions, 
 
 Of deed from husband to wife Entries, . . 
 
 Of life insurance policy where assign- 
 ment made in trust "... 
 
 277 
 1181 
 
 1248 
 
 Capital Cases. 
 
 Of filing precipe for jury, jury drawn, 
 
 venire issued Entries, . . . .1341 
 
 on return of venire " 1342 
 
 ordering alias venire " J 343 
 
 on return " 4344 
 
 Impaneling jury in , . . . . 1344,1346 
 
 Upou return of verdict 1347 
 
 Overruling new trial and sentence .... " 1348 
 
 Death warrant " .... 1348^ 
 
 Carrier — See Common Carrier \ Railway Company. 
 
 Change of Grade. 
 
 Liability of city for, of streets Instructions,. . 
 
 368,369,381 
 improvements made with reference to 
 
 established grade " . . 370, 382 
 
 how proved .... 382 
 
 whether made in conformity to es- 
 tablished grade " .... 383 
 
 what statute provides as to " .... 371 
 
 t of failure to file claim for damages . " .... 372 
 
 excuses for " .... 372 
 
 duty of city to have plans and profiles . . " .... 373 
 owner may rely on profiles and surveys 
 
 in engineer's office " .... 372 
 
 improvement made before gradi 1 
 
 tablished is al one's peril " . . 375,376 
 
 64
 
 IOIO 
 
 INDEX. 
 
 Change of Grade — Continued. No. 
 
 rule as to unreasonable grade .... Instructions, 376, 37 8 
 
 what should be determined "... 378 
 
 whether premises abut on improvement . • • • • 377 
 
 recovery of interest on damages " . . . . 379 
 
 retaining wall, whether necessary to 
 
 protect buildings " . . , . 380 
 
 interest on cost of . . , . 382 
 
 A complete charge as to . . 381-387 
 
 Damages recoverable, injury to buildings, 
 shrubbery, access, value before and 
 
 after 
 
 consideration of market value 
 
 opinion evidence 
 
 enhancement of value 
 
 benefits, rules as to consideration .... 
 
 Change of Name. 
 
 Of name of person Entries, . . 
 
 Of town, village, or hamlet ... 
 
 Of corporation • • . 
 
 Change of Venue — See Venue of Actions. 
 Character — See Evidence. 
 
 Previous good, how considered in crim- 
 inal case Instructions, 
 
 Evidence as to reputation 
 
 Chastity. 
 
 Of good repute for Instructions, 
 
 Chattel Mortgages — See Assignment for Creditors. 
 
 Essentials to validity Instructions, 
 
 Effect of, on goods fraudulently purchased . . 
 
 Possession retained by mortgagor, effect of . f . . 
 
 Foreclosure of Entries, . . 
 
 Children. 
 
 Legitimacy of Instructions, 
 
 Employment of, in hazardous employ- 
 ments, see Hazardous Employments. 
 willfully permitting, to be endangered 
 
 while in 
 
 Duty of, in passing street railroad crossing . . 
 Contributory negligence of 
 
 Churches — See Sale of Entailed Estates. 
 
 Authorizing, to sell property Entries, . . 
 
 Circuit Court — See Error. 
 
 384- 388 
 
 • • 380 
 
 • • 385 
 
 • • 386 
 387. 388 
 
 . 1029 
 1029)4 
 • 1030 
 
 • • i75 
 175, note 
 
 . . 663 
 
 • • 77 
 . . 215 
 . . 216 
 
 . 1094 
 
 349 
 
 • • 415 
 
 . . 562 
 404, 405 
 
 103 1
 
 INDEX. 
 
 ion 
 
 1425- 
 
 No. 
 
 1428 
 1429 
 J 43Q 
 H3i 
 1433 
 1434 
 
 . 468 
 
 559, 560 
 
 • 552 
 
 Claims — See Arbitration of Claims. 
 
 Reference to referees Entries, 
 
 Requisition on administrator to reject . . ' 
 Of presentation of administrator's claim . . ' 
 
 of hearing and allowance ' 
 
 Ordering payment of, not due in four years ' 
 
 where heirs filed bond ' 
 
 Collision. 
 
 Resulting from negligence of train dis- 
 patcher Instructions, 
 
 Between street and commercial railway ... " . . 
 Between street cars, prima facie negligence . " . . 
 
 Commission — See Testimony. 
 
 Commissioner — See Master Commissioner. 
 
 Appointment of, to take testimony . . . Entries, .... 923 
 Common Carriers — See Baggage, Express Companies, Rail- 
 road Coup any. 
 
 Denned Instructions 
 
 Liability for carriage of goods 
 
 Act of God 
 
 Burden of proof 
 
 Limiting liability 
 
 burden of proof as to 
 
 of loss within an exception 
 
 Not an insurer as to time 
 
 delay in 
 
 delay caused by unavoidable accident . . 
 
 perishable goods may be sold 
 
 transportation of vegetables, freezing of . 
 Duty as to delivery 
 
 presumption from failure to deliver . . 
 
 of express companies 
 
 delay in 
 
 Liability by contract for loss by connect- 
 ing lines 
 
 Duty as to baggage 
 
 Bill of lading, effect 
 
 exempting liability in 
 
 conditions in, waiver 
 
 Railroad companies, see heading. 
 
 duty to furnish cars 
 
 lilway as, sec Strcrt Railways . . . 
 
 Compensation — See Eminent Domain. 
 
 Complete Contracts. 
 
 Of filing petition to Entries, .... 1413 
 
 Ordering administrator to " 1414 
 
 Of filing petition to, by guardian " [531 
 
 uctions . 
 
 
 73 
 
 
 
 78 
 
 
 
 78 
 
 
 
 78 
 
 • • 79 
 
 80 
 
 ,85 
 79 
 80 
 
 
 81 
 
 ,90 
 90 
 81 
 
 
 81 
 
 ,89 
 
 " . 89 an 
 
 d note 
 
 
 
 82 
 
 
 
 82 
 
 
 
 84 
 
 
 
 90 
 
 
 
 86 
 
 
 87 
 
 88 
 
 91 
 90 
 
 9i 
 
 02 
 
 • 532 
 
 et 
 
 wy.
 
 IOI2 
 
 INDEX. 
 
 99 
 
 103 
 
 335 
 
 Compounding with Debtor. No. 
 
 Authorizing administrator to compound Entries, .... 141 2 
 
 Compromise — See Settlement. 
 
 Of suit for damages without consent of 
 
 attorney Instructions, . . 8 
 
 By creditor with debtor " . . . . 9 
 
 Of loss by fire " .... 275 
 
 Concealment of Assets — See Inventory and Appraisement. 
 
 Confession — See Offer to Confess. 
 
 Conductor — See Master and Servant. See Street Railways. 
 uty of railroad Instructions, . . 465 
 
 Consideration. 
 
 Defined Instructions, 
 
 Want of, in contract concerning patents ... " . . 
 
 Conspiracy. 
 
 By labor unions Instructions, 
 
 In commission of robbery " .... 
 
 596, 601, 602, and note 
 
 Contest — See Wills, Justice of the Peace. 
 
 Continuance. 
 
 Order on filing.affidavit for Entries, .... 822 
 
 Cause postponed for future assignment . . " 823 
 
 Ordinary entry of " 824 
 
 Contracts — See Building Contracts. 
 
 For sale of newspaper Instructions, . . 98 
 
 " new dress " defined " . . . . 98 
 
 Consideration defined " ... 99, 103 
 
 Express or implied explained " .... 100 
 
 Made under duress " .... 101 
 
 Illegal " . . . . 102 
 
 not defense for agent as against principal . " .... 102 
 
 concerning patents " .... 103 
 
 To maintain and provide for '• .... 104 
 
 reasonable cause for leaving " .... 105 
 
 For support of parent " . . . . 106 
 
 Contributory Negligence. 
 
 No recovery when there is Instructions, . . 399 
 
 What is required of plaintiff " .... 399 
 
 When plaintiff must show himself with- 
 out fault " . . . . 401 
 
 Burden of proving " 401,402,403 
 
 As applicable to children " . . 404, 405 
 
 consent of children " .... 405 
 
 Intoxication as affecting " 406 and note
 
 IXDKX. 
 
 IOI3 
 
 Contributory Negligence — Continued. 
 
 Husband performing duties as such not 
 
 agent of wife Instructions, 
 
 Of passenger " . . 
 
 alighting from train " . . 
 
 By continued use of dangerous agencies . . " . . 
 Considered with reference to directions 
 
 of master " . . 
 
 Of child climbing over train obstructing 
 
 street crossing " . . 
 
 Of person rescuing another from danger . . " . . 
 
 In boarding street car " . . 
 
 544. 545. 
 Consolidation. 
 
 Of actions Entries, . . 
 
 Constitutionality. 
 
 Of law determined Entries, . . 
 
 Contempt. 
 
 Summarily punishing, in presence of 
 
 court Entries, . . 
 
 Instituting proceedings " ... 
 
 Upon filing of charges " ... 
 
 Rule for, allowed against purchaser of 
 
 real estate " ... 
 
 Order to pay costs in rule for, for failure 
 
 to pay purchase money or stand 
 
 committed " ... 
 
 For failure to pay temporary alimony, 
 
 requiring defendant to appear . . . 
 ( Ordering accused brought into court . . 
 Upon hearing, finding defendant guilty . 
 Allowing parties to purge themselves of 
 Rule to show cause, injunctions .... 
 
 Contract. 
 
 Holding, valid Entries, . 
 
 Copies. 
 
 Substituted for original papers lost , . . Entries, . 
 entry of filing " . . 
 
 Corporation — See Quo Warranto. 
 
 Service upon, authorized Entries, . 
 
 < tasting, of franchise " . . 
 
 Corporations, Dissolution of — See Quo Warranto, 
 olvent, appointment of referee . . .Entries,, 
 dissolving, upon rep< »rt 1 il ap- 
 pointment of receiver to wind up 
 affairs " . . 
 
 No. 
 
 ■ • 409 
 
 . . 422 
 
 • • 429 
 . . 462 
 
 • • 463 
 
 . . 483^ 
 
 ■ • 487 
 
 546, 548 
 . . 821 
 
 . 1121 
 
 1032 
 1033 
 1034 
 
 I035 
 
 1036 
 
 • I037 
 
 • 1038 
 
 • 1039 
 . 1040 
 
 13, 1 1 19 
 
 947 
 
 792 
 794 
 
 786 
 1 192 
 
 [04] 
 
 1042
 
 ioi4 
 
 INDEX. 
 
 Corporations, Dissolution of — Continued. 
 
 form of report of referee Entries, 
 
 form of report of receiver " . 
 
 final entry allowing report of receiver . " . 
 Of masonic mutual benefit association, 
 distribution of funds in hands of 
 
 company ... 
 
 In quo warranto, see Quo Warranto. 
 
 Corroboration. 
 
 Of testimony of accomplice Instructions, 
 
 Costs. 
 
 On motion for security Entries, . . 
 
 For additional security " ... 
 
 of dismissal for failure to give " ... 
 
 On motion to retax " ... 
 
 County Official. 
 
 Liability of, for negligence Instructions, 
 
 of county commissioners " . . 
 
 Court. 
 
 Duty of, to give the law Instructions, 
 
 May sum up the evidence " . . 
 
 Crossings — See Railroad Crossings. 
 
 Custody — See Divorce and Alimony, Habeas Corpus. 
 
 Damages. 
 
 Recoverable in false imprisonment 
 Compensation and exemplary . . 
 
 Damage, Measure, in Negligence Cases. 
 
 In personal injury Instructions, 
 
 medical attendance 
 
 interest 
 
 injury to minor 
 
 for death, widow and children as bene- 
 ficiaries 
 
 for death of young man 
 
 of child eleven years old 
 
 Duty of injured to care for himself 
 
 Employment of physician as affecting . . . 
 Defense on account of physical condition 
 
 of injured 
 
 Amount of compensation 
 
 For injury to wife 
 
 To husbsnd and children for death of wife 
 
 No. 
 
 1043 
 1044 
 
 1045 
 
 1046 
 
 6, note 
 
 849 
 850 
 
 851 
 
 852 
 
 506 
 506 
 
 . Instructions, . . 197 
 ..".... 197 
 
 520 
 520 
 520 
 521 
 
 522,523,524 
 
 524 
 526 
 
 527 
 527 
 
 528 
 529 
 530 
 53i 
 
 Dangerous Employment. 
 
 Duty of persons employing men in 
 
 Instructions, . . 511
 
 INDEX. 
 
 TOI5 
 
 Death — See Revivor. 
 
 Sentence Entries, 
 
 Warrant " . 
 
 Xo. 
 
 • 1348 
 I348 1 , 
 
 Death by Wrongful Act. 
 
 For death by homicide Instructions, . . 
 
 1 15, and note 
 
 what is excusable homicide 
 
 right of self-defense 
 
 In falling from train 
 
 From negligently carrying gun 
 
 Authorizing administrator to compro- 
 mise Entries, 
 
 Apportioning money in 
 
 
 
 116 
 
 
 
 117 
 
 
 
 427 
 
 
 499 
 
 , 500 
 H36 
 
 437, 
 
 and 
 
 note 
 
 Declarations — See Evidence, Deeds. 
 
 Deeds. 
 
 Execution under duress Instructions, 
 
 Capacity to make 
 
 evidence as to 
 
 declarations of grantor 
 
 Covenant against encumbrances 
 
 when broken 
 
 what constitutes breach 
 
 damages recoverable 
 
 Record, evidence as to 
 
 IIQ, 
 
 Default Judgment. 
 
 Ordinary form of 
 
 Enforcement of answers to interroga- 
 tories by 
 
 Upon failure to answer 
 
 When action is tor damages 
 
 Appointing referee or master to assess 
 
 damages 
 
 upon report 
 
 tnent of damages to jury 
 
 A> against one defendant 
 
 Entries, 
 
 11S 
 185 
 • • 185 
 . . 119 
 . . 120 
 120. note 
 . . 120 
 and note 
 . . 184 
 
 95i 
 
 Defects. 
 
 In streets, see Si) 
 
 In machinery Instructions, 
 
 statute relating to railroads " . . 
 
 injury to employee from " . . 
 
 burden ol proof as to " . . 
 
 duty oi company as to inspection ....".. 
 
 Defective Gun. 
 
 Injury from Instructions, . . 
 
 Defective Machinery — St > />> i< < /v \fasU > and Servant. 
 
 806 
 807 
 953 
 
 948 
 
 040 
 95o 
 952 
 
 1.66 
 1.66 
 
 ,oo 
 
 400 
 
 \''7 

 
 ioi6 
 
 INDEX. 
 
 Definite and Certain. No. 
 
 On motion to make Entries, . . 791, 799 
 
 Demand and Notice — See Bills and Notes. 
 
 Demurrage — See Railroad Company. 
 
 Demurrer — See Leave. 
 
 Sustaining, to petition, leave to amend . Entries, .... 803 
 
 not final order " ... 803, note 
 
 Overruling, to petition, leave to answer . . " 804 
 
 not final order . . . " ... 804, note 
 
 Sustaining, and dismissing action .... " 807 
 
 Depositions. 
 
 On motion to strike, from files Entries, .... 820 
 
 Upon exceptions to ... 924, 925 
 
 Desperate Claims and Stocks — See Assignment for Creditors. 
 
 Ordering filed for heirs, etc Entries, .... 1422 
 
 Ordering private sale of .... 1423 
 
 Destruction of Property — See Insurance, Larceny. 
 
 Disbarment. 
 
 Proceedings Entries, . 
 
 Discharge. 
 
 Of accused on failure to prosecute . . . Entries, . 
 
 Discharging Jury. 
 
 On account of sickness of juror . . . .Entries,. 
 
 When unable to agree 
 
 In criminal case under R. S. Sec. 7313 . . " . . 
 
 Dismissal. 
 
 Of action for want of parties Entries, . 
 
 for failure to give security for costs . . " . . 
 for want of prosecution " . . 
 
 Distribution — See Accounts, Insolvent Estates. 
 Ordering, to heirs upon giving bond . . Entries, . 
 
 Of filing petition to enforce 
 
 ordering service by publication .... 
 
 ordering necessary parties in 
 
 of judgment upon 
 
 when money paid to attorney in fact . 
 Of notes in kind 
 
 Divorce and Alimony. 
 
 Ordering personal service of summons, 
 
 etc., out of state Entries, 
 
 Authorizing service by publication .... " . 
 
 Allowance of, temporary restraining or- 
 der on filing petition 
 
 1017, 1019 
 
 . . . 1295 
 
 • 863, 1339 
 . . . 869 
 
 . . . 874 
 
 771 
 936 
 937 
 
 • • • 1435 
 
 . . . 1480 
 
 . . . 1481 
 
 . . . 14S2 
 
 1483, 1484 
 
 . . . 1484 
 
 . . . 1476 
 
 1047 
 1048 
 
 1049
 
 INDEX. IOI7 
 
 Divorce and Alimony — Continued. No. 
 
 Allowance of temporary alimony .... Entries, .... 1050 
 
 of additional alimony, pendente lite . . . " 105 1 
 
 of alimony out of salary " 1052 
 
 Ordinary decree for divorce " 1053 
 
 Withdrawal of answer and reply, hearing 
 
 upon petition and evidence " 1054 
 
 Where service had by publication .... " 1055 
 
 Decree upon answer and cross petition, 
 
 when contested " 1056 
 
 Awarding custody of child to mother, en- 
 joining husband " 1057 
 
 Awarding exclusive custody to one, en- 
 joining interference " 1058 
 
 Decreeing divorce where contract made 
 
 dividing property " 1059 
 
 Allowance of alimony in realty, also 
 
 money " 1060 
 
 Making alimony charge on land " 1061 
 
 Divesting inchoate right of dower when 
 
 alimony paid " 1062 
 
 Decree settling property interest, restor- 
 ing to each their property " 1063 
 
 Divorce refused, alimony granted plain- 
 tiff for children, etc " 1064 
 
 Decree for alimony by circuit court, 
 
 where money to be invested " 1065 
 
 Documents — See Admission and Ins pee turn. 
 
 Dogs — See Animals 
 
 Dower. 
 
 Of judgment for assignment of dower . Entries, .... 1066 
 Confirmation of report of commissioners 
 
 and return of sheriff " 1067 
 
 Of imbecile, adjustment or sale of . . . . " 1529 
 
 Drainage, See Eminent Domain. 
 
 Drunkard. 
 
 Appointment of guardian Entries, .... [537 
 
 Drunkenness. 
 
 As an excuse for crime Instructions, . . 6b 
 
 Duress. 
 
 cution of <\w<\ under Instructions, . . 118 
 
 Compromise of loss by fire obtained by ... " .... 275 
 
 Dynamite. 
 
 Blasting with Instructions, 501, 502 
 
 Egress — See Abutting Owner.
 
 ioi8 
 
 INDEX. 
 
 Ejectment — See Adverse Possession, Recovery of Possession 
 Election. No 
 
 Entry requiring Entries, . . 
 
 between two causes " ... 
 
 Election of Widow. 
 
 Ordering citation Entries, . . 
 
 Entry of " ... 
 
 Commission to take " ... 
 
 of return . . . * " ... 
 
 Appointment of person to ascertain rights 
 
 of insane or imbecile " ... 
 
 upon report of commissioner "... 
 
 Elevators. 
 
 Damages for injury from Instructions, 
 
 Owner or lessee liable " . . 
 
 Duty of owner as to construction " " " 
 
 negligent construction " . . 
 
 Embezzlement. 
 
 Venue where laid Instructions, 
 
 By treasurer of board of education " . . 
 
 manner of keeping funds " . . 
 
 deposit in bank . . 
 
 Using funds with intent to repay " . . 
 
 Eminent Domain. 
 
 Appropriation for right of way by rail- 
 road Instructions, . . 
 
 136, 141, 142 
 
 assessment of compensation 
 
 constitutional provisions 
 
 rules for assessing compensation .... 
 
 note on allowance of benefits 
 
 "full compensation" 
 
 opinion evidence as to value 
 
 expert evidence as to value 
 
 how to make up verdict 
 
 construction of railway in highway a 
 
 new use 
 
 Appropriation for telegraph 
 
 Drainage law, object of 
 
 what use justifies taking property for . . 
 
 benefits for cultivation 
 
 burden of proofs as to use 
 
 number of petitioners 
 
 determination of line of ditch 
 
 compensation for lands taken 
 
 view of route by jury, purpose of . . . 
 Difference between compensation and 
 
 damages " .... 150 
 
 775 
 776 
 
 i37i 
 1372 
 
 1373 
 
 1374 
 
 1375 
 1376 
 
 130 
 130 
 : 3i 
 131 
 
 132 
 i33 
 133 
 134 
 135 
 
 n 
 
 
 . . 141 
 
 (( 
 
 
 • • 136 
 
 " 
 
 
 • • 137 
 
 " 
 
 
 137, note 
 
 " 
 
 
 . . 138 
 
 (< 
 
 
 • • 138 
 
 
 
 • • 139 
 
 
 
 . . 140 
 
 11 
 
 
 . . 142 
 
 
 
 • • 143 
 
 
 
 . . 144 
 
 " 
 
 
 • • 145 
 
 tt 
 
 
 . . 146 
 
 " 
 
 
 . . 147 
 
 " 
 
 
 . . 148 
 
 " 
 
 
 . . . 149 
 
 
 
 . . 150 
 
 " 
 
 
 . . . 151
 
 INDEX. IOI9 
 
 Employer and Employee — See 11 "or km an and Unions. No. 
 Homicide by employee while protecting 
 
 himself from riotous strikers . . . Instructions, . . 232 
 
 Rights of .... 336 
 
 Entailed Estates. 
 
 Sale of Entries, .... 1255 
 
 confirmation " 1255 
 
 Error. 
 
 Granting leave to file petition in ... . Entries, . . . .1281 
 
 Staying execution in supreme court ... 1282 
 
 Upon motion for supersedeas " 1283 
 
 Requiring bond for stay of execution . . . " 1284 
 
 Affirming judgment of justice 1285 
 
 Revivor of proceeding in " 1286 
 
 In circuit court overruling motion and 
 
 demurrer " 1287 
 
 Affirming proceedings in police court . . 1288 
 
 Of reversal of judgment before mayor . . 1289 
 
 Of affirmance — circuit court 1290 
 
 In circuit court modifying judgment by 
 
 remittitur and affirmance 1291 
 
 Of reversal pointing out specific " 1292 
 
 in supreme court rendering judgment 
 which lower court should have 
 
 rendered " I2 93 
 
 In supreme court on exceptions to court 
 
 of common pleas in criminal case . . " 1294 
 
 Estoppel. 
 
 Defined Instructions, . . 152 
 
 Must cause an injury .... 153 
 
 Intention to mislead " .... 154 
 
 Statements must be acted upon .... 155 
 
 Evidence — See Witness^ Character^ Bills and Notes \ Deeds. 
 Allegations in pleadings requiring proof, Instructions, . . 156 
 General instruction ns to how evidence 
 
 to be considi .... 157 
 
 What is evidence, opening statement, 
 
 dit of wil • • • • • [ 57 
 
 Prepoi lit 158, and note 
 
 there are no degrees " • • 158. note 
 
 Declai itions, civil cases " .... 159 
 
 and admissions of party to suit .... .... 160 
 
 in criminal 1 ases, how considered .... 
 
 against interest 
 
 meaning and intention depends on manner 
 mduct and sayings of accused not 
 
 re confession " • • 163 not* 
 
 161 
 162 
 [62
 
 1020 
 
 INDEX. 
 
 Evidence — Continued. 
 
 Inferences from omission to produce evi 
 
 dence 
 
 Circumstantial, defined 
 
 Negative and affirmative, how considered . 
 Expert testimony as to personal injury . . 
 Experts, weight to be given 
 
 medical testimony as to human blood 
 
 Accomplice, testimony of 
 
 Previous good character in criminal cases . 
 
 in homicide 
 
 As to reputation 
 
 Conduct importing guilt 
 
 Testimony as to recognition of accused . . 
 
 Proof of alibi 
 
 Flight of defendant, how considered . . . 
 Improper unanswered questions, con- 
 sideration of 
 
 Facts stated in affidavit for continuance 
 Conflict in testimony, how treated . . . . 
 Record, of deed 
 
 as to due execution 
 
 mental capacity of grantor 
 
 Prima facie, meaning 
 
 Parol evidence to vary written instruments 
 
 Reasonable doubt 
 
 Of value of property as reflecting on 
 charge of destruction of property . . . 
 
 As to resistance in rape 
 
 Declarations of prosecuting witness in rape 
 
 Necessary to prove conspiracy 
 
 Declarations of owner 
 
 No. 
 
 Instructions, 
 
 163, and note 
 167, 168, 169 
 
 170, and note 
 .... 171 
 .... 172 
 .... 173 
 
 174, and note 
 .... 175 
 .... 248 
 
 175, note, 176 
 177, and note 
 
 . 178 
 
 44, 
 
 592, and 
 
 Examining Court. 
 
 Of discharge by Entries, 
 
 Fixing recognizance by " . 
 
 Execution — See Aid of Execution. 
 
 Authorizing sheriff to appraise and sell 
 
 personal property at private sale . . Entries, 
 
 Ordering sheriff to sell stock of goods 
 levied upon, also to collect book ac- 
 counts " . 
 
 Upon motion to set aside appraisement 
 
 of real estate " . 
 
 overruling " . 
 
 Publication in German paper dispensed 
 
 with " . 
 
 Ordering publication in Bohemian paper . " . 
 
 Confirming sale " . 
 
 Ordering master commissioner to convey . " . 
 
 Ordering sale on premises " . 
 
 179 
 180 
 
 181 
 182 
 
 183 
 184 
 184 
 
 185 
 184 
 186 
 187 
 
 276 
 note 
 
 595 
 604 
 129 
 
 1299 
 
 959 
 
 960 
 
 961 
 962 
 
 963 
 964 
 
 965 
 966 
 967
 
 INDEX. 
 
 I02I 
 
 No. 
 
 968 
 
 969 
 970 
 970 
 972 
 
 973 
 974 
 
 . 976 
 977 
 
 1283 
 
 • M32 
 -See Sale 
 
 975 
 1282, 
 
 Execution — Continued. 
 
 Ordering successor of sheriff to make deed, Entries, 
 
 Subrogating purchaser to right of creditor 
 when title imperfect 
 
 Vacating satisfaction of judgment .... 
 
 Ordering new appraisement, for sale on . . 
 
 Directing amount at which to be sold . . 
 
 Ordering reappraisement and reassign- 
 ment of homestead 
 
 Authorizing, against person 
 
 discharging debtor 
 
 Upon motion to grant stay of 
 
 Stay of, upon error 
 
 Against administrators authorized .... 
 
 Executor's and Administrator's Sale of Realty- 
 
 of Real Estate. 
 
 Executors and Administrators. 
 
 Appointment of executor, appraisement 
 
 dispensed with Entries, . 
 
 Appointment of widow or next of kin . . 
 Ordering citation to widow and next of kin 
 Appointment upon declination of widow, etc. 
 Appointment of special administrator . . . 
 
 of administrator with will annexed . . . 
 
 of administrator dc bonis non 
 
 Resignation of 
 
 Removal of 
 
 Authorizing execution against 
 
 Expert — St > Ei icL nee. 
 
 Explosion. 
 
 Injury from, of natural gas Instructions, 508, 509 
 
 510 
 
 5io 
 
 380 
 
 381 
 
 382 
 
 383 
 
 3*4 
 385 
 386 
 388 
 
 389 
 
 432 
 
 Injury from, of boiler 
 
 Raises presumption of negligence " . . 
 
 Express Company — See Common Carriers. 
 
 Duty of, as to delivery of goods . . . .Instructions, 
 
 False Claims. 
 
 Defined Instructions, 
 
 Making out and presenting to public 
 
 officers " . . 
 
 Legal knowledge of " . . 
 
 Intent " . . 
 
 False and Fraudulent Representations. 
 
 Explained and defined Instructions, 
 
 Without knowledge of truth or falsity ..." 201, 
 Puffing and commendations " . . 
 
 84 
 
 Mibt be material 
 
 [88 
 
 INN 
 [89 
 I90 
 
 200 
 
 note 
 .... 202 
 202, 204, 205 
 
 and
 
 1022 
 
 INDEX. 
 
 False and Fraudulent Representations — Continued. 
 
 Must have misled, been relied upon, etc. Instructions, 202. 
 
 By concealment 
 
 Liability of corporation for . 
 
 Of agent in purchase of goods 
 
 concealment 
 
 Of mercantile agency .... 
 Sales of property 
 
 203, 
 
 False Imprisonment. 
 Defined 
 
 Instructions, 
 
 What constitutes arrest and imprisonment 
 Arrest by officer without warrant . . . . 
 Liability of several arresting officers . . . 
 Damages recoverable 
 
 i*3. 
 
 Felony and Misdemeanor. 
 
 Distinction 
 
 Instructions, 
 
 No. 
 
 204 
 212 
 209 
 211 
 
 212 
 213 
 214 
 
 191 
 
 192 
 
 196 
 
 197 
 
 i94 
 
 Fellow Servants. 
 
 Assumption of negligence of . . . 
 
 exceptions when incompetent persons 
 employed 
 
 by brakeman 
 
 Who are 
 
 when one placed in control of another 
 
 rules for determining 
 
 brakeman and foreman 
 
 engineer and other employees .... 
 
 conductor and brakeman 
 
 operator and train dispatcher .... 
 
 train dispatcher and conductor .... 
 
 relation between engineer and train 
 dispatcher 
 
 engineer and fireman 
 
 brakeman and engineer 
 
 injury to brakeman coupling cars . . 
 
 acts done by servant by request of . . 
 
 Files. 
 
 Upon motion to strike from Entries, 
 
 Motion stricken from the " . 
 
 To strike from, for want of verification . . " . 
 To strike depositions from " . 
 
 Finding. 
 
 Of law and fact 
 
 Instructions, . . 
 
 439,440, 441 
 
 439- 44i 
 442 
 444 
 444 
 445, and note 
 
 445 
 note 
 
 445 
 
 Fire. 
 
 From locomotive 
 
 Entries, 
 
 Instructions, 
 
 447 
 448 
 
 449 
 
 450 
 45i 
 452 
 453 
 454 
 
 798 
 801 
 802 
 820 
 
 880 
 
 498
 
 INDEX. IO23 
 
 Flagmen. No. 
 
 At railroad crossings Instructions, 480,481 
 
 Flight. 
 
 Of accused, how considered . . . . Instructions, 180, and note 
 
 Foreclosure of Liens. 
 
 Decree and order of sale Entries, . . . .1072 
 
 where personal judgment rendered ... 1073 
 
 upon petition, amendment, answer, re- 
 ply, other defendants in default . . " 1074 
 
 finding party not entitled to personal 
 
 judgment " io 75 
 
 upon cross petition, finding, and decree 
 for plaintiff and cross petitioner, 
 
 postponing question of priorities . . . 1076, 1086 
 
 Overruling demurrer to answer and cross 
 
 petition and decree io 77 
 
 Appraisement set aside, new one ordered . . . 1078, 1080 
 
 Sale set aside io 79 
 
 upon motion of purchaser 1081 
 
 New appraisement ordered when prem- 
 ises twice offered T °82 
 
 Determining priorities, distribution, find- 
 ing of fact and law, notice of appeal 1083 
 
 Sale confirmed, deed and distribution 1084, 1089 
 
 short entry Io8 9 
 
 same — subrogating purchaser ..... 1090 
 
 decree on answers and cross petition of 
 several defendants against princi- 
 pal debtor, distribution, etc 1085 
 
 Liens transferred to fund, to be deposited 
 
 in bank " " |S 7 
 
 Of mechanic's lien 1088,1095 
 
 Of several decree in favor of grantee as- 
 suming debt, compelled to pay defi 
 ciency, recovery against several pre- 
 ceding grantees assuming, etc 1091 
 
 Modification of former decree premises 
 
 to be sold in inverse alineation ..." 1092 
 
 ordering premises sold in parcels, etc. . 1093 
 
 ( )f chattel mortgage " ],H >\ 
 
 Forfeiting. 
 
 Recognizance Entries,. . . . [304 
 
 Fraud — See Fraudulent Conveyances. 
 
 What constitutes Instructions, . . 207 
 
 Xr Mined " .... 
 
 [98 and note, 221. 2 "^ 
 Ren 01 Instructions, 1
 
 1024 
 
 INDEX. 
 
 Fraud — Continued. 
 
 contract must be rescinded and tender 
 
 made Instructions, 
 
 money or thing must be returned . . . . " 
 
 On an old person, how proven " 
 
 Ingredients of actionable " 
 
 intention to deceive " 
 
 pu fifing and commendation " 
 
 By concealment " 
 
 In purchase of goods " 
 
 Liability of principal for acts of agent ... " 
 
 in purchase of goods " 
 
 concealment " 
 
 In purchase of goods by insolvent " 
 
 replevin by vendor from assignee . . . . " 
 Effect of mortgage upon goods fraudu- 
 lently purchased " 
 
 Retention of possession of mortgaged 
 
 goods by mortgagor, effect of " 
 
 Transfer of property by one in debt .... " 
 
 In sale of horses " 
 
 vendor's knowledge of defects, duty to 
 
 give notice " 
 
 Material representations assumed to be 
 
 within knowledge " 
 
 In sale of land, preventing examination . . " 
 In pursuading parent to make disposi- 
 tions to son " 
 
 Representations of mere opinion not actionable " 
 
 May be committed by remaining silent ... " 
 
 How proved, kinds of evidence " 226, 
 
 preponderance of evidence only necessary . " . . 
 
 Fraudulent Conveyance. 
 
 Deed set aside Entries, . . 
 
 Set aside in action by creditor, prop- 
 erty ordered sold " ... 
 
 Declaring deed not fraudulent " ... 
 
 By deceased, set aside at suit of adminis- 
 trator, premises ordered sold .... " ... 
 
 To set aside, and marshal liens " ... 
 
 No. 
 
 . . 206 
 
 . . 206 
 . . 200 
 202, 204 
 . . 202 
 . . 202 
 • • 203 
 207, 208 
 210, 211 
 . 21 1 
 212 
 214 
 214 
 
 215 
 
 216 
 217 
 218 
 
 219 
 
 221 
 
 222 
 
 224 
 225 
 225 
 and note 
 226, note 
 
 . 1096 
 
 1097 
 1098 
 
 1071 
 1136 
 
 Furnace Cooler. 
 
 Injury from negligent construction and 
 
 use of Instructions, . . 507 
 
 Gambling Contracts. 
 
 For sale of grain upon future delivery . Instructions, 227, 228 
 Intention of parties governs " .... 227 
 
 Garnishee — See Attachment. 
 
 German Paper — See Execution.
 
 INDEX. 
 
 IO25 
 
 Grand Jury. Xo. 
 
 General charge to Instructions, 229 
 
 229 
 
 evidence to warrant indictment 
 
 looking at guilt and innocence 
 
 scope of inquiry 
 
 oath explained 
 
 secrecy must be observed " 22c 
 
 malice and improper influences . . " ... 
 
 religious or political influences . . " ... 
 
 relations of prosecuting attorney to "... 
 Ordering venire for Entries, 
 
 upon return, and impaneling " . 
 
 Form of oath to foreman " . 
 
 oath administered to remainder ....". 
 
 to witnesses " . 
 
 When juror sick, another takes place ... " . 
 
 Of report by " . 
 
 Ordering capias for persons indicted . . . " . 
 
 Guardian — See Sale of Real Estate. 
 
 Of appointment Entries, 
 
 where mortgage given in lieu of bond . . " . 
 
 filing exceptions to bond " . 
 
 hearing " . 
 
 dispensing with bond " . 
 
 Filing motion for removal " . 
 
 removing " . 
 
 Of filing request by surety to be released . " . 
 
 releasing " . 
 
 of filing new bond, releasing " . 
 
 removal, where bond not given ....". 
 Removal when ward removes to another 
 
 state " . 
 
 "I filing account by resident guardian, 
 
 authority to pay to foreign ....". 
 
 Of lunatic, idiot or imbecile, appointment . " . 
 
 authorizing sale or adjustment of dower " . 
 
 authorizing, to complete contract . . . " . 
 
 filing petition to improve lands ....". 
 
 appointing freeholders " . 
 
 final entry " . 
 
 Of drunkards, appointment " . 
 
 A< counts of " 
 
 229 
 
 229, and note,/. 154 
 229 
 
 229,/. 156 
 
 . . . 220 
 . . . 229 
 
 • • • 1305 
 . . . 1306 
 
 • • • 1307 
 . . . 1308 
 1309, 1310 
 
 • • • 1311 
 
 • • • 1312 
 
 • • • 1313 
 
 1495 
 1496 
 
 1497 
 1498 
 1499 
 1500 
 1 501 
 1502 
 1503 
 1504 
 1505 
 
 1506 
 
 '5.v\ 
 
 '507 
 [528 
 1529 
 153 J 
 [532 
 ' 533 
 '534 
 '.S3 7 
 [539 
 
 Guardian Ad Litem. 
 
 Appointment Entries, 
 
 Guardian and Ward. 
 
 I,' 1 * of wards lands Entries, 
 
 hearing of petition, appointing free- 
 holders to report opinion " . 
 
 final hearing on report, lease authorized . " . 
 Go 
 
 7": 
 
 
 [520
 
 1026 
 
 INDEX. 
 
 Entries, 
 
 499 
 500 
 
 . . 1 102 
 
 • .1103 
 . .1104 
 
 • -1105 
 
 1 106, 1 109 
 
 1 107, 1 108 
 
 I340 
 
 Guardian and Ward — Continued. 
 
 lease for gas and oil, petition filed 
 
 final hearing 
 
 approval of lease for oil . . . . 
 
 lease for mining 
 
 report of royalty, bond fixed . . 
 Indenture of ward 
 
 Gun. 
 
 Injury from defective Instructions, 
 
 negligently carried " . . 
 
 Habeas Corpus. 
 
 Granting writ Entries, . . 
 
 Refusing allowance " ... 
 
 Continuing cause — remanding prisoner . . " ... 
 Continuance when custody of minor in- 
 involved " ... 
 
 Awarding custody of child on final hearing 
 Remanding prisoner on final hearing . . . 
 
 Habitual Criminal. 
 
 Sentence of Entries, .... 
 
 Harboring. 
 
 Female of good repute in house of ill 
 
 fame Instructions, . . 
 
 Hatchtender. 
 
 Injury to, while unloading cargo .... Instructions, . . 
 assumption of risks " .... 
 
 Hazardous Employment. 
 
 Employment of children Instructions, 411 
 
 statute as to " .... 
 
 duty of employer 
 
 Operation of railroad is 
 
 Willfully permitting children to be en- 
 dangered while engaged in .... 
 
 Homicide — See Death by Wrongful Act. 
 
 As to gravity of charge Instructions, 
 
 Complete charge, as to first degree 
 
 plea of not guilty explained 
 
 presumption of innocence 
 
 evidence must exclude every reason- 
 able doubt 
 
 reasonable doubt explained 
 
 elements to be proven 
 
 first degree includes lesser degrees .... 
 may be found guilty of manslaugh- 
 ter, when 
 
 may be guilty of assault and battery, when 
 
 No. 
 1522 
 1523 
 : 524 
 1525 
 1526 
 
 1527 
 
 662 
 
 464 
 464 
 
 412 
 
 . . 412 
 
 413.414 
 . 414 
 
 • 4i5 
 
 etions, . 
 
 
 230 
 
 
 
 231 
 
 
 
 231 
 
 
 
 231 
 
 
 
 231 
 
 ' • 231 
 
 -A 
 
 159 
 
 ' • 231 
 
 >A 
 
 159 
 
 ' 231, pp. 
 
 160 
 
 ,163 
 
 
 A 
 
 164 
 
 
 P- 
 
 164
 
 INDEX. IO27 
 
 Homicide — Continued. Xo. 
 
 murder and manslaughter defined . Instructions, 23 i,/>. 160 
 
 . 231,/). 161 
 
 . 231,/). 161 
 
 . 231,^. 162 
 
 231, pp. 162, 239 
 
 • • • -o- 
 
 • 235, 240 
 
 • 237, 238 
 
 . . . 240 
 241, 242, 247 
 
 ... 244 
 
 what essential to conviction to first degree 
 
 act feloniously clone, explained 
 
 use of deadly weapon, inferences from . . 
 person presumes natural consequences of act. 
 
 deliberation and premeditation 
 
 231, pp. 162. 236, 23S 
 
 malice explained Instructions, 
 
 231, pp. 162, 233 and note, 234 
 defendant aiding and abetting . . . . Instructions, 231,/. 165 
 Right of employee to protect himself 
 
 against riotous strikers 
 
 Adequate or reasonable provocation .... 
 " Purpose." "unlawful," " feloniously." defined 
 
 Manslaughter defined separately 
 
 Justifiable, when 
 
 When in sudden quarrel ........ 
 
 Evidence of previous character and repu- 
 tation in " .... 248 
 
 Horses. 
 
 Fraud in sale of, resulting in injury . . Instructions, . . 218 
 vendor's knowledge of defects, duty to 
 
 give notice " .... 219 
 
 House of 111 Fame. 
 
 Defined Instructions, . . 662 
 
 Harboring female of good repute in .... " .... 662 
 
 Good repute for chastity defined " .... 663 
 
 Husband and Wife — See Alienation of Affection. 
 
 Idiot — See Guardian ami Ward. 
 
 Ill Fame — See House of III Fame. 
 
 Imbecile — See Guardian and Wind. 
 
 Impaneling See Trial by Jury. 
 
 Jury, and partial hearing Entries, .... 857 
 
 Jury in criminal case other than capital . . " [333 
 
 in capital case " 1345 
 
 Imputed Negligence. 
 
 Doctrine of, in Ohio Instructions, . . )..; 
 
 it not imputed to child .".... |.o8 
 
 Independent Contractor. 
 
 Rule governing fully explained . '. . .Instructions,. . 508 
 Duty of lot owners where excavation in 
 
 sidewalk is made by " . . 568, 569
 
 1028 INDEX. 
 
 Indictment. No. 
 
 Election between two Entries, .... 1314 
 
 where joint " 1315 
 
 On motion to quash " 1325 
 
 Indorsers. 
 
 Demand and notice, to hold Instructions, . 62, 63 
 
 waiver " 62 
 
 notice how given " ... 62, 63 
 
 Infants. 
 
 Duty of employer of Instructions, . . 413 
 
 Upon motion to set aside judgment 
 
 against Entries, .... 1816 
 
 Setting deed of, aside " 11 10 
 
 Injunction — See also Assessments. 
 
 Granting temporary restraining order 
 
 without notice Entries, . . . . mi 
 
 to prevent sale or incumbrance .... " mi 
 
 in divorce, so modified as to allow in- 
 cumbrance " 1 1 16 
 
 Directing reasonable notice " 11 12 
 
 Granting rule to show cause why defend- 
 ant should not be punished as for 
 
 contempt " . . 1113,1119 
 
 Upon hearing of charge for violation ..." 11 14 
 
 Requiring additional security to be given . " n 15 
 
 Against breach of contract in restraint of 
 
 trade " 1117 
 
 perpetual, same " n 18 
 
 Against use of name " 11 20 
 
 Declaring law under which assessments 
 made unconstitutional, assessments 
 
 invalid, etc " 1121 
 
 Against nuisance " 11 22 
 
 mandatory, against 1123 
 
 Finding for defendants, temporary, dissolved " . . 1124,1125 
 Demurrer sustained, dissolved, petition 
 
 dismissed " 1126 
 
 Insanity. 
 
 Defined Instructions, . . 249 
 
 As a defense " 250 
 
 Burden of establishing " 251 
 
 Of defendant suggested, order for jury to 
 
 try Entries, .... 1316 
 
 impaneling jury to try 1317 
 
 return of verdict finding sane . . . . " 13 18
 
 INDEX. 
 
 IO29 
 
 No. 
 
 Insolvent Estates. 
 
 Appointing commissioners to receive 
 
 claims Entries, . 
 
 Allowing further time to present claims . . 
 Hearing upon appeal from commissioners . 
 
 Of filing petition for appeal 
 
 of hearing 
 
 further hearing and allowance 
 
 Ordering distribution according to report 
 
 of commissioners 
 
 Declaring estate insolvent, authorizing 
 administrator or executor to receive 
 
 claims 
 
 of hearing of exceptions to allowance 
 
 of claim 
 
 Inspection — See Admission and Inspection of Documents. 
 
 Ordering, and copy Entries, . . . . 918 
 
 Insurance, Fire. 
 
 What must be shown to recover for loss, Instructions, 
 
 265, 268, 269 
 
 Loss within exceptions .... 265 
 
 Waiver of conditions by agent 
 
 266 and note, 267 
 how conditions may be waived . . . Instructions, 266. note 
 
 i486 
 1487 
 14SS 
 14S9 
 1490 
 1 49 1 
 
 1492 
 
 1493 
 
 1494 
 
 mere silence by company 
 
 Notice and proof of loss 
 
 Failure to comply with conditions by 
 
 reason of destruction of policy .... 
 Duty of agent to furnish information on 
 
 application 
 
 Burden of proof 
 
 Insurance of partnership property 
 
 partnership dissolved when policy issued . 
 Conditions as to ownership of property . . . 
 
 Representation as to ownership 
 
 Conditions as to vacancy 
 
 brea< b ol condition as to 
 
 when a building is vacant 
 
 waiver of forfeiture on account of violation 
 
 burden of proof as to 
 
 Total and partial loss explained 
 
 Compromise of loss obtained under duress . 
 Eviden< e ol value of property as rent 
 
 ,,11 1 barge of desti uction ol prop 
 
 erty 
 
 Cancellation of policy, whether there was . . 
 rmined by understanding and intention 
 
 notice of intention 
 
 Res< ission of policy 
 
 p a 1 otations as to value of property 
 
 267 
 267 
 
 268 
 
 268 
 269 
 270 
 270 
 284 
 270 
 
 271 
 271 
 
 -'7-' 
 273 
 273 
 274 
 27S 
 
 ~'7<» 
 277 
 
 -77 
 ~^77 
 
 27s 
 
 279
 
 IO3O INDEX. 
 
 Insurance, Fire — Continued. No. 
 
 as to other insurance Instructions, . . 281 
 
 .... 279 
 280, and note 
 
 .... 280 
 
 .... 281 
 
 .... 282 
 
 .... 283 
 
 burden of proof as to 
 
 Fraudulent concealments or misrepresentations 
 fraud and false swearing must be in- 
 tentional 
 
 good faith of insured, how considered . . 
 
 return of premium 
 
 Fraudulent proofs of loss 
 
 Defense as to provision requiring produc- 
 tion of books 
 
 that oil and petroleum stored contrary 
 
 to policy ... 
 
 drawing oil at night 
 
 that fire procured by willful act 
 
 Of steamboat, seaworthiness of, negli- 
 gence of owners, agent 
 
 285 
 
 286 
 286 
 287 
 
 Insurance, Accident. 
 
 Proof of claim Instructions, . . 289 
 
 What necessary to enable recovery for death " . . . . 290 
 
 Consideration for assignment " .... 291 
 
 Insurance, Life. 
 
 Application for, statements, how treated, Instructions, . . 292 
 
 Representations as to health " .... 292 
 
 Misrepresentations made by insured .... " .... 293 
 
 as to health " . . . . 293 
 
 what constitutes waiver of " . . . . 294 
 
 Intent. 
 
 Proof of Instructions, . . 190 
 
 Interpleader. 
 
 Order for Entries, . . . .1127 
 
 Directing money paid in court " 1128 
 
 Directing property delivered to receiver 
 
 appointed " 11 29 
 
 Substituting attachment or execution 
 
 creditor in lieu of officer " 1130 
 
 Discharging defendant upon payment of 
 
 money or delivery of property . . . . " 1131 
 
 Where third person fails to appear .... " 1132 
 
 Interrogatories. 
 
 Answers to, enforced by default judgment, Entries, . . . . 806 
 Intoxicating Liquor. 
 
 Action by wife against person furnishing, Instructions, 252, 253 
 
 liability of person furnishing " .... 252 
 
 evidence of sales made after suit " .... 253 
 
 what constitutes a sale " • . 256, 260
 
 256, 258 
 
 • • 257 
 
 • • 259 
 26o, 261 
 
 . . 263 
 
 . . 262 
 . . 264 
 
 INDEX. IO3I 
 
 Intoxicating Liquor — Continued. No. 
 
 selling and furnishing to habitual 
 
 drunkards Instructions, . 256 
 
 habitual drunkard defined 
 
 intoxication defined 
 
 Sales within two miles of agricultural fair . . 
 
 what constitutes a sale 
 
 what is an agricultural fair 
 
 What is 
 
 Sales by agent or barkeeper 
 
 Inventory and Appraisement. 
 
 Dispensed with Entries, . 1380, 1390 
 
 Of filing " J399 
 
 Citation to return i4°o 
 
 attachment '•.... 1401 
 
 removal upon failure 14 02 
 
 Of filing exceptions i4°3 
 
 upon hearing " 1 4°4 
 
 reviewing allowance l 4°5 
 
 Ordering appraisement of new assets ... 14 00 
 
 Complaint for concealing assets i4°7 
 
 ordering attachment of person charged . " 1408 
 
 accused ordered committed to jail ... 1409 
 
 not sustaining M 1 " 
 
 finding accused guilty, judgment . ..." 14 11 
 
 Irrelevant Matter. 
 
 Upon motion to strike out Entries, .... 795 
 
 Joinder of Actions. 
 
 Requiring an election Entries, .... 775 
 
 Upon motion to compel plaintiff to elect 
 
 upon which cause he will proceed . . ..... 776 
 
 Joint Obligation. 
 
 Ordering parties in where Entries, .... 774 
 
 Judgmenl on " 943 
 
 Joint use of Railroad Tracks — See Railroad Tracks. 
 
 Judgments — Common Forms. 
 < >i ordinary finding, ordinary indebted 
 
 3 Entries, .... 939 
 
 For defendant, without jury " 94° 
 
 Finding and judgment foi defendant on 
 
 1 ounterclaim " 94 1 
 
 for plaintiff, and also for defendant on 
 
 counterclaim or set-ofl 94 2 
 
 Uponjoinl obligation . . . 943 
 
 Sustaining demurrer to answer, with 
 finding for plaintiff upon petition 
 and evident e " 944
 
 1032 
 
 INDEX. 
 
 Judgments — Common Forms — Continued. 
 
 Non obstante verdicto Entries, . . 
 
 Upon the pleadings ... 
 
 Contract held valid " ... 
 
 Judgments — Suits Upon. 
 
 Rendered in another county, judgment 
 
 and decree on Entries, . . 
 
 When, set up in answer and cross petition . ... 
 
 Judgment and Sentence — See Sentence. 
 
 Jurisdiction. 
 
 On demurrer to answer that property is 
 
 not within Entries, . . 
 
 j ur y — Sec Impaneling, Trial by Jury, Capital Cases. 
 
 Justice of the Peace. 
 
 Affirmance of judgment by Entries, . . 
 
 Ordering additional, elected "... 
 
 Upon intention to contest made known . . ... 
 
 appointment of freeholders to try . . . ... 
 
 of decision ... 
 
 Knowledge — See Legal Knowledge. 
 
 Landlord and Tenant. 
 
 Duty of landlord as to walks about prem- 
 ises Instructions, 
 
 injury from walk, liability . . . 
 
 defects known to injured 
 
 Renting includes what 
 
 Action for rent 
 
 defense that building rendered unfit 
 
 for occupancy by fire 
 
 extent of destruction necessary .... 
 
 Larceny. 
 
 Defined Instructions, 
 
 Grand larceny, essentials to prove 
 
 committed by destruction of property . . 
 What constitutes taking and carrying away . 
 Return of property upon discovery, effect . . 
 Owner voluntarily parting with property . . 
 
 Of lost money, what essential to 
 
 Value of property must be proved 
 
 Law. 
 
 Declared unconstitutional Entries, 
 
 No. 
 
 945 
 946 
 
 947 
 
 "33 
 ri34 
 
 777 
 
 12S5 
 
 1597 
 1598 
 
 1599 
 1600 
 
 295 
 295 
 296 
 
 295 
 
 297 
 
 297 
 297 
 
 298 
 299 
 303 
 300 
 301 
 302 
 304 
 305 
 
 Lease. 
 
 Of ward's premises, see Guardian and Ward.
 
 INDEX. 
 
 I033 
 
 Leave — See Demurrer. 
 
 To answer when motion sustained . . . Entries, . . . 
 To file amended answer, demurrer and 
 
 reply, and overruling demurrer ... . . . 
 
 To file petition in quo warranto ... 
 
 To file petition in error ... 
 
 Legal Knowledge. 
 
 Defined Instructions, 
 
 Legitimacy — See Marriage. 
 
 Libel and Slander. 
 
 Defined Instructions, 
 
 30 6 . 
 
 Words libelous per se • • 
 
 Rights of newspaper, liberty of press . . . 307, 
 
 reasonable criticism by 
 
 publishing information received from others " . . 
 
 made to whom 
 
 Defamatory words must be spoken to 
 
 some person 
 
 Words imputing crime 
 
 Charge of altering a certificate 
 
 What constitutes libel to one in his business . . 
 against one in his business as brick- 
 layer and contractor " 334- 
 
 Slander of candidate for office "(33°) 
 
 by bricklayer's union ' 33-1- 
 
 combination and conspiracy by un- 
 ion to impoverish by circulation 
 
 of libelous circular 
 
 rights of workmen and unions 
 
 Privileged communications 
 
 to member of school board 
 
 reports of judicial proceedings 
 
 report of examining committee of 
 
 county treasurer 
 
 comments, upon reports, with good 
 
 motives 
 
 statements made to officer in discover- 
 ing crime 
 
 Construction of words and understand- 
 ing of meaning by hearers 
 
 Meaning of words for jury 
 
 Malice, kinds of, in 
 
 Effect of adding excusable words 
 
 Damagi , kind 
 
 counsel U-r-,. as 
 
 extent to which published as affecting . . 
 
 measure of, to one in his business .... 
 
 ( harai tei and extent of 
 
 No. 
 
 797 
 
 808 
 1187 
 1281 
 
 189 
 
 307- 328 
 . . 306 
 308, 328 
 
 • • 309 
 . . 310 
 
 311. 3 12 
 
 . . 312 
 
 • • 3i3 
 
 • • 3H 
 . . 328 
 
 and note 
 ,333 "ote 
 and note 
 
 335 
 
 336 
 
 5.3i6 
 
 3 1 5 
 316 
 
 3*7 
 
 318 
 
 JI9 
 
 32* > 
 
 3 -\ 
 321 
 
 7. 3 2 5 
 
 327 
 329. 337 
 
 ■ 33 ( ' 
 
 31 
 
 32 
 
 3"
 
 1034 INDEX. 
 
 Libel and Slander — Continued. No. 
 
 business reputation Instructions, . . 330 
 
 effect of absence of malice " .... 331 
 
 effect of acting upon fairly reliable 
 
 information " .... 331 
 
 mitigating circumstances " .... 331 
 
 aggravating circumstances " .... 331 
 
 effect of agreement to accept retrac- 
 tion of publication . " .... 332 
 
 to circulation' of libelous circulars 
 
 by unions " .... 337 
 
 Liens — See Foreclosure. 
 
 Distributing lienholders pro rata .... Entries, . . . .1135 
 
 Upon petition to marshal, etc " 11 36 
 
 also to set aside fraudulent conveyance . " 1136 
 
 Loss — See Insurance. 
 
 Total or partial, in insurance Instructions, . . 274 
 
 Lunatic — See Guardian and Ward. 
 
 Machinery, Sales and Warranty — See Sales, Warranty. 
 
 Malpractice. 
 
 Care required of a physician Instructions, . . 345 
 
 Contributory negligence of patient " .... 346 
 
 Mandamus. 
 
 Time set for hearing of application for, 
 
 requiring notice Entries, .... 1137 
 
 Allowing alternative writ after notice . . " . . 1138,1139 
 
 Requiring justice to sign bill of exceptions " 1140 
 
 Demurrer to petition sustained, injunc- 
 tion dissolved, cause dismissed . . . . " • . . . . 1 141 
 
 Alternative writ to compel school board 
 to award contract, temporary in- 
 junction " 1 142 
 
 Peremptory writ against clerk of courts . . " 1 143 
 
 Refusing peremptory writ " 1144 
 
 Peremptory writ restoring to member- 
 ship in corporation " 1145 
 
 Manslaughter — See Homicide. 
 
 Killing in heat of passion Instructions, . . 244 
 
 Marriage. 
 
 What constitutes Instructions, . 347, 348 
 
 common law " . . p. 259, note 
 
 Ohio rule "/>/!>. 259, 260, note 
 
 Legitimacy of children " 349 
 
 In another state forbidden by laws of 
 such state, followed by cohabitation 
 in Ohio " 350
 
 INDEX. 
 
 I035 
 
 Marriage — Continued. No. 
 Annulling, contract with idiot, deeds set 
 
 aside, etc Entries,. . . .1146 
 
 Marshalling Liens — See Liens. 
 
 Master and Servant — See Fellow Servants. 
 
 Rules governing railroad employees . . Instructions, 433-435 
 
 railroad company may prescribe • • • • 433 
 
 duty of employee with reference to ... . " .... 433 
 liability of railway for violation of, by 
 
 employee .... 434 
 
 effect of, in negligence cases .... 435 
 
 Injury to brakeman, complete charge in 
 
 such case " .... 43^ 
 
 Duty of railway to furnish employees . ...".. 437.443 
 
 injury from inadequate force " .... 437 
 
 must be proximate cause " .... 437 
 
 knowledge of plaintiff " . . . . 437 
 
 Master must exercise care in selection of 
 
 servants .... 438 
 
 assumption of risks of negligence of 
 
 fellow servants " . . 439- 44° 
 
 exceptions to rule • • 439. 44 l 
 
 assumption of risks by brakeman .... " .... 442 
 assumption of risks from insufficient force " . . . . 443 
 Injury to brakeman by engineer quick- 
 ening speed .... 452 
 
 Injury to brakeman coupling cars .... 453 
 
 Acts done by servant at request of fel- 
 low servant .... 454 
 
 Master not an insurer " . . . . 456 
 
 Duty of master to furnish safe machinery 45 6 
 
 assumption of risks from .... 456 
 
 Warning of danger by fellow servant . ... .... 457 
 
 Knowledge of danger by both " . • 457- 4 DO 
 
 of dangerous methods .... 459 
 
 of incompetency of servant by master ..".... 461 
 Continued use of dangerous agencies after 
 
 knowledge .... 462 
 
 Contributory negligence with reference 
 
 to directions of master " .... 463 
 
 Injury to hatchtender while unloading 
 
 cargo from schooner .... ]<•] 
 
 Duty ol railroad conductor " .... 465 
 
 [njury from defective machinery " . . . . 4.66 
 
 deemed to have knowledgi oi " 1-66 
 
 duty of company as to inspection ....".... 4 () 7 
 
 Collision resulting from negligence of 
 
 train dispatcher " .... 468 
 
 Injury to person under railroad car mak- 
 ing repairs " . . . . 469
 
 IO36 INDEX. 
 
 Master and Servant — Continued. No. 
 
 Injury to child of employee Instructions, . . 488 
 
 Servants of companies jointly using tracks . " .... 490 
 
 injuries to servants and respective liabilities " .... 490 
 
 Mental Capacity — See Wills. 
 
 To make deed Instructions, . . 185 
 
 Inability to recognize acquaintances as 
 
 reflecting on " . . . . 185 
 
 Old age " .... 185 
 
 Mercantile Agency. 
 
 Fraudulent representations by, as to 
 
 financial standing Instructions, . . 213 
 
 Mechanic's Liens. 
 
 Foreclosure Entries, . 1088, 1095 
 
 Mail. 
 
 Pouch thrown from car, injury from . . Instructions, . . 491 
 
 Malice. 
 
 Effect of absence of, in libel and slander Instructions, . . 331 
 
 Malicious Prosecution. 
 
 Of criminal action Instructions, ... 338 
 
 338 
 
 . . . 338, note 
 339andnote,344 
 
 344 
 
 339 
 
 340 
 
 • • • -v • 34i 
 344 
 
 questions for jury 
 
 Must have terminated 
 
 Probable cause defined 
 
 depends upon belief 
 
 burden of proof of 
 
 Advice of counsel as a defense 
 
 Effect of discharge by examining magistrate 
 Of injunction 
 
 Master Commissioners — See Execution. 
 
 Reference to . . . Entries, .... 894 
 
 Appointment of special 895 
 
 to take testimony " 896 
 
 Approval of report and judgment, no ex- 
 ceptions 897 
 
 Confirmation of report 899 
 
 Where exceptions are filed to report ..." 899 
 
 sustaining exceptions " 900 
 
 Mines and Mining — See Negligence in Mines and Mining. 
 
 Mistake. 
 
 Correcting, in insurance policy, finding 
 
 thereon as corrected Entries, . . . .1147 
 
 Modification of Judgments and Orders — See Vacation of 
 Judgments.
 
 INDEX. 
 
 I°37 
 
 Xo. 
 
 Entries, 789, 790, 819 
 
 . " 79o 
 
 Motion — See New Trial. 
 
 To separately state and number . . 
 
 amendment made at bar 
 
 defenses ... 
 
 To make definite and certain ... 
 
 To strike out irrelevant matter in answer . ... 
 
 Sustained in part and overruled in part . . ... 
 
 To strike out interlineations made pend- 
 ing demurrer ... 
 
 To strike out, granting, amendment filed, 
 
 leave to answer ... 
 
 To strike from files 
 
 for want of verification ... 
 
 For withdrawal of counterclaim or setoff . " ... 
 
 To strike out, to conform pleadings to proof "... 
 
 Overruled, grounds waived by not in- 
 cluding same in for motion ... 
 
 To answer, leave to withdraw and file 
 
 amended pleadings ... 
 
 To set aside judgment rendered against 
 
 minors ... 
 
 To set aside former entry ... 
 
 To withdraw ground of 
 
 To strike depositions from files ... 
 
 Municipal Officers. 
 
 Complaint filed Entries, . . 
 
 ordering jury ... 
 
 impaneling, verdict ... 
 
 removal of officer ... 
 
 Municipal Corporations — See Nuisance. 
 
 Dedication of public street, requisites of, Instructions, 
 Interest of abutting owner in street . . . 
 Establishment of street by general use . . 
 
 Streets may be improved, when 
 
 care of by 
 
 not an insurer 
 
 Duty a- t<> sidewalks 
 
 liability tor injuries therefrom 
 
 I ,,]!•. ol pedestrians <>n streets 
 
 Notice of delects iii streets 
 
 Knowledg< ol defei ts in streets or sidewalk 
 
 Liability for mere slipperiness of sidewalk 
 
 from ridge snow or ice on side ol street 
 
 railroad traek 
 
 failure to look after removal of snow 
 and iee 
 
 tor injury from stone in street 
 
 foi injuries from overflowing sewer . . 
 
 « In:: ■ ide of 3treets 
 
 See t h Grade. 
 
 I >uty as to lights and ts . . 
 
 roi 
 
 79i 
 799 
 795 
 796 
 
 796 
 
 ■ ■ 797 
 
 ■ • 797 
 , . 802 
 . . 800 
 813, 810 
 
 814 
 
 S15 
 
 816 
 817 
 819 
 820 
 
 1601 
 1602 
 1603 
 1604 
 
 35 1 
 35 2 
 
 353 
 
 354 
 
 355 
 
 555 
 
 555. 5' '5 
 
 363, and note 
 
 • 356 
 
 357. 36 1 
 
 , • 359 
 
 ■ • 360 
 
 . . . • 361 
 
 36] , and note 
 . . . . J62 
 
 . . . . 367 
 
 368, 369, 370 
 • • • ■ 570
 
 io 3 3 
 
 INDEX. 
 
 Name — See Change of Name. No. 
 
 Natural Gas. 
 
 Injury from explosion of, through pipes 
 
 and mains from failure to calk pipes Instructions, 508, 509 
 
 Negligence — See Contributory Negligence, Imputed Negli- 
 gence, Comparative Negligence, Hazardous Employment, 
 Fellow Servants. 
 
 A general form of. opening state- 
 ment in, cases Instructions, . 
 
 Presumptions as to 
 
 Defined 
 
 Ordinary care defined 
 
 under circumstances of peril . . . 
 
 Proximate cause defined and explained 
 
 No recovery without fault of de- 
 fendant 
 
 nor where there is contributory 
 
 negligence 
 
 must be the proximate cause . . . 
 
 Injured must be free from negli- 
 gence, comparative negligence . . 
 
 Hazardous employments, employ- 
 ment of children in 
 
 Duty of employer to infant em- 
 ployee 
 
 Duties of railroads to passengers . . . 
 
 See Railway Company, Duties to 
 Passengers. 
 
 Ordinary care by railroad company 
 
 to sick passenger 
 
 Injury to brakeman, action against 
 
 railway, complete charge .... 
 
 Injury from defective gun 
 
 Injury to driver from defective 
 
 racetrack 
 
 Liability of county official for ... . 
 
 Injury from lack of care in con- 
 struction and use of appli- 
 ances known as cooler in 
 furnace 
 
 Injury from explosion of natural 
 
 gas pipes 
 
 Injury from explosion of boiler . . . 
 
 Negligence in Mines and Mining. 
 Duty of operator to prop mines . . . 
 
 liability for failure 
 
 Touching "the working-place of the miner" 
 
 Negligence of foreman 
 
 relation of foreman and miner 
 
 • 3^9, 390 
 ■ • 390,395 
 
 391.392 
 
 . . . 391,392,393 
 
 • 392, 394, and note 
 
 396, 397 and note, 400 
 
 398 
 
 399 
 400 
 
 410 
 
 411 
 
 • • 4i3 
 416-433 
 
 43i 
 
 . . 436 
 499- 500 
 
 503- 
 
 505 
 506 
 
 507 
 
 508, 509 
 . . 510 
 
 Instructions, . . 511 
 
 • • 511. 5*8 
 .... 511 
 .... 512 
 .... 512
 
 INDEX. IO39 
 
 Negligence in Mines and Mining — Continued. No. 
 
 foreman directing miner to mine coal 
 
 off the rib Instructions,. . 513 
 
 where rib is too thin so as to render 
 
 it dangerous " .... 513 
 
 whether damage was natural result 
 
 of direction of foreman " .... 514 
 
 must be result of careless act of fore- 
 man and not fellow servant ....".... 515 
 anticipation and provision against 
 
 occurrence " .... 516 
 
 negligence measured by conditions 
 
 known to exist " .... 517 
 
 Statutory duty of owner to keep supply 
 
 of timber " .... 518 
 
 Knowledge of dangerous condition of room .".... 519 
 
 continuation in work " .... 519 
 
 notice to employer .... 519 
 
 promise to repair .... 519 
 
 New Trial. 
 
 Overruling motion for, judgment on ver- 
 dict Entries, . 929, 929^ 
 
 same — allowance of bill of exceptions . . " 930 
 
 Upon motion for in foreclosure " 931 
 
 Upon motion for, remittitur, overruling, 
 
 judgment " 93 2 
 
 Granting 933 
 
 Overruling motion for in criminal case . . " 1335 
 
 Non Obstante Veredicto. 
 
 Judgment Entries, .... 945 
 
 Non-Residents — St < Trustees. 
 
 Of filing petition to sell realty of . . .Entries,. . . .1541 
 
 ordering appraisement, etc i.si- 
 
 approving same and order of sale ... 1543 
 
 confirmation " p. 941 and note 
 
 odering transfer of funds " 1544 
 
 Notice. 
 
 < M defects in streets to city, actual and 
 
 constructive Instructions,. . 
 
 358. 3°4. 3 66 
 
 < m latent defects " .... ,v>" 
 
 Nuisance. 
 
 Defined Instructions, 357,565 
 
 Street <>r sidewalk may become when ... .... 357 
 
 I >• ranoj ance to constitute " .... 566 
 
 avation in street adjoining premises . . " .... 567 
 liability for injury resulting to traveler ..".... 567
 
 1040 
 
 INDEX. 
 
 Nuisance — Continued. No. 
 
 duty of traveler on highway Instructions, . . 567 
 
 duty of lot-owners where excavation 
 
 made in sidewalk " .... 568 
 
 traveler may presume that city has per- 
 formed duty with reference to streets .".... 570 
 Duty of city as to lights and guards in 
 
 streets " .... 570 
 
 Rights and obligations of adjoining land- 
 owners as to each other " .... 571 
 
 To what extent lower proprietor may dig . . " .... 571 
 Growing trees and fences constructed 
 upon ground allowed to be used for 
 
 highway " .... 660 
 
 rights of owner and public " .... 660 
 
 Nuncupative Will. 
 
 Admission to probate Entries, .... 1370 
 
 Nunc Pro Tunc. 
 
 The office of . Entries, p. 723, note 
 
 Entry, ordering amended answer, de- 
 murrer and reply, and entry over- 
 ruling demurrer, to be filed by leave . " 808 
 
 Showing exception to overruling of mo- 
 tion for new trial " 1149 
 
 Of exceptions, filing ; allowance, bill of 
 
 exceptions " . . 1150, 1154 
 
 Supplying omitted entry " 1151 
 
 Amending and correcting former entry . . " 1152 
 
 by showing discharge of jury ..... " 1153 
 
 Oath. 
 
 Form to grand jury Entries, . . . .1307 
 
 to remainder " 1308 
 
 to witnesses " . . i3°9> I 3 I ° 
 
 Occupying Claimant. 
 
 Impaneling jury to try value and dam- 
 ages Entries, 
 
 Of further hearing and verdict " . 
 
 On motion to set aside verdict, judgment 
 for successful, electing to receive 
 value of land " • 
 
 Judgment for successful claimant ....". 
 
 Setting aside valuation by jury, ordering 
 
 another " • 
 
 Offer to Confess — See Tender. 
 
 Judgment before action Entries, 
 
 Out of court 
 
 In open court 
 
 "55 
 1156 
 
 "57 
 1158 
 
 "59 
 
 828 
 829 
 830
 
 INDEX. IO4I 
 
 Offer to Confess — Continued. No. 
 
 And acceptance Entries, .... 831 
 
 Verdict of jury after " 834 
 
 One-mile Assessment Pike. 
 
 Appraisers to assess value of material 
 
 and damages Entries, . . . .1633 
 
 On return of award ^634 
 
 Opening Judgment and Orders — See Vacation of Judgments. 
 
 Opening Statements. 
 
 Of charge in criminal case Instructions, . . 2 
 
 In civil case .... 3, 4 
 
 Ordinary Care — See Negligence. 
 
 Ownership. 
 
 Of property insured Instructions, 270,284 
 
 Parent and Child — See Assault and Battery. 
 
 Parent may protect child Instructions, . . 
 
 37 and note, 38 
 Child fraudulently persuading parent to 
 
 make beneficial dispositions " . . . . 224 
 
 Parol Evidence. 
 
 To vary written instrument Instructions, . . 186 
 
 Parties. 
 
 Substitution of real party and dismissing 
 
 others who have disposed of interest, Entries, . . . . 763 
 
 Ordering necessary, to be made defendants, " 763 
 
 Assignee substituted for plaintiff " 764 
 
 Appointment of guardian ad litem .... " 765 
 
 Making defendant claiming interest un- 
 der R.S. Sec. 5006 " 766 
 
 Allowing, to come in as co-plaintiff . ... 767 
 
 Attaching creditors may join as . . . 767, note 
 
 < Ordering necessary, to be made defendant 
 
 under k. S. Sec. 5006 " 768 
 
 Making new, without motion " 769 
 
 Substitution of successor in administration, " 770 
 
 Dismissal without prejudice for want of . . 771 
 
 Making, having interest in action for re- 
 covery of real or personal property 
 
 under R. S. .Sec. 5014 " 772 
 
 Substitution of plaintiff in execution lot 
 
 officer " 773 
 
 Ordering, brought in where obligation 
 
 J"int " 774 
 
 66
 
 10-12 
 
 INDEX. 
 
 Partition. No. 
 
 Authorizing service by publication . . .Entries, . . . .1160 
 Ordering creditors having liens made 
 
 parties II & 1 
 
 Decree where dower assigned 1162 
 
 where no widow, where intermarriages 11 63 
 
 same, where personalty will pay debts, " 11641 
 
 determining ownership of interests . . . 1165 
 
 when amicable 1166 
 
 where dower waived 1167 
 
 Appointment of receiver ........ " 1169 
 
 Report commissioners, dower assigned 
 metes and bounds, land divided, con- 
 firmed " Il6 9 
 
 Exceptions to report overruled, confirm- 
 ation when lands divided, right of 
 
 way " ZI 7° 
 
 Confirmation report, order of sale free 
 
 dower, election not made " . • 1171,1172 
 
 Confirmation of sale to third person 
 
 (where there are street assessments) . 1173 
 
 Confirmation of sale to party electing to 
 
 take " • ...• 1 1/4 
 
 Partnership. 
 
 What constitutes Instructions, 575, 577 
 
 ■ 576 
 
 • 577 
 578 
 
 • 579 
 
 . 580 
 p. 967 
 
 1593 
 t594 
 1595 
 1596 
 
 What is general agency 
 
 Purchases by one partner 
 
 Ostensible partner defined 
 
 Right of surviving partner to wind up firm . " . 
 Articles of, alterations of as evidenced by 
 
 entries in books 
 
 Rights of surviving partners . . . . .Entries, 
 appointing appraisers, application of 
 partner 
 
 on application of administrator • • • 8 
 
 of filing inventory * 
 
 election by partner to take 
 
 Passengers — See Railway Company. 
 
 Peace Warrant. 
 
 Hearing of charge in common pleas . .Entries,. . . .1296 
 
 Perjury. 
 
 Defined Instructions, . . 581 
 
 As to materiality .... 582 
 
 Meaning of " willfully and corruptly " 5 8 3 
 
 Oath lawfully administered 5 8 4 
 
 By assignor in examination before pro- 
 bate judge 5 8 5
 
 INDKX. IO43 
 
 Perpetuation of Testimony. No. 
 
 Of filing petition for Entries, . . . .1175 
 
 Notice to be given of examination . . . . " 1 1 76 
 
 Of approval of examination " 1177 
 
 Personal Property — See Sale of Personal Property. 
 
 Physician — See Malpractice. 
 
 Plea. 
 
 Of not guilty Entries, .... 1319 
 
 And appointment of counsel " 1320 
 
 Withdrawal of " 1321 
 
 In abatement sustained, prisoner committed " 1323 
 
 prisoner discharged on recognizance . . " 1324 
 
 Withdrawal of, motion to quash and judg- 
 ment " 1325 
 
 Upon, in abatement, incorrect name ... " 1326 
 
 Former, withdrawn, rearraignment, plea 
 
 of guilt}-, sentence " . . 1328, 1329 
 
 Preponderance — See Evidence. 
 
 Privileged Communications — See Libel and Slander. 
 
 Probable Cause — See Malicious Prosecution. 
 
 Probate of Wills— See Wills. 
 
 Proceedings in Aid of Execution — See Aid of Execution. 
 
 Proceedings to Prevent Crime. 
 
 Of discharge on failure to prosecute . . Entries, .... 1295 
 Of hearing of peace-warrant charge ... " 1296 
 
 Process, Service of — See Service of Process. 
 
 Promissory Notes. 
 
 Of judgment on joint and several . . .Entries,. . . . 1178 
 Finding that not purchased usual course 
 
 trade, motion new trial overruled, 
 
 judgment " 1179 
 
 Proof. 
 
 Amendment to conform pleadings to . .Entries,. . 810,813 
 To trike out to conform petition to . . . . " 812 
 
 Prosecuting Attorney — See Quo Warranto. 
 
 Of appointment <>t assistant Entries, .... 1351 
 
 Province of Court and Jury. 
 
 Explained Instructions, . . 1,5 
 
 Proximate Cause — See Negligent,-. 
 Publication —See Service of Process.
 
 1044 INDEX. 
 
 Quiet Title, Action to. No. 
 
 Ordinary decree Entries, .... 1182 
 
 Quieting title, approving service by pub- 
 lication, usual entry " 11 80 
 
 Of decree cancelling deed to wife by hus- 
 band, declaring title in him, quiet- 
 ing his title against heirs, awarding 
 deed, etc " ..... 1181 
 
 Subrogating purchaser to right of lien- 
 holders at sheriff's sale, lien for per- 
 manent improvements allowed, find- 
 ing against lienholders for resale of 
 premises, etc., quieting title against 
 mortgage " 11 83 
 
 Quo Warranto. 
 
 Allowing, on relation of another person . Entries, . . . .1184 
 Substituting member of bar for prose- 
 cuting attorney " 1 185 
 
 Of filing of application requiring notice . . " 11 86 
 
 Granting leave to file petition " 1187 
 
 Of judgment in favor of incumbent in office, " 1188 
 
 in favor of claimant and ouster . . . . " 11 89 
 
 against director of corporation " 1190 
 
 ordering new election " 1191 
 
 ousting corporation of franchise .... " 1192 
 
 when corporation has forfeited rights, 
 
 dissolving same " U93 
 
 approving report of trustees " 11 94 
 
 granting injunction against directors 
 
 from disposing of assets 11 95 
 
 requiring directors to give security . . . " 1196 
 
 Of judgment by default " 1197 
 
 Racetrack. 
 
 Injury to person driving on, from defect 
 
 in ... . Instructions, . . 503 
 
 must be proximate cause of injury . . . . " .... 504 
 
 diligence required of plaintiff " .... 505 
 
 Railway Company — See Negligence, Contributory Negligence, 
 Alighting from Train, Master and Servant, Street Rail- 
 ways. 
 Duty to furnish cars for transportation . Instructions, . . 93 
 to place in suitable place for unloading ..".... 93 
 
 to provide sidetracks " . . . . 94 
 
 to make reasonable rules concerning 
 
 car service " . . . . 95 
 
 reasonableness of such rules " . . . . 96 
 
 Recovery for car service " . . . . 97 
 
 Operation of, is hazardous employment ... " ....414
 
 INDEX. 
 
 I045 
 
 Railway Company — Continued. 
 Duties to passengers. 
 
 degree of care to passenger Instructions, 
 
 not an insurer of absolute safety .... " 
 
 duty of passenger " 
 
 not bound to carry, on freight trains ..." 
 relation of carrier and passenger exists when " 
 
 duty to furnish safe passage " 
 
 burden of proof in injury to passenger . . " 
 contributory negligence of passenger ... " 
 
 duty to provide safe platform " 
 
 boarding train " 
 
 must protect from violence " 
 
 right to eject passengers 
 
 Duty to passenger falling from train .... " 
 Duty to passengers alighting from train ..." 
 
 contributory negligence of " 
 
 Injury to conductor riding on train other 
 
 than his own " 
 
 consent of conductor in charge, effect of . " 
 Injury to one assisting in caring for fellow 
 
 sick passenger " 
 
 passing from one car to another " 
 
 Duty of, to sick passenger " 
 
 passenger voluntarily assisting " 
 
 liability for directions of conductor, as to . 
 Presumed liability for negligence of sleep- 
 ing-car employee " 
 
 Rules governing employees 
 
 See Master and Servant. 
 
 Duty of, in laying track, etc " 436, 
 
 Duty as to furnishing employees ' 
 
 Collision resulting from negligence of 
 
 train-dispatcher ' 
 
 Injury to person under railroad car mak- 
 ing repairs ' 
 
 I )uty to block frogs ' 
 
 Omission to adjust, fill or block, switch . . . 
 
 Injuries at railroad crossings ' 
 
 See fully Railroad Crossings. 
 
 Duty to keep light at switch 
 
 Misplacement oi switch for criminal purpose . 
 
 Walking on railroad track 
 
 er 
 
 Common usi of 1 way . . . 
 
 Liability of, for injury to person standing 
 on depot platform from throwing 
 
 in id pouch out of mail car ' 
 
 Bound to guard against fire from locomotive . ' 
 
 Injur-. ' by 
 
 Distinction between commercial and 
 
 street, as to stop-- 
 
 Xo. 
 
 416 
 416 
 
 4i7 
 418 
 4i3 
 420 
 421 
 422 
 423 
 423 
 425 
 426 
 
 427 
 428 
 429 
 
 430 
 430 
 
 43i 
 43i 
 43i 
 
 43i 
 43i 
 
 • • 432 
 433-435 
 
 and note 
 
 • • 437 
 
 . . 468 
 
 • • 469 
 
 • • 470 
 . . 471 
 
 472-483 
 
 4*4 
 
 485 
 486 
 
 4*7 
 481 
 
 • • 490 
 . . 498 
 
 559^ 
 
 ■ • 549
 
 1046 
 
 INDEX. 
 
 Railroad Crossings. No. 
 
 Injuries at Instructions, 472 to 483 
 
 relative rights of company and pub- 
 lic to use " 47 2 
 
 both must use faculties to discover 
 
 danger " • 473. 477. 478 
 
 must look and listen " . 477. 47 8 . 482 
 
 duty of one approaching ' 474 ancl note,478 
 
 injury caused by backing train onto 
 
 vehicle at 
 
 omission to ring bell and sound 
 
 whistle 
 
 obstructions by buildings, etc 
 
 stationing flagmen at street crossings . . 
 reliance upon signals and flagman . , 
 
 injury to foot-traveler crossing 
 
 duty as to carrying headlights 
 
 allowing trains to remain on, beyond 
 
 statutory period ■ 
 
 injury to child climbing over train . 
 whether child guilty of contribu- 
 tory negligence 
 
 475 
 
 • 476. 479. 483 
 478andnote,48i 
 
 480 
 
 481 
 
 482 
 
 483 
 
 483^ 
 
 483« 
 
 483* 
 
 Railway Frogs. 
 
 Duty as to blocking 
 
 Instructions, 470,471 
 
 Railroad Tracks — See Street Railways. 
 
 Common use of, as passageway .... Instructions, . . 489 
 
 not a trespasser .... 489 
 
 Joint occupancy of sidetrack by two com- 
 panies • • • • 49° 
 
 relation of servants of each .... 490 
 
 injury to servant by failure to inspect track ' .... 490 
 
 Child killed on, whether trespasser • 49 2 
 
 Duty of company to persons trespassing on . .... 493 
 
 Permitting persons to travel habitually over .".... 495 
 
 Injury to stock on .... 496 
 
 Rape. 
 
 Defined Instructions, . . 587 
 
 Consent of female " .... 588 
 
 Carnal knowledge complete when 5 8 9 
 
 Capacity of male, under fourteen " .... 59° 
 
 Evidence as to character of female • • • • 59 1 
 
 Evidence as to resistance " 59 2 and note 
 
 Assault with intent to .... 593 
 
 force and consent, " .... 594 
 
 Declarations of prosecuting witness as evidence " .... 595 
 
 Ratification. 
 Of agency 
 
 Instructions, 
 
 12
 
 INDEX. 
 
 IO47 
 
 Real Actions — See Quirt Title, Actions to, Occupying Claim- 
 ants, Recovery of Possession of Real Property. 
 
 Reasonable Doubt — See Homicide. 
 
 Defined Instructions, . . 187 
 
 Receivers — See Attachment, Corporations, Dissolution of 
 
 Powers of, and procedure Entries, . note, / 
 
 Appointment where notice given .... 
 
 when notice dispensed with 
 
 time hearing for, postponed, injunction . 
 
 for corporation 
 
 to collect rents pending suit 
 
 to take non-exempt property of judg- 
 ment debtor 
 
 to take charge of attached property . . 
 
 to investigate death on application of 
 accident association 
 
 application for, denied 
 
 in foreclosure to receive rents 
 
 for partnership property 
 
 form of bond 
 
 Removal of and appointment of another . 
 Requiring notice of appointment and 
 
 creditors to present claims 
 
 Report of liabilities. 
 
 Sales by 
 
 to sell real estate 
 
 to sell real and personal property . . . 
 
 to sell stock goods, retail, private sale . 
 
 public sale personal property 
 
 of personalty private sale 
 
 confirmation private sale 
 
 confirmation sale of realty 
 
 of desperate claims, authority to .... 
 Authorizt d to borrow money to conduct 
 business 
 
 to lease property 
 
 to employ help and sell property .... 
 
 to deliver property to judgment lienholder 
 
 to pay taxes 
 
 to begin action to enforce judgment . . 
 
 to manufacture and sell stock on hand . 
 
 to pay note 
 
 Validity of 1 hattel mortgage determined, 
 
 ordered to pay 
 
 Distribution of /touts / 
 
 order ol 
 
 order to pay balance of claims 
 
 Report and accounts ■ P 
 
 report approved, partial dividend ordered 
 
 allowing final account, final dividend . . 
 
 1 2 1 1 and 
 
 P 
 
 1 2 
 
 '7 
 
 755 
 
 189 
 199 
 200 
 201 
 202 
 
 203 
 204 
 
 205 
 207 
 208 
 209 
 206 
 210 
 
 iote 
 
 764 
 
 213 
 214 
 
 215 
 
 216 
 220 
 
 218 
 
 - 19 
 
 221 
 
 222 
 2 j 1 
 224 
 
 2 2s 
 
 227 
 
 22.S 
 
 230 
 
 773 
 231 
 232 
 
 777 
 234
 
 1048 
 
 INDEX. 
 
 Recognizance. 
 
 Of taking before indictment Entries, 
 
 Fixing by examining court 
 
 Taking, after indictment 
 
 Fixing amount in felony 
 
 Return and record 
 
 Forfeiting 
 
 No. 
 
 .... 1297 
 .... 1299 
 1300 and note 
 .... 1301 
 .... 1302 
 .... 1304 
 
 Recovery of Possession of Real Property. 
 
 Of recoupment inaction for purchase price, Entries, . . 
 
 Where defendant in default, without jury . " . . . 
 
 Impaneling jury to try action for " ... 
 
 Overruling motion for new trial, judgment . "... 
 
 Upon verdict for defendant " 1240 
 
 Sale by executor declared valid in an ac- 
 tion for " ... 
 
 Reformation. 
 
 Of deed, mistake in name, title quieted . Entries, 
 
 Of deed, where mistake in warranty clause . " . 
 correcting description " . 
 
 Of correction of deed, motion new trial 
 
 overruled " . 
 
 Of contract, judgment as reformed ....". 
 
 Declaring deed a mortgage, cancelling same " . 
 
 Of life insurance policy, cancelling assign- 
 ment " . 
 
 Referees, Trial by — See Aid of Execution. 
 
 Ordering reference by consent Entries, . 
 
 In what cases had 
 
 Compulsory order of 
 
 Appoint to ascertain and report names 
 and liabilities of stockholders .... 
 
 order of appointment upon motion for 
 further reference . 
 
 ordering publication of appointment . . 
 Upon application for reference anew upon 
 
 refusal of first referree to serve . . . 
 Appointment to take and report testimony . 
 Upon hearing of report, no exceptions . . 
 On report and motion for new trial .... 
 
 On motion to confirm report 
 
 Sustaining exceptions 
 
 Appointment on dissolution of corporation 
 
 form of report 
 
 Reinstatement. 
 Of cause Entries, 
 
 1236 
 1237 
 1238 
 1239 
 
 1241 
 
 1242 
 
 1243 
 1244 
 
 1245 
 1246 
 1247 
 
 1248 
 
 note 
 
 885 
 
 886 
 
 1041, 
 
 890 
 
 891 
 892 
 
 393 
 1042 
 1044 
 
 938
 
 INDEX. IO49 
 
 Release of Surety. No. 
 
 Entries relating to Entries, . 1 390-1 393 
 
 for guardians " . . 1502-1505 
 
 Remittitur. 
 
 On condition of overruling motion for 
 
 new trial Entries, .... 932 
 
 On condition of affirmance of judgment . . " 1291 
 
 Removal. 
 
 Of guardian Entries, 1500, 150 1, 1505 
 
 Of ward from state " 1506 
 
 Replevin. 
 
 Order of sale, perishable property . . .Entries, .... 1249 
 
 Of judgment against plaintiff on demurrer " 1250 
 
 Of assessment of damages by jury after 
 
 demurrer sustained " 1251 
 
 Of judgment against defendant " 1252 
 
 Of finding and judgment for plaintiff 
 
 without jury " 1253 
 
 Adjustable entry to any finding 1254 
 
 Reputation — See Evidence^ Character. 
 
 Evidence as to Instructions, 175, note, 176 
 
 In business community, how determined " 330 
 
 Requisition. 
 
 Upon administrator to reject claim . . . Entries, .... 1429 
 
 Rescuing from Danger. 
 
 Injury to person, another Instructions, . . 487 
 
 contributory negligence " .... 487 
 
 Rescission. 
 
 Of insurance policy Instructions,. . 278 
 
 Respondeat Superior. 
 
 Involving doctrine Instructions, 
 
 444, 445, and note, 446, 448, 449, 45". 45 1 . 453. 455 
 
 Disregard of orders of Instructions,. . 446 
 
 Servant's duty to obey " • 45 I »A33 8 
 
 Obviously dangerous acts done by order of . " .... 455 
 
 Revivor of Actions. 
 
 ibatement ol action Entries,. . . . 838 
 
 In name of personal representative by 
 
 < onsent " 839 
 
 In name of su< cessor 
 
 when administrator removed or resigned, " 
 
 Conditional order ol 842 
 
 how made "... 842, note 
 
 service " ■ • • 842, note
 
 1050 
 
 INDEX. 
 
 Revivor of Actions — Continued. 
 
 ordering service by publication . . . Entries, 
 
 in name of administrator, upon service of " . 
 
 Of filing of supplemental pleading for . . " . 
 
 by plaintiff for, against heirs " . 
 
 Of dismissal when not revived against 
 
 defendant " . 
 
 when plaintiff dies and action not revived, " . 
 
 Of proceedings in error " . 
 
 No. 
 
 843 
 
 844 
 
 845 
 846 
 
 847 
 
 848 
 
 1286 
 
 Revivor of Judgment. 
 
 On petition Entries, .... 954 
 
 Of conditional order " 955 
 
 when it has been served " 956 
 
 Against personal representative of defendant, " 957 
 
 Of decree for alimony " 958 
 
 Riot — See Employer and Employee, Workman and Unions. 
 
 Road Appeals. 
 
 Transcript commissioners filed, etc. . . Entries, .... 1622 
 Affirming proceedings county commis- 
 sioners " 1623 
 
 Reversing proceedings " 1624 
 
 Approving report of viewers " 1625 
 
 when report varies from order appealed 
 
 from " 1626 
 
 Ordering review of road when report of 
 
 viewers is adverse " 1627 
 
 Upon report of viewers " 1628 
 
 On appeal from decision township trustees " 1629 
 
 jury impaneled, view ordered " 1630 
 
 return from view, hearing and verdict . " 1631 
 
 when motion new trial made, judg- 
 ment thereon " 1632 
 
 One mile assessment pike " . . . . p. 985 
 
 Abandonment of roads " . . . . p. 986 
 
 Robbery. 
 
 Defined Instructions, . . . 597 
 
 Material allegations to be proved . . . . " 598 
 
 Includes assault and battery " 599 
 
 The taking, explained " 600 
 
 Proof as to money taken " 600 
 
 Felonious intent " 600 
 
 The force and violence " 600 
 
 Where there is a conspiracy " 
 
 596, 601, 602, and note 
 evidence necessary to prove conspiracy, Instructions, . . 603 
 
 liability independent of conspiracy ... " 604 
 
 Assault with intent to commit " 605 
 
 Violence concomitant with the taking . . " 605
 
 INDEX. 
 
 IO5I 
 
 Rule — See Attachment, Contempt. 
 
 Against witness 
 
 judgment on 
 
 Entries, 
 
 No. 
 
 914 
 9i5 
 
 Sales — See Warranty. 
 
 When complete Instructions, 
 
 What constitutes 
 
 Replevin of goods from assignee 
 
 On credit 
 
 Representations as to financial condition 
 
 invalidating 
 
 Superinduced by mistake may be re- 
 scinded in action for sale, when .... 
 
 Delivery of wheat to mill, whether 
 
 effect of mixing 
 
 with owner's consent 
 
 option to demand equal number of 
 
 bushels of common mass 
 
 Action upon account for purchase price . . . 
 
 rescision and tender back 
 
 recovery for expenses in experimental 
 
 efforts 
 
 Of machinery warranty 
 
 Fraud and deceit in, parties dealing on 
 
 an equality 
 
 opportunity of inspection 
 
 what commendations may be made .... 
 expressions of opinion as to amount, 
 
 value, and quality 
 
 Fraud in sale of horses " 218, 
 
 resulting in personal injury to vendee . . 
 
 contributory negligence in vendee . . . 
 
 duty of vendor to give notice of defects . . 
 
 measure of damages 
 
 Fraud in sale of land, preventing exami- 
 nation of land 
 
 as to location 
 
 Sale of Entailed Estates. 
 
 Ordering sale 
 
 Of confirmation . . . . 
 
 Entries, 
 
 . 606 
 607 
 
 , 607 
 , 608 
 
 609 
 
 614 
 618 
 615 
 615 
 
 615 
 616, 617 
 , 616 
 
 618 
 616 
 
 626 
 627 
 628 
 
 629 
 219, 220 
 
 21S 
 21S 
 219 
 220 
 
 222 
 223 
 
 1255 
 
 1256 
 
 Sale of Personal Property. 
 
 Dispensing with Entries, . 
 
 of snl» equenl ordei oi sale 
 
 At private sale 
 
 at less than appraisement 
 
 At public sale upon failure at private sale . 
 
 Requiring sale bill returned 
 
 Approving 
 
 1415 
 [416 
 1417 
 [418 
 [419 
 1 i-'<> 
 [421
 
 IO52 INDEX. 
 
 Sale of Real Estate. No. 
 
 By Executors and Administrators in Cotnmoyi Pleas Court. 
 hearing and order to appraise .... Entries, .... 1068 
 
 confirmation of appraisement " 1069 
 
 and sale " 1070 
 
 setting aside deed by deceased made in 
 
 fraud of creditors " IQ 7i 
 
 By Guardians hi Common Pleas Court. 
 authorizing guardian to sell, divesting 
 
 dower, appraisers appointed .... " 1099 
 
 order for private sale for less than ap- 
 praisement " noo 
 
 confirmation of sale " IIOI 
 
 By Executors and Administrators in Probate Court. 
 
 of filing petition Entries, .... 1438 
 
 parties « I439 
 
 service " I44<D 
 
 bond to prevent " I442 
 
 ordering, when appraisement in inven- 
 tory . " 1443 
 
 order to appraise and assign dower ... " i 444 
 
 order of appraisement and sale, free 
 
 from dower " i 44 r 
 
 on return of appraisement, sale ordered, "..... i 44 6 
 on return of appraisement, dower as- 
 signed in rents, etc., order of sale . " 14.4.7 
 
 additional bond ordered " i 44 8 
 
 of hearing, order to appraise, answer 
 
 of widow waiving dower, etc. ... " 14.49 
 
 ordering assignment of homestead and 
 
 dower and appraisement " 1450 
 
 approval of, order of sale " 1451 
 
 assignment homestead to minor child, 
 
 appraisement and sale " 1452 
 
 approval " 1453 
 
 order to appraise and sell, no widow 
 
 or minor " 1454 
 
 appointing appraiser to fill vacancy . . " 1455 
 
 setting aside appraisement, ordering 
 
 new, and sale " 1456 
 
 for amount certain after twice offered . . " 1457 
 
 ordering private sale " 1458 
 
 confirmation, ordinary short form ..." 1459 
 
 finding widow's dower in money ... " 1460 
 
 ordering deferred installments se- 
 cured by mortgage " 1461 
 
 and finding on answer and cross- 
 petition " 1462 
 
 of lienholders " 1462 
 
 authorizing acceptance cash offer from 
 
 purchaser after sale " 1463
 
 INDEX. 
 
 io 53 
 
 Sale of Real Estate — Continued. No. 
 authorizing sale of purchase notes . . Entries, .... 1464 
 order of appraisement and sale of equit- 
 able interest " 
 
 setting aside appraisement and sale 
 
 upon motion of heirs " 
 
 making lienholder party " 
 
 confirmation and sale, where purchaser 
 
 assumes assessments " 
 
 By Guardian, Probate Court. 
 
 of filing petition " 
 
 hearing, order to appraise and sell ... " 
 
 order to sell at private sale " 
 
 when widow waives dower by metes 
 
 and bounds " 
 
 approval of appraisement and order 
 
 of sale 
 
 hearing and order for assignment of 
 
 dower and appraisement .... " 
 
 ordering new bond 
 
 approving assignment of dower and 
 
 order of sale " 
 
 confirmation of appraisement and giv- 
 ing bond 
 
 ordering new appraisement, when twice 
 
 offered 
 
 confirmation of sale 
 
 by trustee of non-resident minor . . . . 
 by assignee, see Assignment for Creditors. 
 
 School Teacher. 
 
 Defined Instructions, . . 
 
 Unlawful intercourse by, with female pupil .".... 
 
 character of evidence to convict . 572a, 
 
 Assault by, upon pupil " .... 
 
 Scienter — See Animals. 
 
 Self-Defense — See Assault and Battery. 
 
 What constitutes Instructions, . . 
 
 241, 242, 243, 
 Winn one may take life of assailant . . Instructions, . . 
 Re isonable -rounds tor losing life, or of 
 
 at bodily harm " .... 
 
 The killing must be only means of escape . .".... 
 If party assaulted is in wrong he must 
 
 retreat " .... 
 
 if not in wrong, how . " • • 242, 243 
 
 Common defense from attack .... 245 
 
 Sou may defend parent ... 246,37 
 
 In assault .... 34 
 
 one voluntarily provoking, then withdraws . .... 39 
 
 1465 
 
 1466 
 1467 
 
 1468 
 
 1508 
 
 I509 
 1510 
 
 1512 
 
 1513 
 
 1514 
 
 1515 
 
 1516 
 
 1517 
 1518 
 I 541-1544 
 
 572 
 
 572 
 
 572^ 
 
 40 
 
 247 
 
 242 
 
 241 
 
 241 
 
 242
 
 1054 INDEX. 
 
 Sentence. No. 
 In felony, motion for new trial overruled, Entries, .... 1335 
 
 when no motion filed " 1336 
 
 Of an habitual criminal " 1340 
 
 In capital case " 1348 
 
 Separately Stating and Numbering. 
 
 Upon motion Entries, .... 789 
 
 where amendment made at bar .... " 790 
 
 defenses in answer, and to make definite " 791 
 
 Service of Process — See Aid of Execution. 
 
 By publication upon unknown heirs, a 
 
 complete entry Entries, .... 782 
 
 where parties unknown, short entry . . " 783 
 
 By publication approved " 784 
 
 Order setting service of summons aside . . " 785 
 
 On corporation authorized where officer, 
 agent, or director is a non-resident, 
 (R. S. Sec. 5056a) " 786 
 
 Ordering case heard where part of de- 
 fendants are served " 7 
 
 Sheriff granted leave to amend return . . " 788 
 
 Amendment of summons " 8oo 
 
 Setting Aside. 
 
 On motion, former entry Entries, . . . . 817 
 
 On motion, judgment for costs " 818 
 
 Judgment on motion " 1264 
 
 taken by confession " 1265 
 
 at instance of purchaser or mortgagee . " 1267 
 
 Settlement. 
 
 Of cause, by payment of specific sum . . Entries, .... 1257 
 
 Sewer. 
 
 Liability of city for overflowing .... Instructions, . . 367 
 
 Sexual Intercourse. 
 
 By school teacher with female pupil . . Instructions, 
 
 572, 572a, 572*5 
 
 Sheriff — See Execution, Attachment. 
 
 Sidewalks — See Nuisance. 
 
 Duty of municipality as to Instructions, . . . 355 
 
 Liability of city for injuries from defective, " 363, 364,365,366 
 
 Duty of pedestrians on ........ . " 356 
 
 May become nuisance when " 3^7 
 
 Notice of defects in " 358,359,364,366 
 
 of latent defects " -566 
 
 Liability of city for mere slipperiness in . " 360 
 
 Excavations in "... 568, 569
 
 INDEX. IO55 
 
 Specific Performance. No. 
 
 Decreeing, of contract Entries, .... i2 8 
 
 Spoliated Will— See Wills. 
 
 Statutes of Limitations. 
 
 New promise reviving claim Instructions, 631,632 
 
 New promise in writing " ... 630 
 
 kind of writing necessary " .... 633 
 
 Upon an account " .... 634 
 
 Stenographer. 
 
 Appointment of Entries, . . 853, 854 
 
 Stockholder's Liability — See Master Commissioner. 
 
 Report by master, exceptions, approval . Entries, .... 1259 
 Order assessing " 1260 
 
 Stock on Railroads. 
 
 Injury to on railroad ........ Instructions, . . 496 
 
 Liability of company from insufficient fencing, " .... 497 
 
 Streets — See Nuisance. 
 
 Dedication of Instructions, . . 351 
 
 Interest of abutting owner in " . . . . 352 
 
 Establishment of by use " . . . . 353 
 
 May be improved when .... 354 
 
 Care of by municipality .... 355 
 
 Duty of pedestrians on .... 356 
 
 Defects in, liability of city .... 358 
 
 notice of, actual and constructive .... . . 358, 364 
 
 Liability of city for slipperiness 360 and note 
 
 Injury from ridge of ice or snow on side 
 
 of street railroad track " .... 361 
 
 Injury to traveler from stone in " . . . . 362 
 
 Change of grade " • . 3 68_ 3 88 
 
 See Change of Grade. 
 
 Excavations in " . . . . 567 
 
 See Nuisance. 
 
 What is ownership .... 635 
 
 Rights of abutting owner in .... 636 
 
 damage by construction of railroad in . . 636, 637, 638 
 
 t<> egress and ingress " .... 638 
 
 Street Railway. 
 
 Duty of, as carrier, to passengers . . Instructions, 
 
 532,537.542,543 
 correlative duty of passenger .... ... 542,543 
 
 • • 535 
 53 2 - 553 
 
 • • 532 
 
 • • 533 
 
 duty to public in use ol street 
 
 care required 
 
 liabilities to passengers . . . 
 righl engers 
 
 relation of passenger, exists when . . . " . 534 and note
 
 1056 
 
 INDEX. 
 
 Street Railway — Continued. 
 
 transportation includes what . . . Instructions, 
 bound by acts of conductor and motormau ' 
 duty to stop cars at usual stopping-places ' 
 
 alighting from car ' 
 
 assistance of conductor ' 
 
 ordinance requiring ' 
 
 injury to passenger being thrown from car ' 
 duty of conductor when passenger no- 
 tifies conductor upon entering, 
 
 where he desires to stop ' 
 
 passenger voluntarily leaving car 
 
 while in motion ' 
 
 negligence of conductor must have 
 
 been proximate cause ' 
 
 contributory negligence in boarding 
 
 moving cars ' 
 
 employees must look out for signals . . ' 
 
 boarding cars while in motion ' 
 
 not negligence per se ' 
 
 distinction between, and steam rail- 
 roads, as to stops ' 
 
 stopping for passengers to alight and 
 
 starting again ' 
 
 passenger leaving car without giving 
 
 warning ' 
 
 knowledge of conductor of passen- 
 ger's intention to alight 
 
 duty of conductor to look out for 
 
 departure ' 
 
 injury while alighting from car by 
 
 catching on car ' 
 
 collision between cars, prima facie neg- 
 ligence ' 
 
 duty of, as common carriers, as to cars 
 
 and appliances ' 
 
 injury to person on track 
 
 duty of company and foot traveler . . ' 
 
 ejection of passengers ' 
 
 damages recoverable ' 
 
 rules regulating transfer tickets . . . . ' 
 injury to passenger while assisting 
 
 driver of car ' 
 
 action by, against commercial railway 
 
 for injury ' 
 
 driver may rely upon gateman at 
 
 crossing ' 
 
 open gate an invitation ' 
 
 running at high rate of speed . . . . ' 
 ringing bell or giving warning upon 
 
 approach of crossing ' 
 
 No. 
 
 • • 536 
 
 • • 538 
 539. 540 
 54i,55i 
 
 • • 54i 
 
 • • 54i 
 
 • • 542 
 
 543 
 
 542 
 
 543 
 
 544, 545-546,548 
 547 
 
 . . . 544-548 
 548 
 
 549 
 
 550 
 
 550 
 
 55o 
 
 550 
 
 55i 
 
 552 
 
 553 
 554 
 554 
 555 
 557 
 556 
 
 • ■ 558 
 559, 560 
 
 559 
 559 
 560 
 
 560
 
 INDEX. IO57 
 
 Street Railway — Continued. No. 
 
 stoppage of car on crossing by driver, Instructions, . . 561 
 duty of children, eleven years old, in 
 
 passing street railroad crossing ... " .... 562 
 obstruction in street being paved caus- 
 ing injury to street-car conductor . . " .... 563 
 measure of damages in personal injury, 
 
 medical evidence as to " .... 564 
 
 Strike from Files. 
 
 Motion to Entries, .... 798 
 
 Strike Out. 
 
 Upon motion to, irrelevant matter . . . Entries, .... 795 
 
 to, interlineations made pending demurrer " 796 
 
 Granting motion to, amendment filed, 
 
 leave to answer " 797 
 
 Subrogation — See Execution. 
 
 Substitution — See Parties. 
 
 Of successor in administration Entries, .... 770 
 
 Of plaintiff in execution for officer .... " 775 
 
 Of copies of original papers destroyed .."... 792,793 
 
 of. filing substituted papers " 794 
 
 Of attachment or execution creditor for 
 
 officer " 1 1 30 
 
 Summons. 
 
 Setting aside service of Entries, .... 785 
 
 Amendment of " 809 
 
 Supreme Court. 
 
 Of affirmance Entries, . 1288,1290 
 
 Of reversal " 1292 
 
 Sureties. 
 
 Liability of, on bond of agent who had 
 
 previously defaulted Instructions, . . 639 
 
 Of judgment on cross-complaint of . . . Entries, .... 1261 
 
 Relieving, after notice to prosecute .... " 1262 
 
 Surrender of accused by " T 3 3 
 
 Application of, to be released on admin- 
 istrator's bond " 1390 
 
 releasing " 1391 
 
 Surrender. 
 
 Of accused by surety Entries, .... 1303 
 
 Surviving Partner — See Partnership, 
 
 Switch. 
 
 Duty of railway to block or adjust . . . Instructions, 470,471 
 
 Duty to keep light at " [.84 
 
 Mi placement of, for criminal purpose ...".... 485. 
 
 Taking Case from Jury — See Arresting Case front Jury. 
 67
 
 IO58 INDEX. 
 
 Talesmen. No. 
 
 Venire for Entries, .... 856 
 
 Taxes — See Assessments, Injunction 
 
 Tender — See Offer to Confess. 
 
 Definition and object of Instructions, . . 640 
 
 Of money before suit Entries, .... 825 
 
 Of performance of labor and service ...".... 825^ 
 
 Allowing defendant to perform contract 
 
 after tender proved " 826 
 
 Of article or thing other than money ..." 827 
 
 Verdict of jury after, proved 832 
 
 judgment on 832 
 
 Verdict of jury after, of chattels or per- 
 formances of labor 833 
 
 Verdict of jury after offer to confess ... 834 
 
 Verdict finding a sum less than 835 
 
 Tendering amount, payment into court, 
 
 discharging defendant from liability . " 836 
 
 Appeal case, finding costs where, made 
 
 before justice, etc " 837 
 
 Term. 
 
 Carrying trial from one, to another . . . Entries, .... 1350 
 
 Testimony, Modes of Taking. 
 
 Granting commission Entries, .... 922 
 
 Appointing commissioners to take, in 
 
 another state 9 2 3 
 
 Upon exceptions to depositions " 9 2 4 
 
 of decision upon 9 2 5 
 
 Commission to take, in criminal case I33 2 
 
 Tickets. 
 
 Railway company may prescribe rules 
 
 as 't Instructions, . . 426 
 
 Transfer, see Street Railways. 
 
 Trespass — See Nuisance. 
 
 Trespasser on Railroad Tracks — See Railroad Tracks. 
 
 Trial by Court. 
 
 When jury waived, ordinary judgment .Entries,. . . . 876 
 
 Finding and judgment for defendant ..." 877 
 
 By consent of party appearing, the other 
 
 party failing to appear " 878 
 
 By consent orally made in open court . . . . . . . 879 
 
 Where court must state finding of law 
 
 and facts " 880 
 
 By written consent filed " 881 
 
 Of agreed case " 882 
 
 Overruling motion to dismiss, demurrer, 
 
 hearing upon agreed statement ..." 883
 
 INDEX. 
 
 io 59 
 
 Trial, Criminal Case. 
 
 Of special plea in bar to jurjr ..... Entries, 
 
 Jury ordered to view " . 
 
 Overruling motion for new, sentence ... '' . 
 
 Judgment and sentence " . 
 
 Carrying trial from one term to another . . " . 
 
 Trial by Jury. 
 
 Ordering second petit jury Entries, 
 
 venire for talesmen " . 
 
 Impaneling jury, partial hearing and con- 
 tinuance 
 
 Order to jury to view premises 
 
 criminal case 
 
 Partial daily hearing 
 
 Of close of hearing, argument, charge 
 
 and verdict 
 
 Of hearing of remainder of case, order- 
 ing sealed verdict 
 
 Discharging jury on account of sickness 
 
 of juror 
 
 allowing case to be tried by remaining 
 
 jurors 
 
 Discharging jury under R. S. Sec. 5195 . . 
 Withdrawing juror, cause continued . . . 
 On return of verdict, notice of new trial . . 
 
 Of special verdict 
 
 Discharging jury when unable to agree . . 
 Overruling motion to direct verdict, re- 
 quests to charge, overruling motion 
 
 for new trial 
 
 Arresting case from jury 
 
 Impaneling jury, verdict, motion to set 
 
 aside sustained 
 
 mting motion in arrest of judgment . . 
 Criminal Ca 
 
 Impaneling in felony 
 
 Overruling motion new trial and sentence . 
 
 I 1 judgmi nt and sentence 
 
 Upon motion to arrest 
 
 where mistake in indictment 
 
 Xo. 
 
 1331 
 1334 
 1335 
 
 1350 
 
 858: 
 
 855 
 856 
 
 857 
 859 
 
 873 
 860 
 
 S61 
 
 862 
 
 863, 1339 
 
 864 
 
 865 
 866 
 S67 
 868 
 869 
 
 Trustees — See Non-residents. 
 
 Of appointment of testamentary .... Entries, . . 
 
 of person as, upon d< on of ... . ... 
 
 Authorizing n " ... 
 
 Of non-residents, appointmenl to manage . "... 
 filing petition to sell real < aon- 
 
 denl minor " ... 
 
 Turning State's Evidence. 
 
 Credil giver cvit™ s Instructions, 
 
 870 
 
 871 
 876 
 
 1333 
 1335 
 t336 
 '337 
 1338 
 
 ■377 
 1378 
 
 1379 
 [540 
 
 [54]
 
 I060 INDEX. 
 
 Unions — See Workman and Unions. No. 
 
 Unknown Heirs. 
 
 Ordering service upon, by publication . Entries, . . 782, 783 
 
 Vacancy. 
 
 Conditions in insurance policy as to . . Instructions, . . 271 
 
 when building is vacant " .... 272 
 
 waiver of conditions as to " .... 273 
 
 Vacation of Judgments, Orders, etc. 
 
 Of judgment for fraud, restraining collec- 
 tion Entries, .... 1263 
 
 Of judgment on motion, permission to 
 
 answer " . . 1264, 1269 
 
 Of judgment taken by confession, de- 
 fense let in " 1265 
 
 Motion for, set for hearing " 1266 
 
 Of judgment at instance of purchaser or _ 
 mortgagee discharging premises of 
 lien " 1267 
 
 Granting or denying motion to open de- 
 fault and amendment of judgment . . 1268 
 
 Of judgment of dismissal, reinstating ... " 1271 
 
 by consent " 1272 
 
 Of order to loan money 1273 
 
 Correcting order and judgment " 1274 
 
 Of satisfaction of judgment " 97° 
 
 Variance. 
 
 Amendment to cure material Entries,. . . . 811 
 
 Finding, material, allowing amendment . . " 926 
 
 Venue of Actions. 
 
 On demurrer to answer that property is 
 not within jurisdiction under R. S. 
 
 Sec. 5022 " 777 
 
 Order for change of " 778 
 
 in case of corporations under R. S. 
 
 Sec. 5033 779 
 
 in criminal cases " 781 
 
 Stay of proceedings against member 
 general assembly under R. S. Sec. 
 
 5034 
 
 Change of, criminal cases " J 33° 
 
 Verdict. 
 
 On return of, notice new trial Entries, .... 867 
 
 Of special " 868 
 
 Overruling motion to direct " 870 
 
 Judgment non obstante " 945 
 
 780
 
 INDKX. 
 
 Io6l 
 
 Verification. No. 
 
 Upon motion to strike from files for 
 
 want of Entries, . . 
 
 View. 
 
 Order to, premises Entries, . . 
 
 in criminal case " ... 
 
 Waiver. 
 
 Grounds for motion by not including in 
 
 former motion Entries, . . 
 
 Ward — See Guardian and Ward. 
 
 Wills. 
 
 Contest of Instructions, 
 
 who may make 
 
 requirements of valid 
 
 weight given order of probate 
 
 burden of proof 
 
 preponderance of evidence in 
 
 witnesses need not see testator sign . . . 
 no precise form of acknowledgment . . . 
 
 rules governing mental capacity 
 
 undue influence, what constitutes .... 
 declarations of testator as to condition 
 
 of mind 
 
 capacity as affected by moral depravity . . 
 
 influence over testator by others 
 
 Nuncupative 
 
 Construing Entries, . 
 
 and quieting title " . . 
 
 Upon motion to produce " . . 
 
 order for attachment " . . 
 
 committing to jail " . . 
 
 Of filing for probate " . . 
 
 of taking testimony, admission to probate, " 1356 
 
 commission to take testimony ' 
 
 taking testimony of one witness, con- 
 tinuance ' 
 
 of remaining witness, admission to 
 
 probate ' 
 
 of refusal to admit to probate ' 
 
 when testimony taken as to signature 
 
 of witness ' 
 
 of return of commission, admission . . . ' 
 admission of authenticated copy .... 
 
 in another county ' 
 
 admitting foreign, to probate ' 
 
 <>i application to admit spoliated will . . ' 
 
 admitting same ' 
 
 admitting to record authenticated copy 
 
 <>t destroj ed " 1369 
 
 admitting nuncupative will " 1370 
 
 . . 802 
 
 858, 859 
 73- 1334 
 
 814 
 
 641 
 
 . . 641 
 
 642, 650a 
 
 • • 643 
 . . 644 
 
 • • 645 
 . . 646 
 
 646, note 
 
 • • 647 
 648, 649, 650a 
 
 .... 650 
 
 .... 650a 
 
 .... 650a 
 
 651 
 
 1279 
 
 1280 
 
 1352 
 
 1353 
 
 1354 
 
 1355 
 
 1356 
 
 • 1357 
 
 • • • 1358 
 
 • • • 1359 
 . . . 1360 
 
 . . . 1361 
 . . .1362 
 
 i3 6 3- t365 
 
 • • • i.V'l 
 ... 1 
 
 • • • i.V-7 
 . . . [368
 
 1062 
 
 INDEX. 
 
 Wills, Contest of. No. 
 
 Nature of the issue to be made by entry, Entries, . p. 805, note 
 
 " . . . . A 805 
 
 Character of evidence to be introduced 
 
 Order to impanel jury 
 
 Upon rendition of verdict 
 
 Overruling motion for new trial, judg- 
 ment establishing 
 
 Withdrawal. 
 
 Of counterclaim or set-off Entries, 
 
 And filing amendecl pleadings " . 
 
 Of juror, cause continued " . 
 
 Of juror and indictment nollied " . 
 
 Witness. 
 
 Turning state's evidence 
 
 Credibility of 
 
 Impeachment of ... . 
 
 limiting witnesses . . 
 
 Expert, weight given to 
 
 1276 
 1277 
 
 1278 
 
 800 
 
 866 
 1349 
 
 medical testimony as to nature 
 
 human blood 
 
 Accomplice, as 
 
 . Instructions, 6 
 
 ..." 157, 158, 164, and note 
 ...".. 165, and note, 166 
 
 ... " 165, note 
 
 " 172 
 
 *73 
 174 
 
 Warranty. 
 
 What constitutes, in sales Instructions, 
 
 Implied, when " 
 
 Recoupment of damages where vendee 
 
 has used property under, as to quality . . " 
 Notice of rescission, when necessary in 
 
 sale of machinery " 
 
 action to recover balance due on con- 
 tract of sale " 
 
 Rescission and tender back " 
 
 recovery of expenses in experimental 
 efforts to put machinery in work- 
 ing order " 
 
 reasonable time for testing " 
 
 knowledge of defects " 
 
 acceptance and continued use " 
 
 what is an acceptance " 
 
 performance of contract of sale " 
 
 modifications in " 
 
 measure of damages " 
 
 sold for particular purpose " 
 
 deficiencies from general adaptation to 
 
 purposes warranted " 
 
 as to following directions " 
 
 notice of defects, and duty of vendor . . . " 
 
 . . 610 
 . . 611 
 
 612, 620 
 
 . . 616 
 
 . . 617 
 . . 616 
 
 618 
 619 
 620 
 620 
 623 
 621 
 621 
 620 
 624 
 
 624 
 625 
 625
 
 INDEX. 
 
 1063 
 
 .Instructions, 652, 6s6, 657 
 . . . " 652 
 
 Witnesses, Means of Securing Attendance. 
 Rule against, for disobedience of sub- 
 poena Entries, 
 
 judgment on rule 
 
 Ordering attachment of 
 
 discharging 
 
 Work, Labor and Services. 
 
 Services of child for parent . . 
 
 capacity of parent to make .... 
 
 Implied contract between insane 
 person and one furnishing nec- 
 essaries 
 
 Child continuing to reside with parent 
 
 Contract of service made by corre- 
 spondence 
 
 Contracts express or implied, proof of 
 when implied 
 
 Services rendered by grandchild to 
 grandparent • • ■ 
 
 Circumstances negativing promise . , 
 
 Contract for, by railroad employee 
 and corporation 
 
 When mother entitled to custody of 
 infant so as to make contract for 
 its services 
 
 No, 
 
 9i5 
 916 
 917 
 
 652, note 
 652, note 
 
 • • 653 
 ■ • 654 
 655. 657 
 
 • • 657 
 
 • • 657 
 
 Workman and Unions. 
 
 Rights of • • • • Instru, ;tions, 
 
 Right to conduct one's own business 
 
 658 
 
 659 
 
 336 
 336
 
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