for a new trial, where the fact is properly made to appear; but the affidavits of jurors will not be regarded for the purpose of setting aside the verdict, until misconduct of the jury is shown aliunde. Judgment affirmed.

918. The State of Ohio, on the relation of the Prosecuting Attorney of Clarke County, v. Charles W. Constantine, Mayor of the City of Springfield, John Kinane, Jacob Schneider, Charles C. Fried and John L. Conklin. In quo warranto. Reserved by the District Court of Clarke County.

MCILVAINE, J. Held:

1. The election and the appointment of an officer, as authorized by section 27, article 2 of the constitution, are different and distinct modes of filling an office.

2. Where an office is filled by an election, the election must conform to the requirements of the constitutionu, and each elector of the district is entitled to vote for a candidate for each office to be filled at the election.

3. A statute authorizing the election of four members of a police board at the same election, but which denies to an elector the right to vote for more than two members is in conflict with Article 5 of the constitution.

Judgment of ouster.

OKEY, J., concurred on the ground that the act in question, so far as it applies to Springfield (81 Ohio Laws, 121), is in conflict with the constitution, Article 13, Section 1; and he expressed no opinion as to the point decided.

932. Drake v. The State. Error to the District Court of Washington County. Judgment reversed. No report.

zer.

MOTION DOCKET.

No. 340. Bolles v. Stockman. No. 341. Bevington, Guardian, v. MeinMotions for leave to file petitions in error to the District Court of Henry County, and to the District Court of Crawford County. FOLLETT, J.

1. Where a court acquires jurisdiction of an action, such court (unless the action be ended by the parties), retains jurisdiction until it renders a final judgment in the case.

2. Where a proceeding in error is prosecuted in the district court to reverse the judgment of the court of common pleas, a judgment reversing the judgment of the common pleas with costs, and remanding the cause to the court of common pleas for execution, is not a final judgment, but it leaves the cause pending in the district court.

Motions refused.

345. George B. Cass v. Frank Rothman. Motion for leave to file petition in error to the District Court of Putnam County.

OWEN, J.

A chattel mortgage is void as against execution creditors who assert their rights by levy after the execution of the mortgage and before its actual deposit with the proper officer.

Motion overruled.

No. 474. Cow Run Iron Tank Co. v. Lehmer. Error to the Court of Common Pleas of Washington County. Reserved in the District Court. MCCAULEY, J.

1. Where the owner of a quantity of petroleum delivered it for storage to a company formed for the purpose of transporting and storing such oil, and it was agreed by the owner and the company that certain allowances should be made for evaporation and certain charges be paid for storage, in an action by the owner against the company for an alleged conversion of the oil to its use, the allowance agreed upon for evaporation and the amount due for storage were proper subjects of counter-claim by the company.

2. The conversion of the oil made the company liable for its value, subject to all allowances and charges agreed upon in the receipts of storage; and the owner could not defeat the right of the company to make such allowances and charges a counter-claim by bringing his action as one for trover at common law.

Judgment reversed.

518. W. D. Kelly & Sons v. John A. Howell. Error to the District Court of Lawrence County.

DICKMAN, J.

1. Where there is evidence tending to prove negligence on the part of the defendant, and also evidence, from which, the proper inference to be drawn as to fault on the plaintiff's part is doubtful, it should be submitted to the jury to determine, whether the plaintiff was injured by his own fault or that of the defendant.

2. A contractor agreed with the owner of a mine to do certain work therein, the owner engaging to furnish and put up such props or supports for the roof of the mine, as would render the miners secure, whenever notified by the contractor that the same were necessary.

Held:

1. That although such notice from the contractor may not have been received by the owner, the owner, if he had actual knowledge that such supports were necessary, became liable in damages to an employe of the contractor, who, without negligence on his own part, had been injured while at work in the mine, through the want of such supports for the roof.

2. If the owner of the mine acted in behalf of a partnership of which he was a member, and the mine, at the time of the injury of the employe, was in the occupation of the firm, and the work was being done therein for the firm's use and benefit, the partnership will be liable for the neglect to furnish and put up the supports necessary for the safety of the contractor's employes.

Judgment of the District Court affirmed.

Error to the District Court

478. P., C. & St. L. Ry. Co. v. Leech, Adm'r.

of Jefferson Co.

NASH, J.

A section boss on a railroad' and his crew took a hand car to go from Reed's mill to a switch about one half mile east, where they would go from the main track upon a second track on their way to work. A passenger train which should have passed that point one hour and a half before was behind time. It overtook and run into the handcar, killing one of the section-men. The foreman did not know and had no reason to believe that the train had not passed and did not send to or go to the telegraph office, which was one mile distant, to ascertain about the passenger train. The deceased did not know of the whereabouts of the belated train, although he had the same opportunity of knowing as the foreman. There was no carelessness in the running of the train. Held: That the railroad company could not be required to respond in damages to the representatives of the deceased, as he voluntarily and without protest mounted and rode upon the hand-car.

Judgment reversed.

462. Day, Williams & Co. v. The New York, Pennsylvania & Ohio Railroad Company. Error to the District Court of Portage County. GRANGER, C. J.

A railway company entitled by contract to a deed for a definite strip of ground for a right of way, completed its track along said strip, near its centre; and was in actual possession and use of said track: Held: Such possession included so much ground (not adversely held by an other), upon either side of said track, as was reasonably necessary for the convenient use and maintenance of the railway, in the customary mode, and was constructive notice, to a subsequent purchaser, of the actual equitable title of the railway. McKenzie v. Perrill, 15 O. S., 162, and Williams v. Sprigg, 6 O. S., 585, followed and approved.

Judgment affirmed.

471. John Goodwin et al. v. The Commissioners of Van Wert County. Error to the District Court of Van Wert County.

BY THE COURT.

On May 29, 1877, a petition under Sec. 2, actof April 12, 1871, vol. 60 O. L., p. 60, as amended April 11, 1876, vol. 73 O. L., p. 181, was filed with the County Auditor. It asked the commissioners to establish a duly described ditch having a long northern arm; a shorter eastern arm, and a short connecting channel. The petitioners complied with all the requirements of the statutes. On September 6, 1877, the commissioners decided to construct the eastern arm alone, and continued the proceeding for the apportionment of the part to be constructed. Pending exceptions to the apportionment, the commissioners, on May 28, 1878, set aside the order of September 6, 1877, as irregularly made, and ordered due notice to all parties in interest that, on July 23, 1878, they would hear, and determine upon, the petition. On that day G., A., and E., three land owners, filed a protest against participation by one of the commissioners in the hearing, because he

owned land through which the ditch, if made, would run. By a vote of two "ayes" and one "no" the Board decided to make the whole ditch as prayed for. The commissioner objected to voted "aye." Between September 6 and May 28, a new member had entered the Board.

On August 14, 1878, G., A. and E., each perfected an appeal from said decision to the Probate Court. That court consolidated thethree appeals, and tried them, by jury, as one case. The verdict found that "the proposed ditches will be conducive to the public health, convenience and welfrae," and that "the route thereof is practicable." The judgment taxed the costs against the appellants. The common pleas and district courts affirmed the judgment.

Held: 1. The order, of September 6, 1877, was unauthorized by law. The Commissioners did not err in setting it aside and proceeding as if it had never been made.

2. The ownership of land cr ossedby the ditch did not disqualify the Commissioners from participating in the order made May 28, 1878. 3. The change in the Board was immaterial.

4. As each appeal raised the same public question, i. e. "whether it will be conducive to the public health and welfare to cause said ditch to be established?" the consolidation of the three appeals was right. Judgment affirmed.

MOTION DOCKET.

No. 49. William E. Hulett et al. v. Fairbanks et al.

Harvey J. Nettleton for contempt.

BY THE COURT:

Motion to attach

On the tenth day of June, A. D. 1884, the Supreme Court Commission reversed a judgment of the District Court of Lake County, and proceeding to render the judgment that said District Court should have rendered, ordered and adjudged, that, within ten days from that date. Harvey J. Nettleton, one, of the defendants in error, should make and deliver to the plaintiffs in error a certain deed. A special mandate was duly sent to said district court for execution thereon. Nettleton refused, and still ref uses, to deliver th deed. The Supreme Court Commission is now asked to punish him as for a contempt.

Held: Under Sec. 6726, Revised Statutes, theduty of enforcing the judgment of this court is imposed upon the said District Court. Motion overruled.

DIGEST OF CASES.

Custody of Child.—In a controversy as to the custody of a child, between a step-father and an adopted father who has failed to fulfill all the formal requirements of adoption provided by law, the question is to be decided according to the apparent interest of the child, taking into consideration all the circumstances of the case. Fonts v. Pierce, S. C. Iowa.

19 N. W. Rep., 884.

Common Carriers-Payment of Antecedent Charges.—It is not the duty of common carriers to pay antecedent charges on freight tendered to them by connecting carriers, even, where it is customary to do so. B. & O. R. R. Co. v. Adams Express Co., U. S. C. C., E. D. Mo., Oct. 21, 1884. 22 Fed. Rep., 32.

Constitutional Law-Assessment for Sidewalks.-A statute empowering the authorities of a city to construct sidewalks, and make local assessments on the property fronting the same, "for so much of the expenses thereof as they shall deem just and equitable," is unconstitutional in that there is no fixed, certain, and legal standard for assessment. Such assessment should be made in view of the benefit to the abutting land; but under this statute they may be made in view of the defendant's ability to pay. Barnes v. Dyer, S. C. Vermont. 30 Alb. L. J., 389.

Corporation-Stockholder-Inspection of Books-Mandamus.-The books and papers of a trading corporation are the common property of all the stockholders, and, unless the charter provides otherwise, a shareholder has the right to inspect such books and papers and to take minutes from them, for a definite and proper purpose, at reasonable times. A writ of mandamus may go against a corporation at the instance of a stockholder, to inspect the corporate books and papers in reference to some distinct, defined dispute as to which the shareholder wishes to file a bill against the corporation, and such inspection is necessary to enable him to state the facts in his bill. Com. v. Iron Co., S. C. Pa. 15 Pittsb. Leg. Jour., 142.

Chattel Mortgage.-Growing Crops.-Threatened Sale by Mortgagor.— Injunction.—A chattel mortgage of crops to be grown by the mortgager on land owned or possessed by him is valid. A mortgagee in a chattel mortgage, in an action against the mortgagor after condition broken, praying for an injunction restraining the latter from disposing of the property, is not entitled to temporary injunction to restrain a threatened sale of the property, because he has an adequate remedy by replevin. Minnesota Linseed Oil Co. v. Maginnis, S. C. Min. 4 Col. Law. Rep., 838.

Evidence. A witness is not to be cross-examined as to any distint collateral fact for the purpose of afterwards impeaching his testimony by contradicting him. Crittenden v. Commonwealth, Ky. Court App., June 14, 1884.

Mortgage-Railroad-Intervening Mortgage-In a suit in equity to foreclose a mortgage from a railroad corporation of its whole railroad, franchise, lands and property, which have since been put in the possession of a receiver, an intervening prior mortgagee of part of the lands is not entitled to have the amount of his mortgage paid out of the funds in the hands of a receiver, or out of the proceeds of a sale made pursuant to the decree of foreclosure, subject to his mortgage. Woodworth v. Blair, S. C. U. S. 17 C. L. N., 73.