time to dispose of another class, all cases in- they all pronounced excellent, a resolution was volving a certain amount of money. A system to accomplish this should be the one adopted. "Absolute justice to every one cannot be expected of human institutions." Causes of delay in the intermediate courts shall also be removed. Among Judge Smith's suggestions in this direction were: That the circuit court should not be called upon to hear, de novo, appeals from equity trials in the common pleas in which the whole case is heard anew, as though tried originally. The period in which the issue between the parties is made up should be limited. The adoption of a rule of practice similar to one prevailing in the English courts whereby a plaintiff may moye for immediate judgment unless the defendant shows that he has a real defense. adopted providing that the talk be published in pamphlet form by the association and distributed throughout the state. SUPREME COURT OF OHIO. Causes on the general docket to and including No. 3688, are called and marked submitted. This includes the first seventy-five cases on the present docket from the end of the last call of the last term, which was to and including 3567. The cases on the present docket prior to the last named number, are, with few exceptions, marked for oral argument, and have been heretofore called, and not disposed of for want of time to hear the same. TUESDAY, January 21, 1896. General Docket. 4423. Edward Jones v. The State of Ohio. Error to the circuit court of Wayne county. SHAUCK, J. 1. An indictment under section 6816, Revised Statutes, for carnally knowing a female child under fourteen years of age need not aver that she is not the daughter or sister of the accused. (Howard v. The State, 11 Ohio St., 328, distinguished.) The judge recommends a change in the jury system, and thinks that, however much it may have been anciently regarded as the bulwark of our liberties, it is no longer so regarded, especially in our large cities, and refers to the general demand for a jury trial when the attorney is somewhat doubtful of the merits of his cause. The first recommendation the judge makes for reform in the jury system is the abolition of the constitutional requirement of unanimity on the verdict by which it would render it impossible for one or two ignorant or corrupt jurymen to render the trial abortive by failure to agree. Another is the 3. The recollection of a witness concerning a improvement of the standard of men in the fact in issue cannot be corroborated by the conjury box as to qualification, and to accomplish tents of a memorandum made by himself, long this he recommends the abolishing the priv-after the circumstance, showing his recollection ilege of securing exemption from jury duty by purchase of a military certificate. Judge Smith thinks the Ohio system of providing judges entirely wrong. He believes in the appointive power, and that the best results could thus be attained, but believes that a majority of the people would not now consent to so radical a change. However, if the elective judiciary must continue the terms of office should be increased to not less than fifteen years. The speaker closed with an eloquent appeal to the Cincinnati association to meet the emergency which has arisen, and lend its aid to promote the reforms so much needed. The paper was a lengthy one, but Judge Smith had the entire attention of the association, and at his conclusion was met with a hearty burst of applause. Not only this, but after quite a number of attorneys had commented upon the sentiment expressed, which 2. On the trial of the issues joined by the plea of not guilty it is error to admit evidence whose only effect is to show that others believe the accused guilty. at a former date. Judgments of the circuit court and court of common pleas reversed. 4519. The Pennsylvania Company v. James McCann. Error to the circuit court of Mahoning county. BRADBURY, J. 1. The general assembly of this state has authority to prescribe the circumstances that shall constitute prima facie evidence of a fact in issue in an action on trial in the courts of this state, whether the cause of action to which it relates arose within or without the territorial limits of the state. 2. The provision of the second section of the act of April 2, 1890 (87 Ohio Laws, 149), which provides that when certain "defects shall be made to appear in the trial of any action in the courts of this state, brought by such employee or his legal representatives against any railroad corporation for damages on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation," applies to all railroad companies any part of whose line of railway extends into this state, whether the injury complained of was received within or without the state. Judgment affirmed. BURKET and SHAUCK, JJ., dissent. 4805. The State of Ohio v. Omer N. Gardner. Exceptions to the court of common pleas of Summit county. BRADBURY, J. In a prosecution for offering a bribe to an officer, who is acting as such under a statute providing for the government of a municipal corporation, the defendant cannot question the constitutionality of such statute. Exceptions sustained. SHAUCK, J., dissents. 3156. The C. H. & D. Railroad Co. v. The Metropolitan National Bank. Error to the superior court of Cincinnati. SPEAR, J. An action cannot be maintained against a bank by the holder of a check for refusal to pay it unless the check has been accepted, although there stands to the credit of the drawer on the books of the bank a sum more than sufficient to meet the check. Judgment affirmed. 3492. E. J. Letts V. Margaret Kessler. Error to the circuit court of Cuyahoga county. BURKET, J. L. and K. owned adjoining lots, and L. erected on his lot a board fence reaching to the roof of K's house which stood on the line of the two lots, which fence shut off light and air from the windows of the house of K. to its injury, which fence was so erected by L. for no useful or ornamental purpose, but from motives of unmixed malice toward K. In an action by K. against L. to compel the removal of the fence, held: That L. had a legal right to erect and maintain such fence, and that neither law nor equity could compel its re moval. Judgment reversed, and judgment for plaintiff in error. 3246. The Snyder Manufacturing Co. v. Andrew G. Snyder et al. Error to the circuit court of Ashtabula county. WILLIAMS, J. 1. Upon the dissolution of a trading copartnership, its assets, including the good will of the business, may be sold as a whole, either by the partners directly, or through a receiver under an order of court in a case to which they are parties; and a purchaser thereof, under either method of sale, is entitled to continue the business as the successor of the firm, and make use of the firm name for that | purpose. 2. Where the purchaser transfers the property so acquired by him to a corporation of which he is a member, organized to succeed to the business, it may carry on the business in the same manner, under a corporate name including the name which had been used by the firm. Judgment reversed, and judgment for the plaintiff in error on the pleadings. 2605. The Columbus, Hocking Valley and Toledo Railway Co. et al. v. Stevenson Burke et al. Error to the circuit court of Lucas county. MINSHALL, C. J. 1. No action can be maintained on an injunction undertaking except in accordance with its terms; and this is true with respect to the principal as well as the sureties. 2. Where in a suit for specific relief, a teman undertaking as required by statute (section porary injunction is allowed on the giving of 5576, Revised Statutes), and subsequently the parties submit the issues of law and fact in the case to arbitrators selected by themselves and bind themselves to abide the award, it being in no way made subject to the approval of the court; and the arbitrators make an award in pursuance of the submission, that the plaintiff is not entitled to the relief asked in his petition, and award that he dismiss his action; and, afterward, the action is so dismissed by consent of the parties and the injunction dissolved, such award is not a judicial determination that the injunction ought not to have been granted, and will not support an action on the undertaking; nor will such dismissal by consent estop the defendants from making such defense. 3. Where, in such case, the submission to arbitration stipulates that its execution should not impair the liability of the obligors on the undertaking, the obligors are not, in an action on the undertaking, precluded from claiming that the award does not furnish a predicate for the action. 4. Where an action is dismissed by consent, and a temporary injunction pending in it, dissolved without any judicial action of the court, but as a consequence of the dismissal, such dissolution is of no avail in an action on the injunction undertaking. The judgments of the circuit court and of the common pleas, reversed; and judgment for the defendants below upon the pleadings and admitted facts in the case. BURKET and SHAUCK, J. J., dissent. 3509. Elzy Barton et al., Trustees, v. Andrew Campbell et al. Error to the circuit court of Morrow county. BY THE COURT: 1. Section 4715, Revised Statutes, directs the supervisor of roads to open all public roads laid out and established in his district, and to remove “all encroachments, by fences or otherwise," thereon. Motion allowed. Briefs to be filed within rules. 2. A worm rail fence five feet in width, con- docket. structed with the middle of the worm on the line of a public road, thereby placing two and one half feet of the fence in the road, is an "encroachment," within the meaning of this section, which, upon notice from the township trustees, it is the supervisor's duty to remove. Judgment reversed and petition dismissed. 2491. James Ross, sheriff, v. John B. Willet. Motion to dismiss petition in error. BY THE COURT. New Cases. Cases filed in the supreme court since Januuary 15, 1896 : 4828. Albert L. Pfau et al. v. The Enterprise Window Glass Co. Error to the circuit court of Wood county. J. A. & E. V. Bope, S. P. Harrison, Troop & Dunn, for plaintiffs. Baldwin & Harrington, for defendant. 4829. Geo. P. Elliott, Treas., v. Nelson CumSection 4988, of the Revised Statutes is ap-mins, Ex'r. Error to the circuit court of Wilplicable, by analogy, to proceedings in error. Motion overruled. 3253. The P., C., C. & St. L. Ry. Co. v. John A. Long, Adm'r. Error to the circuit court of Harrison county. Judgment affirmed. SHAUCK, SPEAR and BURKET, JJ., dissent. 3580. The City of Columbus v. Ezra H. Williard, et al. Error to the circuit court of Franklin county. Judgment affirmed. 3655. P. Jacobs v. R. A. Robinson, cashier. Error to the circuit court of Jackson county. Judgment affirmed. 3656. George W. Miller v. R. A. Robinson, cashier. Error to the circuit court of Jackson county. Judgment affirmed. 3674. John S. Brasee et al. y. Levi L. Rockey, Assignee, et al. Error to the circuit court of Fairfield county. Judgment affirmed. 3685. Cornelius H. Fisher et al. v. Catherine Nair, et al. Error to the circuit court of Wayne county. Judgment affirmed. 3772. The C., S. & H. Ry. Co. et al. v. Angus McEachen, Adm'r. Error to the circuit court of Perry county. Dismissed by plaintiffs in error. 4304. Amelia Gilliland v. The City of Dayton et al. Error to the circuit court of Montgomery county. Judgment modified. 4396. Sarah G. Schneider et al. v. The City of Columbus. Error to the circuit court of Franklin county. Judgment affirmed. 4604. The South Side Street Ry. Co. v. Thos. J. Mooney. Error to the circuit court of Cuyahoga county. Judginent affirmed. Motion Docket. 2540. Thomas C. Kelley v. The Oo Oil Co. Motion by plaintiff for temporary injunction in cause No. 4804, on the general docket. Motion overruled. 2541. Webster Hosler, an infant, v. The Findlay Street Railway Co. Motion by plaintiff to advance cause No. 4694, on the general liams county. John M. Killits, for plaintiff. Bowersox & Starr, Jas. Cummins, Jr., and J. D. Hill, for defendant. 4830. The L. S. & M. S. Ry. Co. v. Albert E. Gove. Error to the circuit court of Cuyahoga county. Dickey, Brewer & McGowan, for plaintiff. W. H. Polhamus, for defendant. 4831. Comer Porter v. Geo. F. Smith. Error to the circuit court of Allen county. I. R. Longsworth, for plaintiff. Hoagland & Creps, for defendant. 4832. J. H. Lynch v. Michael Dickey. Error to the circuit court of Darke county. Sater & Robeson, for plaintiff. M. B. Trainer, for de fendant. 4833. The Adams Express Co. v. The State of Ohio. Error to the circuit court of Franklin county. Ramsey, Maxwell & Ramsey, for plaintiff. State of Ohio. Error to the circuit court of 4834. The American Express Co. v. The Franklin county. Ramsey, Maxwell & Ramsey, for plaintiff. 4835. The United States Express Co. v. The State of Ohio. Error to the circuit court of Franklin county. Ramsey, Maxwell & Ramsey, for plaintiff. 4836. The C., H. & D. R. R. Co. v. James A. Norris. Error to the circuit court of Miami county. R. D. Marshall, A. F. Broomhall, for plaintiff. Clyde & McPherson, for defendant. 4837. Adelia M. Tullis v. Stephen Peirano. Error to the circuit court of Hamilton county. Clement Bates, E. R. Von Mortels, for plaintiff. Bromwell & Bruce and Henry Hooper, for defendant. 4838. Louis Schenerer v. Joseph V. Irwin. Error to the circuit court of Hamilton county. Von Seggern, Phares & Dewald, for plaintiff. L. W. Irwin, W. A. Hicks, P. W. Schuchardt and Jno. W. Wolfe, for defendant. 4839. Palmer & Crawford v. Wm. C. Tingle. Error to the circuit court of Putnam county. Leasure & Powell, for plaintiff. Watts & Moore and Wm. C. Tingle, for defendant. Subscriptions and business communications should right of certain officers to appoint a recorder be sent to the publishers. SUBSCRIPTION PRICE, $2.00 PER YEAR, IN ADVANCE. One volume each year, beginning with November. Ohio Decisions. The publishers of the LEGAL NEWS publish annually three volumes. which contain the reported decisions Ohio Decisions. Advance sheets of these volumes for temporary use of subscribers are issued each week as supplements to the LEGAL NEWS, without additional charge to subscribers to the volumes. of the courts of record of the state. under the title of Bound Volumes to fill a vacancy caused by the recent change of the state law. Quo warranto proceedings have been begun in the supreme court against the recorder of Licking county, who was appointed to fill a vacancy between his first and second terms, and against one of the commissioners appointed to fill a similar vacancy. Since the decision of the supreme court in the case of the State v. Gardiner, in order of Ohio Decisions subsequent to volume 3, delivered, that the uncertainty as to the validity of the express paid, to subscribers. $2.50 per volume. Supreme Court Reports. 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To subscribers to the LEGAL NEWS, $2.50 per volume. governmental act for Youngstown may be removed, and if declared invalid, other legislation can be had to supply the defects, before the legislature adjourns, a friendly suit will at once be started by citizens of that city, and prosecuted to as rapid a termination as possible. SUPREME COURT PROCEEDINGS. TUESDAY, January 28. General Docket. Causes on the general docket to and includ. ing No. 3688, are called and marked submitted. This includes the first seventy-five cases on the present docket from the end of the last call of the last term, which was to and includ Bound volumes of Vol. 1, OHIO LEGAL NEWS (Toledoing 3567. The cases on the present docket Legal News) will be furnished at $2.00 per volume. Bound copies of Vols. 1, 2 or 3 of Ohio Decisions, or of the LEGAL NEWS will be sent in exchange for the advance sheets, at $1.00 per volume in full sheep or 75 cents in half sheep. Entered at the Postoffice, Norwalk, Ohio, as second class matter. The case of Shaver v. Penna Co., given in our advance sheets of federal cases this week, is one of far reaching importance. The act of the legislature inhibiting what are familiarly known as Railway Relief Contracts, is declared as unconstitutional and void, as it deprives men of their liberty, and of the right to exercise privileges of manhood without due process of law, and is a very dangerous kind of class legislation. It is well that the general assembly take notice of the principles involved in this decision and apply them to other pending legislation involving the same objections. prior to the last named number, are, with few exceptions, marked for oral argument, and have been heretofore called, and not disposed of for want of time to hear the same. 3676. The Mt. Auburn Cable Railway Company v. George W. Neare et al. Error to the superior court of Cincinnati. BY THE COURT: In the extension of a street railway under the provisions of section 3437 to 3443, inclusive, the consents of the owners of more than abutting on such street to be occupied by such one-half of the feet front of the lots or lands extension are requisite. Judgment affirmed. 3331. George W. Taft v. Mary F. Chard. Error to the circuit court of Hamilton county. Dismissed by consent. 3571. S. M. Bachman v. Daniel H. Ryan. Error to the circuit court of Darke county.. Judgment affirmed. 3574. Henry Schmidt v. Richard McBride, administrator. Error to the circuit court of Greene county. Judgment affirmed. 3575. Henry Schmidt v. Richard McBride, administrator. Error to the circuit court of 'Greene county. Judgment affirmed. 3576. Magdalena Georgia v. Charles W. Weist. Error to the circuit court of Montgomery county. Judgment affirmed. 3592. John V. Sanfleet v. The City of Toledo et al. Error to the circuit court of Lucas county. Judgment affirmed. 4129. The C., H. & D. R. R. Co. v. William Watson. Error to the circuit court of Hamil ton county. Dismissed by consent at costs of plaintiff in error. 4579. The N. Y., C. & St. L. Railway Company v. Minnie Kimmel, administratrix. Error to the circuit court of Seneca county. Judgment affirmed. 4589. The Ohio and Mississippi Railway Company v. Herman J. Seegers, administrator. Error to the circuit court of Hamilton county. Judgment affirmed. BURKET and SHAUCK, JJ., dissent. 2547. The City of Galion v. William Lauer. Motion by defendant to advance cause No. 4627 on the general docket. Motion allowed, briefs to be filed within rules. 2548. The City of Galion v. William Lauer. Motion by defendant to dispense with reproducing map in printed record in cause No. 4627 on the general docket. Motion allowed. 2549. The State of Ohio v. William Warren et al. Motion for leave to file a bill of exceptions to the court of common pleas of Athens county. Motion allowed. 2550. The Akron Printing and Publishing Company v. Arthur W. Carrier et al. Motion by plaintiff to reinstate cause No. 3638 on the general docket. Motion overruled for the 4841. Norman B. Lithgow v. Ozias Shook. Error to the circuit court of Monroe county. Mallory & Jeffers, Blackmore & Young, Jennings & Richner, for plaintiff. J. P. Spriggs & Son and E. L. Lynch, for defendant. 4842. The N. Y., C. & St. L. R. R. Co. v. Error to the circuit court S. E. Williamson and A. Jasper Dukes et al. of Hancock county. F. and R. A. Blackford, for plaintiff. 4843. The State of Ohio on application of Frederick Broermann v. Frederick Bader et al., Comrs. Error to the circuit court of Hamilton county. Maxwell & Wilson, J. R. Von Seggern, for plaintiff. Spiegel, Foraker & Rendigs, for defendants. Free et al. Error to the circuit court of Sen4844. Annie R. Huber et al. v. Frederick eca county. Brewer & Brewer, Keppel & N. & A. Kransewfsky, for plaintiffs. Seney & Sayler. for defendants. Error to the circuit court of Lawrence county. 4847. Charles Henry et al. v. John Ankrim. A. R. Johnson, for plaintiffs. 4848. The State of Ohio v. Wm. Warren et al. Exceptions to the court of common pleas of Athens county. J. P. Wood, for plaintiff, E. D. Sayre, for defendants. 4849. Annie Coldham v. The Pacific Mutual Life Ins. Co. Error to the circuit court of Lucas county. Frank H. Hurd, A. H. Coldham, for plaintiff. Doyle, Scott & Lewis, for defendant. 4850. The Prudential Ins. Co. of America v. Elizabeth Strong. Error to the circuit court of Franklin county. R. S. Swepston, for plaintiff. Bachman & Bachman, for defendant. 4851. The State of Ohio ex rel. AttorneyGeneral v. John H. Moore. Quo warrauto. Attorney-General Frank S. Monnett, for plain tiff. 4852. The State of Ohio ex rel. AttorneyGeneral v. Andrew J. Crilley. Quo warranto. Frank S. Monnett, for plaintiff. |