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on the main track of the railroad, in a deep freight trains, by sending back a flagman to norock cut, upon a heavy curve in the road. While.tify approaching trains. I give special orders to he and the other laborers were at work loading construction trains where to work, and direct the train with grável, à freight train which was them by special orders from time to time, by tel. on its regular time was run into the construction egram or otherwise.' train without warning of any sort, and by the Lowen was boss of the laborers employed on the wreck which resulted from the collision, Hen- construction train. He hired and discharged derson was driven against the rocks, two or three the men and regulated the time and manner of of his ribs were broken, his shoulder was dislo- working. He had authority to require that the cated, and he was permanently injured. The train should be moved, as he might direct, with action was brought to recover damages for the reference to the work, but it was no part of his injuries, and in the court of common pleas there duty to observe the time of approaching trains, was a verdict and judgment in his favorfor that matter being confided exclusively to the $3,000, which judgment was affirmed in the dis- conductor. He was in the caboose until the trict court, and this petition in error was filed to freight train was within a few feet of the conreverse the original judgment as well as the struction train, and barely escaped serious injudgment of affirmance. The record contains all jury, but several persons beside Henderson were the evidence.

injured. Construction trains have no place on the In the amended petition the negligence of the schedule or time table, and by the printed rules superintendent, "boss," and the conductor of the of the company it is required that they shall be construction train, is stated, and the answer is a

, kept out of the way of all regular trains, freight | denial. as well as passenger, clearing their time at least ten minutes, and it is the duty of the conductor

J. Dunbar, for plaintiff in error. of the construction train to observe the time of The duty implied as incident to the employall trains and obey the rule. This rule, how- ment, and the question whether the special order ever, may be suspended as to freight trains by was reasonable, were questions of law. 5 Ohio special order of the superintendent of the rail- St. 567; 43 Ill. 421. The exception to the charge road company, whenever he sees fit to do so, in was sufficient. 10 Ohio St. 226; 29 Ohio St. 452; ; which case it is the duty of the conductor of the

32 Ohio St. 415. construction train, where such train is being

J. M. Estep, for defendant in error. loaded on the main track, to keep the train in its place and send a man with a proper signal to

Negligence is for the jury. 8 Ohio St. 580; notify approaching freight trains.

13 Ohio St. 66; 23 Ohio St. 10; 24 Ohio St. 639, In this instance the superintendent had made 668; 28 Ohio St. 23; 31 Ohio St. 480; 32 Ohio such special order, and the conductor of the con

St. 66; 35 N. Y. 10, 58 N. Y. 455; 77 N. Y. 72; struction train, keeping his train on the track,

Shearman & R. on Neg. $ 11. Rules must be had sent a flagman to notify the approaching Ohio St. 226; Negligence complained of is negli

reasonable. Shearman & R. on Neg. $93; 36 . freight train; but the flagınan performed his

. duty so negligently and improperly that the en

gence of Company. Shearman & R. on Neg. s gineer of the freight train understood his acts as

89: 33 Ohio St. 468; 73 N. Y. 40; 31 N. Y. 206; an order to go ahead and not stop. The engineer

42 Md. 117, 136; 6 Bing. 716. Employe takes says the flagman stood several yards from the

no risk of negligence of company. 1b.; 3 Ohio railroad track, holding the flag down at his side

St. 201; 31 Ohio St. 287; 17 Ohio St. 197; 36 with one hand and making notion with the

Ohio St. 221; Shearman & R. on Neg. $ $ 5, 10, other as for a forward movement. In this

89; 73 N. Y. 40; 53 N. Y. 553. Exceptions to

way the injury was occasioned, without any negli St. 584; 30 Ohio St. 105; 32 Ohio St. 77; 21

charge in gross and hence insufficient. * 25 Ohio gence on the part of the plaintiff. It would have

Wall. 158. taken six minutes to move the construction train to a side track from the place where it stood on OKEY, C. J. the main track.

Where a servant sustains injury by the negliBarrett was superintendent of the company. gence of his master, the master is liable in an acHë testified: “There are general printed rules tion by the servant for damages. A breach of for all trains, made in order to promote the safety duty by the master is not one of the risks which of persons and property. I establish these one assumes in entering upon the employment printed rules. I am the superior officer for that of another. This breach of duty may consist in

. purpose on this division. I give special orders employing other servants who are incompetent, and private instructions, as I think necessary, in providing unsafe machinery and structures, to annul or disregard the general rules. * * * in failing to notify the servant of peculiar danThey are not printed. * * * * Construction gers known to himself but not to the servant, or trains cannot occupy the main track without in needlessly placing the servant in a place of special instructions. It is the duty of the con- danger. ductors of construction trains to protect their As corporations act only through agents, it trains. I gave special order, which annulled the sometimes becomes important to determine what general rule as to construction trains, allowing persons stand in such relation to it as that their them to stand on the track until the arrival of negligence shall be deemed the negligence of the

property is valued for taxation decennially by | by the Constitution has no other test. There is township appraisers whose action is supervised nothing in the Constitution which requires by a county board of equalization, and finally, property to be taxed according to the same per as between counties, by a State Board of Equali- cent. of its true value in money, save only the zation composed of the Auditor of State and a one hundred per cent. The difficulty, therefore, member from each senatorial district. Personal in this case is not attributable to the laws, but to property generally is annually listed and valued a failure to execute them in conformity with their by the owner under oath. Some articles may be true meaning and intent. exhibited to the assessor who is required to Confessedly in this case, the property of the value the same. The returns of assessors are plaintiffs below, their bank shares, was valued eqrialized by county or city boards of equaliza- for taxation at only eighty per cent. of its true tio'.. Shares of bank stock are listed, valued value in money-plus the value of the real estate and equalized thus: The president and cashier owned by the bank. No word of complaint is of every bank is required to return under oath made against the officers of the law for violating to the auditor of the county in which the bank their sworn duty in placing this property on the is located, annually, the names and residences duplicate at its par value, instead of its true of all stock holders, the number of shares held by value in money, (as the Constitution required), each, the actual value in money of such shares, 1 which was one hundred and twenty-five per together with a description of all real estate cent of its par value. The complaint in subowned by the bank. Thereupon the auditor is stance, is, that they acted unlawfully and unrequired to deduct from the total actual value of justly towards the plaintiffs in valuing their all the shares, the appraised value of the real es- property for taxation, at more than forty per tate, and to place on the duplicate the remain- cent. of its true value in money. This greater der of the total value of the shares, in the names wrong, the plaintiffs below, would justify on the of the owners thereof, in amounts proportioned ground that other property in the county was to the number of shares owned by each. The not returned for taxation at more than forty per valuation of bank shares so fixed by county au

cent. of its true value in money. If upon this ditors is supervised by a State board of equali- ground alone, a court of equity can say that the zation, composed of the Auditor of State, Treas- valuation of the plaintiff's property must be reurer of State and the Attorney General, who are duced from 80 to 40 per cent. of its true value in authorized to hear complaints and equalize the money, because other property in Seneca County valuation of the shares so fixed, "by adding to has been taxed upon only 40 per cent. of its the valuation of the shares of any such banks or value, by what name shall we call the wrong banking associations as in their opinion are as- that will be perpetrated on the other 87 counties sessed below their value in money, or by reduc of the State, where all property, including shares ing the valuation of the shares of any such of bank stock, has been assessed according to its banks or banking associations, as in their opin- / true value in money, and upon which the rate ion have been assessed above their value in required for State purposes has been paid? money."

It must here be remarked, that in the petition Now, the point 18 made, as we understand the of plaintiffs below, no fraud, or conspiracy, or claim, that the inequality complained of in other unfaithfulness, has been charged against the plaintiff's petition, was the result of this di- the officers and agents of the law, who place the versity in the modes employed by the legielature taxable property of Seneca County, other than for fixing the valuations for taxation, of the differ- bank stocks, upon the duplicate at a valuation ent species of property: That legislation which of only forty per cent. of its true value. If it be leads to such results is obnoxious to the princi- possible that such a thing could have occurred ples of the Constitution, and, therefore, a tax through mistake or error of judgment, we are levied under it is illegal and void.

bound to say that such was the cause. And We wholly dissent from the first proposition. | such a thing is possible. The inequality complained of cannot, in any Where then lies the equity of this case. just sense, be attributed to the state of legisla. While it cannot be said that the plaintiffs below tion on the subject. Whether it was wise to should be compelled to pay more taxes in proadopt different modes and agencies for determin- portion to the value of their property than is reing the value of taxable property, we need not quired of other tax-payers of the county; it must consider. Much might be said in its favor. But affirmed that other tax-payers should pay as we can, and do affirm, with the utmost confi- much as is required of the plaintiffs, in propordence, that an honest and intelligent discharge tion to the value of their respective properties, of duty by those entrusted with the execution and that is to say, until all have paid the reof the respective modes provided by law, would quired rate upon the full and true value of their accomplish all that was intended by the Consti- | respective properties. If either be relieved from tution. A faithful execution of the different any portion of the burden according to this standprovisions of the statutes would place upon the ard, it must be on the ground of some accident, duplicate for taxation, all the taxable property mistake or error of judgment in determining the of the State, whether bank stocks or other per- value of their property, but not upon any ground sonal property or real estate, according to its of right. And if for such reasons the plaintiffs true value in money; and the equality required below, to a certain extent, and the other tax.

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payers of Seneca County, to a greater extent, es- a bill to restrain the collection of a state tax upon cape the payment of their just and equitable the shares of a national bank is bad on demurrer, share of the public burdens, surely equity, on the when it does not appear that there is any statumere ground of inequality as between them, will tory discrimination against them, or that they, not interfere to restrain the collection of an ex- under any rule established by the assessing offcess arising upon such inequality, to the detri- cers, are rated higher in proportion to their acmest and injury of other tax-payers throughout tual value than other moneyed capital; and that the State, whose property is subject to the same averments that the assessments were unequal and levies, and has been assessd in accordance with partial, are not sufficient. the very letter and spirit of the Constitution and Judgment reversed and action dismissed. laws of the State.

[This case will appear in 37 O. S.] Our statutes have made ample provision for the correction of mistakes and errors of judg

NORTH CAROLINA. ment committed by those intrusted, in the first instance, with the fixing of values upon taxable

(Supreme Court.) property. Even unjust and corrupt discriminations, can be relieved against in the special tri

RIGGS v, ROBERTS. October, 1881. bunals provided by the statute for the equaliza

1. Limitations, Statute of-offer to convey Lands to distion of values. As a general rule, the decisions

charge Debt.-An unaccepted offer to discarge the debt by of these boards must be held to be final and con- a conveyance of land is not such a recogoition of a subclusive. To these boards, and not to the courts,

sisting liability as to imply a promise to pay the debt,

within the statute of limitations. must complaints as to inequalities in valuations

2. Bankruptcy~New Promise. The new promise which be preferred. True, the attention of the auditor will revivu & debt extinguished by bankruptcy must be was called to the fact, that the valuation of these distinct and specific; and a mere acknowledgmeut of the bank shares was higher in proportion to their

debt, though implying a promise to pay, is not sufficient. true value, than the valuations of other property in the county; but there is nothing in the record

SUPREME COURT OF OHIO. to lead us to believe that the annual city and county boards of equalization would not, if com

JANUARY TERM, 1889. plaint had been made, have advanced the valua

Hon. John W. OKEY, Chief Justice; Hon. tion of all other property in the county to its true value in money. The opportunity provided

WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. by law for the correction of the inequality com

GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, plained of, was omitted. We cannot correct it Judges. now. And, if for such reasons, relief could be given to the plaintiff, we can see no reason why

Tuesday, March 21, 1882. the like relief should not be given to every tax

GENERAL DOCKET. payer of the State, whose property has been as- No. 1021. Upthegrove v. State. Error to the Court of sessed on more than 40 per cent. of its value,

Common Pleas of Paulding County.

LONGWORTH, J. even to the destruction of the revenues of the

In a trial upon an indictment charging the prisoner State.

with shooting at the prosecuting witness, with malicious What relief a court of equity would in a case

intent to kill, where evidence has been introduced tendof fraudulent conspiracy, or combination, or rule

ing to show that the act charged was committed by the

accused at a time when he was being actually assaulted adopted by those whose duty it is to fix the tax- by the prosecuting witness with a dangerous weapon, it able value of property, for the purpose of impos

is competent for the defense to prove that the general ing upon some property or class of property more

reputation of the prosecuting witness was that of a vio

lent and dangerous man, and that such general reputathan its just share of the public burdens, we need tion was known to the accused at the time of the assault, not now inquire. No such combination or rule as tending to support the plea of self defense. of action is shown in the case before us. Hence,

Judgment reversed.

31. The Pittsburgh, Cincinnati and St. Louis Railway the doctrine announced by the Supreme Court

Company_v. Albert M. Ranney. Error to the District of the United States in Pelton v. Bank, 101 U.S. Court of Franklin County. 143, and Cummings o. Bank. 101 U. S. 153, does MCILVAINE, J. Held: not apply in this case. But even in such cases,

1. Where, by the rules of a railroad company, brake

men on a train of cars are placed under the control and equity will not afford relief to a complainant direction of the conductor, the relation of superior and who can not show that the burden imposed on

subordinate, asbetween the engineer and a brakman, is him is greater than it would have been if the

notcreated by a rule of thu company requiring the engin

eer to give certain signals for setting or relieving laws had been faithfully executed by taxing all brakes, which also requires brakemen to work the brakes property by a uniform rule and according to its dccordingly: true value in money; and also, that the tribu

2. In such case, the engineer and brakeman are fellow

servants in a common employment; and the company is nals provided in the system of taxation, for re- not liable to either for an injury resulting from the negdress against inequalities, had been appealed to ligence of the other. Railway v. Lewis, 33 Ohio St. 196, in vain.


Judgment reversed and cause remanded. We are, however, entirely content to approve White, J. and Okey, C. J. diesented, on the ground and follow a later decision of the Supreme

that the injury to the brakeman was caused by the negCourt of the United States, National Bank v.

ligence of the engineer while the former was executing

directions of the latter, which, under the rules of the Kimball, 103 U. S. 732, in which it was held that

company, he was bound to obey.

560. The First National Bank of Xonia u. Daniel M. Stewart. Errior to the District Court of Groene County. Motion for stay of execution of the judgment of the dis trict court. Motion overruled.

1068. Amos Ainsworth v. The State of Ohio. Error to the Court of Common Pleas of Van Wert County. Judge ment reversed on the ground that the verdict is not sup ported by suficient oridence. There will be no further report.


22. Jonathan Hamilton v. Merrill and Shepard. Error to the District Court of Gallia County.

JOHNSON, J. Held :

1. No recovery can be had on a' bond given to obtaip the discharge of a watercraft, sei ed under the Watercraft Law of Obio, in an actiou against such craft, on a cause of a maritime nature, which is within the exclusive admiralty jurisdiction of the United States Courts.

2. The lact that the owner of such craft, after the bond was given, defended the action against it, on the merits,

Ithout objecting to the jurisdiction of the court, does ot estop bim and his sureties, from pleading such want of jurisdiction in an action against them on the bond.

The General Buell v. Long, 18 Obio St. 521, followed and approved. Judgment afirmed.

30. Pitts, Graham & Co. v. Christian Foglesong. Error to the District Court of Fairfield County.


One not induced by fraud who indorses & negotiable promissory note owned by another, for his accommodation, without restriction as to its use, is liable to an indorsee who receives it in good faith from the owner, before duo, as collateral security for an antecodent debt of such owner, although there be no other consideration for giving such collateral. Roxborough v. Messick, 6 Ohio St. 448, distinguished.

Judgment of the district court reversed, and judgment of the court of common pleas afirmed.

7. Archibal Dawson et al. v. The State of Ohio. Frror to the Court of Common Pleas of Wayne County.

Reserved in the district court.

BY THE COURT. An oficial bond conditioned for the faithful discharge of the duties of an office “according to law” embraces duties required by laws, in force during the term of the officer, whether enacted before or after the execution of the bond. · King, Cary and Howe v. Nichols, 16 Ohio St.

approved. Judgment affirmed.

1022. Charles Barnettf v. The State of Ohio. Error to the Court of Common Pleas of Washington County.


The plaintiff in error was indicted for burglary of a barn, under Section 6835 of the Revised Statutes.

On the trial tho proof showed that the building, wbich had been broken and entered, had boon errected by its owner on his farm, for a dwolling house, but had never been occupied or used as such, that its owner had for several yoars, and ever since its erection, used it to store wheat after it was threshed, and corn after it was husked, such grain being the products of the farm on which the building waş erected.

Held: Thát this building was a barn within the meaning of said section. Ratekin v. The State, 26 O. St. 420, followed and approved.

Judgment affirmed. 74. The State of Obio, on the relation of Archibald Dawson and others v. The Board of Education of the city of Wooster. Mandamus.


A special act taking effect on the day of its passage, required the board of education of a city to release the sureties of a county treasurer from liability for school funds of the board, which came to the hands of the treasurer for disbursement, but the release was not to be made until the question whether the sureties should be released was determined in favor of the release by a majority of all the votes cast in such city at the then next April election. Held, that the act is not in conflict with the Constitution; and the fact that judgment had been rendered against the sureties for the amount of such funds, will make no difference. Board of Education v. McLandsborough, 36 Ohio St. 227, followed.

Peremptory writ awarded.

21%. George W. Castlen v. Thomas Roberts et al. Error to the District Court of Clermont County. Settled by the parties and disinissed by their agreement on file.

140. Thomas C Dye v. Thomas C. Bowen et al. Error to the District Court of Marion County. Death of plainttitt in error suggested and on motion of Grayson Dye, his administrator, he is as such administrator, måde plaintiff in error in place of said Thomas C. Dye.

166. David Skeeles et al. v. Danial Van Horn et al. Error to the District Court of Carrol County, Settled by agreement of parties and petition in error dismissed.

No. 47. The State et rel. The Fidelity Mutual Ald As sociation v. Charles H. Moore, Superintendent of Ingur. ance. Mandamus. WHITE; J., Hed:

1... A company of another State organized for “insaring lives on the plan of assessment upon surviving members," without limitation, does not come within the class of companies provided for in Section 3630 of the Revised Statutes. That section does not embrace companles insuring the lives of members he benefit of others than their families and beira,

2. The supplementary act of ril 12, 1880 (77 0, L. 178), does not enlarge the class o Danies provided for in said section, but merely prescrit 38 be regalations an. der which such companies, whether domestic or foreign, may do business in the State, and subjects them to additional supervision.

Writ refused.
Okey, C. J., did not sit in this case.

3. Minnie E. Pempin and George Ellott v. Carrie Eaton, Motion for the allowance of a supersedeas in Chuse No. 822, on the General Docket. Motion overruled. 43. Cincinnati & Portsmouth Railway, Co.

v. Columbia and New Richmond Turnpike and Bridge Co. Motion to dismiss cause No. 685 on the General Docket, for want of printed record, and counter-motion for loave to print record. Motion to dismiss sustained and counter ma tion overruled.

48. The State of Ohio ex rel. Joseph Turnoy v. Luke A. Staley. Motion to take cause No 973 on the General Docket out of its order for bearing. Motion granted.

49. Isaac Burkhardt v. Westley Temperning. Motion for leave to docket cause reserved from the District Court of Williams County. Motion granted.

50. John G. Ridenor v. Theodore Mayo et al. Motien to compel plaintiff to cause to be printed certain parts of the record in cause No. 250, on the General Docket, pot embraced in the record as printed. Motion overruled.



(New cases filed since last report, up to March 14, 1882]

No. 1082. Henry B. Kelley v. City of Colombus. Er ror to the District Court of Faanklin County. Taylor & Taylor and Isaiah Pillars for plaintiff,

1083. Milton H. Miller v. J. T. Sullivan & Co. Error to the District Court of Hamilton County. Hogan & Bradwell for plaintiff.

1084. A. W. Lamson v. Jan Zootor. Error to the District Court of Cuyaboga County. Podrowell & Lamson for plaintiff.


POR ORAL AROUWENT, April 12tb-No. 40. W. H. Crabin, a'r . Nancy Marsh. Error to the Distriot Court of Clark County.

Ohio Law Journal.


so says Guiteau of his own achievement. Editors, clergymen, women and assemblymen, and

other sentimental people, may think this is COLUMBUS, OHIO, : MARCH 30, 1882.

praiseworthy conduct, but no sober and considerate man can think so. Such utterances are

extremely mischievous, and serve to encourage We would like to purchase a set of Lewin's murder. In one column a "leading" newspaper Crown Cases, second hand, if in good condition. has an article lamenting the increase of murder,

and abusing courts, juries and lawyers for not WE have received a communication from “A enforcing the laws, and thus detering men from Subscriber,” relating to “Judges with back-crime, and in the next column has a paragraph bones;” but no name accoin panies the article,

of illy-concealed or openly-avowed sympathy for therefore we cannot publish,

Mason, recommending him, not to mitigation of

sentence, but to absolute pardon. Then comes THE Supreme Court report this week, contains

the news of the attempted assassination of Dr. several decisions on questions of general inter

Gray by a fellow who, like Mason, wants to

avenge his outraged feelings, and who sees from est and importance, the full opinions in which, the newspapers that murder is not only comparwill appear in the Law JOURNAL next week. atively safe, but considered by many to be rather

meritorious when it is the offspring of such moAN IMPORTANT PAPER.

tives. These unthinking petitioners are sowing

the wind. It is incredible that the President GUITEAU'S CASE-A FULL REPORT OF JUDGE will pay any attention to these "crank" petiCox's CHARGE-NOTES BY FRANCIS WHAR- tions and utterances. Such a pardon would be TON AND ROBERT DESTY.

the signal for “twenty mortal murders." Such

petitioners are suborners of assassination.--AlThe Federal Reporter for February 28, 1882, bany Law Journal. contains a full report of the celebrated charge of OFFICIAL BOND - CONDITIONS - LAWS Judge Cox in the Guiteau case, with able annota

AFFECTING SAME. tions by Francis Wharton and Robert Desty. The note of Mr. Wharton covers 12 pages of

SUPREME COURT OF OHIO. bourgeois type, and involves an elaborate consid

ARCHIBALD DAWSON ET AL. eration of the subject of insanity, as well as an independent discussion of the management of the

THE STATE OF Ohio. trial and the conduct of the prosecution.

March 21, 1882. The annotation of Mr. Desty sharply defines

An official bond conditioned for the faithful discharge the limits and the character of the defense of in- of the duties of an office “according to law embraces

duties required by laws, in force during the term of the sanity, and is distinguished by that conciseness, officer, whether enacted before or after

the execution of clearness, and conclusive citation of authorities the bond. King, Cary and Howe v. Nichols, 16 Ohio St.

80, approved. which can only be found where there has been

BY THE COURT. a prolonged and exhaustive study of the subject. Error to the Court of Common Pleas of Wayne

A copy of this valuable number should be in County. Reserved in District Court. the hands of every lawyer.

The original action was brought by the State Price, 50 cents per number,

of Ohio against Jacob B. Koch, principal, and

the plaintiffs in error, sureties, on the official WEST PUBLISHING CO. bond of said Koch as treasurer of Wayne county St, Paul, Minn. for the term commencing on the 1st Monday of

September, 1872, and continuing for two years, Somebody has introduced a resolution in our and until his successor was elected and qualified. Assembly praying the President to pardon Ma- Koch was elected on the 2d Tuesday of October, Bun. The New Jersey Legislature have actually 1869, and the bond sued on was executed on the passed such resolutions. Very “respectable" 6th of December, 1869. The condition of the newspapers are advocating the same

bond was as follows: Mason says that his only regret is that he did “Now if the said Jacob B. Koch shall faithnot kill Guiteau. He glories in a wicked and

He glories in a wicked and fully discharge all the duties of his said office, dastardly act. Why should he be pardoned? If and shall pay over according to law all money he had been the President's guard, instead of which shall come into his hands as such county Guiteau's, and in the heat of the moment had treasurer for State, county, township, or other killed the assassin, he might well have been ex- purposes during his said term of office, then cubed. But he lay in wait and deliberately tried this obligation to be void, otherwise to be and to kill the prisoner whom he was set to guard, remain in full force and virtde.” and he is only sorry that he did not succeed. At the date of the execution of the bond, the Trae, he says his motives were "patriotic;" but city of Wooster, a city of the second class with a

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