It becomes necessary to advertise the fact that we have again changed our location and may hereafter be found at 42 North High Street, (or 17 East Gay.)

We desire that it shall be understood that the OHIO LAW JOURNAL is not a tramp, although our frequent change in location would indicate as much-almost. The fact is we have been compelled three several times to hunt up quarters sufficiently commodious to meet the demands of our steadily growing business.

The OHIO LAW JOURNAL has become well established and recognized as the only paper of the kind worthy of the name, in Ohio, and is regarded as a necessity in the offices of all the best attorneys in the State. This assertion contains no covert egotism. It is meant, and will be received as a well deserved tribute of praise to the lawyers and judges who understand the necessity of keeping fully informed of all the proceedings of the Supreme Court of the State. We claim no merit for our paper, except that we publish as soon as written ALL THE DECISIONS of the Supreme Court of Ohio. We miss none. The judges of the Supreme Court appreciating the anxious desire of the profession to be placed at once in possession of the full text of all decided cases place it within our power to thus publish as soon as written, each and every case decided. The State Reporter, Mr. E. L. DeWitt, heartily seconds this praise-worthy action of the Supreme Court, and we, are simply the medium through which the good is accomplished. The generous support our project has received since the first number was issued, has given us a steady growth and thereby wrought good to us and our patrons, as well. Our large and commodious rooms where we are now permanently established are unexcelled in point of size and convenience, by any newspaper or printing house in the State. We

e hope attorneys will remember that we make the printing of briefs and records for the Supreme Court a specialty.

All that is necessary in order to get your cases properly into the Supreme Court, is that you prepare your petition in error, and send that, with the original papers, in the case to the clerk of

the Supreme Court, with an order that the printing be done by us. We take the papers and select and arrange those, and only those, necessary to be printed, print the record, reading all proof ourselves, file ten copies with the clerk and send the rest (fifteen) to the attorney for the plaintiff in error.

We guarantee satisfaction both as to work and price. Of the former we say fearlessly that it cannot be excelled; and of the price, we say, that will also give satisfaction. From 70 to 90 cents per page of printed matter-standard and regulation size of page-is the price, which is from 25 to 50 per cent. less than prices charged by other houses. We shall be glad to hear from our friends upon this subject.

THE UNITED STATES SUPREME COURT REPORTER.

WE acknowledge the receipt of No. 2 of this valuable publication which is to be issued monthly from the well known publishing house of Mills & Co., Des Moines, Iowa. The editorial work is performed by the Hon. Samuel F. Miller, one of the Justices of the Court.

The Reporter, in so far as it gives to the profession promptly and regularly all the decisions. of the Supreme Court of the United States, is in fact, a necessity, and will be so received. But, if Mr. Justice Miller intends, as we are compelled to say seems apparent from the remarks contained in the number before us, to make use of his editorial pen to belabor his fellow judges, and give expression to his chagrin and ill humor when the court does not decide cases as in his . opinion it should do; we fear the real merit of the enterprise will suffer fatal detraction.

The country just now, of all things desires that the great accumulation of business in the highest court of the nation should be disposed of and the cases now filed be certain of adjudication within the lives of the parties, at least. The time of each of the judges is, or ought to be, wholly occupied in an attempt to secure this laudable consummation

In the course of his editorial comments upon the case of Baxter v. Barbour, wherein arises the question of the liability of a Receiver in Chancery to be sued in a Common Law Court, Justice Miller remarks, "the judgment just rendered here is without support in authority and unsound in principle." This is an ex cathedra opinion with a vengenace. We had supposed there was no man in the United States, except

Irving Brown of Albany, who knew more law and was a better judge than all the courts and judges of the country combined; but we see from this that Mr. Justice Miller has views and small hesitation to express them. We very much doubt the policy, however, of the expression.

We beg to suggest that the Reporter follow the plan of the OHIO LAW JOURNAL, and indicate the volume of the Reports in which these cases published will appear.

AN IMPORTANT LIFE INSURANCE CASE. WE publish elsewhere in full an important life insurance case from the Court of Appeals of Kentucky, which rules very sensibly that representations made by the applicant although false, will not invalidate the policy unless the insurer was induced thereby to assume a risk he would not otherwise have done. We all know the extremely pertinacious manner in which life insurance agents press their requests for "applications," and how lenient they are in the matter of eliciting replies to the questions contained therein. In fact, these replies are not really accurate in one application in a hundred. The applicant is led to believe that they are simply formal and the answers are given in a hap-hazard way, which frequently, being taken advantage of, avoids payment of the claim in case of the death of the death of the insured. It really can make no difference whether the great-grandmother of the applicant died of mumps or measles; yet, if measles is the reply and mumps ac tually took away the good lady, the family of her great-grand-son may become beggars thereby. This is really believed to, be good law by some courts, and we are glad to see the case we refer to, and publish it at length although it is very long.

CORRESPONDENCE.

LANCASTER, O., May 24, 1882.

EDITORS OHIO LAW JOURNAL:

I was surprised on reading the "JOURNAL" of the 18th, to find reported in full on page 509, the (to me) familiar case of State v. Wm. Linkhaw, 69 North Carolina, 214.

This case was decided by the Supreme Court of North Carolina in 1873; is reported in full in Green's Criminal Law Reports vol. 1, page 288, published in 1874, is digested in Waterman's Criminal Digest, page 540, par. 7, (published in 1877) is cited fully in 2d Archbold's Cr. P. P.

8th edition (1877) page 1806, and in vol. 2, Bishop's Criminal Law (7th ed), page 172, section 310, note 5.

Now, while I acknowledge your constitutional right to conduct your business and paper in your own way, yet I (and I think many other lawyers) take legal periodicals to be informed as to the latest decisions, and must, as one of your subscribers, mildly protest against taking up the space in your valuable journal in reporting "old eases" which should be on the shelves of every criminal lawyers library.

With best wishes for your success I remain
Very respectfully,
Your obt. svt.,

J. G. REEVES. Under ordinary circumstances our esteemed correspondent would be justified in finding fault with our publication of cases decided so many years ago, as was the one to which he refers. We should have stated at the time we published it, that the case of State v. Linkhaw, was re-published by us at the request of a gentleman, who, like Mr. Linkhaw, has a voice which harmonizes only with a combination of steam-whistles and saw-filing, and he wants his neighbors to understand that the exercise of his musical powers is an inalienable right and that he means to sing. The case itself, aside from its importance as an authority, is of great interest as an example of ludicrous circumstances upon which are predicated both civil and criminal cases at law.

We have received the following communication, written on a postal card, from a gentleman in Cincinnati. We suppress the name of the writer for obvious reasons, although it would serve him right to publish it in full. A tender regard for the feelings of his family and friends secures him from the publicity he deserves, as no consideration is ever otherwise extended to such offenders.

Cincinnati, O., May 29, 1882.

ED'S OHIO LAW JOURNAL:

We have in this city nearly, or quite, five hundred members of the Bar. There are probably three hundred lawyers. I find upon investigation that there are only two hundred of these lawyers whose names are on the books of the OHIO LAW JOURNAL as subscribers. The inference is plain that one hundred of them draw their legal pabulum from somebody else's OHIO LAW JOURNAL. Now, for example, your correspondent is prepared to say that it is only with the aid of a club that ye is able to get the LAW JOURNAL at all. The hungry cranks who are too stingy to take a paper so indispensable as is your publication, come sneaking around on Thursdays about the time the mail from Columbus is distributed, as regularly as a

dog watches for a butcher's cart, and gobble up the LAW JOURNAL, leaving subscribers fasting. I want you hereafter to mail two copies to my address -One on Thursday and a second one on Frid. v. Of course I will not pay anything extra. I will read but one and propose to pay for what I read. In the interest of the common brotherhood of lawyers, and the dissemination of the good of the order, this proposal is made by Yours Truly, Milton Sater, Att'y at law.

OF COURSE HE WAS AN OHIO MAN.

HAMILTON, OHIO, MAY 21, 1882.

ED'S OHIO LAW JOURNAL:

In your last issue under the head of "New Publications." you make mention of the "Texas Law Journal," remarking that the first number contained a portrait of Hon. Royall T. Wheeler," which you presume is a fair likeness of a worthy man."

Royall T. Wheeler died in 1864-eighteen years ago. He was not unknown to fame, having filled with distinction various judicial positions from that of Prosecuting Attorney to Chief Justice of the State of Texas. His chief characteristic, however, was great purity of character and business integrity. He was a temperance teetotaler and moral reformer.

He went to Texas in 1839, supported annexation, and despite his early Whig training, became an ardent secessionist.

He was an "Ohio man," having been brought up and educated, both in law and letters, in this State. The Texas Law Journal does well to preserve in the pages of historical jurisprudence the memory of so good man. Very Truly,

J. M. Warwick.

THE POND LAW.

The Pond law was, on Tuesday, decided unconstitutional by the Supreme Court in the case of the State ex rel. v. Hipp, the syllabus in which case may be found in our court report. The opinion in the case has not yet been written, but will be in time for next week's issue. We also hope to publish the dissenting opinion of Judge Johnson in the same issue.

SUPREME COURT OF OHIO.

UNION CENTRAL LIFE INS. Co.,

v.

EMMA CHEEVER.

The application contained among others the following question and answer : "Have you had during the last seven years any sickness or disease? If so, state the particulars and the name of the physician or physicians, who prescribed or were consulted." Answer. "No." The application was a warranty.

Held, that the applicant could not be required to state what he did not know; the inquiry was directed to such sickness as would manifest its presence in some way,

but as to such he must state the facts as they were, and not undertake to judge for himself whether they came within the meaning of the terms sickness or disease. The existence of a disease so manifested would avoid the policy regardless of the judgment of the applicant.

Held, that the terms were not intended to include every bodily ailment, however slight, but in their ordinary sense to include such ailments as are calculated to impair the general health or to produce death, and such as indicate a vice in the constitution and are signs or warnins of danger.

The substantial truth only was required. Life Ins. Co. v. Francisco, 17 Wall, 672.

The charge is sustained by Cushman v. Ins. Co., 70 N.Y., 72.

The temporary ailment in this case was a swollen gland in the neck, which had been angered and cut into in the course of improper treatment, and the charge is, as if the court said, before such a temporary ailment can be called sickusss or disease within the meaning of this application, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing on the general health or the continuance of life.

To say, as the plaintiff in error argued below, that this charge is wrong, because typhoid fever or small pox are temporary ailments, which, after recovery, neither indicates a vice in the constitution nor affect the general health or the continuance of life-crgo, typhoid fever and small pox are not sickness nor disease- this is illogical, and that is all we need say about it.

The charge of the court had reference only to the testimony in this case, and contemplates no C. D. ROBERTSON, defendant in error. other state of facts and under the facts and circumstances of this case, the charge was corJones v. Ins, Co., 91 E. C. L., 65; Ins Co. v. rect. Watson v. Mainwaring, 4 Taunt., 763; Francisco, 17 Wall., 672; Holman v. Ins. Co., 1 Woods, 674; Southern Life Ins. Co., v. Wilkinson, 53 Ga., 535; Higbeev. Guardian Ins. Co., 53 N. Y., 603.

Charge of the Court below at February Term, 1881, of the Superior Court of Cincinnati. HARMON, J.

Gentlemen of the jury: It has been my duty during the trial to determine what evidence is and what is not proper to be considered by you in this case. Of this I am the sole judge, and you are to consider, in making up your verdict, only such evidence as I have permitted to be given. You are to pay no regard to what either side has offered but has not been permitted to prove, nor to what, after being heard, I have ordered to be withdrawn or stricken out:

My duty, now that both sides have concluded their evidence, is to explain to you just what it is you are to decide, and the principles of law which you must bear in mind in reaching a decision. A jury is not permitted in any case to give a verdict upon any general ideas they may have of what is right or proper. This would make the administration of justice too uncertain, depending as it would upon the varying

standards of judgment of those who compose juries.

The jury is sworn, therefore, in each case, mot to render such verdict as they think just and proper, but "to well and truly try the issue joined between the parties and a true verdict render according to law" (which they must accept as expounded by the court) "and the evidence" (which the court has by admitting it, adjudged proper for them to consider.)

An issue joined is this: Before a case can be tried the parties are required to file pleadings, each stating the facts as he claims them to be. If they agree about the facts but only differ as to their effect, each claiming judgment in his favor, there can be no jury trial; it is for the court to determine the effect of such admitted facts. If, however, the one party asserts and the other denies the existence of facts upon which the right of the parties depend by the principles of law, they are said to join issue as to those facts, and a jury is called to decide that issue, it being still for the court to instruct them as to the legal effect of their decision of it one way or the other.

The parties in this case agree upon nearly all the facts so that the issue between them is a very simple and narrow one. It is admitted that on November 27th, 1872, the Union Central Life Insurance Company, defendant, entered into a contract with plaintiff's husband, Charles E. Cheever, whereby it insured his life for plaintiff's benefit in the sum of $3,000; that is, it agreed (for an insurance policy is merely a contract governed by the same principles in general as other contracts) to pay plaintiff that sum should her husband die while it remained in force. The parties do not differ as to the terms or conditions of the policy, and therefore each must stand or fall thereby; for it is the duty of courts and juries to enforce the contracts which parties have made, not to contract for them.

It is admitted that Mr. Cheever paid the premiums stipulated in the policy, that he died, and that due notice and proof of his death have been given as provided, so that plaintiff would be entitled to recover the amount of the policy without any trial, but for the facts which defendant sets up in its answer as a defense. It avers that it issued the policy upon the faith of the statements in a written application made by Mr. Cheever to the Cincinnati Mutual Life Insurance Company and signed by him. This application, though made to another company, is expressly referred to in the policy issued by defendant in place of that issued originally by the former company, and therefore is the same, for the purposes of this case, as though it had been made by Mr. Cheever directly to the defendant. In that application he was required to answer and did answer various questions for the purpose of informing the Com, any concerning his health, physical history, etc., which information it desired to enable it to decide whether, or no it would enter into a contract of insurance upon his life.

Defendant avers that in this written application said Cheever agreed that any untrue answers by him, or any suppression of facts in regard to his health, should render the proposed policy, if issued, null and void; and moreover it avers that the policy it did subsequently issue was issued upon the faith of such application, and that one of the conditions contained therein was that the statements and declarations made in such application were in all respects true, and without the suppression of any fact relating to the health or circumstances of said Cheever, affecting the interests of said company. The policy was, by its terms, to be nulf and void if this condition should prove to be broken by reason of such suppression or untrue statements.

Defendant avers that said application contained, among others, the following question and answer: "Have you had during the last seven years any sickness or disease? If so, state the particulars and the name of the physician or physicians who prescribed or were consulted." Answer, "No." Defendant says this answer was untrue because said Cheever had had sickness and disease in 1869 and 1870, less than two years before the date of the application, that it was either cancer, recurrent fibroid tumor, an enlarged and suppurating gland, or some other local disorder upon the side of his neck, whose nature it cannot state, and that he had consulted and been treated by various physicians.

These facts, if true, would entitle the company to a judgment in its favor, if such ailment were of so serious a character as to amount to sickness and disease, had not the plaintiff in reply, averred, first, that her husband never made an application containing such statement, second, that, if he did, such statement was true and not untrue because the ailment referred to was merely an enlargement of the gland of his neck, which was only temporary in its character, and did not amount to sickness or disease, and, third, that the company and its agents were well aware of the facts in regard thereto and waived all rights on account thereof.

Now there is no evidence whatever that defendant or its agents knew the facts with regard to this ailment, or waived any rights on account of Mr. Cheever's failure to disclose it. And the plaintiff has offered no evidence to contradict the testimony offered by defendant that the application containing this question and answer is signed by Mr. Cheever. You will therefore consider neither the first nor the third allegations of the reply above mentioned, but must assume that Mr. Cheever did answer that question "No," and that neither the company nor its agent knew the facts concerning the ailment referred to, or waived any rights his failure to disclose them may have given the defendant.

The issue between the parties therefore is this and only: Defendant says the ailment in question was a sickness or disease and that therefore the answer referred to was not a true

answer; plaintiff says it was not a sickness or disease and that therefore his answer was a true answer. This issue you are to decide, and as you decide it your verdict must be. If it was a sickness or a disease the answer was not a true one and the verdict must be for the defendant. If it was not a sickness or a disease the answer was a true one and the verdict must be for the plaintiff.

You will observe that the issue is not as to whether Mr. Cheever had or had not recovered from any sickness or disease he may have had during the seven years preceding. His recovery, however complete, would not excuse his negative answer, if you find he in fact had had any ailment so serious while it lasted as to amount to sickness or disease as I will hereafter define those terms, for the question related to its existence not to its cure. The condition of the ailment upon his neck, however, at the time of the application, as well as its entire history and the history of his health down to the time of his death, are all circumstances which the jury are to consider in reaching a conclusion as to the character of this ailment.

Nor is the issue as to whether Mr. Cheever thought or believed that this trouble upon his neck was sickness or disease. He may, in good faith, have believed that it was not, yet his negative answer will defeat plaintiffs right to recover if you find the fact to be otherwise. He may, on the contrary, have been alarmed without just or sufficient reason and have believed at the time that it was very serious, yet if it turned out that this fear was unfounded his former belief would not matter. This question, unlike others in the application, inquired for the fact, not for his be lief. The question, it is true, could not require him to tell what he did not know. It only asked as to such disease or sickness as would manifest

its presence to him in some way. But it was manifest to him that he had some ailment upon his neck, and if instead of stating the facts and referring to the physician who treated him, thereby casting upon the company the responsibility of judging of its character, he chose to judge of it himself by simply answering "no," the plaintiff, not the defendant, must suffer the consequence, if you find in fact his judgment

was wrong.

But on the other hand, plaintiff may recover if you find such answer to have been substantially, though not literally true. Sickness and disease taken literally might be said to include almost every bodily ailment. In this case, however, those words were not used by the parties in that sense, but in their common ordinary sense. The manifest object of the question rejects light upon the sense in which these words were used by the company in the question, and understood by the applicant in his answer. That object was to elicit information which would be useful in determining whether it would be prudent to take the risk of insuring his life. He was therefore asked by the question to disclose, and was bound to disclose, whether he had had within the pre

ceding seven years not such merely slight or temporary disorders or fuctional disturbances as had and ordinarily can have no effect upon his general health or the continuance of his life, but such as either may have had in fact, or ordinarily do have, such effect. The latter only would come within the meaning of the term sickness or disease as used in this case. This is the common acceptation of the words. This is the meaning which you must attach to them in deciding whether or not the applicant answered truly when he said he had had neither. That meaning, however, includes not only such ailments and disorders as are calculated or tend directly to impair the general health or constitution or produce death unless arrested, but also such as indicate by their presence, history, or developopment, a vice in the constitution-such in other words, as are signs or warnings of danger to life or health rather than direct causes of danger. That meaning does not include such slight temporary ailments as are calculated neither to affect nor threaten the general health or constitution, or such as do not ordinarily indicate the seeds in the system of serious disorder.

Now to enable you to decide the issue whether this question was answered truly, a wide latitude of evidence has been allowed. You have had detailed to you the history and description of the trouble, whatever it was, upon Mr. Cheever's neck, and an account of his health and condition before its appearance, and afterwards to his death. You have also had a description of the disease of which he died. You have heard the opinions of physicians who saw him or treated him for these ailments, based upon their own observations, and you have heard the opinions of other physicians given upon hypothetical statements put to them. These opinions have related to what the trouble on the neck in fact was, to what its nature and tendency to affect life and health were, to whether it probably had or had not connection with the subsequent disorder of which the insured died, which, of course, was a sickness or disease.

Now, having brought you face to face with the issue in the case, my duty ends and yours begins. You are to weigh and consider all the testimony, to exercise upon it your good sense and judgment, and to say whether the evidence that what Mr. Cheever had upon his neck amounted either in its beginning or its development to sickness or disease, as I have defined them, outweighs the testimony that it did amount to such sickness and disease, when it began or during its subsequent development. The burden being upon the defendant to make out this defense by a fair preponderence of the evidence, the testimony upon that side must in your judgment be entitled to more weight than that upon the side of plaintiff. Defendant need plaintiff. Defendant need not satisfy your minds, however, beyond a reasonable doubt; a fair preponderence is sufficient.

The value of the opinions, which you have heard, depends, as to those of them given from actual observation, upon the opportunity which