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on the main track of the railroad, in a deep rock cut, upon a heavy curve in the road. While he and the other laborers were at work loading the train with gravel, à freight train which was on its regular time was run into the construction train without warning of any sort, and by the wreck which resulted from the collision, Henderson was driven against the rocks, two or three of his ribs were broken, his shoulder was dislocated, and he was permanently injured. The action was brought to recover damages for the injuries, and in the court of common pleas there was a verdict and judgment in his favor for $3,000, which judgment was affirmed in the district court, and this petition in error was filed to reverse the original judgment as well as the judgment of affirmance. The record contains all the evidence.

Construction trains have no place on the schedule or time table, and by the printed rules of the company it is required that they shall be kept out of the way of all regular trains, freight as well as passenger, clearing their time at least ten minutes, and it is the duty of the conductor of the construction train to observe the time of all trains and obey the rule. This rule, however, may be suspended as to freight trains by special order of the superintendent of the railroad company, whenever he sees fit to do so, in which case it is the duty of the conductor of the construction train, where such train is being loaded on the main track, to keep the train in its place and send a man with a proper signal to notify approaching freight trains.

In this instance the superintendent had made such special order, and the conductor of the construction train, keeping his train on the track, had sent a flagman to notify the approaching freight train; but the flagman performed his duty so negligently and improperly that the engineer of the freight train understood his acts as an order to go ahead and not stop. The engineer says the flagman stood several yards from the railroad track, holding the flag down at his side with one hand and making motion with the other as for a forward movement. In this way the injury was occasioned, without any negligence on the part of the plaintiff. It would have taken six minutes to move the construction train to a side track from the place where it stood on the main track.

Barrett was superintendent of the company. He testified: "There are general printed rules for all trains, made in order to promote the safety of persons and property. I establish these printed rules. I am the superior officer for that purpose on this division. I give special orders and private instructions, as I think necessary, to annul or disregard the general rules. *** They are not printed. *** Construction trains cannot occupy the main track without special instructions. It is the duty of the conductors of construction trains to protect their trains. I gave special order, which annulled the general rule as to construction trains, allowing them to stand on the track until the arrival of

freight trains, by sending back a flagman to notify approaching trains. I give special orders to construction trains where to work, and direct them by special orders from time to time, by telegram or otherwise."

Lowen was boss of the laborers employed on the construction train. He hired and discharged the men and regulated the time and manner of working. He had authority to require that the train should be moved, as he might direct, with reference to the work, but it was no part of his duty to observe the time of approaching trains, that matter being confided exclusively to the conductor. He was in the caboose until the freight train was within a few feet of the construction train, and barely escaped serious injury, but several persons beside Henderson were injured.

In the amended petition the negligence of the superintendent, "boss," and the conductor of the construction train, is stated, and the answer is a denial.

J. Dunbar, for plaintiff in error.

The duty implied as incident to the employment, and the question whether the special order was reasonable, were questions of law. 5 Ohio St. 567; 43 Ill. 421. The exception to the charge was sufficient. 10 Ohio St. 226; 29 Ohio St. 452; 32 Ohio St. 415.

J. M. Estep, for defendant in error.

Negligence is for the jury. 8 Ohio St. 580; 13 Ohio St. 66; 23 Ohio St. 10; 24 Ohio St. 639, 668; 28 Ohio St. 23; 31 Ohio St. 480; 32 Ohio St. 66; 35 N. Y. 10; 58 N. Y. 455; 77 N. Y. 72; Shearman & R. on Neg. § 11. Rules must be Ohio St. 226; Negligence complained of is neglireasonable. Shearman & R. on Neg. § 93; 36 gence of Company. Shearman & R. on Neg. S 89: 33 Ohio St. 468; 73 N. Y. 40; 81 N. Y. 206; 42 Md. 117, 136; 6 Bing. 716. Employe takes no risk of negligence of company. 1b.; 3 Ohio St. 201; 31 Ohio St. 287; 17 Ohio St. 197; 36 Ohio St. 221; Shearman & R. on Neg. §§ 5, 10, 89; 73 N. Y. 40; 53 N. Y. 553. Exceptions to charge in gross and hence insufficient. 25 Ohio St. 584; 30 Ohio St. 105; 32 Ohio St. 77; 21 Wall. 158.

OKEY, C. J.

Where a servant sustains injury by the negligence of his master, the master is liable in an action by the servant for damages. A breach of duty by the master is not one of the risks which one assumes in entering upon the employment of another. This breach of duty may consist in employing other servants who are incompetent, in providing unsafe machinery and structures, in failing to notify the servant of peculiar dangers known to himself but not to the servant, or in needlessly placing the servant in a place of danger.

As corporations act only through agents, it sometimes becomes important to determine what persons stand in such relation to it as that their negligence shall be deemed the negligence of the

property is valued for taxation decennially by township appraisers whose action is supervised by a county board of equalization, and finally, as between counties, by a State Board of Equalization composed of the Auditor of State and a member from each senatorial district. Personal property generally is annually listed and valued by the owner under oath. Some articles may be exhibited to the assessor who is required to value the same. The returns of assessors are equalized by county or city boards of equalizatio. Shares of bank stock are listed, valued and equalized thus: The president and cashier of every bank is required to return under oath to the auditor of the county in which the bank is located, annually, the names and residences of all stockholders, the number of shares held by each, the actual value in money of such shares, together with a description of all real estate owned by the bank. Thereupon the auditor is Thereupon the auditor is required to deduct from the total actual value of all the shares, the appraised value of the real estate, and to place on the duplicate the remainder of the total value of the shares, in the names of the owners thereof, in amounts proportioned to the number of shares owned by each. The valuation of bank shares so fixed by county auditors is supervised by a State board of equalization, composed of the Auditor of State, Treasurer of State and the Attorney General, who are authorized to hear complaints and equalize the valuation of the shares so fixed, "by adding to the valuation of the shares of any such banks or banking associations as in their opinion are assessed below their value in money, or by reducing the valuation of the shares of any such banks or banking associations, as in their opinion have been assessed above their value in money."

Now, the point is made, as we understand the claim, that the inequality complained of in the plaintiff's petition, was the result of this diversity in the modes employed by the legislature for fixing the valuations for taxation, of the different species of property: That legislation which leads to such results is obnoxious to the principles of the Constitution, and, therefore, a tax levied under it is illegal and void.

We wholly dissent from the first proposition. The inequality complained of cannot, in any just sense, be attributed to the state of legislation on the subject. Whether it was wise to adopt different modes and agencies for determining the value of taxable property, we need not consider. Much might be said in its favor. But we can, and do affirm, with the utmost confidence, that an honest and intelligent discharge of duty by those entrusted with the execution of the respective modes provided by law, would accomplish all that was intended by the Constitution. A faithful execution of the different provisions of the statutes would place upon the duplicate for taxation, all the taxable property of the State, whether bank stocks or other personal property or real estate, according to its true value in money; and the equality required

by the Constitution has no other test. There is nothing in the Constitution which requires property to be taxed according to the same percent. of its true value in money, save only the one hundred per cent. The difficulty, therefore, in this case is not attributable to the laws, but to a failure to execute them in conformity with their true meaning and intent.

Confessedly in this case, the property of the plaintiffs below, their bank shares, was valued for taxation at only eighty per cent. of its true value in money-plus the value of the real estate owned by the bank. No word of complaint is made against the officers of the law for violating their sworn duty in placing this property on the duplicate at its par value, instead of its true value in money, (as the Constitution required), which was one hundred and twenty-five per cent of its par value. The complaint in substance, is, that they acted unlawfully and unjustly towards the plaintiffs in valuing their property for taxation, at more than forty per cent. of its true value in money. This greater wrong, the plaintiffs below, would justify on the ground that other property in the county was not returned for taxation at more than forty per cent. of its true value in money. If upon this ground alone, a court of equity can say that the valuation of the plaintiff's property must be reduced from 80 to 40 per cent. of its true value in money, because other property in Seneca County has been taxed upon only 40 per cent. of its value, by what name shall we call the wrong that will be perpetrated on the other 87 counties of the State, where all property, including shares of bank stock, has been assessed according to its true value in money, and upon which the rate required for State purposes has been paid?

It must here be remarked, that in the petition of plaintiffs below, no fraud, or conspiracy, or other unfaithfulness, has been charged against the officers and agents of the law, who place the taxable property of Seneca County, other than bank stocks, upon the duplicate at a valuation of only forty per cent. of its true value. If it be possible that such a thing could have occurred through mistake or error of judgment, we are bound to say that such was the cause. And such a thing is possible.

Where then lies the equity of this case. While it cannot be said that the plaintiffs below should be compelled to pay more taxes in proportion to the value of their property than is required of other tax-payers of the county; it must affirmed that other tax-payers should pay as much as is required of the plaintiffs, in proportion to the value of their respective properties, and that is to say, until all have paid the required rate upon the full and true value of their respective properties. If either be relieved from any portion of the burden according to this standard, it must be on the ground of some accident, mistake or error of judgment in determining the value of their property, but not upon any ground of right. And if for such reasons the plaintiffs below, to a certain extent, and the other tax

payers of Seneca County, to a greater extent, escape the payment of their just and equitable share of the public burdens, surely equity, on the mere ground of inequality as between them, will not interfere to restrain the collection of an excess arising upon such inequality, to the detriment and injury of other tax-payers throughout the State, whose property is subject to the same levies, and has been assessd in accordance with the very letter and spirit of the Constitution and laws of the State.

Our statutes have made ample provision for the correction of mistakes and errors of judgment committed by those intrusted, in the first instance, with the fixing of values upon taxable property. Even unjust and corrupt discriminations, can be relieved against in the special tribunals provided by the statute for the equalization of values. As a general rule, the decisions of these boards must be held to be final and conclusive. To these boards, and not to the courts, must complaints as to inequalities in valuations be preferred. True, the attention of the auditor was called to the fact, that the valuation of these bank shares was higher in proportion to their true value, than the valuations of other property in the county; but there is nothing in the record to lead us to believe that the annual city and county boards of equalization would not, if complaint had been made, have advanced the valuation of all other property in the county to its true value in money. The opportunity provided by law for the correction of the inequality complained of, was omitted. We cannot correct it now. And, if for such reasons, relief could be given to the plaintiff, we can see no reason why the like relief should not be given to every taxpayer of the State, whose property has been assessed on more than 40 per cent. of its value, even to the destruction of the revenues of the State.

What relief a court of equity would in a case of fraudulent conspiracy, or combination, or rule adopted by those whose duty it is to fix the taxable value of property, for the purpose of imposing upon some property or class of property more than its just share of the public burdens, we need not now inquire. No such combination or rule of action is shown in the case before us. Hence, the doctrine announced by the Supreme Court of the United States in Pelton v. Bank, 101 U.S. 143, and Cummings v. Bank. 101 U. S. 153, does not apply in this case. But even in such cases, equity will not afford relief to a complainant who can not show that the burden imposed on him is greater than it would have been if the laws had been faithfully executed by taxing all property by a uniform rule and according to its true value in money; and also, that the tribunals provided in the system of taxation, for redress against inequalities, had been appealed to in vain.

We are, however, entirely content to approve and follow a later decision of the Supreme Court of the United States, National Bank v. Kimball, 103 U. S. 732, in which it was held that

a bill to restrain the collection of a state tax upon the shares of a national bank is bad on demurrer, when it does not appear that there is any statutory discrimination against them, or that they, under any rule established by the assessing officers, are rated higher in proportion to their actual value than other moneyed capital; and that averments that the assessments were unequal and partial, are not sufficient.

Judgment reversed and action dismissed. [This case will appear in 37 O. S.]

NORTH CAROLINA.

(Supreme Court.)

RIGGS V. ROBERTS. October, 1881.

1. Limitations, Statute of-Offer to convey Lands to discharge Debt.-An unaccepted offer to discarge the debt by a conveyance of land is not such a recognition of a subsisting liability as to imply a promise to pay the debt, within the statute of limitations.

2. Bankruptcy-New Promise.-The new promise which will revive a debt extinguished by bankruptcy must be distinct and specific; and a mere acknowledgment of the debt, though implying a promise to pay, is not sufficient.

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In a trial upon an indictment charging the prisoner with shooting at the prosecuting witness, with malicious intent to kill, where evidence has been introduced tending to show that the act charged was committed by the accused at a time when he was being actually assaulted by the prosecuting witness with a dangerous weapon, it is competent for the defense to prove that the general reputation of the prosecuting witness was that of a violent and dangerous man, and that such general reputation was known to the accused at the time of the assault, as tending to support the plea of self defense. Judgment reversed.

31. The Pittsburgh, Cincinnati and St. Louis Railway Company v. Albert M. Ranney. Error to the District Court of Franklin County.

MCILVAINE, J. Held:

1. Where, by the rules of a railroad company, brakemen on a train of cars are placed under the control and direction of the conductor, the relation of superior and subordinate, as between the engineer and a brakman, is notcreated by a rule of the company requiring the engineer to give certain signals for setting or relieving. brakes, which also requires brakemen to work the brakes dccordingly.

2. In such case, the engineer and brakeman are fellowservants in a common employment; and the company is not liable to either for an injury resulting from the negligence of the other. Railway v. Lewis, 33 Ohio St. 196, approved.

Judgment reversed and cause remanded.

White, J. and Okey, C. J. dissented, on the ground that the injury to the brakeman was caused by the neg

ligence of the engineer while the former was executing

directions of the latter, which, under the rules of the company, he was bound to obey.

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 obtain the discharge of a watercraft, seed under the Watercraft Law of Ohio, in an action against such craft, on a cause of a maritime nature, which is within the exclusive admiralty jurisdiction of the United States Courts.

2. The fact 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 him and his sureties, from pleading such want of jurisdiction in an action against them on the bond. The General Buell v. Long, 18 Ohio St. 521, followed and approved.

Judgment affirmed.

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

OKEY, C. J.

One not induced by fraud who indorses a 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 due, as collateral security for an antecedent 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 affirmed.

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.

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1022. Charles Barnett v. Ths State of Ohio. Error to the Court of Common Pleas of Washington County. BY THE COURT.

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

On the trial the proof showed, that the building, which had been broken and entered, had been errected by its owner on his farm, for a dwelling house, but had never been occupied or used as such, that its owner had for several years, 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 was erected.

Held: That 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 Ohio, on the relation of Archibald Dawson and others v. The Board of Education of the city of Wooster. Mandamus.

BY THE COURT.

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 dismissed 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 plainttiff in error suggested and on motion of Grayson Dye, his administrator, he is as such administrator, made 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.

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Writ refused.

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

3. Minnie E. Pempin and George Elliott v. Carrie Eaton, Motion for the allowance of a supersedeas in cause 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 leave to print record. Motion to dismiss sustained and counter” motion overruled.

48. The State of Ohio ex rel. Joseph Turney v. Luke A. Staley. Motion to take cause No 973 on the General Docket out of its order for hearing. 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. Motion to compel plaintiff to cause to be printed certain parts of the record in cause No. 250, on the General Docket, not embraced in the record as printed. Motion overruled.

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GUITEAU'S CASE-A FULL REPORT OF JUDGE Cox's CHARGE-NOTES BY FRANCIS WHARTON AND ROBERT DESTY.

The Federal Reporter for February 28, 1882, contains a full report of the celebrated charge of Judge Cox in the Guiteau case, with able annotations by Francis Wharton and Robert Desty.

The note of Mr. Wharton covers 12 pages of bourgeois type, and involves an elaborate consideration of the subject of insanity, as well as an independent discussion of the management of the trial and the conduct of the prosecution.

The annotation of Mr. Desty sharply defines the limits and the character of the defense of insanity, and is distinguished by that conciseness, clearness, and conclusive citation of authorities which can only be found where there has been a prolonged and exhaustive study of the subject. A copy of this valuable number should be in the hands of every lawyer. Price, 50 cents per number,

WEST PUBLISHING CO.
ST, PAUL, MINN.

Somebody has introduced a resolution in our Assembly praying the President to pardon Masun. The New Jersey Legislature have actually passed such resolutions. Very "respectable newspapers are advocating the same course. Mason says that his only regret is that he did not kill Guiteau. He glories in a wicked and dastardly act. Why should he be pardoned? If he had been the President's guard, instead of Guiteau's, and in the heat of the moment had killed the assassin, he might well have been excused. But he lay in wait and deliberately tried to kill the prisoner whom he was set to guard, and he is only sorry that he did not succeed. True, he says his motives were "patriotic;" but

Edi

so says Guiteau of his own achievement. tors, clergymen, women and assemblymen, and other sentimental people, may think this is praiseworthy conduct, but no sober and considerate man can think so. Such utterances are extremely mischievous, and serve to encourage murder. In one column a "leading" newspaper has an article lamenting the increase of murder, and abusing courts, juries and lawyers for not enforcing the laws, and thus detering men from crime, and in the next column has a paragraph of illy-concealed or openly-avowed sympathy for Mason, recommending him, not to mitigation of sentence, but to absolute pardon. Then comes the news of the attempted assassination of Dr. Gray by a fellow who, like Mason, wants to avenge his outraged feelings, and who sees from the newspapers that murder is not only comparatively safe, but considered by many to be rather meritorious when it is the offspring of such motives. These unthinking petitioners are sowing the wind. It is incredible that the President will pay any attention to these "crank" petitions and utterances. Such a pardon would be the signal for "twenty mortal murders." Such petitioners are suborners of assassination.-Albany Law Journal.

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Error to the Court of Common Pleas of Wayne County. Reserved in District Court.

The original action was brought by the State of Ohio against Jacob B. Koch, principal, and the plaintiffs in error, sureties, on the official bond of said Koch as treasurer of Wayne county for the term commencing on the 1st Monday of September, 1872, and continuing for two years, and until his successor was elected and qualified.

Koch was elected on the 2d Tuesday of October, 1869, and the bond sued on was executed on the 6th of December, 1869. The condition of the bond was as follows:

"Now if the said Jacob B. Koch shall faithfully discharge all the duties of his said office, and shall pay over according to law all money which shall come into his hands as such county treasurer for State, county, township or other purposes during his said term of office, then this obligation to be void, otherwise to be and remain in full force and virtue."

At the date of the execution of the bond, the city of Wooster, a city of the second class with a

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