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bonds as collateral for anything save Edward's notes. He was in fact willing, and offered, to give them up to Edward, on payment of the latter's notes. Yet he would now, under the stress of a hopeless case (hopeless, in view of the previous judgment), have us believe that Judge Lawrence found that he (William) did actually hold the $30,000 of United Lines Telegraph Company bonds, as well as the $125,000 of Hoffman House bonds, as security for the Read notes. The transposition of the findings clearly shows the reverse. What the learned judge found is perfectly plain. Edward had asked him to find that William held the $125,000 of Hoffman House bonds, to secure the $32,000 of Edward's notes. The judge in effect said: "No; this is not a complete statement. William so holds these notes, it is true, and he so holds them for your $32,000 of notes; but he also holds $30,000 of the U. L. Telegraph Co. bonds, to secure this same indebtedness of yours; and I will find it in that precise and accurate way, and not in your partial and incomplete way." William had himself specified Edward's four notes, aggregating $34,300, as "the aforesaid indebtedness." Again, the judge in substance said: "No; that too is inaccurate. Edward is right in saying that the indebtedness aggregated but ‘about $32,000,' and it is that aforesaid indebtedness which William holds the two blocks of bonds for." Thus, it is entirely clear that Read's notes were never included in the "aforesaid indebtedness," as contemplated by the proposed findings of either party, or by the judge. Those Read notes were not, in fact, an indebtedness of Edward's at all, but a contingent liability. Neither party in their proposed findings even hinted that the bonds were held as collateral to that contingent liability. The findings cannot be strained or tortured into meaning what was never intended, and what, in view of the testimony on the one side and the admissions on the other, would have been wholly without support and in fact absurd. Thus, it is absolutely clear that there was no finding that these securities were held as collateral to the Read notes, and that in fact, upon the admission in the pleading and the uncontradicted testimony, they were not so held. Nevertheless, it is now gravely argued that even if the agreement is dead, even if Edward's covenant to increase the security, and to permit it when so increased to be held for all the purposes specified in the sixth clause, cannot be enforced, yet the plaintiff was entitled, under this very agreement, to hold the original securities for these Read notes. Why? Because, as the plaintiff contends, the agreement, though dead, recited his right to so hold these securities, and that recital lives, though the rest of the agreement is dead; and because Judge Lawrence, in substituting Edward's second request for William's, and William's third

request for Edward's, has found that William held the notes as collateral for the indebtedness specified in Edward's second request, and that a contingent liability is, notwithstanding the surrounding and contemporaneous facts, to be construed as an indebtedness. Both propositions are clearly erro

neous.

The more this case is examined, the less defensible seems to be the refusal of the court below to permit the trial upon the counterclaim to proceed. The ruling was equivalent to a nonsuit in an action upon the facts alleged in the counterclaim, and was directed without even a motion therefor, specifying the grounds. It would be a gross injustice to affirm such a judicial action upon any narrow or technical view of the pleadings and the proofs, if it were possible, which I do not at all concede. Every inference that can reasonably be drawn from the facts should be drawn in favor of the defendant's right to have his case properly submitted to a jury. He was either entitled to a direction or to such a submission. In any view of the case, there should be a new trial.

BARTLETT and VANN, JJ., concur with HAIGHT and MARTIN, JJ., for affirmance. O'BRIEN, J., concurs with PARKER, C. J., and GRAY, J., for reversal.

Judgment affirmed.

HESSE v. COLUMBUS, S. & H. R. CO. (Supreme Court of Ohio. March 22, 1898.) INJURY TO EMPLOYE DEFECTIVE APPLIANCES—

KNOWLEDGE-DAMAGES-EVIDENCE.

1. In a petition to recover from a railroad company for a personal injury received by a fireman in consequence of defects in the locomotive upon which he is employed, it is necessary to allege that he had no knowledge of such defects, or that, having such knowledge, he informed his superior, and continued in the service relying upon his promise to remedy the defects. This requirement is not affected by the act of April 2, 1890 (87 Ohio Laws, p. 149).

2. On the trial of an action by an administrator to recover when such injuries have proved fatal, it is not competent to call witnesses to testify that the deceased fireman was in the line of promotion when the injuries were received.

(Syllabus by the Court.)

Error to circuit court, Perry county.

Action by Gertrude Hesse, administratrix, against the Columbus, Sandusky & Hocking Railroad Company. From a judgment of the circuit court reversing a judgment of the court of common pleas, plaintiff brings error. firmed.

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Mrs. Hesse filed her petition in the court of common pleas, alleging, in substance, that she is the qualified administratrix of the estate of Neil Hesse, deceased; that on the 4th of January, 1896, and prior thereto, he was employed as a fireman on the defendant's locomo

tive No. 35; that said company, in violation of its duty, negligently and carelessly provided said Neil Hesse with a defective and unsafe locomotive, which, while being so used by him, in consequence of its weak and defective condition, and without fault on his part, exploded, whereby he was immediately killed; and that thereby his next of kin suffered damage in the sum of $10,000, for which she prayed judgment. The petition did not allege that Neil Hesse was ignorant of the defective condition of the engine. Without demurring, the company answered, denying that it was negligent in the premises, and denying that the locomotive was defective or unsafe. The cause was tried to a jury, and a verdict was returned in favor of the plaintiff. The defendant's motion for a new trial was overruled, and a judgment was rendered on the verdict, whereupon the company took a bill of exceptions setting forth the evidence, and the charge, and its exceptions to portions thereof. On petition in error the circuit court reversed the judgment for the reasons following: First. Because the petition does not state a cause of action. Second. Because of error in the admission of evidence as to the deceased being in the line of promotion. The circuit court found no other error in the record.

Herbert Butler and Donahue, Spencer & Donahue, for plaintiff in error. John Ferguson and H. D. Cochran, for defendant in er

ror.

SHAUCK, J. (after stating the facts). The general rule is established in this state and elsewhere that in an action by a servant against his employer for an injury resulting from the latter's negligence in furnishing machinery or appliances, about which the servant is employed, the plaintiff must allege that he was ignorant of the defect from which the injury resulted; or that, having knowledge of such defect, he informed the employer, and continued in the service, relying upon his promise to remedy the defect. This requirement is not answered by an averment that the injury occurred without fault of the plaintiff. Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed may use the utmost care to avert the dangers which they threaten. Coal Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857; Coal Co. v. Estievanard, 53 Ohio St. 43, 40 N. E. 725. The servant must be required to communicate to his employer such knowledge as he may have of defects in machinery or appliances about which he is employed, or the law will not be administered according to the reason which is its life. Fully justified by considerations of policy, the courts require of railway companies with respect to their patrons and the public the exercise of that high degree of care which is commensurate with the dangers of their operation. To the end that such care may be exacted from them,

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they are, with obvious propriety, charged with knowledge of such defects as are or might be discovered by the senses of their officers and employés. It is with like propriety that the communication of such knowledge is required from all with whose knowledge they are chargeable. But the most confident contention of counsel for the plaintiff is that the act of April 2, 1890 (87 Ohio Laws, p. 149), releases the employé of a railroad company from this general rule. The act applies to railroad corporations only. Reliance is upon the second section of the act, which is as follows: "Sec. 2. It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained and when the fact of such defect 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." The act, by its terms, affects the rules of evidence. It does not affect the duty of the employé, nor the rules of pleading with respect to it. In the cases to which it applies it raises against the corporation a prima facie presumption of negligence from evidence showing that the employé received an injury by reason of a defect in the car or locomotive, or the machinery or attachments thereto belonging. In Coal Co. v. Norman the general rule governing cases of this character is stated: "The servant, in order to recover for defects in appliances, must establish three propositions: That the appliance was defective; (2) that the master had, or should have had, notice thereof; (3) that the servant did not know of the defect." The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions. His duty with respect to the first and third remains wholly unaffected. Although recoveries were sustained in Railway Co. v. Erick, 51 Ohio St. 146, 37 N. E. 128, and Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N. E. 768, the view taken of the statute was consistent with that which is here expressed.

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Nor do we think that the circuit court erred in the second ground of reversal stated in its entry. Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff's intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate's habits, health,

position, and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greater in the future. It started an inquiry which could have no other effect than to consume time unduly, and to introduce speculative considerations into the assessment of damages. Brown v. Railway Co.,

64 Iowa, 652, 21 N. W. 193.

We observe no other errors for which the judgment of the common pleas court should have been reversed. It does not appear that in either of the courts below it was thought that there could be a recovery without evidence establishing the fact that the explosion was due to defects in the boiler. Judgment affirmed.

CLARK v. BOARD OF COM'RS OF LUCAS COUNTY.

(Supreme Court of Ohio. March 22, 1898.) FEES TO PUBLIC OFFICERS - CLERKS OF COURTSCOMPENSATION.

1. To warrant the payment of fees or compensation to an officer, out of the county treasury, it must appear that such payment is authorized by statute.

2. Clerks of courts are entitled to be paid out of the county treasury for keeping up, continuing, and thereby completing the general indexes, direct and reverse, of all judgments, final orders, and decrees, as mentioned in section 1263, Rev. St. But such clerks are not entitled to payment out of the county treasury for keeping up and continuing the alphabetical index. to pending suits and living judgments, provided for in sections 1255 and 1256, Rev. St. Nor are such clerks entitled to payment out of the county treasury for making direct and reverse indexes to executions issued by such clerks.

3. The amount which such clerks are entitled to receive out of the county treasury for their services in keeping up and completing such general indexes, direct and reverse, of all judgments, final orders, and decrees, is eight cents for each cause, and not eight cents for each name. The word "cause," in said section 1263, includes all the names to the judgment. final order, or deeree; and the fee for indexing all of them is eight cents, and no more. (Syllabus by the Court.)

Error to circuit court, Lucas county. Action by one Clark against the board of county commissioners of Lucas county. The judgment for plaintiff was affirmed by the circuit court, and both parties bring error. Affirmed.

The plaintiff in error, clerk of courts of Lucas county, presented a claim for making indexes to the board of county commissioners; and, this claim not being allowed, an appeal was taken to the court of common pleas, where the case was heard by the court, the facts being agreed upon. Judg. ment was rendered in favor of the clerk for $54, being 8 cents each for 675 causes, and that judgment was affirmed by the circuit

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The common pleas court held that the county was liable for the work of keeping up the general index, and not liable for indexing the pending suits and living judgments, and, in computing the work done on the general index, held that each separate suit should be considered as one cause, and a fee of eight cents chargeable therefor, regardless of the number of parties to the suit. The board of county commissioners claim that the court erred in allowing the $54, and insist that the clerk is entitled to no pay whatever out of the county treasury for his services in keeping up the general indexes; while the clerk claims that he is entitled to payment out of the county treasury for the full amount of his claim, as presented to the county commissioners.

Clayton W. Everett, for plaintiff in error. O. W. Nelson, for defendant in error.

BURKET, J. (after stating the facts). It is well settled that a public officer is not entitled to receive pay for services out of the public treasury, unless there is some statute authorizing the same. Services performed by the public, where no provision is made by statute for payment, are regarded as a gratuity, or as being compensated by the fees, privileges, and emoluments accruing to such officer in the matters pertaining to his office.

Jones v. Commissioners, 57 Ohio St. 189, 48 N. E. 882. To warrant payment out of the public treasury, it must appear that such payment is authorized by statute. Const. art. 16, § 5; Debolt v. Trustees, 7 Ohio St. 237; Anderson v. Commissioners, 25 Ohio St. 13; Strawn v. Commissioners, 47 Ohio St. 404, 26 N. E. 635.

Sections 1255, 1256, and 1257, Rev. St., are as follows:

"Sec. 1255. The clerks of the several common pleas, circuit and superior courts shall make an alphabetical index of the names of all plaintiffs and defendants to pending suits and living judgments, showing therein, in separate columns the names, court and number of the suit or execution, and when there is more than one suit or judgment for or against the same party, it shall be sutfcient to index the name but once and make entries opposite thereto, of the court and

the number of the suit or execution; provided, that no such index shall be made in counties where the same has already been done.

"Sec. 1256. The index required by the preceding section shall be made within six months from the passage of this act, and thereafter all new suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, revival or a transcript thereof; provided, however, that whenever the court of common pleas of any county containing a city of the second grade, first class, shall direct, the clerk of said court shall make a re-index, in the manner provided in the preceding section, of all pending suits and living judgments, then on the docket of any or all of said courts, in which said re-index all new suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, revival or a transcript thereof.

"Sec. 1257. The clerk shall receive the same fee for making such indexes, as is provided by law for making indexes to judgments, and whenever such re-index is made by him, by the order of the court, as provided in the preceding section, the clerk shall receive for re-indexing each pending suit and each living judgment then upon the dockets of any of said courts, and actually indexed by him, the sum of fifteen cents, payable out of the county treasury."

Section 1260 fixes the fees which clerks may tax against litigants, and among other fees that clerks may so tax are the following: "For indexing judgments and final orders for each case, fifteen cents; making direct and reverse index to each execution issued, eight cents."

Section 1263 provides that "the clerk shall receive from the treasurer the following fees; making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees. eight cents for each cause."

The history of these sections has been carefully compiled and reviewed by counsel, with a view of thereby fixing a construction upon the sections as they now stand; and we have carefully considered the questions thus raised, and have concluded that there is nothing in the repealed sections to change the ordinary construction to be placed upon these sections in their present form. The index to pending suits and living judgments, provided for in section 1255, is to be made only in counties wherein no such index had been made before the enactment of that section in 1881; and section 1256 requires such index to be made within six months after the passage of the act, March 24, 1881. Under the amendment of these two sections, March 24, 1881, a new index was required to be made in counties in which no such index had previously been made; and, for the making of such new index, it was provided

in section 1257 that clerks should receive the same fees as provided by law for making indexes to judgments. And it was then, as now, provided by law (section 1263) that clerks should receive from the treasurer, for making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees, eight cents for each

cause.

It is therefore clear that for the making of these new indexes of all pending suits and living judgments within six months after the amendment of said sections 1255 and 1256 on March 24, 1881, clerks were entitled to receive their pay out of the county treasury. But we have failed to find any statute, and none has been cited, warranting payment out of the county treasury for continuing and bringing up these indexes of pending suits and living judgments from time to time as new suits should be filed, and new judgments rendered; and the compensation of clerks for such services, and for indexing executions, is covered by the fees for indexing allowed by section 1260 to be taxed against litigants. The making up and completing of general indexes, direct and reverse, of all judgments, final orders, and decrees for which clerks are to receive eight cents for each cause, as provided in section 1263, includes not only the original making of such general indexes, but also keeping them up from time to time, so as to have at all times a complete general index of all judgments, final orders, and decrees. As new judgments, final orders, or decrees are rendered, clerks are required to complete the general indexes by adding thereto all such new judgments, final orders, and decrees, and for such services clerks are entitled to receive out of the county treasury the sum of eight cents for each cause.

The claim made by counsel for plaintiff in error to the effect that each cause means each name, whether plaintiff or defendant, is not tenable. A name is not a cause; neither is a plaintiff or defendant a cause. The word "cause" is used in the sense of an action or lawsuit. There may be many parties to an action, but all combined constitute but one action, one lawsuit, one There is no error in the record. Judgment affirmed.

cause.

BAUM et al. v. THOMS. (Supreme Court of Indiana. April 27, 1898.) CANCELLATION OF MORTGAGE - COMPLAINT- - EviDENCE-USURY-ACTION TO RECOVERMODIFICATION OF JUDGMENT.

1. A complaint to set aside a mortgage states facts sufficient to constitute a cause of action, which charges that defendants were engaged in loaning money at usurious interest; that they had separate places of business, but a mutual arrangement, by which loans were changed from one to the other in order to more successfully loan money at usurious interest; that plaintiff borrowed $25 in 1891, and $50 in 1892, under an agreement to pay legal interest only;

that she paid thereon $175; that in 1894 they claimed a balance due of $150; that the sum loaned, with legal interest, had been fully paid, together with $50 usurious interest; that she finally executed the mortgage and note for $112.60, set out in the complaint, on account of the threats of the parties, which are set forth in the complaint at length.

2. Where the maker of a note and mortgage sues to have them canceled on the ground of no consideration, and to recover usurious interest paid, and charges collusion between the defendants, evidence by one defendant that the note was given him for money borrowed by plaintiff to pay an indebtedness to the other defendant does not necessarily establish that fact if rebutted by circumstantial evidence that there was collusion between the defendants, and that the money borrowed was returned by the one to whom it was paid.

3. One who pays usurious interest is not confined to the remedy given by statute, but may recover back the usurious interest in an action brought for that purpose.

4. The repeal of a statute which modified or repealed a common-law rule revives the common-law rule, unless a contrary intention is manifested in the repealing act.

5. It is not error to overrule a motion to modify a judgment which is not well taken as a whole.

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by Ella Thoms against Lewis Baum and others. From a judgment for plaintiff, defendants appeal. Affirmed.

John W. Kealing and Chas. E. Averill, for appellants. H. M. Wyatt, Hez. Daily, G. R. Estabrook, and G. W. Spahr, for appellee.

MONKS, J. Appellee brought this action against appellants to set aside and cancel a note and mortgage executed by her, and to recover usurious interest paid to appellants. The court tried said cause, and made a general finding in favor of appellee, and, over the separate motion of each appellant for a new trial, judgment was rendered in favor of appellee. Appellants filed separate motions to modify the judgment, which were overruled. The errors assigned call in question the sufficiency of the complaint, the action of the court in overruling the motions for a new trial, and in overruling the motions to modify the judgment.

The complaint charges, in substance, that the defendants in the court below were engaged in the business of loaning money at usurious interest, and that, while they had separate places of business, they had an understanding and arrangement between themselves by which the loans were changed from one to the other, in order the more successfully to carry on the business of loaning money at illegal and usurious interest; that appellee borrowed $25 in 1891, and $50 in 1892, under agreement that she was only to pay interest at the legal rate, and that she paid thereon, principal and interest, $175, when in 1894 they claimed that there was yet due $150, when in fact the sum loaned had been fully paid, principal and legal interest, and she had paid them in addition thereto $50, usurious interest on said loan;

that she finally executed the mortgage and note for $112.60, set out in the complaint, on account of the threats, importunities, and oppressive conduct of the parties, which are set forth in the complaint at great length. It is evident that said complaint was sufficient to withstand a demurrer for want of facts.

The causes assigned for a new trial are (1) that the decision of the court was not sustained by sufficient evidence; (2) that the decision of the court is contrary to law; (3) that the damages assessed are excessive; (4) error in the assessment of the amount of recovery, the same being too large.

It is insisted by appellant Mackey, to whom the note and chattel mortgage in controversy were executed, that the evidence shows that she loaned $105.10 to appellee, and took said note and chattel mortgage for $112.50, and that said appellee borrowed the same to pay what she owed appellant Baum, and that, when said note and mortgage were executed, a check for $105.10 was delivered to appellee, and that she, at the same time, wrote her name across the back of said check, and the same was taken away by appellant Baum, whose claim the $105.10 was borrowed to pay, and that, therefore, the finding was not sustained by the evidence. There was evidence to the effect claimed, but the court may have concluded from all the evidence that appellants were acting in concert, and that the check was given in order to cover up the real transaction, which was to procure the note and mortgage for an indebtedness which was already more than paid, and at the same time give it the appearance of a new loan, and thus cut off the defense of usury. To support such conclusion, it was not necessary that any one should testify that such was the purpose of the transaction, or that there was an agree ment or understanding between appellants to that effect, or that the money received on said check was returned by Baum to Mackey after the note and mortgage were executed. Such facts may be established by circumstantial evidence. The trial court heard the witnesses testify, saw their manner and conduct while testifying, and was the exclusive judge of their credibility, and was able to determine whether said affair in giving the note and mortgage to appellant Mackey, and the delivering of the check to appellee, and the indorsement by her of the same to Baum. was what it appeared to be,-a new loan to appellee, or whether it was a mere form, a sham arranged to deceive and mislead appellee, and cover up the real transaction.

It is next insisted that while usurious interest voluntarily paid may, under section 7046, Burns' Rev. St. 1894 (section 5201, Horner's Rev. St. 1897), be recouped by the debtor in an action on the contract affected by such usury, the same cannot be recovered back in a direct action, and that, therefore, the finding and judgment against appellants

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