Without Opinion.

October 19, 1909. ERROR to Circuit Court of Cuyahoga county. Mr. Harold Remington and Mr. Cyrus Locher, for plaintiffs in error. Messrs. Geier, Farrell & Edwards, for defendant in error. Judgment reversed and judgment of the court of common pleas affirmed. CREW, C. J., SUMMERS, SPEAR, SHAUCK and PRICE, JJ., concur.

No. 11091. MOSER v. B. S. PORTER & Son, a PARTNERSHIP. Decided October 19, 1909. ERROR to Circuit Court of Allen county. Messrs. Welty & Downing, for plaintiff in error. Mr. W. H. Leete, for defendant in error. Judgment reversed and judgment of the court of common pleas affirmed. CREW, C. J., Summers, SpeaR, DAVIS and SHAUCK, JJ., concur.

No. 11166. BRANNON ET AL. V. THE BOARD OF COUNTY COMMISSIONERS OF COLUMBIANA COUNTY ET AL. Decided October 19, 1909. ERROR to Circuit Court of Columbiana county. Mr. W. F. Lones, for plaintiffs in error. Mr. J. H. Brooks; Mr. C. S. Speaker and Mr. M. J. McGarry, for defendants in error. Judgment affirmed.

MERS, DAVIS and PRICE, JJ., concur.

SUM

No. 11188. THE FARMERS' MUTUAL RELIEF ASSOCIATION 7. MCCLAIN. Decided October 19, 1909. ERROR to Circuit Court of Allen county. Mr. Charles F. Sprague and Mr. James W. Halfhill, for plaintiff in error. Mr. C. L. Fess and Mr.

Cases Reported

W. H. Leete, for defendant in error. Judgment affirmed. SUMMERS, DAVIS and PRICE, JJ., concur.

No. 11201. ATWILL V. THE BOARD OF COUNTY COMMISSIONERS OF PAULDING COUNTY. Decided October 19, 1909. ERROR to Circuit Court of Paulding county. Mr. John W. Zuber, for plaintiff in error. Mr. George H. Bayliss and Messrs. Snook & Wilcox, for defendant in error. Judgment affirmed. SUMMERS, DAVIS and PRICE, JJ., concur.

No. 11561. THE STATE, EX REL. HERRMAN, CITY SOLICITOR, V. THE OAKWOOD STREET RAILWAY COMPANY. Decided October 19, 1909. ERROR to Circuit Court of Montgomery county. Mr. Robert R. Nevin, prosecuting attorney; Mr Philo G. Burnham, city solicitor; Mr. Walter V. Snyder, Mr. Charles J. Brennan and Mr. William A. Pohlman, assistant city solicitors, for plaintiff in error. Messrs. McMahon & McMahon, for defendant in error. Judgment affirmed. CREW, C. J., SUMMERS, SPEAR, DAVIS, SHAUCK and PRICE, JJ., concur.

No. 11593. THE VILLAGE OF SILVERTON V. SCHMIDT, JR. Decided October 19, 1909. ERROR to Circuit Court of Hamilton county. Mr. Frank H. Reppert, for plaintiff in error. Mr. W. A. Rinckhoff, for defendant in error. Judgment modified as stated in journal entry.

It is ordered and adjudged that the judgment of said circuit court be and the same is hereby

Without Opinion.

reversed for error in affirming without modification the judgment of the court of common pleas of Hamilton county. And this court being of opinion that the court of common pleas was without power to assess against the plaintiff below any part of the expense of stenographer's fees in the mayor's court; and that said court of common pleas erred in overruling the plaintiff's motion to retax the costs in said case, its judgment in that behalf is by this court reversed. And this cause is remanded to the court of common pleas of Hamilton county with direction to sustain said motion and to order the costs retaxed accordingly. In other respects the judgment of said court of common pleas is affirmed. CREW, C. J., SUMMERS, SPEAR and PRICE, JJ.,

concur.

No. 11637. THE SHERWIN-WILLIAMS Co. V. KAVANAUGH. Decided October 19, 1909. ERROR to Circuit Court of Cuyahoga county. Messrs. Ingersoll & Bacon, for plaintiff in error. Messrs. Hart, Canfield & Croke, for defendant in error. Judgment affirmed. SUMMERS, SPEAR, DAVIS and PRICE, JJ., concur.

No. 11685. BOARD OF COMMISSIONERS OF HOCKING COUNTY 7. AZBELL, ADMX. Decided October 19, 1909. Mr. H. E. Sparnon, prosecuting attorney; Mr. A. R. McBroom and Mr. S. H. Bright, for plaintiff in error. Pettit, for defendant in error. and cause remanded to circuit

Messrs. Wright & Judgment vacated court with instruc

Cases Reported

tions to consider the weight of the evidence. CREW, C. J., SUMMERs, Spear, DavIS, SHAUCK and PRICE, JJ., concur.

No. 11819. RAY, ADMX., V. THE PENNSYLVANIA COMPANY ET AL. Decided October 19, 1909. ERROR to Circuit Court of Lucas county. Mr. Harvey Scribner and Mr. Curtis T. Johnson, for plaintiff in error. Messrs. Marshall & Fraser and Mr. C. A. Seiders, for defendants in error. Judgment affirmed. CREW, C. J., SUMMERS, SPEAR, SHAUCK and PRICE, JJ., concur.

No. 11835. DROLESBAUGH 7. THE STATE OF OHIO. Decided October 19, 1909. ERROR to Circuit Court of Crawford county. Messrs. Finley & Gallinger, for plaintiff in error. Mr. C. H. Henkel, for defendant in error. Judgment affirmed. CREW, C. J., SUMMERS, SPEAR, SHAUCK and PRICE, JJ., concur.

No. 11900. THE STATE OF OHIO . ROGERS ET AL. Decided October 19, 1909. Exceptions to the Probate Court of Wood county. Mr. William Dunipace, prosecuting attorney, for plaintiff in error. Messrs. James & Kelly, for defendants in error. Exceptions overruled. CREW, C. J., SUMMERS, SPEAR, SHAUCK and PRICE, JJ., concur.

No. 11945. THE STATE OF OHIO V. DEITER. Decided October 19, 1909. ERROR to Circuit Court

Without Opinion.

of Pike county. Mr. James A. Douglas, prosecuting attorney, for plaintiff in error. Mr. S. L. Patterson and Mr. C. H. Henkel, for defendant in error. Judgment reversed and judgment of the court of common pleas affirmed. Grounds stated in journal entry.

This court is of opinion that the circuit court did not err in refusing to reverse the judgment of the court of common pleas in so far as it overruled the defendant's plea in abatement, this court being of opinion that the question of the legality of the selecting and drawing of the grand jury may not be raised by plea in abatement to the indictment, and with respect to that holding the said judgment of the circuit court is affirmed.

But this court is of opinion that the discharge of the petit jury, and the ordering of a new petit jury, was within the discretion of the trial court, and it not appearing that such discretion was abused, or that the petit jury which tried the defendant was not an impartial nor disqualified jury, no error was committed by the trial court in that behalf, and the judgment of the circuit court in reversing the judgment of the court of common pleas for said alleged error is hereby reversed, and that of the common pleas affirmed. SUMMERS, SPEAR, DAVIS, SHAUCK and PRICE, JJ., concur.

No. 11034. LEMERT V. LEMERT ET AL. Decided October 26, 1909. ERROR to Circuit Court of Muskingum county. Mr. F. F. D. Albery and Mr. H. C. Wine, for plaintiff in error. Mr. A. J.