it was for the recovery of money, less in amount than $100, and therefore within the exclusive original jurisdiction conferred on justices of the peace by section 585 of the Revised Statutes. That section provides that, "under the restrictions and limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in any sum over one hundred dollars, and not exceeding three hundred dollars." Various restrictions and limitations upon the jurisdiction of justices of the peace are imposed by section 591 of the Revised Statutes, one of which is that they shall not have cognizance of “actions on contracts for real estate;" and it is contended by defendant in error that the action below was of that character. Whether it was not is the question for decision here. It is said by the court in Bridgman v. Wells, 13 Ohio, 43, that "a 'contract for real estate,' in the sense in which the words are used in their ordinary acceptation, would mean some bargain or agreement for the purchase or conveyance of real property;" and we think the words are used in the statute in that sense. It is to be observed that the actions of which justices are denied jurisdiction by the provision of section 591, alluded to, are those "on contracts for real estate." These are not limited to actions to compel a conveyance of the land, or for damages for the failure to execute the conveyance, or other breach of the contract by the seller, but include all actions founded on any stipulation of the contract, whether to be performed by the seller or purchaser. An action for the purchase price of the land is therefore within the class of actions which the statute has excluded from the cognizance of justices, and is not taken out of the class by the fact that the seller has executed the conveyance, and fully performed his part of the contract. It is nevertheless necessary to resort to the contract for the terms of the purchaser's obligation, which is the foundation of the action. We do not hold that actions on promissory notes given for the purchase price of land are within the operation of section 591. On the contrary, we think they are not, for such action would be founded on the note, and not on the contract. And, as held in Bridgman v. Wells, supra, contracts to construct or repair buildings, or clear land, or leave it in tenantable condition, and the like, are not contracts for real estate, but for labor. The action of the plaintiff below was founded on a contract for land. The petition alleges the sale and conveyance of the land by her to the defendant under an agreement by which the latter bound himself to pay a specified consideration in the manner and within the time averred, and seeks to enforce the contract against him by a recovery according to its stipulations. The terms of the contract and its breach, as al

leged, were put in issue; and it became necessary for the plaintiff to prove them, in order to recover. The action not being within the jurisdiction of a justice of the peace, the court of common pleas had original jurisdiction of it by virtue of section 456 of the Revised Statutes, which gives that court such jurisdiction “in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace." Judgment affirmed.

STATE ex rel. RICHARDS, Attorney General, v. HANDY.

(Supreme Court of Ohio. March 13, 1894.) JUDGE COMMON PLEAS COURT-COMMENCEMENT OF

TERM.

The term of office of the judge of the court of common pleas, elected in the third subdivision of the third judicial district, at the November election, 1893, as authorized by act of March 1, 1869 (66 Ohio Laws, 16), and act of June 7, 1879 (76 Ohio Laws, 133), does not begin until the 10th day of May, 1894. (Syllabus by the Court.)

Quo warranto by the state on relation of J. K. Richards, the attorney general, against William H. Handy, judge of the court of common pleas. Demurrer sustained, and petition dismissed.

The act of March 1, 1869 (66 Ohio Laws, p. 16), provides that an additional judge of the court of common pleas for the second subdivision of the third judicial district, composed of the counties of Allen, Auglaze, Putnam, Mercer, and Van Wert, should be elected at the following April election, the term to begin on the second Monday of May, being the 10th day of the month; and "which additional judge shall again be elected at the annual election in October, 1873, and evey five years thereafter, in the same manner, and for the same term of office, as is prescribed by the constitution and laws of the state of Ohio for the election of other judges of said court." By the act of June 7, 1879 (76 Ohio Laws, 133), the subdivisions of the third judicial district were so changed that the additional judge provided for in the act of 1869 became the judge of the third subdivision of the third judicial district, composed of the counties of Putnam, Henry, and Fulton. At the November election for the year 1888, William H. Handy, respondent, was elected judge of said subdivision, and was duly commissioned and entered upon his office, and claims to hold the office to the 10th day of May, 1894. At the November election for the year 1893, John M. Sheets was elected judge of said subdivision, and has been duly commissioned and qualified, and on the 9th day of February, 1894, demanded said office of Judge Handy, who refused to surrender the same. Thereupon the attorney general filed a petition in quo warranto in this court against Judge Handy, averring substantially the foregoing facts. To this pe

tition Judge Handy demurred, and the case was submitted on the demurrer to determine whether the term of office of the judge in that subdivision begins on February 9 or May 10, 1894.

J. K. Richards, Atty. Gen., for petitioner. A. V. Watts, for respondent.

PER CURIAM. By section 12 of article 4 of the constitution of Ohio, the term of office of a judge of the court of common pleas is fixed at five years. It is not in the power of the general assembly to either lengthen or shorten the term. The terms of the judges elected at the fall election for the year 1851 began on the second Monday of February, 1852, being the 9th day of the month, and the term of office of their successors necessarily began, and will hereafter begin, on the 9th day of February in the proper year. But the legislature has full power, where it creates an additional judgeship, to fix the date at which his office shall begin; and by virtue of the constitution he will hold his office for five years from the date so fixed, and the term of all of his successors will begin on the same day of the same month in the proper year. It follows, therefore, that the term of office of Judge Handy will continue to the 10th day of May, 1894, and that the term of office of John M. Sheets will begin on that day. The demurrer is therefore sustained, and the petition dismissed. Judgment accordingly.

tence. To reverse this latter judgment, this proceeding in error is prosecuted. Affirmed. John C. Hutchins, for plaintiff in error. W. B. Neff, Pros. Atty., for the State.

PER CURIAM. Held: 1. Section 8092-18 of the Revised Statutes (2 Smith & B. p. 2730), which provides that a person convicted of keeping a saloon open on Sunday, contrary› to law, "shall be fined in any sum not exceeding one hundred dollars, and not less than twenty-five dollars, and be imprisoned in the county jail or city prison not less than ten days, and not exceeding thirty days,” should be construed with section 2099, which provides that where, upon conviction under a law of the state or an ordinance, the court is directed by law to commit the offender to the county jail or corporation prison, the sentence shall be to the workhouse, if there be such in the county. Taken together, these sections authorize sentence of a defendant convicted in Cuyahoga county, under the first-named section, to the Cleveland workhouse.

2. The provision of section 2099 above cited is not in conflict with section 26 of article 2 of the constitution, which requires that "all laws of a general nature shall have a uniform operation throughout the state." Judgment affirmed.

KIMBLEAWIEZ v. STATE.

(Supreme Court of Ohio. March 20, 1894.) WORKHOUSE WHEN PERSON CONVICTED SHOULD BE SENTENCED TO-CONSTITUTIONAL LAW-SELLING LIQUOR ILLEGALLY.

1. A defendant convicted in Cuyahoga county, under section 8092-18 of the Revised Statutes (2 Smith & B. p. 2730), of keeping open a saloon on Sunday contrary to law, should be sentenced to the Cleveland workhouse, and not to the county jail.

2. The provision of section 2099 directing such sentence to the workhouse is not in conflict with section 26 of article 2 of the constitution.

(Syllabus by the Court.)

Error to circuit court, Cuyahoga county. On February 6, 1889, Kimblea wiez, the plaintiff in error, was convicted, in the police court of the city of Cleveland, of violating the statute known as the "Sunday Closing Law," and sentenced to be committed to the jail of Cuyahoga county for 10 days, and pay a fine of $25, and costs. On error by defendant to the court of common pleas, this judgment was affirmed. On error by the same party to the circuit court, the judgment of both courts was reversed, for error in sentencing the prisoner to jail, instead of to the Cleveland workhouse, and the cause remanded to the police court for a new sen

HANAGHAN v. STATE.

(Supreme Court of Ohio. Jan. 23, 1894.) CRIMINAL LAW-EXAMINING MAGISTRATE - JURISDICTION-WHEN NOT FINAL-PLEA OF GUILTYJURY TRIAL.

1. An examining magistrate is not authorized to pass sentence upon the accused on his plea of guilty of a misdemeanor, except when the complaint is made by the party injured.

2. By "the party injured," as that phrase is used in section 7146 of the Revised Statutes, is meant the person who suffers some particular injury from the commission of the misdemeanor, as distinguished from that which results to the public or local community where it was committed.

3. A plea of guilty of such an offense, though filed in writing with the magistrate, is not a waiver by the accused of his right to a trial by jury, and submission to be tried by the magistrate, within the purview of section 7147 of the Revised Statutes; and in such case, unless the complaint was filed by the party injured, it is the duty of the magistrate to recognize the accused to the proper court.

(Syllabus by the Court.)

Error to circuit court, Jefferson county.

One Hanaghan was arrested upon a warrant issued on a complaint charging him with having let his premises for purposes of prostitution, and permitting them to be so used, in violation of section 7025 of the Revised Statutes. He filed a plea of guilty, in writing, with the magistrate who issued the warrant, who thereupon sentenced him to imprisonment in the workhouse at hard labor for 60 days, and imposed a fine of $75,

with costs. The affidavit upon which the warrant was issued was filed by one Ramsey, who does not appear to have been injured otherwise than as a member of the community; and no waiver of a jury, or submission to be tried by the magistrate, was filed by the accused. The plainuff in error, claiming that the justice had no jurisdiction to proceed to sentence on his plea, prosecuted error to the court of common pleas, where the judgment of the justice was affirmed, and then to the circuit court, where the common pleas was affirmed, and finally to this court. Reversed.

J. W. Jordan, for plaintiff in error. Henry Gregg, for the State.

WILLIAMS, J. The magistrate was without authority to pass sentence upon the plaintiff in error on his plea of guilty, unless it was conferred by section 7146 or 7147 of the Revised Statutes. Section 7146 is as follows: "When a person accused of misdemeanor is brought before a magistrate, on the complaint of the party injured, and pleads guilty to the charge, the magistrate shall sentence him to such punishment as he may deem proper, within the limits of the provisions defining the offense, and order the payment of costs; and if the complaint is not by the party injured, and the party accused pleads guilty, the magistrate shall require the party so accused to enter into a recognizance to appear at the proper court, as provided in cases where there is no plea of guilty." The question arising under this section is, who is meant by "the party injured?" If every citizen of the state, or member of the community where the offense is committed, is included in those descriptive words, this proceeding in error is without merit. But it is evident they were not used in the statute in that sense. They refer, we think, to the person who suffers some particular injury from the commission of the offense, either in his person, property, or reputation, as distinguished from that which results to the general public or local community; otherwise, the authority of the magistrate to pass sentence is practically extended to all cases of misdemeanor brought before him, when there is a plea of guilty; and the last clause of the section is thus rendered nugatory. The legislative purpose in restricting the magistrate's authority to pass final sentence on a plea of guilty to those cases where the complaint is made by the person who sustained the injury, probably was to prevent collusive complaints, and insure adequate punishment. We do not doubt that the sentence pronounced by the magistrate was sufficient for the complete attainment of the latter result, in the present case; but, in our view of the statute, the person who made the complaint against the plaintiff in error was not "the party injured," within the meaning of that phrase as used in the statute.

v.36N.E.no.13-68

Section 7147 provides that "when the accused is brought before the magistrate, and there is no plea of guilty, he shall as soon as may be, in the presence of the accused, inquire into the complaint; and if it appear that an offense has been committed, and that there is probable cause to be lieve the prisoner guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such an amount as he may deem reasonable, for his appearance at the proper time, before the proper court; otherwise he shall discharge him from custody; but if the offense charged is a misde meanor, and the accused, in writing subscribed by him, and filed before or during the examination, waive a jury, and submit to be tried by the magistrate, he may render final judgment." The claim made under this section is that a plea of guilty, filed by the accused, in writing, is, in effect, a waiver of a jury, and submission to be tried by the magistrate, within the purview of the section, and authorizes him to render final judgment. Sections 7146 and 7147 are consistent with each other. The former prescribes specifically the proceedings of the magistrate upon a plea of guilty, and the latter those where there is not such a plea. It is obvious that if a plea of guilty were given the effect claimed for it under this section, the preceding section would be superseded, and its operation defeated, for then, in all cases of misdemeanor, whether the complaint was filed by the party injured, or other person, the magistrate, upra such a plea, could render final judgment on the ground that the plea was a final submis sion of the case to him; while the last clause of section 7146 makes it the duty of the magistrate to require the accused to enter into a recognizance for his appearance before the proper court in all cases of misdemeanor, notwithstanding his plea of guilty, unless the complaint against him was filed by the party injured. The accused might choose to enter such a plea, and be recognized to the proper court for trial, in order to avoid the expense and vexation of the examination, or for other cause deemed sufficient by him, but be unwilling to submit his case to the magistrate for final judgment. True, the plea may be used against him on the trial, but it is not conclusive evidence of his guilt. At all events, to author ize the magistrate to render final judgment under section 7147, the case before him must be one which comes within its terms; that is, the accused must, in writing subscribed by him, waive a jury and submit to be tried by the magistrate, which is essentially a different thing from a plea of guilty. Such a plea may dispense with the necessity of an examination into the truth of the complaint against the accused, but it does not take away his right of trial by jury. The stat ute has required his express waiver in writ ing to deprive him of that, and, like other

1. A complaint alleged that plaintiff, by direction of defendant's foreman, was boring holes in timbers, and standing them on end, near him, in a place designed for the purpose; that such foreman employed all the men, and assigned them their work, and the place in which to do it: that the foreman, without plaintiff's knowledge, negligently went into a two-foot space on the opposite side of such timbers, and took another employe with him, to do some special work; that this space was too narrow for two men to work in without coming in contact with the timbers, and making plaintiff's working place unsafe, as the foreman knew; and that such employe and foreman came in contact with the timbers, and caused some of them to fall on plaintiff, without fault on his part. Held, that the complaint proceeded on the theory that defendant was liable for the failure of its foreman to properly discharge the duty of defendant (laid on him) to keep plaintiff's working place in a safe condition; and it was not error to deny a motion to make more specific, designed to compel plaintiff to disclose the theory on which he based his right to re

cover.

2. The complaint was not insufficient, in that it showed that plaintiff and defendant's foreman were fellow servants. Ross, J., dissenting.

3. The complaint showed that the proximate cause of plaintiff's injuries was the negligent acts of defendant's foreman, in failing to keep plaintiff's working place reasonably safe, for which defendant is liable. Ross, J., dissenting.

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by James M. Wood against Cole Bros., a corporation, for personal injuries caused by defendant's negligence while plaintiff was in its employ. From a judgment for plaintiff, defendant appeals. Affirmed.

Moore & Moore, for appellant. H. H. Mathias, S. A. Hays, J. J. Smiley, and Willis G. Neff, for appellee.

LOTZ, J. The appellant is a corporation organized under the laws of the state of Iowa, and engaged in manufacturing pumps and lightning rods. In the year 1890 it owned and operated a large factory situate in the city of Greencastle, Ind., and appellee was employed by and was working for it in its said factory. While so engaged at work, he sustained severe personal injuries. He brought this action to recover damages, alleging that such injuries resulted from the negligence of the appellant. He stated his cause of action in two paragraphs of amend ed complaint. The appellant moved the court 2 Rehearing pending.

to require the appellee to make each paragraph more specific. This motion was overruled, and appellant then demurred separately to each paragraph. The demurrers were overruled, and appellant filed an answer in two paragraphs, the first being the general denial, and a demurrer was sustained to the second. The cause was tried by a jurv, which returned a special verdict. Appeliant made a motion to require the jury to find specially certain additional facts. This motion being overruled, it then moved for judgment in its favor on the special verdict. This motion was overruled, and it then made a motion for a new trial. This last motion was also overruled, and the court then rendered judgment in favor of the appellee on the special verdict in the sum of $3,000. pellant excepted to each one of these adverse rulings, and has assigned each of them as error in this court.

Ap

That part of the first paragraph of the complaint necessary to be considered in determining the correctness of the ruling on the motion to make more specific and the ruling on demurrer is as follows: "That he [appellee] was employed to work for the defendant [appellant] by one Richard W. Crawley, who was then and there, and was at the time of the happening of the grievances hereinafter complained of, the agent and the foreman of said defendant in operating said factory. That, as such agent and foreman, the said Crawley employed, and kept the time of, all the empl yes who worked in said factory, and assigned to each employe the work he was required to do; directed what work, and how it should be done, and designated the place where each employe should work.

That

the said agent and foreman had general supervision over all the employés of the defendant in said factory, and full authority to discharge such as he deemed it necessary to discharge. That the plaintiff, after being so employed as aforesaid, was directed by said agent and foreman to take charge of, operate, and manage a certain auger, run by machinery, used in said factory for boring out wooden tubing for pumps. That said auger, and machinery thereto attached, were located on the ground floor, and against the south wall of a room on the south side of one of the factory buildings of the defendant. That after said wooden tubing was bored the plaintiff was directed by said agent and foreman to set them on end, inclined to the north, and to rest the upper ends therenf against a framework overhead, made for the purpose, and located about eight feet north of said auger, in said room. That on said 29th day of July, 1890, while the plaintiff was engaged, in the discharge of the duties of his employment, in operating said auger and boring out said wooden tubing, the said agent and foreman negligently and carelessly went in behind, and negligently and carelessly, at the same time, ordered, directed, and pro

en

cured another employe of defendant, who was then and there acting under the orders and directions of said foreman, to go in behind, and on the north side of, a number of pieces of said wooden tubing, which had been placed on end against said framework as aforesaid, well knowing that plaintiff was busily gaged at his work at said auger, and without in any manner notifying the plaintiff of their pres nce, to perform some special service for the defendant, in no manner connected with or pertaining to the work of the plaintiff, the exact character of which is to this plaintiff unknown; and in attempting to do said work, so ordered by said foreman, by reason of the limited space in which they were attempting to do said work, they came in contact with said pieces of wooden tubing, 80 placed on end as aforesaid, and thereby caused three of said pieces, each of which was four inches thick, four inches wide, and ten feet long, to fall over, upon, and across the small of the back of the plaintiff, to his great injury. That, at the time the said pieces of wooden tubing fell upon the plaintiff as aforesaid, he was leaning over said auger, as the nature of his work required him to do, with his back towards said pieces so set up as aforesaid, and was wholly ignorant of the fact that the said foreman and other employe were behind the same. That, immediately north of the place where said pieces of wooden tubing were placed on end as aforesaid, there was located certain machinery used by the defendant in said factory. That the space intervening between said machinery and said pieces of wooden 'ubing did not exceed two feet in width. That there was not sufficient room in said persons to enter space to enable two the same, or perform work therein, without endangering the safety of employes, or making the working place on the south side of said tubing unsafe, all of which was well known to said foreman when he entered, and directed said other employe to enter, said space. That the said injury to the plaintiff was not caused by any fault or negligence on his part." The second paragraph of the amend ed complaint is drawn upon the same theory as the first, and contains the same allegations with reference to the powers, duties, and authority of Crawley, as agent and foreman of appellant, and gives the name of the employé who entered the space with Crawley as Jack Eller. That the said Eller, while performing said work, came in contact with the said tubing, and caused the same to fall. The additional allegations which it contains, and which are important, are the following: "That, for some time prior to the happening of the injury to the plaintiff as aforesaid, the said Eller had been in the service of the defendant, as an employe. That, as such employe, the said Eller had not been assigned any special work, or place to work, in said factory, but was employed

at different kinds of work, at different places in said factory, from day to day, under the orders and directions of the said foreman, and had no working place in the vicinity of the plaintiff's said working place. That the said Eller was of careless and negligent habits, and did not exercise sufficient care and skill in the performance of the duties of his employment to make it probable that he would not cause injury to his coemployes. That, by reason of the want of care and negligence of the said Eller, several of the employes of the defendant had been injured, of all which facts the defendant and the said foreman had full notice and knowledge at the time of, and prior to, the injury to the plaintiff."

We have italicized parts of the first paragraphs above set out, for the purpose of calling special attention to them. It will be seen, by an examination of the allegations, that Crawley had general supervision and control over all of the employés in the factory. He directed what work, and how it should be done, and designated the place where each employé should work. And it also appears that while the appellee was in the place, and engaged at the work, assigned to him, Crawley, by his act, and his command given to another employé, suddenly ordered appellee to a working place unsafe and dangerous. Of this fact, Crawley had full knowledge, and appellee had no knowledge. Appellee sustained injuries because of the unsafe condition of the place in which he was engaged at work. The act and command of Crawley are characterized as being negligent, and it is averred that the appellee was free from contributory fault. The theory of the complaint, as we construe it, is that the appellant failed in its duty to keep the appellee's working place reasonably safe. If Crawley were the master, and he and an employé should have been engaged in placing dynamite bombs near appellee's working place, without appellee's knowledge, and an explosion should have occurred, resulting in injury to the appellee, the hypothetical case and the actual case would be

analogous. The general rule is that it is the duty of the master to provide his servant with a reasonably safe place in which to work. This duty is one imposed by law, and the master must respond in damages to his servant, who, without fault, sustains injury by reason of its violation. This duty is a continuing one, and rests upon the master at all times. The cause of action sought to be charged in each paragraph of the complaint is negligence. This negligence lies in the violation of the appellant's duty, in failing to keep appellee's working place reasonably safe. The difficulty which arises in this case is to determine the relation existing between Crawley and the appellee at the time of the injury. If they were fellow servants, then the appellant is not liable, and the complaint is insufficient. If they stood in the relation of master and servant, then the appellant