Dissenting Opinion. through a new trial, with the same right to a jury as before. Disregarding those rules, the Circuit Court of Appeals itself determined the facts, without a new trial. Thus, it assumed a power it did not possess and cut off the plaintiff's right to have the facts settled by the verdict of a jury. "While it is true, as before said, that the evidence produced at the trial was not sufficient to sustain a verdict for the plaintiff and that the Circuit Court erred in refusing so to instruct the jury, this does not militate against the conclusion just stated. According to the rules of the common law, such an error, like other errors of law affecting a verdict, could be corrected on writ of error only by ordering a new trial. In no other way could an objectionable verdict be avoided and full effect given to the right of trial by jury as then known and practiced. And this procedure was regarded as of real value, because, in addition to fully recognizing that right, it afforded an opportunity for adducing further evidence rightly conducing to a solution of the issues. In the posture of the case at bar the plaintiff is entitled to that opportunity, and for anything that appears in the record it may enable her to supply omissions in her own evidence, or to show inaccuracies in that of the defendant, which will rightly entitle her to a verdict and judgment in her favor. "In the trial by jury, the right to which is secured by the Seventh Amendment, both the court and the jury are essential factors. To the former is committed a power of direction and superintendence, and to the latter the ultimate determination of the issues of fact. Only through the co-opera Dissenting Opinion. tion of the two, each acting within its appropriate sphere, can the constitutional right be satisfied. And so, to dispense with either or to permit one to disregard the province of the other is to impinge on that right. * "To the suggestion that in so holding we are but adhering to a mere rule of procedure at common law there is a twofold answer: First, the terms of the Amendment and the circumstances of its adoption unmistakably show that one of its purposes was to require adherence to that rule, which in long years of practice had come to be regarded as essential to the full realization of the right of trial by jury; and, second, the right to a new trial in a case such as this, on the vacation of a favorable verdict secured from a jury, is a matter of substance and not of mere form, for it gives opportunity, as before indicated, to present evidence which may not have been available or known before, and also to expose any error or untruth in the opposing evidence. As is said in Blackstone's Commentaries, vol. 3, p. 391: 'A new trial is a rehearing of the cause before another jury. * The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case." " * * In conclusion, I contend that the verdict of the jury is abundantly supported by the evidence as contained in the record of the case; that, if it were not so supported in the judgment of this court, we have no legal or constitutional right to nullify or set it aside on the mere ground that it is Opinion of the Court. against the weight of the evidence; that we have absolutely no right to enter final judgment contrary to the verdict of the jury; and that, finally, by the judgment of the supreme court, we have amended the Ohio Constitution, Article I, Section 5, Bill of Rights, which reads, "The right of trial by jury shall be inviolate," by adding thereto as "court-made" constitution the words, "except in cases where the trial judge or some appellate court thinks otherwise as to the facts in the case," LEGLER, ADMR., ET AL. V. THE UNITED STATES FIDELITY & GUARANTY Co. Surety bond-Suit to enforce-Defense of knowledge by employer -Of previous default by employe. (No. 13274-Decided May 13, 1913.) ERROR to the Circuit Court of Montgomery county. Mr. D. B. Van Pelt and Messrs. McConnaughey & Shea, for plaintiff in error. Messrs. Matthews, James & Matthews, for defendant in error. BY THE COURT. All the provisions of a contract must be construed together in determining the meaning and intention of any particular clause or provision therein. The provisions in a surety bond, in reference to the employer's statement in the ap Opinion of the Court. plication for the bond, that "The above and foregoing statements and representations are made for the purpose of inducing the United States Fidelity & Guaranty Company to execute this bond," and "It is agreed that the above answers are to be taken as conditions precedent and as a basis of said bond applied for or any renewal or continuation of the same that may be issued by The United States Fidelity & Guaranty Company to the undersigned upon the person above named," and the further provision that "If the employer's written statement heretofore referred to shall be found in any respects untrue this bond shall be void," must be construed in connection with a later provision of the bond that "This bond is issued on the express understanding that the employe has not within the knowledge of the employer at any former period been a defaulter." In view of this provision of the bond following the provisions first quoted, it appears that it was the intention of the parties, clearly expressed in this clause, that where the default of the employe at any former period is not within the knowledge of the employer, and that the questions answered are truthfully answered so far as his knowledge is concerned, the fact that such employe at a former period had been a defaulter would be no defense. to a suit upon the bond, unless it further appears that such statements were intentionally false or were recklessly or negligently made without any reasonable grounds on the part of the employer to believe that said statements were true, and without reasonable effort on his part to make use of the means at hand to discover the truth or falsity of the statements. Syllabus. This provision of the bond pleaded in the amendment to the reply distinguishes this case from the case of Livingston & Taft, Trustees, v. Fidelity & Deposit Co., 76 Ohio St., 253. Judgment of the common pleas court sustaining demurrer to reply and amendment thereto and the judgment of the circuit court affirming the judgment of the common pleas court are reversed, and cause remanded to the common pleas court with directions to overrule the demurrer to the reply and amendment thereto. Judgments reversed. JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur. FITZGERALD ET AL., BOARD OF DEPUTY STATE SUPERVISORS, ETC., V. THE CITY OF CLEVELAND. Section 7, Article XVIII of amended Constitution—Authorizes municipalities to frame charter for government-Departmental powers limited by Section 3 of Article XVIII-Officers shall be appointed or elected-Nominations for elective offices may be by prescribed petition-Elections shall be conducted by general laws-Constitutional law-Self-government of municipalities. 1. The provisions of Section 7, Article XVIII of the Constitution as amended in September, 1912, authorize any city or village to frame and adopt or amend a charter for its government and it may prescribe therein the form of the government and define the powers and duties of the different departments, provided they do not exceed the powers granted in Section 3, Article XVIII, nor disregard the limitations imposed in that article or other provisions of the constitution. 2. Under Sections 3 and 7, Article XVIII, as so amended, municipalities are authorized to determine what officers shall administer their government, which shall be appointed and which |