Cuyahoga County Circuit. to the principal court of the city of Cleveland. Thereupon said justice of the peace transmitted to the clerk of the municipal court the papers in the action and a transcript of the docket showing the proceedings in the action. The plaintiff then filed a motion to strike the original papers and transcript of the docket entries in the action, transmitted from the court of said justice of the peace, from the files. This motion was overruled by the municipal court and on error proceedings in the court of common pleas, brought to reverse the decision of the municipal court, the overruling of said motion was sustained. The plaintiff in error now seeks by this proceeding in error to secure a reversal of the judgment of the court of common pleas, affirming the action of the municipal court in overruling said motion. The facts before us, and the error assigned, call for a determination of the constitutionality of Sec. 11 of the act creating the municipal court of the city of Cleveland (101 O. L. 364), as amended 102 O. L. 158. The first paragraph of Sec. 11 reads as follows: "In an action in a court of a justice of the peace which is appealable to the municipal court any party thereto may file with said justice, within five days after the rendition of a judgment or the making of a final order therein, a notice in writing that he desires to appeal from said judgment or final order to the municipal court, and forthwith all further proceedings in such action in the court of the justice of the peace shall cease, and the appeal shall be considered as perfected, and the appellant shall not be required to file bond. Said justice shall thereupon immediately transmit to the clerk of the municipal court all papers in said action, a transcript of his docket showing the proceedings and the costs of his court, and any moneys held by him in the action and the justice shall order the constable to turn over any property held by him in the action to the bailiff of the municipal court to be by him held as in like cases originating in the municipal court." It is contended for the plaintiff in error that this section is unconstitutional, because it authorizes an appeal without bond, and therefore his motion should have been granted. The section under consideration is claimed to be unconstitutional because, it is said, the subject of appeals from the judg Hull v. Kaufman. ment of a justice of the peace is of a general nature, and all laws dealing therewith must have uniform operation throughout the state, and since this section does not have uniform operation throughout the state, but applies to the municipal court, it violates Art. 2, Sec. 26, of the constitution. There can be no question of the power of the General Assembly to establish such a local or special court as the municipal court. State v. Bloch, 65 Ohio St. 370 [62 N. E. 441]. The constitutionality of the act creating the municipal court of the city of Cleveland is conceded. Having power to create such a court, it necessarily follows that the legislature has power to define its jurisdiction. In exercising this power the legislature has provided for appeals from the judgments of justices of the peace to the municipal court, and has authorized the taking of such appeals from the judgments of justices of the peace to the municipal court, and has authorized the taking of such appeals without bond. This in no way interferes with the jurisdiction of justices of the peace from whose courts actions may be appealed. It pertains solely to the jurisdiction of the municipal court, and the jurisdiction of that court is not a subject of a general nature. The fact that in appeals from justice courts to the court of common pleas, bond is required of the party appealing, imposes no obligation upon the legislature to require bond to be given in appeals to the municipal court. In omitting to require bond of the party appealing from a judgment of a justice of the peace to the municipal court, the legislature doubtless had in mind the correction of certain evils believed to exist in the justice court system and to facilitate the appeal of cases to the municipal court. It was a proper exercise of power to provide for appeals without bond, and Sec. 11 of the act creating the municipal court, as amended 102 O. L. 158, is not unconstitutional. The argument that the party who has recovered a judgment in the justice court is deprived of his right to have execution on his judgment without security of a bond, in case the losing party appeals to the municipal court, is one more clearly addressed to Cuyahoga County Circuit. the justice or policy of the law than to its constitutionality. Moreover, the judgment in such case is not a finality. It is obtained in contemplation of the law relating to appeals and the party obtaining it must be deemed to know that the jurisdiction of the municipal court may be invoked by the losing party. Judgment affirmed. Marvin and Metcalfe, JJ., concur. COUNTER CLAIM AND SET-OFF. [Cuyahoga (8th) Circuit Court, June 17, 1912.] Marvin, Niman and Metcalfe, JJ. (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.) F. T. PEITCH Co. v. HATTIESBURG TRUST & BANKING CO. Set-Off Disallowed where Claimed Against Assignee of Invoice and Bill of Lading. When an invoice and bill of lading made out in the name of the consignee for goods sold the consignee are assigned by the consignor to a bank for an advance of 80 per cent. of the face value of the invoice, in an action thereon by the bank against the consignee, the latter can not off-set a claim against the consignor of which the bank had no notice, the course of dealing between the parties showing that the consignor reserved the right to control the goods shipped. ERROR. Hauxhurst & Saeger, for plaintiff in error. NIMAN, J. The plaintiff in error was defendant, and the defendant in error was plaintiff in the court of common pleas. A jury was Iwaived in the court below and the cause tried to the court. Judgment was rendered against the defendants there. This proceeding in error is prosecuted to secure a reversal of said judgment. On June 14, 1909, the F. T. Peitch Co. placed with the Peitch Co. v. Hattiesburg Tr. & Banking Co. Forest Lumber Co. an order for lumber which was duly accepted and the lumber ordered was delivered to the carrier at Columbia, Miss., on July 15, 1909, by the Forest Lumber Co., through the agency of the Marion Lumber Co., which acted for the Forest Lumber Co. The lumber was consigned to the F. T. Peitch Co., at Cleveland, Ohio. After the lumber was delivered to the carrier, the Forest Lumber Co. assigned the invoice therefor and the bill of lading to the Hattiesburg Trust & Banking Co. and then received there for a sum of money equal to eighty per cent. (80%) of the face value of said invoice. On July 19, 1909, the Hattiesburg Trust & Banking Co. mailed the invoice, with an assignment written thereon by the Forest Lumber Co., together with the bill of lading to the F. T. Peitch Co., requesting a remittance therefor. The invoice and bill of lading were received by the F. T. Peitch Co. before the lumber reached said company. The F. T. Peitch Co. refused to remit for the amount of said invoice to the Hattiesburg Trust & Banking Co. for the reason that it claimed to have a set off against the Forest Lumber Co. on account of the failure of said company to deliver a certain shipment of lumber under a former order accepted by it, whereby the F. T. Peitch Co. was compelled to go into the open market and purchase lumber at a figure claimed to be $239.27 in excess of that which the Forest Lumber Co. had agreed to furnish the lumber. After the refusal of the F. T. Peitch Co. to pay the invoice, the Hattiesburg Trust & Banking Co. brought suit against it to recover thereon, and said the F. T. Peitch Co. thereupon, in its amended answer, set up the damage it claimed to have suffered on account of the failure of the Forest Lumber Co. to fill the said former order and prayed that the amount of said damage be set off against the plaintiff's demand. This set-off was refused by the trial court and judgment rendered in favor of the plaintiff for the amount representing the advance made by it on the assignment of said invoice and bill of lading together with interest thereon. At the time the banking company took an assignment of said invoice and bill of lading and advanced eighty per cent. of the Cuyahoga County Circuit. face value of the invoice, it had no knowledge of any set-off in favor of the F. T. Peitch Co. against the Forest Lumber Co. We are therefore called upon to decide what rights the Hattiesburg Trust & Banking Co. acquired in the assignment of the invoice and the transfer of the bill of lading to it and the advancement thereon of eighty per cent. of the amount called for in the invoice, without notice on its part of any set-off in favor of the consignee of the lumber against the Forest Lumber Co. It is claimed on behalf of plaintiff in error that the title to the lumber passed to it upon its delivery to the carrier by the Marion Lumber Co., and that the Hattiesburg Trust & Banking Co. became a mere assignee of an account which is subject to the equity which the plaintiff in error had against the Forest Lumber Co. on account of the set-off mentioned. It is contended by the defendant in error that the bill of lading was the symbol of the property described in it and by the transfer of such bill of lading to the banking company, it in effect acquired a special ownership of the property as security for the advancement made by it. We consider the case of Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360 [18 Am. Rep. 299], decisive of the question under consideration. In that case it was held: "1. By the rules of commercial law, a bill of lading is regarded as the symbol of the property therein described; and in case the shipper reserves to himself the jus disponendi, he can transfer the title, at any time before the property is delivered by the carrier to the consignee, as effectually by the delivery of the bill of lading as by the delivery of the property itself. "2. If the consignment be made by a vendor to a vendee, the question whether the consignor reserved the jus disponendi is one of intention, to be gathered from all the facts and circumstances of the transaction. "3. If the right to control the property be reserved by the shipper, the carrier must be regarded as his agent; if not, then as the agent of the consignee. "4. On such question of intention, the terms of the bill of lading are to be taken as admissions of the consignor, and are entitled to great weight, but are not conclusive. "5. Nor is the fact, that the consignee had contracted with the carrier for special rates of freight, conclusive that the goods |