Volume 1 — Hosea's Ohio Reports (Cincinnati Superior Court, 1907)

<p>1. A bill of exceptions being placed in the hands of the trial judge, October 20, 1903, the period of 5 days allowed for his action expired (under Section 4931, Revised Statutes), on October 26 (October 25 being Sunday). The ten days’ extension endorsed thereon expired, therefore, on November 5, on which day the judge signed the bill. Under the maxim omnia rite esse acta praesumuntur, his action must be taken as correct. The manner of the action being substantially regular, it is to be presumed that all formal requisites affecting its validity were complied with.</p> <p>2. A verdict upon the facts will not be disturbed except upon the strongest showing, especially where the question of contributory negligence is involved upon facts that might lead different minds to different conclusions. Snell case 34 O. St., 201, and Wadsworth case, 1 O. Cir. Ct. Rep. (N.. S.), 483, analyzed and compared.</p>

<p>1. An injunction against the construction of a railway upon or across a public street is properly refused an individual property owner where the railroad company is proceeding under ordinance of the city council, duly passed, and where the proof shows that the injuries claimed to result are only those suffered in common with all other property owners of the neighborhood, and are the infraction of public and not of private rights.</p> <p>2. The individual property right of an owner, in respect of property abutting on the street, extends only to the middle of the street. He has, in addition, a general right as to access,, air, light, etc., which may become specialized by injuries specially accruing to him; but until thus specialized, his general right as one of the public, must be enforced through the proper municipal agencies in the manner provided by law.</p>

<p>1. Where several insurance companies seek to have an appraisement, award and finding of the amount of loss, made at the instance of all jointly, set aside by reason of fraudulent misrepresentations of the assured, all must be joined as plaintiffs unless some refuse to join. Those who so refuse may.be made defendants upon allegations of the facts.</p> <p>2. In such case all are parties in interest in the immediate relief sought, namely the setting aside of the joint award which is the basis upon which all are to be held to contribute proportionally to make good a common loss.</p> <p>i. Contracts made with tax “inquisitors” under the statutes in that behalf are invalid so far as they are drawn to have a prospective operation. The statute contemplates past and not future omissions; and such contracts are only justifiable when limited to such collections as the treasurer is unable to make after a full and unsuccessful exercise of all powers conferred upon him by law. Such statutes must be confined strictly to past forfeitures and can not be enlarged by construction. Only when public officers have in good faith exhausted their powers is the employment of private assistance justifiable.</p>

<p>1. Sections 4270 and 4273 of the Revised Statutes relating to recovery of money lost in gaming, wagers, etc. — the first providing that within six months the loser may sue, and the second that if the loser do not sue within the time specified any person may sue — are not mutually exclusive. The latter section by the term “any person,” includes also the loser; and the first section is therefore not a statute of limitation.</p> <p>2. It is sufficient in suits under this law to show the aggregate amount of losses within specified dates without proving each particular amount and date or the particular agent or proprietor to whom each sum was paid or lost.</p> <p>3. A plaintiff in such actions need not aver nor prove that he lost money in n'or describe the gambling schemes in which he participated.</p>

<p>1. The question of contributory negligence involves not only the immediate act of the party charged, but surrounding circumstances influencing the motive and touching its propriety, and is, therefore, in most cases, a question for the jury.</p> <p>2. Especially is this true in the case of children whose immature judgment lessens the quantum of care required and correspondingly increases that of the injuring party.</p> <p>3. The doctrine thus rests, in the case of children, upon a balancing of modified obligations, so that, under Ohio law, a court would not he justified in imputing negligence to a child as matter of law but must leave the question to a jury upon the evidence under a suitable charge.</p>

<p>Although a prior judgment may not be a technical bar to a subsequent action,’ yet a fact in issue between the parties and necessarily involved in the former judgment is res adjudicata in a collateral suit between the same parties.</p>

<p>1. The owner of property abutting on a street has an easement in that portion of the street lying in front of his premises as an incident of tenure, and he may use the same for any purpose that does not interfere with the rights of the public.</p> <p>2. An abutting owner has a right of action in respect of his said easement for any interference with right of access, etc., that is a private injury not shared in common with all other owners; but in respect of a general obstruction to travel upon the street, the primary injury is to the public and suit must be prosecuted by the public authorities or by the citizen in his capacity of tax-payer if the public authorities refuse to act.</p>

<p>1. The statute (R. S., Sec. 3133), rendering void all capital stock, bonds, notes or other securities of an incorporated company, purchased by a director thereof at .less than the par value of the same, does not apply to the bonds, etc., of another independent company, acquired by the first named company in the ordinary course of its business.</p> <p>2. While all transactions of directors in their own interest with the property and affairs of their company are to be closely scrutinized, they may be upheld where no element of deceit or unfairness is shown; and more especially is this true where the circumstances render it at least possible that the transaction may involve a benefit to the holding company.</p>

<p>1. A purchaser of platted lairds is bound by recitals of the plat in existence though subsequently recorded.</p> <p>2. The holder of a perpetual leasehold, if duly authorized by his ’ deed of conveyance, may make a lawful dedication binding on the holder of the fee.</p> <p>3. A common law dedication if properly made is equally effective with a statutory dedication.</p> <p>4. A common law dedication of lands insures to a municipality subsequently organized thereover. The public is an ever-existing grantee capable of taking dedication for public use.</p> <p>5. Actual acceptance and opening of a dedicated street not necessary to perfect the dedication, nor are laches imputable, until circumstances arise in the growth of a municipality calling for such action.</p> <p>6. An indorsement of reservation by a purchaser of platted lands who subsequently replats, is not effective as to prior dedicated streets, where the prior dedication had become effective by sales of lots, etc.</p>

<p>1. To charge a landlord for injuries to the public resulting from a nuisance on leased premises, the nuisance must necessarily result from the ordinary use of the premises by the tenant. Where injuries result wholly from improper or negligent use of the leased premises by the tenant, he alone is chargeable.</p> <p>2. Where premises are leased in parts to various tenants and the nuisance is in respect of parts — such as hallways, etc. — reserved for the common use of tenants and the public, the landlord is responsible both to tenants and the public for injuries due to defective construction and maintenance.</p> <p>3. A coal hoal or chute in a sidewalk adjacent to premises leased to various tenants and used in common by some or all, is to be maintained in proper condition by the owner; and he will be liable for injuries flowing from negligence in respect of such maintenance — more especially if the injurious results are due to defects in construction, such as a failure to provide proper safeguards, or such as render possible a dangerous displacement that would not be readily observable by those using the sidewalk.</p> <p>.4. In view of common knowledge and advance in the mechanical arts, there is no excuse for slip-shod construction in such matters, considering the danger to life or limb likely to result from carelessness in this regard, and it is the primary duty of public officers having jurisdiction over these matters to see that public safety is at all times conserved.</p>

<p>Lien of the state for taxes under the Dow law takes precedence of other liens, even a purchase-money mortgage. Possession of property is conclusive evidence of ownership under tax laws The fact that the business in which the property is used is unlawful does not affect the right of the state to collect the tax by sale.</p>

<p>1. A partnership selling the product of a coal company under a contract designating the partnership as “selling agents,” where the ultimate selling price is fixed by the company and the compensatioin for sellng is a “commission” by way of a percentage on sales, the fact that the partnership guarrantees the sales, insures and pays other expenses incidental to selling, does not place them in the relation of purchasers but of factors under a del credere commission as agents,</p> <p>2. Property of a non-resident, held in this state by a del credere factor, may be attached as the property of the non-resident, subject to the factor’s lien for commissions, advances, etc.</p>

<p>1. An agreement for sale of lands in consideration of stock in an incorporated company to a specified face value amount, with an agreement to re-purchase the stock at or before the expiration of ten years at a specified amount in cash, is an entire contract and not divisible. The stock consideration was received and paid subject to the vendor’s right to redemption in money.</p> <p>2. The vendor in case of refusal of vendee to pay the stipulated price, upon tender of the stock and demand, may sue for the amount due as upon the main contract. The option to have the stock redeemed does not involve an agreement of the company to purchase stock, in the ordinary sense, and the doctrine of ultra vires can not be invoked as a defense.</p>

<p>1. A written contract for the sale of lands payable in stock of an incorporated company with an agreement to re-purchase the stock in ten years at a stipulated price, is, in its last analysis, a contract obligation to pay the contract price in money, if demanded by the seller at the expiration of the stipulated period.</p> <p>2. Upon tender of stock and refusal to pay, the action is practically one at law for money only. The stock consideration was subject to redemption in money. It was not an agreement to receive an equal amount of stock but an option to deliver back the particular stock sold and receive a stipulated cash consideration. It was, in effect, a deferred payment secured by the stock during the stipulated period.</p> <p>3. An incorporated company entering into a contract against its granted powers, estopped, after fully receiving and enjoying the benefits from setting up as a defense its want of power to make the contract.</p>

<p>1. Where a road is contracted for and built with reference to a special fund raised by taxation for this purpose and no other, and a certain percentage of the contract price is retained for a specified period upon a trust not yet expired, whose further performance is rendered impossible by wrongful acts of the municipality, a right of action arises to determine the trust and for the balance remaining unpaid.</p> <p>2. In such case, the court will enjoin the waste or misapplication of the fund by the municipality pendente lite upon a proper showing of facts.</p> <p>3. The remedy of the contractor in such case is in equity, since' it involves a rescisión or cancellation of the time limit that could not be reached at law.</p>

<p>1. An entry of “tax not tendered” is not a sufficient compliance by the county auditor with the statute requiring him to certify upon the tax duplicate the “reasons why the taxes could not be collected.” Until the treasurer has exhausted his duties of collection, there can be no showing of reasons for non-collection and a tax deed given upon such a showing is invalid.</p> <p>2. A claim of support by an aged mother against a son can not be maintained under the statute in this behalf. The statute is punitory in behalf of the state, and can not be invoked between parties in a private action.</p>

<p>1. The general knowledge of business or customers, such as would naturally he acquired by an employe (not involving special information in the nature of trade secrets) in the course of employment, may be used by him in his own behalf after leaving the business.</p> <p>2. A stipulation in a contract of employment binding the employee not to engage or be, in any way, employed in the same line of business for a period of years under a forfeiture of a sum of money characterized as “liquidated damages,” will be held void as in restraint of trade, where the circumstances show it to be unreasonable and unjust, as where it does not appeal that any damage could ensue from a breach.</p>

<p>1. Interpleader is allowed for the protection of one who makes no claim to the subject of the action. Any other action in the nature of a claim is inconsistent therewith and the pleader must elect between them.</p> <p>2. Where the indebtedness is a note payable to payee or order, it accrues to the holder by indorsement for value, at maturity, and creditors who serve notices of garnishment upon the payee subsequently to such transfer have no interest in the note.</p> <p>3. Where these facts appear on the face of the petition and no defense other than relates to the interpleading parties, is made by the payee, the interpleading cross-petitions may be stricken from the files and judgment rendered on the pleadings.</p>

Proceeding in Contempt. Charges in contempt were filed in this cause on May 1, 1903, against William Cooper, F. W. Schwegman, George Slayline, Charles Faber, Jos. Somhorst, D. Harrigan, Gus. Rolfits, John Schumacher, John Houser and Ben. Schmiiger, alleging disobedience, resistance and violation of a restraining order issued by Judge Rufus B. Smith of this court in this cause on March 23, 1903, duly served on each and every one of the defendants.

<p>1. In a suit against a municipality for maintaining a nuisance, recovery of damages is subject to the rule that the plaintiff is required to use ordinary care to avoid or mitigate the injury; and if, by plaintiff’s fault the extent to which his negligence contributes can not be distinguished, the ordinary rule of contributory negligence applies to defeat recovery.</p> <p>2. Where it is apparent that a new trial. upon an adverse verdict ■ would mean only an opportunity to secure nominal damages, a new trial will not be granted.</p>

<p>1. Where a contract technically entire but contemplating delivery of a number of distinct things not physically connected nor dependent on each other, is partially performed and complete performance is rendered impossible through no fault of the contractor, the latter may recover pro tanto. The right of recovery in such cases depends upon the subject-matter and not upon the entire or severable nature of the contract as such.</p> <p>,2. The doctrine of incomplete performance as a defense applies only to entire contracts in the sense of the entirety of the thing contracted for and does not apply where the breach goes only to one or more of severable provisions having independent benefits.</p> <p>■3. Where both parties contract with reference to the continued existence of'the thing with reference to which the contract is to be performed, the subsequent perishing of the thing excuses complete performance.</p> <p>4. The recovery as upon a quantum meruit in these capes presupposes a termination of the contract; consequently the liability of the contractee can not be increased, by subsequent tender of articles rendered useless to him by the destruction of the thing with reference to which the contract was to be performed.</p>

<p>The Trustees of the Cincinnati Southern Railway, by their action in acquiring property and locating terminals in the vicinity of Mill creek, did not disclose an intention to make those terminals the sole and ultimate terminals of the railway in this city, nor did they thereby exhaust their power for acquiring land for that purpose. On the contrary, the act of April, 1898, confirms and amplifies the power originally possessed by the Trustees in that behalf, and the topographical features of the city and its railway requirements justify the location of the principal terminals on the lower ground near the river, as has been done. The omission of certain property, covered by the declaratory resolution and petition for condemnation, did not vitiate or render void the entire proceeding, but was within the discretion vested in the Trustees. Moreover, there is statutory provision, applicable to others and by implication to this railway, for the abandonment, even after verdict, of any or all of the property sought to be condemned and appropriated for railway purposes.</p>

<p>Charge to Jury on Second Trial.</p>

<p>1. An employe who is under either an express contract, or a contract implied from the confidential relations existing between him and his employer, not to disclose trade secrets, has no right, after leaving the employment, to disclose or use the same for his own benefit, or to the injury of his former employer. Injunction will lie to restrain such disclosure or use.</p> <p>2. An employe may, after leaving his employer’s service, lawfully engage in the same line of business as, and in competition with, the latter, and to this end may avail himself of the general knowledge and practice he has acquired while engaged in his former employer’s service, which includes the right to canvass for the latter’s customers, the names of whom he has learned bona fide in the ordinary course of experience in the business; no property rights of the employer are thereby infringed. But names of customers collected by the employer, or by such emplo3re for him, by special effort and at great expense, which is not such mere information as is supplied by, or can be obtained from, sources open to the public and which are guarded by the employer from competition as far as possible, all of which such employe necessarily obtained by reason of his employment, can not be used by such employe for his own benefit, or to the disadvantage of his former employer. Such special information is the property of the employer; and while he can not be protected even with respect to these customers as against the ordinary competition of such employe, yet when the latter becomes possessed of his knowledge by virtue of his confidential relations to his employer, and, after leaving his employ, makes use thereof for his own benefit to the injury of his former employer, he is guilty of unfair and unconscionable competition which equity will enjoin. Hence, where it appears that an employe of a gold and silver refiner was, during his eight or nine years of employment, sent by his employer on extended trips throughout the country to see manufacturing jewelers, jobbers, pawnbrokers, bookbinders, etc., to ascertain their needs as to new supplies, and their custom as to disposing of their refuse products of gold, on the basis of which knowledge so obtained his subsequent trips were so timed as to fit the respective customs in this regard; that these facts were in some instances already known to the employer, but in others were ascertained by the employe as part of his duty owing to his employer; that The information so obtained was such that it could not be ascertained from directories or similar sources of public information; that he did not, in all cases, report the names thus ascertained to the employer, but that the names reported were entered on the employer’s books; in such case, equity will perpetually enjoin such employe from using the names of customers so obtained for his own benefit, or to the disadvantage of his former employer. Whether the information was carried away in memory, or written down, is immaterial.</p> <p>3. It is not a sufficient basis for affirmative denials in pleadings, for the pleader to affirm ignorance of the matter denied, on the witness stand.</p>

<p>For the purpose of responsibility for negligent acts producing injury the relation of carrier and passenger begins when a person, intending in good faith to take passage, aiid with the express or implied assent of the carrier, places himself in a position necessary to avail himself of the facilities for transportation which the carrier offers; but the fact of physical contact with the car is not an indispensable criterion of the carrier’s liability.</p>

<p>1. An indorser of a promissory note who, as collateral security therefor, secured from the maker an assignment of his unearned referee fees to the holder, thereby incidentally securing against his own liability as indorser, is not, under the Ohio code of civil procedure, a “party in interest” in a contest between a subsequent assignee of the earned fees and the holder of the note, both of whom are claiming by virtue of their respective assignments from the referee.</p> <p>2. Referees appointed by courts of record, under the code of civil procedure of Ohio, are “public officers,” and as such become adjuncts to the judicial system of the state, clothed with some of the powers and duties of the judicial office. The object of their appointment is to relieve the courts of detail work, thereby contributing to the due and speedy administration of justice.</p> <p>3. A referee’s fee is not earned until a finding of facts has been made and the law applicable thereto decided by him, which duties constitute the chief functions of his office; and no compensation, separate and apart from the final completion, is provided for the preliminary labor, however onerous, which may be required to enable him to fully discharge such functions. Until final completion, an inchoate right to compensation, only, exists, which can not be the subject of assignment.</p> <p>4. An assignment of unearned fees by a referee, who is a public officer, is against public policy, and void; but an assignment of earned fees may be sustained.</p> <p>5. A preexisting debt will not support an assignment of fees as collateral security therefor as against a subsequent bona fide assignee for value without notice. The equitable maxim “first in time, first in right,” is applicable only where equities are equal.</p>

<p>Motion to strike from petition.</p>

<p>1. The inchoate dower of a wife is an incident of the seizin of the husband and can only be conveyed by her in connection with the husband’s transfer of title.</p> <p>2. While post nuptial contracts of separation are recognized in Ohio, neither husband nor wife will be aided by the courts in the enforcement of claims arising out of them if the contracts bear the appearance of irregularity or unfairness.</p>

<p>Error to special term.</p>

<p>1. The doctrine of subrogation, originating in the equity of one secondarily liable (as a surety) who pays the debt and becomes thereby entitled to the benefits of any securities held by the creditor against the principal debtor is extended to one who is compelled to pay off a prior lien to protect his security, etc. The right can only be made effective by laying hold of dormant equities already existing.</p> <p>2. The right can not be invoked in favor of a third party who pays off a judgment lien except upon an agreement that the judgment shall be assigned or kept on foot for his benefit and in such wise as to place him in the shoes of the judgment creditor so as to respond proportionably for any deficiencies upon sale under execution.</p> <p>3. The mere loaning of money to a judgment debtor does not operate to transfer the lien even though so understood by the parties.</p> <p>4. Fraud in the creation of the debt may inure to the benefit of an incumbrancer of one property who pays taxes upon another property as against a judgment creditor of the whole, as creating an equity for subrogation to the extent of the money thus paid.</p>

<p>Where a member of a wrecking crew, who has had long experience in that work, takes his seat in a dangerous place on a train about to proceed rapidly to a wreck, and is knocked off and killed through the negligent placing of a stick of timber upon the car, he is chargeable with notice of the danger of his position and of the manner in which the car was loaded, and the trial court is warranted in taking the suit of his administrator from the jury on the ground of contributory negligence.</p>

<p>Inasmuch as the interest of the beneficiary in a life insurance policy is a vested one which can not be impaired by any act of the. insured, an action to rescind a policy and recover the premiums paid can not be maintained by the assured without the assent and concurrence of such beneficiary; a fortiori, when the beneficiary has brought suit to perpetuate testimony with a view to an action against the insurer at the maturity of the policy.</p>

<p>1. The insured and the beneficiary are both proper and necessary parties plaintiff to an action against an insurance company for the rescission of a policy and the recovery of premiums already paid.</p> <p>2. Authority is conferred by the provisions of Rev. Stat., 5114, to remand an action by a policy holder for the rescission of his life insurance policy and the recovery of the premiums paid, for amendment by the addition of the beneficiary as a party plaintiff.</p> <p>3. Laches in equitable proceedings is not a mere limitation of time but rests upon the inequity of permitting a claim to be enforced, and is founded upon some change in the condition or relation of the property or the parties and involving injury to the opposite party, through neglect to assert rights; a court of equity will not, therefore, deny relief to one who has slept on his rights, where it appears that the delay in prosecuting the suit has not worked any injury to the adverse party, but rather that a failure to examine the petitioner’s claim would leave the defendant in the position of a wrongdoer who has profited by his own wrong and by the delay.</p>

<p>The dissensions of parents do not release the father from the obligation to support his children, and the fact that he has obtained a decree of divorce in another state, after a separation which continued for many years, does not bar recovery by the wife from him of money expended in the support of their children prior to the granting of the decree; nor can aggression on her part be inferred as a matter affecting the rights of children, where the decree assigns no cause for the divorce and makes no provision for alimony or for the children.</p>

<p>Reserved from special term.</p>

<p>1. A lease is not necessarily void under Revised Statutes, 4364) and Goodall v. Brezoing Co., 56 Ohio St., 257, because the lessee maintains a bowling alley in conjunction with his sale of liquors. The force of the statute is aimed at the bowling alley and the sale of liquors is not rendered unlawful under the section quoted.</p> <p>2. It is no defense to an action for rent under a written lease in which the unlawful use of the premises is expressly provided against, that the lessor and lessee had a secret understanding that the leased premises were to be used for an unlawful purpose, where the action is brought by the lessor’s grantee and there is no showing that the plaintiff knew of the secret understanding or the unlawful use.</p>

<p>1. The servant does not assume the risk of negligence on the part of the matter, but only those risks which inhere in the employment as conducted with ordinary care by the master.</p> <p>2. The master must not, without good cause, place his servant in a place of danger; and he also owes the duties of employing competent servants, providing machinery and tools sufficient for the work to be done, and employing a sufficient number of servants for a given work according to the ordinary conditions of the business.</p> <p>3. Negligence of the master towards a servant may be predicated upon his failure to provide a sufficient number of men for a given work as well as for a failure t.o provide suitable machinery and tools; and where a servant is overstrained and' ruptured by being called upon to undertake more than his fair and reasonable amount of work, the result is properly chargeable to the master’s negligence in failing to furnish a sufficient number of men to perform the work.</p> <p>4. Where four servants were called upon by the master to lift and readjust a heavy spar used in holding barges apart, which operation was usually performed by eight or ten men, and one of them was ruptured as a consequence of being required to lift more than his fair and reasonable amount, the master is liable therefor, as the danger of such an injury was not obvious to the servant, and the risk of the injury was not, in such case, assumed.</p> <p>5. Whether or not the act of the master in ordering four men to perform a certain job of work, which usually required and was performed by eight or ten, was a reasonable one, is a question for the jury under all the circumstances; and if found to be unreasonable, it is no defense for the master to say that the immediate cause of the injury to one of the servants, who was strained and ruptured, was the negligence of his fellow-servants in the execution of the work. The rule of “fellow-servants” has no application in such a case.</p>

<p>A motion for judgment on the pleadings on the ground that plaintiff failed to reply to the answer alleging contributory negligence, will be overruled when filed after trial to a jury as on issue joined upon the allegation of the answer and the evidence supporting it.</p>

<p>1. Injuries arising from, and growing out of, boycotts, strikes and lockouts are continuing and irreparable in their nature, and incapable of admeasurement according to strict legal principles, and their redress therefore is the province of a court of chancery; and this right and power of redress of the courts is inherent in them as a co-ordinate branch of the government and can not be curtailed by legislation.</p> <p>2. The inducement, on the part of an officer of a labor union, to non-union employes of plaintiff company to quit their employment and join the union, by means of veiled threats as to the possible consequences of acting as a “strike breaker” and by promises of railroad fare for themselves and families to another city and regular employment there, etc., is in violation of the provisions of an injunction theretofore granted commanding the officers and members of such union to desist and refrain from compelling or inducing employes by threats, intimidation, force, violence or unlawful persuasion, from freely continuing in the service or employment of the plaintiff company.</p>

<p>1. So long as the officers of a municipal corporation act in good faith in the establishment and maintenance of streets, no liability attaches against the corporation for their errors of judgment; it is only for their negligent failure to perform their duties as to the same that the municipality is liable.</p> <p>2. In an action for personal injuries, a municipal corporation will not be charged with notice of the dangerous condition of a street crossing' caused by a hard rain occurring so recently as to preclude a reasonable presumption of notice.</p> <p>3. Where the testimony, in an action for personal injuries against a municipal corporation, shows that the dangerous character of a curbing and street was caused by a heavy rain, the plaintiff will be charged with knowledge of such fact as well as the city; and where plaintiff took her way across such dangerous place when it could have been avoided, with her hands so engaged that if she slipped she would be unable to assist herself, this will create a presumption of contributory negligence.</p>

<p>Reserved from special term.</p>

<p>1. Conditions precedent required by law constitute a part of the cause of action, and must be performed before a cause of tion will accrue and remedial rights arise. A fortiori is this true with respect to conditions precedent contained in a statute creating a right or duty unknown to the common law.</p> <p>2. R. S., 6234 and 6135, creating a cause of action for death by wrongful act, and providing that such action shall be brought in the name of the personal representative of the deceased, etc., create a right and provide a remedy which did not exist at common law, and should be-given effect according to the words used to accomplish the purpose intended.</p> <p>3. The limitation of two years prescribed by R. S. 6135, within which an action must be brought by the personal representative of a deceased person to recover damages for death by wrongful act, is an essential condition of the right of action created by R. S. 6134, and begins to run against the beneficiaries, for whose exclusive benefit the right of action is created; and, once beginning, it continues to run on to completion without interruption.</p> <p>4. The appointment or non-appointment of an administrator of the estate of a person whose death was caused by wrongful act, being a matter within the control of the parties in interest, the beneficiaries, has no effect upon the operation of the statutory limitation upon the cause of action given by R. S. 6134 and 6135.</p> <p>5. It is a condition precedent to the right of action given by R. S. 6134, 6135, for death by wrongful acts, that there be an administrator in existence upon whom the right to bring the action may devolve; and where an administrator was not appointed until after two years from the time of decedent’s death, within which time the action must be commenced, the cause of action is barred, notwithstanding application for the appointment of such administrator was made before statutory period had fully run. In such case, the appointment can not be made to date back to the time of the application. Hence, where an action was commenced by a person as administrator after an application for his appointment had been made, but his appointment as such was not perfected until after two years from the death of the decedent, the action will be dismissed.</p>

<p>1. City ordinances relating to the location of poles and the insulation of electric wires, etc., fall within the class of regulations established for the benefit of the general public only, and do not constitute a ground of private action for individuals not in the class intended to be protected thereby.</p> <p>2. No cause of action arises in favor of a telephone lineman who goes upon the poles of an electric light company with its acquiescence, but as a mere licensee, to repair wires belonging to his employer, and who receives personal injuries as a result of the defective insulation of the wires of such light company.</p>

<p>.A provision in a policy of fire insurance that no suit should be brought thereon “unless commenced within six months next after the fire” will, in the absence of circumstances showing the limitation to be harsh and oppressive upon the insured, be conclusive upon the plaintiff.</p>

<p>Reserved from special term.</p>

STATEMENT. Fox was asked by the Book, etc., Co., of Chicago, which furnished books for sale in the book department of the Shillito Co., to become surety for it in replevin against an attachment of the books as the property of another company. To induce Fox to do this the Book Company wrote him that it has arranged with the Shillito Company, which was one of the defendants in the replevin suit, to secure him against loss.

<p>1. While an ordinance prohibiting any person having the right to tap a public sewer from draining property adjacent to their own by means of pipes or other communications may not apply where both the adjacent and abutting property is owned by the same person, yet the prohibition extends to the adjacent property after its conveyance to another person.</p> <p>2. The adequate local drainage for the usual purposes of sewerage, required by Section 2380, Revised Statutes (repealed, 96 O. L., 99), in order to exempt property from a sewer assessment, includes both permanency of physical structure, and control. Hence, a lot which has never been assessed for the construction of a sewer, and has no sewer connection except that it is drained by its owner by means of a private connection across another of his lots which has a direct and proper connection with a city sewer, which private connection is manifestly against the policy of an ordinance regulating the use of sewers, and exists only by the doubthful authority of one who has control only in his own right, which right of connection would cease altogether by the conveyance of such lot to another person, does not show such an adequate local drainage as will exempt it from an assessment to pay the costs of constructing another sewer.</p>

<p>Error to special term.</p>

<p>1. An insurance company doing a business of “life” and “accident” insurance, unless an assessment company, is within the purview of Section 3625, Revised Statutes, relative to the materiality of a false answer made by applicant, and also of Section 3626, Revised Statutes, creating an estoppel as to certain defenses.</p> <p>2. An answer, in a suit on a policy of insurance, alleging a misstatement in the application therefor and that it was false, material, and that the policy was issued in reliance thereon, is insufficient to constitute a defense; it should also allege wilfulness and fraud on the part of the applicant and want of knowledge on the part of the agent or company.</p> <p>3. Testimony that plaintiff was blind in one eye and that his vision in the other was defective, such condition being of such a character as to be visible to every one, is not sufficient to show fraudulent intent in plaintiff in answering that he had no bodily or mental infirmity.</p> <p>4. Section 3626, Revised Statutes, which estops an insurance company from defending an action on an insurance policy on the ground of misstatements by plaintiff made at the time of application, if .three annual premiums have been since paid, will include within its purview, policy contracts issued in place of old policies on which three such payments have been made. Such contracts must be regarded as renewals of the old policies, and not as new ones.</p>

<p>1. Contributory negligence of plaintiff is fatal to recovery; and where .the proof required to establish plaintiff’s injury includes clear proof of all tire material facts relating to his conduct and duty, and these admit of no reasonable inference but that of negligence on his part, the case presents only a question of law for the decision of the court.</p> <p>2. The question of contributory negligence is usually one of law and fact, and it is only in exceptional cases where the facts are so clear and undisputed that the question of law alone remains, that the court is justified in overriding the functions of the jury.</p> <p>3. It is not negligence per se for one to go upon a public way which he knows to be out of repair; but whether or not such conduct constitutes negligence depends upon whether the going upon the way can be “easily” avoided. Hence, where the only alternative for plaintiff in order to reach his desired destination, was to go around three sides of the public square, and over streets only partially improved, it can not be said as matter of law that he was negligent in taking the course he did, if he exercised greater care than he otherwise would have exercised had the defect been unknown to him.</p> <p>4. Where the evidence shows that a public way was out of repair to the knowledge of the plaintiff, but that, nevertheless, he went upon it in order to reach his desired destination, his only alternative being to go around three sides of the public square, and over unimproved streets, and the evidence further shows that the way was light at the time plaintiff went upon it, but that the lights went out when he was only about half way over, in such case, the question whether or not plaintiff, was negligent in going upon the way, and in going forward not backward after the lights went out, is for the jur}'.</p>

<p>1. An action commenced by a tax-payer as such, under favor of 1536-668, Revised Statutes, to enjoin the operation of an alleged illegal contract entered into between the municipality and a railroad company, will be dismised at plaintiff’s costs, when it appears from the evidence that the action is not brought in good faith for the purpose of protecting the municipality, but in the interest and at the instance of a rival and competing railroad company. The privilege conferred upon tax-payers by said statute is conferred strictly in a public capacity and for the public benefit, and not to further private schemes or interests.</p> <p>2. Before a tax-payer can maintain an action under favor of Revised Statutes, 1778, to enjoin the operation of an illegal contract entered into by the municipality, the corporation counsel is entitled to a reasonable length of time after request of the .tax-payer to bring the action in which to make a necessary examination into the matter brought to his attention, and a mere refusal on his part to bring suit “to-day or to-morrow,” or until he had “sufficient time to determine whether or not such should be brought,” is not such a failure to act as will warrant a tax-payer in commencing suit forthwith, in the absence of an exigency inherent in the subject-matter of the suit requiring immediate action. A fortiori when the only exigency existing, if any, was by reason of the neglect of plaintiff himself in delaying his request.</p> <p>3. The petition of a tax-payer in a suit commenced under favor of Revised Statutes, 1778, which makes no claim that the tax-payer or the public are in any manner injured by the alleged illegal contract sought to be enjoined, either by increase in taxation, or otherwise, or that such contract is not beneficial to such interests, is defective, ih that the ordinary grounds of injury of a tangible nature, the prevention of which is the predicate of injunction proceedings, are wholly wanting.</p> <p>4. Implied power, ex necessitate, is conferred upon the commissioners of the Cincinnati waterworks by (Revised Statutes, 2435-1 to 2435-18), in the absence of express limitations contained therein, to contract with reference to the property and undertaking under its control, without securing the consent or concurrent action of the board of legislation or other officer or board of the municipality.</p> <p>5. Transportation facilities, such as can alone be afforded by a railroad company operating as a general common carrier, are distinctly within the general scope of the undertaking entrusted to the commissioners of the Cincinnati waterworks, and are contemplated by the act under' which the work is being carried out; and contracts securing such facilities are, therefore, within the. discretionary power of the trustees. Hence, .said commissioners may, in the exercise of their power, grant to a railroad company a permissive right, for a term of years, to the surplus use” of a railroad over the property of their trust, it appearing that such arrangement is necessary and germane to the waterworks system, and also highly beneficial both to the commissioners in carrying out their work, and to the general public.</p> <p>6. A lease by the Cincinnati waterworks commissioners of surplus use of property to a railroad company for a term of years, and assisting in laying a track over such property, the trustees reserving the ownership and control of the property to the public, does not involve the municipality in a joint enterprise or partnership relation with the company, especially when the arrangement between the commissioners and railroad was necessary in order to enable the former to carry out their trust.</p> <p>7. In the exercise of purely governmental functions the municipal authorities charged therewith are bound to transmit the power entrusted to them to their successors unimpaired; but in the exercise of proprietary functions, such rule does not apply, because they act and contract for the private benefit of the municipality and its inhabitants, and they may, there- . fore, exercise their business judgment as private trustees. Hence, the commissioners of the Cincinnati waterworks, being charged with the exercise of proprietary functions of a quasi-private nature in carrying out the work entrusted to their charge, are therefore trustees in fact, and as such are governed by many of the considerations applicable to individuals who are under the responsibilities and duties of trust management; and it appearing that the leasing of surplus property to a railroad company is for a purpose germane to the objects of their undertaking, and not an abuse of the power conferred upon them, such transaction will be upheld, notwithstanding it is for a period extending beyond that required for completing the undertaking of the commissioners.</p> <p>8. Where the power to contract in the independent relation of trustees exists, the only question that can be raised concerning a given contract is whether it is an abuse of the powers of the trustees, as shown by its terms and scope and the surrounding circumstances. The time of the contract is simply an element, like any other, to be considered in this connection, and the fact that the rights granted extend beyond the tenure of the trusteeship is immaterial, unless the contract is of such nature that the term thereof points to an abuse of power.</p>

<p>1. It is a violation of the legal right of the employer for third persons, either individually or collectively, to maliciously and without legal justification induce or coerce his workmen to leave his employment, or to solicit them to join a labor union, with intent to injure the employer in his business, or compel him to accede to the demands of the union.</p> <p>2. Where the employer is unlawfully induced or coerced to discharge his workmen by reason of the malicious interference of individuals or combinations of individuals, the workmen may invoke the same law and are entitled to the same remedies as the employer against such interference.</p> <p>3. Equity has jurisdiction, notwithstanding (there may exist a legal remedy, to interfere by injunction to prevent a continuing injury, when the legal remedy ^therefor may involve a multiplicity of suits or the injury threatens an irreparable damage.</p> <p>4. Equity looks through the form to the substance, and, in giving effect to the rule that wherever there is a wrong, there is a remedy, it will always consider the injury to be remedied rather than indulge in overnice discrimination as to the means or instrumentalities employed in producing the injury; and where the intent to injure is shown, together with acts pursuant thereto which tend to, and do in fact, produce injury, the nature of the acts is immaterial.</p> <p>5. The display of force, though none is actually used, such as where groups of members of a labor union visit non-union workmen at their homes or places of work in pursuance of an unlawful purpose against the employer, is “intimidation,” and unlawful.</p> <p>6. Those who knowingly and intentionally aid and abet a conspiracy, or other quasi criminal proceeding, are liable as principals.</p> <p>7. An unincorporated labor union, which is joined as a codefendant with its individual members upon whom service may be had in their representative capacity, may be enjoined, as such, from unlawfully interfering with non-union workmen and their employer; and the injunction, when served upon the representative members of the union, will be binding upon the union, as an entity, and all its individual members, whether the latter be directly represented or not.</p>

<p>1. Upon a motion for a new trial, the facts are to be taken most strongly against the mover.</p> <p>2. Where, in an action against a street railroad company for negligence whereby plaintiff’s wagon, while traveling in defendant’s track, was run into from behind by a car, it appears from the evidence that defendant’s servants in charge of the car saw plaintiff’s wagon in the track in ample time to have prevented the collision by the application of the ordinary means of stopping the car, the fact that the collision occurred raises-a presumption of negligence on the part of the defendant.</p> <p>3. In an action against a street railroad company for the negligence-of its servants in charge of a car whereby plaintiff’s wagon was run into behind, where the evidence shows that at the time plaintiff turned into the track, he was thirty to fifty feet ahead of the car; that the motorman saw the plaintiff turning into the track; that the car was traveling seven or eight miles an hour and plaintiff four or five; that -a car going seven or eight miles an hour can be stopped by the ordinary appliances within thirty or forty feet, it is mathematically demonstrable that, by the exercise of ordinary care, the car could have been stopped or controlled in time to prevent a collision and a verdict in favor of the defendant should be set aside as not being supported by the evidence.</p>

<p>1. The rule of public policy declaring invalid contracts whereby, an employer undertakes to exempt himself from liability to his employe for negligence, is not confined to cases where a . railroad company is the employer, but extends to the relation of. employer and employe generally.</p> <p>2. A contract whereby an express company stipulates for immunity from its wrongful negligence, is within the inhibition of the rule that parties can hot by contract take away the jurisdiction of the courts.</p>

<p>Error to special term.</p>

<p>1. The jurisdiction of the courts in attachment proceedings depends upon a full compliance with all the steps prescribed by the statute; and where the ground for the attachment is the non-residence of defendant, the prime jurisdictional requisite is a valid levy upon propertj' of the defendant within the territorial jurisdiction of the court.</p> <p>2. Property attached must be appraised and returned as the property of the defendant, and if not so returned, and if it is not the property of defendant, it is fatal to the attachment.</p> <p>3. The interest of defendant in different parcels of land attached must be appraised and returned separately, and the appraisement and return must show what the interest of the defendant is.</p> <p>4. Where the sheriff’s return to a writ of attachment states that he levied upon the interest of the defandant in certain lands, and that he has caused the same to be appraised, but the inventory shows that he levied upon and appraised the entire land, and not an interest in it, the levy will be set aside.</p> <p>5. The equitable interest in real estate of a purchaser who is in possession and has paid part of the purchase money, is not ordinarily subject to attachment.</p>

<p>1. If a stipulation in an insurance policy relating to incidental' matters and not connected with the fundamental right of action-, becomes impossible as a result of causes not anticipated by the parties, the condition is discharged, and performance in that regard can not be required of the insured.</p> <p>2. Where under a fire insurance policy containing a stipulation for an arbitration in case of a disagreement as to a loss, referees and an umpire were appointed, and after the appraisal was. partially made, the referee of the insurer declined to act further, and the insurer refused to appoint another referee in his place, but insisted upon a new appraisal, such facts will operate-as an abandonment on the part of the company of their right to an appraisal under the policy, and no objection, therefore, to the proof of loss as being unaccompanied by an award can., be heard.</p>

<p>1. The rights of the state, under its police power, to deal with the subject of unsafe buildings, is founded upon the principle that the safety of the people is the supreme law, and is superior to titles paramount • derived through individual owners; and' all contracts in relation to property uses are entered into in view of these existing rights of the state, and are subject tO' them. The rule caveat emptor applies.</p> <p>2. The razing of a building by order of the police authorities of a municipality on account of its unsafe condition, is not an eviction or disturbance of the possession of the lessee by title paramount, and creates no liabilities against the landlord in the absence of á covenant broad enough to survive such action. A covenant, that lessee shall quietly have and enjoy the premises-free from molestation from said lessor, is not such a covenant.</p> <p>3. The order of the building inspector of a municipal corporation requiring the removal of a building on account of its dangerous condition, and his action in refusing to issue a permit' authorizing repairs with a view to preservation, are .tantamount to a specific order to tear down the building, and is final, in the absence of steps taken by either lessor or lessee to obtain a review of such order by the board provided for such purpose.</p> <p>4. Where a building has been ordered removed by the proper police officers of a municipal corporation on account of its unsafe condition, evidence that it would be practicable to make it reasonably safe by shoring and other repairs, is incompetent, except where fraud on the part of such officers is charged.</p>

<p>1. Money not in the possession of the owner can not be taxed as “personal property,” under that -term as defined by Revised Statues, 2370, except when held by another as a loan, and the obligation to repay is secured by a mortgage or other conveyance, which, as between the parties, is regarded as a mortgage, i. e., as security merely for the obligation to repay the loan. Conditional sales are not within the meaning of the definition, except such as by their terms could be, and by intention of the parties are in fact mortgages.</p> <p>2. Parol evidence is admissible to show that a conveyance, absolute on its face, is, as between the parties, a mere security for a loan; but evidence to have such effect, must be clear, explicit, and unequivocal. Such evidence can be resorted to only where there is nothing in the conveyance to determine whether the transaction is a sale or a mortgage, and the nature of the transaction must be such as to be susceptible of either construction, in order that its real character can be so estabished. Where the provisions of the conveyance are inconsistent with the theory that a mortgage to secure an indebtedness was intended, it will be interpreted accordingly.</p> <p>3. A privilege of repurchase, or a covenant for reconveyance, contained in a conveyance of real property, to be exercised at a certain time by the party in whose favor they exist, may, upon parol evidence of intention, be considered and treated in equity as defeasance provisions, and as characterizing the transaction as a mortgage. But this rule does not apply to a transaction involving a conveyance absolute on its face, with a perpetual lease back containing a privilege of purchase exercisable at the unlimited option of the lessee; hence, such transaction can not be treated as a mortgage by the taxing officers, and as such taxed as “personal property,” under Revised Statute, 2730.</p> <p>4. The right of a tax-payer to enjoin the collection of taxes wrongfully assessed against him, can not be taken away by any action of a taxing officer or board; the amount fixed may be conclusive, but where the foundation of the right to tax is challenged, their action is prima facie only.</p>

<p>Error to special term.</p>

<p>Error to special term.</p>

<p>1. In a suit for damages against two or more persons on the ground of negligence, the petition is demurrable for misjoinder, unless it appear that the tort complained of was a joint tort.</p> <p>2. There is an improper joinder of actions where the element of negligence relates to entirely distinct and independent conditions not in themselves connected.</p>

<p>1. Inasmuch as the assignment of a contract divests the assignee of all interest in or control over it, an allegation that he has failed and refused to permit the assignor to carry it out, is demurrable.</p> <p>2. The doctrine of part performance can not be invoked to take a verbal contrachput of the statute of frauds, where the action is for breach of the contract, and the remedy is purely legal— for damages in money.</p>

<p>1. Where a petition has as its object the bringing under judicial inquiry fraudulent acts rendering void an award or finding regular on its face, and to annul and set aside the award is a vital condition with reference to legal rights depending upon it, a case for equitable jurisdiction is clearly presented.</p> <p>2. If the effect of an award, if valid, is to fix a basis upon which several parties are to be made contributors, they are all parties in interest in the relief sought, and the same reasons which justify the joining of any two of them as plaintiffs require the joining of all.</p> <p>3. Under the practice code the coming-in by cross-petition of some of . the parties in interest consenting to the action is not a proper joinder, and a demurrer to the petition on that ground will be sustained, with leave to redraft the petition and include the cross-petitioners as plaintiffs.</p>

<p>It is incumbent upon a party who seeks to recover upon a verbal contract; not only to establish his own understanding of it, but also to show that the other party so understood and assented , to it.</p>

<p>While is is the duty of a jury, sitting in a case brought for damages for wrongful death, to consider the pecuniary injury to each beneficiary, the verdict should be for a gross sum, to be subsequently apportioned among the beneficiaries in such a manner as is fair and equitable; and a refusal by the trial court to give special charges, necessitating a finding by the jury proportioning the amount to' be recovered among those for whose benefit the action was brought, is not error.</p>

<p>The reciprocal relation of duty and obligation between two public utility companies, having rights in the streets secondary to those of the public for ordinary travel, extends as to each other only to the extent of avoiding acts of omission constituting willful negligence; and hence a repairer of telephone lines who is injured while attempting to string a damaged and imperfect wire by its-coming in contact with an unguarded and uninsulated wire of another company carrying a current of dangerous voltage, lias 110 cause of action against such other company.</p>

<p>The ordinance of the city council creating the supervising engineer’s department, providing for the office of Supervising Engineer, fixing its term and compensation and prescribing its duties, is a valid exercise of the power conferred by the code of 1902.</p> <p>The ordinance being silent as to the mode of appointing the supervising engineer, the power of appointment is vested in the maj'or, under Section 223.</p>

<p>Whether a co-emplcwe is a superior servant or merely a fellow-servant is a question of fact to be submitted to the jury upon the evidence as to all the circumstances of the case, and not one of law to be determined by the court.</p>

<p>1. The rule that a plaintiff must prove facts -which establish defendant’s negligence as the proximate cause of the injury-complained of, is not satisfied where, under the most favorable view that can be taken of the evidence, it goes no further than to establish a presumption of the facts to be proved.</p> <p>2. And where in order to establish plaintiff’s case proof is necessary which.involves the commission of a heinous crime, it must be proof which carries conviction beyond a reasonable doubt.</p> <p>3. Where a case has failed because of the unsatisfactory character of the proof offered, it is not helped by the discovery of new evidence of a merely cumulative character.</p>

<p>In a foreclosure suit the power to control the subject-matter of the lien is incidental to jurisdiction of the cause from its commencement.</p>

<p>The situs of personal property belonging to a decedent, and in the hands of his executor, is the residence of the executor.</p>

<p>It is the privilege and duty of an incorporated company when it has reason to and does believe a transfer of stock to be illegal, to refuse record upon the books until judicially determined; but it so acts at its peril, and must be justified, if at all, by the result of the judicial inquiry.</p>

<p>1. The act of November 14, 1902, authorizing a contract between - the county treasurer and an outside party for the collection of forfeited taxes and assessments, and the contracts made thereunder between the county treasurer and Wm. F. Chambers, are not invalid because the said contractor is a county officer not elected by the people, nor because it extends beyond the term of the treasurer making it, nor because it invests the contractor with sole authority to collect forfeited taxes, nor because the collection of these taxes is farmed out to an individual, nor because the money for the payment of the obligation is not in the treasury nor properly certified by the auditor.</p> <p>2. But the law confines the scope of such a contract explicitly to forfeited taxes for the years prior to 1899, and the contract in question violates this provision in that it permits the contractor to include current taxes accruing subsequently year by year.</p>

<p>The master of a minor servant is chargeable with notice of such lack of capacity as is usual among minors of the same age to understand and appreciate the perils to which he is exposed in the course of his employment, and the burden of proving a greater capacity than this is upon the master.</p>

<p>In a partition suit the jurisdiction of the common pleas attaches to the property for purposes of partition only, subject to liens; and the question of liens being incidental, the partition proceeding is not a bar to a suit to foreclose a mortgage on the property.</p>

<p>1. A suit by creditors of an insolvent firm to set aside a transfer made by one of the partners to his wife can not be maintained, where the petition makes no reference to prior efforts to realize upon the debt out of the partnership property, and does not allege solvency or any other fact, justifying proceedings directly against the individual property of one of the partners.</p> <p>2. Partnership obligations are of a joint nature, and the taking of a judgment against one of the joint obligors operates as a discharge of the others from liability; and this is true where the debt is an unquestioned partnership liability, notwithstanding it is evidenced by the individual notes .of the partners.</p> <p>3. Technical responsibility of a partner for disaster to a solvent business will not be accepted as indicating a fraudulent purpose on the part of such partner in transferring his property while the business was still solvent.</p>

<p>1. When a wagon is moving along the street of a city, with a rope trailing behind, the law raises a presumption that it is due to the negligence of the owner or his agent, and the burden of proof is upon the defendant to remove -such presumption' of negligence.</p> <p>2. Such presumption is not conclusive on the subject of negligence, however, and if the defendant shows by a preponderance of the testimony that it exercised the care that an ordinarily prudent person would have exercised with regard to the rope, the presumption of negligence is overthrown, and it is the duty of the jury to find for the- defendant. But if the defendant does not remove this presumption by a preponderance of testimonjr that such care was used, then it is the duty of the jury to find the defendant guilty of negligence.</p> <p>3. A charge to the jury that the plaintiff is entitled to “full compensation,” instead of “reasonable compensation,” is correct. Pittsburg L. & E. R. R. Co. v. Congwahr, 22 W. L. B. 280, 282 (affirmed by the Supreme Court), followed.</p>

<p>The legality of public statutes can not be disproved as an issue of fact by the preponderance of evidence. The legislative record in such cases imports absolute verity; and public policy forbids that the burden of proof upon the issue'of illegality, can be sustained by parol proof.</p>

<p>1. A creditor’s right of action against stockholders to enforce their double liability does not accrue when the corporation becomes insolvent merely in the sense that its property is insufficient for the payment of its liabilities.</p> <p>2. This is especially true where the insolvency is of a new corporation formed by consolidation of others to whose stockholders the double liability is invoked. Non constat but the old company may be solvent, while the consolidated company may be hopelessly insolvent by reason of the debts of' the constituent companies.</p>

<p>1. A demurrer having been sustained, and it appearing upon tender of an amended petition that the initial defect is not susceptible of amendment, leave to file will be refused and the cause dismissed. (Code § 5116, § 5320.)</p> <p>2. A mortgage creditor whose debt is not yet due and whose security is not shown to be inadequate or exhausted, can not maintain a creditor’s bill, especially when the grounds alleged for the proceeding are that the affairs of the defendant are in the hands of a receiver in process of settlement.</p> <p>3. The basic theory of a creditor’s hill is that legal assets are nonexistent or beyond reach, and is negatived by the fact that the assets of the defendant are in the hands of a court in process of general settlement, which includes plaintiff among beneficiaries.</p>

<p>1. The relation of attorney and client is one of limited agency in respect of the suit or matter in hand. Without specific authority the attorney can not bind the client by contract relating to specific property.</p> <p>2. Where property under mortgage or execution in a pending suit is voluntarily taken by the judgment creditor, or so used as to change the title or deprive the debtor of his property without pursuing the prescribed methods, the debt is gone although the creditor does not realize full payment.</p> <p>3. So if the officer in charge of the property, instead of pursuing the prescribed mode of sale, wastes the property or experiments with methods not recognized by law, the debt is discharged and the plaintiff’s remedy is against the officer. But if plaintiff is a party to the irregular proceedings, his remedy is gone and the judgment is satisfied.</p>

<p>1. Where, in a contract for sale and delivery of goods, payment is made a condition precedent to transfer of title by delivery of possession and there is no waiver of payment, no title vests until price is paid.</p> <p>2. Mere delay not indicative of an election not to rescind the contract and not to the injury of the other party, does not forfeit right of vendor to rescind.</p> <p>3. Waiver of a stipulation in one’s favor is not a performance by the other party. It may be an excuse for non-performance, and, as such, must be pleaded in order to justify proof of that fact.</p>

<p>1. Testimony of police records offered in an action for injuries suffered through negligence of defendant, to show that plaintiff led an “irregular” life and thereby to countervail medical testimony as to a condition of nervousness resulting from the accident, is inadmissible as involving a non sequitur. The major premise of the syllogism is faulty in assuming a relationship of cause and effect that may be true of a class or in the average, to be true of every individual in the class.</p> <p>2. Testimony of police records as to arrests on criminal charges, offered to impeach the general character of a plaintiff in an action for negligence, is inadmissible to impeach credibility.</p> <p>3. It is not error for the court to refuse to charge the jury on-the subject of contributory negligence, where there is no proof of contributory negligence in the case. If such charge is given and the question is left to the jury, it is not an error prejudicial to the defendant, but in his.favor.</p>

<p>1. In executed contracts the question of consideration is immaterial. The question of consideration has relation to the enforcement of an executory promise.</p> <p>2. Want of consideration can not be pleaded against a surety upon a joint bond who has paid his share, and payment has been accepted and party formally released.</p>

<p>1. A covenant to insure in a lease, is in the nature of a covenant running with the land and can not be dealt with as a separate equity.</p> <p>2. A purchaser at judicial sale, while not a party to the suit, is a party to the sale, and is bound to take notice of the character, condition and amount of the property sold, and to details • which are matters of public record, under the maxim, Id-certnm est quod, reddi certum potest.</p>

<p>1. A motion for new trial will be overruled where the facts are all within the province of the jury to determine.</p> <p>2. Each party has a right in governing his own conduct to assume' that the other will perform his duty also and act accordingly, unless and until he sees or by the exercise of ordinary care . might see, that it is dangerous to do so. But a party can not be permitted to neglect his own means of self-preservation in reliance upon such assumption.</p> <p>3. The plaintiff has the burden of showing, in connection with defendant’s negligence, that he (plaintiff) could not, by the exercise of ordinary care, have, avoided the consequences of such negligence.</p>

<p>1. The unpaid subscriptions 'to stock are parts of the trust fund, including all other property of a corporation, upon which creditors have a lien prior to that of shareholders.</p> <p>2. Various methods are adopted in other jurisdictions to reach'these assets, but in Ohio the creditor’s suit is favored, and not only may unpaid subscriptions be reached, but also the statutory double-liability enforced, in such a suit.</p> <p>3. Query: Whether the same method may be pursued in reaching unpaid subscriptions against resident stockholders of a foreign corporation to pay local' debts, where the action does not adjudicate the affairs of a corporation nor attempt to wind up its business? Certainly an individual creditor may proceed against an individual stockholder.</p>

<p>1. Suit against a widow for a debt of her deceased husband, based upon Revised Statute 3110, can not be maintained in any event without showing that the deceased husband’s estate is insolvent, even where the debt is known to have been created for family necessaries.</p> <p>2. Our statute in this ragard is declaratory of the common law, making it the duty of the husband to support the family, with a modern proviso casting the duty on the .wife only in case of his entire inability.</p>

(1) Motion, filed June 20, 1903, by Geo. E. Scott to set aside appraisement and sale. (2) Motion, filed January 27, 1904, by purchasers to confirm sale. (3) Motion, filed January 30, 1904, by plaintiff to strike motion of purchasers from files.

<p>1. Under the statute authorizing service upon the “managing agent” of a foreign corporation in this state, a service upon the president residing in this state is good.</p> <p>2. Such president who maintains an office in this state and transacts correspondence and other corporate business is estopped by such acts to deny his power to represent and bind the corporation. Such acts fix his official status and representative character in this state.</p>