Volume 1 — Ohio Circuit Court Reports, New Series

<p>The statement' of facts in this case is taken from the opinion of Judge Hollister, rendered in the Court of Common Pleas, and now affirmed.1</p> <p>The Facts Stated.</p> <p>• Isabella Brown made by will large bequests j'tó: several .of the boards of-the Presbyterian Church, and to other-charitable'institutions.</p> <p>These boards are incorporated under the laws of states other than Ohio and are under the supervision and control of the General Assembly of that church. The General Assembly is a representative body composed of delegates from Presbyterian Churches in all .parts of the United States, and meets annually. Generally speaking, the moneys disbursed by the boards in carrying on the charitable work of the church is spent partly in; Ohio, but the major part of it is used elsewhere. For instance, the Board of Foreign Missions of the Presbyterian Church maintains two homes for the education in Ohio of the children of foreign missionaries ; the Board of Church Erection Fund' has erected churches in this state at a cost of more than $240,000; the Board of Home Missions assists in sustaining the preaching of the gospel in churches and congregations in Ohio.</p> <p>The members of that church in this state are about one-eleventh of the entire membership in the United States, and contribute largely to the funds of the church expended by its various incorporated boards in the special kind of charitable work undertaken by each.</p> <p>The question involved in this case is whether or not the specific bequests made by Mrs. Brown to several of these boards are taxable under the so-called collateral inheritance tax laws of.Ohio found in 94 O. L., 101 (the act of April 6, 1900, 2731-1 R. S.) It is conceded that the provisions of the act would apply to these bequests unless they may be brought within the saving clause of that act, which reads: 11</p> <p>“Property or interests in property . . . embraced in any bequest, devise or transfer or conveyance to, or for the use of the state of Ohio, or to or for the use of any municipal corporation or other political subdivision of said state for exelusivelypublic purposes, or public institutions of learning, or to or for the use of any institution in said state for purposes of purely public charity, or other exclusively public purposes ...”</p> <p>It is conceded by counsel for the state that these bequests are for purposes of purely public charity; but it is claimed that none of the boards of the Presbyterian Church named in Mrs. Brown’s will are institutions in this state within the’ meaning of the law.</p> <p>cited as to notice of appeal, Section 6408 R. S.; Willis v. Willis, 20 O. C. C., affirmed without report, 38 Bull., 300; followed in Browne v. Wallace, 21 O. C. C., 417.</p> <p>On the question of liability for collateral inheritance tax, Gerke y. Purcell, 25 O. S., 229, 244; Rice y. Bradford, 63 N. E. 7; Morawet'z on Corps. (2d Ed.), Sec. 1046, p. Í006; State v. Standard Oil Co., 49 O. S., 137 (1st Syl.)</p> <p>cited on behalf of the state: 2 Bates Digest, col. 2229, note 157, citing 46 O. B., 155; 42 O. II., 128; 19 0., 110; Cooper v. Shaw, 176 Mass., 190; Estate of Prime, 136 N. Y., 347; Estate of Bailies, 144 N. Y., 132; Alfred University y. Hancock, 46 Alt., 148; People v. Seamens’ Friends, Society, 86 111., 246; Keck v. Douglass, 6 C. C., 649; 57 O. S., 234; 66 O. S., 57.</p>

<p>UNLAWFUL USE OF FOREIGN FIRE INSURANCE FRANCHISE.</p> <p>Fire Insurance — Nature of the Business Transacted — The Contract Personal — Place of Transacting the Business — Unlawful Use of Franchise.</p> <p>A fire insurance company, organized under the laws of another state, that maintains an office in this state and there enters into contracts of insurance respecting property in other states, or transacts the business of insurance respecting property in other states, is engaged in this state in the transaction of the business of insurance, notwithstanding it does not enter into contracts of insurance with ■citizens of this state, nor insure property in the state.</p>

The Facts Stated. The defendant in error filed a suit in the Court of Insolvency, which has been given jurisdiction in that class of cases, to enjoin the collection of an assessment for a street improvement, levied, under the provisions of E. S., Section 22645, which bases the assessment upon the abutting frontage of the lot, but applies to only three municipalities of the state. The City demurred to the petition, and the demurrer was overruled.

<p>The Facts Stated.</p> <p>The plaintiff sued for $23,500 damages alleged to have been sustained by reason of the infecting of a herd of four hundred cattle, located on lands in Lawrence county, with Texas fever, by the introduction among them of cattle purchased by the plaintiff from the defendant, the Cincinnati Union Stock Yards Company. The cattle so purchased were shipped to Cincinnati from Grenada, Miss., which was within the “infected” or “scheduled” district, as to which federal regulations and provisions of Sections 4211-19 ei seq., Ohio Statutes applied. One Edmunds, a clerk in the employ of the Stock Yards Company, in its main office, knew or should have known from the way bill which he received from the railroad company, that the cattle came from Grenada, but he did not know that the car in which they arrived was not placarded, as it should have been, with indicia that the cattle came from the “scheduled district,” and he was also ignorant of their having been placed in “native” pens. The defendant company’s foreman of the unloading crew did know that the cattle h’ad been placed in “native” pens, but he did not know that they came from the infected district. The plaintiff found the cattle in the native pens, and purchased thém for native cattle. ’His suit for damages was based upon the statutory provisions above referred to. The case was submitted to the judge of the court below, without the intervention of a jury, and resulted in a judgment for the defendant company, on the ground that it was without sufficient knowledge as to the character of the cattle to- render it liable.</p> <p>cited for the’ plaintiff in error on question of liability:-. Cooley on Torts, 780 and 790/Conrad v. Crowdsón, 75 111. App., 614; Rose v. King, 49 O. S., 224; Wharton on Negligence, Sec. 443; Couch v. Steele, 3 E. & B. Rep., 414; Hayes v. Railway Co., Ill U. S., 328; Taylor v. L. S. & M. S. Railway, 45 Mich., 74; Chamberl-aine v. Chester Railway Co., 1st Exch., p. — ; Ballance v. Falle, 13 Q. B. D., 109; Britton v. Great Western Cotton Co., L. R., 7th Exch., 130; Holmes v. Clark, 6 H. & N., 348; Fawcett v. York & North Midland R. R. Co., 16 Q. B., 610; Sec. 4212 R. S. Ohio; Preston v. Compton, 30 O. S:, 304; Knapp v. Bailey, 79 Me., 195; 16 Ain. & Eng. Ency., 790.</p> <p>On the question of implied notice: 16 Am. & Eng. Ency. of ’Law, 195, 795, and 419 and cases there cited.</p> <p>That the plaintiff was not guilty of contributory negligence: Shearman & Redfield on Negligence, Sec. 3044; Beach on Con. Neg., 39 -and Secs. 22, 36, 38 and 67; Deering on Neg., See. 16; Wharton on Neg., See. 423; Railroad v. Crawford, 24 O. S., 640.</p> <p>cited for the defendant, as to alleged negligence on the company’s part: Railroad v. Husen, 95 U. S., 465; Phila. Southern St. Ship Co. v. Penn., 122 U. S., 326; Salzenstein v. Mavis, 91 111., 390; C. & A. R. R. v. Erickson, 91 111., 613; State v. Duckworth, 51 Pac., 456.</p> <p>The state had no right to impose regulations upon carriers more drastic than the federal requirement: Bowman v. C. & N. W. Ry., 125 U. S’., 465; L. & M. S. Ry. v. Ohio, 125 U. S., 173; 23 TJ. S. Stat. at Large, 1885-5, p. 31, Ch. 60; Rules and Regulations Secretary of Agriculture, Ex. A. (Par. C); and as t'o the assumption that the cattle were infected with a' germ, Davis v. Walker, 60 111., 452.</p> <p>The degree of care is higher than is ever imposed upon a bailee like the defendant: D. L. & W. R. R. Co. v. Central Stock Yard & Transit Co., 45 N. J. Eq., 50: Schuler on Bailments (3d Ed.), Sec. 353; O. R. S., 3876.</p> <p>A statutory declaration that a thing shall not' be done does not create a liability in favor of individuals: Clark & Lindsell on Torts (2d Ed.), 26.</p> <p>' Edmund’s agency was such that constructive notice or knowledge can not be ascribed through him: Meachem on Agency, Secs. 725 and 718; Ponnoyer v. Willis, 36 Pac., 568; Trentor v. Pothen, 49 N. W., 129; Labbe v. Crobett, 6 N. W., 812; Lieberman v. First National Bank, 48 L. R. A., 514.</p>

<p>AUTHORITY TO SETTLE DEATH CLAIM — THE FELLOW SERVANT ACT.</p> <p>Action for Wrongful Death — Authority of Administratrix to Settle— Constitutional Law — Excessive Damages.</p> <p>1. A settlement by tbe widow and administratrix of a decedent killed by a wrongful act is void as against tbe minor children of the deceased, where it does not appear that the probate court consented to and approved the settlement.</p> <p>2. Section 3365-22, Revised Statutes of Ohio, known as the “fellow servant act,” is constitutional.</p> <p>3. A verdict for $5,500 in favor of two minor children of a locomotive fireman, thirty-three years of age and earning $75 per month, is not excessive.</p>

<p>CONTRACT OF OPTION.</p> <p>Consideration Supporting Contract — Rule to he Followed by the Court in fixing an Ambiguous Time Limit.</p> <p>1. While adequacy of consideration will not be inquired into in a suit at law, the consideration relied on to support a contract must be the consideration in mutual contemplation of the parties, and can not be something which is a mere incident to the essential terms and objects of the contract.</p> <p>2. It is the duty of courts to sustain rather than to defeat contracts, and to make certain that which can be made certain, but these principles must not be carried in fixing a time limit to a contract, which is silent or ambiguous in this particular, to the extent of fixing an arbitrary limit which the court can not reasonably find existed in the minds and by the intention of the contracting parties.</p>

<p>PROCEDURE IN ERROR CASES FROM JUSTICES OF THE PEACE.</p> <p>Where there is a judgment of reversal in an error case from a justice of the peace, the action should be retained by the common pleas court for final judgment as in cases on appeal.</p>

<p>Heard on error to a judgment of guilty under an indictment charging robbery.</p>

<p>ASSUMED RISK BY AN EMPLOYE.</p> <p>Pleading — Master and Servant — Action for Injuries — Negligence—Assumed Risk — Instructions to Jury.</p> <p>1. In an action by a servant against his employer for damages on account of injuries received in the course of his employment, it is not sufficient under the Norman case [49 O. S., 598] to allege that having discovered that the work as it was then being prosecuted was dangerous, he made complaint to his superior, but thereafter proceeded with the work upon being commanded so to do. The petition should further allege that the servant understood and believed from the command and the circumstances that if he did not proceed with the work he would be discharged.</p> <p>2. When a servant goes forward in the discharge of a dangerous task, under such circumstances that in law he assumes the risk, the question whether he acted with care, or negligently, ceases to be important from, that time on, so far as the liability of the master is concerned.</p> <p>3. A master is not negligent in requiring a servant to proceed with work in accordance with the customary method of doing it, unless some peculiar danger became apparent to the servant and was communicated to the master, which laid the basis for a new demand for appliances for safety. A mere error of judgment on the part of the master as to whether a given method is safe does not render him liable, and where a servant complained that he was in danger of slipping and was told to go on, and upon complaining a second time was told to be careful and he would not get hurt, and thereafter he did slip and was hurt, there is not sufficient ground for recovery.</p> <p>4. It would be for a jury to determine the cause of an accident to a servant who, having complained of his slippery footing, attempted to do work with a wrench for which a mallet is ordinarily used, and by the breaking of the wrench sustained a fall.</p> <p>5. A special charge which is irrelevant is bad, but if pertinent should be given, unless in a fair exercise of discretion by the trial judge the subject has already been sufficiently covered.</p>

The Facts Stated. On tax-listing day in April, 1899, the defendant was the owner of $40,000 in municipal bonds, and in April, 1900, of $60,000, and in April, 1901, of $80,000 in municipal bonds.

<p>THE NECESSARY INDICIA OF AUTHORITY UPON THE PART OF AN AGENT.</p> <p>Commodities Treated as "Money" — Agency—Scope of, a Question of Fact — Estoppel of Principal from Disputing. '</p> <p>1. "Where there has been an exchange of commodities at a liquidated value, and the balance due is stated in money figures, the commodity exchanged by the one against whom the balance stands may be treated as “money,” within the meaning of the act providing that where property is conditionally sold, the vendor may not retake' it without repaying a certain part of the price paid.</p> <p>2. To establish agency, one or the other of two things must be proven —either that the agency actually existed and the agent had the authority he assumed to exercise, or that the principal is estopped from disputing it.</p>

<p>PRIVATE RIGHT OF WAY BY IMPLIED GRANT.</p> <p>Easement — Private Right of Way an Appurtenance to Tract Conveyed— Implied Grant — Grantee's Tract Need Not 'be Entirely Surrounded, nor is it Divested by Purchase of Other Lands, nor Defeated by Removal of Necessity.</p> <p>1. Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means'of egress and ingress to the latter from the public highway, which way is apparent, continually used and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it, and retains the part with the way over it, his grantee takes his part, to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by the grantor, as an easement therein.</p> <p>2. Such private way is an appurtenance to the tract conveyed, and the right thereto passes without being expressed in the deed.</p> <p>3. It is not required that the grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by those of the grantor and partly by those of a stranger, and if the grantee’s tract is inaccessible except through the lands of his grantor or those of a stranger, the right of such private way shall pass as appurtenant to the grant.</p> <p>4. A way by grant or implication is not divested by the after purchase of other lands over which the grantee might have ingress and egress.</p> <p>5. Where the way in question is by grant, it is not material that it is one of necessity ; it is sufficient if it be reasonably necessary to the enjoyment of the land granted, and materially adds to its value.</p>

<p>ADDITION TO TAX LIST WITHOUT NOTICE FOR. ALTERATION OF OLD STR.UCTUR.E.</p> <p>1. An error in a tax list, which, has been committed by a board of equalization, or by any other board or officer, while acting without authority of law, or in excess thereof, can not be said to be fundamental and beyond the power of the county auditor to correct.</p> <p>2. An addition to the tax list, because of the alteration of an old structure, and without proper notice to the owner of the property, is a manifest error, made without authority of law, and one which the county auditor should correct.</p>

<p>TRUSTEE’S BOND INVALIDATED BY FAILURE OF THE COURT’S JURISDICTION.</p> <p>Trustee’s Bonds— Action's to Enforce — Different Jurisdictions — Failure of Jurisdiction — Misjoinder.</p> <p>1. Causes of action against several defendants are' improperly joined where the action is upon bonds which were not signed by the same parties, or given in the same court, or in courts .of the same jurisdiction, or answering to the same parties, or containing the same conditions.</p> <p>2. A bond given in a case in which the court has no jurisdiction is an absolute nullity, and the fact that the court found it had jurisdiction fails to give it any effect, and the want of jurisdiction may be shown'in any action founded upon such bond.</p>

<p>A DISMISSAL FOR LACK OF PROSECUTION IS A “JUDGMENT ” RE VIEW ABLE ON ERROR.</p> <p>Where a case is called for trial in its order on the calendar, and is dismissed at the costs of the plaintiff for lack of prosecution, the dismissal is a “judgment,” and is reviewable on error.</p>

<p>EQUITABLE RESULTS REACHED IN AN IRREGULAR WAY.</p> <p>A division of funds will not be disturbed because done in an irregular way, where a just and equitable result has been obtained.</p>

<p>TRESPASSERS UPON RAILWAY RIGHTS OF WAY.</p> <p>Negligence — Trespassers and Licensees — Use of Railway Tracks by School Children— Warnings of Danger.</p> <p>1. Where an employe of a railroad company frequently orders pedestrians off the right of way, and notifies them that the company objects to their use of the right of way, and has consultations with the teachers and superindendent of the schools, warning them against children going upon the right of way, and signs are erected, reading, “ Caution — Don’t Walk or Trespass on This Road,” and a school boy thereafter walks along the right of way, he is a trespasser.</p> <p>2. The rule in Ohio as to a trespasser upon a railroad track is, that the company is not bound to look out for him or to give warning, but having discovered his peril, must use every reasonable effort to save him.</p> <p>3. A high school boy walking along between two tracks near a street crossing stepped upon one of the tracks, in order to pass around a switch light, without looking or listening or taking other precautions, and was struck by an engine and seriously crippled. Held: That the facts did not support a finding of negligence on the part of the company for-which it would be liable for the injury suffered.</p>

<p>PROOF OF TITLE TO PR.OMISSORY NOTE.</p> <p>A denial of every allegation of a petition, except the signing of the note sued on, puts in issue plaintiff’s title to the note; and a failure to put the note in evidence is ground for arresting the case from the jury ; but if the defendant himself offers the note in evidence and tries the question of title, he is not prejudiced by the previous error.</p>

<p>EQUITABLE INTEREST IN LANDS NOT SUBJECT TO LIEN OF ATTACHMENT OR JUDGMENT.</p> <p>Foundation for Creditor's Bill — Subrogation—Equitable Interest — Attachment — Judgment Lien.</p> <p>1. An order made by the probate court, upon settlement of the accounts of an administrator, is a proper foundation for the bringing of a suit in the nature of a creditor’s bill.</p> <p>2. Where a mortgagor conveys the mortgaged premises subject to the mortgage, payments subsequently made by the mortgagor upon the mortgage debt entitle him to be subrogated to the rights of the mortgagee, and give him an equitable interest in the property.</p> <p>3. Such equitable interest does not become merged with a life estate held by the same party, unless it is to the interest of the holder that there should be a merger.</p> <p>4. An equitable interest in lands can not be reached by an attachment upon said lands.</p> <p>5. Nor does a judgment against the holder of an equitable interest in lands become a lien upon said lands.</p>

<p>Error to tbe Court of Common Pleas of Cuyahoga County.</p>

<p>NOT APPEALABLE.</p> <p>An appeal does not lie to the overruling of a motion in a partition case.</p>

<p>THE CENTRALIZATION OF TOWNSHIP SCHOOLS.</p> <p>Sections 3927-1-2-3-4 and 5 — Mandamus Against Board of Education— Centralization of Public Schools — Duty of Board in Face of Adverse Vote as to Levying Tax for Buildings.</p> <p>1. Where the electors of a township vote against the levying of a tax for the purchase of a site and erection of a building for a centralized school, the board of education is not bound to take any steps whatever toward centralizing the schools.</p> <p>2. Neither would a board of education be justified in accumulating money year by year in anticipation of centralizing the schools at some future date, on account of the danger that the funds thus accumulated may be squandered illegally.</p>

<p>THE ENTERING OF JUDGMENT UPON A VERDICT UNDER THE NEW AND OLD LAW.</p> <p>Construction of Section 5326 as Amended — Remedial Statutes — Pending Actions — Time for Entering Judgment.</p> <p>1. The amendment to Section 5326, adopted May 2, 1902, is strictly a remedial measure.</p> <p>2. Under the provisions of Section 79, R. S., this amendment does not apply to pending actions, and there is no prejudice to the defeated party where, subsequent to the entering of judgment immediately after the return of the verdict, a motion for a new trial was filed which was heard by the court</p>

<p>ASSESSMENTS AS TO LOTS ABUTTING ON TWO STREETS.</p> <p>1. In fixing the amount of a street assessment against a lot which abuts on a street on both sides, tbe lot must be treated as having but one front, and tbe principle of the Haviland case applies.</p> <p>2. Fifteen per cent. ($10,000) was retained for five years from the contract price for the improvement of a street. Held, thxt this sum represents guaranty for quality of work performed, and costs of maintenance and repairs during the five year period; that the first element may be included in the assessment against the property, but the second element can not be included; and that, following the rule in a large .majority of similar contracts where the guaranty fund is fixed at ten per cent, for two years, the proportion which may be properly designated in this case as for guaranty is $2,666.66. 22 C. C. followed and approved.</p> <p>3. Whatever of premium or surplus is yielded from the sale of bonds by a municipality for payment of a street improvement should be credited back 'u the assessments of those who have the principal and interest of the debt to pay.</p> <p>4. A lot should be assessed upon its actual abutting front feet, notwithstanding its sides may not be at right angles to the street improved.</p>

<p>APPEAL IN SUITS PENDING PRIOR. TO MARCH 25, 1902-METHOD OF APPEAL.</p> <p>Pending Actions — Appeal—Section ¡227 Before and After Amendment— Application of Section 79 — Notice of Appeal and Entry Thereof.</p> <p>1. A suit is a “ pending action ’ ’ within the meaning of Section 79, R. S.; an appeal is a continuation of the suit; and, except in cases where an amended or repealing statute is made applicable by express terms, the manner of taking an appeal is controlled by the statute as it stood at the time the suit was brought.</p> <p>2. Section 5227, R. S., as it read prior to the amendment of March 25, 1902, is applicable to actions pending on the date of the amendment.</p> <p>3. A written notice of appeal, signed by the attorneys for defendant but not by the defendant himself, was filed within three days after the entering of the decree. This notice was not entered upon the journal, but the fact and date of the filing were noted on the appearance docket. Field: That this notice was an entry of notice of appeal, and it was the duty of the clerk to enter it upon the journal, and so far as the right of appeal is involved it will be considered as entered.</p>

<p>CONTRACTS IN RESTRAINT OF TRADE WITH A DUAL FEATURE.</p> <p>Account Stated — Combinations Contrary to Public Policy — Valid Contracts of, with Agents Enforceable where Beparatable.</p> <p>Where a contract'is dual in its nature, one part relating to the organization of an association alleged to be in restraint of trade and another and separable part relating to an agreement between the association and its selling agency, a claim of one of the members of the association against the common agent on an account stated for goods sold under the general agreement is enforceable at law.</p>

<p>THE LICENSING OF TRANSIENT DEALERS WHO SELL UPON THE STREETS.</p> <p>Transient Dealers — License for Provided in Tillage Ordinance — Discrimination — Restraint of Trade.</p> <p>1. A village ordinance which provides that “transient dealers” shall, before doing any business, obtain a license from the mayor, must operate uniformly upon those who form a purpose to undertake such a business before they enter the village, and those who form such a purpose after coming temporarily or otherwise into the village.</p> <p>2. A provision in such an ordinance making it “unlawful for any person while on the street, or traveling from place to place about the village, to sell, bargain to sell, or solicit orders for goods, wares or merchandise by retail without having first obtained a license therefor,” is an intolerable interference with and restraint of trade.</p>

<p>Error to the Court of Common Pleas of Summit County.</p>

<p>OCCUPATION OF CANAL BANK BY PERMISSION GIVES NO INTEREST IN CANAL PROPER.TY.</p> <p>Easement in Canal Bank — Policy of the State with Reference to Canals — New Uses of — Injunction.</p> <p>1. One occupying the banks of the Miami & Erie Canal by permission of the Board of Public Works can not thereby acquire an interest in the canal property which will in any way limit or abridge any of the present or hereafter developed natural uses of the canal for canal purposes.</p> <p>2. Where the property taken is the merest legal figment and without real substance, the owner is not entitled to an injunction because of Section 19, Art. I, as a matter of right, when the general equities of the case do not commend it to the chancellor’s conscience.</p>

<p>PROCEEDINGS IN AID OF EXECUTION AGAINST ESTATES OF DECEASED DEBTORS.</p> <p>Sections ¿464, 6105 and 61'oy — Proceedings in Aid of Execution — Garnishment — Claims Against Estates of Deceased Persons.</p> <p>1. The bringing of a suit in aid of execution against an administrator before the expiration of the eighteen months allowed by Section 6105, which suit was dismissed as premature,, is not a bar against an adjudication of the same issues between the same parties, subsequent to the expiration of the eighteen months, no further time having been allowed by court for the collection of the assets.</p> <p>2. The remedial provisions of Section 5464, R. S., are available to every judgment creditor entitled to execution against the property of a debtor, and these provisions apply to an action against the estate of a decedent.</p> <p>3. The bringing of more than one suit between the same parties in the same court concerning the same subject-matter is not a complete defense to an action in good faith for the settlement of the rights of the parties, notwithstanding liability incurred for costs and damages by the party responsible for vexatious suits.</p>

<p>RECEIPT GIVEN BY DISTRIBUTEE FOR MONEY NOT RECEIVED.</p> <p>Practice — Admihistrator—Bondsmen—Distributee—Receipt of— Reopening of Account in Probate Court.</p> <p>1, Where a receipt is given by a distributee to an administrator upon distribution, and the account of the administrator is properly published and confirmed by the probate court, the evidence thus perpetuated is compíete and binding upon the parties in so far as the giving of the receipt is concerned, but it is not conclusive as to. whether the distributee actually received the money or the distribution was made according to law.</p> <p>2. .The verity or legality of a distribution can not be questioned in the probate court by reopening the account after the lapse of eighteen months, but must be determined in an independent action.</p> <p>3. As to what effect the giving of a receipt to the administrator for money not actually received has upon the liability of the bondsmen of the administrator, is a question which must be determined upon equitable principles in a proper action.</p>

<p>Heard on error.</p>

<p>LIABILITY FOR FIRE STARTED BY A PASSING LOCOMOTIVE.</p> <p>Sections 3365-1, 3365-5 and 3365-6 — Sparlc-Arrester on Locomotive— Testimony Acquitting Railroad Company.</p> <p>A good defense is made to an action for damages for property destroyed by fire from a passing locomotive, when it is shown by a competent expert that the locomotive was equipped with a sparkarrester equally as good as any other, and it further appears that it was being run by experienced men, and in the usual manner, and was not out of order.</p>

<p>SECOND RECOVERY OF JUDGMENT FOR. ALIMONY PERMISSIBLE.</p> <p>Alimony — Policy of the Law — Reconciliation and Second Separation— Statutory Bar.</p> <p>It is not the policy of the law that a wife should become reconciled to her husband at her peril, and where a reconcilation is followed by a second separation, she is not barred from maintaining a second action for alimony.</p>

<p>STREET RAILWAY FRANCHISES GRANTED PRIOR TO THE ACT OF 1878.</p> <p>Street Railways — Franchise—Grant of, Prior to the Act of 1878 — Consent of City tó Its Exercise — Revokable Only by Legislative Authority — A Consent to a Term of Twenty-five Years Prospective in Its Operation.</p> <p>1. The right to construct and operate a street railway in streets of a city, prior to the act of May 14; 1878 (75 O. D., 359), was a franchise or privilege granted hy the state upon condition that the city consent to its exercise.</p> <p>2. Such consent given prior to said act without limitation of time or to a corporation with succession during the term of its charter is revokable only by legislative authority.</p> <p>3. A franchise or privilege to construct and operate a street railway granted and consented to prior to said act without limitation of time is perpetual, but subject to be determined by the General Assembly under Section 2 of Article I, or under Sections 1 and 2 of Article XIII of the Constitution.</p> <p>4. The limitation in said act of the consent to the term of twenty-five years was prospective in its operation, and not the exercise by the General Assembly of any of the powers reserved to it by said sections of the , Constitution.</p>

<p>Appeal from the Court of Common Pleas of Summit County.</p>

<p>Error to the Court of Common Pleas.</p>

<p>Heard on error.</p>

<p>RETROACTIVE PROVISIONS AS TO SUICIDE IN BENEFICIAL INSURANCE ASSOCIATION.</p> <p>Beneficial Insurance — Legislative Power Lodged in Supreme Circle— Forfeiture of Benefits in Case of Suicide — Retroactive Amendment —Vested Rights — Public Policy.</p> <p>1. Where the charter of a beneficial insurance association provides for a supreme circle to become the legislative and governing body of the order, a member can not interpose the objection that, in as much as the order is a corporation, the legislative power must be lodged with the stockholders, who in such an association are the membership.</p> <p>2. In becoming a member of such an order, one agrees to be bound by all legal acts of the majority within the compact of the articles of organization, and he can not afterward question the validity of the constitution and by-laws under which he became a member.</p> <p>3. A provision in the constitution and by-laws that alterations and amendments may be made by the supreme circle, renders legal an amendment providing that all certificates shall become void and the benefits thereunder shall be forfeited in case the insured dies by suicide, whether sane or insane.</p> <p>4. It is not an invasion of vested rights to make such an amendment applicable to certificates in existence at the time the amendment was adopted.</p>

<p>SUPPLY OF WATER. BY ONE MUNICIPALITY OR VILLAGE TO ANOTHER.</p> <p>Contract for Water Supply — Municipalities and Villages not Contiguous —Section 2425 Construed.</p> <p>A contract between one city or village and another for a supply of water, under the provisions of Section 2425, must be a contract mutually enforceable.</p>

representing the plaintiff in error, argued to tbe court that: The indictment was not specific, in charging tbe crime committed. Lamberton v. The State, 11 O., 282; Greenland v. The State, 6 Dec., 313; State v. Philbrick, 31 Me., 401; United States v. Hess, 124 U. S., 483; Am. & Eng. Ency. of Law, Vol. 19, p. 556. Sueb error is fatal since the enactment of tbe statute, as well as at common law. Ellars v. The State, 25 O. S., 385.

<p>Error ¡to tbe court of common pleas.</p>

<p>Error to the court of common pleas.</p>

<p>PORTIONS OF THE VALENTINE ANTI-TRUST LAW UNCONSTITUTIONAL.</p> <p>The Valentine Anti-Trust Law (93 O. L., 143) — Construction of — Constitutionality of — Criminal Provisions of — Sufficiency of Indictment Under — Effect of Plea of Guilty to an Insufficient Indictment —Sections 4, 5, 6 and 7 Unconstitutional.</p> <p>1. An indictment under the act of April 19th, 1898 (93 O. L., 143), charging that the accused, between two given dates, “was an active member of, acted with and in pursuance of, aided and assisted in carrying out the-purposes--of the; Delaware Goal Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers, and consumers in the sale and transportation of coal,” does not contain facts sufficient to constitute an offense against the laws of the state of Ohio.</p> <p>2. Sections 4, 5, 6 and 7 of said act are in violation of the Constitution of the State of Ohio, and of the Constitution of the United States, for the reason they create criminal offenses, prescribe proceedings thereunder, and provide penalties for the violation of any of the provisions of Section 1 of said act, by all combinations of capital, shill, or acts by two or more persons, firms, partnerships, corporations, or associations of persons, without regard to whether such combinations deprive individuals or the public of any legal right.</p> <p>3. A plea of guilty to an indictment which does not contain facts sufficient to constitute a crime, will not prevent a prosecution in error by the accused to have such judgment reversed.</p>

<p>RIGHTS EXISTING UNDER A POLICY OF LIFE INSURANCE CONTAINING NO FORFEITURE CLAUSE.</p> <p>Life Insurance — Overdue Premiums Accepted — No Forfeiture Clause —Suspension of Rights of Insured — Notice of Intention to Forfeit Policy.</p> <p>1. In a policy of life insurance, containing no clause of forfeiture and no provision for forfeiture, failure- to pay the premiums on or about the day when they become due may work a suspension of the rights of the party under the policy, until such a length of time has elapsed as will indicate that he does not intend to pay or has practically withdrawn; the company may then give notice to the insured of its intention to forfeit the policy.</p> <p>2. Whether a company has waived its right to suspend a policy by its habit of receiving premiums after they had become due is a question for the jury; but where a company month after month collects premiums after they have become due, and on the 14th of January collects the monthly premium which became due November 1st, and on the 25th of the same month attempts to collect the . premium which became due December 1st, and January 1st, but upon learning that the insured died on the preceding day refuses to accept the premium, and had given no notice to the insured of its intention to suspend or forfeit the policy, there is a very Strong showing that the company had waived the right to suspend or forfeit the policy for non-payment, and it is error to direct a verdict for the company.</p>

<p>Clayton v. Drake, 17 O. S., 367; Oliver v. Sanders, 8 O. S., 501; Ordinance of 1787, at p. 3646, Bates’ Rev. St'at.'; Constitution of 1802, Sec. 4, Art. VIII, of schedule; Constitution of 1851, See. 1, Art. X, of schedule; and Cass v. Dillon, 2 O. S., 607.</p> <p>19 0., 36 ; Stembel v. Martin, 50 O. S.,' 495; Brewster v. Benedict, 14 O., 385; Prickett v. Parker, 3 O. S., 394, and the distinction between “next of kin” under Section 4158 and “next of kin” under Section 4159.</p>

<p>THE PUNISHMENT OF ASSAULT AND BATTERY BY MUNICIPAL ORDINANCE.</p> <p>Powers of Municipalities — The Duplication of Misdemeanors — Assault and Battery Not Punishable by Ordinance — Sections 1692 and 2108 Construed — Conformity to Section 1694, Limiting Ordinance to One Subject.</p> <p>' 1. An ordinance of tbe city of Wellsville, Ohio, contains fifteen sections, defining fifteen separate offenses against the city, all relating to one subject — the punishment,of offenses against the. city; and there is nothing in the ordinance upon any other subject, and nothing that is not clearly expressed in its title: “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville.” Held: That this ordinance conforms to the requirements of Section 1694, R. S., which provides that “No by-laws or ordinance shall -contain more than one subject, which shall be clearly expressed in its title.”</p> <p>2 The power granted to a municipality by Section 1692, R. S., “to preserve the peace and good order,” is limited by Section 2108, and does not include the power to provide by ordinance for the punishment of assault and battery.*</p>

<p>CONSTRUCTION OF THE STATUTE RELATING TO CRUELTY TO ANIMALS.</p> <p>Procedure — Affidavit Before Justice of the Peace — An Information not Necessary — Ignorance of the Owner as' to- Cruelty a Valid Defense, When — Cruelty Statutes Framed with Reasonable Certainty— Sow the Offense should be Charged.</p> <p>1. Jurisdiction is given to justices of tbe peace under Section 3719a to proceed with the trial of one accused of cruelty to animals upon the filing of the proper affidavit, and without the filing of an information.</p> <p>2. Several offenses may be charged in the same complaint, but they must be separately stated in such a form as to provide a complete and separate setting forth of each offense.</p> <p>3. Where the owner provides sufficient help to properly care for the animals placed in their charge, and exercises reasonable care and prudence in so doing, and provides wholesome food and water in sufficient quantities, it is a sufficient defense to a charge of cruelty against such owner to show that he did not know that they were not being properly fed and cared for.</p>

<p>Error to the Court of Common Pleas of Lucas County.</p>

<p>CONVEYANCE OF ELECTRICITY ACROSS A STREET WITHOUT PERMISSION OF THE MUNICIPAL AUTHORITIES.</p> <p>Abutting Owners — Rights of in the Street — May Use Space Above and Beloio Street Level, Notwithstanding Section 3471a, R. S., When— Electrical Wires Stretched Across the Street — Extent of Municipal Control.</p> <p>1. A city has full control of the use and occupation of the streets; but the abutting property owners are vested with the fee of the land extending from the center of the earth, upward between the lines of their lots produced to the center of the street.</p> <p>Z. The city has no control over such portions of such land and air as are not available for street purposes. A street in this connection includes not only the surface of the land, but also the land beneath the surface for such distance as it may be availed of for the laying of pipes, sewers, cisterns, conduits, or any known municipal purpose; and so much of the air above the surface as may be required for light, transportation, poles, wires, or other known municipal purpose.</p> <p>3. Section 3471a does not alter the foregoing, for it limits the inhibition to “streets”; and the land below and the air above such depths and heights as are or may be required for known municipal purposes are held in fee by the abutting property owners, and are in no sense a portion of the street or subject to municipal control.</p> <p>4. Quite within this right is the stretching of a wire from the property of one abutting owner to another across the street, at a height of eighty feet, for the conveyance of an electric current, where the arrangements for conducting and using the current are in conformity with the ordinances of the city in that regard; and the city is without power to remove such wire, notwithstanding it may have been put in position without the consent of council as required by Section 3471a, R. S.</p>

<p>SCOPE OF EMPLOYMENT PROTECTED BY EMPLOYERS’ LIABILITY INSURANCE.</p> <p>Insurance — Employers’ Liability Covering Building Contractors — Nature of Work Included — Construction of Insurance Contract.</p> <p>1. A contract of employers’ liability insurance should be resolved rather in favor of the insured than strictly against him.</p> <p>2. Á laborer in the employ of B., a contracting carpenter, painter and plasterer, was killed while at work at the top of a hoist used for raising to the upper stories material to go into the construction of the building, and operated jointly by B. and H., who was the contracting hrick layer on the same building. Held: That the decedent was at the time of his death in the employ of B., and not of B. & H., and that a contract of employers’ liability insurance undertaking to protect B. from liability for injury to any employe while on duty “at the places and in the occupations mentioned in the application” covered the accident to this man at the top of the hoist, and the insurance company is liable thereunder.</p>

<p>STATUS UNDER. THE MUNICIPAL CODE OF HAMLETS WHICH HAVE NOT BEEN REORGANIZED AS VILLAGES.</p> <p>Samlets — Become Tillages Under the Municipal Code of 1902, how— Classification of, under Sections now Repealed was Constitutional— The Repeals do not Destroy Samlets Already in Existence— Control of Streets hy Trustees.</p> <p>1. While the classification of certain villages as hamlets was abolished by the Municipal Code of 1902, the legal existence of these corporations, subject to re-organization, continues undisturbed, and it requires no act of the corporation to effect a transfer from hamlet to village.</p> <p>2. The repeal of Sections 1550 and 1552 prevents the creation of additional hamlets, but does not destroy those already in existence.</p> <p>3. The statutes pertaining to hamlets prior to the enactment of the present Municipal Code evince no purpose of preventing others from entering that class, and are therefore not within the inhibition as to special legislation.</p> <p>4. The ownership of land abutting on both sides of a street does not divest the trustees of a hamlet of control over the entire street.</p>

<p>NEGLIGENCE AS BETWEEN AN ELECTRIC CAR AND A VEHICLE IN A CROWDED STREET.</p> <p>Negligence — What Constitutes "Loolcing” for a Car in a Crowded Street — Speed of the Car — Rights of Vehicles — Damages for Rupture.</p> <p>1. In an action for damages for injuries received in a collision between an electric car and a vehicle, the fact that the front end of the car had passed the vehicle before the collision occurred does not necessarily exonerate the company from liability.</p> <p>2. Where a vehicle is being driven parallel with and very close to an electric railway track in a crowded street, and a car running at high speed attempts to pass, and could safely pass were the vehicle to continue in an absolutely straight line, negligence can not be charged against the driver because either through his fault or that of the team the vehicle deviated slightly as the car was passing and a collision occurred.</p> <p>3. The rule as to speed laid down in the Kistler case (66 O. S., 326)’, is not applicable to an electric railway running through a city.</p> <p>4. One driving upon a street occupied by an electric railway track is not guilty of negligence in going upon or attempting to cross the track, if having looked in the direction from which cars approach he sees there is no car so near as to be in danger of colliding with him if it is controlled with reasonable care.</p> <p>5. Where it is in issue whether the car struck the wagon or the wagon struck the car, and the trial judge in the course of his charge says “it is undisputed that the car struck the wagon,” the expression should be taken with others in the charge and interpreted as meaning that it is undisputed that there was a collision between the Car and the wagon.</p> <p>6. A Polish woman, accustomed to work in the fields, was thrown from her wagon in a collision with an electric car, and claimed to have received two ruptures. The testimony did not clearly establish that the accident caused the ruptures, but it did aggravate them. A judgment for $3,000 was entered below for the woman. Held: That the judgment should be reduced to $2,000.</p>

<p>CONSTRUCTION OF STATUTES AUTHORIZING ANNEXATION OF TERRITORY TO CITIES.</p> <p>Annexation — Procedure in Case of Pillages — In Case of Cities — Deposit of Petition with County Auditor — Required When — Not in the Nature■ of Notice.</p> <p>Section 1556, Revised Statutes of Ohio, regulating proceedings for the organization of villages, is made a part of the law establishing the procedure in ease of the annexation of territory to a city only “as far as applicable;” and that part of said section which states that the petition shall be filed with the county auditor, simply provides for a safe and proper place for its deposit, and is not in the nature of notice, nor is it applicable to the case of the annexation of territory to a city, upon the application of the city.</p>

<p>MAINTENANCE OF WORK HOUSES AND LIABILITY TO PRISONERS WHO SUFFER IN HEALTH.</p> <p>«City Work House — Governmental as Distinguished from Corporate Powers of a City — Powers of Officers of Penal Institutions to Make Reasonable Regulations.</p> <p>1. A municipality constructs and maintains a work bouse by virtue of the governmental as distinguished from the corporate power with which it is vested, and is therefore not liable to a prisoner confined therein, who complains that he suffered in health by being placed in a small, damp and unsanitary dungeon.</p> <p>2. It is a power inherent in a work house superintendent to prescribe reasonable rules for the government of the prison, and to enforce obedience to them by the infliction of proper punishment, and where the punishment is not cruel or excessive, and is not inflicted with malice or intent to injure, the superintendent is not liable to a prisoner suffering injury therefrom.</p>

<p>UNLAWFUL DISCRIMINATION BY A COMMON CARRIER.</p> <p>Railways — Terminal Facilities of — Machine for Unloading Goal from Gars to Boats or Barges a Part of — Unlawful Discrimination hy Granting Exclusive Use of to a Single Patron.</p> <p>"Where a machine for the rapid and economical unloading of coal from cars to boats or barges is situated upon a dock belonging to a railroad company, and is operated in connection with its tracks and terminals and could not be operated otherwise, and was originally constructed and owned jointly by the railroad company and a coal company for the accommodation of patrons of the railway and at prices fixed by it, such machine is devoted to public use, and is a part of the terminal facilities of the railway; and a grant of the exclusive use of such machine to one patron is an unlawful discrimination which will be enjoined, notwithstanding there may have been a transfer by the railway company of all its rights in the machine to the patron for whose exclusive use it was subsequently held.</p>

<p>A BROKER DOES NOT BECOME THE EQUITABLE OWNER OF STOCK PURCHASED FOR AN UNDISCLOSED CLIENT.</p> <p>Stockholders’ Liability — Brokers not “Equitable” Owners of Stock, When — Section 3259, Defining Stockholders.</p> <p>A stockholder in an Ohio corporation endorsed his certificate in blank and left it with a stock broker, a member of the stock exchange, to be sold for the best price to be obtained. The broker sold the stock on the floor of the exchange to another broker and member of the exchange, who stated that he was buying for a client, but did not disclose the client’s name. The selling broker delivered the stock with memorandum of sale to the buying broker, and the latter gave his check therefor, and notified his client, who received the stock and paid for it. The stock was never transferred upon the books of the corporation, and the purchaser of the stocir died insolvent. The corporation becoming insolvent, suit was brought to subject its stockholders’ liability, the original stockholder and the buying broker being made parties thereto. Held: The broker buying the stock is not liable as a stockholder of the company.</p>

<p>UNFAIR. CONTRACT BETWEEN A BOARD OF DIRECTORS AND SOME OF ITS MEMBERS.</p> <p>Special Charges — Must he Given Before Argument When Requested— Interest of Directors Antagonistic to That of the Company — Contract with, Unfair to the Company May he Set Aside — Good Faith as Distinguished from Unerring Judgment — Ratification—Commissions and Discounts.</p> <p>1. It is not a matter of discretion, for the court to withhold until after argument to the jury the giving of such written propositions as are requested and properly state the law applicable to the case; such propositions should be given before argument, and refusal to so give them is ground for reversal.</p> <p>2. Where the hoard of directors of a mill property enter into a contract with a selling agency for the disposal of the product of the mill, and some of the directors are interested in this agency, and thus make a profit which might and should have gone to the company, and the efforts of such directors are in the interest of the agency as against the interest of the corporation, such conduct constitutes a sufficient ground for the cancellation of the contract by the company.</p>

<p>JURISDICTION OF JUSTICES OF THE PEACE IN SUITS AGAINST RAILROAD COMPANIES.</p> <p>Justice of the Peace — Jurisdiction of — Against Railroad Companies Under Section 6478 — Against Freeholders in Attachment Proceedings Under Section 584 — Interpleader—Appearance.</p> <p>1. While the jurisdiction of a justice of the peace is co-extensive with the county in an attachment proceeding against a householder or freeholder resident in the county, such jurisdiction does not extend to a railroad company unless its president resides in the township or its road passes into or through the township.</p> <p>2. The filing of a motion hy a defendant for an interpleader does not amount to the entering of an appearance.</p>

<p>SPEED OF RAILWAY TRAINS AT DANGEROUS CROSSINGS WITHIN MUNICIPAL LIMITS.</p> <p>Negligence — At Railway Grossing — Speed of Train At, Within Municipal Limits — Ordinance Limiting Speed — Absence of Watchman or Gates —Tracks Hidden from View — One in Peril Without Fault — Wrong Choice Between Hazards.</p> <p>1. An allegation that a railroad company was guilty of negligence in not maintaining a gate or keeping a watchman at the crossing where the accident complained of occurred is proper, and-should not be stricken from the petition.</p> <p>2. A railroad company may be held by the verdict of a jury and by law to have been guilty of negligence as to the running of a train over a street crossing, if the crossing .is within the limits of a city or village or suburb, where a view of the tracks is in a measure obstructed by houses, and there are no gates at the crossing, and no watchman to warn persons attempting to cross of an approaching train and the speed of the train was, as in the case under consideration, more than thirty miles an hour.</p> <p>3. The fact that a train was running at a higher rate of speed than is permitted by a municipal ordinance is a circumstance which may be taken into consideration by a jury in determining the question of alleged negligence in the running of said train.</p> <p>4. J., while driving along a street after dark, came to a point where six different railway tracks belonging to two different roads crossed the street at an angle, and were partially hidden by buildings, and there was no watchman. Different persons in the vicinity shouted at him, and some one cried “hurry up.” Acting on the impulse of the moment and under a miscalculation as to which track the train, was on, he attempted to reach a safe place between the tracks, his horse went forward farther than he designed, and was struck, and horse, vehicle and driver came into collision with the train. Held: That J. was not guilty of contributory negligence.</p>

<p>Appeal from Court of Common Pleas of Hancock County.</p>

<p>EASEMENTS IN STREETS AND PUBLIC GROUNDS.</p> <p>Statute of Limitations — Laches of an Abutting Property Owner — A Municipality Trustee of its Streets and Public Grounds for All the People — Whether an Abutter Sued for the Benefit of Himself or the Public Determined, How.</p> <p>1. The individual rights of an abutter upon a street or public grounds in a municipal corporation, to have the same kept open and free from obstruction to his light, and ingress and egress to his property, may be barred by the lapse of time.</p> <p>2. Whether .an abutter brings suit for his own benefit alone, or in behalf of the public, will be determined from the allegations of his petition.</p>

<p>Error to the Court of Common Pleas of Wood County.</p>

<p>MORTGAGE COVERING HUSBAND’S PROPERTY AND WIFE’S SEPARATE PROPERTY.</p> <p>Husband and Wife — Separate Property of Wife — Included in Mortgage Securing Husband’s Debt — Relation of Surety to Said Debt — Mortgage also Covered Husband’s Property — Purchaser at Foreclosure Put on Inquiry — Dower—Subrogation—Estoppel—Burden of Proof —Bad Faith.</p> <p>1. Where it appears from the record that the wife’s separate property has been mortgaged to secure the husband’s note, it is evidence tending to show that her property sustains the relation of surety to his debt.</p> <p>2. Where the mortgage covers both the wife’s separate property and property of the husband, the fact that the mortgage secures the husband’s note is sufficient to put any one dealing with husband’s property covered by said mortgage on inquiry as to the true relation sustained by the wife’s property, and to put the burden of proof on the one dealing with such property of the husband to show that the true relation of the wife’s property is different from that indicated by the record.</p> <p>3. The foregoing is especially true as to one who purchases such property of the husband, where the only consideration is the husband’s past due indebtedness.</p> <p>4. While fraud or bad faith is not essential to estoppel, it is a necessary ingredient in misrepresentation by passivity.</p> <p>5. Innocent silence does not estop.</p>

<p>CLAIMS BY GRANT AND BY PRESCRIPTION TO GROUND FOR. AN ALLEYWAY.</p> <p>Reservation of Alleyway in Deeds — Claim of Right to Use by Grant — Claim by Prescription.</p> <p>1. A bar arises against the claim by grant to the right to use a certain strip of ground as an alleyway where the one making the claim has built upon that part of the strip extending through his own ground.</p> <p>2. A claim by prescription of a right of way is not defeated by the fact that the plaintiff’s use of the strip was not daily, but only occasional it sufficiently appearing that such use was continuous.</p>

<p>Heard on appeal.</p>

<p>Error to the Court of -Common Pleas of Summit County.</p>

<p>RAILWAYS —NEGLIGENCE —RELEASE FROM LIABILITY FOR. INJURY.</p> <p>Railway Company Negligent — In Leaving Locomotive in Incompetent Hands — Which Eliminates the Fellow-Servant Question — Release from Liability for Injury — Should be Based Upon a Fair Understanding.</p> <p>1. Where a locomotive was left in charge of one whose knowledge of its workings was uncertain, and no effort seems to have been made by the company to ascertain directly what his knowledge was of the action of s-team and the operation of the engine, and an accident resulted which was due to his lack of such knowledge, the company will be held to have been negligent, and the fellow-servant question to be eliminated.</p> <p>2. A release from liability for injuries is not binding, where it does not appear that the person signing the release understood its nature and effect.</p>

<p>EFFECT OF DISMISSAL OF ONE OF TWO DEFENDANTS BEFORE A JUSTICE OF THE PEACE.</p> <p>Appeal — Judgment Not Vacated By, When — Action Before Justice of the Peace Against More than One Defendant.</p> <p>Where two persons are sued before a justice of the peace on a bill for merchandise, and one of them is dismissed, and judgment given against the other, there is not such a necessary connection between them that the one thus dismissed can be brought back into the case on appeal to the common pleas court.</p>

<p>RIGHTS UNDER. A RESCINDED CONVEYANCE MADE IN FRAUD OF CREDITORS.</p> <p>Conveyance — In Fraud of Creditor — Settlement Made With Creditor — Conveyance Rescindea by Consent of Grantee — Grantor Remains in Possession — Suit in Ejectment by Heirs of Grantee.</p> <p>A deed of conveyance was executed and delivered for the purpose of defrauding a creditor. Subsequently the grantor compromised and settled the claim of the creditor, and thereafter it was agreed between the grantor and grantee that the conveyance should be canceled and the notes representing the purchase price and the deed surrendered and destroyed. The notes were produced and destroyed, but the deed could not be found, because fraudulently abstracted by a son of the grantee. The grantor remained in possession, and he and the grantee lived for some years thereafter in the belief that the deed had been lost and destroyed, and both died in that belief. Held: That in an action in ejectment, brought against the heirs of the grantor by the heirs of the grantee, in-eluding the son who had concealed the deed, that the petition should be dismissed and the title to the land quieted in the heirs of the grantor.</p>

<p>ROADS AND THE POWER OF COUNTY COMMISSIONERS OVER THEM.</p> <p>Roads — Public, State, County and Township — Restricted Powers of County Commissioners — Sections 843 and 863.</p> <p>County commissioners are restricted to the exercise of powers expressly conferred upon them by statute, and they have no authority to bring an action to restrain persons from obstructing township roads under Sections 845 and 863, Revised Statutes, the former authorizing them to bring actions to prevent injury to “public, state and county roads,” and the latter to bring suits in certain cases for injuries to “bridges, roads and buildings.”</p>

<p>Heard on appeal.</p>

<p>WAIVER. OF PROOFS OF LOSS UNDER A POLICY OF FIRE INSURANCE.</p> <p>Fire Insurance — Authority of Local Agent — Statement by, that the Company Denied all Liability — Held to be a Waiver of Proofs of Loss — The Law of Agency — Testimony as to Waiver Should go to the Jury.</p> <p>1. The general principle that when a matter is entrusted to an agent he will be regarded as having authority, in the absence of notice to the contrary, to carry the business to its completion, applies to the agent of a fire insurance company, where policies signed in blank aré entrusted to him to be filled out and delivered and the premiums collected, and the policy holder has no notice or knowledge of the location or existence of any other agent of the company.</p> <p>2. Hence, where such an agent makes an investigation of a fire, and finds the loss is total and there are no suspicious circumstances, and some time thereafter informs the policy holder that he fears trouble as the company denies all liability, and the policy holder, influenced by this statement, submits no formal notice of the fire or proofs of loss, the company is estopped from claiming that the agent was without authority to act after the occurrence of the fire, or from denying that the statement of the agent was a waiver of written notice and proofs of loss.</p> <p>3. And further, under the general principles of agency, if the company denied liability, the agent had authority to communicate that fact to the policy holder.</p> <p>4. It is error, therefore, to direct a verdict under such circumstances in favor of the company, on the grouund that no formal notice or proofs of loss were submitted; but the evidence as to whether the company had waived these requirements should be submitted to the jury.</p>

<p>RIGHTS OF THE SURETIES OF A GUARDIAN AS AGAINST A FRAUDULENT TRANSFER.</p> <p>Suretyship — Guardian’s Bond — Fraudulent Transfer — Statute of Limitations — Discovery of the Fraud — When Bight of Action Accrues.</p> <p>1. An indebtedness paid by reason of suretyship on tbe bond of a guardian relates back to tbe date of tbe bond.</p> <p>2. Where a guardian fraudulently transferred bis property, and bis sureties were subsequently compelled to make good a deficit under •the bond, their right of action as to the fraudulent transfer accrued at the time the transfer was made, or at the time of their discovery of the fraud, and the bar of the statute runs from the date of the transfer or of the discovery of the fraud, and not from the date of the payment made under the bond.</p>

<p>THE NEW LAW AS TO BILLS OF EXCEPTIONS AND THE NEW LAW AS TO MECHANICS’ LIENS.</p> <p>Bills of Exceptions — Under Section 5201 as Amended, — The Filing, Examination and Allowance of — May Be Signed Before the Fifty-second Day, hut Not Later than the Fifty-fifth Day — An Entry of Filing, etc., Not Evidence as to These Steps — Bills of Exceptions Before Justices of the Peace — Under Section 6565 — Mechanic’s Lien Law — Act of May 18, 1902, May Be Applied to Contracts Previously Entered Into, When — Its Partial Retroactive Operation Defensible — Sub-contractor’s Remedy at Law Saved — The Section Construed — Pleading—Parties.</p> <p>1. Where.the record does not disclose whether a bill of exceptions was filed with the clerk before it was signed by the trial judge, both filing and signing having occurred on the same day, it will be presumed the proceedings in that regard were regular and the bill valid.</p> <p>2. The evidence as to what was done with reference to the filing, examination and allowing of a bill of exceptions must, under the present law, appear upon the bill itself; an entry reciting these facts (as under the statute before amendment) can not be con- ■ sidered.</p> <p>3. The amended section (5201) does not deprive the trial judge of jurisdiction to sign a bill of exceptions before the expiration of fifty-two days from the overruling of the motion for a new trial; but, all parties to the bill being satisfied therewith, he may in his discretion sign it before the expiration of the fifty-second day, and such action will be valid and not premature.</p> <p>4. A statute acts upon the state of facts at the time existing. Hence, it does not give a retroactive effect to the act of April 18, 1902 (95 O. L., 210), to apply its provisions to a building contract, entered into between the owner and the principal contractor and between the principal contractor and a sub-contractor prior to the passage of this act, where the indebtedness of the owner to the head contractor and the notice were of a date later than the passage of this act.</p> <p>5. But granting that by applying this act to such a case would make it in some respects retroactive, it would not necessarily be unconstitutional for that reason, and it would not necessarily he wrong to give it that operation.</p> <p>6. Section 3197 has the effect of saving to the sub-contractor his remedy by an action at law against the head contractor.</p>

<p>THE BAR. OF BANKRUPTCY PROCEEDINGS AS AGAINST UNSCHEDULED CLAIMS.</p> <p>Bankruptcy — Unscheduled, Indebtedness — Bar of a Discharge Operates Only as to Creditors 'Without notice — V^hat Constitutes notice— How Proved.</p> <p>1. A discharge in bankruptcy operates as a bar against a given claim which was not included in the bankrupt’s schedule of liabilities, if it appear that the holder of the claim had notice or actual knowledge of the proceedings in- bankruptcy.</p> <p>2. All facts, whether occurring before ,or after the commencement of the proceedings in bankruptcy, tending to establish notice, are competent as evidence as to whether the creditor had notice or actual knowledge of the proceedings.</p> <p>3. Where one who holds a note signed by husband and wife is told that they are both going into bankruptcy, and he replies- that he has a claim against the husband, but says nothing about the wife, and the husband’s schedule of indebtedness includes this claim but the wife’s does not, the owner of the note will be held to have had notice of the proceedings in bankruptcy, and a subsequent judgment against the wife on the note will- be reversed.</p>

<p>PARTITION OF LAND COVERED BY LIFE ESTATE OF WIDOW WITH REMAINDER. TO CHILDREN.</p> <p>Partition — Bights of Life Tenant — Of Remaindermen — Of One Acquiring Interest of Life Tenant and of One Remainderman — Widow may Dispose of Life Estate — Clause'in Will Against Alienation of No ■ Effect. ■</p> <p>1. The owner of a life estate, who joins -in a mortgage by one of the remaindermen, and upon suit being brought in foreclosure flies no answer and makes no defense, is barred from setting up in a subsequent suit in partition that she had no interest in the loan secured by the mortgage.</p> <p>2. A widow has the right in Ohio to dispose of her life estate, or a portion of it, by releasing her right to the use of that portion.</p> <p>3. Where property is devised to the widow for life with the remainder to children, with the proviso that the property shall not be sold during the life of. the widow, the clause against alienation is repugnant to the devise to the children, and of no effect.</p> <p>4. One who acquires from a remainderman his interest in land and who' also acquires the interest of the life tenant, has a title in fee with the right to immediate possession and to have his portion set off. But whether he has a right to a sale of the premises— , Quaere?</p>

<p>CLAUSES OF EXEMPTION IN ACCIDENT INSURANCE POLICIES.</p> <p>Accident Insurance — Clauses of Exemption — Limitations Thereon — The Burden on the Company.</p> <p>1. An accident insurance company, relying on the exemption clause in its policy, must show by a preponderance of evidence that the ■insured unnecessarily and voluntarily exposed himself to a known danger, resulting in the accident on account of which suit is brought.</p> <p>2. A proviso exempting the company from liability in the event of an accident due to an “unnecessary or negligent exposure to obvious dangers,” -does not include voluntary .exposure to a necessary danger or involuntary exposure to an unnecessary danger; and if the accident was one as to the circumstances of which fair-minded persons may differ, a finding against the company should not be disturbed.</p>

<p>RATIONAL DOUBT AS TO CONTRIBUTORY NEGLIGENCE.</p> <p>Negligence — Failure to Look for Danger in Crossing a Street Car Track —The Ruling as to Rational Doubt Applied.</p> <p>Where it appears from the testimony of the plaintiff himself and from all the testimony in the case, that upon alighting from a street ear the plaintiff passed around the rear end and onto the track used by cars running in the opposite direction, without paying any attention to his surroundings, or looking in the direction from which cars approached on that track, or checking his pace, and was struck by a ear and injured, there can be no rational conclusion save that his own negligence contributed to the injury. In such a case there, is nothing to submit to the jury, and it is error for the court to refuse to enter judgment for the plaintiff.</p>

<p>THE DISCRETIONARY POWERS OF BOARDS OF EDUCATION IN THE CENTRALIZATION OF TOWNSHIP SCHOOLS.</p> <p>Schools — Centralisation' of — Mode and Manner of, Discretionary with Board — Hostility of Board — Dilatory Action — Change of Plan from One to Two Schools — Mandamus—Injunction.</p> <p>1. While the centralization of township schools may be made imperative upon a board of education, it is only when the board deems it necessary to purchase a site and erect a school building thereon, that it is required so to do by the provisions of the act of April 16, 1900, found in 94 O. L., at page 317.</p> <p>2. Either the original board or its successor, acting in good faith before the building is erected or commenced, may reconsider the first action taken in that behalf, and decide to centralize the schools of the township in two places instead of one, and its discretion as to the mode and manner of' centralizing the schools can not be controlled by mandamus, notwithstanding its judgment may be at fault; if at the time of such reconsideration there is a contractor holding a valid contract for the erection of the building, his remedy is at law.</p> <p>3. Hostility of a board to centralization, dilatory action in effecting it, and the appropriation of $1,000 for expenses of litigation, would not warrant a finding that the board acted in such bad faith as to require a court to interpose by a writ of mandamus.</p> <p>4. Injunction will not lie to restrain a board of education from maintaining separate schools in joint sub-districts after a vote for centralization.</p>

<p>JURISDICTION TO ORDER AN ELECTION UNDER THE BEAL LAW.</p> <p>Beal Law — Proceedings by Council — For the Ordering of an Election— Jurisdiction so to do Must Affirmatively Appear — Proclamation by Acting Mayor.</p> <p>1. Authorized jurisdiction is a condition precedent to the ordering by council of a vote under the Beal Municipal Local Option Law, and such jurisdiction must affirmatively appear from the record.</p> <p>2. But where the record shows that a petition for an election under the Beal Law was presented to council, and that body took action by appointing a committee to investigate the matter, and the report of the committee was to the effect that more than forty per cent, of the voters had signed the petition, and this report was adopted, and by a unanimous vote of council an election was ordered and held, the fact that there was no formal finding that forty per cent, of the voters had signed the petition, and objection that there was in substance and effect no finding by council of the jurisdictional fact, does not go to the essence of the matter, but is technical, and will not lie.</p>

<p>THREATENING TO ACCUSE ANOTHER OF A CRIME PUNISHABLE BY LAW.</p> <p>Criminal Law — Indictment Under Section 6830 — Threatening to Accuse Another with Arson — What the Indictment Must Aver.</p> <p>An indictment charging the defendant with threatening to accuse another of a crime punishable by law, is insufficient under Section 6830, if it avers that the defendant threatened verbally and in writing to accuse such person of arson with intent to defraud, but does not aver that the building, set on fire or burned with felonious intent, was insured, and that the defendant threatened to charge such person with burning it to prejudice the insurer.</p>

<p>PROOFS OF LOSS BY FIRE WHICH ARE TECHNICALLY DEFECTIVE.</p> <p>Fire Insurance — Proofs of Loss — Answers incorrect — But Desired Information Given — Magistrate's Certificate — To What He Must Certify.</p> <p>1. Although an answer in a proof of loss may he wrong and fail to give the information it was intended to draw out, yet if it is not misleading, nor in any way harmful to the company, and the information which wasi sought and which the insured was bound to give was elsewhere incorporated in the proof of loss, such proof must be regarded as sufficient.</p> <p>2. In the requirement of a policy that the magistrate or notary public living nearest the place of the fire shall certify that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount stated, is complied with when the magistrate adopts and endorses the statements of the insured in his proof of loss, when such endorsement is based upon knowledge and investigation which makes him willing as an officer to certify to the facts set forth.</p>

<p>-Error to court' of common pleas.</p>

<p>CONDEMNATION OF RIGHT OF WAY FOR AN INDUSTRIAL TRACK.</p> <p>Railways — Eminent Domain — Condemnation—Industrial Tracks Are Side-tracks — Section 3281 — Quo Warranto — Expert Testimony.</p> <p>1. An “industrial” track, branching from a belt railway and leading to a large plant about one mile distant, which track the belt railway company expects to use in the ordinary course of its business as a common carrier of persons and property, is for a public use, and is a “side-track” within the meaning of Section 3281; and the power of eminent domain may be invoked for the condemnation of a right of way for said track.</p> <p>.2. Expert testimony is competent in an action in quo warranto against a railway company, where the issue is as to whether a certain proposed track is a side-track, or one to be used for a private purpose.</p>

<p>COMPETITION IN THE SUPPLY OF GAS TO A MUNICIPALITY.</p> <p>Competition — Not a Legal Injury — And Injunction Will Not Lie to Prevent It — Rights of Gas Companies Operating Under Valid and Invalid Franchises — Submission of Question of Franchise to Voters — Section 3551.</p> <p>Assuming that by authority of an invalid ordinance, a natural gas company has entered a municipality, and thereby comes into competition with the gas light and power company previously serving the municipality and its citizens, a suit by the latter company to enjoin the former from further operations will not lie, for the reason that no legal injury to said company can result from such competition; and this is true, notwithstanding if the contention as to the invalidity of the ordinance is well founded, the new company may be ousted from the city by a proper action brought in that behalf.</p>

<p>OMITTED TAXES —PURPOSE OF THE STATUTE AS TO CHANGE OF OWNERSHIP.</p> <p>Taxation — Section 2803 — Provision of 'With Reference to Change of Ownership — Title by Devise — Omitted Taxes a Debt of the Decedent’s Estate.</p> <p>1. The purpose of the provision as to the change of ownership of real estate, found in Section 2803, is to protect a bona fide purchaser, who might rely on the tax duplicate as it appeared at the time of his purchase.</p> <p>2. A devisee of land has parted with nothing upon the faith of the record, but has become the owner by devise, subject to the payment of the debts of the testator. There is, therefore, no such change of ownership as will prevent a correction of errors in the tax duplicate by the county auditor, and omitted taxes based upon such corrections become a specific lien upon the real estate so devised.</p>

<p>ADJUDICATA — DEFECTIVE PLEADING.</p> <p>Cause of Action — Not Rendered Adjudicata — By Judgment for Defendant by Reason of Defective Petition — Procedure During Trial.</p> <p>1. A cause of action does not become res adjudicata by reason of tbe fact that a former suit, involving tbe same subject matter was dismissed on tbe grounds that tbe petition did not state facts sufficient to constitute a cause of action.</p> <p>2.' A plaintiff in sucb a case stands in tbe position of one to whose petition a demurrer bas been sustained; and tbe fact that no demurrer was interposed, but instead' a motion to exclude tbe plaintiff’s evidence and direct a verdict for tbe defendant, wbicb was granted and judgment rendered on sucb verdict, does not change the position of tbe plaintiff nor render bis suit res adjudicata.</p>

<p>COSTS IN CASES SETTLED AFTER. SUIT IS BROUGHT.</p> <p>Costs — Should he Equitably Apportioned — Where Claim is Settled After Suit.</p> <p>"Where a ease is settled after suit brought, it is the duty of the court to apportion the costs between the parties as it may adjudge to’ be right and equitable. In such a case it is error to adjudge all the costs against the plaintiff, without an inquiry into the merits of plaintiff’s original claim.</p>

<p>THE PROHIBITION OF A BOILER FACTORY NEAR A PENITENTIARY UNCONSTITUTIONAL.</p> <p>Police Power — In the Restriction of Objectionable Trades — To Certain Localities — Legislative Prohibition Justified, When — Act of May 12, 1902, Unconstitutional as to Boiler Factories and Penal Institutions.</p> <p>The act of May 12, 1902 (95 O. B., 592), in so far as it makes it an offense to erect or operate, within four hundred feet of the administration department of any state penal institution, any boiler factory which makes a loud noise, is unconstitutional, because the operation of such a factory is not a nuisance per se, and it does not appear that such restriction is imposed in the public as distinguished from private interest.</p>

<p>DAMAGES TO LAND OF NEIGHBORING RIPARIAN OWNER. BY EMBANKMENT.</p> <p>Riparian Rights — Embankment for the Protection of Land — Causes Injury to Neighboring Owner — Due to an Extraordinary Flood— Estoppel.</p> <p>1. The construction of an embankment upon one’s own land, to protect it from the action of the waters of a stream, does not render the owner liable for injury to the land of a neighboring riparian owner, where such injury is sustained during great and unusual floods, which people of ordinary prudence and intelligence would not have anticipated.</p> <p>2. Estoppel arises only when the person sought to be estopped has done some act, or made some admission, with the intention of influencing the conduct of another, or that he had reason to believe would influence the conduct of another, and which act or admission is inconsistent with the claim he is now making.</p>

<p>LIEN ACQUIRED UNDER. A MORTGAGE EXECUTED BY AN INSANE PERSON.</p> <p>Mortgage — Executed by an Insane Person — Lien of Enforceable, When —And to What Extent.</p> <p>The rule that a mortgage executed by an insane person is valid and enforceable in so far as the consideration was for the benefit of such person, is applicable to that part of the consideration which was used in liquidating a previous mortgage subject to the same infirmity.</p>

<p>ASSESSMENT OF PROPERTY WITHIN FIVE YEARS FOR MAKING OF STREET AND MAKING OF SIDEWALK.</p> <p>Assessment — For Street Improvement and for Sidewalk — Both May Be Levied to 25 per cent, of the Value of Abutting Property Within Five Years — Distinct Issue Between Two Parties to a Suit in Which None of the Others are Interested.</p> <p>1. The making of a street and the laying of a sidewalk on such street are two distinct and separate improvements within the meaning of Section 2271, R. S, O. Therefore, a piece of property abutting on such street can be assessed in an amount equal to twenty-five per cent, of the value thereof for the improvement of the street, and can be again assessed within a period of five years in an amount equal to twenty-five per cent, of the value of such property for the making of a sidewalk on said street.</p> <p>.2. The provisions of Section 2283, R. S. O., apply to improvements made on two different streets, and do not limit the amount of the assessments for two different improvements on the same street. Hunt v. Hunter, 14 C. C., 503, cited and followed.</p> <p>3. A distinct issue at law between only two of the parties, in which none of the other parties in an action purely equitable in its nature are interested, and not affecting the subject matter, can not be injected and tried in such equitable action.</p>

<p>FRAUD OF DIRECTORS IN A SALE TO THE CORPORATION.</p> <p>Corporations — De Facto and De Jure — Section 3797 Directory — Application of Section 3821s; — Promoters and Directors — Duty of, Includes Protection of the Corporation against their Own Rapacity — Liability of, for Fraud against the Corporation — Attachment—Form and Substance of Affidavit — Limited Application of Section 5109.</p> <p>1. Where articles of incorporation have been issued and duly certified by the secretary of state, and the incorporators hold, meetings, elect directors, etc., the corporation thus created has at least a de facto existence, with capacity to commence and maintain an action; whether it. is a corporation de jure, the state by a direct proceeding can only inquire.</p> <p>2. A company, incorporated under the laws of Ohio and authorized to receive deposits, borrow and lend money on interest, etc., is not subject to the penalties imposed by Section 38212 for transacting business without having complied with the provisions of Section 3797, which section is directory and its violation not criminal.</p> <p>3. Under the rule laid down in 29 O. S., 423, an affidavit for an order of attachment is not defective as to form in setting forth merely that the affiant “is a director and agent of the plaintiff”; nor is it defective in substance or insufficient in allegation of facts, where the language used is sufficient to charge actual fraud and the fraudulent incurrence of the obligation under the statute, and is sufficient to and does charge the defendants with committing and intending to commit actual fraud. The provisions of Section 5109 were intended to apply only to affidavits in verification of pleadings.</p> <p>4. Where the evidence shows that certain directors, defendants in a suit in attachment, made representations as to their interest in the corporation and the value of certain property which were untrue, and which they knew were untrue, the allegation of fraud in an affidavit for attachment will be regarded as established, notwithstanding other directors, with less knowledge of the value of the property being transferred to the corporation, voted with them for its purchase.</p> <p>5. Those who participate in the organization of an incorporated company and enter the board of directors occupy a fiduciary relation thereto, and where such promoters and directors urge the sale of property to the corporation at three times its real value, and vote for its purchase, with full knowledge as to its actual value, there is such a lack of good faith toward the corporation; its stockholders and creditors as to constitute fraud per $e, and the fact that other directors assisted in the deal and voted with them affords no defense in an action against them for the amount the company has lost hy such conduct.</p>

<p>BUILDING RESTRICTIONS COVERING A SUBDIVISION.</p> <p>Building Restrictions not Enforceable, When — Lot Owner Violating Restrictions Can not Enforce Them Against Another.</p> <p>1. Where the owner of land subdivides and sells it to lot purchasers, with restrictions in the deeds as to the purpose for and manner in which the land may be used, one lot purchaser can not enforce such restrictions against another lot purchaser, unless the restrictions-are,-uniform.for all the lots-similarly situated, and part of a general scheme for the improvement of the whole tract.</p> <p>2. Where there is a-general scheme for the improvement of the whole tract, one lot owner who has violated the restriction in his own deed by building too near the street line, can not compel his neighbor to build according to the restriction.</p>

<p>INDEFINITE TERM OF LEASE FOR. OIL AND GAS LANDS.</p> <p>Lease — For Oil and Gas Lands — Delay in Drilling — No Term Fixed in Lease — Assignment of Lease not Recorded — Abandonment of Lease.</p> <p>1. Under the terms of Section 4112a, the assignment of a lease, granting the right to go upon lands for the discovery and production of oil and gas, need not he filed for record or recorded in order to render it valid as between the parties thereto and. their assigns.</p> <p>2. A contract of lease between a land owner and an oil producer gives the right of possession to the latter for the purpose of exploring for oil and gas, and is not void ab initio by reason of the fact that no term is stated or fixed by the contract; and oil or gas having been discovered, the contract endures for such time as is necessary to accomplish its purpose, the producer acting with reasonable diligence.</p> <p>3. Where a well is drilled and no gas or oil is found, the term of the lease can not be fixed by the caprice of the driller, but he is bound to continue his search within a reasonable time; and where, as in the case under consideration, further drilling is delayed for a period of six years, the interest of the lessee and his assigns will be declared to have been abandoned.</p>

<p>DUTIES OF STREET AND STEAM RAILWAY COMPANIES WHERE THEY CROSS AT GRADE.</p> <p>Crossings — Of Steam and Street Railways — Proper Precautions — By Both Companies — Where the Tracks are at Grade — Section 3443-6.</p> <p>The provision in Section 3443-6, that before a street car shall cross over a railroad track at grade, some employe of the company shall go ahead and ascertain whether the-way is clear, does not relieve the steam railroad of the duty of so operating its gates as to indicate whether or not the way is clear to those in charge of the street car.</p>

<p>Error to the court of common pleas.</p>

<p>AS TO WIDOW’S EXEMPTION FROM LEVY AND SALE.</p> <p>Exemption — Of Widow — Without Custody of Minor Children — Punctuation of Section 5441.</p> <p>A widow, not the owner of a homestead, and not having in good faith the care and maintenance of any minor child or children of a deceased relation, is not entitled to hold property exempt from levy and sale. Wentzel v. Mays, 16 C. C., 110, explained.</p>

<p>VALID AND INVALID CONTRACTS BETWEEN ATTORNEY AND CLIENT.</p> <p>Attorney and Client — Contract between for Professional Services— When Valid — When Champertous and Void.</p> <p>A simple contract between attorney and client, whereby the attorney is to receive a share of the recovery as compensation for his services, is binding and legal; but where the attorney undertakes to pay a part of the expenses and in that way acquires a pecuniary interest in a suit, or an agreement is entered into with the client that no settlement or compromise shall be made without the attorney’s consent, the contract is champertous and void.</p>

<p>FAILURE TO ENTER THE OVERRULING OF A MOTION FOR NEW TRIAL.</p> <p>Mandamus — Does not Lie to Compel the Making of an Entry, When— Nunc Pro Tunc Entries and their Office.</p> <p>1. While it is possible that a judge of the common pleas might, after the term, upon a proper presentation of the facts, 'set aside a former motion for a new trial and re-hear the case, it would be beyond his power to order an entry made as of the September Term of the overruling of a motion for a new trial on June 29th preceding.</p> <p>2. The omission to make at the time an entry of the overruling of a motion for a new trial can not be cured by a nunc pro tunc entry made tbe following term, when all the parties were present at the time of the overruling of the motion and had full knowledge of what was done.</p>

<p>Error to -the court of common pleas.</p>

<p>SLANDER —ELEMENTS OF —PUNITIVE DAMAGES.</p> <p>Action for Slander— Words 'Imputing CHme— Which Relate to a Transaction Not Itself Criminal — Intent of Slanderous Words — Injury to Feelings — Election as to Statements Pleaded and Statements in Evidence— Punitive Damages — Signature to Verification to Petition Not Genuine.</p> <p>1. In an action for slander evidence is competent as to the effect upon the plaintiff of the alleged slanderous words, and in the absence of such evidence the jury may presume such suffering as it might be reasonably concluded such language would cause.</p> <p>2. Language used but not pleaded may only be put in evidence for the purpose of showing malice.</p> <p>3. Language imputing a crime is not slanderous, where the transaction to which the words related was not criminal and must be so understood by the hearers. Whether the defendant intended to charge a crime is a question for the jury.</p> <p>4. If the words were spoken in the heat of passion, this fact should be considered by the jury in determining whether punitive damages should be allowed and in what amount.</p> <p>5. Objection to a petition, on the ground that the signature of the plaintiff attached to the verification of his petition is not genuine, must be raised before trial.</p>