Volume 1 — Ohio Nisi Prius Reports, New Series

<p>LIABILITY OF ONE HOLDING STOCK AS TRUSTEE.</p> <p>One who holds stock as a trustee, in an Ohio corporation, is individually liable under the statute giving to creditors of the corporation the right to recover from the stockholders an amount equal to the par value of the stoek held.</p>

<p>LIFE INSURANCE — POLICY LAPSES TO INSURED.</p> <p>A policy of insurance on the life of an husband, taken out by his wife in 1869, and payable at his death to her or to “their children,” lapses to him and his child by a previous marriage, at her prior death without issue by the present marriage, and her child by a former marriage does not participate.</p>

<p>SETTLEMENT BY ADMINISTRATOR OF DECEASED GUARDIAN.</p> <p>The administrator of a deceased guardian should file the account of the deceased guardian, and turn over the money in his hands to the newly appointed guardian, immediately after his appointment.</p>

<p>APPEAL BY ONE ACTING IN TWO CAPACITIES.</p> <p>Appeal by an Administrator — Individual and Trust Capacity — Notice of Intention — Appeal Bond — Section 6408 Construed.</p> <p>1. The two methods for perfecting an appeal, which are provided by Section 6408 R. S., for one acting in a fiduciary capacity, are not cumulative, but mutually exclusive, and relate to separate and distinct characters of appeal.</p> <p>2. Where an administrator has an individual interest in the appeal, written notice of his intention to appeal is not required by this section.</p> <p>3. Such a notice does not take the place of an appeal bond, unless it appears, that the appeal is taken by a párty in a fiduciary capacity, and that it is taken in the interest and for the benefit of the trust alone.</p> <p>4. Whether the appeal is prosecuted in the interest of the trust must be determined from the record and the original papers in the ease, authorized to be used by Section 6409; if any presumption of fajct arises it is that the administrator is beneficially interested.</p>

<p>PRIORITY OF JUDGMENT LIEN WHERE VOID JUDGMENT OF REVERSAL INTERVENES.</p> <p>A mortgage does not obtain priority over an antecedent judgment by virtue of a subsequent void judgment of reversal by tbe intermediate court, wbicb reversal is afterward reversed and tbe original judgment affirmed by tbe Supreme Court.</p>

<p>RECOVERY OF MONEY LOST IN GAMBLING.</p> <p>Allegations were made by a wife as to the place where her husband had lost money at gambling, and the amount he had lost within a specified period of three months, and that the place was run by the defendants. Held — that these allegations are sufficient to support a recovery of the amount lost, with penalty.</p>

<p>RECOVERY FOR SERVICES IN PROCURING A FRANCHISE.</p> <p>Street Railway Franchise — Influencing Council to Grant — Comment by the Court on "Weight of the Testimony.</p> <p>1. In a suit for recovery for services in procuring a street railway franchise, it is error to charge the jury that if the service, or any part thereof, consisted in personally persuading and influencing council to grant the franchise, there can be no recovery by the plaintiff.</p> <p>2. The remark in the charge to the jury that the testimony of the plaintiff “is not very clear and specific,” is erroneous for the double reason that it is a comment upon the weight of the testimony, and also an intimation of opinion on the part of the court that there may have been some concealment by the plaintiff.</p>

<p>TAXES OMITTED BY REASON OF THE USE OF WRONG FORMS.</p> <p>1. Sections 2781, 2781a and 2782 are not statutes of limitation, but remedial statutes, allowing the state and its collection officers to compel the collection of taxes wrongfully omitted.</p> <p>2. The submission to property owners of wrong forms for making their tax returns does not estop the state from compelling the payment of back taxes, omitted because of the use of such wrong forms.</p>

<p>INVALID SECTIONS IN THE NEW MUNICIPAL CODE.</p> <p>Constitutional Law — Statutes of Limitation — Grants or Franchises — Re-grants of — Retroactive Legislation — Nuisance — Sections 31 and 137, Municipal Code -Act of April 22, 1896 — Sections 1777 and 1778, R. S.— Quo Warranto — Injunction.-</p> <p>1. The latter part of Section 31 of the Municipal Code, passed October 22, 1902, reads as follows :</p> <p>“All unexpired grants of rights or franchises heretofore made by any municipality, in accordance with the provisions of any statute or act of the General Assembly existing at the time when they were made, and which have been accepted, and where money has been expended in good faith on account thereof, are hereby regranted for such unexpired portions of the respective periods of the original grants, in accordance with the terms and conditions of the same; any law or part of law to the contrary notwithstanding.”</p> <p>If the proper construction of this part of Section 31 is that it is an attempt on the part of the General Assembly to validate the grant made to the defendant company under the unconstitutional act of April 22, 1896, it is unconstitutional and void, because in violation of Article II, Section 26, of the Constitution of Ohio, which declares that “all laws of a general nature shall have a uniform operation throughout the state” ; and Article XIII, Section. 1, of the same Constitution, which declares that “the General Assembly shall pass no special act conferring corporate power. ”</p> <p>2. The part of Section 31 previously referred to can not be upheld as falling within the proviso of Article II, Section 28, of the Constitution, which declares that—</p> <p>“The General Assembly shall havé no power to pass retroactive laws or laws impairing the obligation of contracts, but may by general laws authorize courts to carry into effect upon such terms as shall be just and equitable the manifest intention of the parties and officers, by curing omissions, defects and errors in instruments and proceedings arising out of their want of conformity with the laws of this state. ”</p> <p>3. In Section 137 of the Municipal Code, passed October 22, 1902, it is declared that—</p> <p>“No action, as provided in Sections 1777 and 1778, to enjoin the performance of a contract or the payment of any bonds heretofore or hereafter entered into or issued by a municipal corporation, shall be brought or maintained unless such action is commenced within one year from the date of such contract or bonds, and this provision shall apply to pending cases.”</p> <p>If by the proper construction of this section it is applicable to the present case, it is to that extent invalid.</p> <p>4. The principle is well settled that while the Legislature may shorten the time within which suits to enforce existing causes of action may be commenced, yet a reasonable time must be given by the new law for the commencement of the suit before the bar takes effect; and a fortiori is it beyond the power of the Legislature to shorten such period of time, make the law retroactive in its operation, and order the dismissal of cases pending at the time the law is passed.</p> <p>6. The constitutionality of an act depends upon its operation and effect, and not upon the form it may be made to assume; and if the effect of Section 137, as above set forth, is to dismiss the present case, then so far as the City of Cincinnati and the taxpayers therein are concerned, the section makes valid a grant made to the defendant under an unconstitutional law, as neither the city nor the taxpayers therein have any right to be heard in court to question its validity. In such event, while the section in form would be a statute of limitation, its effect would be to make a grant, as is done in Section 31.</p> <p>6. The unlawful laying of tracks and the operation on the same in the streets of a city is a public nuisance, and no statute of limitation runs against a public nuisance. *</p> <p>7. The rights conferred by Section 1777 and Section 1778 are radically different from the rights conferred by Section 6762 and Section 6763, relating to proceedings in quo warranto.</p>

<p>THE TAKING OF DEPOSITIONS BEFORE A NOTARY.</p> <p>Demand for Fees — Notice to Witness to Appear — Witness an Opposite Party — Character of Proceedings in Contempt — Verification of Return of Notice.</p> <p>1. A notice to take depositions need not state the name of an opposite party as a witness, and it does not lie in the mouth of a witness, although he be a party, to say that the notice is defective.</p> <p>2. A demand for witness fees must be made at the time the subpoena is served, and if not paid the one served need not appear. If the witness is a party, quaere.</p> <p>3. Actions in contempt are quasi criminal, and proceedings thereunder must be strictly construed.</p> <p>4. The return of a subpoena must be verified, when served by one not an officer.</p> <p>5. A return can not be corrected after proceedings in contempt are had and an order of commitment has been made.</p> <p>6. The practice of taking depositions before notaries in the employ of counsel in the case in which the testimony is to be used should be discouraged.</p>

<p>THE THREE DISTINCT METHODS OF LEVYING A STREET ASSESSMENT.</p> <p>A street assessment may be made in any one of the three ways provided by statute, but these methods are distinct, and when one of them has been adopted it should be substantially followed to the end.</p>

<p>USAGE AS APPLIED TO A WRITTEN CONTRACT.</p> <p>Proof of a usage or custom, which would contradict the terms of a written contract upon which suit is based, is inadmissible.</p>

<p>MODE OF CONTESTING AN ELECTION UNDER. THE BEAL LAW — ANNEXATION PROCEEDINGS.</p> <p>The Beal Law — Mode of Contesting Election Under — Annexation of Part of Village to a City — Regularity of Proceedings for — Section 1615 — Apportionmen of Existing Indebtedness— When Annexation Proceedings are Perfected — Ratification of.</p> <p>1. Whether the mode of contesting the election in a municipal corporation in Ohio, under the Beal Daw, so-called (95 Ohio Daws, 87), is so indefinite, uncertain and ambiguous as to render Section 436D-20Í of said act invalid arid void — quaere?</p> <p>2. Section 1615 of the Revised Statutes of Ohio, providing for the annexation of part of the territory of a village to a city, where the same adjoin each other, as to the regularity and validity of the proceedings before the county commissioners, must be construed together with the provisions of the statute, Div. 2, Tit. XII, prescribing the manner of proceeding on applications to annex adjacent, unincorporated territory to villages and cities. The provisions of the statute prescribing the mode of altering the boundaries of municipalities by the annexation of territory, by reference and analogy, control the action of the county commissioners in exercising authority-under Section 1615, and these several statutory provisions must be construed together.</p> <p>3. By the proper construction-and meaning of Section 1615, the action and proceedings of the county commissioners in ascertaining and apportioning the amount of the existing indebtedness of the village, in the manner prescribed in the last clause of said section, which is to be assumed and paid by the city, is an essential and constituent part of the proceedings for annexation.</p> <p>4. After such apportionment is made, and the transcript of the proceedings and maps before the county commissioners are filed with the city clerh of the city to which such territory is sought to be annexed, the detachment of the territory from the village, and its legal annexation to the city, is not perfected and complete until the city, by the corporate action of its council, by ordinance or resolution, has accepted such territory, and assumed the indebtedness of the village so apportioned, together with all other municipal burdens and obligations with which the city is charged, with respect to its original territory.</p> <p>5. The original application and action of the council of the city for such annexation, can not be construed as a sufficient ratification and assumption of such burden on the part of the city.</p>

<p>CITY DECENNIAL BOARDS OF REVISION UNDER THE NEW ACTS ARE LEGAL.</p> <p>The City Decennial Board of Revision, created in pursuance of Section 2814a of the Hendley Law (94 O. L., 246), and of Section 2814aa (95 O L., 1), is not an illegal body, contravening the Constitution of Ohio, and its acts are, therefore, legal.</p>

<p>TELEPHONE POLES IN THE CURB LINE.</p> <p>Mandatory Injunction — Abutting Owner — His Rights in the Street — Damages — Telephone Poles a New Servitude.</p> <p>A telephone company has no right in Ohio to place its poles in the sidewalk or the curb line of a street without first obtaining the consent of the abutting property owner, or payment to him of the amount of damages which will be caused to his property by the erection of such poles.</p>

<p>AGREEMENTS OBJECTIONABLE TO LAW NOT ENFORCEABLE REGARDLESS OF AGENCY.</p> <p>Patties in Pari Delicto — Fraudulent Contract — Public Policy with Reference Thereto — Agency.</p> <p>An agreement to impose a fraud upon the public is not enforceable as between the parties, and this is true regardless of a question of agency, revokable or irrevokable.</p>

<p>TABULAR MATTER IN LEGAL ADVERTISING.</p> <p>Publication of County Commissioners’ Annual Reports — Tabular or Rule Worlc in Legal Advertising — Section 4366 Construed.</p> <p>1. Annual reports of county commissioners are “advertisements” within the meaning of Section 4366 Revised Statutes.</p> <p>2. The test as to whether a publisher may charge fifty per cent. additional for matter contained in a legal advertisement is, whether this matter is set in tabular form, and not whether it falls within the changeable classification of such matter made by printers’ unions for the purpose of fixing rates for composition.</p> <p>3. Matter set up in the form of a táble, with figures or words one under the other, so as to exhibit to the eye the information to be conveyed, and which contains two or more justifications, is tabular matter.</p>

<p>TITLE OF THE CITY OF CINCINNATI TO EGGLESTON AVENUE.</p> <p>Canal Land Conveyed for Street Purposes Exclusively— Vacation of Part of —Improvement of Remainder and Assessment of Cost.</p> <p>1. The city of Cincinnati having acquired from the state the right to use a certain strip of land belonging to the canal for street purposes, the subsequent abandonment by the city of a part of this strip does not work an abandonment of the remainder of the strip, now known as Eggleston avenue.</p> <p>2. The fact that the city has permitted a railroad company to lay its tracks thereon is not inconsistent with the right of the city to use the unabandoned portion of the strip for highway, street and sewerage purposes.</p> <p>3. The city still possessing this right as to the portion from Broadway to Pearl street, it has power to improve the street, and to assess the cost of the improvement upon the abutting property.</p>

<p>A WIDOW CAN NOT ALIENATE HER. FIRST YEAR’S ALLOWANCE.</p> <p>First Year’s Allowance a Debt of the Estate — Mortgage by Widow Does not Cover — Distribution—Estoppel.</p> <p>1. The law making it the duty of appraisers of the estate of a decedent to make an allowance of provisional alimony for his widow, owes its existence to a humane consideration for the distress and helplessness of widows newly bereaved, and has the same foundation as the homestead and exemption law.</p> <p>%. This provisional alimony is to be allowed under all circumstances, and should be treated as a debt of the estate.</p> <p>3. A mortgage executed by a widow upon the real estate of her husband, after his death, while a lien upon her dower interest, does not become a lien upon her first year’s allowance.</p> <p>4 Nor can the widow by any act of her own prevent the appraisers from setting off to her provisional alimony, or the administrator from paying it as a preferred debt out of the funds in his hands.</p> <p>5. Nor does the doctrine of estoppel apply to her as against funds in the hands .of the administrator.</p> <p>6. But lands, upon which the widow gave a mortgage after her husband’s death, having been sold to pay debts, the distribution of the fund arising therefrom must be as to the widow in accordance with the provisions of Section 6090, providing in what order administrators shall pay debts, and not under the provisions of Section 6165, providing how a fund from the sale of land shall be applied.</p>

<p>MOTION FOR. REHEARING DENIED*</p>

<p>CONSTRUCTION OF CONTRACT GRANTING USE OF GROUND FOR UNIVERSITY PURPOSES.</p> <p>Physical Culture a University Requirement — Proper Use of University Grounds• — Construction of Agreement Granting Such Use.</p> <p>1. A contract granting to its university tlie necessary ground for university purposes by the city authorities, includes physical culture as a necessary university purpose.</p> <p>2. The construction of such an agreement must be effective to carry out to its fullest extent the intention of the contracting parties, in order to attain the object had in view by them.</p> <p>3. The rule governing such construction is that the words used are to be construed, not according to their mere ordinary general meaning, but according to their ordinary meaning as applied to the subject matter with regard to which they are used; and equally the construction ought to be with reference to the object to be accomplished by the contracting parties, and to keep in view all conditions existing.</p>

<p>AN INSTRUCTION AS TO AN ABSTRACT PROPOSITION OF LAW NOT IN THE CASE IS NOT PREJUDICIAL.</p>

<p>A VOID DECREE OF DIVORCE MAY BE OPENED AFTER REMARRIAGE.</p> <p>Action for Divorce Deals with Status — Domicile Fixes Status, and is Regulated by the Sovereign Power — "Want of Domicile Renders Decree Void — Void Decree May Be Opened After Remarriage.</p> <p>1. Marriage is a contract ending in legal status, and divorce a vinculo is the legal dissolution of this status. An action for divorce, so far as it deals with this status, is a proceeding in rem; and it ig essential to the validity of a decree in such action that this status, which is the subject of the action, shall be.within the jurisdiction of the court that entertains the action.</p> <p>2. Each sovereign state has exclusive control of the marriage status of persons domiciled within its confines, and may fix the length of domicile of one or both parties that shall give its courts jurisdiction of this status; and in Ohio, this jurisdictional requisite is, that “the plaintiff shall have been a resident of the state at least one year before filing the petition.”</p> <p>3. Where the plaintiff in a divorce action has not such domicile, the court can not have jurisdiction of the subject of the action — the res that is to be affected by the decree, the proceeding in coram non judice, and a decree rendered therein is void.</p> <p>4. Where both parties are domiciled in another state or country, and the husband, by fraud and perjury as to his domicile, procures’a decree of divorce in Ohio, upon constructive service, and without the wife’s knowledge, the court rendering the decree may enter- ■ tain her motion to open the decree and let her in to defend, under the provisions of R. S., 6355, even though the husband has since remarried. Parish v. Parish, 9 O. S., 534, criticized and distinguished.</p>

<p>TERM OF FRANCHISE AND OWNERSHIP OF MATERIAL USED BY A PLANK ROAD COMPANY.</p> <p>Plank Roads — When Franchise to Construct Begins to Run — Title to Plank after Franchise Expires.</p> <p>1. The franchise of a toll road company, -which has been granted a permit by the county commissioners, under Section 3476, to construct a plank road in a certain highway, and to collect toll thereon for a specified term of years, dates from the issuance of the permit by the commissioners, and not from the subsequent action of that board granting the right to collect toll, which action is based, under Section 3478, upon the report of a committee that they have examined the road and found it finished.</p> <p>2. Plank placed in a road under such a franchise are dedicated to public use, and cannot be removed by the company after the expiration of its franchise.</p>

<p>PURCHASE OF DEBENTURES AS CONSIDERATION FOR BEING GRANTED A MORTGAGE LOAN.</p> <p>Foreclosure of. Mortgage — Transaction in Obtaining Loan Against Public Policy — Debentures of the Nature of a Scheme of Chance.</p> <p>Where a loan of money was evidenced by a note with a real estate mortgage given to secure repayment, and as part of the consideration of the tranaction the mortgagor, by a contemporaneous written contract, agreed to purchase shares or debentures in the lending company, which debentures partook of the nature of scheme of chance or lottery, the lender can not maintain a suit to foreclose such mortgage, nor can the mortgagor have affirmative relief by cancellation or in a court of equity, as the transaction is against public policy and void, and the court will refuse its aid to either party.</p>

<p>ANCESTRAL PROPERTY WHICH SUFFERS TRANSMUTATION LOSES ITS ANCESTRAL CHARACTER.</p> <p>Descent — Ancestral Property — Transmutations from Realty to Personalty and Back to Realty.</p> <p>Property inherited by a minor, and which under order of court suffers in the hands of the guardian several transmutations from realty to personalty and back to realty, and at the minor’s death is in the form of realty, does not retain its original character of ancestral property, and must be treated as an acquisition of the minor.</p>

<p>Heard on demurrer.</p>

<p>DOWER TO A WIDOW PARTAKES IN INTEREST EARNED.</p> <p>Dower to tbe widow of a decedent partakes in interest earned by funds belonging to tbe estate while in tbe bands of tbe executor.</p>

<p>Heard on demurrer to petition.</p>

<p>PAID UP CERTIFICATE HOLDER IN BUILDING ASSOCIATION SUBJECT TO ALL THE LIABILITIES OF MEMBERSHIP.</p> <p>Building Associations — Act of 1886 — Paid up Stock — Liability of One Holding.</p> <p>The acceptance of a certificate of paid up stock in a building association, and -the drawing of dividends thereon for a considerable period, until insolvency has intervened and a receiver has been appointed to wind up the affairs of the association, constitutes the holder of such certificate a member of the association and subject to all the liabilities attaching to membership; and this is true notwithstanding the association may have been without power to issue such a certificate.</p>

<p>EQUITABLE TITLE IN FORCIBLE ENTRY AND DETAINER PROCEEDINGS.</p> <p>Justice of the Peace — Review of Adjudication by — Forcible Entry and Detainer — Equitable Defense — Jurisdiction.</p> <p>In a forcible entry and detainer, or forcible detainer proceeding, an equitable title can not be availed of defensively, unless it is discernible from the averments of the complaint, or from the facts shown by the complainant at the trial.</p>

<p>Heard on. defendant’s motion for security for costs.</p>

<p>EVIDENCE NECESSARY TO ESTABLISH MALPRACTICE.</p> <p>Malpractice — Nature of Proof Necessary to Establish — Negligence or Unskillfulness can not be Assumed — Damages.</p> <p>In an action for damages for malpractice, there must be proof by the testimony of experts of some specific act of unskillfulness or negligence to entitle the plaintiff to recover. Testimony of a character which might permit the jury to assume that there was negligence or unskillfulness is not a sufficient basis for recovery.</p>

<p>ALLOWANCE OF COUNSEL FEES WHERE TRUST FUND HAS BEEN BENEFITED.</p> <p>Counsel Fees — Unauthorized Service for Administrator — Trust Fund Benefited — Equitable Doctrine Applied.</p> <p>A reasonable allowance of fees^will be made on equitable principles to counsel who, although not employed by the administrator or trustee, have rendered services which inured for the benefit of the trust.</p>

<p>THE STATUTE OF LIMITATIONS APPLYING TO SUITS FOR. REDUCTION OF STREET ASSESSMENTS.</p> <p>Street Assessments — Acts under which the Improvement was Made Once Held Constitutional — Estoppel Against Complaint that the Work was not TJp to the Specifications — The Bar Against Complaint that the Assessment Exceeded the Benefits.</p> <p>1. Relief will, not be granted against an assessment made under a law which was at the time declared constitutional by the Supreme Court, and under which a municipality sold its bonds and vested rights have accrued; and especially is this true since the decision in Shoemaker v. Cincinnati.*</p> <p>2. Complaint that the improvement was not made in accordance with the specifications will not be heard, where the entering of suit is delayed for a long period — in this case nearly ten years.</p> <p>3. The clause of Section 4982 which limits to four years the time for bringing “an action for an injury to the rights of the plaintiff not arising on contract and not hereinbefore enumerated” applies to an action for reduction of a street assessment for excess of benefits.</p>

<p>ACTIONS TO ENJOIN THE ISSUE OF MUNICIPAL BONDS.</p> <p>Bar of a Previous Action — Residence of Plaintiff at Time of Previous Action — Suit Should be Brought on Behalf of the Corporation.</p> <p>1. The fact that the plaintiff was not a resident of the city at the time of the determination of a previous suit brought by a tax-payer to enjoin the issue of certain municipal bonds, does not remove from a similar action the bar of the previous determination.</p> <p>2. A tax-payer suing in his individual capacity can not maintain a suit to enjoin the issue of bonds by a municipality for the building and equipping of an electric light plant; such suit must be brought on behalf of the corporation.</p>

<p>NECESSARY PARTIES IN SUIT FOR SALE OF LAND TO PAY DEBTS.</p> <p>Section 6142 Construed, — Sale of Real Estate to Pay Debts of Decedent— Parties — Lienholders.</p> <p>1. Statutes regulating the sale of real estate of a decedent by his executor or administrator for the payment of his debts should be strictly construed.</p> <p>2. A judgment creditor of an heir or devisee is not a necessary party to a suit to pay the debts of the deceased ancestor or devisor.- Protection to his rights is found in Section 6171.</p>

<p>A COUNTY AUDITOR. CAN NOT GRANT REFUNDERS FOR TAXES PAID UNDER INACCURACIES IN DESCRIPTION.</p> <p>Taxes Erroneously Paid — Title May Be Quieted Against Holder of Certificate For — Tender Need Not Be Made — Refunders For Can Not Be Granted.</p> <p>1. An action to quiet title may be maintained by an owner against tbe bolder of a certificate for taxes erroneously paid, altbougb sucb interest bas not ripened into an absolute title by a tax deed.</p> <p>2. A court of equity will grant sucb relief without requiring tbe petitioner to tender the amount of taxes due before suit is brought, especially where tbe sum properly due is uncertain and sucb tender could only affect tbe costs.</p> <p>3. A county auditor can not issue refunders under Sections 1038 and 2800 for mere inaccuracies in description, such as a mistake in tbe initial of tbe name of tbe «owner of tbe subdivision, upon tbe theory that these amount to “erroneous taxes,” or taxes “erroneously collected.”</p>

<p>ACCIDENT INSURANCE POLICIES INCONTESTABLE EXCEPT FOR FRAUD AFTER THREE PAYMENTS.</p> <p>Insurance — Accident Insurance a Contract for Life Insurance, Limited to Specified Risks — Section 3626, B. S., Construed.</p> <p>Section 3626, Revised Statutes, providing that all policies issued on “the life of any person in this state” are incontestable, except for fraud, after three annual premiums have been received, is applicable alike to life insurance and to accident insurance companies.</p>

<p>CROSSINGS OF INTERURBAN AND STEAM RAILWAYS.</p> <p>Bailway Grossing Statute Construed — Glassification of Interurban Bail-ways.</p> <p>The act of May 10, 1902 (95 O. D., 530), authorizing the court of common pleas, or a judge thereof in vacation, to fix the mode of crossing, where it becomes necessary for the tracks of one railroad company to cross the tracks of another railroad company, does not apply to interurban railway companies, organized under the street railway act.</p>

<p>JUDGMENT BY CONFESSION BY A MUNICIPALITY.</p> <p>Judgment by Confession — On the Pleadings — On Statutory Grounds— Personal Presence of City’s Legal Adviser Necessary — Entries Should Be Filed, When.</p> <p>1. A rule of court providing that “when an entry is approved by counsel it shall be endorsed and furnished to the clerk,” requires that the entry be “filed,” and that it be filed “when” approved An entry, therefore, granting leave to the plaintiff to amend his petition, which was not filed for more than a year after being endorsed by the solicitor for the city of Columbus, and not until a new solicitor had assumed the office, who had no knowledge that such entry was to be filed nunc pro tunc, will upon his motion be set aside, if substantial rights of the city so require.</p> <p>2. A judgment, confessed by a city council, which is for an amount greater than that prayed for in the original petition, and less than that prayed for in an amended petition to which the city has not answered, can not be entered on the pleadings; and unless the solicitor of such municipality appeared in open court and consented to the entering of the judgment, it did not acquire validity on statutory grounds.</p>

<p>ASSESSMENT FOR LATERAL SEWERS AGAINST PROPERTY PROVIDED WITH LOCAL DRAINAGE.</p> <p>Sewers, Main and Lateral — Assessment for Construction of — Local Drainage.</p> <p>The provision of Section 2380, exempting from assessment for the construction of sewers, lots or lands which are provided with local drainage, is applicable to lateral or branch as well as to main sewers.</p>

<p>RAILWAY COMPANY NOT BOUND BY ERRONEOUS INFORMATION GIVEN BY ITS AGENT AS TO RATES.</p> <p>Freight Rates — Published Schedules Therefor — Carrier Not Bound to Give Further Information — Not Bound by Erroneous Information Given by Its Agent — Must Collect the Schedule Rate.</p> <p>Where a common carrier has published a schedule of freight charges in accordance with the Interstate Commerce Act, it is not bound to give further information regarding rates, and if one of its agents does give information, it is a voluntary act, and no contract to ship thereby can be claimed, and if the information so given is erroneous it is the duty of the carrier to correct the error and charge the rate stipulated in its schedules.</p>

<p>COVENANT OF LEASE OF PREMISES DESTROYED BY FIRE.</p> <p>Lease — Covenant to Pay Bent Unless Premises Are Destroyed by Fire —Surrender of Premises — Section 4113 Construed.</p> <p>1. A covenant in a lease to pay rent “unless the premises are rendered untenable by fire” is sufficient to preclude a rcovery in an action for rent, based on such covenant, upon proof of such an untenable condition, without surrendering possession as required in Section 4113.</p> <p>2. Under said section compelling the lessee to “thereupon surrender possession,” the lessee is entitled to a reasonable time to remove from the premises.</p>

<p>UNLAWFUL APPROPRIATION OF MORE THAN A SIXTY.FOOT STRIP FOR ROAD PURPOSES.</p> <p>Roads — Appropriation of Land for — More than Sixty Feet in Width Taken — Injunction—Reassessment of Damages — Reapportionment of Expenses.</p> <p>1. An unlawful appropriation of land for road purposes may be prevented by injunction, but the building of the proposed road can not be enjoined as a whole unless it is necessary to go to that extent in order to give the plaintiff the relief to which he is entitled.</p> <p>2. Where the maximum width of public roads is limited by statute to sixty feet, and road commissioners have appropriated more than that width, through the lands of the plaintiff, the court will set aside the assessment of damages awarded to the plaintiff, and order that if the improvement be proceeded with that the commissioners cause a new view and assessment of damages to be awarded to him, confining the width of the strip to sixty feet, and should this render a reapportionment of the expense of the improvement necessary that such reapportionment be made.</p>

<p>PAYMENT BY A BUILDING ASSOCIATION TO A WITHDRAWING DEPOSITOR OUT OF ORDER.</p> <p>Building Associations — Satisfying Applications for Withdrawal Out of Order Not Ultra Vires, When — Fraud or Knowledge on Applicant’s Fart.</p> <p>P., a shareholder in the defendant building association, made application for withdrawal, and notwithstanding there were other applications ahead of hers, and that the association was without funds to meet these applications, a warrant was issued for the full amount due her, and a loan was procured from her of a sum equal to the amount of the warrant, the association executing its note for the loan, and cancelling the warrant.</p> <p>Held: That the action of the association in thus satisfying the claim of P. in advance of unsatisfied prior applications for withdrawal, was not ultra vires for the reason that it was in violation of a by-law only, and not of the fundamental powers of the association; and that in the absence of proof of knowledge on the part of P., or her agent, that she was being paid out of order, she was not chargeable with constructive knowledge that such was the fact.</p>

<p>INTEREST AFTER. MATURITY AND AFTER. JUDGMENT.</p> <p>Where a note bears interest at the rate of 4 per cent., that rate only will be allowed after maturity and after judgment.</p>

<p>CASES WHICH MAY BE TRANSFERRED FROM THE COURT OF INSOLVENCY TO THE PROBATE COURT.</p> <p>Jurisdiction — Of the Probate Court — Of the Court of Insolvency — Exclusive Jurisdiction of the Probate Court — Transfer of Cases.</p> <p>1. Sections 9 and 10 of the act of March 11, 1896 (92 O. L., 475), relating to the transfer of cases from the probate court to the court of insolvency, involve a principle of classification of the cases so to be transferred, but not a difference in the kind of cases; and the distinguishing difference in the cases referred to in the two sections is in cases pending at the time of the passage of the act, which the probate judge was empowered to transfer at will, and cases subsequently pending in that court, which can be transferred only at such times as in the opinion of the judge the business of the court requires.</p> <p>2. An interpretation of the words of Section 10 "any other case or cases now or hereafter pending,” which would allow the transfer to the court of insolvency of a motion to remove a guardian, or the hearing and determination of a petition to sell the land of the ward, would extend the jurisdiction of the court of insolvency to every matter within the jurisdiction of the- probate court, and would be in conflict with the preceding section, and manifestly wrong.</p>

<p>THE LICENSING OF VEHICLES UNDER. THE NEW MUNICIPAL CODE.</p> <p>Licensing of Vehicles — Ms a Regulation — Raising Revenue An Incident —The Fees Prescribed — Burden Imposed must be Equal — Street and Interurban Gars Exempt from such a Regulation, When.</p> <p>1. Paragraph 9, Section 7, of the Municipal Code of 1902 empowers council to license vehicles to use the streets for the purpose of regulation, and not for the purpose of raising revenue further than is incident to regulation.</p> <p>2. But in the absence of evidence showing that the fees prescribed are unreasonable, a court will not hold an ordinance providing for the licensing of vehicles invalid on the ground that it raises a tax for revenue.</p> <p>3. Burdens imposed by such a measure must he equal, and discrimination in favor of a class of persons or against non-residents is unlawful.</p> <p>4. Such licensing measures are largely justified on the ground that the employment of vehicles on the public ways casts a considerable expense upon the municipality for keeping such ways in repair; and where by grants from a municipality to street car and interurban companies it has been exacted that such companies, as a part of the burden of their franchises, repair, clean and sprinkle that portion of the streets lying between their outer rails and one foot beyond, another burden for the same thing can not he imposed under the guise of a vehicle license.</p>

<p>CONTRACTS OF CONDITIONAL SALE.</p> <p>Conditional Sales — Vendor Can Not Evade Section 4155-2-3 — By Foreclosure of Vendor's Lien — For a Vendor Can Not Have a Lien Upon His Own Property.</p> <p>1. A vendor of personal property, who chooses as his security a contract of conditional sale, can not evade the provisions of Sec. 4155-2-3, R. S., providing for a tender, returning fifty per cent, of the paid purchase price before taking possession, by applying to a court of equity for an accounting and foreclosure of a vendor’s lien, as his common law or equitable lien, if such he had, is thereby merged in such contract.</p> <p>2. A contract of conditional sale presupposes that the title to the goods remains iu the vendor, and a vendor under such circumstances can have no lien upon his own property. The conditions attached to such a sale by the statute are as much a part of the contract as if specifically embodied therein, and a court of equity has no power to change such statutory rights, but in that respect equity follows the law.</p>

<p>ATTORNEY’S FEES NOT RECOVERABLE IN CONDEMNATION PROCEEDINGS ABANDONED AFTER. VERDICT.</p> <p>Constitutional Law — Condemnation—Proceedings Abandoned After Verdict — Fees for Attorney of the Land Owner — Jurisdiction of Probate Court to Render Judgment For — Sections 6434 and 6435 Unconstitutional — Denial of Trial by Jury and Discrimination Against Corporations — True Test of the Value of an Attorney’s Services.</p> <p>1. The remedy is not exclusive which is named in Section 6434, providing that where a suit in condemnation is abandoned after verdict, the corporation seeking to condemn the land must pay to the attorney of the land owner a reasonable fee for his services in that behalf; but, notwithstanding the express provision of this statute to the contrary, the ordinary proceedings provided by the general statute would apply to an action to recover such a fee.</p> <p>2. The fact that expenses and attorneys’ fees were made necessary and incurred while in defense of a proceeding which the probate court had a right to hear, does not draw within the jurisdiction of that court, which has no power to impannel a jury to try issues of fact, an action for the recovery of such expenses and fees.</p> <p>3. Such an action is of the kind which, since juries were first known, has entitled a party to a jury trial, and the denial of this right, guaranteed alike by the Bill of Rights and the Constitution of the United States and of the state of Ohio, renders this statute invalid.</p> <p>4. Furthermore, the provision found in the succeeding section (6435) contains a discrimination between suitors, and deprives the corporation of the equal protection of the law, and this section is therefore also invalid.</p> <p>5. Granting that recovery could be had for such services, the recovery would be limited to services rendered after the proceedings in condemnation were begun; the-test as to the amount to he paid would he the value of the services rendered, without reference to the result of the litigation, or the ability of the party to pay; and $1,500 for three days before a jury, the arguing of a motion and demurrer, and the doing of the ordinary office work connected with a condemnation proceeding, would be an unreasonably large fee.</p>

<p>APPOINTMENT OF ADMINISTRATOR FOR. DECEASED PARTNER AFTER EXPIRATION OF THIRTY DAYS.</p> <p>Administrator — Appointment of — Rights of Next of Kin Within Thirty Days — Of Surviving Partner After Thirty Days.</p> <p>When the next of kin have failed or neglected within thirty days to make application for appointment of an administrator, they may be regarded as having waived their exclusive right to the appointment and the court may appoint without notice to them.</p>

<p>CONSENT OF ABUTTING OWNER. NECESSARY TO LAYING OF GAS PIPE UNDER SIDEWALK.</p> <p>Street — Rights of an Abutter — As Against a Gas Company Duly Authorized to Lay Pipes Under the Sidewalk — A New Servitude Imposed — And Consent of Abutter Necessary — Presumption as to Title of Abutter on the Old National Road.</p> <p>1. The principle announced in Callen v. Edison Electric Light Co., 66 O. S., 166, that “the placing by a private lighting company of poles in the curb of the street, and the stringing thereon of electric cables and wires for the purpose of furnishing light and energy to private takers, is a diversion of the street from the purpose to which it was dedicated, and a taking of the property of the abutting owner within the meaning of Section 19 of the Bill of Rights,” applies with equal force to the laying of a pipe longitudinally with and under the sidewalk for the conveyance of natural gas to private consumers; and notwithstanding the laying of such pipe is under and by virtue of a city ordinance, the company can not enjoin interference therewith by an abutting property owner, if the putting-in of the pipe will injure him to an appreciable extent.</p> <p>2. Such an injury would clearly result from the tearing up of the sidewalk, interference with ingress and egress, the necessity of getting at the pipe for repairs, the danger of gas escaping into cellars, and interference with use by the lot owner of the space under the sidewalk as a cellar area.</p> <p>3. The laying of such a pipe can not, therefore, be proceeded with until compensation has been made to the property owner, or his consent has been secured.</p> <p>4. Where the sidewalk under which it is proposed to lay the pipe is in a part of what was once the old National road, the burden is upon the gas company to establish that no right remains in the abutter, but that the land was conveyed to the general government for road purposes, not by a qualified or determinable fee, but in fee absolute. In the absence of such proof the presumption is that the abutter owns to the center of the street.</p>

<p>CROSSING OF A STEAM RAILROAD BY AN INTERURBAN LINE.</p> <p>Railway Crossings — Injunction Sought by a Steam against an Interurban Road — Dangerous Character of Crossing — Interference with Franchise of Existing Road — Rights of Interurban after Appropriation Proceedings — Jurisdiction—In Law and in Equity.</p> <p>After condemnation proceedings in the probate court, instituted by an interurban street railway company to appropriate a crossing of the right of way and tracks of a steam railroad, are terminated in favor of the appropriation and the condemnation money and costs have heen paid into court, such railroad company can not maintain an injunction against the construction of the crossing hy such interurban company on the ground of the alleged dangerous character of the crossing, or of interference with the franchise of the plaintiff company.</p>

<p>QUESTIONS RELATING TO CONDEMNATION FOR. A RAILROAD.</p> <p>Condemnation — Both Termini of the Railway Within the Same Municipality — Effect of Lease of Line Before Building — When Necessity for Appropriation Arises — Failure to Agree — School Property not Exempt — Appropriation.</p> <p>1 The provisions of Section 3270 as te the construction of a railroad between “places,” permits of the construction of a road having both of its termini in the same municipality.</p> <p>2. The leasing of its road is not evidence of the abandonment by tbe company of the purposes for which it was created, and in no way impairs its right to exercise the power of eminent domain.</p> <p>.3. Where the location of its line is not unreasonable, the necessity for the appropriation of a particular piece of property arises upon the failure of the parties to agree upon the price to he paid for it.</p> <p>■4. But where property is owned by several persons jointly, there should be an effort made to agree with each owner, unless his residence is beyond the state or is unknown.</p> <p>5. Property in which a Catholic school is conducted, hut which is open to all children, is subjected to condemnation.</p>

<p>AGREEMENT TO SUBMIT CONTROVERSY TO ARBITRATION.</p> <p>Arbitration — At Common Law — Revocable at any Time Before Award —Statutory Awards Under Section 5611 — Award in Excess of Agreement not Enforceable — Can Not be Dissected.</p> <p>1. A common law award, made in excess of or in variance with the powers conferred by the agreement of arbitration, must he set aside, and Section 5611 incorporates the same provision into star tutory awards.</p> <p>2. Nor can an award thus made he dissected, and the valid part enforced and the part in excess set aside.</p>

<p>JURISDICTION OF PROBATE COURT AND OF MAYOR. UNDER. THE BEAL LAW.</p> <p>Beal Law- — “Merits of the Proceedings’’ — As to Which the Probate Court Has Final Jurisdiction — Probate Court Without Power to Declare Act Unconstitutional — Penalties Not Excessive — Trial of the Accused — Mayor May Try or Bind Over — Accused Not Entitled to Jury.</p> <p>1. The “merits of the proceedings” with reference to an election held under the Beal Municipal Local Option Law, which the probate court is given final jurisdiction to hear and determine, includes all matters touching or in any way relating to and affecting the question, whether or not the election has been held in conformity with the statute authorizing such an election, and prescribing conditions under which it may be held, the manner of ordering, giving of notice, conducting, etc.</p> <p>2. Such grant of authority does not include power on the part of the probate judge to hear and determine whether the law itself is constitutional or otherwise; and where a probate judge goes further, and makes a finding that the act itself is void on constitutional grounds, his action is coram non judice as to that finding, and the case stands as it would have stood had the finding been limited to matters as to which the probate judge had jurisdiction.</p> <p>3. Error does not lie to the action of a mayor who refused to carry into effect such a judgment declaring the act unconstitutional; nor was there warrant, previous to the recent decision of the Supreme Court, for the mayor himself declaring the act unconstitutional.</p> <p>4. The penalties provided under the Beal Law do not shock the common sense of justice and humanity nor fall with the constitutional inhibition as excessive.</p> <p>5. One accused of a misdemeanor has no right to insist on trial before any particular court, and it is within the jurisdiction of a mayor to try one accused under the Beal Law, or bind him over, and it is not error to overrule an application for trial before a jury.</p>

<p>INCORPORATED COMPANY LIABLE TO INDICTMENT FOR SELLING INTOXICATING LIQUORS.</p> <p>Corporations — Liable to Indictment for What Offenses — Requisite Intention of — Punishable for Belling Intoxicating Liquors.</p> <p>An incorporated company is liable to indictment in the state of Ohio for those offenses where the only requisite intention is an intention to do the act which the statute prohibits.</p>

<p>RESOLUTION OF COUNCIL NEED NOT BE READ ON DIFFERENT DAYS.</p> <p>The three readings of the resolution of council prohibiting the sale or the keeping of a place where intoxicating liquors are sold, under the Beal Law, need not be on three different days.</p>

<p>TITLE TO RAILROAD EASEMENT TILLED BY ADJOINING OWNER FOR MORE THAN TWENTY-ONE YEARS.</p> <p>Title — By Adverse Possession — Of a Railroad Easement — What Constitutes Notice of Claim of Title — Naked Possession — Tilling of the Soil — Temporary Improvements — Possession, Whether Permissive or Hostile — Wherl the Statute Begins to Run.</p> <p>1. The holding in Bay v. Railroad, 41 O. S., 392, relating to the extent of a railroad right of way, can not operate to divest an innocent purchaser of title to land conveyed by metes and bounds or other specific description, when the conveyance does not infringe on the railroad company’s then apparent necessities, and its title is based upon a release which was not filed for record until forty years after the strip in question was conveyed to plaintiff’s grantor.</p> <p>2. Possession for more than twenty-one years of a strip of ground belonging to a railroad easement, does not become hostile and adverse by the raising of vegetables or the gathering of apples thereon or the occasional repair of the fence enclosing the strip, where it appears that the original construction of the fence and use of the ground was permissive on the part of the company, until such time as its easement should he needed for railroad purposes.</p>

<p>UNFAIR. TRADE AND COMPETITION.</p> <p>Trade-Marks — Unfair Competition — Methods Calculated to Deceive— Generic and Other Words in Trade-Mark — Registration of TradeMark.</p> <p>1. It is manifestly unfair competition to adopt a name almost identical with that of an established competitor, and manufacture and sell the same line of goods, in the same-city, and in almost the same locality, with an appropriation of the marks the plaintiff uses upon his goods, and the practical copying of his advertising.</p> <p>2. An injunction against such competition will include the use of the word “Ironsides,” but will not include the words “shield and filler.”</p>

Ruling on application of defendant’s wife for 'allowance in lieu of homestead. This is an application by the wife of the defendant for an allowance in lieu of homestead out of the proceeds of the sale of lots mortgaged by husband wherein the wife did not join. She and her husband were not living together, and she had no child or children living with or supported by her.

<p>This cause is heard on motion to re-tax costs.</p>

<p>ESTOPPEL AGAINST CLAIMING THAT STREET ASSESSMENT EXCEEDS BENEFITS.</p> <p>Street Assessment — Abutter Petitions for the Improvement — Agreeing to Waive the Rule as to Corner and Lengthwise Lots — and is Thereby Estopped from Claiming that Assessment Exceeds Benefits.</p> <p>One who signs a petition for a street improvement which contains the provision that the owners of corner or irregular shaped lots fronting or lying lengthwise upon the proposed improvement consent •that they may he assessed for the full number of abutting feet without reference to actual frontage, is estopped from claiming that the assessment exceeds the benefits.</p>

<p>COUNTY AID TO AGRICULTURAL SOCIETIES.</p> <p>Constitutional Law — Section 3697 as it Originally Stood — And as Amended — the Aid Therein Provided for Agricultural Societies— Not Within the Inhibitions of the Constitution.</p> <p>1. The aid extended to agricultural societies under Section 3697 is not in the nature of loans to corporations, or of assistance to private enterprises carried on for the benefit of individuals, but was intended from an early period in the history of the state to promote the agricultural resources of the state, and is therefore not violative of Section 4 of Article VIII of the Constitution, which prohibits the state from loaning its credit to or becoming a joint owner or stockholder in .any company or association in the state.</p> <p>2. Nor does Section 3697, as it originally stood, fall within the inhibition of Section 26 of Article II of the Constitution, providing that all laws of a general nature shall have a uniform operation throughout the state.</p> <p>3. The amendment to this section, containing a special provision applicable to Cuyahoga eounty which is clearly inimical to the provision requiring uniform operation, can be rejected without affecting the substance or in any wise defeating the legislative will as to the remainder of the section, and the legislative purpose was in no wise affected by the acceptance or the non-acceptance of this particular provision.</p>

<p>TERMINALS FOR THE CINCINNATI SOUTHERN RAILWAY AND THEIR. LOCATION.</p> <p>Eminent Domain — A Continuing Power in the Cincinnati Southern Railway Trustees — Location of Terminals — Not Ultimately Fixed by the Yards and Facilities Established in Mill Creek Bottom — Location of New Terminals Approved — Abandonment of Part of Land Sought to be Condemned.</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>ACCIDENTS IN CROSSING ELECTRIC RAILWAYS ON HIGHWAYS.</p> <p>Negligence — At Grossings of Electric Railways Occupying Highways— Right of Recovery Where There is Negligence on Both Bides.</p> <p>1. Where an electric railway occupies a public highway, continuous watchfulness on the part of the motorman is necessary to avoid accidents, not only at crossings, but all along the line; and in the event of a collision and the injury of a traveller along the highway, the question of his right to recover will depend upon whose negligence, as disclosed by the evidencet caused the injury.</p> <p>2. A demurrer to the petition in a suit for damages on account of an injury in crossing an electric railway on the highway, will not lie, where the allegations of the petition make it evident that the question of proximate cause can he determined only from the evidence.</p>

<p>VIOLATION BY STRIKERS OF ORDER. OF INJUNCTION.</p> <p>Injunction — Against Interference With Operation of Plant or Business by Striking Workmen — Nature of Interference Proven — Punishment Imposed.</p> <p>An order of injunction, forbidding in broad language all forms of interference with, tbe operation of plaintiffs factory or business, but properly protecting tbe rights of tbe defendants, was disregarded by striking workmen, wbo were brought in under rules to answer as in contempt..</p> <p>Tbe evidence showed that G ran a wagon across tbe passageway leading to tbe plaintiff’s factory, and seizing tbe reins stopped a team and wagon being driven there through, and used abusive and threatening language toward the driver: Fined $50, with ten days in jail; jail sentence suspended, unless it should be found necessary to enforce obedience to the injunction.</p> <p>While strikers were congregated in the passageway a team was driven rapidly through, and B attempted to grab the reins and was struck and injured. He claimed to have been only seeking to protect himself, and it appeared that the order of injunction had not yet been served upon him: Dismissed.</p> <p>M also grabbed the reins and stopped a team. He claimed to have acted for self protection, but the evidence showed that he had an abundance of time to get out of the way: Fined $25, with ten . days in jail; jail sentence remitted.</p>

<p>EQUAL FACILITIES MUST BE FURNISHED TO ALL BY RAILROAD COMPANIES.</p> <p>Railways — Statutory and Common Law — Requiring Equal Opportunities to All for Receiving and Shipping Freight — Unjust Discrimination — The Remedy in Section 3373-1 Exclusive to What Extent— Equity will Interfere by Injunction to Afford Equal Facilities to All, When — Circumstances where the Remedy in Damages is Inadequate — Doctrine of Equitable Interference Founded on What — The Receiving of Freight from Private Tracks — A Connection Between a Private Track and the Tracks of a Railroad is a “Facility’’ toithin the Meaning of the Common Law.</p> <p>1. The statute of Ohio (Bates, 3373-1) requiring railroad companies to extend equal opportunities and facilities to all persons receiving or shipping freight, is only declaratory of the common law applicable to the same subjects and confers no new rights.</p> <p>2. The remedy provided in said statute, rendering any such company violating its provisions amenable in damages to any person injured by discrimination, in a sum in any case of not less than five hundred dollars, is an exclusive remedy only as to those claims not exceeding that amount. In all other respects the remedy there provided is affirmative only of the common law.</p> <p>3. A court of equity will not assume to dictate the policy or business management of a common carrier, aside from its clear duty under its charter or the statutes. That function belongs exclusively to the company itself and will not be interfered with, because changes ought to be made as apparently reasonable, necessary or otherwise. Blit where the common carrier itself adopts as a part of its business policy any advantageous facility for handling freight, it must not discriminate in its use by the public, .but must afford the facility equally to all, and to this extent equity will interfere by injunction to prevent such favored use thereof and compel its equal service to all.</p> <p>4. In a case of discrimination as set forth in this case, where the nature of the complaining coal company’s business consists in mining coal which necessitates long continued and indeterminable series of shipments, a remedy by damages in an action at law would lead to such a multiplicity of suits and involve such uncertainty in the measure of damages, that the remedy of damages would be inadequate and resort may be had to a court of equity.</p> <p>5. The doctrine on which a court of equity 'will compel the acceptance of freight or the furnishing of equal facilities by a common carrier is founded, not so much upon the purely private rights of the individual as upon the general rights and benefit of the public at large, whose interest it is to keep free and open the channels of trade, and to prevent the building up of favored private enterprises by a quasi public corporation.</p> <p>6. It is not a taking of private property in violation of the Fourteenth Amendment to the Constitution of the United States to compel a railroad company to receive freight in car load lots from private tracks of the shipper, where the company has extended the means and facilities for so receiving such cars on its tracks to other shippers similarly situated and under like circumstances, and where the complaining shipper offers to comply with all the rules, conditions and x-egulations which the company finds necessary to prescribe in that behalf equally to all patrons.</p> <p>7. Irrespective of the nature, character, ownership or control of a sidetrack or private “switch” which a shipper himself may build or which may be constructed under regulations of the railroad company, the essential facts involved in this case is the opening or cutting by a x-ailroad company of its tracks to receive car load shipments from such side-track. Such opening or connection is a “facility” within the meaning of the common law requiring facilities to he furnished equally to all who comply with the regulations of said company.</p>

<p>MAYOR’S COURT — JURISDICTION AND PRACTICE.</p> <p>Poioer and Jurisdiction of Tillage Mayors — Practice in Mayor's Courts —Sufficiency of Affidavit — Joinder of Courts — Jury Trial — Form of Sentence.</p> <p>1. In cases of misdemeanors, where the acts complained of are not strictly criminal nor infamous, and where imprisonment is not part of the punishment prescribed, the prosecution is not strictly criminal but is only quasi criminal. In such cases defendants are not entitled to a jury trial, no information need be filed, and the trial should be had on the affidavit filed for the arrest of the defendants.</p> <p>2. The jurisdiction of village mayors under Section 1824, Revised Statutes, in the cases mentioned in that section, extends throughout the county. In such cases the defendant may be tried, by the mayor, without a jury, and the defendant is not entitled to a jury trial under Section 4364-20 by reason of the fact that an affidavit contains several counts charging distinct and separate offenses.</p> <p>3. Affidavits under Section 4364-20 and Section 6933 in the form given in the opinion approved.</p> <p>4. Where the affidavit contains several separate counts charging distinct offenses, which are similar or correlative offenses, and which are punishable in like or similar manner, the defendant may be tried upon all at once and found guilty and sentenced upon all. In such cases, motions to discharge the defendant because of such joinder, and to compel the state to elect on which count it would proceed to trial, were properly overruled by the mayor.</p> <p>5. A slot machine is a gaming device within the meaning of Section 6933, Revised Statutes.</p> <p>6. The form of sentence in case of conviction on several counts, quoted in the opinion, held sufficient.</p>

<p>CONTRACTS, PERSONAL AND INDEFINITE.</p> <p>Administrator — May Terminate Contract Made Toy Decedent — Though not Personal in Its Nature — But where Uncertain or Indefinite as to Time of Performance.</p> <p>1. A contract of purchase and sale is not personal to the vendor, and does not become voidable at his death, where there are no obligations imposed which can not be equally well performed by the administrator.</p> <p>2. But where such a contract is uncertain and indefinite as to the time of its performance, depending on the continued, success of a business and other circumstances which make it impossible to say that it will ever be completed, the administrator may avoid it upon the giving of proper notice.</p>

<p>STREET IMPROVEMENTS WHERE SPECIAL ACTS RELATING THERETO HAVE BEEN IN FORCE.</p> <p>The Burns Law — The Bruch Law — Street Improvement — Under a Special Act, or Under the General Statutes — Notice to Abutting Property Owner — Tacit Consent to Improvement.</p> <p>1. The Burns Law (Section 2702) relates to the expenditure of public monies arising from general revenues, and has no application to monies raised by special assessment.</p> <p>2. While the purpose of the Bruck Law, as amended (92 O. L., 737), was to give to the city of Columbus an additional and special plan of procedure for street improvements, in order to obviate some of the limitations of the general statutes (Sections 2303 and 2304), the city was not limited to this special act in all cases, but was at liberty to proceed under the general statutes at its option.</p> <p>S. An abutting property owner who twice refused to sign a petition for a street improvement, and was in the city during all the time the improvement, which was in the heart of the city, was being made, is charged with notice of the improvement, unless evidence of some kind warrants the court in concluding that the improvement was made without his tacit consent or knowledge.</p>

<p>COMBINATIONS OF EMPLOYERS.</p> <p>Agreements Between Employers Tending to Enhance Prices — Contrary to Public Policy — Rights of a Member as Against the Organisation— Injunction — The Ohio Anti-Trust Statute.</p> <p>1. It is very doubtful whether a combination of proprietors or employers, having as its purpose the maintaining of prices in their line of worlc, comes within the inhibition of the Ohio anti-trust statute; hut no opinion is expressed upon the question.</p> <p>2. But the well settled principle that contracts, agreements, combinations, and arrangements between persons in the same business, the tendency of which is to impair competition and enhance prices to the injury of the public, are against public policy and therefore illegal and void, applies to such a combination of employers.</p> <p>3. And such, a combination is not saved from the effect of this principle by the fact that these employers may themselves do the same work as their employes.</p> <p>4. The principle that a contract which is not malum in se hut malum prohibitum, and has not been fully executed, may he rescinded by either party and relief therefrom granted in law and equity, applies in such a case; and a member of the combination is not estopped from enjoining the organization from suspending him from membership for failing to maintain the prices agreed upon.</p>

<p>CONTRACTS OF CONDITIONAL SALE.</p> <p>Conditional Sales Contract — Provisions of Sections 4155-2-3 Relative to the Return of Fifty Per Cent, of Purchase Price Before Foreclosure — Can Not Be Evaded by Vendor — Equitable Lien Merged Into Contract — Vendor Can Have No Lien on His Own Property.</p> <p>1. A vendor of personal property, who chooses as his security a contract of conditional sale, can not evade the provisions of Section 4155-2-3, Revised Statutes, providing for a tender, returning fifty per cent, of the paid purchase price before taking possession, by applying to a court of equity for an accounting and foreclosure of a vendor’s lien, as his common law or equitable lien, if such he had, is thereby merged in such contract.</p> <p>2. A contract of conditional sale presupposes that the title to the goods remains in the vendor, and a vendor under such circumstances can have no lien upon his own property. The conditions attached to such a sale by the statute are as much a part of the contract as if specifically embodied therein, and a court of equity has no power to change such statutory rights, but in that respect equity follows the law.</p>

<p>TERMINATION OF A TRUST CREATED FOR. THE BENEFIT OF WIDOW.</p> <p>Wills — Alienation of Life Estate hy Widow — Terminates Trust Created for Her Benefit — Bights of the Children of Testator — Necessary Parties in a Suit to Terminate the Trust.</p> <p>1. Where a will imposes no restrictions in the matter of alienation of a life estate, the right to alienate exists in Ohio.</p> <p>2. A widow having alienated her life estate in real property, a provision of the will that certain of the property of the testator shall not he sold during the life of the widow, becomes invalid as to the children, and the trust created by the will to continue during the life of the widow may be declared terminated.</p> <p>3. Where a trust is created for the benefit of the widow, and the will disposes of all the testator’s real estate, but contains a provision that, with the consent of the widow and children, the trustee may sell so much of the real estate as is not otherwise disposed of, and divide the proceeds in such manner as the widow and children may agree, the trust will be held to have no other purpose than to make provision for the widow during her life, and it appearing that her life estate has been alienated, the court will decree a termination of the trust.</p> <p>4. In a suit to terminate such a trust the wives and husbands of the children of the testator and their children are not necessary parties; neither is an adopted daughter to whom a special bequest was made.</p>

<p>MUTUAL BENEFIT ASSOCIATIONS.</p> <p>Funeral Benefits — Widow Entitled to, When — Dues Paid in Lump Sums —By-Law Against Payment of Benefits During Last Illness to One in Arrears When Illness Began not Unreasonable.</p> <p>1. Where a member of a mutual benefit association falls ill while in good standing with his dues paid up to the date of his illness, and after being ill a number of months dies with his dues paid up to the date of his death, his widow is entitled to the funeral benefits allowed to members in good standing, although during the deceased’s last illness his dues were paid from time to time in lump sums instead of weekly, as called for by the by-laws of the order.</p> <p>2. A by-law of a mutual benefit association which provides that any member who is in arrears and becomes ill shall not be entitled to receive benefits from the association during his last illness, even though he should pay up all his back dues, is a reasonable by-law and not void on the ground that it is unequal or because it is vexatious or manifestly detrimental to the interests of the society.</p>

<p>CERTIFICATES OF REGISTRATION TO DENTISTS.</p> <p>Dentists — One Qualified to Receive a Certificate Under the Old Law— But Failed to Make Application — Has No Tested Rights — Entitling Him to a Certificate at This Time Under the Old Law.</p> <p>One who was qualified to receive a certificate of registration from the State Board of Dental Examiners under the act of 1892, but who failed to make application therefor until after the repeal of said act on April 29, 1902, has no vested rights under Section 79, Revised Statutes, which entitle him at this time to a certificate from the said board under the repealed act.</p>

<p>JURISDICTION TO APPOINT A RECEIVER..</p> <p>Receiver — Jurisdiction to Appoint — Subsequent to the Execution of an Unfiled Deed of Assignment — Cause Pending Within the Meaning of Section 6351, When — Discretion as to Appointment of a Receiver — Appointment of Two Receivers Not Good Practice, But May Be Justifiable.</p> <p>1. It is a long-established rule of this court that the filing of a petition and the issuing of summons is the commencement of an action, and from that time the court has jurisdiction of the cause, and the cause is “pending” within the meaning of Section 6351.</p> <p>2. The filing of a deed of assignment after the filing of a petition for the appointment of a receiver and the issuing of summons in this court does not, therefore, oust this court of jurisdiction, notwithstanding the deed of assignment may have been executed prior to the filing of the petition.</p> <p>3. The discretion as to whether a receiver should be appointed under such circumstances was not abused in this case, where the necessity for the borrowing of money existed, and the power of an assignee in that regard is uncertain; and the appointment of two receivers instead of one, while not good practice, may have been justifiable, and will not be disturbed.</p>

<p>DISSOLUTION OF CORPORATION ORGANIZED FOR. PROFIT.</p> <p>Proceedings for Dissolution — Of a Corporation for Profit — Instituted by Stockholders — Petitioners and Corporation in Effect Parties— Rights of Creditors, Preferred and General — And of All Parties Worked Out, How — Service—Motion to Dismiss the Proceedings.</p> <p>1. Under the Ohio statutes for the dissolution of corporations, the ultimate object is to wind up the affairs of the corporation by means of a receivership.</p> <p>2. The term “persons interested in the corporation” is not limited to the stockholders, but includes, creditors and persons otherwise interested.</p> <p>3. While the proceeding is in its nature in rem, there is no doubt that both the petitioners and the corporation are parties, and a judgment might be rendered against either, although a general creditor by becoming a party and obtaining judgment could not be preferred over other general creditors who have not reduced their claims to judgment.</p> <p>4. Persons holding incumbrances against the property of the corporation are entitled to come in and set up their claims.</p> <p>5. Where creditors are made parties defendant, the court may treat the application for a receiver as a suit to dissolve the corporation under the statute, and work out the rights of all parties thereunder.</p> <p>6 Since the directors in effect take the place of the defunct corporation, service upon them would be sufficient, and where by a motion they enter their appearance to an answer and cross-petition, the necessity of service of process is obviated.</p> <p>7. A motion by the petitioning stockholders for a dismissal of their proceeding for dissolution can not be entertained, where it develops that there are other parties interested in the corporation, either as creditors or otherwise.</p>

<p>IRREGULARLY EXECUTED CONTRACTS FOR. SEWERS.</p> <p>Bewers — Contracts for the Building of — Suit by Tax-payer to Enjoin— Matters Which are Not Jurisdictional — Publication—Piling of Plat — Main and Lateral Bewers Combined in One Contract — Implied Powers of a Municipality — Public Necessity for Sustaining a Contract — Laches—The Burns Law — Special Laws — How Long Were Municipalities at Liberty to Act Under Them — After the Announcement of the Supreme Court in June, 1902.</p> <p>1. In a suit to enjoin tbe carrying out of contracts entered into by a municipality for tbe construction of a system of sewers, ten days’ notice in a newspaper of general circulation that tbe plans are on file for examination, failure to file a plat in tbe office of tbe city clerk, and tbe including in some Contracts of both trunk and lateral sewers, are none of them jurisdictional matters.</p> <p>2. Where tbe health and welfare of a city are involved in tbe carrying forward of a contract to completion, a court will sustain it under tbe implied powers which vest in municipalities, notwithstanding under tbe letter of tbe law tbe contract is invalid.</p> <p>3. A tax-payer is guilty of laches, who stands by while an improvement of a serious character is undertaken and carried half through to completion, and then attempts to enjoin it at tbe peril of tbe public health and welfare.</p> <p>4. A reasonable time for municipalities to adapt themselves to the changed conditions caused by the announcement of the Supreme Court in June, 1902, as to the illegality of special legislation, would probably be up to May 1, 1903, the date to which the Supreme Court suspended the effect of its decision as to the city of Cleveland.</p> <p>5. While the various amendments to the Burns Law (Section 2702), enacted solely to graft unconstitutional exceptions upon the original act, are clearly void, yet a contract such as is involved in this case will be held valid, notwithstanding it falls under one of these exceptions, inasmuch as the Burns Law, even in its original form, should not be construed as a barrier to the execution of such a contract.</p>

<p>ASSIGNMENT BY A PUBLIC OFFICER. OF UNEARNED COMPENSATION.</p> <p>Public Officer — Assignment by of Unearned Compensation Against Public Policy — A Referee is a Public Officer — As Between Two Assignments of Fees By — The One Subsequent to the Allowance of will Prevail — Equities as Between Two Assignments — Parties in Interest Under the Code.</p> <p>1. An endorser on a note, who procures an assignment hy the maker to the holder of unearned fees for services as referee, is not a party in interest under the code, in a suit involving the validity of the assignment.</p> <p>2. The long established law of England, that an assignment by a public officer of unearned compensation as such is void as against public policy is a recognized rule in Ohio.</p> <p>3. A referee is a public officer under our law, and an assignment by him of unearned fees falls within this rule.</p> <p>4. The chief function of a referee is the finding of facts and the conclusion reached as to the law applicable thereto, and until this work is completed and an allowance has been made therefor by the court, there exists in favor of the referee only an inchoate right. It can not be contended, therefore, that having heard certain testimony prior to making the assignment, the assignment was good as to so much of the compensation as had been earned up to that date.</p> <p>5. An assignee of fees as collateral for a pre-existing debt is not entitled to protection as against a subsequent assignment which was in the nature of a bona fide purchase for which full value was given.</p>

<p>DAMAGES FOR CHANGE OF GRADE.</p> <p>Streets — Change of Grade of — In Abolishing Railway Crossings — Proceedings for Change of Grade Under the New Code — Compensation to the Injured Property Owner — How Recovered, and When— Property Oioner’s Rights Broader Than the Strict Letter of the Constitution — Injunction Not Available — But Damages May Be Recovered Even Without a Statute Providing a Mode for Their Assessment.</p> <p>1. The changes introduced into the statutes by the adoption of the new Municipal Code, with reference to street improvements and damages from change of grade, relieve the property owner from the necessity of filling his claim for damages by reason of the improvement within the time specified in Section 54 of the Code, except in cases of improvements to be paid for in whole or in part by special assessments.</p> <p>2. There is probably still authority of law for the service of notice on abutting property owners of a proposed street improvement, and for the filing of claims for damages by property owners who choose so to do, and for a municipal corporation, where such claims have been filed, to cause damages to be assessed by a jury either before or after the improvement is made, with the option in the property owner of declining to file a claim, but instead bring a suit directly against the corporation for his damages.</p> <p>3. The property right which the abutting owner has in the street is subject to the right and duty of the municipality to put and maintain the street in suitable condition, and to this public right all private rights are subordinate.</p> <p>4. Where conditions make necessary or proper a change of grade, the basis of the right of the abutting property owner to recover damages because of having been misled to his injury is founded, not in the strict letter of the Constitution, which recognizes only Ms right of access, with no distinction as to improved and unimproved lots, or time of improvement, but is found in the spirit of the Constitution, that an injury to an. individual in the public interest should be borne by the public.</p> <p>5. Hence it is competent for the Legislature to authorize municipal corporations to level and improve streets, without providing in advance for assessment of compensation, or the means of making such an assessment otherwise than in an action at law.</p> <p>6. And injunction will not lie to prevent the carrying forward of a public work of such importance as the changing of grade crossings of steam railways, where no danger exists of substantial loss to an abutting property owner, and the mode open to him for recovering compensation is alone involved.</p>

<p>CONDITIONAL SALES CONTRACT.</p> <p>Conditional Sales Contract — Lien Acquired by the Vendor — Section 4155-3 Does Not Prevent Equitable Foreclosure of Lien.</p> <p>1. A vendor under a conditional sale contract entered into as a means of security for the unpaid purchase price, thereby acquires a lien upon the property or a right equivalent to a lien, so that he may foreclose such lien or right in a court of equity.</p> <p>2. Section 4155-3, Revised Statutes, regulating conditional sales in Ohio, does not so limit the rights of the conditional sale vendor as to prevent equitable foreclosure of the lien acquired under the contract.</p>

Tbe plaintiff in this case sued as receiver of The Investment Banking Company for recovery of the amount due under the statute governing conditional sales, by reason of the fact that certain typewriters, purchased on installment from the defendant company, had been taken possession of by the defendant without tendering or refunding, or offering to tender or refund any sum whatever.

<p>BONDS ISSUED FOR. CHANGE OF GRADE CROSSINGS.</p> <p>Bonds — Issued by County Commissioners — For Bridging Dangerous Railway Crossings — Not Issued in Same Denomination as Advertised — Statute Authorizing Issue Not Mentioned in Advertisement —Parties Dealing With Public Boards Must See That They are Acting Within Their Authority — Sections 3337-8 to 17 — Providing for Abolishment of Grade Crossings — Publication of Resolution— Submission of Question to People — Contract Between Commissioners and Railways.</p> <p>1. Bonds issued by county commissioners, for the purpose of bridging over dangerous railway crossings, are not rendered invalid by-reason of the fact that they were advertised and sold in denominations exceeding $1,000, where they were issued as required by law in denominations not exceeding $1,000 or less than $50, and it does not appear that the bonds would have sold for a better price had they been advertised in the same denominations in which they were issued.</p> <p>2. The omission in an advertisement for the sale of such bonds to mention the statute authorizing the issue is not, standing alone, such an irregularity as would afford ground for declaring them void, where the action is delayed until after their sale and delivery and circulation among innocent holders.</p> <p>3. Where the cost of a structure intended to carry the street traffic over a railway is divided up between the companies using the tracks, the street railway company which is to use the structure, and the county, and the cost apportioned to the county is not shown to exceed $10,000, an injunction against the issue of bonds for payment of the county’s share will not lie on the ground that the proposition was not submitted to a vote of the people.</p> <p>4. Section 2824, having reference to the levy of a special tax for the restoration of a county bridge, applies to bridges maintained solely by the county, and has no application to a bridge where the cost of erection and maintenance is apportioned between the county and other parties in interest.</p> <p>5. Such a structure must be built under the provisions of Section 3337-8 to 17, which is complete in itself, and permits county commissioners to contract with railway companies with reference to a division of the cost, and issue bonds therefor, without reference to the emergency bridge fund, or the fact that there is not in the county treasury or in process of collection sufficient funds to meet the expense.</p> <p>6. The provision of the statute that the railroad companies shall pay not less than 65 per cent, of the cost is complied with where the railroad companies pay less than 65 per cent., but the contribution of the railroad companies and the street car company taken together amounts to 80 per cent, of the cost.</p>

<p>Error to the probate court.</p>

<p>POWER. OF MUNICIPAL AUTHORITIES TO NARROW SIDEWALK.</p> <p>Sidewalk — Poioer of Municipal Authorities to Determine Width of, or to Change Width of — Expense of Paving Strip Taken Off Sidewalk Not Chargeable to Abutting Owner — Notice of Intention to Narrow Sideioalk — Change in Location of Street Car Track.</p> <p>1. Where land is dedicated to public use as a street, every part of it becomes subject to the control of the proper municipal authorities, and the division to be made between the part to be used by vehicles and the part to be used as a sidewalk for pedestrians is within the discretion of such authorities, and unless unreasonably exercised can not be controlled by judicial decision.</p> <p>2. This discretion is continuing, and where a necessity for making a change in the width of a sidewalk arises, the determination so to do is, in the absence of fraud or oppression, final in the municipal authorities.</p> <p>3. The narrowing of a sidewalk does not affect an abutting property owner’s ingress or egress, and if inconvenience results to him from such change, it is an inconvenience which affects equally the public at large.</p> <p>4. Failure to serve the abutter with notice of intention to narrow the sidewalk in front of his property does not entitle him to an injunction against the carrying out of the work.</p> <p>5. The expense of paving the strip added to the street by the narrowing of the sidewalk can not be charged against the abutting owner, but must be paid for out of the general street improvement fund.</p> <p>6. An abutting owner who consents to a change in the location of a. street car track in front of his property and- makes no objection while the work is going on, can not thereafter complain of the maintenance of the track at that point.</p>

Application of Henrietta Cecelia Gibson to admit to probate the alleged last will and testament of John McCormick Gibson, deceased. The facts are sufficiently stated in the opinion of the court.

<p>SALE OF FIRM CHATTELS.</p> <p>Partnership — Sale of ail the Chattels of a Firm by One Member of Firm without Knowledge of Co-Partner — Does not Terminate Partnership — And is Void only in Suit by Non-Consenting Partner — Constable’s Return of Service — Correctness of may be Impeached, When — Clear and Convincing Proof Necessary to Impeach.</p> <p>1. A sale of all the chattels of a firm not intended for sale in the ordinary course of business, made by one partner without the knowledge or consent of a co-partner, but in good faith to pay a debt of the firm, is void only in an action brought by the non-consenting member of the firm. A creditor can not question the validity of such a sale.</p> <p>2. A valid assignment of all the property of a partnership for the benefit of creditors ipso facto terminates the partnership; but a sale of all the assets of the firm does not of itself bring the partnership to an end, even though made by one partner without the consent of the other.</p> <p>3. The correctness of a constable’s return of service, made in the case of A v. B, may be impeached by the constable’s own testimony when such return is offered in evidence in the suit of a third party against A.</p> <p>4. The testimony offered to impeach the return must amount to clear and convincing proof. This means more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.</p>

<p>COLLECTION OF FORFEITED AND DELINQUENT TAXES.</p> <p>Taxes — Collection of Those Forfeited or Delinquent by Contract — Such a Collector Not an Officer — For an Officer Must Perform Sovereign Functions Continuously — Amendment to Section 1104 Constitutional — And Therefore Not Contrary to Public Policy — Burns Law Not Applicable — Contract May Extend Beyond Term of Treasurer —Scope of Contract Can Not Be Extended Beyond Plain Import of the Statute.</p> <p>1. Tbe act passed April 4, 1902, amending Section 1104, Revised Statutes, by empowering tbe county treasurer to contract with a suitable person to collect by foreclosure or otherwise tbe forfeited and delinquent taxes prior to 1899, at a compensation not to exceed twenty-five per cent, of tbe amount collected, is not unconstitutional. Sucb a collector is not an officer under Section 2, Article X of tbe Constitution requiring bis election.</p> <p>2 In order to constitute sucb person an officer witbin tbe Constitution, be must perform some sovereign functions continuously and not transiently or incidentally. His position must have tbe attributes of tender and duration peculiar to public office, and should be not merely an employment for a definite and particular purpose.</p> <p>3. To declare an act unconstitutional, it should appear clearly so. If there is any doubt about it, sucb doubt should be resolved in favor of tbe law.</p> <p>4. If a contract is made in accordance with a constitutional and valid statute, it can not be contrary to public policy; nor is tbe compensation paid thereunder a diversion of tbe public funds.</p> <p>5 Sucb a contract is not invalid because tbe money for tbe payment of tbe compensation was not in the treasury as required by tbe Burns Law. This law is not applicable to contracts, tbe funds to pay which are raised in a particular mode, which does not cause a deficit in tbe general fund, and to meet which increased taxes must be resorted to.</p> <p>6. Tbe time witbin which these collections must be made being fixed beyond the term of tbe office of tbe treasurer does not invalidate the contract. This period of time is a limitation rather than an enlargement of the rights under the contract.</p> <p>7. The scope of the contract can not be extended beyond the plain import of the language of the statute merely because it splits or separates an aggregate of delinquent or forfeited taxes and tends to destroy the symmetry of the system of tax collecting in this state. The form of such taxes may he changed by lapse of time, but the identity is not destroyed.</p>

<p>A DEVISE GENERALLY WITH LIMITATION OVER..</p> <p>Wills- — Real Estate Devised Generally — Limitation Over Void.</p> <p>Where the first devisee has absolute power of disposition, whether by deed or will, a limitation over is void on the ground that it is irreconcilable with the primary devise.</p>

<p>STREET IMPROVEMENT DEFECTIVELY MADE.</p> <p>Street — Improved in a Defective Manner — Burden on the Municipality —To Show that Action to Unjoin Collection of Assessment — Is Barred hy Laches.</p> <p>The burden is on tbe municipality in a suit to enjoin tbe collection of a street assessment on tbe ground that tbe improvement was defectively constructed, to show that tbe defects appeared at sucb a time as would bar tbe plaintiff’s action.</p>

<p>VACCINATION IN THE PUBLIC SCHOOLS.</p> <p>Vaccination — Powers of the Legislature, Boards of Health and Boards of Education with Reference Thereto — Requirement of as a Condition of Admission to the Public Schools — Conditions Justifying Such a Requirement — Limitations as to Time of Exclusion.</p> <p>1. In view of the fact that boards of education have been given by general law supervision over the subject of the vaccination of pupils attending the public schools, it is questionable whether the Legislature intended to confer the same discretionary powers upon boards of health.</p> <p>2. But where an order by the health department, directed to the superintendent of the public schools, requiring that all pupils in the public schools who have not been successfully vaccinated within five years last past shall be excluded therefrom, is adopted by the board of education, and the direction given oy that board that it be strictly complied with, such order becomes the 'order of the board of education, and if justified by public necessity and the prevalence of small-pox in the community it is a valid order.</p> <p>3. Such an order is not to be regarded as of a permanent nature because its operation is not limited in terms to a particular period, but has force and effect only so long as danger exists of an epidemic of small-pox.</p>