Volume 10 — Ohio Circuit Court Reports, New Series

<p>RECOVERY FOR CARE AND SUPPORT FURNISHED TO A DECEDENT.</p> <p>Contract — For Care ancl Support During Remainder of Life — Property to he Conveyed in Consideration — Failure to Make the Conveyance ■ — Action for Quantum Meruit — Not for Enforcement of Contract-Evidence as to the Contract — Limiting Recovery to the Value of the Property — Charge of Court — Special Requests — Pleading— Surplusage — Parties—Misjoinder.</p> <p>B and wife brought an action against the administrator of G for personal judgment on account of care and support furnished to G for a number of years. The petition set forth an agreement whereunder such care and support were to be furnished to G during the remainder of her life in consideration of a certain house and lot being conveyed to them, of which G died the owner, and intestate. Held:</p> <p>X. The action was for a quantum meruit, and the references in the petition to the agreement or contract were surplusage.</p> <p>2. The defendant, having successfully interposed an objection to the introduction of testimony as to the value of the house and lot, will not thereafter be heard to complain that the recovery may be for a much larger sum than the value of the house and lot.</p> <p>3. An’ allegation of demand and default is not necessary in such a ease; the presentation of the account to the administrator and its rejection by him was sufficient.</p> <p>4. The claim that the proof has established that the cause of action, if any existed, was in favor of the wife, and not in favor of both husband and wife, does not on review furnish a basis for the contention that there has been a misjoinder of parties, where leave to answer as to the alleged misjoinder was not sought at the trial below; nor would the joining of the husband, by gift, assignment or otherwise, in the right of action existing in the wife, be necessarily a matter of any prejudice to the defendant administrator.</p> <p>5. Where the record does not affirmatively show that requests for instructions to the jury before argument were submitted in writing, the correctness of the instructions will not be inquired into by a reviewing court.</p>

<p>SIDEWALK ASSESSMENTS.</p> <p>Corporations, Municipal ancl Tillage — Procedure for Construction of Sidewalk — And Assessment of Cost Upon Abutting Property-Change of Material — Notice—Sections 1536-210-211a-232 and 235.</p> <p>1. When council provides for the construction of a sidewalk, and serves notice on an abutting owner that in case of his failure within a specified time to construct a walk of certain material and a certain width, it will be laid by the municipality or village and the expense assessed back upon the property, all procedure has been had which is necessary for the construction of the walk and the levying of a proper assessment therefor upon the property.</p> <p>2. But where the notice served on the property owner calls for a walk ’ constructed of sand-stone, no greater obligation is imposed on the property owner than if he had entered into a contract for a sandstone walk, and the laying of a cement walk by the municipality without further procedure imposes no obligation on him for the cost thereof.</p>

<p>VERIFICATION OF PLEADINGS.</p> <p>Pleadings — Verification of — When Made by an Agent or Attorney of a Oorporation — Officers Who May Verify Pleadings Without Restriction — Sections 5102 and 5109.</p> <p>The provisions of Section 5109, Revised Statutes, regarding verification of pleadings by agents and attorneys, apply to the pleadings of corporations as well as those of natural persons.</p>

<p>Error to Huron Common Pleas Court.</p>

<p>VALIDITY OF* ASSESSMENT UNDER SPECIAL ACT.</p> <p>Street — Delay in Completing Improvement of — Property Owner Estopped from Resisting Assessment, when — Validity of Assessment Levied Under a Special Act — Constitutionality of Section 2272.</p> <p>1. Delay in completing a street improvement does not relieve abutting property owners from assessment, and a mortgagee who has become the owner by foreclosure is estopped from denying that the property is not benefited to the extent of the assessment or that it is not valuable enough to stand the assessment, where the mortgagor joined in the petition for the improvement.</p> <p>2. In so far as concerns the validity of an assessment for a street improvement which has been duly petitioned for and promoted by the abutting owners, Section 2272 is constitutional.</p>

<p>Heard on error.</p>

<p>YEA AND NAY VOTES IN COUNCIL ON STREET IMPROVEMENTS.</p> <p>Municipal Corporations — Sufficiency of Record — As to Yea and Nay Vote in Council — Benefits—To Abutting Property from Street Improvement — Determination of, is in Council Rather than the Coxirts —Assessable Frontage where Three Lois form a Flat-iron Shaped Plat.</p> <p>1. Where the record discloses that at the meeting of the city council, at which there were proceedings with reference to a street im- • provement and the assessment therefor, certain members of council were present just prior to the taking of the vote, and does not disclose that any of the members left the room before voting, and it is definitely stated that the particular resolution and ordinance was passed by a certain number of votes being “yeas,” and the number of “yeas” is the same as the number of members previously recorded as present, there is a substantial record of compliance with the statutory provisions requiring the vote of the council for street improvements to be by “yeas” and “nays,” although the court does not approve of the form of the record.</p> <p>2. Whether or not abutting property has been benefited by a street improvement is not to be determined alone by the market value of the property after the improvement has been made, as compared with its value before; but the real question is whether there will be any potential benefits, and the determination thereof is within the discretion of council rather than of the courts.</p> <p>3. Where three lots held by different owners form a flat-iron or wedge-shaped plot, bounded on three sides by public streets, the assessments for improving the adjoining streets should be levied on each lot separately, although all three form a single parcel and are used at the time for a common purpose; and such assessments should be based on the shorter frontage of each lot.</p>

<p>ACTION ON BOND OF BUILDING ASSOCIATION ATTORNEY.</p> <p>Bond — Of Building Association Attorney — Action on, for Negligence in Examining Tille — Jurisdiction Where One Obligor can not be Served —Subrogation—Estoppel—Laches.</p> <p>A building association through the negligence, of its attorney loaned $1,000 to one holding a defective title to the property upon which he gave a mortgage to secure the loan. The mortgagor died. The proceeds of the loan could not be traced to his creditors, but were probably used by the widow in satisfaction of her allowance of $1,500 for the first year’s support of herself and minor children. The attorney moved out of the jurisdiction and in the present suit on his bond service could not be obtained upon him. Held:</p> <p>1. In an action on a bond which is in the nature of a joint obligation, the fact that one of the obligors could not be served with summons because not within the jurisdiction of the court does not prevent the taking oí judgment against obligors who are within the jurisdiction.</p> <p>2. The building association was without remedy on its mortgage by way of subrogation against the general creditors of the mortgagor or the first year’s allowance to the widow.</p> <p>3. The attorney having knowledge of the mistake which he had made, notice to him or his bondsmen of the loss the building association had sustained was not necessary, and laches or estoppel can not be pleaded in their behalf.</p>

<p>ERROR. IN DISMISSING ACTION WITHOUT PREJUDICE.</p> <p>Dismissal — Court Without Power to Dismiss Without Prejudice, When —Error to Strike Material Averments from Pleading — Redundant Matter — Negligence—Where Passenger was Swept from. Running Board by Car on Parallel Track.</p> <p>1. Where a petition still states a cause of action against the defendant after the striking out of the redundant and improper matter, the court has no power to dismiss the action without prejudice in the absence of any pleading traversing the averments left in the petition.</p> <p>2. It is prejudicial error for a court in an action for damages, growing out of the negligence of a street railway company in operating cars over tracks so close together as to endanger the safety of passengers standing on the running board, to strike from the petition language that is material and a proper averment of the cause of action.</p> <p>3. But it is not prejudicial error to strike from a petition matter that sufficiently appears in another part of the petition.</p>

<p>PAYMENT UNDER A BUILDING CONTRACT FROM WHICH THERE WERE DEVIATIONS.</p> <p>Building Contract — Modification of, by Mutual Agreement — Owners to Pay what the Worlc was Reasonably Worth — Extent to which the Contract Controls and to which the Contractors are Entitled to their Quantum Meruit — Pleading—Evidence—Failure of Proof under Section 5296 Relating to Variance.</p> <p>The changes from the building contract, involved in this case, made by consent of the parties thereto, were not of such a nature as to abrogate the contract and permit a recovery of what the entire ' work was reasonably worth; on the contrary, it is a case where the estimate should not be excluded, but payment should be made under the contract as far as it can be traced, and for anything beyond it the contractors are entitled to their quantum meruit.</p>

<p>Error to Ashtabula Common Pleas Court.</p>

<p>THE LICENSING OF AMUSEMENTS.</p> <p>Ordinance — Requiring the Talcing out of a License for Certain Amusements — Rendered Invalid ~by Conferring Discretion on the Mayor —Evidence Necessary to Convict of Violation of — What the Affidavit Must Charge — Bills of Exceptions — Criminal Law — 97 O. L., 504 (30) — Municipal Corporations.</p> <p>1. Where a bill of exceptions in a prosecution before a mayor was duly signed and regularly filed in the common pleas, it is not open to, objection in the circuit court on the ground that it was not filed by the mayor or noted on bis docket.</p> <p>2. Under an ordinance which provides that “no person shall be engaged in any business hereafter mentioned (including the keeping of public ball rooms or ball grounds) until be shall have obtained a license therefor,” it is necessary in order to charge an offense that the affidavit allege the accused unlawfully failed to secure a license to conduct the business, and not that he unlawfully engaged in the business.</p> <p>3. Where such an ordinance delegates to the mayor the power to grant or refuse a license at bis discretion, it confers upon him more than a ministerial or administrative duty, and is invalid to the extent that it is not general and does not apply to every person.</p> <p>4. In order to warrant a conviction for violation of an ordinance • providing for the licensing of ball grounds, etc., there must be evidence that the accused was engaged in the business as keeper proprietor or manager, and this requirement is not met where the evidence goes no further than to indicate that the accused maintained a ball ground and pavilion on his private grounds, but not for profit and with which the public bad nothing to do.</p>

<p>NEGLIGENCE IN DRIVING ALONG A STREET RAILWAY TRACK.</p> <p>Negligence — And, Presumption of Contributory Negligence — Where a Wagon was Struck by a Street Car — Charge of Court — Doctrine of the Last Chance — High Rate of Speed not Negligence Per Se.</p> <p>1. While it is not negligence per se to drive along a street railway track in the direction traveled by the cars, a presumption of negligence is raised by the admission of the driver that he traveled for three'hundred feet at a slow trot without looking behind for an approaching car, and that his only reason for being in that position rather than on the side of the street was that the wagon ran more easily on the tracks.</p> <p>2. It is error to charge a jury with reference to the doctrine of the last chance where there is no allegation in the petition which would warrant an application to the rule of “last chance.”</p> <p>3. Whether a motorman who ran his car at an unusually rapid rate of speed on a dark and stormy night was guilty of negligence as a matter of law depends upon the circumstances of the case.</p>

<p>JURISDICTION IN A CRIMINAL CASE AFTER TERM.</p> <p>Criminal Law — Conviction for Homicide — Motion for New Trial on the Ground of Newly Discovered Evidence — Filed After Term — Jurisdiction to Entertain — Remedy of the Accused.</p> <p>A trial court is without jurisdiction to hear a motion for a new trial in a criminal prosecution at a term of court subsequent to that at which the verdict was returned.</p>

<p>PROMISE BY TESTATOR. OF REIMBURSEMENT FOR SERVICES.</p> <p>Wills — Devise for Life loith Power to Sell — Promise of Reimbursement for Faithful Services — Constitutes a Binding Contract Against Estate of Promisor — Action to Quiet Title — Presentation of Claim to Executor.</p> <p>1. The devise of real estate in this case was for life only, with power to sell for the benefit of the estate.</p> <p>2. Where long and faithful service by the plaintiff was acknowledged by the decedent, who exacted a promise that these services should ■ be continued to his wife after his death, with the direction that the wife make suitable provision for the services rendered and to be rendered, a binding contract is made and a debt created against the estate for services performed after as well as before the death of the decedent.</p> <p>3. A conveyance under such circumstances by the widow to the plaintiff of property forming no more than an adequate consideration for the services rendered, is a conveyance for the benefit of the estate, and plaintiff is entitled to a decree quieting her title to said property, notwithstanding she nad never presented her claim to the executor who nad knowledge of its existence.</p>

<p>CERTIFICATES THAT MONEY IS IN THE TREASURY AND UNAPPROPRIATED.</p> <p>Municipal Corporations — Tillages—Certificates of Auditor or Cleric under the Burns Law — Sufficiently Definite, tohen.</p> <p>When from the nature of the work to be done in connection with a proposed improvement it is impossible to estimate except approximately the expense likely to be incurred, a certificate by a clerk or auditor, that there is in the treasury of the corporation and unappropriated “money sufficient to pay” for the improvement as proposed, is an adequate compliance with the requirement of Section 2702 that a certificate must issue to render valid contracts, agreements or other obligations involving the expenditure of municipal or village funds.</p>

<p>Error to Lucas Common Pleas Court.</p>

<p>MIXED CAUSES OF ACTION.</p> <p>Actions — Nature of, Determined by Pleadings — Mixed Causes of Action Not Appealable — Notwithstanding Only Equitable Issues are Tried.</p> <p>Since the nature of an action as to its being legal or equitable is determined by the pleadings, it follows that a petition to foreclose a mechanic’s lien, determine priorities, and for personal judgment, sets forth both a legal and an equitable cause of action, and without change of pleadings is not appealable, notwthstanding the parties reached an agreement as to the facts determinable by a jury, and the equitable issues only were submitted to the court.</p>

<p>DAMAGES TO FARM LANDS FROM CHANGE OF GRADE OF RAILWAY.</p> <p>Appropriation — Railways—Change of Oracle of — Impaired Access Over Private Right of Way — Evidence as to Damages — Verdict—Remittitur.</p> <p>In an appropriation proceeding, preparatory to a change of grade of a railway through farm lands, the assessment of damages to the residue of the tract must be based on present conditions, and not have reference to conditions existing prior to the original location of the railway many years before.</p>

<p>CONSENTS FOR. THE CONSTRUCTION OF A STREET . RAILWAY.</p> <p>Municipal Corporations — Consents of Abutting Owners — To the Construction of a Street Railway — Requirement. as to, does not Create a Favored Class — Construction of the Exception in Section 1536-189 — Life of Consents Inure to Whom — -Duplication of Grant over Same Street — Consents of Original Company — Good Faith of Property Owner Seeking an Injunction — Constitutionality of Sections 1586-188-9.</p> <p>1. Sections 1536-188 and 1536-189, requiring the written consents of the owners of more than ' one-half of the frontage of lots and lands abutting on a street along which it is proposed to construct a street railway, do not create a favored class upon whom a privilege is bestowed to the. exclusion of others having equal rights, and is not an arbitrary classification of individuals, but is a valid and constitutional exercise of legislative power.</p> <p>2. Where street railway tracks occupy a street unlawfully by reason of the fact that the term for which the grant was made has expired, the exception found in Section 1536-189, making in unnecessary to procure consents from abutting owners under certain conditions, is not operative, and consents are required before new tracks can be laid in place of the old.</p> <p>3. Consents to the building of an extension of a street railway inure to the company obtaining them and its assigns only, and can not be used by a third party who is a stranger to the franchise.</p> <p>4. Where consents have been once acted on by a city council in the granting of a valid street railway franchise, their vitality is expended and they can not be again used as the basis of a second grant to another company.</p> <p>5. A grant to construct tracks in a street can not be duplicated over the same right of way, even with the consent of the company to which the right was first given, unless the consent is that of the stockholders given in the way provided by statute.</p> <p>6. The failure to carry into the syllabus of Traction Co. v. Parrish the declaration of Judge Burket that the good faith of one who brings an action to protect a legal right is of no importance, does not make it an obiter, inasmuch as that was one of the questions made in the case, and what was said in the body of the opinion became the established law of the state.</p>

<p>IMPROVING PARTS OF STREETS WITH SEWERS.</p> <p>Municipal Corporations — Assessments for Sewers — Improvement of Separate Portions of Streets — Sections 2378 and 2379.</p> <p>It is competent for a municipality to improve with, a sewer the unsewered portion of a street, or some part of the unsewered portion of a street, and assess the cost thereof upon the property abutting on the part of the street so improved.</p>

<p>IRREGULARITIES AS TO BILLS OF EXCEPTIONS.</p> <p>Bills of Exceptions — Legislation with Reference to — Premature Delivery of, to Trial Judge — Does not Deprive the Reviewing Court of Jurisdiction, When — Exhibits—Failure to Properly Mark for Identification — Interrogatories Ansxoered by the Words “Don’t Knoio” — Verdict Based on Speculative Evidence — Negligence— Defective Apparatus.</p> <p>1. While counsel should be granted the full ten days allowed by statute for examination of a bill of exceptions and the making of objections thereto, a miscalculation by the clerk of court as to the time to which counsel were entitled for examination of the bill, and the premature delivery of it by the clerk to the trial judge for his signature, is not such an irregularity as will deprive a reviewing court of jurisdiction, where it appears that the bill was filed in time by the plaintiff in error and no substantial injury will result from disregarding the irregularity.</p> <p>2. Failure properly to mark for identification certain depositions which were used at the trial below, or t'o attach them to the bill of exceptions, does not prevent their being treated as a part of the bill of exceptions, when it is reasonably certain that they are the same depositions ‘which were used in the court below, and that it was intended they should be made a part of the bill of exceptions but, owing to an inadvertence, were not attached but filed with the original papers in the appellate court.</p> <p>3. Where interrogatories are submitted to a jury relating to matters of an evidential nature rather than to ultimate facts, no prejudicial error can be based on the receiving of a verdict in which some of the answers to the interrogatories áre neither affirmative nor negative, but simply the words “Don’t know.”</p> <p>4. A verdict for damages in a substantial amount for an injury alleged to be due to defective apparatus can not be based on evidence that is vague,- speculative and theoretical; and where a verdict is based solely on such evidence, the judgment thereon should be reversed and a new trial granted.</p>

<p>LIABILITY FOR. BAD CONDITION OF COUNTRY ROADS.</p> <p>Roads — Negligence of County in Failing to Keep in Good Condition — ■ Actions against County Commissioners — Improved Roads and Ordinary Country Roads Distinguished — ¡Section SJ/5.</p> <p>The duty of keeping ordinary country roads in repair is not imposed on county commissioners by Section 845, Revised Statutes; and a directed verdict for the defendants is not erroneous in an action for damages for negligence brought by one injured by his vehicle sliding into a deep rut or hole in the road.</p>

<p>ERROR. FROM COURT OF INSOLVENCY TO THE COMMON PLEAS.</p> <p>Eminent Domain — Purpose of the Legislature to Expedite Appropriation Proceedings — Error Proceedings — Duty of Common Pleas to Retain Cause — Sections 6438, 6453 and 1536-J.14.</p> <p>Where error is prosecuted from the court of insolvency to the court of common pleas in an appropriation proceeding, and the judgment is reversed, it is the auty of the common pleas to retain the case and proceed to try the matter at issue as provided in Section 6438.</p>

<p>CONTROL OF CHURCH PROPERTY.</p> <p>Injunction — Upon Petition of Church Tnistees — Complaining of Interference with Control of Church Property by Others Claiming to Act as Trustees — Jurisdiction in Equity — Parties—Misjoinder— Quo Warranto — Exclusion of Church Members without Notice— Office of Trustee of a Church not Coupled with an Interest — Ten* ure of — Dismissal of a Pastor.</p> <p>1. There is jurisdiction in a court of equity to determine the rights of the parties to an action for injunction, where the plaintiffs claim to be legally elected trustees of an incorporated church, and ask that the defendants, who also claim to he trustees and one of them to he the pastor of the church, be restrained from interfering with their control of the church property or their use of it for purposes of worship.</p> <p>2. The fact that the plaintiffs sue as trustees and also as members of said church and in behalf of other members thereof, does not present a case of misjoinder, notwithstanding they are perhaps asserting rights in two capacities.</p> <p>3. The office of trustee of a church is not one coupled with such an interest that the church body in its corporate cápacity may not, at a meeting of its members duly called and held, terminate the tenure of such office.</p> <p>4. The fact that members of a church have become dissatisfied with the pastor, and disapprove of the control into which the church has fallen and cease to attend its services, does not afford ground, without some rule or law of the church therefor, for their dismissal or expulsion without .notice or an opportunity to appear and defend; and a vote of expulsion under such circumstances doe's not terminate membership.</p>

<p>ACQUITTAL NOT A BAR..</p> <p>Criminal Law — Indictment for Theft — Acquittal—Prosecution for Receiving the Same Stolen Goods.</p> <p>One acquitted under an indictment for stealing certain property may be subsequently indicted and tried for receiving and concealing the same property, knowing it to have been stolen.</p>

<p>WAIVER OF CONDITION AS TO PRE-PAYMENT OF PREMIUMS.</p> <p>Amendment — Permissible after Verdict, when — Waiver—Trial—Effect of Production of Receipt loithout Explanation — Interrogatories— Failure of Jury lo Answer — Error—Section 5114.</p> <p>1. In an action on a policy of insurance, where the case has been tried in part on the theory that there had been a waiver of the condition of the policy as to prepayment of premiums, it is not error after verdict to permit an amendment of the petition setting up such waiver.</p> <p>2. Moreover, the receipt of the company for the premium having been offered without explanation, it stands as prima facie evidence of compliance with the conditions of the policy, and the verdict should stand regardless of the question of waiver.</p> <p>3. Failure of the jury to answer special interrogatories is not ground of error when not excepted to at the time.</p>

<p>ASSESSMENTS FOR. SEWERS.</p> <p>Seioers — Notice to Property Owners not Necessary, When — Proper Method of Assessing Unplatted Property to the Extent of Benefits —Ordinance Providing for Assessment for Sewer of a Special Nature — Publication of, not Necessary — Where Cost is lo be Met by Bond Issue — Certificate of Auditor not Required — Assessment not Invalidated by Slight Change in Sewer Plan.</p> <p>1. The notice required to be given, to the owners of property to be benefited, of resolutions and proceedings lor the construction of a sewer system, is not applicable where council is proceeding to construct a sewer that is a part of a general system that has already been planned and provided for by proper proceedings.</p> <p>2. Where unplatted property abuts on a sewer or other improvement within a municipal corporation, a part of which will not be benefited by the improvement, it is within the power of council to limit the assessment .as to such property to the extent of the benefits received by fixing the assessment in proportion to the depth of an ordinary platted lot.</p> <p>3. An ordinance providing for the assessment of property benefited by a sewer improvement is of a special nature, and not within the meaning of Section 1695, Revised Statutes, which provides for the publication of ordinances of a general nature.</p> <p>4. Where a bond issue is required for the payment of the whole cost of a proposed sewer, no certificate is required from the auditor that sufficient funds are in the treasury arid unappropriated to pay the cost thereof.</p> <p>5. Slight changes in an adopted sewer plan will not invalidate the legislation or assessments, where the sewer is not rendered less servicable, or valuable, or more expensive, and is not affected thereby in any material manner.</p>

<p>PROVING NEGLIGENCE BY CIRCUMSTANTIAL TESTIMONY.</p> <p>Evidence — As to What Caused an Explosion — Proof by Circumstantial Evidence — Not Applicable, When — Speculation and Conjecture— Contradictions — Negligence in the Sale of Gasoline — Application of the Scintilla Buie.</p> <p>1. Tbe rule which, permits the proving of a case by circumstantial evidence requires that the evidence shall be such that the court or jury can reason from established facts to well defined conclusions, and is not applicable if the conclusions are based in any degree on conjecture or speculation.</p> <p>2. ' While there is force in the contention that contradictions in testimony should go to the jury for determination, a trial judge is not warranted in sending to the jury a case involving damages for injuries, where the inherent weakness of the evidence renders it impossible for the court to say, as a deduction from the facts, that the accident happened in the manner claimed by the plaintiff.</p>

The action below was for the foreclosure of a chattel mortgage given by John A. Dellenbaugh and Sarah A. Dellenbaugh, his wife, to Firestone… Held: “A promissory note bearing interest at the rate of eight per cent. i)er annum, payable semi-annually, is not usurious, although it stipulatd that the semi-annual installments of interest shall bear interest at the same rate if not paid when due.” And in the opinion, in referring to Cook v. Courtwright, supra, it is said: “This…

<p>APPEAL FROM OVERRULING OF MOTION TO DISSOLVE ATTACHMENT.</p> <p>Attachment — Motion to Dissolve Overruled hy Magistrate — Procedure on Appeal to the Common Pleas — Section 6494.</p> <p>Where property is held by a justice of the peace under attachment and an appeal is taken from the overruling of the motion to dissolve the attachment, the proper procedure under Section 6494 is for the common pleas to determine within three days whether the action of the justice in overruling the motion was right and the decision with the original papers returned to the justice to be entered by him on his docket as the final determination of the motion.</p>

<p>DISCHARGE OF SERVANT BEFORE TERM OF SERVICE HAS EXPIRED.</p> <p>Master and Servant — Action for Damages 6y Servant — For Discharge Before Term of Service had Expired — Charge of Court as to Burden of Proof — Error—Presumption as to Character of Service Rendered ■ — Review of the Evidence.</p> <p>1. in an action for damages by a servant against the master for discharging him before his time of service has expired, it is the duty of the master to aver and prove that the discharge of the servant was for reasonable .cause, and a charge of the court “that the burden of proof rests upon the servant to show that the discharge was without any just cause therefor” is error.</p> <p>2. But where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the charge with a view to determine whether under all the circumstances substantial justice has been done, and if it has the judgment will not be reversed for error in the charge.</p>

<p>BREACH OF CONTRACT FOR. CONVEYANCE OF REAL ESTATE.</p> <p>Election Between Remedies — -Made, When — Specific Performance— Damages — Tender—Breach of Oontract.</p> <p>1. An election between remedies can be made but once, and where a plaintiff has chosen to ask for specific performance he can not subsequently maintain a suit for damages.</p> <p>2. Where a suit is filed for specific performance, followed on a later date by an action for damages, the election will be regarded as having been made at the time of the filing of the first suit, and the subsequent dismissal of the suit for specific performance by the plaintiff without prejudice, while the action for damages was still pending, does not create a bar to the prosecution of a new action for specific performance.</p>

<p>Error to Huron Common Pleas Court.</p>

<p>CONSTITUTIONALITY OF THE COUNTY SALARY ACT.</p> <p>■ Constitutional Laxo■ — Office and Officer — Who are Officers — Definitioxi of the Word “Salary" — Change of Compensation during Term of Office Law Regxilating Salaries to he Paid, to County Officers. —Legislative Power — What Constitutes Uniform Operation of a</p> <p>1. An “officer,” in the sense in which the word is used in the Constitution of Ohio, is an individual who takes the oath of office and becomes responsible to the public for his own official acts and those of his subordinates.</p> <p>2. It is competent for the Legislature to fix the salaries of county officers, leaving it to the county commissioners of the several counties to fix the sum to be paid to deputies, assistants, bookkeepers, clerks and other employes.</p> <p>3. A salary is a determined and stipulated sum to be paid for a fixed period. Officers receiving their compensation under a fee system are not salaried officers, and a change in the method of compensation from fees to a salary is not a change which “affects the salary of any officer during .his existing term.”</p> <p>4. An act providing that the salaries of county officers shall be fixed under a rule based on population does not fail of uniform operation throughout the state.</p> <p>5. The act 6f March 22, 1906 (98 O. L., 89), is not in contravention of Article II, Sections 20 or 26 of the Constitution of Ohio, and is a valid enactment.</p>

<p>SERVICES BY PROSECUTING ATTORNEY OUTSIDE OF HIS OFFICIAL CAPACITY.</p> <p>Error — Can not he Prosecuted hy a Tax-payer, When — Recovery from. County Treasurers of Interest Received hy them on Puhlie Deposits — Not Within the Official Duty of the Prosecuting Attorney — Reasonable Compensation for Such Services — Sections 1277 and 1278a.</p> <p>1. Where an action, brought on relation of the prosecuting attorney on behalf of the tax-payers of the county, is prosecuted to a final judgment favorable to the county, it is not competent for a taxpayer to prosecute error to the allowance made by the trial court to the prosecuting attorney for the services therein rendered.</p> <p>2. Services rendered by a prosecuting attorney, in an action for recovery from county treasurers of amounts received by them from banks as interest on county deposits and appropriated to their own use, are services outside of his official capacity; and where such an action results in the recovery of $215,000, which has been turned into the county treasury, it is not an abuse of discretion for the trial judge to fix the allowance to the prosecuting attorney for the services so rendered at $7,500.</p>

<p>Error to Wood Common Pleas Court.</p>

<p>LICENSING OF VEHICLES.</p> <p>Municipal Corporations — Use of Streets — Regulation of, lyy Vehicle Licenses — Exemptions from Payment — Can not he Based on Non-Residence — Ordinance—Constitutionality of — Uniformity of Operation — Injunction.</p> <p>The term “use” in an ordinance regulating the use of vehicles on the streets of a municipality and requiring payment of certain license fees therefor, has reference to continued or repeated use; and the ordinance applies to all who use the streets with the vehicles described whether residents or non-residents of the municipality.</p>

<p>IMPROVEMENT UNDER THE COUNTY DITCH LAW.</p> <p>Ditches and Drains — Power of County Commissioners to Improve Watercourse which is Partly Artificial — Water-course Established by Prescription — Location of Ditch in Living Stream — Injunction against Collection of Ditch Assessment — Estoppel—Apportionment• of Expenses — Finding of Commissioners Final, When — Defect in Proceedings not Fatal, When — Sections 4490, 4491 and 4500.</p> <p>1. County commissioners have power to improve a water-course, partly natural .and partly artificial, hy deepening, widening, straightening and otherwise improving it. Greene County Commissioners v. Harbine, 74 O. S., 318, distinguished.</p> <p>2. Although Section 4500, Revised Statutes, provides that the uninterrupted use of an established ditch for seven years constitutes a natural water-course, notwithstanding errors, defects, or irregularities in the location, establishment, or construction thereof, it was not designed to take away rights which the public had acquired over it as a ditch or drain.</p> <p>3. County commissioners may locate a ditch substantially along the line of the channel of, or adjacent to, or in the valley of, a living stream or water-course, though they have no power to convert a living stream of water into a ditch by proceedings for the location and construction of a ditch.</p> <p>4. Plaintiffs are estopped to question the right of county commissioners to establish and maintain a ditch or water-course, which has existed for a great many years and has been improved on several occasions by proceedings instituted by the county commissioners, and the plaintiffs have in some of these proceedings paid the assessments without objection.</p> <p>5. Where plaintiffs, by reason of artificial improvements on their own lands above, helped to make it necessary for the protection of the lands below that improvements be made in a ditch or watercourse, they should contribute toward payment thereof.</p> <p>6. Unless injustice is apparent in the assessment of the expense incurred in ditch improvement proceedings, a court of equity will not disturb the findings of the county commissioners.</p> <p>7. Under Sections 4490 and 4491,-Revised statutes, the failure of county commissioners to find affirmatively and enter upon their docket that a ditch improvement is conducive to the public health, convenience and welfare is an irregularity that may he disregarded or cured, and is not necessarily fatal to the validity of the proceedings.</p>

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

<p>WHEN JUDGMENT MAY BE SET ASIDE AT A SUBSEQUENT • TERM.</p> <p>Judgments and Decrees — Action upon, at Subsequent Term — Motion for, must be Filed, When — Appeal—Dismissal of, for Default for Petition — Sections B5S9 and 5354 to 5357 — Error—Pleading—Continuance — Notice.</p> <p>1. A motion to set aside a default judgment and revive the cause for further consideration may be heard at a term subsequent to that of the entry of the judgment, only when the motion has been filed during the term of the entry and duly continued.</p> <p>2. An appellate court has authority, under Section 6589, to dismiss an action and adjudge the costs against the appellant on, its own motion, when the appellant is the plaintiff and is in default for a petition.</p>

<p>OVERLAPPING OF LOCAL OPTION DISTRICTS.</p> <p>Elections — Under the Jones Local Option Law — Overlapping of Districts — Motive of Signers of Petitions can not he Inquired into— Policy of the State Tending toward a Stricter Regulation of the Liquor Traffic — Construction of the Phrase “Residence Districts.”</p> <p>On May 21, 1907, a majority of the electors of a residence district in the city of Portsmouth signed a petition under the act, 98 O. L., 68, in favor of prohibiting the sale of intoxicating liquors in that district. This petition was filed with a judge, found sufficient, and the residence district duly established prior to October 24, 1907. On the latter-date another petition was filed with the judge, also in favor of prohibiting the sale in the residence district described in it. The residence district described in the second petition overlapped the first and was identical with it, except that the second had an additional block attached containing forty-five electors.</p> <p>Held: Residence districts established under said act are territorial units; the act does not authorize the overlapping of a valid prior residence district by a later petition.</p>

<p>ESTOPPEL AS TO THE COLLECTION OF A STREET ASSESSMENT.</p> <p>Streets — Ordinance for Improvement of — Coxmcil not Estopped by Preliminary Resolution — Fr.om Laying a Heavier Burden, When —Requisites of Estoppel in Pais — Evidence as to Mistake — Incidental Items Chargeable in Paving Assessment.</p> <p>1. Council is not estopped from fixing a different proportion in an assessing ordinance, and thus laying a heavier burden on property owners, by reason of the fact that in the original resolution and ordinance declaring it necessary to improve the street they fixed the proportion they intended to assess upon the abutting property, where property owners have done nothing in reliance upon the declarations in such ordinance and resolution.</p> <p>2. To constitute an estoppel in pais, the party claiming such estoppel should have proceeded upon the admission, or declaration, or statement, or whatever it may be to his prejudice.</p> <p>3. To establish a mistake in the proceedings of a city council 'preliminary to the making of an improvement, the proof must be clear and satisfactory.</p> <p>4. A charge against an abutting owner in a paving assessment for removing the water boxes on the street, which were put in by the city, and not by a private person or corporation, is a legitimate item of expense.</p>

<p>JURISDICTION IN ATTACHMENT.</p> <p>Constitutional Law — Jurisdiction of Justices of the Peace in Attachment — Amendment to Section 584 Invalid.</p> <p>The amendment of Section 584, Revised Statutes, passed April 18, 1S94 (93 O. L., 146), excepting Cuyahoga and Franklin counties from the general provisions of said section as to the jurisdiction of justices- of the peace in attachment cases, is unconstitutional; and justices of the peace in said counties, as well as in all the counties of the state, háve jurisdiction co-extensive with their counties “to issue attachments and proceed against the goods and effects of debtors in certain cases.”</p>

<p>RIGHTS OF A LESSEE IN POSSESSION UNDER AN UNEXECUTED LEASE.</p> <p>Landlord and Tenant — Defective Lease — Tenant in Possession Thereunder — Effect of Holding Over — Property Changes Hands — Purchaser with Knowledge of the Facts Brings Proceedings for Dispossession — Magistrate's Judgment of Ouster not a Bar to Action for Injunction — Forming of a Partnership Toy Lessee without Effect, When — Tender—Proper Place for Payment of Rent.</p> <p>1. Where a tenant has been in possession for a considerable period under an imperfectly executed lease, the writing will be treated as a contract for a lease, and as against a purchaser of the property having knowledge of the fact, who is seeking to oust the tenant, a decree will be granted directing that a valid lease be executed.</p> <p>2. An action in forcible entry and detainer in such a case, in which a judgment of ouster has been taken by the purchaser, is not a bar to injunction proceedings brought by the tenant to prevent interference with his possession.</p> <p>3. The fact that the lease in its imperfect form was made to R, who subsequently with the knowledge of the lessor brought in another as a partner with him in the business, would not operate under the statute to invalidate the agreement for occupancy.</p>

<p>Appeal from Wood Common Pleas Court.</p>

<p>STATUTE OF LIMITATIONS AND STREET ASSESSMENTS.</p> <p>Street Assessments — Contest, of, not Barred at the End of Eour Years —Benefits—Laches—Estoppel—Purchasers of Abutting Property Chargeable with Notice — And Liable for Assessment, When.</p> <p>1. Section 4982, Revised Statutes, limiting to four years the time for bringing certain actions, does not apply to an action for the reduction of a street assessment in excess of benefits.</p> <p>2. Abutting owners, who knew of the defective construction of a street before the work was approved and the reserve fund paid to the contractors, are thereafter estopped from contesting the assessment on the ground of such faulty construction.</p>

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

<p>Heard on motion to set aside judgment.</p>

<p>EVIDENCE AS TO RELATIONSHIP OF VICE-PRINCIPAL AND SUBORDINATE.</p> <p>Charge of Court — Evidence Establishing the Relation of Superior and Subordinate — Instructions which in Effect took the Case from the Jury.</p> <p>Evidence which shows that the defendant’s foreman told the plaintiff to help A whenever A called upon him to do so is sufficient to establish the relation of vice-principal and subordinate between A and the plaintiff.</p>

<p>MAINTENANCE OF WORK HOUSE PRISONERS.</p> <p>Municipal Corporations — Action against County for Maintenance of Prisoners Convicted of Violating State Statutes — Construction of Section 1536-869, and Section 2881/1).</p> <p>1. The liability of county commissioners for -maintenance of prisoners, sentenced by the common pleas court to a city work house, is not essentially contractual, but is based rather on the mandatory requirements of Section 1536-369, Revised Statutes.</p> <p>2. Section 1536-369 is comprehensive, and excludes the interpolation of any supposed but unexpressed policy of the state as reflected by past legislation with reference to the distribution of the expense of maintaining prisoners offending against state statutes and city ordinances respectively.</p>

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

<p>Error to Erie Common Pleas Court.</p>

<p>NOTICE OF DEFECT IN STREET.</p> <p>Streets — Defect in — Constructive Notice of to the Municipality — Error— Evidence as to Appearance of Defective Place.</p> <p>In an action for injury resulting from an alleged defect in a street, it is error to overrule a motion by the city for an instructed verdict in its, behalf, where actual notice of the condition of the street is not claimed, and there is no evidence of constructive notice except as based on speculation.</p>

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

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

<p>PAROL TESTIMONY AS TO CONSIDERATION EXPRESSED IN DEED.</p> <p>Consideration — Where Expressed in a Deed as Yaluahle — May he Shoion by Parol to have been for Love and Affection, When — Distribution — Receipt for Advancement — Section J¡112.</p> <p>In an action for the distribution of a decedent’s estate coming by inheritance, parol evidence is admissible to show that a deed which, upon its face expresses a valuable consideration, was in fact a gift for natural love and affection as an advancement. Cowden v. Cowden et al, 7 C. C. — N. S., 277, overruled.</p>

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

<p>ASSESSMENT OF DAMAGES FOR. NUISANCE JOINTLY CREATED.</p> <p>Nuisance — And Damages for the Creation Thereof — Where Due to the Wrong-doing of Various Parties — Joint Liability in an Action to Abate — But not in ana Action at Law for Damages — Separation of Damages — Charge of Court — Error—Pollution of Stream — Noxious Vapors.</p> <p>The liability of different persons and agencies contributing by inde pendent action to the production of a nuisance, (while joint in a suit in equity to abate the nuisance, is not joint in an action at law for damages; and where a jury is impanneled to assess damages against one only of the independent wrong-doers, they should be instructed to find, with a liberal hand if necessary but as accurately as possible, the amount of damage resulting from the acts of that particular wrong-doer.</p>

<p>WIDOW MADE QUASI TRUSTEE FOR CHILDREN.</p> <p>Wills — Life Estate in Widow — Residue to Children — Improvident Expenditures hy Widow — May he Required to Answer as Quasi Trustee.</p> <p>A widow to whom property was devised for life, with power of disposition “for her use and benefit,” the residue at her death to be divided among the testator’s children, is a quasi trustee for said children, ap.d must answer to their charge that she has improvidently and wastefully used sums in excess of the reasonable expense of her support, moved out of the state and is dissipating the estate.</p>

<p>ASSESSMENT FOR COUNTY DITCH PARTLY WITHIN VILLAGE.</p> <p>Ditches and Drains — Improvements of, where the Ditch is Partly Within a Village — Individual Tax-payer in Unincorporated Village having no Solicitor — Gan not Sue to Enjoin Misapplication of County Funds — Constitutional Law — Notice to Property Owner —Appeal—Sections ITfS, J/jSS and 4W.</p> <p>1. An individual tax-payer of an unincorporated village having no solicitor can not, under Revised Statutes 1778, which provides for suit by a tax-payer on behalf of municipality, bring action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county ditch lying partly within the limits of a municipality.</p> <p>2. Sections 4483 and 4484, providing, procedure for the petitioning by a municipality, through its mayor, for the improvement of a county ditch lying partly within the municipal limits, is not unconstitutional for failure to provide for notice to property owners, or for appeal, or for a jury, inasmuch as these sections are to be taken as part of the entire chapter applying to ditches wherein provisions are made for such matters.</p>

<p>Error to Belmont Common Pleas Court.</p>

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

<p>BROKER’S COMMISSION FOR. FINDING A PURCHASER.</p> <p>Contract with Broker — For Sale of Land — Purchaser Found — Tender of Agreed Amount Made — Commission Payadle Notwithstanding Offer to Purchase was not in Writing.</p> <p>When an owner contracts in writing with a broker to sell a parcel of land, and the broker secures a purchaser who oilers to take the land in accordance with such contract, and duly tenders the money to and demands a deed from the owner, such broker is entitled to his commission although no memorandum in writing of the contract between the broker and purchaser was signed by the purchaser.</p>

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

<p>Appeal from Columbiana Common Pleas Court.</p>

This ease was begun in the probate court, where Mr. Herron set up as administrator of the estate of Jacob R. Stewart, that the deceased died intestate, leaving as his sole heirs, next of kin and distributees, Carrie E. Stewart, his widow, George F. Stewart, Gertrude Stewart Titus and Mary L. Hazleton, his children; that intestate at the time of his death was in possession of 360 shares of capital stock in the Bradford Machine Tool Company, of the par value of $100 each,…

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

<p>LIABILITY OF MANUFACTURERS AND WHOLESALE DEALERS FOR DOW LAW TAX.</p> <p>Taxation — Sales of Beer by a Brewing Company from Cold Storage Elsewhere than at the Brewery — Creates Liability for Low Tax, When — Construction of the Phrase “Trafficking in Intoxicating Liquors” — Effect of Taking Blanket Orders with Subsequent Deliveries When Desired by Those Ordering — Sale Complete, When —Injunction—Section J/36j-9.</p> <p>A brewing company manufacturing and selling beer at wholesale, which maintains a cold storage house in a location separate from its manufactory, and from which cold storage house daily deliveries of beer are made to customers on orders previously taken by a soliciting agent, thereby becomes a trafficker in intoxicating liquors within the meaning of Revised Statutes, 4364-9, and is subject to the Dow tax provided for by that act. Diehl Brewing Co. v. Spencer, 9 C. C. — N. S., 577, not followed.</p>

<p>PROSECUTION FOR. CRUELTY TO ANIMALS.</p> <p>Criminal Law — Prosecution under Section 6951 for Cruelty to Animals —Plea in Bar — Based on Conviction of Cruelty to Another Animal —Criminal Liability of Principal — Where Wrongful Act is Done by Agent — Offenses against Public Policy — Prima Facie Case.</p> <p>1. Where the owner of several teams, engaged with different drivers on the same work, is prosecuted and convicted of cruelty to a mule that, was being worked with sore shoulders, such conviction can not be set up as a plea in bar to a second prosecution for cruelty on the same day to another mule, which was working in another team and with a different driver.</p> <p>2. A primes facie ease of criminal liability is made against a principal, when it is shown that an act which is made an offense under the statutes was done by his agent in the course of his employment and with the apparent authority of the principal.</p>

<p>APPLICATION OF USURY LAW.</p> <p>Interest and Usury — Pleading—Burden and Sufficiency of Proof — Usury Law Not Applicable to Contract for Hamrding Money in Business —Advancements for Joint Venture not Usurious although Profits are Liquidated.</p> <p>1. Where usury is pleaded as a defense to a written instrument in contradiction to the terms of such instrument, the burden is on the party so asserting it, and the plea must be supported by clear and satisfactory evidence.</p> <p>2. Where one person hazards, in a' business to be conducted by himself and others jointly, or by such others for his benefit, money which is by agreement subjected to the risks of the business, the law as to usury does not apply.</p> <p>3.. An agreement whereby the first party thereto advances sums of money to be used by the second parties in conducting a business of making usurious loans and purchasing time certificates of wage earners, the profits and losses of such business to be divided and borne equally by such parties, is not usurious and is not made so by subsequent amendment whereby the first party promises to accept a stated per cent, on the moneys so advanced, as liquidated profits, or in lieu of profits. The original agreement as to apportionment of losses remained unchanged.</p>

<p>ASSIGNMENT OF LIFE INSURANCE POLICY.</p> <p>Life Insurance — -Assignment of Policy without Delivery — Subsequent Assignment with Possession — Conflicting Claims of Assignees to the Proceeds — Priority—Collateral.</p> <p>The proceeds of a policy of life insurance are payable to tbe extent of his claim to an assignee of the policy without delivery, in preference to a subsequent assignee in whose possession the policy was placed. r</p>

<p>ALLOWANCE OF EXPENSES TO SHERIFFS.</p> <p> Construction of 98 O. L., 98, Providing Additional Compensation for Maintaining Horses and Vehicles. </p> <p>In Section 1296-29 (98 O. L., 96), which makes an allowance to sheriffs for “all expense of maintaining horses and vehicles necessary to the proper administration of the duties of his office,” the word “maintaining” is used in its ordinary meaning, and only expenses incurred in supporting, sustaining and supplying horses with the neceessaries of life and in keeping them and their vehicles in good condition, can be allowed; it does not mean that a sheriff may purchase at the county expense the necessary horses and vehicles.</p>

Relators filed their separate petitions in the Circuit Court of Pike County, Ohio, alleging that the board of commissioners of Pike county had failed and refused to file a detailed report of their financial transactions for the year ending August 31, 1907, itemized as to amount, for what purpose and to whom paid, as they are required to do by statute; that the report already filed by them was so condensed as to defeat the object of the statute requiring such report.

<p>STREET IMPROVEMENT WITH WOOD BLOCKS.</p> <p>'Specifications for Street Improvement — Preparation of Wood Blochs— Bevier Patent not Infringed — Requirements as to the Quality of Oil Used — Practicability of Specifications — Bids and Bidding.</p> <p>1. The specifications as to wood blocks to be used in tke street improvement involved in this case are not an infringement of the Bevier patent, but refer to a different process for the preservation of wood, which is not new.</p> <p>2. The court finds that the pure coal tar creosote oil required by the specifications may be obtained in the market, notwithstanding testimony of experts to the contrary, and bidders were therefore not shut out of the competition by reason of being unable to'obtain oil of that' character and quality.</p>

<p>QUALIFYING THE POWER OF PRIVATE CORPORATIONS.</p> <p>Constitutional Law — Denial in Section 3231-1 of the Inalienable Right to Contract as Applied to Corporations — Legislative Power over Corporations — Injunction—Laborers’ and Mechanics’ Liens — Municipal and Private Corporations on the same Plane.</p> <p>1. The inalienable right to acquire property involves the right to make contracts with reference'to property, and that right appertains not only to individuals but to private corporations and to municipalities; and applying the holdings of the Supreme Court (55 0. S., 423, and 67 O. S., 197) the Legislature is as destitute of power to alienate or qualify the right of a private corporation to contract as it is to alienate or qualify the rights of individuals in the same respect.</p> <p>2. Section 3231-1, Revised Statutes, relating to liens for labor and material furnished certain public works, under the principles enunciated in the cases cited, is unconstitutional.</p>

<p>SALES C. O. D. OF INTOXICATING LIQUORS IN DRY TERRITORY.</p> <p>Sales — Of Intoxicating Liquors O. 0. D. — -Sale Complete, When — Delivery to the Carrier Constitutes Actual Receipt Toy the Purchaser — • Agency of. the Carrier — Collection on Delivery Constitutes Retention only of Vendor’s Lien — Contracts, Complete and Executory —Criminal Law.</p> <p>When a purchaser living in a local option district orders, in writing by mail, from a person lawfully engaged in the liquor business outside of such district, a package of liquor to be sent to him for bis own use by express C. O. D. to a station within the prescribed district, and such purchaser received such package, pays the price for the.same and the charges for the return of the money to the express company for the seller, the sale is complete upon the delivery of the package to the express company by the seller and he does not violate the law in the prescribed district.</p>

<p>Error to Stark County Common Pleas Court.</p>

<p>APPEAL FROM APPOINTMENT OF A RECEIVER.</p> <p>Final Order — Appointment of a Receiver Does not Determine Ultimate Rights, When — Error May Lie when Appeal will not — Statutes Governing Appeals and Proceedings in Error — Sections 5226, 6707, 6709 and 572 — Jurisdiction—Costs.</p> <p>An order appointing a receiver, but going no further in the way of determining ultimate rights, is not such a final order as will give a court jurisdiction on appeal, even though regularly made and all the forms of law observed in perfecting the appeal.</p>

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

<p>DISCREDITING A WITNESS ONCE CONVICTED OF CRIME.</p> <p>Damages — For Assault and Battery — Not Excessive, When — Contradic- ' tory Evidence — Effort to Discredit a Witness by Producing Record of Conviction — Objection to the Record Properly Sustainedr— Credibility not Affected by Offenses against City Ordinances.</p> <p>1. In an action for damages for assault and battery in throwing the plaintiff down a flight of stairs, the jury are warranted in assessing punitive as well as compensatory damages and in also including a reasonable attorney’s fee; and where the verdict was for $450, it will not be.set aside as excessive.</p> <p>2. It is only such a conviction as under the old law would have rendered a witness incompetent that can be introduced under the law as it is today to discredit him; and where for the purpose of discrediting a witness a record is offered of conviction of an offense which is not made a" crime or misdemeanor under any statute of the state, and was in violation of a city ordinance only, it is not error to sustain an objection to its admission in evidence.</p>

<p>IRREGULARITIES IN STREET IMPROVEMENT ASSESSMENTS.</p> <p>Streets — Reassessment for Improvement of — After Invalid Assessment has been Set Aside — Not Invalidated Because of Settlement as to Some of the Lots — Effect of Omission of Parcel from the Land Described — Presumption that Error was Prejudicial not Applicable to Street Improvement Proceedings — Informality must be Shown to be Prejudicial.</p> <p>,1. Where a street improvement assessment has been set aside after settlement has been made as to part of the lots and lands affected, a reassessment of the lots with respect to which there has been no settlement is not invalid because the lot's 'covered by the settlement are omitted from the reassessment.</p> <p>2. The fact that a parcel of land described in a special improvement ordinance is not specially assessed does not affect the validity of the assessment, provided such parcel is not specially benefited by the improvement.</p> <p>3. The principle that in error proceedings when error is shown it is presumed to be prejudicial, does not apply to irregularities in apportioning improvement assessments; such cases are governed by the principle of liberal construction provided for in Revised Statutes, Section 2327 (1536-280).</p> <p>4. An informality in an improvement assessment is not a sufficient ground for setting aside the whole assessment, unless it is shown that prejudice has resulted to the plaintiff by reason of such informality.</p>

<p>CONTRIBUTORY NEGLIGENCE.</p> <p>Negligence — In Crossing a Railway Trade without Looleing — Rrror in not Directing a Verdict.</p> <p>Where one who is familiar with the location of railway tracks attempts to cross without looking for an approaching train, which might have been seen two thousand feet away, and is struck by it, he is guilty of contributory negligence, and it is error to refuse to direct the jury to return a verdict for the company.</p>

<p>Error to Lucas Common Pleas Court.</p>

<p>UNFORTUNATE SITUATION OF A ROAD CONTRACTOR.</p> <p>Invalid Contract for Improvement of a Road — No Record of Commissioners’ Meeting — No Auditor’s Certificate — No Authority to Order an Accounting for Worlc Done — Recovery of Property Impracticar hie — Implied Contracts.</p> <p>A contract between county commissioners and one who undertakes to pike a county highway is invalid, where no record of the meeting of the commissioners was made, and no auditor’s certificate was filed or recorded as required by Section 28345, Revised Statutes; such a contract can not be enforced against the county; nor can an equitable accounting be granted for the labor and materials expended in improving the road.</p>

<p>AVERMENTS AS TO NEGLIGENCE.</p> <p>Pleading — Where it is Claimed Motorman was Aware of Plaintiff’s Peril —Negligence—Error—Charge of Court.</p> <p>Where there is no averment that the motorman of the car which caused the injury knew or should have known of the plaintiff’s peril, a charge of court is erroneous which makes the defendant company liable for the resulting injury, if the jury find from the evidence that the motorman might have stopped the car after he became aware, or by the exercise of reasonable care might have become aware, of the danger to which plaintiff was exposed.</p>

<p>Error to Lucas Common Pleas Court.</p>

<p>NOTICE AS TO ASSESSMENT BY A BENEFICIAL SOCIETY.</p> <p>Mutual Benefit Societies — Notice of Assessment — Proof of Mailing— Manner of Directing — Presumption that Letter was Delivered— Burden of Proof — Preponderance of Proof — Charge of Court — Prejudicial Error — ■Evidence.</p> <p>1. A fraternial beneficial association having been apprised of a change of address of an insured can not predicate a forfeiture upon failure to pay an assessment, if by reason of its failure to record such change the requisite notice, mailed to the former address, was not in fact received by the member.</p> <p>2. Proof of the mailing of a letter, properly stamped and addressed, affords prima facie evidence of its receipt by the person to whom directed; and this applies notwithstanding the address of the addressee may have been lately changed, as in this ease, the well known accuracy, knowledge, facilities and practice of the post office department in such matters raising a presumption of delivery; but this being a rebuttable presumption, which may be met by evidence of equal weight or countervailing force, a preponderance of proof that it was not received is not necessary to overcome the presumption of delivery.</p> <p>3. A judgment will be reversed where the charge improperly requires the burden of proof upon an issue, especially where the evidence is close and conflicting, and not so clear and conclusive as to enable the reviewing court to say prejudice did not result therefrom.</p>

<p>HOURS OF CONTINUOUS SERVICE BY RAILWAY TRAINMEN.</p> <p>Railways — Construction of Section SSGo-U/ — Limiting Hours of Continuous Service by Railway Trainmen — Action for Wrongful Death— ' Charge of Court — Designating One Issue as the Real Issue not Prejudicial Error, When — Evidence.</p> <p>1. The fact that railway trainmen have been on duty for more than fifteen consecutive hours does not amount to a violation by the company of Section 3365-14, unless it appears that the company permitted or required them to undertake the run without at least eight hours rest subsequent to their last preceding run, and not then unless the jury find from the evidence that the last preceding run occupied more than fifteen consecutive hours.</p> <p>2. In an action for wrongful death it is error to permit evidence to go to the jury which embodies an admission by the decedent of his own negligence.</p> <p>3. The designation in ihe charge to the jury of one issue in the case as the real issue is not prejudicial to a defendant, but might be a subject of complaint by a plaintiff who had presented several issues upon which he might be entitled to recover.</p>

<p>CAUSES OF ACTION AND THEIR PROPER. STATEMENT.</p> <p>Contracts — Pleading in an Action for Recovery on — Separation and Numbering of Different Causes of Action — When Separate Causes Become Merged.</p> <p>1. The numbering of paragraphs in a pleading is not approved for the reason that it leaves room for doubt and uncertainty as to whether it is intended to simply number the paragraphs or to number the causes of action.</p> <p>2. The different breaches of a contract are separate causes of action if sued on when occurring, but if no action is brought until after the term of the entire contract, the different breaches become one cause of action, and it is error to require plaintiff to separately state and number the different breaches as separate causes.</p>

<p>REGULATIONS AS TO SMOKE.</p> <p>Municipal Corporations — Regulation of the Emission of Smoke by Ordinance — Reasonableness of the Provisions — Nuisance—Presumption — Who may be Prosecuted — Criminal Law.</p> <p>1. It is within the power of a municipality to provide by ordinance; for the regulation of the emission of smoke.</p> <p>2. The test as to the validity of such an ordinance is its reasonableness; and unless it is shown to be clearly unreasonable, it should not be declared void.</p> <p>3. In a prosecution for violation of an ordinance regulating the emission of smoke, the proper defendant is the corporation permitting the emission, or the employe causing it.</p>

<p>FRAUDULENT MARKING OF VOTING LIST.</p> <p>Elections — Indictment for Marking Voting List at Primary — Method of Proof — Publications During Trial-Charging Bribery of Jurors —Not Prejudicial, When — And not Ground for a New Trial — Disqualified Jurors Included in the Panel — Objection Thereto Waived, When — Receiving the Verdict — Recital of the Transcript as to Polling of Jury — Declaration by Prosecutor as to Conduct of Defendant not Misconduct, When — Section 1061.</p> <p>1. The publication during the progress of a trial in a criminal case, in a paper of large circulation in the municipality where the trial is being held, of articles in which it is charged that attempts have been made to bribe the jury, together with pictures of certain jurors alleged to have been offered bribes, and the appearance of copies of the papers containing these publications in the court room, does not afford ground for the granting of a motion to discharge the jury because of such publications and the prejudice created against the defendant thereby, where there is no evidence offered that the papers containing the objectionable matter came into the hands of any of the jurors or were read by them.</p> <p>2. Neither does the fact that these or any other publications, calculated to prejudice the case of the defendant in the minds of the jury, were made and extensively read by others than the jury during the progress of the trial constitute ground for the granting of a motion for a new trial.</p> <p>3. The fact that one of the jurors who sat during the trial was dis-disqualified, for the reason that his name was not drawn from the jury wheel and he was not regularly summoned, does not afford ground for a new trial, where it appears that the fact of the disqualification was known to counsel for the defendant at the time the jury was impanneled and no objection was madé.</p> <p>4. While service on the grand jury which returned the indictment constitutes ground for challenge where the same person appears in the petit jury panel, failure to make inquiry as to such service or to exercise the right of challenge constitutes a waiver of the objection, and under such circumstances service on both the grand and petit juries by the same person does not afford ground for a new trial.</p> <p>5. In a criminal case it is proper for the judge rather than the clerk to call the jury; and where it does not affirmatively appear that only eleven men were called, and no objection was made to the call at the time, and the transcript.of journal entries recites that “the jury returned their verdict into court and were properly inquired of,” it must be assumed that the entire twelve men were called.</p> <p>6. The proof offered, that a certain mark opposite certain names on the certified list of voters at a primary election was made by the defend- . ant, in this case, was sufficient to establish that fact beyond a reasonable doubt; and the use of these marks as a standard, from comparison with which an expert testified that other marks made opposite other names were made by the same hand, was a legal method of proof and established the fact claimed beyond a reasonable doubt.</p> <p>7. Where the prosecuting attorney was challenged by counsel for the defendant to state to the jury why he had not tried the case long before, and in his reply the prosecutor declared the reason was the defendant absconded and could not be found „by the police, the declaration does not if true amount to misconduct and the trial is not vitiated thereby.</p>

<p>PARTITION FENCES.</p> <p>Construction of the New Law — Relating to Partition Pences — Enclosed and Unenclosed Lands now under the Same Rule — Section Jf239 as Amended — Constitutional Law.</p> <p>Under the act of April 18, 1904, owners of adjoining lands are required to build and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon between them in writing, although such lands may not be enclosed with fences.</p>

<p>MORTGAGE EXECUTED UNDER PARENTAL DURESS.</p> <p>Duress — Where Exerted hy Parents upon a Ohild — Burden of Proving Good Faith — Mortgage—Presumption—Banks and Banking — Fraud ■ — Acknowledgment—Deed—Parol Evidence.</p> <p>1. A petition for cancellation of a real estate mortgage on the ground of parental duress exerted soon after plaintiff attained her majority, whereof the defendant mortgagee had knowledge or will be held to have had knowledge, is not open to demurrer.</p> <p>2. While a mortgagee in such a transaction will not be held to the ascertainment of bad faith at his peril, it is incumbent upon him to make reasonable inquiry when the known facts suggest that an improper advantage is being taken of a fiduciary relation; and the convenience of banking houses in transacting business with persons thus related is subordinate to the protection of the property rights of persons in actual or quasi wardship from the greed of their protectors.</p>

<p>POLICE COURT PROSECUTIONS UNDER THE NEW STATUTE.</p> <p>City Solicitor and Prosecuting Attorney of the Police Court — Effect of Appointment of an Assistant Prosecutor — Fees—Mandamus—Sections 1536-668 and 1586-844.</p> <p>The appointment of an assistant prosecuting attorney for the police court does not have the effect of terminating the tenure of the city solicitor to the office of prosecuting attorney of the police court. The city solicitor continues to he ex-officio police court prosecutor, and the county auditor may he compelled by mandamus to recognize such solicitor’s claim to the compensation to which he is entitled by virtue of the statute.</p>

<p>QUESTIONS RELATING TO SEWER. ASSESSMENTS.</p> <p>Ordinances — For Sewer Improvements — Notice to the Property Owner —Law Governing Assessment — Pumping Station may be Included in Cost — Benefits—Surface Drainage and Storm Water — Jurisdiction for Reduction of Assessment.</p> <p>1. A sewer district is not changed by a reference in the resolution of necessity to a part of the territory only, leaving the remainder for future description and improvement.</p> <p>2. Where the sewer is adequate and so located that it may be utilized in the future, the lands must be regarded as'specially benefited, notwithstanding the property is not so improved as to make sewer connections available.</p> <p>3. A pumping station is a necessary part of a sewer equipment and its cost may be included in the assessment.</p> <p>4. There is no jurisdiction in a court of equity to reduce a sewer assessment which is not grossly excessive.</p>

<p>INSANITY OF DEFENDANT IN A DIVORCE ACTION.</p> <p>Divorce and Alimony — Property Rights where the Defendant is Insane — Adjudication may Proceed — Trustee for Defendant — Appeal —Sections 5106, 1¡056 and 5000.</p> <p>1. Property rights of parties to a divorce proceeding may be adjudicated, notwithstanding the defendant is insane. Whether present insanity is a bar to divorce is not decided.</p> <p>2. In the absence of any special provision in the chapter of the Revised Statutes on divorce with regard tó procedure as to an insane party, the general statutes apply; and the appointment of a trustee for an insane defendant in a divorce proceeding is proper.</p>

<p>MOMENTARY FORGETFULNESS IN A PLACE OF DANGER.</p> <p>Negligence — Street Gar Conductor Knocked from, Gar — At a Point of Known Danger — Roof Projected Almost to Line of Gar- — Unfortunate Warning Caused Accident — Assumed Risk — Pleading—Gause Arrested from Jury.</p> <p>Where a street car conductor, in response to the warning “Look out,” projects his head beyond the line of the car and is struck by a projecting roof and killed, the question of contributory negligence between him and the superior who gave tlie warning would be one for the jury;- but in the absence of any averment that the conductor did not know of the projecting roof, and the evidence indicating that he must have known of it if he exercised ordinary care, it was not error for the court to take the case from the jury on the ground of assumed risk.</p>

<p>FATAL IRREGULARITIES IN A COURT HOUSE CONTRACT.</p> <p>Contracts — Bond for the Faithful Performance thereof — Action on Bond —Pleading—Necessity of Compliance with Section 799 — Procedure Where Contractor Fails to Complete the Work — Provisions as to County Contracts not for the Benefit of the Sovereign Power only — When a Judgment Should he Affirmed.</p> <p>1. A judgment should be affirmed, if among the defenses interposed there was any one that was valid, or if there is any other sufficient reason under the law for sustaining the judgment.</p> <p>2. There can be no recovery in an action against a contractor and his sureties for damages by reason of failure to complete a contract entered into with county commissioners, where there is no averment that the contract relied on was one of binding force and effect.</p> <p>3. It is also necessary to aver compliance with Section 799, Revised Statutes, by alleging endorsement of the contract by the prosecuting attorney and performance of all the other pre-requisites to a complete and valid contract.</p> <p>4. These pre-requisites are not for the benefit and protection of the sovereign power alone, but they are of the essence of the contract, which without them becomes null and void.</p>

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

<p>INJURY FROM PROJECTING ARM FROM CAR.</p> <p>Negligence — Pleading—Amendment—Charge of Court — Speed and Construction of Car — Knowledge of Plaintiff as to Danger.</p> <p>1. In an action for injuries to the arm of plaintiff while it was projected from a window of the car in which he was a passenger, the averment that while he “was sitting in said car with his arm on the window sill, it was thrown out of the window by a sudden jerk or movement of the car,” states a good cause of action, when taken in connection with allegations as to the dangerous construction of parallel tracks and the proximity of the cars to each other.</p> <p>2. In the absence of allegations or evidence as to improper construction or rate of speed of the car, it is error to instruct the jury with reference to those matters.</p> <p>3. The proper test as to knowledge of danger under such circumstances is not that possessed by plaintiff, but that of persons of ordinary care and prudence when placed under like circumstances.</p>

This ease originated in the Court of Common Pleas of Richland County by the plaintiff, Zeigler, filing hi® petition and seeking an injunction against B. Frank Palmer, restraining him from interfering with his duties and labors as superintendent of the county infirmary, alleging that said B. Frank Palmer was in possession of and remaining in said infirmary building, and that he obstructed the plaintiff in his work and duty and still threatens to obstruct him in the discharge…

<p>STREET IMPROVEMENT ASSESSMENTS FOR STREET INTERSECTIONS.</p> <p>Assessments — Basis-of, under Section 2275, with Reference to Intersections — Burden of Showing Benefit to Lot Omitted from Assessment —Benefits—Intersections.</p> <p>1. One seeking to enjoin a street assessment, on the ground that lots or lands which should have been assessed have been or "Jted, should make it appear that the omitted lots or lands derived some benefits from the improvement and therefore should bear •». share of-the burden of the cost thereof, and that a proper asset ment, including the omitted lots or lands, would probably reduc assessment on his property of which he complains.</p> <p>2. To bring a case within the purview of Section 2275, Revised Statutes (repealed, 96 O. L., 96), requiring the payment of a part of the cost of a street improvement by the city because of the treatment of street intersections as abutting property, it should be made 'to appear that such intersections as abutting property are benefited by the improvement, and it is not sufficient to show that the intersecting streets are benefited by the improvement'. .</p>

<p>PROCEEDINGS FOR. WIDENING, DEEPENING AND STRAIGTENING A DITCH.</p> <p>Drains ancl Ditches — Scope of Inquiry on Appeal in a Ditch Case— View by the Jury■ — Discretion of Court with Reference to — Charge of Court — Effect of Judge Entering Jury Room to Give Further Instructions — Sufficiency of Evidence as to Outlet of Ditch — Testimony of Landowners — Error—Sections 4447 and 4448.</p> <p>1. The inquiry as to the sufficiency of the outlet of a drainage ditch is involved in an appeal from a finding in a proposed ditch improvement proceeding, on the ground that the proposed improvement was not conducive to the public health, convenience and welfare.</p> <p>2. It is not error for a probate court to refuse to send the jury in a ditch improvement proceeding back for a second view of the proposed outlet, though opposing landowners were not satisfied with the first view.</p> <p>3. In proceedings before the probate court in a ditch case, where the jury after retiring asked for further instructions, and the trial judge entered the jury room with counsel for both parties and delivered the instructions asked for without objection from either party, such action by the judge can not be successfully attacked in a reviewing court on the ground that it amounted to error or misconduct prejudicial to the rights of either party.</p> <p>4. In a proceeding before the probate court for the improvement of a ditch, opposed by landowners on the ground of the insufficiency of the outlet, the jury having viewed the entire ditch and the outlet and having heard the evidence introduced at the trial is in a better position to say whether or not the outlet is sufficient than a reviewing court having before it only a transcript of the evidence produced at the trial, and the finding of the jury will not be disturbed when not manifestly opposed to the evidence appearing in the record.</p>

<p>COLLISION BETWEEN ELECTRIC CAR AND VEHICLE ON HIGHWAY.</p> <p>Evidence — Statements of Passengers with Reference to Speed — And as to Whether the Speed was Slackened Just Before the Accident— Incompetent Testimony may not he Pre,judicial — Rights of High ■ Speed Cars and Vehicles in the Highway — An Irrelevent Charge Improper — Errors in Charge Cured hy Subsequent Charges — Exceptions to Special Charges — Affidavits as to Misconduct of Jury— Bill of Exceptions.</p> <p>1. Statements of witnesses as to the time within which electric cars have been stopped, though at other times and other parts of the line, are statements of fact and are competent as evidence bearing on the question, in an action for personal injuries resulting from • a collision between an electric car and a horse and buggy, as to the time in which the car could have been stopped at the time of the accident.</p> <p>2. It does not require an expert to determine, when riding in a car, whether the speed has been slackened; and the testimony of passengers upon an electric car that just prior to an accident the car was running at its usual speed, and that there was no slackening of speed until the collision occurred, was competent.</p> <p>3. Where it appears, in such a case, that at the time the motorman noticed the peril of the plaintiff, he had ample time to stop the car, the testimony referred to in the preceding paragraphs, whether competent or incompetent, was not'prejudicial to defendant.</p> <p>4. An instruction that: “The object to be accomplished by the defendant, in the construction and operation of its road on that highway, was to furnish rapid transit for the people living along the highway, and for the general public by means of cars rapidly propelled by electricity; such use of the highway is necessarily dangerous to persons traveling thereon in vehicles drawn by horses, and as such a use of the highway is held to be reasonable and lawful, people traveling thereon in vehicles drawn by horses must exercise care commensurate with such increased, but reasonable and lawful dangers. The right of the defendant to run its car and of the plaintiff to ride in the wagon on that highway were equal. Bach assumed the dangers of the other’s reasonable use of the highway, and was bound to use ordinary and reasonable care to avoid injuring the other and being injured by the other,” while entirely proper in defining the rights of the parties in the highway, as a whole, was improper.</p> <p>5. To have instructed the jury that a street railway company is not responsible for injuries caused by the fright of a horse arising from the ordinary use of its car, where there was no evidence tending to show that there was anything in the appearance of the car which would tend to frighten a horse of ordinary gentleness, and the instruction could have no application to the issues made by the pleadings, would have been improper.</p> <p>6. An instruction that “there is no evidence tending to show that defendant was guilty of negligence in any of the respects charged in plaintiff’s petition in running its car at the time and place and under the circumstances of this case, prior to the time that the motorman discovered or by the use of ordinary care might have discovered the fright of the horse,” where the negligence was subsequent thereto, is within the rule stated in the preceding paragraph.</p> <p>7. Where evidence, in the form of affidavits in support of an allegation of misconduct of the jury, is controverted by evidence, also in the form of affidavits, and it does not appear from the record that the bill of exceptions contains all of the evidence on that question, a reviewing court can not say that the trial court erred in granting a new trial for that reason.</p> <p>8. A judgment will not be reversed because a charge to the jury too prominently set forth certain facts favorable to the plaintiff and omitted those favorable to the defendant, where such omission was offset by special requests given on behalf of the defendant.</p> <p>9. Unless exception was taken and is noted upon the record, the circuit court can not say that the giving of a particular special request was erroneous.</p>

<p>ENFORCEMENT OF STOCKHOLDERS’ LIABILITY.</p> <p>Corporations■ — Statutory Liability of Stockholders — Pleading—Judgment — Appeal—Statute of Limitations — Insolvency—Absence from the Jurisdiction — Allowance of Attorneys Pees.</p> <p>1. The indebtedness of an insolvent corporation having been ascertained in an action to assess the liability of stockholders, the averment that the defendants are stockholders but without specifying the number of shares held by each, permits the taking of a several judgment against all who are solvent and within the jurisdiction, the amount of the judgment in each case to be the proportion which the stock owned bears to the entire indebtedness together with costs.</p> <p>2. Allowance and payment of attorney fees and other expenses' out of the fund brought into court, does not prevent the prosecution of an appeal; but the appeal can only be taken as against those who have not paid the judgment rendered against them, and is without prejudice to them in the event an additional assessment should be made, and is also without prejudice to stockholders who were not made parties until more than six years after the .right of • action accrued, unless it affirmatively appear that they were in- . solvent at the time of pleading the bar of the statute.</p>

<p>A VOIDABLE RECEIVERSHIP.</p> <p>Corporations — Insufficient Allegations for a Receiver — Ratification of the Appointment of, Voidable, When — Section 581/5.</p> <p>1. The allegation in a petition for the appointment of a receiver of a corporation that a note, upon which the petitioner is endorser, becomes due on the day of the filing of the petition, does not come within the provisions of Section 5845 for the reason that it does not allege a past due indebtedness, and therefore does not state ground for the appointment of a receiver.</p> <p>2. Where the president of the corporation consents to the appointment .of _a receive!1 under such a petition, the error of the- court in naming a receiver is rendered voidable only by the subsequent ratification of the action of the president by the board of directors.</p>

<p>CONTEMPT PROCEEDINGS FOR VIOLATING AN INJUNCTION.</p> <p>Contempt — Charges of, for Violation of an Injunction — Independent Proceeding Unnecessary — Affidavit Need only Allege Violation of the Order — Penalty—Limit of Pine Prescribed Applies lo the Defendants Individually, and not Collectively — Nature of Notice which Must be Served on Defendants.</p> <p>1. Where there has been a violation of an order of injunction, it is not necessary to docket an independent action in contempt, or proceed in an independent prosecution, to enforce the order made in the civil action. The court continues to have control to enforce ,the order under authority of Section 5581, Revised Statutes.</p> <p>2. It is not necessary that the affidavit for an attachment for a violation of an order of injunction should state the pendency of the original action, the orders, etc.; all that is required, in addition to what is already upon the record, is a statement of violation of the order not in the presence of the court.</p> <p>3. The assessment of a fine, under Section 5581, for a violation of an order of injunction providing that “such party may be required by the court or judge to pay a fine not exceeding $200,” is an individual matter, and where there are several defendants each must respond for himself for the wrong he has done and the limit may be applied to each, and not to the defendants collectively.</p> <p>4. It is not necessary that persons accused of violating an order of injunction, and brought before the court upon attachment, should be served with a copy of the affidavit, or the order which they have disobeyed. Upon being served with the injunction they were supposed to inform themselves at once of what they were enjoined from doing. And where the record discloses that in a contempt proceeding the charges were read to defendants in open court, it is sufficient.</p>

<p>NECESSARIES FURNISHED TO AN INFANT.</p> <p>Infants — Boohs and Material Furnished for Instruction of — Claimed to have been Necessaries — Executory and Implied Contracts by Infants — Pleading and Evidence as to Reasonableness of the Account and Financial Condition of Parent.</p> <p>A suit can not be maintained against an infant on his express contract ,for necessaries, without an averment and proof that the price to be paid for such necessaries was reasonable.</p>

<p>CONCURRENT PROCEEDINGS ON APPEAL AND ON ERROR.</p> <p>Appeal — Effect of — Court Without Authority to Dismiss — Concurrent Proceedings on Error — Become Material, When.</p> <p>1. An appellant bas no authority to dismiss an appeal which has been properly perfected in an appealable case; but a dismissal of an appeal to which no error is prosecuted will stand, and will be construed as the judgment of the court.</p> <p>2. While error may be prosecuted before the determination of an appeal, the proceeding will avail nothing in the event the appeal Is sustained; but where the appeal is dismissed and the appellant has an error proceeding pending, it is his right to have a hearing therein, and to dismiss such a proceeding is error.</p>

The facts in this case are as follows: Plaintiffs in error sold to defendants in error at public .auction in the city of Mansfield, Ohio, on March 3, 1902, a horse, sold as coming three, sound and broke double.

<p>DEEDS SIGNED IN OTHER. THAN THE USUAL, PLACE.</p> <p>Deeds — Record of, Competent Evidence, When — Identification of Deed —Signature of Qrantor Established — Wife Signed on Opposite Page —Instrument Construed to be as to Her a Contract — Such an Instrument Sufficient as a Basis of Equitable Relief.</p> <p>1. The record of deeds is competent as evidence in an action involving title to land, where there are irregularities in the execution of the deed.</p> <p>2. The testimony of a witness who saw a deceased grantor sign a deed, and the identification of the deed in question, and the testimony of three or four expert witnesses that the handwriting is that of such grantor, there standing uncontradicted, are sufficient to establish the signature'of such grantor.</p> <p>3. A party may sign a deed elsewhere than in the place provided for that purpose; and if in other respects regular, and the signature is properly identified, the fact that one of the grantors signed on an opposite page from the place for the signature does not render a deed invalid.</p> <p>4. An instrument purporting to be a deed, and proper in all respects except as to the signature of the w.ife of the grantor, which appears in another than the ordinary place therefor, and without seal, as the law at the time required, and without proof that the witnesses were present and saw her sign her name, amounts to a deed by the husband and a contract by the wife.</p> <p>5. Such an instrument, while lacking one or more essentials as to the form of its execution, forms a basis upon which a court of equity may give relief to parties holding possession thereunder, especially where there is evidence tending to prove payment received by the wife at the time of such conveyance, and that those claiming through her acquiesced in the adverse possession of grantees for a long period of years. The instrument under these conditions confers an equitable title, and injunction to restrain acts of ownership by grantees, will be refused.</p>

<p>LOCATION WITH REFERENCE TO A DWELLING HOUSE OF AN ADDITION TO A CEMETERY.</p> <p>Cemeteries — Location of, within not less than One Hundred Yards of a Dwelling — Not an Infringement on the Vested Rights of the Property Owner, When — Such Use of Adjoining Land should be Anticipated, When — Reasonableness of the Provision in Section 3573.</p> <p>1. The change in Section 3573, whereby the distance from a dwelling at which a cemetery may be located was made not less than one hundred yards instead of not less than two hundred yards, can not be construed as an infringement on the vested rights of a property owner who purchased and made his improvements prior to such change, especially where the land which it is proposed to' devote to such use adjoins an established cemetery in a rapidly growing town.</p> <p>2. A restriction as to the location of cemeteries, which was considered reasonable when it was adopted, may be removed or modified when the Legislature determines that necessity or circumstances so demand; and it is not unreasonable to require that such modification be anticipated as to land adjoining cemeteries established, and in use, and so situated that adjoining land would naturally be selected when more burial space becomes necessary.</p> <p>3. One who purchases land adjoining the cemetery of a religious society, and builds a house one hundred and sixty feet from the nearest lot therein and makes other improvements, is not entitled to an injunction restraining the society from using for cemetery purpurpo'ses land purchased by them boerdering on the established cemetery grounds, where the part to be so used is more than one hundred yards from the plaintiff’s, dwelling, although the nearest boundary line is less than one hundred yards from his dwelling.</p>

<p>ASSESSMENTS IN EXCESS OF THE STATUTORY LIMITATION.</p> <p>Streets — Assessments for 'Improvement of — Where by Petition Under Section 2272 — Application of the Restrictions to Assessment Under the Municipal Code.</p> <p>While a lot owner can not escape payment for a street improvement made in accordance with a petition signed by him, even though the assessment exceeds the statutory limitation, he is entitled to have such an assessment added to any later assessment made within five years, for the purpose of ascertaining whether the total exceeds thirty-three and one-third per cent, of the value of the land . after the improvement has been made; and if excess is found he is entitled to relief from the second assessment to that extent.</p>

<p>HUSBANDS’ NAMES INSERTED IN PARTITION DEEDS.</p> <p>Quit-Claim, Deeds in Amicable Partition — Names of Husbands of the Heirs Inserted — Title of Heirs not Affected Thereby — Possession of Husbands not Adverse.</p> <p>1. Where a family who had inherited certain real estate agreed to an amicable partition, the heirs joining in quit-claim deeds to each other in which deeds the names of their husbands were inserted, the heirs took title by inheritance and the quit-claim deeds will be regarded as merely the means adopted to sever the tenancy in common.</p> <p>2. The insertion of the names of the husbands of the heirs in quitclaim deeds thus executed did not invest the husbands with title to any part of the property, but was a mistake of the scrivener, the husbands holding an undivided one-half of the property in trust for their wives, which upon the death of the wives descends to their heirs.</p> <p>3. Under such circumstances the occupation of the property by the husband of one of the heirs during her lifetime was not adverse.</p>