Volume 10 — Ohio Nisi Prius Reports, New Series

<p>NO TRUST ENGRAFTED ON STOCKS TRANSFERRED TO WIFE.</p> <p>Laches — In Asserting Interest in Deceased Wife’s Estate — Trust Not Engrafted on Stocks Transferred to Wife, When — Application of the Statute of Limitations — Final Account of Guardian Unimpeachable, When — Relation of Guardian and Ward After Confirmation of Account — Liability for Dividends Appropriated Under an Implied Understanding — Agreement Revocable Because Without Consideration — Close Scrutiny of Transactions Influenced by a Former Fiduciary Relation.</p> <p>FACTS.</p> <p>The defendant, for the protection of himself and family against the vicissitudes of life and fortune, in 1884 transferred to his wife certain stocks with the expectation that he would he permitted to use the dividends theref-rom, and that his wife would make a will bequeathing such stock -to him. The wife received and held such stock with the intention so to do, In 1889 the wife died intestate, leaving minor children. The. brother of the defendant was appointed administrator of the wife, and the defendant was appointed the guardian of his minor children. The stocks were inventoried and accounted for as the wife’s estate, and the defendant, without claiming' his distributive share in his deceased wife’s estate, as guardian of his children receipted and duly accounted for such stock as his wards’ property. As his wards came of age they receipted for the unexpended dividends from such stock accruing during their minority, without the payment of any part thereof, and with the approval of the probate court released their guardian from all liability therefor. The stocks were then divided and transferred by the defendant to his wards severally as they became of age.</p> <p>The two youngest children, girls, became of age respectively in 1895 and 1899. In 1901 the youngest girl, Caroline, and in 1905 the next youngest, Pearl, married without their father’s consent employes in their father’s well-known circus. Before and after marriage, except for short intervals, they lived with their father, .who liberally provided for the increased household. All the children of the defendant and his sons-in-law, directly or indirectly, were almost continually connected with defendant’s circus, and directly and indirectly drew liberally from its receipts.</p> <p>The defendant’s children, after they became of age, from time to time, by endorsements, powers of attorney and receipts, permitted the defendant to collect the dividends from their stock, and use them as he saw fit. In 1903 Caroline, and in 1905 Pearl, both after marriage, at defendant’s request, severally signed papers by which they authorized the defendant during lifetime!, to collect all dividends on their stock, to vote said stock, and with their consent to reinvest it.</p> <p>In 1908 the father married, notwithstanding the disapproval and opposition of his children. The three surviving children then instituted suits for the recovery of all the dividends on the stock collected by the defendant after the death of his wife, for the balances unexpended as shown by the final account of the defendant as their guardian, for the dividends collected by him since the filing of such accounts, and for a cancellation and setting aside of all the receipts, releases, powers of attorney, and other papers, including the instruments of 1903 and 1905, by virtue of which the defendant had collected and was to collect and use the dividends on such stock. The suit of the son John has been settled.</p> <p>The stocks were the result of an investment by .the defendant in 1867 of $3,750 in a printing plant, and from that time steadily increased in market and dividend-bearing value more than 150 per cent. The. history of the stock, their steady growth in value, the purpose of tbe transfer to defendant’s wife, the defendant’s expectation as to the use of the dividends, the mother’s intention as to such stock, and the childrens’ legal right therein were matters of family history, absorbed and understood by the children to the extent of their years and experience. The children were not deficient in intelligence or will power.</p> <p>LAW.</p> <p>1. A transfer by a husband to his wife of stocks for the protection of - himself and family against the vicissitudes of life and fortune, with the expectation on his part that he was to be permitted to use the dividends, and that the wife was to make a will bequeathing such stock to him, and an intention on the part of the wife so to do, does not engraft an enforcible trust on such stock in favor of the husband.</p> <p>2. The' surviving husband’s distributive share in his deceased wife’s personal estate, not asserted until nineteen years after said estate has been accounted for and distributed by her administrator, is barred under any possible construction of the statute of limitations.</p> <p>3. A guardian receiving and finally accounting • for personal property ■as his wards’ estate, is estopped from thereafter setting up an adverse claim thereto.</p> <p>4. The final account of a guardian duly confirmed, is unimpeachable for any cause in two years after the minors have become of age.</p> <p>5. The relation of guardian and ward after the confirmation of the guardian’s final account is that of debtor and creditor, and not trustee and beneficiary.</p> <p>6. The liability of the guardian to pay the wards the balance shown to be due in his final account, except as to the liability upon his bond, is both statutory and upon an account. As to either six years is a bar to an action for the recovery of such balance.</p> <p>7. There is no liability for dividends on stock collected and appropriated by consent express or implied, of the owner of such stock, not only with no mutual understanding that they were to be accounted for, but with an implied mutual understanding to the contrary.</p> <p>8. An agreement by the owner of stocks, by which the title to the stock is not transferred, but by which the owner of such stocks agrees to permit the dividends therein to be collected and used, under a power of attorney, giving such authority is purely executory as to future dividends, and when such agreement is without consideration, is revocable at any time as to such future dividends.</p> <p>9. Transactions between persons between whom there is a continuance of an influence of a formerly existing fiduciary relation of guardian and minor ward, unless resulting in benefit to the ward, will be examined with the closest scrutiny, and unless shown to have been had under conditions of strict justice and unquestionable fairness, and with contemplative benefit to the ward, will be set aside as far as the former guardian has derived any unjust benefit therefrom.</p> <p>10. The statute of limitations, if applicable to an action to set aside such a transaction, does not begin to run until there is full knowledge of the facts and conditions, and such knowledge does not exist until after the influence of the former relation has completely ceased.</p>

<p>SEWER. ASSESSMENTS AGAINST CORNER. LOTS.</p> <p>Sewers — Assessments Against Corner Lots for Construction of — Lot May he Assessed on Both Streets — Limitation of Assessments— Section 53 of the Municipal Code.</p> <p>A corner lot abutting on two streets in which sanitary sewers have . been constructed is subject, as the law now stands, to assessment for both sewers where both sewers were constructed at the same time and were a part of the same system, and the assessment for both is limited to an amount which would not exceed the amount “required to construct an ordinary street sewer or drain of sufficient capacity to drain or sewer” the said property.</p>

<p>CONSOLIDATION OF BENEVOLENT ORGANIZATIONS.</p> <p>Benevolent Institutions — Consolidation of — Statute Relating to,. Not Retroactive — Or ' in Impairment of Contracts as to Corporations Chartered Prior to Its Enactment — Not a Violation of Due Process ■ — What Constitutes a Benevolent Organization — Section 10182, General Code — Constitutional Law.</p> <p>1. Benevolent or charitable institutions are authorized to consolidate in Ohio, however diverse may be their methods of work.</p> <p>2. An organization whose main purpose is to promote the temporal, moral or intellectual uplift of others, without pecuniary reward to itself or its promoters, is a benevolent organization within the meaning of the statute authorizing benevolent and charitable institutions to consolidate.</p> <p>3. That donations have been made to a benevolent institution with certain conditions of reverter, which would be violated by the consolidation of the said institution with another, is not ground for equitable interference with such a proposed consolidation.</p> <p>4. The statute providing for the consolidation of benevolent institutions is neither retroactive nor in impairment of contracts and is constitutional, notwithstanding the charters of the two organizations which are proposing to consolidate under it were granted prior to this enactment.</p> <p>5. The proceeding provided by statute for the consolidation of benevolent ór charitable corporations is not violative of the “due process of law” clause of the Federal Constitution.</p>

<p>PROCEEDINGS IN HABEAS CORPUS.</p> <p>Habeas Corpus — Proper Direction to Sheriff — Where Prisoner is in the Hands of an Officer — Sections 12169, 12170, 12181 and 12182, General Code.</p> <p>In habeas corpus proceedings, where the prisoner is detained by an officer, the direction to the sheriff in whose hands the writ is placed for execution should be, not to produce the body, but to produce a return showing that the writ has been properly served on the officer holding the prisoner and said officer should produce the prisoner as directed in the writ.</p>

<p>INSURANCE ON PROPERTY JOINTLY OWNED.</p> <p>Fire Insurance — Joint Action on a Joint Contract — But One of the Parties not an Owner of the Property Insured.</p> <p>S, the owner of the ground, contracted with N to make on shares the hay which could be cut therefrom. Thereafter S became insane and his wife was appointed .as his guardian. N made the hay, which was stored and insurance taken thereon by N and the wife of S in a joint policy, the wife acting in her individual capacity. The hay burned, and after S had recovered his reason and the guardianship had been discharged the present suit was brought by N and the wife of S on the policy of insurance.</p> <p>Held: That the wife of S having no individual interest in the property destroyed could not recover under the policy, and the action .being joint on a joint contract the motion for a directed verdict in favor of the insurance company should be granted.</p>

<p>PROCEEDINGS FOR A STREET IMPROVEMENT.</p> <p>Assessments — Notice of G'eneral Street Improvement — Not Defective for Failing to Notify Abutter to Construct Curling — Macadamizing is Repaving, When — Limitations as to Repaving Not Applicable to Assessments for Curbing.</p> <p>1. The provision of Section 3857, General Code, for the giving of notice to an abutter of a contemplated street improvement, and affording him the option of doing the work himself, is limited to sidewalk improvements and does not apply to general improvements of the character contemplated by Section 3812, General Code, the construction of which is imposed upon municipalities as an entirety; and notice of the passage of a resolution declaring necessary the improvement of a street by paving, curbing and guttering is, therefore, not rendered defective by failing to give the abutting owner an opportunity to construct the curbing.</p> <p>2. The “macadamizing” of a street, formerly improved under municipal direction by graveling, constitutes a “repaving” within the meaning of Section 3822, General Code, as to which not more than one-half of the cost may be assessed against the abutter.</p> <p>3. The limitation of Section 3822, General Code, as to repaving assessments does not apply to assessments for curbing and gutteying, if the former improvement did not include and the property was not assessed for curbing and guttering as a part of either the street or sidewalk improvement.</p>

<p>REGULARITY OF A PARTITION PROCEEDING.</p> <p>Partition — Defective Appearance — Waiver of Objection to Irregularity of — Appearance for an Imbecile — Precedence between Actions Involving the Same Parties and the Same Subject-Matter — Where Service -Was Not Obtained Over All the Parties in the First Action.</p> <p>1. A defective appearance in a partition suit will be deemed to have been waived, where objection thereto was not made for three years, although the defect was of a character that would have warranted the setting aside of the appearance had objection thereto been made at the time.</p> <p>2. The filing of an amended answer and cross-petition by the guardian of an imbecile is a legal and sufficient entry of appearance for such imbecile in a partition proceeding.</p> <p>3. Where a court has jurisdiction of the subject-matter and has acquired jurisdiction of some of the parties, and subsequent summons is necessary to bring in the remaining parties, the action will have precedence over another action begun in the same court at a later date on the same cause of action, involving the same parties and seeking the same relief.</p>

<p>CHANGING CAUSE OF ACTION DURING TRIAL.</p> <p>Amendment — Action for Malicious Prosecution — Error in Permitting Amendment to False Imprisonment During Trial.</p> <p>1. A cause of action should be founded upon a definite theory, which marks the course throughout the case. This was the common law rule, and is the rule under the code, notwithstanding actions are in form for “money only.” The rule is designed to present the precise claim in controversy to enable the defendant to meet it, and the court to understand and determine it.</p> <p>2. The formal changes made by the code did not affect substantive distinctions, rights and causes of action remaining the same.</p> <p>3. The limitation in the code that the cause of action shall not be changed by amendment, forbids changing the theory upon which the cause of action is founded when instituted.</p> <p>4. A cause for false imprisonment and one for malicious prosecution though having common elements are based upon different theories, each may be subject to different defenses, and the alleged liability of different parties involved (as in this case) may rest upon different grounds.</p> <p>5. Therefore, where the action proceeds upon the theory of malicious prosecution, to which the defense of advice of counsel is interposed and fully established by proof, an amendment seeking to change the theory of the case to that of false imprisonment should not be permitted, when the evidence fails to show that defendant took part, authorized or encouraged the arrest, all that he did being to file an affidavit upon the advice of his counsel. Spice v. Steinruck, 14 O. S., 213, distinguished.</p> <p>6. The evidence failing to establish a cause for malicious prosecution, leave to amend being refused, verdict should be directed for defendant.</p>

<p>DISCRETION IN ACCEPTANCE OF BIDS FOR. PUBLIC WORK.</p> <p>Bids and Bidding-rDiscretion of Public Officials Wrongly Exercised— In Accepting a Higher Bid as the Lowest and Best Bid, When— No Departure can be Permitted from Specifications.</p> <p>1. The discretion which permits public officials to accept a higher bid because in their opinion it is better than other lower bids and is therefore the “lowest and best” bid, does not permit of the acceptance of the highest of two bids from the same party which are identical except as to price.</p> <p>2. Consideration of bids for public work must be based upon the assumption that the materials which the several bidders propose to use conform strictly to the specifications; and the acceptance of a higher bid on the theory that the bidder is proposing to use better material than is called for in the specifications, is destructive of the principle of competitive bidding, and without authority of law, and injunction will lie against such an award.</p>

<p>AUTHORITY OF PROBATE COURT TO NATURALIZE ALIENS.</p> <p>Naturalisation — Indictment not Invalidated — By Presence on Grand Jury of a Foreigner Admitted to Citizenship by the Probate Court —Buies for the Government of the Probate Court Descended from the Common Law — Its Common Law and Statutory Jurisdiction-Competency of Jurors Not Drawn from the Wheel — Presence of an Authorised Person in the Grand Jury Boom — Plea in Abatement —Criminal Law — Sections 10499, 1584, 11420 and 15568, General Code.</p> <p>1. The probate court in Ohio is one having common law jurisdiction and a clerk, within the meaning of Section 2165, TJ. S. Statutes, prior to the act of Congress of June 29th, 1906; hence had power ■to admit aliens to citizenship. Its proceedings and judgment in so doing are not open to collateral attack.</p> <p>2. The court or sheriff may call persons whom they deem fit for service upon a jury, and the competency of such persons to serve as jurors is not affected by the fact that their names were not drawn from the jury wheel.</p> <p>3. The presence of an assistant to the official stenographer in the grand jury room during the taking of the testimony in a particular case does not invalidate an indictment returned in that case, where it does not appear that the said assistant participated in the discussion, or offered any comment, or was present at the time the vote was taken, or in any other way prejudiced the rights of the defendant.</p>

<p>INJURY TO A PEDESTRIAN FROM RUNNING AN AUTOMOBILE AT AN EXCESSIVE SPEED CONSTITUTES ASSAULT AND BATTERY.</p> <p>Automobiles — Collision with Pedestrian on Street — Constitutes Assault and Battery — Where the Statute as to Speed is Being Violated — Acts Mala Prohibita and Mala in Se — Question of Intent— Sections J¡3I9-88 et seq. and 6883.</p> <p>One who intentionally violates the Ohio statute prohibiting the driving of an automobile beyond certain speed on- the streets of a municipality, and in so doing runs into, strikes and injures a person rightfully passing upon or across the street, is guilty, of assault and battery notwithstanding the injury was unintentionally inflicted.</p>

<p>LIENS UNDER. A BUILDING CONTRACT.</p> <p>■Mechanics’ Liens — Notice—Distribution-—Homestead Exemption and the Claims of Sub-contractors and Material Men.</p> <p>1. Where the contractor for the work on an entire building sub-lets the erection of the iron stairways to an outside party, sub-contractors and material men are not entitled to a lien on the profit arising to the principal contractor by reason of his having paid less for putting in the stairways than he received therefor under his own contract.</p> <p>2. An order issued by a principal constractor upon the owner of the building to pay a certain amount to a person named is sufficient notice as to where the account belonged, notwithstanding the omission from the account stated of any reference to the building upon which the indebtedness accrued.</p>

<p>CIRCUMSTANCES UNDER. WHICH A TEMPORARY RESTRAINING ORDER WILL BE GRANTED,</p> <p>Corporations — Retirement of Preferred Stock — Will Not he Interfered With hy Injunction, When — Office of a Temporary Restraining Order — Conspiracy Involving the Rights of Stockholders.</p> <p>1. A temporary restraining order or a preliminary injunction is a provisional remedy, and is allowed or disallowed without intention on the part of the court of' thereby forecasting what may he the final decree on full hearing; and on the question of allowing such an order and permitting it to continue until a full hearing is had, the relative rights of the parties and the injury to each hy a continuance of the order will he considered, and the status quo will he maintained hy granting the order where the injury to the moving party will be imemdiate, certain and great if it is denied, while the loss or injury to the opposing party hy its continuance will be comparatively insignificant.</p> <p>2. The fact that a proposed plan for retiring preferred stock is a part of a general scheme or conspiracy to oppress the plaintiffs, does not warrant interference hy injunction with the retirement of such stock, where the plaintiffs have no interest in it and its retirement is to be effected in accordance with the law of the state and a resolution of the hoard of directors.</p>

<p>CONTROL OF VOLUNTARY MUTUAL BENEFIT ASSOCIATIONS.</p> <p>Voluntary Fraternal Associations not for Profit — Mandamus to Compel Superintendent of Insurance to Issue Certificate to — Constitutional Law — Sections 8623, 9462 and 9476, General Code.</p> <p>1. When a mutual benefit society has with scrupulous care complied with all the preliminary statutory requirements for the issuance of a charter, it is entitled to the preliminary certificate authorizing the soliciting of members, and an objection on the part of the superintendent of insurance to the issuance of a certificate because the association has not announced its rates of assessment •is premature, and mandamus will lie to compel him to issue the certificate.</p> <p>2. The Legislature is without power to delegate .to a voluntary association of persons, unincorporated and unknown to the law, the right to fix the rates of assessment of fraternal insurance which shall be binding on all fraternal companies seeking to become incorporated under the laws of Ohio.</p>

<p>PRIORITIES WHERE A CONTRACT WAS COMPLETED BY A RECEIVER.</p> <p>Liens — Priority as Between Statutory Lienholders and Persons who Assisted the Receiver to Complete the Work — Order of Payment,</p> <p>Where a contract is completed by the receiver of the contractor, and money is thus 'brought into court which otherwise the' receiver could not have collected, those who furnished the receiver with money, or materials or labor for the completion of the work are entitled to be paid in full, and as between these classes there can be no priority in payment notwithstanding prior orders of court under which the money, or materials, or labor were furnished; and if a balance remains it will he paid to the statutory lienholders pro rata.</p>

<p>AS TO RECOVERY OF REBATE ON LIQUOR. TAX.</p> <p>Tax Paid Under the Dow Law — Recovery of Rebate from County Treasurer — Proceeding in Aid of Execution Does Not Lie Against a Person in Btisiness — But an Assignment of the Rebate Becomes a Lien on the Fund, When.</p> <p>1. Money paid into the county treasury as a tax on the business of dealing in intoxicating liquors, under the provisions of Stection 4364-11, is not subject to a proceeding in aid of execution under Section 6680-1, at least until after the discontinuance of the business.</p> <p>2. An assignment made at the time of "all my right, title and interest in and to any and all the amount due me as a refund, rebate or return on the attached Dow tax receipt” to secure the money advanced to pay such tax, .is a lien upon the fund in the hands of the treasurer arising upon the discontinuance of the business.</p>

<p>RECOVERY OF DIVIDENDS PAID BY A FAILING CORPORATION.</p> <p>Dividends — Restrictions on Directors to Declare — Good Faith of Stockholder Immaterial in Receiving — Recovery of, Where Paid Out of Capital — Section 8124, G-eneral Code.</p> <p>Dividends paid out of the capital and not from surplus profits may he recovered from the stockholders hy a trustee in bankruptcy of the corporation, notwithstanding the distribution was to preferred stockholders and was received by them in good faith.</p>

<p>PREREQUISITE PROCEEDINGS IN CONDEMNATION.</p> <p>Eminent Domain — Consent to Grade Crossing Prerequisite to Condem- ■ nation Proceeding — Pleading—Sections 8763 et seq. and 8898, General Code.</p> <p>1. It is a necessary prerequisite to a proceeding in tbe probate court by a railway company to condemn the right to cross with its track or tracks a street or alley at grade within a municipality, that a petition be first filed in the common pleas for the purpose of obtaining an order permitting such a crossing and the conditions under which it may be made.</p> <p>2. A petition filed in the probate court for the appropriation of the right to so cross a street or alley, which does not aver the granting of such an order by the common pleas, is open to a motion to make more definite and certain.</p>

<p>MUNICIPAL REGULATION OF STREET RAILWAYS.</p> <p>Municipal Corporations — General and Special Powers of — May Not Regulate the Operation of Street and Interurban Railways by Penal Ordinance — Void Attempt to Fix Qualifications of Motormen and Conductors.</p> <p>1. A municipal corporation has no power to prescribe by ordinance the qualifications of motormen and conductors upon street and interurban cars, and to make a violation of such ordinance an offense punishable by fine.</p> <p>2. Municipal councils may enact police regulations only when authority to do so is expressly granted or clearly implied, and doubtful claims to such power must be resolved against its existence. Neither Section 3714 nor Section 9113 of the General Code confers power upon municipal corporations to provide by penal ordinance that no person shall be permitted either as motorman or conductor to have charge of the operation of street or interurban cars within the municipal corporation, until after they shall have had at least ten days’ instructions on street cars within said municipal corporation.</p> <p>3. At the suit of a tax-payer the publication of such an ordinance after ■its passage by the council will be restrained.</p>

<p>REASONABLE HOTEL REGULATIONS.</p> <p>Inns and Innkeepers — Regulations as to Women, not Guests, Going to Private Rooms — Injury to Trade 'Of Traveling Salesman Through Enforcement of Rule of Exclusion — Salesman and, His House Denied Damages.</p> <p>A rule of a hotel, prohibiting women who are not guests or employes from occupying any of the private apartments, is a reasonable and proper regulation, and a traveling salesman who used his room in the hotel for the purpose of exhibiting his samples, and while so using it took to the room a customer who wished to inspect the samples and was accompanied by his wife and sister-in-law, can not complain, of the management of the hotel in requiring that the ladies leave the room, notwithstanding the indignity so incensed the customer that he refused thereafter to have anything to do with the salesman or his goods; nor can the house by which the salesman is employed recover for loss thus sustained.</p>

<p>DOW TAX OPERATIVE IN DRY COUNTIES.</p> <p>Liquor Laws — Rose Law and Dow Law May Be Operative in Same County — Taxation of the Liquor Business Does Not Entitle it to Protection — Real Purpose of the Tax to Restrain <md Repress the Evil —Dow Law Assessment Gan Not "be Defeated by an Unenforced Local Option Law — But is Enforceable "Wherever Liquor is Sold— Sections 6071 and 6108, General Code.</p> <p>The Dow tax is valid and operative in a county which has been voted “dry” under the Rose county local option law.</p>

On February 3, 1908, the city council of the city of Columbus, Ohio, passed an ordinance £ito regulate the tapping, construction and repairing of sewer connections in the city of Columbus. ’ ’ This ordinance required each person engaged in the trade or occupation of sewer tapping to give a bond in the sum of $500, and to procure a license costing $5 per year, for the purpose of engaging in the business of sewer tapping.

<p>POCKET PICKING AND ROBBERY DISTINGUISHED.</p> <p>Criminal Law — Construction of Sections 124S2 and 12449, General Code, Relating to Robbery and Pocket Picking.</p> <p>The force contemplated by tbe statute relating to pocket picking and robbery (Section 6818, Revised Statutes) is tbe force employed in tbe commission of tbe crime, and not tbe force subsequently exerted in getting away.</p>

<p>QUESTIONS AS TO HOMESTEAD EXEMPTION.</p> <p>Exemptions — To an Assignor for the Benefit of Creditors — Application for Allowance of, Not Too Late if Before Distribution — Effect of Possession by Assignor’s Wife of a Homestead which She has Abandoned — Ptesidenoe—Sections 11111 and 11737, General Code.</p> <p>1. An assignor for the benefit of creditors is entitled to an allowance of the value of his exemptions upon application made at any time before distribution.</p> <p>2. The fact that the wife of the assignor possessed a homestead at the time the assignment was made, which she was compelled by financial stress to abandon pending the proceedings in the assignment, does not bar the husband from asserting a claim for homestead exemption subsequent to such abandonment and before distribution.</p>

<p>CONDUCT WHICH DOES NOT AMOUNT TO UNDUE INFLUENCE.</p> <p>Wills — Request as to Disposition to be Made of Property Devised Absolutely — Conduct which Influenced the Testatrix, but Which was against Interest and Did Not Amount tp Undue Influence.</p> <p>1. It is competent for a testator to make a request as to the disposition of property devised by him absolutely, and the request may be made in the form of a letter enclosed with' the will, instead of . being incorporated in the will itself; and the fact that such a request was made can not be regarded as an exercise of undue influence over the devisee when she came in turn to devise the property.</p> <p>2. Persons who advised a devisee to follow the request of her testator in disposing of the property devised, and in giving such advice acted against their own interests, can not be regarded as having exercised an undue influence over the devisee in the making of her own will; and the fact that they subsequently took a different view of the matter does not change the character of their original action.</p>

<p>TAXABILITY OF PROPERTY LEASED BY A CHURCH TO A CHURCH FOR CHURCH PURPOSES.</p> <p>Taxation — Exemption of Church Property — Construction of Section 2 of Article XII of the State Constitution, and of Section 5349, General Code.</p> <p>Property owned by'a church, which leases it for a substantial rental to another church to be used exclusively for church purposes, is exempt from taxation under the laws of Ohio.</p>

<p>LIABILITY OF A SURETY UNDER. A CONTRACT WHICH HAS BEEN ASSIGNED.</p> <p>Contracts — Assignment of Liability of Surety Passes to Assignee, When — Cases Where Future Conduct of the Obligee May or May Not Make the Obligor Liable, Distinguished.</p> <p>If a contract is assignable, and its execution by assignees of the maker can work no hardship to the surety or change the character of his suretyship, the liability of the surety passes with an assignment of the contract and becomes binding in the hands of the assignee.</p>

<p>MOTOR. VEHICLES AS DEFINED BY THE STATUTES.</p> <p>Prosecution for Violation of Speed Limit — Not Sufficiently Definite to Charge Operation of an “Automobile” at Excessive Speed — “Motor Vehicle” the Word Used in the Statutes — Words and Phrases — • Criminal Law.</p> <p>The word automobile is not synonymous with the term motor vehicle as defined by Section 6290, General Code, and used in Section 12604, General Code; hence an information charging a person with operating an automobile at a greater rate of speed than fifteen miles per hour within the limits of a municipality does not with certainty required in criminal pleadings show a violation of this statute.</p>

<p>DETERMINATION OF NEXT OF KIN.</p> <p>Descent and Distribution — Next of Kin — Policy of the Law Agamst Ascent of Property — Sections 8574 and 8578, General Code.</p> <p>As between tbe uncles and aunts and tbe grandmother of an intestate, tbe uncles and aunts are next of kin and tbe grandmother takes nothing.</p>

<p>PROCEEDINGS FOR. COLLECTION OF TAXES ON A CORRECTED RETURN.</p> <p>Taxation — Additions to Returns as Made by the Property Owner — And Action by Auditor for Recovery of Taxes Therein — Upon what Additions Must be Based — Sufficiency of Notice — Character of Statement Filed by the Auditor — Sections 569T, 5591 and 5592, General Code.</p> <p>1. Recovery can not be had of taxes on an addition to a tax return, where the addition was based on an investigation made by a tax inquisitor, and not by the auditor himself.</p> <p>2. But inasmuch as it is left by the statute to the discretion of the auditor as to what steps he shall take to inform himself as to the facts of the case, an allegation that the auditor did not take any testimony with reference to the return made by the defendant for taxation does not constitute a defense in an action by the auditor for collection of taxes on the corrected' return.</p> <p>3. Notice to a property owner to appear before the auditor, to show cause why his tax return should not be increased, is sufficient if it advises the person whose property is to be listed that the proceeding is against him and informs him that he is required to appear and answer.</p> <p>4. The requirement of the statute that the auditor file in his office a statement of the facts or evidence upon which he has made a correction to a tax return, contemplates that the statement will be of such a character as to inform the property owner what the facts were upon which he acted.</p>

<p>PRIORITY OF DIFFERENT CLASSES OF LIENS.</p> <p>Distribution — Order of Payment as Between Mortgages, Judgment Liens and Homestead Exemptions — Section 11187, General Code.</p> <p>On distribution of proceeds from tbe sale of land, mortgages will be paid in full in tbe order of tbeir priority before anything is applied on judgment liens or a claim for homestead exemption.</p>

<p>FAILURE TO ALLEGE NEGLIGENCE WAS NOT THAT OF A FELLOW EMPLOYE.</p> <p>Pleading_Where a Corporation is Charged with Negligenoe — Presumption That the Negligenoe Complained of Was That of the Company.</p> <p>In an action against a private corporation by an employe on account of injuries alleged to bave been due to negligence on the part of tbe company, the court is bound to presume that the breach of duty complained of was the breach of the company and not of a fellow employe, and the petition is not fatally defective because of failure to allege that the negligence was not that of a fellow employe.</p>

<p>FIXING COMPENSATION OF MUNICIPAL EMPLOYES IN SERVICE DEPARTMENT.</p> <p>Municipal Corporations — Officers and Employes in Service Department —Compensation of, How Fixed — Mmdamus to Compel Issue of Warrants to Fay Salaries and Wages. •</p> <p>1. A director of public service has no power under Sections 4324, 4325 and 4326 of the General Code,.which give him the management and supervision of his department, to fix the salaries or compensation of employes therein, but the exclusive right to fix such salaries and compensation is reposed in the city council by Section 4214, General Code.</p> <p>2. An action in mandamus may be properly brought by a city solicitor, under Sections 4311 and 4313, General Code, to compel a city auditor to issue his warrant for payment of employes of the public service department, and it will not be assumed on demurrer to such a petition that the action is being prosecuted for the benefit of private individuals.</p>

<p>INTERFERENCE WITH EGRESS BY STREET RAILWAY TRACKS.</p> <p>Abutting Owner — Burden of Street Railway Tracks in Street — Estoppel by Consent — Interference with Egress — Encroachment upon Sidewalk at Street Corners — Injunction.</p> <p>1. An abutting owner who' consents to the. construction of a street railway in the street in front of his property is estopped from complaining of the additional burden thereby imposed; but if the track materially interferes with the property right of ingress and egress appertaining to his realty, complaint with reference thereto will lie.</p> <p>2. Encroachment upon the sidewalk by the laying or street railway tracks so near thereto at a street corner that in turning into the the other street the body of a car extends slightly over the sidewalk, is not a material interference with the ingress and egress of the abutting owner, but is interference of a character that is common to him and the public at large, and injunction will not lie on his petition for a removal of the tracks at that point.</p>

<p>SERVICE ON A CORPORATION RESIDENT OF ANOTHER. COUNTY.</p> <p>Corporations — Description of Defendant Corporation in Petition — -Service of Summons- — -Incorrect Return by Sheriff May be Amended— Sections 11212 and 11288, General Code — Action Against Oil Company.</p> <p>1. If the description of a defendant corporation in the petition follows-■the statute sufficiently to identify it, the service of summons will not be set aside, because it does not follow the exact words of the statute.</p> <p>2. Where service is bad upon a managing agent of a corporation located in another county, but the sheriff failed to so designate the party served in his return, he will be granted leave to amend his return in that respect.</p>

<p>EXEMPTION FROM SERVICE OF SUMMONS.</p> <p>Summons — Right of Exemption from Service of — Where the Defendant is Galled into the Jurisdiction with Reference to a Pending Action — Appearance.</p> <p>1. One called into tbis jurisdiction by bis attorneys for tbe purpose of consultation with reference to tbe subject-matter of a pending action is exempt fl-om service of summons, notwithstanding be instituted an independent action for replevin of the property involved.</p> <p>2. Entering into an agreement in writing with the sheriff for pay for extra care of the property seized in the present action does not amount to an appearance in this action for any purpose.</p>

<p>STATE RAILWAY EMPLOYERS LIABILITY ACT UNCONSTITUTIONAL IN PART.</p> <p>Constitutional Law — Domain of Congress' Invaded by State Legislature — In MaMng Railway Employers’ Liability Act Apply to Roads Located in Part Only in this State — Provisions as to Interstate and Intrastate Roads Separable, and Act Applicable to Local Roads— Sections 9017 and 9018, General Code.</p> <p>The state railway employers’ liability act is unconstitútional as to all roads which are located in part in this and in part in another state; but the provisions of the act are separable, and as to roads which are wholly within the state the act is valid.</p>

<p>ACTION FOR INJURIES TO MINOR.</p> <p>Master and Servant — Employer Not Liable for'Injury to an TJnémaneipated Minor, When — ■Torts—-Proximate Cause — Section-Hand Hurt while Attempting to Ride on-a Passing Freight Train. ■ , , .</p> <p>No cause of action arises in favor of a parent against a railway company on account of injury to-an .unemancipated minor, employed by the company as a section-hand and injured by falling from a passing freight train upon which he attempted to ride home from his work.</p>

<p>LICENSEES ON RAILWAY TRACKS.</p> <p>Negligence — Use of Railway Tracks by the Public — Boy Killed by Being Struck by Train — Company Not Bound to Give Warning, Unless— Reasonable Care.</p> <p>Where the tracks of a railway have been continuously used for many years by the public in crossing from street to street at their convenience, persons so using the tracks are mere licensees, and where a boy so-crossing was run down by a train operated in the usual and ordinary manner there can be no recovery from the 'railway company, and no duty devolved on the company to give warning of the approach of the train, unless the servants in charge thereof knew that’ the boy was in a place of danger.</p>

<p>UNENFORCIBLE CLAIMS AGAINST MUNICIPALITIES.</p> <p>Municipal Corporations — Action for Recovery for Water Furnished by a Private Individual — Claims for Sums Exceeding $500 — Misjoinder.</p> <p>An action will not lie against a municipality for recovery on a claim not contracted under a written agreement and for more than $500, either on contract, or quantum meruit, or for tortious conversion, where the provisions of Sections 4328 and 4331, General Code, have not been complied with.</p>

<p>PERCENTAGE OF RECEIPTS UNDER A CITY FRANCHISE MAY BE COLLECTED.</p> <p>Franchise to a Natural Gas Company — Municipality May Demand a Percentage of the Receipts — Such a Requirement not a Tax Measure —Contracts with Municipalities — -Sections 8982, 3995 and 9820, General Code.</p> <p>1. A municipality has the right to impose terms and conditions under which a natural gas company may come within the limits of the city and use its streets, alleys and public places in laying pipes for distribution of gas to consumers.</p> <p>2. The requirement that a natural gas company pay to the municipality 10 per cent, of its receipts from gas sold at or above a specified figure, is not a revenue measure and therefore not void because a means for levying a tax upon the company in addition to its regular taxes, notwithstanding the provision that the money so received by the municipality shall be for the benefit of the general expense fund of the city.</p> <p>3. The question whether the percentage exacted is unreasonable, and requirement void on that account, can not be considered on demurrer to the petition in an action by the municipality for an accounting.</p> <p>4. Inasmuch as the city might have excluded the defendant company from any use of its streets, but saw fit to permit such use under conditions which were embodied in a contract which was accepted in writing by the gas company, the provisions thus agreed upon must be fulfilled on the principles of contract, and the company after having enjoyed the benefits of the contract will not he heard to say that its provisions were ultra vires on the part of the city.</p>

<p>AUTHORITY TO LEASE QUARTERS FOR. USE OF CITY OFFICIALS.</p> <p>Municipal Corporations — Power of a Director of Public Service to Lease Property for City XJse — Adv&rtAsement for Bids for a Lease,</p> <p>The power vested in a director of public service, under Section 4326, General Code, to manage property after a lease thereof has been made on behalf of the city, carries with it the power to make the lease or contract itself.</p>

<p>ACQUIREMENT OF STOCK FOR. ALLEGED CONTROL AND JOINT OPERATION OF COMPETING OHIO RAILWAYS.</p> <p>Monopoly and Restraint of Trade — Alleged Violation of the Valentine Anti-Trust Law — Acquirement of the Stock of Competing Railways with the Pu/rpose of Operating Them as One Line — Pleading—Injunction.</p> <p>Under the allegations of the petition, supported hy some evidence, that an agreement has been entered into between the LaAe Shore & Michigan Southern Railway Company and the Chesapeake & Ohio Railway Company whereby the Hocking Valley Railway and the Toledo & Ohio Central Railway, two parallel and competing lines, are to be operated through stock control as a single double track road, and in carrying out this scheme the Kanawha & Michigan is ■to be used as an instrument by virtue of stock control of a char- . acter forbidden in Ohio, the court in the exercise of its discretionary power grants a temporary restraining order against the voting of stock in pursuance of this plan, and will thus preserve the status quo until a full hearing can be had, notwithstanding the claim that the right to carry out such a scheme would be vested in the board of directors, and the proper time for the issue of an injunction, if an injunction may be issued at all, would be when •the directors attempt to put such a design into effect, and not against the voting by stockholders for directors who may contemplate the carrying out of such a scheme. •</p>

<p>AS TO TAXABILITY OF A DEED ALLEGED TO BE A MORTGAGE.</p> <p>Taxation — Circumstances Under Which a Deed With on Agreement to Reconvey will not he Construed as a Mortgage.</p> <p>A deed will not be treated as a mortgage for purposes of taxation, notwithstanding the property was leased back to the grantor with a privilege of purchase at'the end of a specified period, if the testimony as to the circumstances surrounding the transaction indicate a belief on the part of the grantee that it was a Boreas fide transfer and he was receiving an unconditional title.</p>

<p>ISLANDS IN BUCKEYE LAKE NOT STATE PROPERTY.</p> <p>Jurisdiction — In State Cases Affecting Land — Sections 845 and 11288, General Code, Harmonised — Appropriation of Lands for Canal Purposes — Claim of State of Title to a Reservoir Island — Adverse Possession — iEstoppel Against the State — Uniform Holdings 5y Different Branches of the Same Court.</p> <p>1. The provision of Section 11268, General Code, that actions affecting real property shall he brought in the county in which the property is situated, does not deprive the courts of Franklin county of the jurisdiction conferred by Section 345, General Code, in actions brought by the Attorney-General on behalf of the state and in which the state is interested.</p> <p>2. Section 8 of the act of February 4, 1825 (Ohio Laws, pp. 50-58), the substance of which was an appropriation by the state of all lands, waters and streams taken possession of by the canal commissioners, vesting the fee in the state, did not operate on unpatented United States lands, such as the land involved in this ease was.</p> <p>3. The act of Congress (8 Laws of U. S., pp. 118-120), Section 5 of which granted to the state of Ohio 500,000 acres of lands owned by the United States within the state of Ohio, to be selected, for the purpose of aiding the state of Ohio in the payment of the debts already incurred, or to be incurred by the state in the construction of the canals, being an act to aid the state of Ohio in extending the Miami canal from Dayton to Lake Erie, and the grant being made for the purpose of aiding the state in defraying the expenses of that canal, had no relation to any canal but the one named in the act, and did not therefore refer to the lands here involved, and did not authorize the state to take them and dispose of them as authorized by the act. The purpose of this act of Congress was to authorize the Legislature to select the lands, as therein provided, and to dispose of them for the purpose named in the act and no other. This act made a grant of land, for the purpose named, limiting it to a certain locality, viz., “on each side of the canal between Dayton and the Maumee river, at the mouth of the Auglaize, so far as the same shall be located through public land.”</p> <p>4. The mere fact of the appropriation by the state, which in the first instance was without legal right, of the land which was afterward submerged and became known as the Licking Reservoir, now Buckeye Lake, does not create a basis for a claim by the state to ownership of islands within the submerged district; but on the contrary title to such islands remained in the U. S. Government and passed by patent to private owners, who can not be dispossessed by the state except upon a showing of entry, possession and use of a character so open and notorious as to make it apparent that the land so surrounded by water had been taken and was being used for canal purposes.</p> <p>5. Title by adverse possession to Circle Island, situated in Buckeye Lake, can not be based by the state on a claim to ownership which was not asserted until after the lake had been abandoned for canal reservoir purposes and had. been dedicated as a public park.</p> <p>6. Quaere whether equitable estoppel applies to the state; there is every reason or consideration why it should be under the circumstances of this case.</p>

<p>CLEANING AND REPAIR OF DRAINS AND WATER-COURSES.</p> <p>Ditches and Drains — Benefits—Apportionments for Gleaning out Ditches —Section 6691.</p> <p>That water which naturally flows from the lands of a dominant estate over the lands of a servient estate will be intercepted by a ditch is not a sufficient reason for holding that the servient estate will be benefited by the ditch, and should not be considered in fixing the ' apportionment for cleaning out the ditch; but the fact that water from land not contiguous to the ditch flows into it renders such land liable for its apportionment for keeping the ditch in proper condition.</p>

<p>SUMMARY JURISDICTION OF THE BOARD OF DEPUTY STATE SUPERVISORS AND INSPECTORS OF ELECTIONS.</p> <p>Elections — Mandamus—No Jurisdiction to Review Action of Deputy State Board of Supervisors of Election — ■Section 5005, General Code.</p> <p>1. Mandamus will not lie to compel a board of deputy state supervisors and inspectors of election to permit primary ballots to be used at a forthcoming primary election and to place on said ballots the names of persons specified in the petition, unless the relator is himself a candidate for election and therefore a party in interest.</p> <p>2. Moreover, the determination of this question by the said board is final, and the common pleas court is without jurisdiction of the subject-matter.</p>

<p>ENGAGING IN TRADE NEAR. RELIGIOUS OR OTHER PUBLIC ASSEMBLAGES.</p> <p>Constitutional Law — Invalid Prohibition of Traffic — Within Four Miles of Certain Assemblages — Police Power — Unwarranted Applioation of — Unnecessary Restrictions upon Lawful Occupations — Licensing Powers.</p> <p>1. Section 13208 of the General Code of Ohio which provides that “whoever seis, exposes for sale, gives, barters, or disposes of * * * articles of traffic, within four miles of the place where an assemblage of people is collected or collecting for religious worship, or for holding a harvest home festival, grand army, sons of veterans’ or union veterans’ union celebration or reunion” without having obtained a permit from the trustees or managers of such assemblage, and imposing a penalty for the violation thereof, is an unconstitutional exercise of power by the Legislature.</p> <p>2. Such provision involves an unreasonable and oppressive exercise of the police power as against individual property rights, and violates Section 1, Article XIY, of the Federal Constitution because it abridges privileges and immunities of citizens, deprives them of their property without due process of law, ,and denies to each the equal protection of the law.</p> <p>3. The attempted delegation of power to the trustees or managers of the various assemblages mentioned, to determine who shall do the forbidden act, attempts to confer the licensing power upon private associations, corporations or individuals, and is an unlawful restriction upon a lawful business, giving such trustees or managers the power to destroy competition and create a monopoly and to deprive a citizen of the right guaranteed to him by Section 1, Article I, of the Bill of Rights of enjoying and possessing his property.</p>

<p>AS TO PREJUDICE ARISING AGAINST A PARTY BECAUSE OF ACTION OF THE TRIAL JUDGE.</p> <p>New Trial — No Prejudice from Presence of Prosecuting Attorney Dwring Trial of Civil Case — Duty of a Tried Judge to Prevent the Giving of False Testimony — Commitment of a Party to the Case for Contempt — Not Prejudicial to Sis Interests with the Jury — Or Ground for a New Trial, When.</p> <p>1. Tbe fact that tbe prosecuting attorney or his assistant was present and took notes during the trial of a civil case does not constitute ground for a new trial on the ground that the conduct of the prosecutor influenced the jury to decide against one of the parties to the action.</p> <p>2. Where a witness or a party testifying is obviously testifying to • that which is untrue, it is the province of the trial court to use every honorable and fair means to prevent such false testimony and to ascertain the truth in the case; and if in so doing the trial judge commits one of the parties to jail, and he is soon after released on habeas corpus by the circuit court, the incident will be construed as favorable rather than prejudicial to. that side of the case, for the reason that if the jury were influenced thereby it ■ must .have been in favor of that side of the case because of the sympathy which such action is likely to arouse.</p>

<p>MUNICIPAL APPOINTMENTS UNDER THE PAINE LAW.</p> <p>Municipal Corporations — Appointments within the Classified Service— Mandamus to Compel Strict Compliance — Sections W8, et seq.</p> <p>1. Tbe act of May 12, 1908, known as the Paine law, so far as Sections 157 to 165 (inclusive) are concerned, was founded upon a well-defined popular belief that the civil service in municipalities throughout the state would become more efficient by competitive examinations open to all, and became operative January 2, 1910.</p> <p>2. Any appointment of directors or officers therein named, made in a way other than that prescribed, is void, and mandamus will lie to compel strict compliance with the provisions of the act.</p> <p>3. Appointments within the classified service made by the mayor are temporary, and terminate when the contingency which made them ' so has passed.</p>

<p>WATER RENT A LIEN ON THE PROPERTY SUPPLIED.</p> <p>Municipal Corporations — Water Works Regulations of the Same •Force and Effect os Ordinances — And Water Rents Become a Lien on the Property Supplied, When — Are of the Nature of Special Assessments — Sections 3784, et seq., 3897, et seq., and, 3946, et seq.</p> <p>Where water works are owned by a municipality, and the by-laws and regulations prepared by the director of public service for the water works department provide among other things that property to which water is supplied shall be held liable for all water rents, such rents become a lien on the property notwithstanding the application for the use of the water was made by the tenant instead of the landlord.</p>

<p>WATER FRONT RIGHTS ON CANAL RESERVOIRS.</p> <p>Oanals and Water Front Rights — Lease of Land on Berme Bank — Limitations on Title Granted by State Board of Public Worles.</p> <p>A lease by the state board of public works of ground on the water front of a canal reservoir for bath house and dock purposes does not include the right to build a pier eighty feet out into the reservoir, and where such a pier has been built the lessees can not by injunction prevent others from landing boats thereat.</p>

<p>THE ESTABLISHING OF HACK STANDS BY ORDINANCE.</p> <p>Municipal Corporations — Poioer of, to Establish Each Siands — Adequate Remedy at Law if Nuisance is Created — Validity of Ordinance will not be Determined on Application for an Injunction, When_Sections 3632 and 3635, General Code.</p> <p>Injunction will not lie to restrain publication of an ordinance establishing a stand for hackney coaches, where it does not clearly appear from the ordinance and the facts alleged that the establishing of such a stand will result in a nuisance.</p>

<p>EQUITABLE EASEMENT CREATED BY RESTRICTIVE COVENANTS.</p> <p>Interest in Land — Restrictions Which Create Equitable Easements and Run With the Land — Notice as to Restrictive Covenant — Compensation Must be Made to Owners Before Land Can be Used for a Different Purpose — Injunction—Eminent Domain,</p> <p>1. Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots and conveying these with uniform restrictions as to the purpose for which the land may be used, such restrictions create equitable easements, in favor of the owners of the several lots, which may be enforced in equity by one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers.</p> <p>2. Such restrictions create an interest in land, and a property right in each lot owner; and compensation must, first be made therefor before any of the lots can be used for other than the purposes to which it is restricted.</p> <p>3. A restrictive covenant of this nature, being a covenant which runs with the land, binds the owner of a lot, whether he had actual knowledge of it or not; and such restriction, being in the chain of title, gives constructive notice which is sufficient.</p> <p>4. These restrictions are binding on a public service corporation having the power of eminent domain, as well as on an individual; and before the railroad company can use a lot charged with such restrictions for a purpose prohibited by the restriction, it must obtain, by purchase or condemnation, the title of all owners of any interest therein.</p> <p>5. In 1901 the Frisbie Company, being the owner of a tract of land in East Cleveland, divided it into streets and lots, and filed a plat of the allotment with the county recorder. The company adopted a general scheme or plan for the improvement of the allotment, and placed the lots upon the market for sale, and all the lots were sold, and each deed from the company to the various purchasers, except for certain lots on one of the streets which lots were left unrestricted for business buildings contained the following restriction: “As part of the consideration for this deed, it is hereby agreed that the said land shall be used exclusively fgr residence purposes.” The defendant company has now purchased from the various owners several of the lots in this allotment for its right of way, and is about to use them for the construction and operation of a railroad thereon.</p> <p>Held: That such restrictive covenants create equitable easements which constitute private property; and under’Article I, Section 19, oi the Constitution of Ohio, the defendant must first make compensation to the lot owners before it can use its lots for other than residence purposes; and until such compensation is made, the plaintiffs are entitled to an injunction to prevent the violation of such restrictions.</p>

<p>ABSENCE OF JUSTICE OF THE PEACE WHEN APPEAL IS EXECUTED.</p> <p>Appeal from a Justice of the Peace — Right of, Substantial and Important — Gan Not be Defeated by Absence of Justice from the State — Section 1038%.</p> <p>The mere absence, from the state, of the justice of the peace who rendered the final judgment in an appealable case, can not defeat the right of appeal where the party desiring to appeal has, within the time allowed by law, executed an appeal bond with an acceptable surety and left said bond in the office of the trial justice of the peace, and has otherwise done everything within his power to perfect his said appeal.</p>

<p>BID RENDERED ILLEGAL BY CONSTRUCTION PLACED ON SPECIFICATIONS.</p> <p>Bids and Bidding — Change in Construction Placed on Specifications— Where Made Without Notice to Bidders Benders Acceptance of Bid Invalid — Material Submitted with Bid Becomes a Part of the Proposition — Quality of Oil to be Used for Wood Blocks Used in Street Paving.</p> <p>The acceptance o.f a bid for public work is rendered invalid where it is made possible to declare it the lowest and best bid by placing a different construction upon the specifications from that theretofore followed as to the material to be used, and the bidders were without notice that the specifications were to receive a different construction.</p>

<p>RELIEF AS AGAINST A MISTAKE OF LAW.</p> <p>Settlement B-etxoeen Widow and Heirs at Law — -Unfair Terms Made for the Widow — Equity will Believe Against — Where the Mistake Was One of Mixed Fact and Laxo — Whether the Heirs Acted Ignorantly, or Obtained an Unconscionable Advantage Through the Ignorance of the Widow — Discretion of a Court of Eqxiity in Unquestioned and Flagx-ant Cases.</p> <p>A demurrer does 'not lie to the petition of a widow to set aside a contract embodying a family settlement, entered into between herself and the heirs at law of her deceased husband, where she had no knowledge of the value of her rights or of the law governing them, and was misinformed by the administrator with reference thereto both as to the law and the fact, and was told by the heirs that the proposed settlement was all she was entitled to and by an attorney that it was the only settlement which could be made, and she believed these statements and relied upon them until a comparatively recent date, when the discovery was made by her that her interest in the estate was much more valuable than was assumed in the contract of settlement.</p>

<p>CONDITIONS OF A TELEPHONE FRANCHISE.</p> <p>Telephone Franchise — Condition of Grant from Municipality — Construction of Section 9179, Providing Compensation for Damages Only— Incidental Power of a City to Impose Other Conditions' — Contracts.</p> <p>Where an ordinance granting a telephone franchise provides for the construction of telephone lines on both the surface and sub-surface •of the streets, alleys and public places of a municipality, the provisions of Section 9179 do not prevent the municipality from exacting from the company a percentage of the gross rentals received from telephones, in addition to requiring that the company shall itself restore the streets to their former state of usefulness at its own expense.</p>

<p>WHO MAY CONTEST A WILL.</p> <p>Wills — By Whom an Action to Contest May be Maintained — Applies tion of Section 12079.</p> <p>An action to contest a will can be maintained on'y by one who was interested in the will at the time it was admitted to probate.</p>

<p>CONSTRUCTION OF WILL WHERE STATUTES ARE INCORPORATED.</p> <p>Wills• — Construction of, Where State Laws Are Incorporated Into the Instrument — Extrinsic Evidence as to Testator’s Intention Incompetent, When — Intention Ascertained, How — Laws of Distribution.</p> <p>1. A devise to a wife “of that part and interest in my estate, real, personal and mixed which is secured to her as my widow by the laws of distribution of estates of the State of Ohio in cases where wives survive husbands who die intestate,” is an incorporation into the will of such laws. Such laws are statutory and are Sections 4158, 4159, 4163, 4178 and 4188 of the Revised Statutes of Ohio (8573, 8574, 8578, 8592 and 8606, General Code).</p> <p>2. The will must be read therefore as if such sections were in the will word for word with the conditions in such sections contained. With such sections incorporated, the will then must be read " with a view to the situation and circumstances of the testator in reference to the subjects of.his disposition and the objects, of his bounty.</p> <p>3. The sections above referred to apply by their terms, some to personal property, some to real property, and among the conditions in such sections are as to whether there are children and as to whether the real estate is ancestral or non-ancestral; i. e., “if there are no children,” etc., and “if the estate came not by descent,” etc.</p> <p>4. Having ascertained whether there were children and the character of the estate, the intention of the testator must be ascertained by applying thereto the will with such conditions incorporated therein, and no extrinsic evidence as to the testator’s declaration of intention is competent to contradict or vary the intention so ascertained.</p>

<p>SPECIFIC PERFORMANCE OF A CONTRACT TO LEASE.</p> <p>Specific Performance — Equity Jurisdiction to Enforce a Contract of Lease — Nature of Contract Must Be Determined — Lacle of Mutuality — Consideration—Terms and Conditions not Agreed upon — Essentials to Enforcement of Specific Performance.</p> <p>1. A contract of lease will not be enforced, notwithstanding it contains words of present demise, where by reason of its conditional acceptance its effect is no more than an offer to lease, and the consideration consists only of the expense of examination of the abstract of title and a promise to pay the rent stipulated, and the pleading makes it evident that the parties had not agreed upon all the terms and conditions which were to be incorporated in the proposed lease.</p> <p>2. Equity will not enforce specific performance where the common law remedy for damages would be, 'after performance, the sole security for the defendant that the plaintiff will perform his side of the contract.</p>

<p>PROSECUTION FOR. RECEIVING PAYMENT OF A FALSE BILL AGAINST THE STATE.</p> <p>Criminal Law — What Facts Must he Charged — -In an Indictment for Receiving Payment of a False Bill.</p> <p>An indictment will not lie for receiving payment of a false bill, where the defendant is so described as not to necessarily imply that he had authority to make the purchase or to draw a bill for the goods purported to have been purchased.</p>

<p>SALES OF NON-INTOXICATING MALT LIQUORS PROHIBITED BY THE ROSE LAW.</p> <p>Liquor Laws — Police Power of the State Permits the Defining of Intoxicating Liquors — Sale of Non-intoxicating Malt Liquors within the Inhibition of the Rose Law — -99 O. L., 35.</p> <p>1. Prohibition of the sale of malt liquor, without reference to its intoxicating quality, is within the police power of the state.</p> <p>2. The sale of malt liquor for use as a beverage is within the inhibition of the Rose county local option law, and it is no defense to a prosecution for violation of this law that the beverages sold were not intoxicating.</p>

<p>JURISDICTION OF COUNTY COMMISSIONERS OVER. SCHOOL MATTERS.</p> <p>Schools — Jurisdiction of Board of Education as to Control of — May Not he Interfered With hy County Commissioners, Unless — Fixing of Tax Levy and Location of Schools are Judicial Acts — Section 1610.</p> <p>In fixing the school levy and in determining the number of schools which shall be maintained in a school district, a board of education performs judicial acts, and in the case under consideration did not adopt a policy so unmistakably wrong as to show a gross abuse of the discretion confided in it by law, and the county commissioners were not justified, therefore, in reversing the action of the board of education by ordering a larger tax levy and the establishment of another sub-district.</p>

<p>RELEASE OF ONE RELEASES ALL TORT FEASORS WHETHER JOINT OR QUASI-JOINT.</p> <p>Negligence — Proximate Came — Difficulty in Determining at Times— Liability of Independent Contractor for Defective Materials and Appliances — Joint and Quasi Joint Tort Feasors — Release of One Estops Prosecution of Claim Against the Others — Debtor and Creditor — Section 808//, General Code.</p> <p>An administrator is estopped from prosecuting an action for the wrongful death of his intestate against a second defendant, after having brought suit against another party on the same claim and accepted a settlement therefor; and this is true, whether the two defendants occupy the relation of joint or quasi joint tort feasors,</p>

<p>AS TO VALIDITY OF A REFILED CHATTEL MORTGAGE.</p> <p>Pleading — Allegation of Payment of a Promissory PI ote — Refiling of Chattel Mortgages — Section 8565.</p> <p>,A chattel mortgage which was filed prior to the amendment of the law-relative to the time for refiling such instruments, is governed as to such refiling hy the law as amended.</p>

<p>UNREASONABLE LICENSE FEES.</p> <p>Municipal Corporations — License Fees Become a Tax, When — Ordinance Imposing Licenses Invalid When the Fees Are Made Excessive — Validity of Ordinance May be Determined in a Court of Equity, When — Section S670.</p> <p>1. While licenses may be imposed by a municipality upon certain occupations and lines of business, the amount of the fees required must be limited to the reasonable cost of issuing the license and regulating the business, and where the fee is placed so high as to render it unduly burdensome or prohibitive, it is no longer a license but a tax and is imposed without authority of law.</p> <p>2. A court of equity will determine the validity- of a license ordinance upon application for an injunction against its enforcement, where the injury threatened would be irreparable or a multiplicity of actions may arise.</p>

<p>PROTECTION OF GRASS PLOTS IN MUNICIPAL WAYS.</p> <p>Negligence — No Liability on the Part of a Municipality — For Injuries to a Pedestrian From a Fall Over a Wire Protecting the Grass Plot Between the Sidewalh and Street.</p> <p>A pedestrian who attempts to cross the space between the curb and sidewalk which has been reserved for grass, and in so doing is injured by tripping over a wire stretched a few inches from the ground to' protect the grass from being trodden upon, has no right of action against the municipality.</p>

<p>CONSOLIDATION OF INCORPORATED PRESBYTERIAN CHURCHES.</p> <p>Religious Societies — Consolidation of, Where Incorporated, — Strict Compliance with the Statutes Required — Compliance with the Presbyterian Form of Government — Civil Property Rights Unaffected by Proceedings to Consolidate, When — Jurisdiction of Church Judicatories and Guarantees Under Federal and State Constitutions — Due Process of Law — Title—Sections 3777, -3778 and 3779, Revised Statutes.</p> <p>The creation of a new religious corporation by the consolidation of two ' separate religious corporations can only be effected in Ohio by conforming to the statutes in such case made and provided.</p> <p>■Where, in a preliminary written agreement for the consolidation of two incorporated Presbyterian churches, a corporate name for the new church is provided, and where it is also provided, inter alia that, “all such steps shall be promptly taken as may be required by the Presbyterian form of government and by the statutes of Ohio to complete the union, and where other provisions of the plan and the conduct of the parties show, the purpose to have been the creation of a new corporate church, under the statutes of Ohio; Held, that the statutes of Ohio (Sections 3777, 3778, 2779, Bates Revised Statutes), relative to the consolidation of religious corporations must be complied with; and Held, that by virtue of the statutes such agreement and plan are invalid and inoperative unless- approved by a two-thirds majority of the members of said incorporate churches at a meeting duly called for the purpose. And Held, that provisions of said plan, that all statutory steps shall be taken, had. the effect of making a ratification by a statutory majority of each of the corporations one of the conditions of the plan, and that same could not become operative until approved according to the statutes.</p> <p>Compliance with the requirements of the Presbyterian form of government was likewise one of the conditions in the plan, but -performance of this condition could not dispense with performance of the condition requiring statutory approval by a two-thi-rds majority of each church,</p> <p>Where one of the two parties to said agreement voted as a corporation, by more than two-thirds majority to ratify said agreement and plan of union, but the other party to said agreement failed to ratify the same by a statutory two-thirds majority at a corporate meeting called for the purpose of voting thereon, and subsequently, at another corporate meeting called for the same purpose, voted against ratifying said agreement by a vote of fifty-five against its ratification, to thirty-four in favor of such ratification, such preliminary agreement and plan for consolidating said churches was not carried out either under the statute or under the conditions of the plan itself, which required all statutory steps to be taken.</p> <p>The .terms and legal import of such plan of union and preliminary agreement can not be changed or varied by parol and they, can not therefore be construed as a “request” for the union of said two churches unless they are ratified by a statutory two-thirds majority of each church, since their terms require all statutory steps to be taken to complete the union. A fortiori such documents can not be construed as a “request” for the union of said two churches with a third church of the same denomination, for to include such third church without the consent of the original parties would be to materially vary the terms of the agreement.</p> <p>“The Presbyterian Church in the United States of America” gives a presbytery power under the constitution of the organization “to unite or divide congregations at the request of the people,” but the action of a presbytery under such power is legislative or administrative in character; and said constitution does not provide for judicial proceedings in the church judicatories for the determination of property rights or other civil rights,-but leaves such questions to the civil courts for determination. And where a presbytery by a legislative or administrative resolution attempts to unite two or more Presbyterian churches without a proper and valid constitutional “request” having been made therefor, Held, such resolution can not affect the civil property rights of the churches or their members which do not make a constitutional “request.”</p> <p>•The church judicatories of the Presbyterian Church have exclusive jurisdiction in questions of doctrine, faith or church discipline, but inasmuch as property rights are civil rights which are peculiarly within the jurisdiction of the civil courts and subject to the protection of the guarantees of the federal and state constitutions, Held, such property rights can not be taken from their owners against their consent without due process of law; that such rights are subject to the protection of the civil courts; that such right ■ can not be granted away by contract.</p> <p>“Due process of law” requires that before private property can be taken without the owner’s consent there shall be a legal opportunity to be heard and to defend before the proper tribunal.</p> <p>Before an administrative or legislative resolution can become effective to transfer title to civil property rights it must be shown to have been had in pursuance of a legal power to make such transfer of title and the conditions precedent to the exercise of such power must appear to have been duly performed.</p> <p>Where no judicial proceeding is involved and where the' question is not one of jmth, doctrine or church discipline, a resolution of presbytery, declaring three churches united into one new church, and also declaring such new church to be “entitled to all the assets, rights, interests and claims of every kind and nature whatsoever, • formerly owned and held by former constituent churches, and each and every one of them,” is null and void as to the property ■ rights of plaintiff Church, which had not formally requested said union with the other two churches, nor in any legal manner consented ' thereto, and the property rights of such non-requesting church will be quieted and protected by the civil courts as against the churches and persons claiming under such resolution.</p> <p>A “congregation” of the Presbyterian denomination is composed of communicants and non-communicants, the latter not being members in a strict ecclesiastical sense. When real estate is purchased, and the deed conveys the property to individuals and their successors' in trust for a certain “Presbyterian congregation” forever, and subsequently said congregation is incorporated by special act of the Legislature of Ohio under the Constitution of 1802 and the- charter of said corporation with its amendments attached prior to 1851, provides that all communicants of said congregation and also all non-communicants, who are - occupants of pews and contribute to the support of the church, shall be members of such corporation and entitled to vote in the management of its affairs; and where the two (probably) surviving trustees convey said real estate to said corporation for its use and afterwards said corporation hold possession of said real estate for a great number of years, using it for religious and also charitable and educational purposes in accordance with its charter, and during that time successfully defend its title against the heirs of the original grantor and others, claiming under him, and where, during all of said time, said corporation otherwise exercised absolute control and management of said real estate in accordance with its charter and none of the communicants as such, or the ecclesiastical bodies of said church or of said denomination made any objection to such proceedings and control by said corporation; Held, that as to any separate rights or title of communicants alone or their alleged successors, as a purely ecclesiastical body separate from said corporation, the possession and control of said corporation was adverse, and .that all such persons are included in said corporation, so holding the property, as are designated by the charter as members of the corporation, and that the title to said real estate is held by said corporation, for the benefit of all its members, whether communicants or non-communioants and for the uses set out in said charter.</p>

<p>ACTION AGAINST WASTE.</p> <p>Injunction — Action for, Against Waste Not Maintainable by a Lessor, When — Common Law Doctrine as to Waste Not Recognised in Ohio —Right to Forfeiture on Account of Waste Must be Incorporated in the Lease — Oioner of a Perpetual Leasehold is the Owner of the Property for All Pu,rposes.</p> <p>An injunction will not lie to restrain a tenant in possession of a permanent leasehold from the commission of waste, where there is no showing that the lease provides against waste, or averment or proof that the security will he impaired or that the tenant under the lease is insolvent.</p>

<p>WHAT CONSTITUTES THE CAUSE OF ACTION IN A NEGLIGENCE CASE.</p> <p>Wrong, the Basis of Cause of Action — Definition of a Cause in its Dual Aspect — Proper Test as to What Constitutes the Cause — Pleading Where the Same Cause Results in Injury to Property and to the Person.</p> <p>1. A definition of a cause of action bas a dual aspect — one in substantive law, and another in adjective law. It bas a meaning in substantive law apart from the facts stated in the pleading. It may be so defined as to comprehend the whole legal conception of it, as well as to furnish a guide as a rule of pleading, and a means of solving the question whether one or more than one cause of action is stated,</p> <p>2. A cause of action for tort in adjective law is the statement of the facts showing the commission of a wrong, or the violation of a duty; hence, injury to horse and buggy, and to the person of their owner, by a single negligent act in operating a street car constitute but one cause of action and should be pleaded as such.</p>

<p>MISBEHAVIOR. OF SHERIFF IN FAILING TO SERVE SUBPOENA.</p> <p>Sheriff — Muy be Punished for Contempt Because of Failure of Deputy to Serve Subpoena — Knowledge of Deputy’s Misbehavior Need Not be Shoion — And Sheriff May be Held in Contempt as Well as Answerable Civiliter — Form of Caption in Contempt Proceedings — Sections 12187 and 2881.</p> <p>1. In proceedings against a sheriff for contempt of court, the fact that in the caption he is not designated as sheriff can not avail as a defense, where the information which was served upon him charges him as sheriff and as an officer of the court with misbehavior in the performance of his official duties and in his official transactions and then specifies the transactions to which reference is made.</p> <p>2. A sheriff may be held guilty of contempt of court because of the failure of one of his deputies to properly serve subpoenas of the court, notwithstanding he had no personal knowledge that the subpoenas in question had been issued and had not been properly served.</p>

<p>EXCLUSIVE PROVINCE OF THE JURY WHERE DIFFERENT CONCLUSIONS MAY REASONABLY BE REACHED FROM THE EVIDENCE.</p> <p>Negligence — Sacking Horse, Uncontrollable Through Fright, Causes Collision With an Electric Cwr — Finding of Jury Unassailable, When —Error—Charge of Court.</p> <p>1. Where the evidence with reference to a collision between an electric car and a vehicle is such that more than one view- may be taken as to the responsibility of the motorman therefor, and in consequence different minds may reasonably arrive at different conclusions, the verdict of the jury is invulnerable so far as the weight of the evidence is concerned.</p> <p>2. It is error to give a special charge to the jury which assumes as an undisputed fact the question which forms the very crux of the case.</p>

<p>APPLICATION OF THE AUTOMATIC COUPLER. ACTS.</p> <p>Automatic Couplers — State and Federal Acts Not in Conflict — Not Rendered Unconstitutional 5y Reason of the Fact that an Interstate Car Might Be Penalized Under Both Laws — Failure to Equip "With Automatic Couplers and Failure to Keep Such Couplers in Repair-Sections 8950 and 8963, General Code.</p> <p>The state automatic coupler act, requiring that all railway cars and locomotives engaged in intrastate traffic be equipped with automatic couplers, is not rendered invalid by reason of a similar provision in the federal statutes covering cars engaged in interstate traffic, nor by the further fact that another state law provides a further penalty for permitting a coupler on a car thus equipped to remain out of repair.</p>

<p>PLEADING A PREVIOUS CONSPIRACY AS MATTER. OF INDICTMENT.</p> <p>Pleading in Actions Alleging Conspiracy — Motion to Strike Out — Matter of Inducement.</p> <p>In a petition alleging a conspiracy by certain railway companies which will work to the disadvantage and impoverishment of another company, allegations of a previous conspiracy are proper as matter of inducement, where the previous conspiracy was frustrated by quo warranto proceedings, and the defendants to the present action were defendants to that action, and there is an allegation that by their present combination they are seeking to accomplish practically the same purpose as by the combination which was dissolved.</p>

<p>ACTION FOR LOSS OF CLOTHING FROM A PULLMAN CAR.</p> <p>Attachment — Wrongfully Issued Where the Petition. Sounds in Tort— Pleading — Section 11819.</p> <p>In an attachment against the Pullman Company for damages on account of the theft of clothing from a berth occupied by the plaintiff, which theft is alleged to have occurred through the negligence of the porter employed on said car, the petition sounds in tort and not on contract, and attachment will not lie.</p>

<p>FINDINGS OF FACT AND OF LAW.</p> <p>Consideration — Preliminary Searing in the Court of Insolvency — Findings of Law and of Fact — Section lUflO.</p> <p>Inasmuch, as the provision of Section 11470, with reference to findings when the court tries the case, is limited to the court of common pleas, a separate finding of facts and law can not he asked as a matter of right in connection with a preliminary hearing in a condemnation proceeding in the Court of Insolvency.</p>

<p>CAUSES OF ACTION CREATED UNDER THE VALENTINE ANTI-TRUST LAW.</p> <p>Pleading — What a Good Answer Must Set Forth — Not a Defense to an Action on an Account to Allege that the Goods Were Sold by an Unlawful Trust — Nature of the Action Created Under the Valentine Anti-trust Law — Offer of a Share in Profits Not Against Public Policy.</p> <p>1. A good answer must set forth facts constituting a defense, set-off, or counter-claim.</p> <p>2. In an action to recover for goods sold, it is no defense to say that the plaintiff is an unlawful trust and combination in restraint of trade.</p> <p>3. The cause of action created in favor of one “injured in his business or property” under the Valentine anti-trust law does not arise upon contract and is not a counter-claim or set-off in an action to recover for goods sold.</p> <p>4. The offer of a premium or reward to a customer in the way of profit-sharing in one’s business for exclusive patronage during a given future period is not in restraint of trade or against public policy.</p>

<p>POWER TO DISPOSE OF FEE FOR SUPPORT OF LIFE TENANT.</p> <p>Wills — Widow Given Life Estate — Power to Sell and Consume Must he Exercised, if at All, During the Lifetime of the Life Tenant — Power to Sell But Not to Consume.</p> <p>1. A testamentary provision that “whenever it may be necessary for the welfare of my said wife * * * my said executor shall have power and authority to give a good and valid deed or other evidence of title, without the intervention of the probate court or of any court and at a price acceptable to my said wife,” does not authorize the widow to consume any part of the principal estate.</p> <p>2. Moreover, if authority to consume existed, it was an authority that could be exercised only during the lifetime of the widow; and an action for services made necessary on account of the helpless condition of the widow and for an order making the amount of the claim a lien on the real estate of the husband will not lie where delayed until after the death of the widow.</p>

<p>NO PROPERTY RIGHTS IN GAMBLING DEVICES.</p> <p>Gambling — Magistrate Not Liable for Destruction of Devices Used in— Seizure of Slot Machines Under a Search Warrant — Nature of Proceeding.</p> <p>1. Where the record of a magistrate shows that at a trial held before him he finds from the evidence that certain slot machines are gambling devices, his action in ordering them destroyed is lawful.</p> <p>2. When the record shows the action of such magistrate to be under a search warrant his action is in the nature of a proceeding "in rem.”</p> <p>3. The law does not recognize any property rights as existing in gambling devices.</p>

<p>LIABILITY FOR. DAMAGES FOR UNLAWFUL SALE OF INTOXICATING LIQUOR.</p> <p>Sale of Intoxioating Liquor in Brothels — Liability of Landlord for Penalty — Dac/o of Knowledge not a Defense, Unless — Section 6195</p> <p>Want of knowledge on tbe part of a landlord that bis premises are being used as a bouse of ill-fame where intoxicating liquor is sold, is not a defense to an action against bim for recovery by tbe state of tbe forfeiture of $350 for wbicb provision is made in Section 6195, unless it unequivocally appears that tbe owner in good faith bad no knowledge and never learned that tbe place was being thus used.</p>

<p>ACTION FOR. RECOVERY FOR LOSS OF CLOTHING IN A PULLMAN CAR.</p> <p>Pleading — Amendments Before Trial Which Change the Nature and Scope of the Action — Attachment.</p> <p>An action sounding in tort can not be changed by amendment to one sounding in contract.</p>

<p>ASSESSMENTS OF THE EXCISE TAX AGAINST RAILROADS.</p> <p>Taxation — Jurisdiction of Courts in Equity to Enjoin Assessments Made by the Ohio Tax Commission — Proper Basis for Classifying Steam and Interurban Raihoays> — Character of Corporations not to be Determined from Their Charters — Construction of the Excise Tax Law.</p> <p>1. Jurisdiction may be exercised by a court of equity to res.train the Ohio Tax Commission from improperly taxing corporations under the excise law.</p> <p>2. Whether a given railway is a commercial or an interurban road must be determined from its method of operation'and the character of business which it carries on, and not exclusively from its charter; and a road which, prior to the advent of electricity as a motive power, was chartered as a steam or commercial road, and was built and operated for a considerable period as a narrow gauge steam road, but was subsequently electrified and is now operated in all respects as an interurban road, will be regarded for purposes of taxation under the excise law as an interurban rather than a steam road.</p> <p>3. A road only eight miles long, over which but one car is operated which is propelled by electricity taken from a trolley wire, is an interurban road within the meaning of the excise tax law,'notwithstanding the company was chartered for the purpose of acquiring right-of-way, and building, equipping, maintaining and operating a railway to transport freight, passengers, express and mail and do a general railway business.</p> <p>4. But where a road carried on a part of its business as an interurban and the remainder as- a steam road, the excise tax will be assessed against the company in its two capacities.</p>

<p>INDEFEASIBLE ESTATES VESTING AFTER. DEATH OF LIFE TENANT.</p> <p>Wills — Devises Which Test in Interest But Not in Possession — Estates Which Became Indefeasible Upon Death of the Life Tenant — Effect of Death of a Remainderman Without Issue — Words “Dying Without Issue” Should be Referred to the Period of the Tenancy of the Life Tenant, When.</p> <p>Item 1 of the will of A. M. is as follows: “I give and devise to my wife Sarah J. M., in lieu of her dower (a tract of land, describing it, containing 340 acres), to have and to hold the same during her natural life. * * * At the death of my said wife, I give and devise the above described real estate to my three children, viz., Charles E., Laura M. and Alexander, the same to be divided between them equally but if any of my said three children shall die without issue, the survivor or survivors of them shall take the portion or portions of such, deceased child or children.” Held:</p> <p>1. That by said Item 1 the testator devised a defeasible, vested remainder in fee in the land therein described to each of the three children therein named, subject to the life estate of Sarah J. M.</p> <p>2. That the remainder devised in said Item 1, while vested in interest, was not to vest in possession or be- distributed to said children until the death of the life tenant.</p> <p>3. That since the context of the will plainly indicates that the words in said item X “dying without issue,” were intended by the testator to relate to death during the life of the life tenant, the vested remainder -interest of each child devised by said Item 1, was subject to be divested in favor of the survivors as substituted devisees, only in the event of death before the life tenant without leaving issue in esse at the death of the life tenant.</p> <p>4. That all three children having survived the life tenant, each then had an absolute and indefeasible estate in the undivided one-third part of the land devised.</p> <p>5. That the three children and their assigns having divided the land between them at the death of the life tenant, and having quit- ■ claimed the interest that .each had in the portions acquired by the others in said division, none of the children thereafter had any estate in expectancy or otherwise in the portions acquired by the others in said division.</p>

<p>RIGHT OF A RAILWAY COMPANY TO APPROPRIATE AN EASEMENT ACROSS A PUBLIC LANDING.</p> <p>Eminent Domain — Appropriation Where the Property is Already Devoted to Public Use — Necessity for the Appropriation a Judicial Qxiestion — Failure to Agree Does Not Confer Jurisdiction, When— Conditions Under Which the Right to Appropriate Will be Denied — Sections 8283a and 6J/20, Revised Statutes:</p> <p>1. The purpose of the statutory provision for an agreement between a railway corporation seeking to appropriate property and a property owner who is competent to contract and convey is to save where possible the trouble and expense of an appropriation proceeding.</p> <p>2. Where the legal title of the property which it is desired to appropriate is in a municipality in trust for the inhabitants thereof for the purposes for which it has been dedicated, as in the case of the public landing in Cincinnati, the municipality is without authority to grant to a railroad company the right to occupy the same with an elevated structure. When the municipality is incompetent to contract and convey, inability to agree is clearly shown within the meaning of Section 6420, Revised Statutes.</p> <p>3. The discretion vested in the corporation as to the necessity for the proposed appropriation is merely a primary discretion, the .final determination of the question of necessity being under Section 6420, Revised Statutes, a judicial question; and where the court finds that the proposed appropriation will be destructive of the public use to which the land is already devoted, the petition should ' be dismissed.</p> <p>4. In order to sustain a proceeding by a railway company to condemn an easement across a public landing for an elevated track, the evidence must show both a reasonable necessity for the appropriation and that the taking will not destroy or seriously impede the use to which the property is already devoted.</p> <p>5. An elevated railway track across the public landing' in Cincinnati is not a necessity to the plaintiff company in the prosecution of its business, and would seriously interfere with the use for which the public, landing was originally dedicated apd has always been maintained, and the petition for the appropriation must be dis-' missed.</p>

<p>CONTROL OF ELECTRIC INSTALLATION.</p> <p>Police Power — Exercise of, by Municipal Corporations in Supervision of Electrical Installation — Constitutional Law — Delegation of Legislative Power — Ordinance Invalid in Part.</p> <p>1. Control by municipalities of electric wiring and the proper inspection thereof is within the police power and may be provided for by ordinance.</p> <p>2. But an ordinance which authorizes the electrical inspector to grant or refuse certificates according as the applicants are, in his judgment, competent or incompetent, is in conflict with the common welfare clause of the Constitution and also with the guaranty in the Bill of Rights of equal protection and benefit to all.</p> <p>3. The provisions that the electrical inspector shall adopt and promulgate proper rules and requirements for the installation of electrical wiring and appurtenances, and that all such construction and the material used therein shall be in accordance with the requirements of the national electrical code, is not such a delegation of legislative power as to render it void.</p> <p>4. An applicant to whom a certificate of registration was granted by the electrical'inspector will be held to have waived the invalid feature of the ordinance under which - the certificate was issued, and an action will lie against him for the amount due to the city for permits issued to him for electrical wiring.</p>

<p>REGULATIONS AS TO SHIPMENTS OF MILK AND CREAM.</p> <p>Constitutional Law — Railroad Commission Act Does Not Confer Legislative Power — Pronouncement by the Commission that Certain Railroad Regulations Are Contrary to Law is Not Legislation — Power to Pass a Law and the Adoption of Rules for Carrying into Effect a Law Already Passed, Distinguished — Interference with Interstate Commerce — Section J/87, et seg. — Injunction.</p> <p>1. The duties of the Ohio Railroad Commission are not legislative or judicial, but executive and tbe designation of such a board for tbe ascertainment of the facts in respect to the matter complained of in this case; and the application of the general rule of duty or conduct thereto, without impairment of the right of redress in the courts, is within the limitations of the Constitution, and not in derogation thereof because of a delegation of legislative power to the commission.</p> <p>2. The order directed by this commission to the Baltimore & Ohio' Railway Company, notifying it to cease- and desist from requiring shippers of milk and cream over its road between points within the state of Ohio to load the same into baggage cars, is not an interference with interstate commerce, but is within the power ' of the commission, and injunction will not lie against its enforcement.</p>

<p>SATISFACTION OF DEBT BY PAYMENT TO A FOREIGN ADMINISTRATOR.</p> <p>Payment — Authority of a Foreign Administrator to Collect Debts in Ohio — ■Settlement of Estates of Decedents — Double Payment not Enforcible.</p> <p>Payment by an Oblo debtor to an administrator appointed in some other state than Ohio prior to the appointment of an administrator in Ohio is a satisfaction of the debt.</p>

<p>ARREST ON A FALSE AFFIDAVIT.</p> <p>Damages for Arrest — Malicious Prosecution Distinguished from False Arrest and Imprisonment — Pleading.</p> <p>Where an action for damages is founded on a false affidavit for arrest, the action is one for malicious prosecution, and not false arrest and imprisonment, and it is necessary to allege that the charge in the affidavit was made falsely, maliciously and without reasonable cause.</p>