Volume 11 — Ohio Circuit Court Reports, New Series

<p>PROSECUTIONS UNDER. THE SUNDAY CLOSING LAW.</p> <p>Criminal Law — Violation of Sunday Closing Laio — Affidavit Must Show Criminal Intent.</p> <p>An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges Knowledge and criminal intent.</p>

The amended petition alleges that the defendant’s railroad extends through a thickly inhabited section .of the city of Dayton, a portion thereof extending from Washington street to Homestead avenue; that the portion of the railroad lying between said streets as aforesaid had been used by the public, including children, in general as .a passageway for foot passengers from and between said streets, with defendant’s knowledge, consent and acquiescence for some time previous to…

<p>EVIDENCE OF CUSTOM WITH REFERENCE TO THE MANNER. OF PERFORMING WORK.</p> <p>Negligence — Bralceman Injured While Coupling Cars — Failure of Automatic Coupler to Worlc — Custom with Reference to Signals and Going Between Cars — Admissibility of Testimony Having Reference to Such Custom — Error in Directing Verdict for Defendant.</p> <p>The local yard custom among brakemen, upon discovering that a car coupler would not would not couple, as to giving the usual stop signal and stepping between the cars to adjust the coupler, is admissible to meet a charge of contributory negligence against a brakeman injured by stepping between a car and locomotive tender to • adjust the coupling device. L. S. & M. S. Ry. v. Botefuhr, 10 C. C. —N. S'., 281, reaffirmed.</p>

<p>PAY FOR PUBLIC SCHOOL TEACHERS WHILE ATTENDING TEACHERS’ INSTITUTES.</p> <p>Stipulation not to Demand Pay While Attending Teachers’ Institute not Enforcible — Purpose of the Legislature in Providing for such Payment — When Benefit of a Statutory Provision may be Waived— Boards Without Authority to Reduce Compensation Fixed by Law Contracts against Public Policy — Section Jj091.</p> <p>In a contract between the B. of E. and C. D. B., under which C. D. B., was to teach an eight months term of school at $45 per month, was included a stipulation that such teacher would not exact, demand or accept pay for attending the teachers institute. Held: Such stipulation is against public policy and void, and in an action for the purpose the teacher can recover the sum fixed by statute for such attendance.</p>

<p>EQUALIZATIONS MADE BY BOARD OF REVIEW.</p> <p>Taxation — Complaint Before Board of Review — Authority of Board with Reference to Equalisation — Taxes Paid on an Excessive Valuation May he Applied in Payment of Legal Taxes, When.</p> <p>While the jurisdiction of a board of review, sitting as an annual board of equalization, is ordinarily confined to lots and lands in the immediate vicinity of the parcel as to which complaint is made, it may be exercised over lots and lands in another locality or district within the corporation, if not exercised for the purpose of a general revaluation of property in the district, a purpose which may be inferred if the additions are largely in excess of the reduction.</p>

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

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

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

<p>FOREIGN EVICTIONS.</p> <p>Liability of Sheriff- — For Failure to Inclew Foreign Execution Dochet Attaches, When — Non-feasance—Amercement—Plain Language of a Statute Must be Followed, Irrespective of Results or Intention of the Legislature — -Sections ISIS and 5596.</p> <p>A judgment creditor can not maintain an action against a sheriff for failure to execute a foreign writ of execution, or for failure to index his foreign execution docket, or to do other things enumerated in Section 1212, Revised Statutes, unless such judgment creditor has made a deposit of the sheriff’s fees with the clerk issuing the writ, as required by Section 5596.</p>

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

<p>LIEN AGAINST INTEREST OF HEIR IN PROPERTY SOLD TO PAY DEBTS.</p> <p>Sale of Property of Decedent to Pay Debts — Judgment Lien Asserted •against the Interest of One of the Heirs — Nature of the Proceeding —Oan not be Attached Collaterally — Distribution—Sections 5851, 5358 and 811,5.</p> <p>The lien of a magistrate’s judgment may he set up in a proceeding in the probate court to sell the property of a decedent to pay debts, where the party against whom the lien was obtained has an interest in the property as an heir; such a proceeding is not one requiring the issuance of summons for the party against whom the lien was obtained, and an order directing the administrator to pay ' the claim can not be collaterally attacked.</p>

<p>WHEN A TITLE BY DEVISE TAKES EFFECT.</p> <p>Wills — Title by Devise — When it Takes Effect — Action to Set Aside Conveyance Made by Devisee After Death of the Testator but Before Probate of his Will.</p> <p>A title in a devisee relates back from the probate of the will, and takes effect as of the date of the death of the testator; or if not at the death of the testator, the devisee takes upon probate of the will no more than a naked legal title, and where he has made a conveyance of his interest during the interim between the death of the testator and the probate of the will,, he takes the legal title - upon probate of the will as trustee for his grantee.</p>

<p>DE FACTO OFFICERS.</p> <p>Assessors — Failure to Qualify — How to he Treated hy County Auditor — He Facto Officers — Mandamus—Injunction—Appointment of Assistants — Approval of Bonds — Ministerial Huties — Sections 1-518, 1536-3, 1536-998 and 1536-999.</p> <p>1. Failure of an assessor in a municipality to qualify within the period after election prescribed hy law, is deemed a refusal to accept the office which becomes ipso facto vacant, to be filled by appointment hy the county auditor.</p> <p>2. A writ of mandamus will not lie at the instance of a mere de facto assessor, to enforce his claims to be invested with evidence of a legal title to the office.</p> <p>3. Injunction is the proper remedy by a de facto officer to prevent his being disturbed in the performance of the duties of the office until the legal title thereto has been determined.</p> <p>4. Two persons can not, at the same time, be de facto officers of an office for which one incumbent only is provided by law.</p> <p>5. Approval of official bonds of assessors and of the appointment of assistant assessors are acts not merely ministerial, but require the exercise of judgment and are not within the legal powers of a deputy county auditor.</p>

<p>ASCERTAINMENT OF DAMAGES WHERE GOODS WERE NOT UP TO STANDARD.</p> <p>Sales — Construction of Contracts of- — Measure of Damages Where Goods Proved Unsatisfactory — Negligence in Manufacture an Element Which Should, he Excluded in Determining Actual Cost of Manufacture — Evidence—Charge of Cowrt.</p> <p>A contract which provided that the plaintiff should receive from the defendant corporation one-half of the profits derived by the defendant from “all signs which it should make and furnish and which should be placed on said Brooklyn Company’s cars as aforesaid,” must be construed to mean that the signs were subject to the approval of the Brooklyn Company acting in good faith.</p>

<p>ALIMONY FOR. MAINTENANCE AND AS A SHARE OF THE PROPERTY.</p> <p>Husband and Wife — Marriage a Business Partnership — Dissolution of —Alimony—Revision of Ddcree on Account of Changed Circumstances — Termination of Allowance as of the Date of Re-marriage —Interpa-etation 'of the Words “Issttes Joined” as Used in Decree —Determination as to Character of Alimony Which w/as Allowed —Section 5103.</p> <p>1. While the dissolution of a marriage works the dissolution of a business partnership, a court will not on á petition for alimony alone anticipate a decree for divorce and the consequent division of the • property, unless- the. facts require it, and the judgment expressly shows that the allowance is made as a division of the property, and not for support of the wife.</p> <p>“2. Where the petition was for alimony alone, under Section 5702, and the allowance which was granted contained a provision for payment in monthly installments, with a reservation in the decree of the right of either party, in the event of changed circumstances', to apply to the court for a modification or termination thereof, an application by the husband for a termination of the allowance will be granted, where it appears that subsequent to the making of the allowance she obtained a divorce and married another man who is abundantly able to support her in her former state.</p> <p>3. In such a case evidence offered at the hearing for alimony, which tended to prove assistance by the wife in acquiring'the property, will be regarded as presented for the purpose only of increasing the allowance, and it will be presumed that whatever increase the evidence warranted was merged in the judgment.</p>

<p>CIVIL ACTION TERMINATED BY UNLAWFUL DISCHARGE OF JURY.</p> <p>Trial — Discharge of Jury — -Unauthorized, When — Cause Terminated, Thereby — Discretion of Court — Res Judicata — Sections 5195 and 5196.</p> <p>The power to discharge the jury in a civil cause during trial or after the cause is submitted and before verdict is not discretionary in a court, but must be based on a finding that some necessity exists for such action, or upon consent of both parties; and where the record discloses no necessity for such action beyond a bare request by the plaintiff, and no consideration by the court of the necessity for so doing, the discharge is unauthorized and deprives the court of further jurisdiction, and a motion to dismiss the action should be granted.</p>

<p>POWER OF THE GENERAL ASSEMBLY TO INVESTIGATE LOCAL GOVERNMENTS.</p> <p>Constitutional Law — Investigation of Corruption in Local Governments — Power of the General Assembly to Order — Justification for —Procuring Information for a Future General Assembly not Sufficient — Real Purpose of the Resolution, not Its Declared Purpose, Will be Sought — Revolutionary Procedure not Permissible.</p> <p>1. The Senate joint resolution passed by the General Assembly February 14, 1908, providing for the appointment of a committee to investigate charges of corruption in the government of the city of Cincinnati and county of Hamilton, is an exercise of judicial power not expressly conferred by the Constitution, and a gross violation of Section 32 of Article II thereof, unless it can be justified on the ground of seeking information in aid of intended legislation.</p> <p>2. But the intemperate language in the resolution and the.license and revolutionary procedure proposed, together with the declaration that all laws are being violated by an organized band which no one dares to oppose, make it clear that hope is not based on additional legislation which obviously could not be rendered effective under such circumstances; but these considerations cause it to be evident that the resolution was not adopted in good faith for the purpose of providing remedial laws, and places it beyond the pale of the Constitution.</p> <p>3. And were this not true, the fact that the General Assembly has adjourned sine die renders it impossible that information which might be obtained by such an investigation shall be used by the body seeking it for the purpose proposed, or that it will be so used by a body over which the recent General Assembly will have any control, and therefore deprive the investigation of the purpose announced, and leaves the matter in the same situation as though no purpose had been declared by the resolution.</p>

<p>VALIDITY OF EXTENSION OF A STREET RAILWAY FRANCHISE.</p> <p>Municipalities — Extension of Street Railway. Grant — Passage of Ordinance Delayed Beyond Expiration of Original Grant — Extension Ordinance a Temporary Act, When — Failure to Publish — Presumption — Consents—Mistahe as to Name of Company — Change in Judicial Construction — Effect of, on Contracts not Retroactive— Overthrow of Doctrine of Classification — Irregularities in Passage of Ordinance — Waiver—Proceedings for Ouster — Section 2502.</p> <p>" 1. A grant extending a street railway franchise is not rendered invalid, because while awaiting certain enabling legislation, under an amicable arrangement between the municipality and the company, the passage of the ordinance extending the grant was deferred for some months beyond the termination of the life of the original grant.</p> <p>2. An ordinance extending a street railway grant, which relates to but one road and involves no expenditure of money belonging to the city, hut is simply a contract between the railway company and the city, is not of a general or permanent nature, and is not rendered invalid by reason of failure to read it on three different days or to suspend the rules requiring this to' be done.</p> <p>3. The duty of publishing an ordinance rests upon the city, and in an action brought by the city solicitor to oust a street railway company from its franchise, it is encumbent upon the city to establish such an omission, and in the absence of proof to that effect a presumption arises that publication was regularly made.</p> <p>4. Whether consents from abutting property owners were secured for such an extension is a matter which concerns the property owners only, and in the absence of complaint from them can not be used by the city as ground for an ouster proceeding; and, moreover, such an objection will be deemed to have been waived where many years have intervened.</p> <p>5. The fact that the extension was granted to the Oakwood Street Railroad Company, instead of the Oakwood Street Railway Company, does not afford ground for an ouster, where it is admitted that it is one and the same company, and the city accepted the bonds of the company and all the bridge and street improvements made by it under the ordinance.</p> <p>6. Inasmuch as judicial construction with respect to a statute is given the same effect in its operation on contracts and existing contract rights that would be given by legislative amendment, subsequent adjudications which seem to render Section 2502 unconstitutional will not be construed as having a retroactive effect upon a franchise founded on a good consideration and granted at a time when this statute would have stood the constitutional test; and particularly will such retroactive effect be denied in view of the curative provisions of Section 31 of the municipal code.</p>

This case involved the validity of the following ordinance of the City of Cincinnati: “An ordinance, No. 1671, to regulate and license chattel mortgage and salary loan brokers. “Be it ordained by the Council of the City of Cincinnati, State of Ohio: “Section 1.

<p>REQUIREMENTS IN AFFIDAVIT IN ATTACHMENT.</p> <p>Attachment — Requisites of Affidavit for — Statement on Belief Only as to Non-Residence of Defendant not Sufficient — Section .5522.</p> <p>1. An affidavit in attachment under S'ection 5522, Revised Statutes, where the defendant is a non-resident, in order to give jurisdiction must contain statements showing: nature of plaintiffs claim; that it is just; the amount which the affiant believes the plaintiff ought to recover; and that the defendant is a non-resident of this state.</p> <p>2. An affidavit for attachment which avers that "Stephen J. Burke, plaintiff, being first duly sworn, says that the claim sued upon is for money paid by him for the use and benefit of the defendant and upon contract, and that said claim is just;” and “affiant believes that he ought to recover the sum of $105, together with interest, from the 17th day of August, 1895, and that the defendant is a non-resident of-this state,” is in' compliance with the-first three provisions of Section ,5522,- but as 'to the question of non-residence is upon affiant’s belief merely, and is therefore not a sufficient statement under the statute of the fact of non-residence; and it follows that the proceedings -in attachment founded on such affidavit are void.</p>

<p>ELEMENTS ENTERING INTO THE QUESTION OF NEGLIGENCE.</p> <p>;Negligence — Questions as to — Where a Butcher Drove upon a Oar Track and was Run Down — Charge of Court — Darning Power— Damages — Pleading.</p> <p>1. Special charges to the jury in an action for damages on account- of wrongful death from the running down of a wagon by a street car are erroneous if conditions are omitted therefrom which are necessary to a determination of the question of negligence.</p> <p>2. The belief, of the decedent that he had time to clear the tracks and its reasonableness must be determined, not from the direct testimony alone, but from all the circumstances surrounding him at the time.</p>

<p>PROVOCATION AS AN ELEMENT OF DAMAGES.</p> <p>Assault and Battery — Civil Action Against the Assailant for Damages — Charge of Court as to Provocation — Error.</p> <p>In an action for damages for malicious assault, an erroneous charge by the court with reference to provocation constitutes reversible error, notwithstanding the evidence warranted the jury in fixing the damages at the amount named in the verdict.</p>

<p>ERRORS IN TRIAL FOR PERSONAL INJURIES.</p> <p>Misconduct of Counsel — Ground for a New Trial, When — Charge of Court — Negligence—Preponderance of the Evidence — Reading Pleadings to Jury — Motion for New Trial After Term.</p> <p>1. It is not error for the trial judge to read the pleadings to the jury before explaining them, or to permit the jury to take the pleadings to the jury room.</p> <p>2. It is error in the charge of the court to so define the weight of the evidence as to exclude documentary evidence, or to define the preponderance of the evidence as other than that evidence which determines the conclusions which must be reached.</p> <p>3. A reviewing court will not undertake to proportion the blame for improper argument provoked by. counsel for the other side, but where objection is made to such argument it is a duty which is not merely discretionary on the part of the trial court to interpose and admonish the offender and. instruct the jury to disregard what has been said, and failure so to do is ground for a new trial.</p> <p>4. It is not error to overrule a motion for a new trial filed after term, based on newly-discovered evidence which could not with reasonable diligence have been discovered before, where no witness is called to prove due diligence in ascertaining the facts.</p>

<p>ENFORCEMENT OF UNION MUTUAL FIRE INSURANCE COMPANY’S ASSESSMENTS.</p> <p>Fire Insurance — Assessments against Policy-Holders in the Union Mutual — Tivo Assessments for Same Liability — Application of the Statute of Limitations.</p> <p>1. The decree of the Supreme Court, in the action for ouster of the Union Mutual Fire Insurance Co., does' not bar any stockholder or member from questioning his liability for an assessment or from setting up any other defense.</p> <p>2. Moreover the six years’ statute of limitations' runs against an assessment levied on a policy-holder of this company, and the running of the statute is not barred by the approval by the Supreme Court of a second assessment against the same party, when it cover's the same liability as the first assessment with probable costs of Collection added.</p>

<p>COMPENSATION FOR. PUBLIC OFFICERS IN ADDITION TO THEIR SALARIES.</p> <p>Officer and' Officer — Compensation to County Auditor — For Services in Furnishing Blanks to Assessors — Commissioners Without Authority to Allow — Sections 1029, 2749, 1069 et seg, 1077, 1078, 1528 and 2729.</p> <p>1. Public officers are not.entitled to compensation in addition to their salary for services required of them by statute, unless the statute provides therefor in express terms; and as Section 1029, Revised Statutes, does not expressly so provide, county auditors are not entitled to additional compensation for services in furnishing blanks to assessors.</p> <p>2. If the provisions’ of this section could be construed to mean that auditors are entitled to extra compensation for their services in furnishing such blanks, as no rate therefore is named therein, or in the sections that specify the rates by which all services of such auditors shall be estimated, Sections 1077 and 1078 forbid the allowance by the commissioners of such compensation and" render the same unlawful.</p>

<p>ASSESSMENT FOR. TOWNSHIP DITCH IN EXCESS OF BENEFITS.</p> <p>Ditches — Injunction Lies against Assessment by Township Trustees, When — Appeal—Error—Sections Jf533, 4539, 4560 and 4401.</p> <p>1. There is no provision for an appeal by a property owner who complains that the assessment which has been levied on his land for the improvement of a township ditch is unjust and unreasonable in that it is grossly in excess of the benefits which he will receive from the improvement.</p> <p>2. Nor will error lie in such a case, inasmuch as there is no provision for a bill of exceptions, ahd even if the transcript of the record of the township trustees were brought up, it would be of no assistance in determining the question whether the assessment exceeds the benefits.</p> <p>3. But where the complaining owner alleges that the assessment laid upon his land is grossly in excess of the benefits conferred, injunction will lie notwithstanding it is directed against thd action of a judicial board, and in such a case a court of equity 'may do justice even though no error is found in the proceedings.</p>

<p>SUFFICIENCY OF PETITION UNDER JONES LAW.</p> <p>Liquor Laws — iExamination of Petition Under the Jones Law — Burden of Proof as to Facts — Number of Signers Necessary — Judicial Notice as to Politics of Newspapers Publishing Notice — Withdrawal of Names — Depositions—98 O. L., 68.</p> <p>1. A petition under tlie Jones local option law can not be taken as prima facie evidence of the facts necessary to decide upon its sufficiency, except in the absence of a request upon the part of any elector to be heard.</p> <p>2. The burden of proving the facts alleged in the petition rests upon' the petitioners; and the burden of proving that a signature was procured through fraud or misrepresentation rests upon the party who alleges that he was misled and is asking for the withdrawal of his name from the petition.</p> <p>3. The number of signatures to the petition must equal a majority of • the votes cast at the last regular municipal election.</p>

<p>ACTION AGAINST LANDLORD FOR. INJURY TO TENANT.</p> <p>landlord and Tenant — Action Toy Wife of a Tenant for Damages on Account of an Injury — Pleading—Variance—Bua-den of Proof— Error in Refusing Special Charges Before Argument.</p> <p>1. In an action against a landlord on account of injuries to a tenant due to a defective step, the fact that proof discloses the plaintiff to be the wife of one of the tenants of the building, does not present a material variance.</p> <p>2. Where the averment is that the landlord had knowledge of the defect and the plaintiff did not, and the landlord negligently permitted the defect to continue, the plaintiff assumes the burden of proving these allegations; and, upon request therefor, the landlord is entitled to special instructions delivered to the jury bpfore argument embodying the law with reference to such knowledge and negligence.</p> <p>3. Error in refusing to give special instructions before argument, where of a proper character and correctly expressed, is not cured by the giving of like instructions in the general charge.</p>

<p>DISPOSITION OF MONEY GARNISHED IN A VOID PROCEEDING.</p> <p>Attachment and Garnishment — Reversal of Proceedings before Justice of the Peace for Lack of Jurisdiction — Speaks as of the Date of the Reversal — Disposition of Money Garnished — Dismissal.</p> <p>Where it has been adjudged on review of a suit in attachment that the justice of the peace was without jurisdiction, any order which the justice may have made as to payment of the money is void and it becomes his duty to return it to the garnishee, notwithstanding the dismissal of the petition by the reviewing court may have been erroneous.</p>

<p>VALIDITY OF MORTGAGE EXECUTED BY CORPORATION.</p> <p>Corporations — Authority of Officers of, to Sign Mortgage — Parties Dealing With, not Bound to Know that Every Formality has been Complied With.</p> <p>The certificate of authority for the signing of a mortgage hy officers of a corporation will not be held insufficient because the certificate does not appear to have been recorded in the minutes of the company, where there is evidence that a certificate was gutliorized by the board of directors and both parties to the mortgage relied on its correctness. Boesch v. Toledo Horse Displaying Co., 14 C. C., 289, followed.</p>

<p>AUTHORITY TO SUSPEND A BRIDGE OVER. A STREET.</p> <p>Municipal Corporations — 'Validity of Ordinance Authorizing the Connecting of Properties on Opposite Sides of Street by a Bridge-Easement as to Light and Air does not Exist against a Municipality — Nuisance—Obstruction of Street — Ingress and Egress — Section 28 of the Municipal Code.</p> <p>An injunction will not lie on the petition of a property owner against the connecting of buildings on opposite sides of the street by a bridge twenty feet above the pavement, where the ingress and egress of the plaintiff is in nowise impaired, and the injury which he will sustain, if any, is not different in kind from that suffered by the public at large.</p>

<p>MAKING NEW PARTIES FOR. PURPOSE OF DISTRIBUTION.</p> <p>Parties — May be Brought in for Purposes of distribution — Contractors —Railways—Claims of Material-men and Laborers — Error.</p> <p>In an action by a contractor against a railway company for damages for breach of contract it is not error, where judgment has been obtained by the contractor, to permit the railway company to make material-men and others asserting claims against the contractor parties to the action for the purpose of distribution.</p>

<p>JUDGMENT IN EXCESS OF AMOUNT ENDORSED ON SUMMONS.</p> <p>1. Where a court exceeds its jurisdiction by rendering judgment for an amount greater than that endorsed on the summons, the error can not be cured by a remittitur.</p> <p>2. It is not error to set aside such a judgment at a subsequent term.</p>

<p>LIABILITY UNDER. BOND OF A VILLAGE CLERK.</p> <p>Fiduciary Bonds — Duties of Village Cleric — Sureties' of, not Liable for Failure to Account for Assessments Collected Under Authority 'of an Ordinance — -Section 1162.</p> <p>The collection and disbursement of street assessments is not a statutory duty of a village clerk or a duty pertaining to his office, and where such service is performed by him under authority of an ordinance his sureties are not liable for his failure to account for such collections, when the condition of the bond is that he will “faithfully perform the duties of the office of clerk of said village during his continuance in said office for said, term.”</p>

<p>EVIDENCE AS TO RELATION OF A DECEDENT TO A NOTE.</p> <p>Promissory Note — Principal and Surety — Evidence—Deceased Party— Competency of Testimony Under Section 5242.</p> <p>Where one of the four makers of a note, claiming to be a surety, having paid the balance due after the death of two of.such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were .sureties, the other remaining maker, not being a party to the. • action, is not incompetent under Section 5242, Revised Statutes, to testify as to the relation existing between the deceased and the plaintiff.</p>

<p>LOSS OF LIEN ON REAL ESTATE FOR. DEBT OF DECEDENT.</p> <p>Administration of Estates — Laches in Enforcing Mortgage Claim-Protection of Innocent Purchasers — Equity—Estoppel.</p> <p>A mortgagee s is guilty of laches when, in acting upon the theory that his security is ample, he delays enforcement of his claim for a number of years, and until after the estate has been closed and other realty belonging thereto has been sold to innocent purchasers for value, who have erected valuable improvements thereon; and in such a case the mortgage is estopped from proceeding against such innocent purchasers for recovery of a balance remaining due after exhausting his security.</p>

<p>LIABILITY FOR. SAFETY OF MONEY DEPOSITED BY A GUEST.</p> <p>Where one who pays a stipulated amount for his board and lodging deposits a sum of money with his landlord for safekeeping, the latter is liable for the money so taken, whether he be regarded as an inn-keeper or a boarding house keeper.</p>

<p>FRAUD IN OBTAINING JUDGMENT AGAINST A WIFE.</p> <p>Judgment — Fraud in Obtaining, Against a Wife — Sufficient Averment of Fraud — May be Set Aside, Notwithstanding There was Service of Summons, but no Defense was Interposed.</p>

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

<p>TITLE TO INTEREST IN LAND BELONGING TO HEIR WHO DISAPPEARED.</p> <p>Co-Tenancy — Title—Interest in Share of Co-parcener Believed to he Dead — Quit-Claimed Before Expiration of Seven Years — Operation of a Deed According to Its Intent — Possession—Improvements— Estoppel — Partition—Descent—Statute of Limitations.</p> <p>Valiere a tenant in common releases for a valuable consideration to a co-tenant by quit-claim deed all his right, title and interest in ' certain land therein described, expressly including the interest inherited by him from a brother, then believed to be dead; and where also the grantee goes into actual possession of the land upon which he and his heirs make valuable improvements and continue in peaceable possession thereof for more than twenty-one years, such grantee and his heirs acquire a good title to such interest as against the grantor and his heirs although the brother was not dead at the time of the execution of the deed of. release.</p>

<p>ALIMONY.</p> <p>Husband and Wife — Allowance of Alimony — May be Modified Because of Changed Circumstances — But a New Action for a New Allowance not Permissible.</p> <p>While a former decree of court allowing a wife permanent alimony in a lump sum remains unimpeached, she will not be permitted after exhausting the amount awarded her to maintain a new and independent action for a new allowance.</p>

<p>EFFECT ON TAXABLE VALUE OF LAND OF REMOVAL OF COAL AND TIMBER.</p> <p>Taxation — Severance of Taxable Value of Coal Strata and from Surface of the Land — Removal of Timber — Changes in Tax Valuations by County Boards of Equalisation — Sections 2753 and 2792a.</p> <p>1. Where coal is sold and conveyed after the regular decennial appraisement, it is the duty of the county board of equalization under Section 2792u of the Revised Statutes, passed April 23, 1904, upon application by the owner of the surface to equitably apportion the valuation between the owner of the surface and the owner of the coal according to the relative value of their respective interests.</p> <p>2. The sale and removal of timber from land does not entitle the owner of the land to any reduction of the decennial appraisement under Section 2753 of the Revised Statutes.</p>

<p>DEPUTY CORONERS.</p> <p>Office and Officer — A Deputy Coroner is not an Officer — Quo Warranto —Section 1209a.</p> <p>A deputy coroner, appointed under the provisions of Section 1209re, is not an officer, and quo warranto .will not lie to determine his right to hold the position.</p>

<p>REPLEVIN OF GRAIN FROM AN INNOCENT SUB-VENDEE.</p> <p>Sales — Vendor may Retahe from Innocent Sub-vendee — Purchaser Must Looh to Title, When — Constructive Delivery and, Conditions Attaching Thereto — Replevin—Delivery Order and Bill of Lading Distinguished.</p> <p>When grain is sold on the floor of a chamber of commerce, the rules whereof in the absence of a stipulation to the contrary require payment when the grain is weighed, subsequent purchasers are put upon inquiry as to title, and where payment has not been made, the vendor may replevin the property from an innocent sub-vendee for value.</p>

Heard on error. Beginning in the spring of 1889, the Lake Shore & Michigan Southern Railway Company began making very extensive improvements in its road-way between Berea, in Cuyahoga county, and Toledo, Lucas county, Ohio. Prior to that time the grade of the road had been very irregular.

<p>REDUCTION OF WIFE’S PROPERTY TO POSSESSION.</p> <p>Husband, and Reduction of Wife’s Property into Possession of Husband — 'Assent of Wife — Declarations—Stale Equity or Laches with Reference to Right of Recovery — Presumptions—Payment - of Wife’s Debts — ■Gifts—Voluntary Payments — Newly-Discovered Evidence — New Trial — Sections 5242-6, 5307, 5309, 58 O. L., 54, and 68 O. L-, 48.</p> <p>1. The doctrine of stale equity or laches does not apply to an action at law governed by the statute of limitations, which does not begin to run during coverture.</p> <p>2. Where a husband appropriates notes and money belonging to his wife to his own use, and during the remainder of his life covering a period of nearly thirty years renders no account to her as to either principal or interest, and she requested none but repeatedly said there was but one pocketbook in the family-, and after his death she elected to take under his will, which disposed of all property standing in his name without acknowledging any indebtedness to her, and the declaration was made by her that all her property had been given to him to dispose of as he saw fit, there is a clear reduction of the wife’s property by the husband into his possession.</p> <p>3. In an action by the administrator of the wife’s estate to recover from the estate of the husband property which thus passed into his possession, it is error after final submission of the case to refuse to hear new evidence discovered by chance which is not cumulative, but relates to payment by the husband of debts of his wife, and is proffered as a new defense.</p> <p>4. The presumption that, where the debt of a wife is paid by her husband with his own money, a gift is intended, does not apply where the debt was to a firm of which the husband was a member, and was a balance due for the construction of a building on a lot owned by the wife, which was soon afterward sold and the proceeds retained by the husband until his death.</p> <p>5. But while such evidence, if uncontradicted, would necessitate a different judgment, it is not error to refuse to grant a new trial, where the application therefor was not made by motion under Section 5307, or by petition under Section 5309.</p>

<p>LICENSE TO MAINTAIN STREET RAILWAY TRACK.</p> <p>Contracts — Agreement for Occupation of Land hy /street Railway Tracks — Construed to he a License — Conflicting Provisions of an Ordinance.</p> <p>An agreement for the maintenance of a street railway loop on private property for a period not exceeding twenty-five years, for a consideration of one dollar per year while so maintained, and upon cessation of the use of said track it shall be removed upon demand of the owner of the land at the expense of the street railway company, is a mere permit or license to the street railway company for a period not exceeding that named, and the owner of the land can not insist on the operation of cars over the loop in the face of an ordinance providing for a different route.</p>

<p>ERROR. IN VERDICT CORRECTED IN JUDGMENT.</p> <p>Verdict — Manifest Mistake in, Corrected in the Judgment — Surplusage —Wills—Evidence—Charge of Court- — -Bwden of Proof — Preponderance of Evidence — Presumption from Probate.</p> <p>1. Where the jury in an action to contest a will return a verdict establishing its validity, but by a manifest error insert the date of the execution of the will as the date of its probate, and the record shows that but one paper writing purporting to be the last will of the decedent was exhibited to the jury, and that were the date of probate as given by the jury correct the right to contest the will would have been barred, it is not error for the court to treat the date given by 'the jury as mere surplusage and enter a judgment upon the verdict correcting the error and establishing the validity of the will.</p> <p>2. In an action to contest a will declarations by a party to the record, who is a legatee with -others under the will, are inadmissible to prove that the will was contrary to the intentions of the testator or was procured by undue influence.</p> <p>3. In such a case it is essential that the jury be instructed that the evidence of the contestants, in order to warrant the setting aside of the will, should not only outweigh the evidence adduced by the defendant but also the presumption arising from the order admitting the will to probate.</p>

<p>NECESSITY OF SHOWING WHAT IT WAS PROPOSED TO PROVE BY AN EXCLUDED QUESTION.</p> <p>Evidence — Exclusion of Record Must Disclose that Error Intervened Thereby — Presumption—Wills.</p> <p>Where objection to a question propounded to .a witness is sustained, but the record does not disclose what reply the witness would have made had he been permitted to answer, a reviewing court will not presume that the answer would have been material, or favorable to the plaintiff in error, or that the sustaining of the objection to the question was prejudicial, or that the rejection of ;the answer' by the trial court was improper.</p>

<p>ADJUDICATED CLAIMS. AGAINST BENEFICIAL ASSOCIATIONS.</p> <p>Mutual Benefit Societies — Adjudication of Claims — Lien for the Amount Ordered Paid — Orden• Equivalent to a Cashier’s Check — Subsequent Appointment of a Receiver Without Effect.</p> <p>The adjudication of a claim by the duly authorized trustees of a fraternal organization with delivery of the order establishes a . lien on the funds of the organization,' which a ’court of equity will recognize as against a .subsequently appointed receiver or assignee of the organization.</p>

<p>FATAL INJURY FROM BEING STR.UCK BY A RUNAWAY HORSE.</p> <p>Pleading — Negligence—Special Instructions — Interrogatories—Defenses —Error—Accidents Which Belong to that Unfortunate Glass of Occurrences for Which the Law Affords the Injured Party no Relief — Section 5061.</p> <p>1. Tlie defense of contributory negligence, if well pleaded in an action for damages for personal injuries, is not inconsistent with a general denial.</p> <p>2. An interrogatory which raises an issue as to the comparative negligence of the plaintiff and defendant, or an instruction to the jury which imposes on the defendant the duty of proving that it was prudent and cautious, or that omits the statement that tlie negligence complained of was the direct cause- of the injury, is erroneous.</p>

<p>PROCEEDINGS TO COMPEL PRODUCTION OF BOOKS AND DOCUMENTS.</p> <p>Action for Discovery — Proceedings Under the Statutes to Compel Production of Books and Writings — Right of Inspection and Copies —Enforcing Answers to Interrogatories — Truthfulness of Answers — Interpleader—Equity Jurisprudence — Contract for Insurance Against Liability Arising from Injuries to Employes.</p> <p>When under a given state of facts Section 5293, Revised Statutes, together with Sections 5289, 5290 and 5101, will afford the same relief as was formerly administered in chancery by a bill of discovery under the same facts, the provisions of said sections must be pursued.</p>

<p>PROSECUTION OF ERROR. WHERE THERE WERE TWO FINAL DECREES.</p> <p>Final Order — Title Held in Trust — Finding as to, and as to Rents and Profits — Error Proceedings.</p> <p>In an action to declare a trust in land and for recovery of rents and profits, the final decree to which error can be prosecuted so as to bring before the court the guestion as to whether the defendant held the property in trust or in fee is the decree wherein the controversy as to the title was decided, and not a subsequent decree confirming the report of the referee as to the amount of rents and profits due from the defendant.</p>

<p>QUIETING TITLE AGAINST KNOWN HEIRS.</p> <p>Title — Proceedings to Quiet Title Against XJnlmown Heirs — Not Effective Against Known Heirs — Summons—Publication—Parties— Notice — Statute of Limitations — Tenants in Common.</p> <p>1. An action brought to quiet title to land against J. D. W. if living, and if dead then against the unknown heirs of J. D. W., as defendants, in which action service was made -by publication, and a decree rendered quieting the title of plaintiff against such defendants does not affect the title in the land of heirs of J. D. W. whose names and places of residence in Ohio are known to the plaintiff in such action, and who are not named as parties, or served with summons therein, and who have no actual notice of such action; and such known heirs are not barred by the proceedings and decree in such action from asserting their interest in such land.</p> <p>2. The statute of limitations does not run in favor of a tenant in common in the occupancy of the premises, against his co-tenant, until some overt act of an unequivocal character, clearly indicating an assertion of ownership of the premises, to the exclusion of the right of the co-tenant.</p> <p>3. The commencement and pendency of an action to quiet title against J. D. W.-if living, and if dead then against his unknown heirs, was not such notice to the known heirs of J. D. W. who .were co-tenants of the plaintiff, hut had no actual notice of such action, that the plaintiff claimed adversely to their interest in the land, as to make the statute of limitations run against their interest in the land.</p>

<p>REGULARITY OF PROCEEDINGS FOR. EXTRADITION.</p> <p>Extradition — Presumption as to Regularity — Where no Error in the Proceedings is Disclosed by the Record — Habeas Corpus.</p> <p>Where it appears, from the papers embodied in a bill of exceptions, that the Governor of the state was authorized to grant a warrant of extradition, and the proceedings are in all other respects regular, but the record fails to disclose what action was taken by the Governor, it will be presumed that a warrant of extradition was granted and that the prisoner is held by virture of such warrant, and refusal of a writ of habeas corpus under such circumstances is not erroneous.</p>

<p>UNFAIR. COMPETITION BY AN UNLICENSED PHYSICIAN.</p> <p>Physician and Surgeon — Unlicensed Practice and Unfair Competition —Section J¡Jf03c a Criminal Statute — Injunction Will not Lie Against an Unlicensed Practitioner — No Property Rights Conferred by a Physician’s License.</p> <p>1. The practice of medicine or surgery will not be enjoined merely because such practice is unskillful and patients may be injured rather than benefited thereby, or because the patients are deceived by false claims of skill.</p> <p>2. Section 4403c, Revised Statutes, prescribing who may practice medicine, is designed to protect the public, and notwithstanding some incidental benefits result to those having the necessary qualifications to practice, by excluding others not qualified, it is not intended to confer special privileges upon licensed practitioners for the protection of which as a property right they may invoke equitable aid to restrain unlawful competition by unlicensed practitioners.</p> <p>3. Injunction will not lie to prevent the practice of medicine by one having no legal certificate therefor, where the only ground urged for such relief is, the diminution of profits to one lawfully engaged, in such practice by reason of the unlawful competition,</p>

<p>LARCENY AND ROBBERY DISTINGUISHED.</p> <p>Criminal Law — Larceny Converted into Robbery by Pwsuit and a Struggle — Violence is Concomitant with the Talcing, When.</p> <p>T, -while examining rings in a jewelery store, under the pretense that he desired to purchase, seized the tray containing the rings and ran. He was followed by the clerk, and at the door of the store there was a struggle, with the result that T escaped with the tray. Held:</p> <p>That the pursuit by the clerk and the struggle at the door were concomitant or concurrent With the taking of the rings, and T was properly convicted of robbery as distinguished from larceny.</p>

<p>ATTORNEYS’ FEES UNDER. AN ALLEGED CONTRACT.</p> <p>Attorneys’ Fees — Alleged Contract for Services — Proof Fails to Establish Contract — Accord and Satisfaction — Ünprejudicial Errors.</p> <p>In an action for recovery for services by attorneys under a contract, there can be no recovery where the proof tends to show that no contract was entered into, and that the defendant sent to the plaintiffs a check for a substantial amount, having upon it “in full for all claims or demands for service rendered to date,” which check was endorsed and collected by the plaintiffs.</p>

The defendant below recovered a judgment against the Grand Lodge for $1,350 on a policy of insurance on the life of the decedent. The principal defense set up was as to the truthfulness of answers made by the decedent at the time of his application for a policy. In the court below the judgment was against the Grand Lodge.

<p>COMMITMENT TO WORK HOUSE IN ANOTHER. COUNTY.</p> <p>Imprisonment — Authority of Constable to Take Prisoner to Work House of Another County — Fines and Costs — Provisions for, in Default of Payment — Habeas Corpus — Section 1536-318.</p> <p>1. A constable, in a county having no work house, but which has made terms, under Section 1536-378, Revised Statutes, with a city or district of another county having within its limits a work house, can not commit to such work house a prisoner found guilty of violating a state law, unless the sentence so provides, although the writ issued to the constable directs such confinement.</p> <p>2. It is the duty of a constable holding a writ of execution for the collection of a judgment for a fine and the costs of prosecution, rendered by a magistrate for the violation of a state law, hut which judgment makes no provision for imprisonment in case of default in the payment of said fine and costs, to take the body of the offender and commit him to the county jail, in case he fails to pay said fine and costs and. there is no property out of which to satisfy said judgment.</p> <p>3. Where, under such circumstances, a constable has taken possession of the body of the defendant, habeas corpus will not lie against the constable for the release of the defendant, at least until the constable has had a reasonable time in which to convey him to the county jail.</p>

<p>FAILURE OF CONSIDERATION FOR. WIFE’S RELEASE OF INTEREST IN LAND.</p> <p>Husband and Wife — Release by Wife of Her Interest in Lands — Consideration Wholly Fails — •Action to Set Deeds Aside — Pleading— Presumption — Fraudulent Representation — Mistake.</p> <p>The allegation that the consideration upon which a wife released her rights in her husband’s property have wholly failed, and if the deeds are permitted to stand she will receive no part of the consideration which it was intended both by her husband and herself that she should receive, is not ground for setting the deeds aside, in the absence of the allegation that the consideration was wholly inadequate at the time the deeds were executed.</p>

The plaintiff in error was tried in the police court-of the city of Cincinnati, Hamilton county, Ohio, on the charge of suffering a game.of chance on the premises. The alleged offense was committed on the Island Queen, an Ohio river steamer, lying at “Coney Island,” a pleasure resort on the Ohio side of the river, near Cincinnati.

<p>EFFECT ON DESCENT OF PROPERTY OF FAILURE OF WIFE TO TAKE UNDER. THE WILL.</p> <p>Wills — Devise of Property to Widow in Fee — Other Property Devised to Her for Life with Power to Sell — Effect of Failure of Widow to Take — -Intention to Create a Life Estate Prevails over Inference Arising from Power to Sell — Widow can not Elect Whether She will Take as Heir at Law or as Devisee — But Must Take Either as Widow or Devisee — Distribution of Residue — Dower—Sections 4159 and 5964-</p> <p>1. Where a husband possessed of real estate acquired by purchase dies testate but without issue, property devised to his widow, in fee, with no devise over in the event that she elected not to take or failed to take under the will, does not become intestate property as to her within the meaning of Section 4159, and she can not take as heir at' law the property thus devised to her in lieu of dower and distributive share.</p> <p>2. With reference to the fee of property devised to a widow for life with a power to sell which has not been exercised, the husband will be held to have died intestate.</p> <p>3. In such a case the widow becomes the owner in fee of the intestate property devised to her for life, but has oply a dower ipterest ip j;be property devised tp ber ip fpe.</p>

<p>PROCEEDINGS IN ATTACHMENT.</p> <p>Attachment-Error to Overruling of Motion to Discharge — Averments of the Affidavit — Exceptions Under Section 5521 — Compliance with Section 5568>b.</p> <p>1. The filing of a petition in error • within the required time together with an undertaking for retention of the attached property is a sufficient compliance with Section 55636.</p> <p>2. The averment of the affidavit that the defendant is a non-resident, when aided by an allegation of the petition that the defendant is a corporation under the laws of Kentucky, is equivalent to a statement that it is a non-resident corporation; but the affidavit must affirmatively show that the defendant is not within the exceptions contained in subdivision 1 of Section 5521.</p>

<p>REAL ESTATE AGENT’S COMMISSION.</p> <p>Where the contract with a real estate agent specifically states that he is to be paid for his services “when the property is sold,” it is not error in an action by the agent against the owner for recovery of his commission to direct a verdict for the defendant, • where the testimony has disclosed that the prospective purchaser refused to take the property because of defect in the title.</p>

<p>MAKING IDIOTS PARTIES BY ANSWER.</p> <p>In an action by an administrator to sell real estate to pay debts, heirs who are idiots are made parties to the record by the filing of an answer and cross-petition by their guardian, wherein the allegations of the petition are admitted, service- of summons waived, and the court is asked to grant the prayer of the petition.</p>

<p>STATE AND FEDERAL AUTOMATIC COUPLER ACTS.</p> <p>Automatic Couplers — State Law Relating to, not Superseded by the Federal Act — Commerce Clause of the Constitution — Rights Retained by the States — Regulation of Commerce and of the Instruments of Commerce Distinguished — Unit of the State Act — 98 O. 15.</p> <p>1. The state law, requiring that all locomotives and cars used in moving intrastate traffic shall be equipped with automatic couplers, is not in conflict with the federal act making the same requirement as to locomotives and cars engaged in moving interstate traffic, but rather the state law is supplementary to the federal law and in harmony with it.</p> <p>2. The car is made the unit by the statute, and each car must be complained of separately in seeking to enforce the penalty under the statute.</p>

<p>MOVABLE PARTITION NOT PART OF THE FREEHOLD.</p> <p>Landlord and Tenant — Partition of Room Held,by Lease — Fixtures.</p> <p>The movable partition involved in this case can not he regarded as a permanent addition to the freehold.</p>

<p>EVIDENCE ESTABLISHING GIFT BY WIFE¡¡TO HUSBAND.</p> <p>Husband and Wife — Separate Estate of Wife — Gifts Inter Vivos— Proof necessary to Establish — Assent of Wife to Possession and Use of Her Property by Husband — Written Instrument not necessary to Complete a Gift — Declarations .of Deceased Persons — Presumption.</p> <p>1. While the evidence of a gift inter vivos must, under the Ohio law, be clear and convincing, there is no rule requiring that it be direct and positive.</p> <p>2. If there be any weakness in testimony as to declarations by a deceased wife of her assent to the use by her husband for his benefit of her property then in his possession, it lies in the source and not in the substance1 of the declarations.</p> <p>3. Where a wife has full knowledge that her husband is- using her property as his own, investing part of it in real estate, taking title in his own name, selling part and reinvesting the proceeds without in any way recognizing her as a creditor or beneficiary,, her assent thereto during more than thirty years of harmonious and affectionate married life is clearly corroborative of declarations that a gift was intended.</p> <p>4. Evidence that the husband had possession of a check and notes, transferrable by. delivery and given in payment for property of his wife, does not sustain the burden of proof required in an action for money had and received, in the absence of testimony that he realized the cash or its equivalent by using the check and notes.</p>

<p>PREJUDICIAL REMARKS BY COUNSEL TO JURY.</p> <p>Negligence — Master and Servant — Defective Machinery — Master’s Liability After Ineffectual Efforts to Repair — Injury to Operative— Unprofessional Remarles to Jwry — Duty of Trial Judge.</p> <p>1. Where the evidence clearly shows that the machine at which the plaintiff was employed was not working properly, and that an effort was made to fix it, and the plaintiff was then told it was all right, a judgment in his favor for injuries' thereafter received and due to a defect in the machine will not be set aside if supported by sufficient evidence.</p> <p>2. Where counsel make statements of fact during the trial of a cause and within hearing of the jury, which are prejudicial and incompetent or not at issue, it is the duty of the judge to interpose and correct the wrong without waiting to be reminded of it by opposing counsel; and in default of so doing, or if the wrong be one that could not be nullified and therefore required that the jury be discharged and the cause continued, and it does not manifestly appear to the reviewing court that no prejudice in the minds of the jury resulted from the statements, the judgment must be reversed.</p>

<p>PROSECUTION FOR. ASSAULT WITH INTENT TO MAIM.</p> <p>Criminal Law — .Assault with Malicious Intent to Maim or Disfigure— Evidence Necessary to Convict — Maim and Mayhem — Intention Inferred from Ci/rcumstances — Section 6S19.</p> <p>Where an assault is committed by a blow upon the head with a blunt instrument, under circumstances evincing an intent to permanently disable the person assaulted in respect to the use of some member of the body necessary in defense of his person or to annoy his adversary, the party committing the assault may be convicted of an assault with intent to maim.</p>

<p>DAMAGES TO PROPERTY FROM A SEWER.</p> <p>Municipal Corporations — Sewers—Damages to Property from — Ownership of Sewer — Notice of Defect — Errors at Trial Immaterial, When.</p> <p>Where a cause of action is stated against a municipality, and the uncontradicted evidence shows liability for whatever damages resulted, and also that the plaintiff suffered greater damages than were allowed him by the jury, errors of law in the charge to the jury or in the admission or rejection of evidence become immaterial.</p>

<p>COMPENSATION — EVIDENCE-BILL OF EXCEPTIONS.</p> <p>Error does not lie to tlie overruling of a motion for the allowance of compensation for services rendered, where the motion was heard on evidence and no hill of exceptions is offered containing the evidence.</p>

<p>BLINDNESS RESULTING FROM USE OF WOOD ALCOHOL IN VARNISH.</p> <p>Negligence — Master ancl Servant — Fumes of Wood Alcohol Cause a Brewery Employe to Lose his Eyesight — Safe Place to Work— Assumed Bisk — Pleading—Charge of Court — Bill of Exceptions— Weight of Evidence — Expert Witnesses.</p> <p>1. Under the rule that a master can be held liable only for acts negligently done or omitted and so alleged, it is necessary to aver that the appliance used was negligently selected, or that there was a failure to warn the servant of the danger connected with its use.</p> <p>2. A charge' which authorizes the jury to return a verdict for the plaintiff, in the event they find that certain facts are true, is erroneous when the essential fact constituting the negligence is omitted.</p> <p>3. The fact that a witness is a dealer in brewers’ supplies and technical machinery does not qualify him to testify as an expert as to whether or not Columbian spirits are poisonous, if applied as a compound of shellac in an enclosed area.</p> <p>4. Questions requiring an argumentative answer, or which appeal to the prejudice of the jury by introducing irrevelant facts, are not only erroneous, but should draw from the court a caution against any further attempt to influence the jury in that manner.</p> <p>5. Where exhibits are found to be missing from a bill of exceptions at the time it is offered for signature, the time for signing should be extended under the statute, rather than go to the upper court with an incomplete bill, or attempt to make it complete by subsequently attaching the exhibits without the consent or knowledge of the trial judge.</p>

<p>IMMUNITY FROM STATUTE OF LIMITATIONS NOT TRANSFERABLE. *</p> <p>Taxation — Lien for Money Paid at Delinquent Tax Sale-Subject to Statute of Limitations — Defenses—Section 2SSO.</p> <p>1. The plea of the statute of limitations is a good defense against an action to subject lands to satisfaction of a lien for money paid for said lands at a tax sale which proved invalid.</p> <p>2. The six year statute of limitations applies in such a case.</p>

<p>APPROPRIATION OF ABANDONED CEMETERY.</p> <p>Eminent Domain — Appropriation of Abandoned Cemetery by Village— Eights of Persons Who have made Interments upon Payment of a Fee — Harmonious Purposes of the Appropoiation — Method of Procedure — Certificate of Clerk — Necessity for the Appropriation — Designation of Parties Defendant.</p> <p>1. A cemetery wherein interments were made upon payment of a fee without the granting of any title to the ground, and in which no interments have been made for forty years, may be appropriated by a village for use for parks and public buildings.</p> <p>2. The Burns law, requiring that before any expenditure is authorized the clerk or auditor shall certify that funds sufficient to.meet the proposed expenditure is in the treasury :and unappropriated,' can not be made to apply to an appropriation proceeding in advance of any knowledge as to what the property will cost.</p> <p>3. In such a proceeding it is not necessary to declare the interest to be acquired, and in the absence of a declaration a fee simple will be presumed; nor can the necessity of the appropriation be questioned, except for collusion or fraud.</p> <p>4. Where the property is owned by a religious society the trustees of the society should be individually named as such in the caption of the application to assess compensation.</p>

A Cólerain avenue car, descending a grade in Cincinnati came up behind a truck wagon which was .being driven by the decedent. The wagon was shoved along for 100 feet or more, when the intestate was thrown off and killed. Her administrator recovered a judgment below for $3,000.

<p>JURISDICTION OF POLICE JUSTICES.</p> <p>Sunday law — Prosecution for Violating — Police Justices — Appointed Under Section 1588-88.'ia — Constitutional Law — Villages.</p> <p>1. A police justice of a village, appointed by virtue of authority conferred by Section 1536-884», has under the present statutes of Ohio the same jurisdiction as is conferred upon mayors of such corporations.</p> <p>2. The statute bestowing this jurisdiction the court believes to be unconstitutional, but inasmuch as the question of its constitutionality ca'n not be raised in a collateral proceeding, the police justice in this case is treated as a de facto officer whose ■ acts are valid as between the public and third persons.</p>

Prior to November, 1908, the police force of the city of Portsmouth consisted of a chief and twenty patrolmen, including a turnkey. At that time the city council, by an ordinance repealing a former ordinance, reduced the force of patrolmen from twenty to eleven.

<p>JURISDICTION TO PUNISH A RECEIVER..</p> <p>Contempt — Receiver Appointed by Nisi Prius Court — Disobeys Order of Appellate Court — Jurisdiction to Punish.</p> <p>A receiver can not suspend an order of the court of common pleas by appeal, and tlien defy the order of the appellate court on the ground that .only the court which appointed' him can enforce the order; but in such a case the appellate court has jurisdiction to adjudge the receiver in contempt and to punish him therefor.</p>

<p>ACTION AGAINST COUNTY COMMISSIONERS FOR. NEGLIGENCE.</p> <p>Roads — “Repair” of — Plank Removed from Bridge by Traction Com* pany — Liability of County Commissioners for Resulting Injury to Pedestrian — Negligence—Section 845.</p> <p>Leave was.given to a traction company by the county commissioners to lay tracks on and over a bridge and alon'g a pike, which was formerly a state road but by act of the Legislature had been given to the county to keep open and in repair as a public road, While laying its tracks the traction company removed the plank from the bridge and left an uncovered space into which the de» cedent .fell. Held:</p> <p>That an action will not lie in such a case against the county com» missioners for damages, under the provisions of Section 845, Re» vised Statutes.</p>

<p>PREFERENTIAL CLAIMS.</p> <p>Debtor and Creditor — Loans Entitled to Preference — Assignment of Accounts as Security — Corporations—Insolvency—Distribution.</p> <p>A corporation in need of money entered in good faith into an arrangement with parties who were, not creditors apcl were willing, to extend it assistance, whereby a loan, was made, and certain accounts were transferred as security, and as. these were paid other accounts were substituted. The corporation at .a later date went into the hands of a receiver, and upon distribution of the fund arising from a sale of its assets it was held:</p> <p>That the contract was valid and the parties making the loan should be preferred over the general creditors.</p>

<p>The plaintiff in error was convicted below of keeping his saloon open on Sunday.</p>

<p>PROSECUTION OF BANK OFFICER FOR EMBEZZLEMENT.</p> <p>Constitutional Law — Section 3821-85, Relating to Embezzlement, etc., by Bank Officials — Habeas Corpus — Lies Against the Jurisdiction of a Court, but not Against the Regularity of Its Order of Commitment — Criminal Law — Error—Free Banking Act of March 21, 1851 — Classification.</p> <p>1. While errors of the trial court can not be properly brought before a reviewing court by habeas corpus, a petitioner for a writ of habeas corpus who attacks the jurisdiction of the trial court will be heard.</p> <p>2. Section 3821-85, providing a penalty for embezzlement, etc., by bank officers, employes and agents, is not unconstitutional because not of uniform operation.</p> <p>3. But if it be true that one of the provisions of this act is unconstitutional, it follows that the corresponding section of the original free banking ac.t, passed before the adoption of the present Constitution; is unrepealed and still a valid and constitutional act under the provisions of which an offender may be prosecuted.</p>

<p>APPOINTMENT OF MEMBERS OF THE OHIO RAILROAD COMMISSION.</p> <p>Railroad Commission — Appointment of Members of — Authority to Appoint Vested in an Incoming Rather than an Outgoing Governor— “Recess” Appointments Valid only when the General Assembly has Adjowrned Sine Die — Section</p> <p>1. The Legislature, in providing that members of the Ohio Railroad Commission shall be appointed in January for terms of office beginning February 1, intended that in years when a new Governor takes his seat on the second Monday in January, the rule- that-an outgoing official can not appoint for a term to begin'-after his own has expired shall be operative.</p> <p>2. The adjournment of the Legislature referred to in this act is the sine die adjournment of the session" whether regular or extraordinary, and not a mere re'Cess for a specified period; and a “recess appointment” has no validity unless made after final adjournment of the session.</p>

<p>INJURY FROM STEPPING INTO AN UNGUARDED STAIRWAY.</p> <p>Negligence — Pleading—Presumption—Findings 6y the Jury — Customer in a Store Falls Down an Unguarded Stairway.</p> <p>The averment that a customer of a store, having no knowledge of the existence of an open stairway, stepped backwards into the entrance of said stairway and was violently precipitated to the basement below, raises a presumption that she was .herself negligent, and where in such a case a general verdict in favor of the proprietors of the store is consistent with special findings by the jury, it will not be disturbed.</p>

The Hibben Dry Goods Company having determined .to increase its capital stock from $100,000 to $200,000, it was furr ther .decided that a stock dividend of $25 per share should be distributed to the holders of the old stock who had borne the burden of founding the business. This was done and thereafter the new stock was sold.

<p>PRESUMPTION AS TO RESCISSION OF CONTRACT FOR SALE OF LAND.</p> <p>Contract — For Sale of Land — Failure of Performance by Both Parties —Rescission by Mutual Consent Presumed — Right of Vendee to Recover Money Paid.</p> <p>Under a contract for the sale of land where a vendor is unable to make " a deed at the time stipulated or within a reasonable time thereafter, and the vendee does not waive such default, -but neglects ' to tender performance on his part for an unreasonable time, the rescission of the contrast may be presumed by mutual consent, and in such case the vendee may maintain an action to recover the money advanced upon the contract.</p>

<p>DEFECTIVE CHATTEL MORTGAGE AND CONDITIONAL SALE LIENS.</p> <p>Chattel Mortgages — Failure to Beflle — Subsequent Seizure of Property by Mortgages — Bights of General Creditors — Conditional Sales— Stringent Compliance Required with Statutory Provisions — Sections J¡15,r> and J/1S6-Z.</p> <p>1. Where a chattel mortgage expires without payment having been made and it is not refiled with hi thirty days pursuant to the statute, the lien becomes dead, and it can not be revived to the injury of creditors by the mortgagee tailing possession of the property.</p> <p>2. The policy of this state requires literal compliance with statutory provisions with reference to conditional sales, and omission by the vendee to file an affidavit with his claim in the office of the county recorder renders the lien of the vendor under the conditional contract invalid.</p>

<p>LANDLORD AND TENANT — QUITTING PREMISES WHICH HAVE DETERIORATED.</p> <p>The fact that premises have deterioated does not afford a tenant sufficient reason for quitting them, unless it appears that they have become unfit for occupancy for the purposes for which they were leased.</p>

<p>FAILURE OF A SCHOOL BOARD ACT IN UNIFORMITY OF OPERATION.</p> <p>Constitutional Law — Uniformity of Operation of Section 3897 — Destroyed by Its Terms — Boards of Education — Office and Officer — Quo Warranto.</p> <p>1. The uniformity of operation of Section 3897, relating to boards of education in city districts, as amended in 99 O. L., 584, is destroyed by force of the terms of the act, and as amended this act • is therefore unconstitutional and void.</p> <p>2. Previous to its amendment this act was general in character, and so far as its terms were concerned operated uniformly throughout the state, and divested of the amendment the act is unconstitutional.</p> <p>3. 'The president of a board of education is an officer within the meaning of the statutes providing for his election and fixing his duties.</p>

Samuel Huston, while the owner of a business block in Columbus, this state, rented certain front rooms to Ei G-. Orebaugh for the purpose of a real estate office, but reserved no control over these rooms. Mr. Orebaugh sublet desk room to D. B. Hillis, an insurance agent.

<p>CHARACTER. OF PROCEEDINGS FOR. VACATION OF A STREET. ''</p> <p>Vacation of Street — Proceeding for, is Special — Not Appealable — Sections 1536-148-149-150 and 5236.</p>

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

<p>ULTRA VIRES ACTS BY DIRECTORS.</p> <p>Corporations — Good Faith of Directors — Ultra Vires Agreements and Purchases of Property — Will not he Ordered Rescinded, When.</p> <p>Where the necessities of a corporation required the rentention of real estate which had been acquired under an ultra vires contract and compromise of pending suits, a court will not in the absence of fraud or bad faith order that the agreements be rescinded and a reconveyance made.</p>

<p>A DECREE OF DIVORCE MAY BE SET ASIDE AFTER TERM FOR. FRAUD AND PERJURY-</p> <p>Divorce — Decree for, may be Reopened after Term — 'Where Asked on the Ground of Fraud and Perjury — Courts not Bound by Rules lohich Protect Fraudulent Practices — Such Rules can not Rest on Their Antiquity or a Mistaken Public Policy.</p> <p>1. Courts inherently have the right to protect themselves and the public from fraud and perjury; hence, neither question of public policy nor rule of court which protects and encourages perjury and fraud can be permitted perpetually to impede justice, notwithstanding such rule has been observed for more than half a century and courts reluctantly ups.et well established rules.</p> <p>2. A decree of divorce obtained by fraud and perjury, on the facts being shown, may be set aside after the term at which the divorce -was granted, and notwithstanding remarriage of the guilty party. Parish v. Parish, 9 Ohio State, 534, and earlier Ohio decisions not followed.</p>

<p>LIABILITY FOR GOODS DAMAGED IN TRANSIT.</p> <p>Carriers — Shipment Passes bver Several Lines — One Conimaat for' Transportation Covers All, When — Goods Damaged in Transit-Liability to the Consignee.</p> <p>Where a consignee pays to a railway company the full amount of the freight charges on a shipment of goods which had passed over a number of roads and been received in bad condition, and by agreement the consignee files with the railroad company a claim for damages, the company will be held to have recognized that there was but one contract for transportation from the point of shipment to destination, and in the absence of any knowledge as to where or how the damage occurred the company delivering the goods is liable, and a judgment for the amount of damages sustained will not be set aside.</p>

<p>NECESSITY OF CHARGING CRIME IN THE LANGUAGE OF THE STATUTE OR. ITS EQUIVALENT.</p> <p>Criminal Law — Indictment for Embezzlement — Variance Between Charge and Proof — As to the Capacity in which Defendant Acted —Fraudulent Conversion by Attorney — Section 6842,</p> <p>Where an indictment charges embezzlement- as agent, but the proof is to the effect that the defendant was employed by the prosecuting witness as her attorney, and in that capacity received the money which he fraudulently converted to his own use, it is error to overrule a motion for an instructed verdict finding the defendant not guilty on the ground of variance.</p>

<p>NATURE OF THE TENANCY WHERE A WRITTEN LEASE IS EXTENDED BY VERBAL AGREEMENT.</p> <p>Landlord and Tenant — Parol Contract for Lease — Where the Tenant is in Possession Under a Prior Written Lease — Statute of Frauds.</p> <p>1. Where a tenancy was begun under a written lease for a term of five years, with a privilege of renewal for another five years, and the lessee entered upon his fourth term by virtue of a verbal agreement for another five years under the same terms as before, his possession is referable to the former written lease, and he becomes a tenant from year to year.</p> <p>2. Justices of the peace have jurisdiction, under Section 6600, in cases of tenancy from year to year.</p>

<p>ASSIGNMENT BY A RECEIVER OF MONEY DUE.</p> <p>Receiver — Assignment by, of Money Due — Rights of the Drawee— Where the Money was Collected by the Receiver.</p> <p>Where a receiver gives an order for the payment of money due to him as receiver and afterward accepts the money from the debtor without the consent of the drawee of the order, he becomes personally liable to the drawee for the amount of the order.</p>