Volume 11 — Ohio Circuit Decisions

<p>CONVEYANCES — DOWER—FRAUD.</p> <p>1 Conveyance of Property Subject to Unassigned Dower Interest.</p> <p>S. M., tenant in common with R. M., conveyed to said R. M. by deed of release or quitclaim certain tracts of land described in the deed, which were subject to an unassigned dower. S. M, and his wife, in the deed, remised, released and forever quitclaimed unto the said R. M., his heirs and assigns forever, all their title, interest and estate, legal and equitable, except their right and title in the widow’s dower in the premises described. Afterwards the widow’s dower was assigned in 120 acres, a part of the lands described in the deed. Held, that S. M.’s grant to R. M. excepted the fee in that part or portion of the premises described in the deed, to-wit: in the 120 acres, in which said dower was assigned, and R. M. did not get title thereto under his quitclaim deed.</p> <p>2. Exception not Void for Uncertainty.</p> <p>The exception in said deed Was not void for uncertainty. The quantities or boundaries of the land excepted could be shown by evidence, and the assignment of the dower.</p> <p>3. Fraud in Negotiating Purchase of Real Estate.</p> <p>The buyer of real estate, who assumes to have special knowledge of the value and condition of the property, in regard to which the seller is ignorant, for the purpose of misleading him and inducing him to sell the same at less than its value, told him of facts and conditions calculated to depreciate the value of the premises, but omitted to disclose other facts within his knowledge which would have given correct information of their value, and by such means succeeded in buying the same at much less than their value. Such conduct on the part of the buyer is fraudulent, entitling the seller to set aside the conveyance.</p>

<p>Heard on Error.</p>

<p>Appeal — Mandamus.</p>

<p>STREET IMPROVEMENTS — INJUNCTION.</p> <p>1. Taxpayer’s Action to Enjoin Street Improvement.</p> <p>The fact that the cost of a proposed street improvement will fall upon the city, by reason of such irregularities in the preliminary proceedings as would render invalid an assessment upon the abutting, owners, is sufficient ground for a taxpayer’s action to enjoin the improvement, the city solicitor having refused to bring the action.</p> <p>2. Municipal Authorities Cannot Change Improvement.</p> <p>Where a petition is presented by abutting owners asking for a specific street improvement, municipal authorities have no power, acting upon such petition, to lengthen or decrease the improvement and if such a change is made, the proceedings are invalid.</p> <p>& A Corporation Cannot be Counted as Petitioner, When.</p> <p>A corporation connot be counted as among the petitioners for a street improvement when it does not appears that the signature was within the scope of the powers of the officer making it, nor that there had been any ratification, either express or implied, of previous similar acts.</p> <p>4. Ratifying Signature after Suit is Brought — Insufficent.</p> <p>The fact that a corporation, after suit is commenced to enjoin an improvement on the ground of the insufficiency of the petition, by reason of the unauthorized signature of the corporation, ratifies the acts of its officers in signing the same, though it might estop the corporation from subsequently denying the validity of the acts of its officers in that regard, does not affect the rights of other parties or validate the act of the authorities in authorizing the improvement upon a petition which was insufficient.</p>

<p>COSTS.</p> <p>Costs — Certain Bund not Liabee for.</p> <p>Where a fund in controversy is claimed in another suit by a person not a party to the suit at bar, and the parties to the suit at bar are remitted to the other case to settle their rights to the fund, the costs of the suit at bar should not be ordered paid out of the fund.</p>

<p> ASSESSMENTS. </p> <p>1. Rule in Determining Character oe City Property.</p> <p>In determining whether a particular parcel of land, for purposes of assessment, is land in bulk or city lots, within the meaning of sec. 542 of the municipal code of 1869, now sec. 2269, Rev. Stat., regard must be had not merely to the recorded plat of the town, but to the size of lots generally in the municipal corporation; and where the property is not the size of lots generally in the city or in the neighborhood, it must be regarded as land in bulk.</p> <p>2. Procedure in Assessing Land in Bulk.</p> <p>Before a municipal corporation can levy an assessment upon land in bulk, either according to appraised value, or according t.o the front foot, it must give to the land to be assessed the average lot depth in the neighborhood, and after having fixed the taxing district, the land must be given a value for taxation, in order that the limitations of sec. 2270, Rev. Stat., may be applied. The council is not permitted to depart from this rule or to levy an assessment by the front foot deeper than lots in the neighborhood or above the average value of lots in the neighborhood.</p>

<p>NEGLIGENCE — EVIDENCE—VERDICTS.</p> <p>'l. Employment of Minors — Omission to Charge as Negligence Per se.</p> <p>Where a charge as given be unexceptionable, the fact that the court failed to give other instructions which might properly have been given, does not constitute error unless such instructions were specifically requested and refused. Thus, in action by a minor under nine years of age, for injuries sustained while the act 82 O. L., 161, sec. 6986, Rev. Stat., prohibiting the employment of minors in manufactories, was in force, a failure to charge that the violation of said statute constituted prima facie negligence, if proper (a question not decided), in'the absence of a special request and refusal, was not erroneous. i</p> <p>2. Evidence Improperly Admitted — Cured by Direction to Disregard.</p> <p>The improper admission of evidence in such action to the effect that money had been received from defendant for the benefit and education of plaintiff, cannot be regarded as constituting prejudicial error where the court subsequently directed the jury to wholly disregard all such testimony.</p> <p>3. Evidence that no Accidents had Occurred.</p> <p>Under the rule which, to show defendant’s knowledge that accidents were likely to occur at a certain machine, permits plaintiff to prove that other accidents have occurred under like circumstances, it is competent for a defendant to prove that, during the operation of a machine for many years, no accidents have occurred.'</p> <p>4. Evidence as to Employment of Minors in Other Factories. .</p> <p>In an action for personal injuries, in which it is alleged that the defendants, in the operation of a manufactory, were negligent in employing plaintiff because of his tender years, it is proper to show that at other factories children of the age of plaintiff were employed for the same purpose, in order to show that the defendants exercised such care and prudence as was ordinarily exercised by others under similar circumstances.</p> <p>6. When a Verdict Cannot be set Aside as Against Evidence.</p> <p>A verdict cannot' be set aside as being against the weight of evidence, unless the court is warranted in saying that the jury were clearly wrong in coming to the conclusions arrived at by them; the fact that the reviewing court or another jury might have arrived at a different result, is not sufficient to justify a reversal of the judgment.</p>

<p>TAXATION FOR SPECIAL IMPROVEMENTS.</p> <p>Limitation oe Sec. 2689, Rev. Stat., does not Appry to Speciar Improvements.</p> <p>The power conferred by sec. 2835, Rev. Stat., on municipalities, townships and counties, to levy taxes for special improvements upon an affirmative vote of two-thirds of the electors at a general election, is independent of the limitation • in sec. 2689, Rev. Stat., which refers to taxes for general purposes only; and taxes for such special improvements may be levied even though the total taxes levied exceed the limitation fixed by sec. 2689, Rev. Stat.</p>

<p>JUDGMENT — COLLATERAL ATTACK.</p> <p>1. Judgment Conclusive of Facts which might have been Asserted.</p> <p>A judgment is as conclusive as to facts which might have been asserted by way of defense or counterclaim as it is upon facts specifically found. Therefore, the decree in a foreclosure suit against a mortgagor and a corporation, upon averments that the latter had purchased the mortgaged property and assumed and promised to pay the indebtedness, the corporation being in default for answer, finding that the “ statments of plaintiffs petition are true ” and that there is due from the mortgagor and the corporation “ the amount claimed in the petition,” is conclusive against the stockholders of the corporation as to the assumption of the indebtedness, in a subsequent action to recover an unsatisfied balance, the mortgaged property having failed to satisfy the indebtedness, and such stockholders are thereby precluded from interposing any defense or counterclaim that might have been interposed in the foreclosure suit. .</p> <p>2. Collateral Attack — Not Permissible Unless Judgment Void.</p> <p>A judgment must be void and not merely erroneous to be open to collateral attack. Thus, while it does not appear that a trustee for mortgage bondholders, by virtue of the mortgage, had authority to do more than subject the mortgaged premises to the payment of the indebtedness, a judgment upon default in a foreclosure suit, brought by such trustee, upon proper allegations, against a corporation purchasing the property and assuming and agreeing to pay the indebtedness, is not void or subject to collateral attack in a subsequent action to. enforce the judgment against stockholders. 1</p> <p>3. Authority op Trustee to Proceed Against Corporation.</p> <p>Under the circumstances stated, where the mortgaged property was purchased by the corporation which assumed and agreed to pay the mortgage, it is the same as if the corporation had become a party to the mortgage subsequently to its execution by the original mortgagor and it therefore became not only the right but the duty of the trustee to proceed by all proper methods to the foreclosure of the mortgage and to the ascertainment and determination of any and every question that might be legitimately determined in an action of foreclosure, including the ascertainment and determination of the obligation of the corporation arising out of its assumption of the debt.</p> <p>4. Corporation Bound by Knowledge of Agent.</p> <p>Where it appears that, in the purchase of a manufacturing plant, the representative of the purchasing corporation, upon whom the company relied, kneiv that the deed of the property, in the warranty against encumbrances, excepted a certain mortgage or bonded indebtedness, the corporation is chargeable with notice thereof and by accepting the deed upon the statement of its representative that it was “all right,” the corporation is, in absence of fraud or imposition, bound by a stipulation contained therein assuming and agreeing to pay such indebtedness.</p> <p>6. Right of Action — Subject to Defenses.</p> <p>The assumption of indebtedness by the corporation, in the purchase above referred to, gave the bond-holders a right of action against the corporation, but this right of action is subject to any defense or counterclaim that might be interposed by the corporation at the proper time, if grantor were the holder of the claims and seeking their enforcement.</p>

<p>COUNTY ROADS.</p> <p>1. Birr op Exceptions — Entry to make Birr oe Record.</p> <p>An entry by the probate court: “ This day came the said * * * petitioners and presented their bill of exceptions taken upon the hearing of this cause, and thereupon the same was examined, allowed and signed and ordered to be filed with the papers in said cause which is accordingly done,” is not a proper entry making the bill of exceptions a part of the record, and in the absence of an order providing that the bill be a part of the record or ordering that the bill be made a part of the record, such bill of exceptions cannot be considered on error.</p> <p>2. Highways — Petition eor. Arteration oe County Road.</p> <p>' The alteration of a county road and the vacation of that part of the old road rendered useless thereby, cannot be obtained under a single petition asking for both, when such alteration will effect such a radical change in the route of the road as practically to amount to a new road.</p>

<p>WILLS — AFTER-BORN CHILDREN.</p> <p>1. Wills — Sec. 5961, Rev. Stat., as to After-born Children.</p> <p>A clause disinheriting an unborn child does not constitute a provision for the after-born child within the meaning of sec. 5961, Rev. Stat., and tliq intention of testator, being contrary to law, does not control or defeat the inheritance provided for in that section.</p> <p>2. Does not Repeal Sec. 5914, Rev. Stat.</p> <p>Section 5961, Rev. Stat., does by impli ation repeal sec. 5914, Rev. Stat.^ permitting a testator to bequeath his property to any person to whom he may desire, but simply places a limitation upon the general power conferred by that section.</p>

<p>Heard on Error.</p>

<p>MUNICIPAL CORPORATIONS — SALE OF GAS PLANT.</p> <p>1. City o» Toledo has Power to Sell Natural Gas Plant.</p> <p>Under paragraph 34'of sec. 3692, Rev. Stat., which confers upon municipal corporations the power' “ to acquire by purchase or otherwise and to hold real estate Or any interest therein, and other property, for the use of the corporation, and to sell or lease the same,” the city of Toledo has power to sell its natural gas plant.</p> <p>2. Power to Sell Such Property Vested in Council.</p> <p>By the provision in paragraph 34 of sec. 1692 Rev. Stat., that “ in addition to the powers specifically granted in this title and subject to the exceptions and limitatious in other parts of it, cities and villages shall have the general powers enumerated in this section and the council may provide by ordinance for the execution * * * of the same,’’ the power to sell is vested in the council alone and the concurrence of natural gas trustees is unnecessary.</p> <p>3. Savle Must be Under Secs. 1692 and 2673a, Rev. Stat.</p> <p>The sale of such property must be effected under paragraph 34 of sec. 1692, Rev. Stat., and in accordance, so far as real estate is involved, with the limitation placed upon that section by sec. 2673a, Rev. Stat., requiring two weeks publication and a three-fifths vote of the council, in “ any city or village which has not a board of improvements or board of public works,” which includes Toledo.</p> <p>4. Legislation Sufficient for the Purpose.</p> <p>To accomplish a sale in pursuance of Secs. 1692 and 2673a, Rev. Stat., an ordinance must be passed and published, but legislation, though denominated a resolution, accepting a bid for the property, made in pursuance of an advertisement therefor, and directing that the price bid shall be received and that proper conveyance shall be made, amounts to an ordinance and is sufficient for the purpose. (Hull, J.,dissents — opinion.)- 1</p> <p>5. Form of Municipal Legislation Immaterial.</p> <p>The form adopted in municipal legislation is not a matter of consequence. If a legislative act should be and in substance is an ordinance, and all the rules prescribed for the adoption or passage and publication of ordinances have been observed, the legislation takes effect as an ordinance and vice versa as to a resolution.</p> <p>6. Rule as to Resolutions of Permanent Nature.</p> <p>A resolution, although of a general or permanent nature, to come -within the purview of sec. 1694, Rev. Stat., requiring a reading on three different days, or asuspension of the rules, must be a necessary resolution. It must not only be or provide fora necessary step toward the ultimate object, but it must be a step which cannot be otherwise taken. /</p> <p>7. Rule Applied to Preliminary Resolution.</p> <p>A preliminary resolution directing the citv clerk to advertise for bids for the sale of part of a natural gas plant, the city reserving in the notice the right to reject any or all bids, amounts to amere order or direction to the clerk, and is not a resolution of a general or permanent nature within the meaning of sec. 1694, Rev. Stat.', requiring three readings or a suspension of rules. (Hull J., dissents — opinion.)</p> <p>8. Not Required to Pursue Unnecessary Formalities.</p> <p>Where the object to be attained could be accomplished by a mere motion or order and the city council adopts the form of a resolution, it is not thereby required to pursue further unnecessary formalities in subsequent proceedings.</p> <p>9. Construction of Bid Containing ThreesPropositions.</p> <p>A bid, in response to an advertisement for the sale of a natural gas plant, setting forth that the bidder will pay a certain sum for the property outside the city, and another offer to pay a certain sum for the property inside the city, and still another distinct offer to pay a certain sum for the property inside and outside the city, although in one sense submitted as a single bid, in reality ■ amounts to three separate bids, and particularly where a condition attached to the last bid relates to the operation of the whole plant. Therefore a sale of the outside property based on the first proposition is not invalidated by a condition attached 1 o the last proposition.</p> <p>10. Effect of Accepting Conditional Bid.</p> <p>The acceptance by a city council of a bid for the purchase of its natural gas plant, which bid was conditioned that the purchaser should have the right to operate the plant and to fixthe price of gas iu the city, did not give that right to the bidder, but amounted simply to an acceptance upon the condition that if the city and the bidder failed to come to an agreement upon a contract fixing thq bidder’s right to operate and the rates to be charged, the bid on the one hand and the acceptance on the other would fail.</p> <p>11. Conditions Cannot be Waived by Another Council.</p> <p>In view of sec. 1691, Rev. Stat., providing that a city council “ shall notenter into any contract which is not to go into full operation during the term for which all members of such council are elected,” a condition contained in an accepted bid for the purchase of a natural gas plant, providing that the bidder shall have the right to operate the plant and to fix the price of gas, cannot . be waived by the bidder, so as to validate a sale, after the expiration, of the terms of office of some of the members of the council which accepted the bid. , .</p> <p>12. Insufficiency of Price — Rule as to Interference.</p> <p>To justify a court in interfering with the action of a city council in a sale of the property of the city on the ground of insufficiency of the price, when the council has proceeded within the statutes, the price received must be so much less than would probably be obtained by again offering the property, as to establish clearly that the acceptance of the bid amounted to a reckless and improvident act. (Hull, J., dissents from holding sale valid under facts in this case — opinion.)</p>

<p>MASTER AND SERVANT.</p> <p>i. Servant has a Right to Assume Performance of Master’s Duty.</p> <p>A servant who proceeds with reasonable care to enter and remain upon a scaffold in the prosecution of his work has a right to assume that the master has performed his duty of providing and maintaining a safe place and is not required to investigate to determine whether such scaffold is safe; such servant is not chargeable with negligence unless the defect and danger is obvious or unless he has been advised of the failure of the master to perform his duty or of such facts as would cause a reasonably prudent man to investigate the scaffold himself before going upon it.</p> <p>2. Is not Required to Investigate Subsequent Changes.</p> <p>Where a scaffold was firmly constructed ia the first instance, but, through use or removal of certain boards, by direction of the foreman, it had become racked, insecure and unsafe, a servant without knowledge of such defective condition cannot be charged with negligence in not investigating, even though he had an equal opportunity with the master to make an investigation and discover the defect and danger.</p> <p>3. Knowing‘Danger and Assuming Master would Repair!</p> <p>And if the servant knew that the removal of the boards was likely to render the scaffold insecure, he had a right to assume that the master had performed his duty in again securing it and in the absence of knowledge on the part of the servant that the foreman had not done so, the servant’s right to recover is not defeated.</p> <p>4. Negligent Work oe Contractor in Building.</p> <p>A person who agrees to put floor in a building for another, and fails to do so, whereby another is injured, is liable only to the person with whom he contracted. Therefore, a servant of the master for whom the structure was built, hot being a party to the contract, acquires no right of action against the contractor. This rule'is not affected by the act of February 23, 1893, 90 O. L., 52.</p> <p>5. Rule as to Toint Liability and Release.</p> <p>Where the failure to perform a duty which was devolved upon one of several defendants, in an action for personal injuries, was not the proximate cause of the accident, as a failure to have afloor provided in a building, from which simply resulted a more severe injury, such defendant is not jointly liable with the defendant whose negligence was the proximate cause of the injury, and a settlemen t with the former would not release the latter from liability.</p>

<p>OFFICE AND OFFICER — ELECTION.</p> <p>1. Failure to file Statement of Expenses — Right to Office.</p> <p>Section 3981, Rev. Stat., 43 O. L-, 48, providing, in effect, that if a person elected or appointed to the board of education shall fail to qualify for the office within the period of ten days after the annual organization of the board or after his appointment, a vacancy occurs, involves and implies the converse. Therefore a person elected to such office has ten days after the annual organization in which to qualify, which includes the filing of his certificate of election with the clerk of the board. Thus a person elected on April 2 who qualifies and files such certificate within ten days after the annual organization of the board on the third Monday in April, is entitled to hold the office; and his right thereto is not affected by a failure to file statements oí expenses within ten days after nomination and election respectively.</p> <p>2. Such Failure not Within Sec. 7 of Said Act.</p> <p>A failure to file the statements of expenses of nomination and election, required by the Garfield law, sec. 3022-5, Rev. Stat., though a penalty is attached, is not within the provisions of sec. 7 of said act, which provides, among other things, that when it shall be made to appear in an action instituted against an officer to deprive Kim of his office that he has committed one of certain specified offenses, “ or that any other acts declared unlawful or made punishable by law of this state, were committed by such officer, his agent or agents, or with his or their consent'or connivance * *' * to secure or promote his nomination or election” such person may be depived of his office: The act complained of must not only be unlawful but it must be done with intent to secure or promote his nomination or election, and a failure to file the certificate referred to is not within that class of offenses.</p> <p>3. Courts Cannot Add to Statutory Penalties.</p> <p>The statute having pointed out the specified offenses on account of which one may forfeit his office, a court is not authorized to add other causes and declare that for such acts or omissions one may forfeit or be deprived of his office. Therefore, the Garfield law requiring statements of nomination and election expenses to be filed within ten days, contains no express provision that one who fails to comply therewith shall forfeit his office, a court has no power to so declare.</p>

<p>HIGHWAYS — CHANGE OF GRADE.</p> <p>Highways — Grade of Traveled Portion Establishes Whole Grade.</p> <p>Where the traveled portion of a street has been used for such a length of time as to constitute a grade by user, the grade of such traveled portion determines the grade for the whole width of the street; and whenever the whole road is found necessary for the public travel, the public has the right to improve it, to correspond with the traveled portion, without being responsible to the abutting property owners for any change in the surface of the ground where their property abuts the road.</p>

<p>WILLS — QUIETING TITLE — PLEADING.</p> <p>1. Wills — Construction.</p> <p>A devise of lands to testator’s daughter, providing that in the event of her death, “ leaving no legal heirs,” the property so willed “ is to descend to her brothers and sisters,” passes to the daughter the entire estate in the lands devised.</p> <p>'2. Brothers and Sisters have only Future Contingent Interest.</p> <p>Under such will, during the daughter’s life, the brothers and sisters, or their heirs, can have only a future, contingent interest in such lands, without present right-or title thereto.</p> <p>3. Action to Remove Cloud on Title.</p> <p>Where such devisee is in possession of the lands devised, she may maintain an action to remove a cloud upon the title thereto, though it consists of claims asserted which involve a construction of the provision in the will giving the property to her.</p> <p>•4. Same — Sufficiency of Petition.</p> <p>Where the item in the will under which the claim asserted is set out, as against a general demurrer, the petition sufficiently shows a cloud upon the plaintiff’s title by stating that the defendants claim an interest in the lands devised adverse to her right under that item of the will.</p>

<p>PLEADING — VERDICTS.</p> <p>Statute oe Limitations Specially Pleaded — Verdict.</p> <p>Where the statute of limitations is specially pleaded as a defense, and the jury, being instructed thereon, returns a verdict which includes a finding of that fact in favor of the defendant, such verdict should be treated as a special verdict and judgment rendered thereon.</p>

<p>CORPORATIONS — DIRECTORS—CONTRACTS.</p> <p>Contracts between Corporations and Directors.</p> <p>The mere fact that a contract was made by a corporation with an individual who was at the time a director of the corporation, and who participated as such in the making of the contract, is not sufficient to render the contract invalid. Its unfairness to the corporation must also appear.</p>

<p>Heard on Error.</p>

<p>APPEAL — BONDS.</p> <p>Bond of Trustee in Bankruptcy not Sufficient for Appear.</p> <p>A party desiring to appeal must give a bond according to the statute and subject to the control of state courts. Therefore the bond of a trustee in bankruptcy is not sufficient to exempt such trustee,-under sec. 5228, Rev. Stat., relating to appeals by parties in a trust capacity, from giving the bond required by sec. 5227, Rev. Stat.</p>

<p>PROBATE COURTS — HIGHWAYS—APPROPRIATION.</p> <p>1. Probate Jurisdiction — Statutory.</p> <p>Probate courts can take jurisdiction of no matter or proceeding unless authorized by provision of constitution or statute.</p> <p>2. Charter 8, Rev. Stat. — Not Appeicabee to County Roads.</p> <p>By its own terms, chapter eight, Rev. Stat. (Secs. 6414,-6453), does not apply in proceedings by county or township authorities to appropriate private property for roads.</p> <p>3. Compensation eor Land Taken.</p> <p>Where land in fact is taken for a turnpike, in case the owner and county commission ers-fail to agree as to the compensation and damages to be paid, the same may be adjusted by proceedings had in the “name” of the “commissioners ” in the probate court. Sec. 4761, Rev. Stat.</p> <p>4. Proceedings Coram non Judice.</p> <p>The fact of such disagreement, however, does not authorize an action by the owner in his own name against the board of commissioners, in that court, to recover compensation and damages. Such a proceeding is coram non judice. And this also is true of a claim for damages consequent upon a change of grade in a public highway, or for obstructing access thereto.</p>

<p>JUSTICE OF THE PEACE — ATTACHMENT—JURISDICTION.</p> <p>Attachment — Jurisdiction to Proceed Without Seizure.</p> <p>Where in a civil action before a justice of the peace, brought in the county but not in the township of the defendant’s residence, the summons is accompanied by an order of attachment sued out and issued in good faith upon any ground authorizing an attachment against a resident of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment.</p>

<p>SEWERS — ASSESSMENTS.</p> <p>Trunk Sewers — Finding op Assessing Committee Conclusive.</p> <p>All the land within a sewer district in the city of Toledo may be assessed for a general or trunk sewer constructed within such district, and the finding of the assessing committee with reference to the special benefits which will accrue to the several parcels of land within the sewer district is conclusive, in the absence of fraud or great oppression.</p>

<p>CURTESY — STATUTES.</p> <p>1. Estate by Curtesy — Restrictions—Retroactive Daws.</p> <p>Where by the law in force at the death of the wife, the husband acquired an estate as'tenant by curtesy, but without any right to convey or encumber the same during the life of any of the children, and with an express provision of the statute in force that his interest therein should not be taken by any process of law for the payment of his debts, the legislature cannot, without infringing upon the vested rights of children, remove such restrictions and. authorize the husband to convey or encumber his interest or allow it to be sold for his debts during the life of any of the children. The act of April 14, 1884, amending sec. 3108 Rev. Stat, by new secs. 3108 and 3109 Rev. Stat., repealing the limitation imposed upon a tenant by curtesy is. therefore, retroactive and invalid as to vested rights of children.</p> <p>2. Provisions Referred to May be Waived.</p> <p>The provisions of the statutes above referred to, preventing a sale or encumbrance by the husband or preventing the property being taken for the debts of the husband, during the life of any of the children, being intended for the protection of the children or remaindermen, may be waived.</p>

<p>APPEAL BONDS — SURETIES.</p> <p>1. Appeal Bond — Property Qualification for Surety.</p> <p>An execution may be levied upon a iamily homestead notwithstanding the exemption and the right of dower ,but can only be enforced subject to such rights. If, therefore, the exemption and dower will, together, if claimed, consume the entire property, the person has not “ property liable to execution ” within the meaning of sec. 4953, Rev. Stat., and may be rejected as surety on an appeal bond.</p> <p>2. Evidence Failing to Establish Qualification.</p> <p>Where the evidence showed that the person offered as surety on an appeal bond was the owner of a house and lot valued at 12,300, upon which there was a mortgage ol $1,160, that he was forty years of age and his wife thirty-four years of age, and that they resided on the premises, without evidence indicating whether the wife executed the mortgage or evidence as to the state of the husband’s health, it cannot be determined whether the husband had property liable to execution or not.</p>

<p>Heard on Error.</p>

<p>Application for receiver in action pending in circuit court of Richland county.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>Heard on error.</p>

<p>Heard on Error.</p>

<p>CARRIERS — BILLS OF LADING.</p> <p>1. Bills of Lading Cannot be Varied By Parol Evidence.</p> <p>In the absence of fraud or mistake, a bill of lading, signed by the receiving agent of a common carrier, containing no restrictions upon its common law-liability, delivered to a consignor contemporaneously with the receipt of the goods for shipment, and acquiesced in by him, becomes the contract of shipment, and its terms cannot be contrddicted by parol evidence. C. C. C. '& I. R. R. Co. v. LaTourette, 1 Circ. Dec., 486, approved and followed.</p> <p>2. Contract of Carriage — Liability of Carrier.</p> <p>It is competent for the parties to a contract of carriage to stipulate thát the initial carrier shall be bound for ihe safe carriage of the goods beyond its own line, and for delivery to the consignee, and it is also competent for the parties, by their contract, to limit the liability of the initial carrier to the safe carriage of the goods over its own line only; and, in the latter case, the receipt of the freight charges for the whole distance by the initial carrier does not alter its liability further than to make it the agent of the shipper for the purpose of paying the connecting carrier its share of such charges.</p> <p>8. Explicit Provisions Limiting Carriers Liability.</p> <p>In the absence of stipulations on the subject, the acceptance of goods by a carrier for shipment beyond its own line, and receipt of freight charges for the whole distance, may involve an undertaking on the part of the carrier to transport them the whole distance and deliver them to the consignee; but when the bill of lading contains explicit provisions on the subject, they must be given effect, in the absence of averments and evidence which would authorize a court to ignore or set them aside.</p> <p>4. Rules Applied Limiting Carriers Li ability.</p> <p>Where stipulations in a bill of lading are consistent with common law liability, as where it limits the liability of the carrier to its own line, and the shipper seeks to impose greater liability upon the carrier, the fact that the shipper may not have noticed the terms of the printed bill of lading, is not enough to warrant a departure from such terms, and the imposition of a greater ob igation on the carrier, because of an implied undertaking arising out of the circumstances of the acceptance of the goods by the carrier marked for shipment beyond its line and the receipt of freight charges for the whole distance ; and especially is this so where, as in case at bar, the shipper is aware, at the time of' shipment, that the destination is beyond the carrier's line, in which case the shipper is bound to know that if any obligation is imposed upon the carrier beyond its own line it must be by contract extending or enlarging its common law liability.</p>

<p>MORTGAGES — FORGERY-EVIDENCE.</p> <p>1. Mortgages — Notary’s Certificate — Prima Facie Case.</p> <p>The record or certified copy of amortgage introduced in evidence makes a prima facie case that the instrument was in fact executed and acknowledg d as therein stated. The certificate of the notary that itwas duly signed and acknowledged is not conclusive where fraud or forgery is established, but the certificate is given such weight that to overcome it, the evidence must be clear and convincing; a mere preponderance is not sufficient.</p> <p>3, Forgery — Evidence Sufficient to Overcome Notary’s Certificate.</p> <p>The testimony of a wife that the signature to a mortgage of her real estate is a forgery, corroborated by the fact that the handwriting is wholly unlike that in her signature to another instrument, admitted to be genuine, and bears a striking resemblance to the handwriting of her husband, who negotiated the loan, and by the testimony of one of the witnesses to the mortgage that her signature is also a forgery, which is also corroborrated by a comparison of handwriting, supported by the further fact that a witness representing the mortgagee is unable to identify the wife as the person who accompanied the husband when he returned the mortgage to the office signed and acknowledged, and, in the absence of any testimony on the part of the husband, or other evidence in support of the validity of the mortgage, is sufficient, under the foregoing rule, to overcome the certificate of acknowledgment of the notary, since deceased, and the mortgage should be declared void.</p>

<p>PROCESS — ERROR—ATTORNEYS.</p> <p>1. When Motion to Quash Service oe Summons Cannot Be Reviewed.</p> <p>A motion to quash service of summons cannot be reviewed where the finding of the court was based upon facts and no motion for a new trial was made.</p> <p>2. Service oe Summons Upon an attorney, may be Set Aside, When.</p> <p>An attorney at law, while acting in his professional capacity, in an action pending in a county other than the one in which he is a resident, is exempt from service of summons, and any service so made should, on motion, be set aside.</p> <p>3. Subsisting Defective Service Precludes Second Service.</p> <p>Unless set aside a defective service of summons will support a judgment, and, while subsisting, such service precludes a second service being made.</p>

<p>SCHOOLS — EMPLOYMENT OF TEACHER.</p> <p>1. Employment of Teacher — Votes Required.</p> <p>In order to constitute a legal employment of a teacher lor a school within a township, by the board of education, its record must show that a majority of all the members of the board voted “ aye ” on the proposition.</p> <p>2. Same Rule as to Confirmation.</p> <p>The same rule applies to the “ confirmation ” of a teacher, elected by a board of subdirectors. Hence, where a township board ®o tisis ted of its clerk, and five directors, a motion to confirm the election of a teacher, which had the votes of but two directors and the clerk, does not have the number necessary to carry it, and such election is not confirmed.</p> <p>S. Same — No Contract. ,</p> <p>In that case, the person to whom such action relates, has not thereby been employed as a teacher for any school of the township, and consequently cannot maintain an action against the board for debarring her of alleged rights as such.</p>

<p>Heard on Error.</p>

<p>NEGLIGENCE — ESTATES.</p> <p>Estate not Liable for Torts of Executor.</p> <p>The estate of a deceased person is not liable for the torts of an executor. If a cause of action arises through the negligence of an executor in managing an estate, as for injuries received in the operation of a passenger elevator in an office building owned by the estate, the suit must be against such executor personally and not in his representative capacity.</p>

<p>PARENT AND CHILD.</p> <p>Support of Child Whose Estate is Sufficient.</p> <p>When the father is dead the mother is liable for the maintenance of her minor child; but when the estate of the child is sufficient for its support and exceeds that of the mother, the child should be maintained out of its own estate.</p>

<p>MUNICIPAL CORPORATIONS — CROSSINGS—NEGLIGENCE.</p> <p>1. Evidence — Partially Incompetent Answer to Question.</p> <p>Where a witness is asked a question which is proper and competent, and the answer of the witness to it is partly competent and partly incompetent, and a motion is made to strike out the answer, it is not error to refuse to sustain such motion.</p> <p>2. Presumption as to Allowing Motion to Strike out.</p> <p>Where a witness for the plaintiff, upon cross-examination was asked and answered a question in reference to a matter competent for the defendant to prove, in support of its defense, but not inquired about upon direct examination, and a motion was made and sustained to strike out the the answer of the witness, the grounds of-the motion and the reason of the court for sustaining the same not appearing, it will be presumed that the court sustained themotion for the reason that the testimony was being introduced out of its order, the order of the introduction of testimony being discretionary with the court. i</p> <p>2. Answer Expressing Opinion .Should be Stricken out.</p> <p>Where the question for the jury to determine was whether the plaintiff’s injury was caused solely by the negligence of the defendant, or whether she was' guilty of contributory negligence which caused her injury, and the plaintiff having been asked a proper question, answered: “ I was using all due caution,” it was error for the court to refuse to strike out said answer upon defendant’s motion for that purpose,</p> <p>4. Instructions as to Purpose oe Certain Evidence.</p> <p>In an action against a municipal corporation to recover damages for an injury alleged to have been caused by slipping and falling on an alley crossing, evidence having been offered tending to show that the alley crossing had been substantially in the same condition for a number Of years, and that during that lime divers persons had slipped or fallen at that point, the court should at the time of receiving said testimony, then instruct the jury that it can only be used by them for two purposes: First, as tending to show the defective condition of the alley crossing, at the point where the plaintiff claimed to have received her injury ; and second, as tending to show that the city authorities had knowledge or should be charged with knowledge of such defective condition; but that it is not competent for them to consider such evidence for the purpose of proving that the defendant was negligent in permitting said alley crossing to be and remain in such condition, nor that such condition, as between the plaintiff and defendant, was the sole cause of her injury.</p> <p>8. Degree oe Care — Apprehension oe Danger.</p> <p>In an action for damages, where one of the issues is the contributory negligence of the plaintiff, an instruction which measures and limits the degree of care to be used by the plaintiff’s apprehension of danger, is misleading.</p> <p>6. Receipt oe Testimony without Objection — Motion to Disregard.</p> <p>Iu such an action, where the evidence shows that the plaintiff’s injury was caused by some negligent act of the plaintiff, not alleged in the petition, and no objection is made to the introduction of such testimony, the objection cannot be saved by asking the court to charge the jury that they cannot consider such testimony.</p> <p>7. Degree oe Care not Dependent upon Apprehension oe Danger.</p> <p>In an action to recover damages from a municipal corporation on account of its negligence, it is necessary that the evidence should show that the plaintiff exercised that degree of care that an ordinarily careful and prudent person, under the same or similar circumstances, would have exercised, and an instruction which makes the degree of care to be used dependent upon the the apprehension of danger entertained by the plaintiff is misleading.</p> <p>8. Municipal Corporations — Crossings.</p> <p>Where the plaintiff claims to have been injured by falling on a defective crossing, it is necessarj', in order to make a municipal corporation liable for damages, that it should nave had notice of such defect, or that the defect existed for such length of time that it is presumed to have had such notice, and an instruction to the jury which does not contain such qualification as to the liability ot a municipal corporation is erroneous.</p> <p>9. Accumulation oe Ice and Snow — Rule as to Diability.</p> <p>A municipal corporation is not liable for an injury caused by the recent accumulation of ice and frozen snow on an alley crossing, which it knew or ought to have known was defective or out of repair, and which accumulation of ice and frozen snow on said crossing, in its defective condition, combined with its icy and slippery condition, caused the injury complained of, unless such accumulation of ice and frozen snow might reasonably have been anticipated as the natural and probable result of such defective construction or lack of repair.</p> <p>10. Adoption oe Improper Plan eor an Alley.</p> <p>A municipal corporation is not liable for an injury caused by reason of the improper plan of an alley crossing adopted by it until it be shown that it had notice that the plan so adopted by it was not reasonably safe for use under ordinary circumstances.</p>

<p>APPEAL — RECEIVERS.</p> <p>Receiver — Appeal—Judgment Sustaining Exceptions.</p> <p>A receiver cannot appeal to the circuit court from a judgment of the common pleas sustaining exceptions to his final report.</p>

<p>PARENT AND CHILD.</p> <p>1. Mothers Right to Custody oe Child Cannot bE Willed-When.</p> <p>An order made by tbe court of common pleas in a divorce proceeding giving control of the minor child to the mother until the further order of that court, is a continuing order; and as between the parties to it retains the child in the arms of the law, but does not confer such authority upon the mother as empowers her, by her last will, to appoint a guardian for the child under Sec. 6266, Rev. Stat., or relating to cases where the father is dead or gone to parts unknown.</p> <p>2. Rights oe the Father not Extinguished.</p> <p>An order of the character named'does not extinguish but merely holds the .father’s right in abeyance, and, for the cause apparent to the court, makes the mother’s right to the custody of the child superior to the father’s right to its custody.</p> <p>3. Rights oe Father as to Third Parties Determined on Habeas Corpus-</p> <p>As between the father and one whose right does not arise out of the order, he is not compelled to seek modification of such order in the court that made it, but may invoke the writ of habeas corpus and submit his claim to the court' from which the writ issues.</p> <p>4. Child’s Weleare the Chiee Consideration.</p> <p>In a controversy as to the custody of the child, the paramount object which governs the court is the benefit to the child, and all rights must yield to that consideration.</p> <p>6. Fathers Right to Custody Superior.</p> <p>But when all else is equal, and no present reason exists for departure from the rule, the right of the father to the custody of his minor child is superior to that of any other person.</p>

<p>TRUSTS — LIMITATION OF ACTIONS.</p> <p>1. Trust not Exempt from Rimitation.</p> <p>A trust created for the benefit of creditors is not a technical and continuing trust which is exempt from the operation of the statute of limitations.</p> <p>2. Ignorance as to Real Principal — Rimitation.</p> <p>Ignorance as to who is the real principal in a transaction does not give to the claimant four years from the time of discovering the real principal in which to bring an action.</p> <p>3. Dismissal Without Trial — Rimitation.</p> <p>The dismissal of an action on motion of the plaintiff without trial does not bring it within the provisions of sec. 4991, Rev. Stat., permitting of the bringing of a new action within one year from that date.</p> <p>4. Dismissal Without Prejudice in Circuit Court.</p> <p>The dismissal of au action without prejudice which has been appealed to the circuit court does not leave the judgment of the court of common pleas existing and in full force.</p> <p>6. Section 6352, Rev. Stat., not a Limitation oe Action.</p> <p>The thirty days provided by sec. 6352, Rev. Stat., within which to bring suit on a claim rejected by an assignee, is not a period of limitation, but a period after which distribution may be made. A creditor may come in at any time for his equitable share of the assets unadministered or not lawfully disposed of at the time he presents or prosecutes his claim for allowance in the mode prescribed by statute.</p>

Heard on Error. The petition filed in this case, so far as material to the decision, is as follows: The plaintiff says that The Avery Stamping Company is, and at all times hereinafter stated was a corporation duly organized under the laws of the state of Ohio for the purpose of carrying on in the city of Cleveland and county of Cuyahoga, Ohio, a general novelty business in iron and steel and the making of frying pans, hoisting buckets, soda water tanks and generally,…

<p>NEGLIGENCE — WRONGFUL DEATH.</p> <p>1. Scintilla Rule Governs.</p> <p>If, at the close of plaintiff’s testimony, he has offered evidence tending to prove the material allegations of the petition, the case cannot be taken from but must be submitted to the jury under proper instructions.</p> <p>2. Facts Authorizing Verdict for Railway Company.</p> <p>In an action against a railway company for wrongful death, where it appeared that, in broad daylight, a man who had been for years in the employ of the railway company, not iii an inferior capacity but as a section boss, having an unobstructed view, saw a train headed in his direction, went to work between the rails and permitted the locomotive to run over him, the court was justified in directing a verdict for the railway company; the fact that deceased was at work with his cap drawn over his ears and with a scarf or shawl wrapped around his shoulders, only increased his duty to use his sense of sight to keep out of the way of a locomotive.</p> <p>3. Refusal of Material Evidence — Not Prejudicial.</p> <p>Where it appears in an action against a railway company for wrongful death, that decedent was guilty of negligence which would bar his recovery, the exclusion of material and proper evidence as to the negligence of the railway company, cannot be regarded as prejudicial to the party’s rights.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>REAL PROPERTY — PAROL CONTRACTS.</p> <p>1. Parol Contract Relating to Land Enforceable.</p> <p>While a parol contract for land or interest in land, by virtue of sec. 4198, Rev. Stat., the statute of frauds and perjuries, cannot be enforced at law, yet such part performance of such a contract as would make its rescission inequitable, will remove such parol contract from the operation of the strict letter of the law and permit it to be enforced in equity.</p> <p>2. Facts Necessary to Remove from Statute.</p> <p>Payment of an agreed consideration is not alone sufficient to remove such a contract from the operation of the statute, but payment and possession yielded and taken under the contract, with use and expenditure of money in betterment or, improvement, is available to relieve the contract from the imputation of the fraud statute and make it enforceable as a matter in equity, on the lines of equitable estoppel.</p> <p>3. Rules Applied.</p> <p>Under the foregoing rules, a parol agreement, succeeding the expiration of a five years’ written lease, for use and possession of a strip of land, for private railway purposes, connecting lessee’s stone quarry with a railroad, “ so long as lessee pays the agreed rental,” under which possession was yielded and' held for more than six years, or until the death ot lessor, and the expenditure of $600 in acquiring adjoining land for the same purpose, and which, without the original tract, would be worthless to lessee, may be specifically enforced against a purchaser from the heirs of lessor, who (the purchaser) took with full knowledge of the facts and who, during such occupancy of the original tract, sold the second to lessee for the purposes mentioned; such purchaser must be held to have made himself a party to the contract in parol, with the rights and liabilities of lessor.</p>

<p>BUILDING AND LOAN COMPANIES.</p> <p>1. Parties May Contract with Reference to State Laws.</p> <p>Citizens of different states may contract with reference to the laws of either state. Thus, a contract, executed in Ohio, with a Minnesota building and loan company, may be governed, if the parties so elect, by the laws of Minnesota.</p> <p>2. Where no Choice is Made — Duty oe Court.</p> <p>But where the contracting parties, residents of different states, make no choice, in express terms, then it becomes the duty of the court to ascertain from the evidence and circumstances, surrounding the transaction, which code of laws was selected or intended by the parties to govern.</p> <p>g' Interest and Premium Allowed — Not Usury.</p> <p>Where the Minnesota law permitted the reception of five per cent, interest and five per cent, penalty, the contract, though executed in Ohio, is not usurious.</p> <p>4. Changing Form oe Certificate does Not Invalidate.</p> <p>Where the business, when done, was not unlawful, the mere changing of the form of a certificate, as under the Ohio law requiring a deposit and certificate from foreign companies, does not invalidate the transaction.</p> <p>6. Agreement to Mature Stock — Failure Not Fraui/.</p> <p>Under an agreement to mature stock in a building and loan company in a certain timé, where no fraud was practiced by the company, but in so agreeing, the company was simply too hopeful of the future and did not sufficiently consider the chances of financial depression and disaster, and where borrowers knew the circumstances under which the agreement was made, and the resources of the company, a failure does not operate as a fraud up n their rights.</p> <p>6. Promise Cannot be Specifically Enforced.</p> <p>And such a promise to a member and borrower in a mutual loan and building association cannot be specifically enforced where the failure is not chargeable to the laches of the company, but was due to financial and business depression.</p> <p>7. Members Must Share Losses.</p> <p>Members of a mutual building and loan association, whether as investors or borrowers, must share pro rata the losses of the concern.</p>

<p>NEGLIGENCE.</p> <p>1. Negligence — Duty upon Approaching Railway.</p> <p>It is the duty of the occupants as well as the driver of a wagon, in approaching a known railroad crossing, to look and listen for approaching trains; and where the evidence shows that the occupants as well as the driver failed to do so, the occupants are guilty of negligence which will defeat their recovery.</p> <p>2. Imputed negligence — When it Arises.</p> <p>The doctrine of imputed negligence would not arise in such case unless the occupants of the wagon notified the driver of the approaching train in time to stop and the latter failed to do so; in such event the ■ railway company would be liable to the occupants for injuries resulting from its negligence.</p>

<p>JUDGMENTS.</p> <p>1. Judgment Absolutely Void.</p> <p>C. and B. commenced an action against Y. and his wife to foreclose a chattel ' mortgage on a saw mill and appurtenances and prayed for an order of sale, but not for a personal judgment. Summons for Y. and his wife was issued on the plaintiff’s petition, which was duly served. B. was made defendant to the action and after answer day had passed, he filed a cross petition against Y. and his wile, setting up a chattel mortgage in his favor executed by them on the same property, and asked an order of sale and a personal judgment against Y and his wife; no summons was issued on this cross-petition and the wife of Y. did not answer or in any manner waive process or enter her appearance ; B. took a personal judgment against her which he now seeks to enforce against real estate which she conveyed after the date of said judgment. Held: The judgment is absolutely void and not merejy voidable and it did not become a lien on the real estate owned by Mrs. Y.</p> <p>•2. Not Necessary in Attacking to Show Defense.</p> <p>The answer and the proofs showing that the court had no jurisdiction over the person of Mrs, Y in order to render a valid judgment, are sufficient without disclosing that there is any defense to the claim upon which such judgment was rendered.</p>

<p>OFFICES AND OFFICERS.</p> <p>1. Section 1717, Rev. Stat., Restricted to Municipal Office.</p> <p>The legislature, by amended sec. 69 of the Municipal Code of 1869, codified and now sec. 1717, Rev. Stat., providing that “ no member of council shall be eligible to any other office or to any board provided for in this chapter or created by any law or ordinance of council * * * ” intended to render councilmen ineligible to the same class of offices as those contemplated by sec. 93 of the act of 1869 which provided that no person should be eligible as a member of the council who at the same time held any municipal office or was an employe under the government of the corporation. In other words, the prohibition of sec. 1717, Rev. Stat., must be restricted to offices under municipal government.</p> <p>2. Cóuncilmen Eligible to School Board.</p> <p>Under the foregoing interpretation, an elector, residing within the limits of an incorporated village which, with other territory, composes a special school district, may, during the term for which he was elected and while acting as a member of the villiage council, be elected to and exercise the office of member of the school board for such district.</p>

<p>PRINCIPAL AND AGENT.</p> <p>1. Principal and Agent — Trust Funds.</p> <p>Where an agent sells the goods of his principal on commission under a contract that he will keep the entire proceeds of sales for the principal as a special deposit until fully settled for, and, in violation of the contract, uses the money in purchase of goods for his own store and in its running expenses, a court of equity may declare a trust in such slock of goods for the sum so converted and used, and order the same paid as a preferred claim out of the proceeds of sale of said stock, and for this purpose the court of common pleas has jurisdiction.</p> <p>2. Court may Order Administrator to Pay.</p> <p>In such case, if the agent dies insolvent, leaving the amount due his principal unpaid, the stock of goods into which the trust funds can be traced passes to his administrator impressed with the trust, and the court may order the administrator to allow and pay, as a preferred claim, the debt so due the principal from the proceeds of the sale of said stock, upon the principle, among others, that the agent by thewiongful use and investment of the trust funds, increased his own estate to that extent.</p> <p>3. Common Pleas and Probate Courts — Equity Jurisdiction.</p> <p>If the legislature has so enlarged the jurisdiction of the probate court (a question not decided) that it may determine questions of the character of those involved in preceding paragraphs, it has r.ot withdrawn jurisdiction in such cases from the court of common pleas; the jurisdiction of the probate court is, therefore, simply concurrent with that of the court of common pleas, which has general equity jurisdiction ; the remedy in one is cumulative with the right to the remedy in the other.</p>

<p>STREETS — TELEPHONE COMPANIES.</p> <p>1. Abutting Owner’s Rights in Public Street.</p> <p>An abutting property owner on a public street has, as an appurlenant of his property, rights in the street of which he can not be deprived without his consent, or upon full compensation and by due process of law.</p> <p>2. Grant to Telephone Company Subject to Owner’s Rights.</p> <p>While the council of a city may grant to a telephone company the use of streets, under the limitations of sec. 8461, Rev. Stat., and other sections of that chapter, the use must be such as not to substantially interfere with the-rights of an abutting owner.</p> <p>3. Interfering with Rights of Abutting Owners — Injunction.</p> <p>When a telephone company, by the. use of a street, substantially deprives an abutting owner of property rightsysuch owner is not driven to his action at law, but may pursue the remedy which repairs the wrong by removing the cause of it. And his right to this remedy is not measured by the extent of the injury, nor by the necessity or convenience of the company to whom the use is granted.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>CONTRIBUTORY NEGLIGENCE.</p> <p>1. Rule as to Submitting Questions to Jury.</p> <p>In cases where the testimony is such that the minds of reasonable men might differ as to whether a party has been guilty of negligence or not, the question should be submitted to the jury and it is improper for the court to interfere.</p> <p>2. Rule as to Looking and Listening at Crossings.</p> <p>Unless circumstances are such as to excuse a person of ordinary care and prudence from looking and listening, it is negligence as a matter of law to approach and cross a known railroad crossing without looking and listening for approaching trains.</p> <p>S. Negligence — Notwithstanding Such Testimony.</p> <p>Although a party may testify that he looked and listened, upon approaching a known railroad crossing, if the circumstances were such that by looking and listening, in the exercise of ordinary care, he must have seen an approaching train, such party will be held guilty, as a matter of law, of contributory negligence, notwithstanding his testimony that he looked and listened.</p> <p>4. Rules applied.</p> <p>Where it appeared that plaintiff approached, about dusk, but while there was sufficient light to enable him to see, a railroad crossing, well known to him, and at a point where at a distance of 185 feet from the crossing, a person could see down the track, in the direction from which the train came, a distance of 820 feet, and 65 feet from the crossing could see down the track nearly half a mile, and that plaintiff, driving in a top buggy, with side curtains down, and at an ordinary gate, was struck and injured by a freight train which approached at ordinary speed, at the crossing, the court held that if he had looked he must have seen the train or if he had listened he must have heard it, and that if he did look and listen, he must be deemed to have been so careless and negligent as to constitute contributory negligence which will defeat his recovery ; and that the trial court properly directed a verdict for the defendant.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>WRONGFUL DEATH — EVIDENCE-VERDICTS.</p> <p>Evidence oe Non-Experts as to Speed oe Train.</p> <p>In an action for wrongful death, the admission of testimony of men accustomed to riding on cars, though not railroad men, as experts, who stated that they were competent to give an opinion as to the speed of a street railway car, was not prejudicial error.</p> <p>2. Opinions as to Street Car Life Saving Appliances.</p> <p>Witnesses who testify that they are acquainted with street railroads in va* rious cities, and with the character of hie guards generally used on cars, are competent to testify lrom observation and experience that those in general use are adapted to the purpose, and that they are beneficial in the way of saving and protecting Hie; and also to testify as to the character of the guard used on a particular car and that it had no tendency whatever to preserve or save life.</p> <p>3. Special Requests Need not be Given Verbatim.</p> <p>It is not necessary, where special requests are presented which are proper, to give such requests verbatim ; it is sufficient if the propositions contained therein are covered by instructions which embody, in different language, the same instructions.</p> <p>4. Verdict not Excessive.</p> <p>A verdict of $1,000, in an action for the wrongful death of a boy five years of age, does not clearly indicate passion or prejudice, and is nor manifestly excessive within the meaning of the law, especially where evidence tending to prove probable pecuniary loss was erroneously excluded.</p>

<p>TAXATION — PENALTY.</p> <p>1. Wife taking Property of Deceased Husband and Assuming His Contracts.</p> <p>Where a wife, there being no children, on the death of her husband, takes all of his property, which is liable for his contractual obligations, and assuming and agreeing to carry out such contracts, her agreements to that effect are based on a good consideration, and she is liable thereon.</p> <p>•2. Debts not Deductible from Money in Bank.</p> <p>Debts cannot be deducted from money in bank subject to check, although the liabilities of the owner are largely in excess of his deposit in the bank.</p> <p>3. Penalty should not be Imposed unless Return is False.</p> <p>Where a person acts in good faith, believing that he has no money or credits which should be returned for taxation, the penalty of fifty per cent, should not he imposed.</p>

<p>APPEAL BONDS — MANDAMUS.</p> <p>1. One without Interest Cannot Interfere with Judgment.</p> <p>One who has no interest in a judgment or order of court is not entitled to interfere therewith. Thus an application for a writ of mandamus to compel a judge to accept a surety on an appeal bond in an action against the “ Hygeia Medical College,” made by one named as “ trustee of the Hygeia Medical College,” without averments showing that he, as such trustee, has any interest in the litigation, cannot be sustained.</p> <p>2. Surety on Appear Shourd Appear as Resident oe State.</p> <p>Under sec. 4953, Rev. Stat., it should be made to appear, in the qualification of a surety on an appeal bond, that the person so offered is a resident of Ohio. An allegation to that effect, or that the surety offered “is a resident” of the county in a subsequent application for a writ of mandamus to compel the judge to show cause why he should not be compelled to accept said surety, does not supply the qualification nor render the order refusing to accept the surety improper.</p> <p>3. Discretion oe Judge Cannot be Interfered With.</p> <p>A court being called upon to exercise a judicial discretion as to whether the appeal and surety are sufficient, having heard testimony and having exer- ' cised such discretion, cannot he interfered with by a writ of mandamus. Section 6742, Rev. Stat. If the court erred in the exercise of his discretion, the remedy is by proceedings in error.</p> <p>4. Proper Practice in Offering new Bond.</p> <p>The proper practice in offering an appeal bond is to tender it to the clerk with proof of the sufficiency. And this should be followed though the surety offered is the same as the one once rejected. Merely requesting the court to accept such surety is not sufficient..</p>

<p>Heard on Error.</p>

Injunction. The question for determination in this case was the constitutionality of the act iound in 94 O. L., 725, authorizing the commissioners in a county containing a city oi the first grade of the first class to issue bond.» not to exceed $10,000, and to levy a tax to pay the interest and to provide for the payment of the principal of said bonds within a period of ten years, for the purpose of paying the cost and expense of the imp~ovement and repair of any levee or…

<p>Heard on Error.</p>

<p>OPERATIVES- CORPORATIONS.</p> <p>Director, oe Corporation may be an Operative.</p> <p>A director of a corporation performing services for the corporation under a contract with it, is an operative and his claim for wages is preferred where the validitv of his claim has been established by finding of court.</p>

<p>Heard on Error.</p>

<p>SERVICE — LIMITATIONS.</p> <p>1. Limitation of Sec. 4988, Rev. Stat. — Attempted Service.</p> <p>The limitation of sec. 4988, Rev. Stat., providing that an attempt to commence an action shall he deemed equivalent to the commencement thereof, where the party diligently endeavors to procure a service, if such attempt is followed by service within sixty days, begins to run from the attempt to make the service, and not from the time when the court determines that the original service is defective.</p> <p>2. Action for Wrongful Death — Must be Within Two Years.</p> <p>An action for wrongful death, where service of summons upon defendant railway comp iny was defective, and a later service was not made within sixty days from the attempted service, and not until after the expiration of the two years in which such action must be brought, is not within or saved by sec. 4991, Rev. Stat., providing that if, in an action commenced in due time, the plaintiff fail otherwise than upon the merits, a new action may be commenced within one year. In such a case, the court is without jurisdiction.</p> <p>3. Trial on Merits Does Waive Question of Jurisdiction.</p> <p>Defendant in an action for wrongful death may question the jurisdiction of the court over his person, and, if the court decides adversely to him, may defend on the merits of the case without waiving the question of jurisdiction.</p>

<p>RAILROADS — APPROPRIATION.</p> <p>1. Conveyance Without Title — Acquired Subsequently Inures to Gran tee.</p> <p>Under a quitclaim deed by a railroad company as lessee in perpetuity of an other company’s railroad, conveying a strip of the right of way, parallel with the track, granting “ all title that it has or ought to have” to said land, and covenanting that “ neither it nor its successors or assigns, or any one claiming title by, through or from it shall ever assert any title ” thereto, where neither lessor nor lessee had any title at the time of the conveyance, hut afterwards, being compelled to appropriate, lessor acquired title and conveyed by deed to lessee, the title thus acquired inures to the benefit of the grantees of such lessee, and their assigns; and grantors and all claiming under them are estopped by such quitclaim deed from asserting title to the land in question.</p> <p>2. Railroad Company may Sell Part oe its Right oe Way.</p> <p>Under secs. 3239, 3281, 3281, 3282, 6416, 6420, 6433, 6343 and 6344, Rev. Stat., permitting a railroad company to appropriate a fee, and requiring full compensation therefor, the title acquired by such appropriation is absolute for railroad purposes and the railway company may lawfully sell a part of such, land to another company for like purposes, without working an abandonment.</p> <p>3. Irrespective oe Title — Could not Compel Appropriation.</p> <p>Whether a fee absolute or conditional, or a mere easemqnt, was appropriated by the railroad company, under the statutes referred to, the original owner could not claim abandonment by reason of sale to another company, as the possession, in either case, would be perpetual and exclusive, and the additional use being the same for which the land was appropriated, there would he no remaining interest in the original owner to he compensated for and he could not, therefore, compel the second company to commence appropriation proceeding, unless, as adjoining owner, he still held lands that might be injured by the additional use, which he owned at the time of the appropriation.</p> <p>4. Another Railroad not an Additional use.</p> <p>The fact that part of a strip of land acquired by one railway company lot its railroad is sold to another company and another track is constructed thereon, running between two tracks already constructed, is not an additional use requiring appropriating or compensation to adjoining land owners.</p> <p>6. Action to Recover or Compee Appropriation.</p> <p>A person claiming ownership, where railroad companies were in possession-under the conveyances referred to in the first paragraph of this syllabus, can. maintain an action to recover the land or compel its appropriation only upon the strength of his own title. As grantee of the original owners plaintiff., could not maintain such action unless the transfer from one railway company-to another worked an abandonment.</p> <p>O. Parties to Action by Raieroad Company to Quiet Titee.</p> <p>Where a strip of abandoned canal land was sold by the owner to a railroad company, which built its road thereon, and thereafter another railroad company-appropriated for its road all of such land not conveyed to such first company,, and subsequently its lessee and grantee sold to a third company a portion of such strip lying between the tracks of the first two roads, and said third company built its tracks partly on the part of such strip so sold to said first company, in an action by the third company to quiet its title to said land against one to whom the original owner had quitclaimed, the first company is a proper party, and by cross-petition may seek the same relief, esoeciallywhen the line between such companies is in dispute.</p>

<p>MANDAMUS — MUNICIPAL TAX.</p> <p>1'. Municipal Tax on Territory Annexed to Village.</p> <p>When the boundaries of a municipal corporation are extended prior to the first Monday in June, no special provision is necessary to authorize the levy of the municipal tax upon the annexed property. Therefore, where territory became part of a village corporation on April 24, 1900, and on April 27, 1900, the levy for the township was certified to the auditor of the county, and on May 15,1900, the municipal levy for the village corporation was certified to the county auditor, it became the duty of said auditor to enter upon the property of the annexed territory the municipal^, instead of the township levy; and, having failed to do so, he may be required to make such entry by writ of mandamus.</p> <p>2. Ordinance Accepting, Completes Annexation.</p> <p>Upon the passage and legal publication of an ordinance accepting an application for the annexation of territory, such territory at once becomes part of the corporation. The fact that the transcript, map and other papers were not filed for record until a later date does not affect the question.</p> <p>8. Village Corporation May Sue as Relator.</p> <p>A village corporation is a proper party, as relator, in an action for a writ of mandamus to compel the county auditor to enter a municipal tax upon property of territory annexed to the village.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>ANNUITIES — TAXATION.</p> <p>1. Annuity must be a Personal Obligation.</p> <p>Am annuity must be a personal obligation and not payable out of any specific fund; and, prima facie, it is held to be such unless the instrument creating it plainly indicate a different intent.</p> <p>2. Rules Applied — Wife’s Annuity.</p> <p>Under a will bequeathing to testator’s wife “ in lieu of all dower, the sum of $8,000 annually for and during the term of her natural life,” with directions to pay the legacy in quarterly installments, with the further provision “ for the payment of my wife’s legacy I desire that a sufficient amount of my personal estate, either of stocks, bonds or money, shall be used to purchase government bonds, or equally good bonds, of such amount that the interest thereon shall be sufficient to pay the quarterly installments of $2,000,” if accepted by the widow, creates a pure annuity.</p> <p>S.Rule as to Construction of Statutes.</p> <p>Statutes should be construed together so far as they are material to each other. If other provisions of a law cover the question, the leaving out of a portion of a sentence or the transposition of words in the revision of a law, does not necessarily call for a different interpretation. It must plainly appear that the legislature intended a change; otherwise the same construction must be given to the statute as revised as that which had obtained previous to the revision.</p> <p>4 Annuities are Taxable.</p> <p>Under the foregoing rules, where the legislature in a revision of the statutes omitted annuities from the definition of the word “credits,” it cannot be held that it was thereby intended to exempt that class of property from taxation if they are referred to as subjects of taxation in other sections of the statute.</p> <p>5. Purpose in Omitting Annuities from “Credits.”</p> <p>The purpose of the legislature in omitting annuities from the definition of the word “ credits ” in sec. 2730, Rev. Stat., was evidently to prevent that class of property from being made subject to the offset of legal claims or debts, as such property should not be subject to such deductions.</p> <p>6. Surrender of Dower for Annuity — An Investment.</p> <p>Where a widow surrenders her dower interest in, and distributive share of, her husband’s estate in consideration of an annuity, she thereby becomes an “investor” in such annuity within the meaning of the statute relating to the taxation of that class of property. She is a purchaser, and the annuity is in no sense a gift by way of a legacy.</p> <p>7. Not Double Taxation.</p> <p>The taxation of such annuity does not require the annuitant to pay a tax upon the property which she gave to produce the annuity and is not double taxation.</p> <p>Not a Tax on Government Bonds.</p> <p>Taxation of such an annuity, based upon government bonds, does not involve the question of taxation of that class of property. Annuitant is not, under the will in question, an owner of the bonds.</p>

<p>CONTRACTS — BIDS.</p> <p>Contracts — Bids for Fire-Proofing School House.</p> <p>Where bids were received by a board of education in response to an advertisement calling for bids for three systems for the fire-proofing of a school building, and it appears that anybody could bid on the work, it is not unlawful for the1 board to select a certain system though the bid for that system was not the lowest bid received. The fact that the systems were patented and owned by a single company, to render the transaction unlawful, must be proved.</p>

<p>GIFTS — ACTIONS—TRUSTS.</p> <p>1. Money Ceaim as Gift — Heed to Have Been a Doan.</p> <p>Where it appeared that Mrs. S., in negotiating a sale of several parcels of real estate, said she “ could use the money to better advantage upon the hill by improving some property,” and upon receipt of the money, $16,000, equal to about one-half her estate, she went with her son-in-law to a bank, and after depositing the money gave him a check for $14,300, which, after her death, . he claimed was a gift, in view of the statement referred to, as opposed to those made by the son-in-law and by other persons not members of the family, and in view of the fact that Mrs. S. had a family of nine children, and a will in their favor rebuts the presumption of a lack of parental regard for them, and no good reason appears why she should have given half her estate to her son-in-law, a majority of the court holds that a verdict holding thq transaction between Mrs. S. and her son-in-law to have been merely a loan, was not manifestly against the weight of the evidence.</p> <p>2. Transferred to Corporation — Not Reached by Action at Daw.</p> <p>While, in a proper proceeding, a fund, claimed to have been received as a gift but which the court holds to have been a loan, and afterwards invested in a corporation, may be followed and property in the hands of the corporation subjected to payment of the claim, the facts stated do not authorize a judgment against the corporation as a party, with the person receiving the money, to an action at law.</p>

<p>LIENS — PRIORITIES.</p> <p>Ribns — Judgment Creditor’s Birr — Priorities.</p> <p>The commencement of an action in the nature of a creditor’s bill gives the-plaintiff priority over mere judgment creditors, who acquire no lien where judgment debtor’s interest in property consists only of am equity; and an assignment of debtor’s interest in ' property to his attorneys in payment of fees, takes precedence over claims of mere judgment creditors and is second' to claim first above referred to.</p>

<p>STREET IMPROVEMENTS.</p> <p>Street Improvements — Unauthorized.</p> <p>The statutes do not confer upon municipal corporations the right to improve private property for street purposes without condemnation or consent of the owner, and much less to assess upon individual property the cost of an improvement which was not desired nor solicited.</p>

<p>MUNICIPAL CORPORATIONS — SIDEWALKS.</p> <p>1. Duty of City to Inspect Sidewalks for. all Defects.</p> <p>It is the duty of a municipal corporation to make an examination of sidewalks from time to time, and to look after latent as well as patent d mi ; and where it appears that a walk had been out of repair, having 1) . which were loose at one or both ends, and would fly up when stepped upon, >r over two years, the city must be held to have been negligent; andan in ■ action which, in substance, directed the jury that if,' when plaintiff atl- iwied to pass over such walk, it appeared to Be in good condition, or thai i a - defeat was latent, the plaintiff could not recover, constitutes prejudicial . rr>>r.</p> <p>% Proximate Cause — Improper Instuctions to Jury.</p> <p>Unless the negligence of a person injured contributed directly to or was a proximate cause of the injury, it does not preclude a recovery. Under this rule it is improper for the court, in an action for injuries result in, from a defective sidewalk, to instruct the jury that ‘‘if plaintiff contributed in any degree ” to the injury, he cannot recover.</p>

<p>CHATTEL MORTGAGE.</p> <p>1. To Retain Possession and Sell ok Exchange Invalidates.</p> <p>A chattel mortgage which contains a provision allowing the mortgagor to retain possession of the property, with power of sale, although good between the parties, is invalid as against creditors, though the latter live, on the property, who assert their rights against such property.</p> <p>2. Provision Which Implies Power to Sell or Exchange.</p> <p>A provision in a chattel mortgage, under which the mortgagor retains possession, that “in case of the exchange of any of the above articles of personal property for other articles of the same kind in the course of said business, this mortgage is to operate as a lien upon the articles that may be acquired to take the place of such as may be exchanged or sold,” while it conveys no express power to sell or exchange, clearly implies that such power is to be exercised and is within the rule above stated.</p> <p>3. Failure to Exercise Power Does not Validate.</p> <p>The mere fact that the power of sale or exchange, under a provision in a chattel mortgage by which the mortgagor was allowed to retain possession of the property and sell or exchange, does not change the rule or render the mortgage valid»against creditors."</p>

<p>Heard on Error.</p>

<p>CORPORATIONS.</p> <p>1. Corporation — Preliminary Organization Does not Continue.</p> <p>In as much as every corporation is effected after one or more preliminary meetings have been held for the consideration of the subject in the interests of which it is desired to organize a corporation, it cannot be held that the preliminary organization thus formed continues after the articles of incorporation have been returned by the secretary of state and adopted, and that the perfected corporation is necessarily a separate and distinct organization.</p> <p>2. Preliminary Officer Becomes Permanent Officer.</p> <p>Under the foregoing rule a person elected treasurer of a preliminary organization, formed for the purpose of incorporating a hospital association, and who is subsequently, after articles of incorporation have been forwarded to and returned by the secretary of state and adopted, elected treasurer of the perfected corporation, becomes the treasurer of that organization, which succeeds- the preliminary organization, and, as such treasurer, may be required, at the suit of the corporation, to account for all moneys at any time received as such treasurer.</p>

<p>Motion for modification of judgment of disbarment.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>1. Procedure in Attachment and Garnishment.</p> <p>While, in an attachment proceeding, in the absence of a showing that the court, by virtue of its writ of attachment or, garnishment, has reached property of defendant, or that the court made any order finding it had jurisdiction to proceed to judgment, a stay of proceedings until plaintiff brings suit against the garnishee and it is made to appear that he is indebted, seems to be in harmony with the statute, it may well be doubted whether.that is the only method the court may pursue. The statute is not so specific as to the mode of procedure as to include one mode and exclude all others.</p> <p>2. Judgment Personal in Form on Service by Publication.</p> <p>The affidavit for attachment and proceedings under it form no part of the pleadings, and where the court, in such a case, renders judgment, it is upon the pleadings. Therefore, in attachment where service was by publication, a judgment, personal in form, for the full amount of plaintiff’s claim, is proper, although the facts in the case render such judgment valid only to the amount of the property attached.</p> <p>8. Defect not Available on Collateral Attack.</p> <p>Where it appears that the court issued process of garnishment in a case in which it had jurisdiction, obtained service by publication, and seized property, and, after seizing such property, proceeded to judgment, the mere failure to spread upon the record a finding that the garnishee was indebted to the attachment debtor, if essential or proper, would amount to nothing more than an error, which could only be raised by proceedings in error, and is not a matter upon which a judgment can be collaterally attacked.</p> <p>4. Presumption that Court Found Facts Necessary to Judgment.</p> <p>Where the record shows that the writ was properly issued, service made by publication and property actually attached, and that the court proceeded to judgment, the mere failure to have the record show a finding that the garnishee had in his hands, property belonging to defendant, and an order to pay the same into court, does not of itself indicate a lack of jurisdiction. Under such circumstances, where the record is silent as to whether the garnishee was ordered to pay money into court, which would imply that the' court had found that it had reached property of the defendant and had entered that upon record, it will, in a collateral proceeding, be presumed, where judgment was entered against the attachment debtor, that the court made such a finding.</p> <p>6. Action in the Nature of Collateral Proceeding.</p> <p>An action against a garnishee to receive the amount due from defendant in the attachment suit at the time of the service of process, is collateral to the attachment suit.</p>

<p>NEGLIGENCE.</p> <p>1. Appointment of Administrator Cannot be Collaterally Attacked.</p> <p>Questions involved in the appointment and qualification of an administrator are conclusively determined by the order of the probate court and cannot be collaterally attacked.</p> <p>2. Evidence of Repairs After Accident Inadmissible. ■</p> <p>In an action against a railway company for personal injuries, the admission of evidence of repairs to or changes in cars made after the accident is incompetent, and if admitted constitutes prejudicial error.</p> <p>3. Act 87 O. I/., 149 — Defective Cars — Case not Within.</p> <p>The use of a flat car, for hauling stone, without side boards or end boards or standards, to prevent the stone from falling off and wrecking the train, is not the use of a defective car or a car with defective appliances, within the meaning of the act of April 2, 1890, 87 O. k-, 149.</p> <p>4. Rules Applied to Assumption of Risk.</p> <p>Where it appears that decedent brakeman had worked about the flat cars referred to when they were put into the train and that he had exactly the same opportunities for knowing the condition that such cars were in as any other employee, he must be held to have assumed the risk of injury therefrom, although the accident was not one which he could have anticipated from the manner in which the cars were loaded.</p> <p>.5. USB of Appliances Generally Used Sufficient.</p> <p>As long as an individual or a railway company uses in its business the same appliances that are in use generally in the same line of business, it cannot be held that such individual or company is guilty of negligence.</p> <p>*6. Request for Special Findings.</p> <p>Requests for special findings of fact to be answered by the jury under sec. 5201 Rev. Stat., are in time if submitted beiore the jury retires. B. & O. R. R. Co. v. McCamey, 5 Circ. Dec., 631, approved and followed.</p>

<p>CORPORATIONS — DEBTORS AND CREDITORS.</p> <p>1. Preferences by Corporations — Ohio Rule — Other States.</p> <p>The rule of Rouse, Trustee, v. Merchants National Bank, 46 Ohio St., 493, that “ a corporation for profit, organized under the laws of this state, after it has become insolvent, and ceased to prosecute the objects for which it was created, cannot, by giving some of its creditors mortgages on the corporate property to secure antecedent debts without other consideration, create valid preferences in their behalf over other creditors, or over a general assignment thereafter made for the benefit of creditors ” has reference to the relation existing between the corporation and its creditors, and affects the remedy of the creditors, relative to procedure. It is a construction of the general laws of Ohio, affecting powers of corporations in Ohio, and is not a limitation upon organic powers which the courts of another state, by the laws of comity, must recognize against creditors of that state.</p> <p>2. Rule Applied to Preferences in Pennsylvania.</p> <p>Under the foregoing rule, a preference, preceding an assignment for creditors, made by a corporation organized under the law of Ohio, but having subsequently removed its property and business to Pennsylvania where it became insolvent, to secure bona fide debts, to creditors non-resident of Ohio, through the medium of judgment notes, whereon judgments were taken in Pennsylvania and property seized and sold in accqrdance with the laws of that state, is not invalid under the Ohio laws. Therefore, where, by agreement between the judgment creditors in Pennsylvania, a trustee was appointed to purchase the property of the corporation at judicial sale, who continued the business until the judgments were paid m full, when the property was turned over to a stockholder, who was also a creditor, removed to Ohio, and acquired by another corporation, a fund realized from a sale by the latter to a third party is not subject to claims of creditors of the first corporation, or available at the suit of a trustee appointed by the probate court in Ohio, under a filing in Ohio of a copy of the deed of assignment made in Pennsylvania.</p>

<p>CORPORATIONS — SUMMONS.</p> <p>1. Service on Agent oe Corporation.</p> <p>In order to render service of summons, under sec. 5044, Rev. Stat., upon the-agent of a corporation valid, it must be made to appear that no chief officer of the corporation could be /oundin the county and that the service was upon themanating agent of the corporation. A return to the effect that the writ was served upon G, “ agent of said company, no chief officer being found, ” is-not sufficient.</p> <p>2. Term “ Managing Agent.”</p> <p>A letter from a corporation designating a certain person as “ our Cincinnati agent,” without evidence showing that such person had control or supervision over the affairs of the corporation or any portion thereof, is not sufficient to bring such person within the term “managing agent” as used in-sec. 5044, Rev. Stat., above referred to.</p>

<p>MUTUAL LIFE INSURANCE.</p> <p>1. Pleading — Names of Parties — Caption Sufficient.</p> <p>It is sufficient, under Ohio practice, if the names of the parties to a suit art stated in the caption of the petition, and in the body of the petition they may be classed as plaintiffs and defendants without being again named. Where there is a qualification to be made, as where the parties are minors, after having named the parties in the caption, it should be averred.</p> <p>2. Amendment to Conform Pleadings to Proof.</p> <p>Where testimony not in accordance with the pleadings is admitted without objection the court may allow the pleadings to be amended to conform to the proof.</p> <p>3. Objection to Amendment — Time Should be Allowed.</p> <p>Where the admission of testimony not in accordance with the pleadings is objected to, the court may allow an amendment to the pleadings, but if the opposite party makes a showing that he has been taken by surprise, or will be prejudiced by the amendment, he is entitled to time in which to make his pleadings and prepare for trial.</p> <p>4. Bubden oe Proof Under in Insurance Certificate.</p> <p>Where, in an action against a mutual benefit association, the petition alleged that the plaintiff received the certificate, etc., and that the defendant association had become bound to pay $2,000, under a condition in the certificate to pay that amount if the class to which the insurance belonged was full, otherwise to pay $1.00 for each member of the class, and the defendant admitted that plaintiff received the certificate and that it would have beeu bound to pay, providing insured had not made certain representations and had not failed to pay certain assessments, and denied that there were two thousand members of the class at the time, without stating how many there were, the burden of proving that there were not two thousand members is upon the defendant.</p> <p>5. Presumption Where Person Disappears.</p> <p>Where a person disappears, there is no presumption either way, that he is alive or that he is dead, until seven years have elasped, when, if he remains unheard of, the law presumes that he is dead.</p> <p>6. Beneficiary Entitled to.Recover.</p> <p>Where a member of a mutual benefit association had paid all dues and assessments levied up to the time of his disappearance, and his beneficiary tenders, in proper time, payment of assessments made subsequently, such beneficiary, in action brought after seven years, during which time assured has not been heard of, and when the law presumes that he is dead, is entitled to recover the insurance.</p> <p>7. Rule as to Beneficiaries.</p> <p>It is sufficient in life insurance if there is such a relation at the time the policy is issued that the party would be entitled to be a beneficiary then ; and such relation having existed then, no matter what occurs afterwards, such relation is not terminated. Thus the right of a wife as beneficiary in an insurance certificate is not terminated by a subsequent divorce and a marriage to another man.</p> <p>8. Association Cannot Refuse Assessments from Beneficiary.</p> <p>Where it appears that a member of a mutual benefit society had paid all dues and assessments up to the date of his disappearance, the officers of such association have no right to refuse to receive an assessment, made after his disappearance, from his beneficiary (his wife in case at bar), on the ground that, insured having disappeared, they wished to get further news concerning him, what had become of him, etc., arid also wanted further orders from the superior officers.</p> <p>8. Burden of Proof for Refusing Assessment.</p> <p>Where a person insured has disappeared and as a defense to the tender of an-' assessment by his beneficiary it is claimed that insured was dead at the time the tender was made, the burden of establishing that fact is upon the insurance association.</p> <p>10. Record in Divorce Proceedings not Admissible.</p> <p>There is no presumption from the fact that divorce was granted to the abandoned wife three years after her husband disappeared, that the husband was then living or that he was dead. Therefore the record of the divorce proceeding is incompetent as evidence in an action under a certificate of insurance.</p>

<p>WILLS.</p> <p>1. Will — Devise To Class — Time of Distribution.</p> <p>Where a legacy is given by will to a class of individuals in general terms, and no period is fixed for the distribution, such time for distribution is the death of the testator, and only members of the class then in being are entitled to share the legacy. But where the time of distribution is postponed by the terms of the will to some period subsequent to the testator’s death, all of such class in esse at the time fixed for the distribution are entitled to share therein.</p> <p>2. Same — Devise to Class — Present Bebuestí</p> <p>Where a devise to a class is a presént bequest, thebeneficiaries who ax& in esse a.t the death of the téstator take vested interests in the fund, but subject to open and let in after-born members of such class who shall come into being before the time appointed for distribution.</p> <p>3. Same — Devise to Class — Period of Distribution.</p> <p>Where the distribution of a devise to a class is postponed by the terms of the will until the attainment of a given age by the members of such class, the legacy applies only to those who are living at the death of the testator, and who shall come into existence before the first of such class attains the age named, this being the period when the fund is first distributable with respect to any member of such class.</p> <p>4. Same — Devise to Class — Rights of After-Born Children.</p> <p>Where,under theterms of awill, themembersof a class take vested interests in a legacy distributable at a period subsequent to the death of the testator, but subject to open and let in after-born children, they take their vested interests in their shares, subject to the distribution of such shares as the members of the class are increased by future births, and, on the death of any of the children prior to the period for the distribution, their shares go to their respective rc| resentatives.</p> <p>5. Same — Devise to Class — Time oe Distribution.</p> <p>Where a •will provides that the children of the testatrix’s brother J.take the remaining half of a certain residue, said residue to be shared by them equally, and to be paid to them respectively as they arrive at the age of majority, the shares of said children to be kept at interest by the executor of the will until so paid; when at the death of the testatrix, said J. had only three children living, but after the testatrix’s death and before the oldest of said three children arrived at the age of majority, two other children were born to said J., said two. children are entitled to share equally with said three children in said residue; the division tobe made when the eldest of the three becomes of age, and the share of such eldest child, to be then paid to it; the shares of the others to be kept at interest by the executor, until said children respectively arrive at the age of majority, when their respectives shares will be due and payable to them.</p>

<p>Heard on Error.</p>

<p>BARKS — NEGLIGENCE OF OFFICERS.</p> <p>1. Actions by Corporations in Liquidation.</p> <p>When the condition arrives which drives an incorporated company into liquidation, when it must marshal and collect its assets, and pay its debts, and wind up its business and adjust its affairs, its power to assert and defend its rights, is most strong, because the necessity is then most imperative. The last sign of vitality of an incorporated company is the power to maintain and defend an action ; and the nature and purpose of the action is the test of whether or not the company has sufficient life to maintain it.</p> <p>2. Duty of tPresident to 'Sue — Without Specific Authority.</p> <p>When an incorporated company goes into liquidation, it becomes the special function of its president, for the purpose of winding up its affairs, to see that actions to that end are maintained and defended ; and he may do this without specific authority of the board of directors.</p> <p>3. May Sue tojRecovkr Funds Lost by Officers.</p> <p>A corporation, by having,gone into liquidation, having wound up its affairs and disposed of its stock and assets, is not thereby deprived of the right to sue to recover funds which it is claimed were negligently lost by its officers or servants.</p> <p>4. Action Ratified by Conduct.</p> <p>An action being litigated and pursued by a corporation from one court to another, in itself refutes a claim that it was not the purpose of the board of directors to institute and maintain it, and amounts to an adoption of the act of that board in that regard, and ratifies it by conduct.</p> <p>5. Banking Corporation — Resolution as to Loss of Funds.</p> <p>A resolution passed by the board of directors of a banking corporation exonerating an officer of the bank from any liability for the loss of money which was stolen or which disappeared from the bank, does not'amount to a relinquishment of the claim or estop the corporation from subsequently bringing suit to recover the money on the ground that it was lost through the negligence of the officials.</p> <p>6. Rule as to Degree of Care and Liability for Loss.</p> <p>An officer of an incorporated company, entitled, as against everybody, to the . care and control of its assets, and who accepts that service and employment, while he may not be an insurer, yet, when his duties are fixed and determined for him, in the accomplishment of that service, and the manner prescribed, and the place fixed, and the wherewithal provided by which he may safely perform that engagement, is held to the exercise of such care to effect it as an ordinarily prudent man, under the same or similar circumstances, would exercise; and if he fails in this, and loss directly results, he must make good such loss.</p> <p>7. Cause of Action Against Officers of a Bane.</p> <p>A petition in an action by a banking corporation against its officers, the vice-president and cashier, setting forth the character of the plaintiff and its business, that it made ample provisions for the safe keeping of its funds, by vault and safe and locks and time locks, of approved strength and pattern, the official character aud employment of defendants, and the acceptance of the duties and responsibilities by each of his respective office, that it was their duty, and the duty of each of them, to have charge of, and to keep the money of the bank, and to see to it that at proper times it was kept in the safe and vault and behind the locks and bolts and bars provided for its reception, and averring that they failed in this, that they did not use the equipment provided for the safety of the money and by the use of which it would have been preserved, and that by reason of this neglect to do so, the money disappeared and has never been returned or its lo?s made good, states a cause of action against such officers.</p> <p>8. Meaning of Reasonable Care — Charge to Jury.</p> <p>Reasonable care, upon the part of officers having the care of the funds of a bank, in the the matter of attending to the vault doors, is to lock them, and to see that they were locked. And to instruct the jury, in such case, that if the officers “ acted in good faith about the affairs of the bank, and .used reasonable diligence and care in and about the closing and locking of the door ” that they would be relieved from liability, would have been improper.</p> <p>9. Verdict not Against Evidence.</p> <p>Where the evidence shows that money disappeared from the vaults of a bank on a certain date, and it appears that the combinations and time locks were not broken or disturbed, and it is also shown that if said locks and combinations had been set, as it was the duty of the officers to set them, it would have been a physical impossibility to have secured the money without destroying or breaking the lock, as against the mere assertion of the officers that the doors were closed and the locks adjusted, a verdict based upon the conclusion that the officers negligently failed to perform that duty, can not be said to be against the weight of the evidence.</p>

<p>Heard on Error.</p>

<p>DEDICATION FOR PARK PURPOSES.</p> <p>1. Dedication for Park Purposes.</p> <p>A dedication, legal in form, of property to a municipal corporation for park purposes, and its acceptance by the city, vests the fee of the property in the municipality for the purposes for which it was dedicated. Sec. 2601, Rev. Stat.</p> <p>2. Condition not Arising Prom. Dedication Void.</p> <p>A condition recited in a plat accompanying a dedication to a municipal corporation of land for park purposes, that “ the land shall be kept in good condition for the purpose for which the grant was made, or the same to revert to donor ” is not engrafted upon or a part of the dedication. The grant is independent of such condition and a violation thereof does not terminate the trust or carry the fee back to the original proprietor. In other words, a condition not arising from the dedication itself cannot be engrafted so as to bind the corporation.</p> <p>3. Condition Void for Uncertainty.</p> <p>If it were possible to engraft the condition in an accompanying plat, of the character above stated, upon a grant to a municipal corporation, a condition that the land should be kept in “ good condition for the purposes for which the grant was made ” would be void for uncertainty, where no standard is established for determining the meaning of “ good condition.”</p>

<p>DECREES.</p> <p>Decree eor Payment oe Claims not Stated is Void.</p> <p>A provision in the decree in a foreclosure suit for the payment of taxes and ground rents is void where no statement of any claim in favor of the treasurer or landlord appears in the pleadings ; and the fact that the decree was entered by consent of the parties does not render it valid.</p>

<p>ACTIONS TO ENFORCE STATUTORY LIABILITY.</p> <p>Dismissal of Action Before Judgment — Vacation of such Order.</p> <p>An action to enforce stockholders’ statutory liability, being for the benefit of all creditors, is not within the rule that an action brought by a trustee need not be prosecuted but may be dismissed by such trustee at any time before judgment. So long as an action for enforcing statutory liability is n ot prosecuted to final judgment, and the liability of the parties has never been ascertained, and no steps are taken to ascertain yd10 the creditors are, the suit is pending for the benefit of all, and if unadvisedly dismissed by the court, any creditor coming in and making a proper showing (in case at bar, that applicants had no knowledge that the order of dismissal had been made, that they were creditors and desired to have the suit proceed), may have such cause reinstated. (Parker, J., dissenting on the ground that the action might be dismissed by plaintiff at any time before judgment; that the action having been dismissed before creditors seeking vacation of the order came in, certain rights, by virtue of the order of dismissal, became vested and could not rightfully be disturbed without reasons given, even under the power of the court over its journal during the term; that an order affecting the order of dismissal should have been secured by proceedings in error.)</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>STREETS — DEDICATION.</p> <p>1. Common Law Dedication — Intention to Make.</p> <p>In order to constitute a complete and valid common law dedication of land to the public, on the part of the owner, it must appear that he clearly and unequivocally indicated by his words or acts an intention to dedicate. The making of a plat showing a triangular piece of land, at the intersection of streets, and coloring it the same as the streets are colored, and which is without lot number, but which is not within the demensions of streets as shown by said plat, and the fact that for many years no taxes or assessments were paid (none being demanded) on said triangular piece of land, are not sufficient to indicate conclusively or unequivocally an intention to dedicate.</p> <p>2. Evidence oe Purpose to Reject Intended Dedication.</p> <p>And where the city, having taken no formal action in accepting the property above referred to, subsequently accepts dedication of streets and alleys shown on said plat, and in the improvement of streets excludes the triangle from the improvement, and subsequently, for improvement of a street upon which it abuts (said property having been omitted inadvertently from taxation or assessment for many years) makes an assessment for such improvement, this is evidence not only of a purpose not to accept, but of a purpose to reject such property if a dedication was intended.</p> <p>3. Failure to Establish Adverse Use and Occupation.</p> <p>Where the city in making street and sidewalk improvements clearly located such improvements and in such a way as to exclude, and indicate an intention to exclude, the property referred to, the fact that persons may have driven outside the lines of the street and upon the property in question, or that pedestrians, under similar conditions, have gone over said property, íor a number of years, does not constitute adverse use and occupation such as will defeat the title of the owners or constitute acceptance if a common law dedication was intended.</p> <p>4. Failure to Pay Taxes Does not Create Estoppel.</p> <p>Property owners are not estopped from claiming ownership of such land by having omitted to pay taxes or assessments thereon for a long period of time where no taxes or assessments were demanded. Property owners are not required to hunt up city authorities and seek to pay or tender payment of taxes or assessments in order to escape estoppel against ownership.</p>

<p>NEGLIGENCE — INTERROGATORIES.</p> <p>1. Supplementing Proof of Negligence — After Reversal.</p> <p>In an action for wrongful death, resulting from injuries received by a brakeman while passing under a bridge, and while said brakeman, riding in the engine, under a rule permitting it, during inclement weather, was in the performance of his duties leaning out of the cab to watch the train, on the first trial of which judgment was given for plaintiff, which was reversed by the Supreme Court on the ground that the negligence of the railway company was not sustained by proof of circumstances (the manner in which deceased collided with the bridge) from which the fact that the injuries were sustained as alleged was not a more natural inference than any other, the circuit court held that the proof of such circumstances in case at bar, the second trial, was sufficiently supplemented to justify affirmance of judgment for plaintiff, notwithstanding the former holding of the Supreme Court. (Haynes, J., dissenting.)</p> <p>2. Rule as to Refusal of Interrogatories.</p> <p>The fact that answers to interrogatories which a railway company, in an action for personal injuries, requested to have submitted to the jury, had they been as favorable as possible to the railway company, would not have controlled the general verdict, justified the trial judge in refusing to submit such interrogatories.</p>

<p>Heard on Error.</p>

<p>HOMICIDE.</p> <p>1. Evidence of Statements not Part of Res Gestae.</p> <p>Where defendant and his son were jointly indicted for murder by shooting, on the trial of the former, evidence of the son’s statements, made at his home soon after the killing occurred, tending to show who fired the fatal shot, is incompetent, as what was said was not part of the res gestae, and was properly refused.</p> <p>2. Rule as to Evidence in Chief and in Reply.</p> <p>By the law of evidence, testimony competent in- chief, by that fact is rendered incompetent in reply. The rule, however, is subject to the discretional authority of a trial court to reopen a case in chief at any time before it is finally closed, and let such evidence in. But this should not be done when, without fault on his part, by reason of the discharge of witnesses, or otherwise, a party would be cut off from an answer to the new testimony, which he might have'made if it had been regularly given. Yet, as in this case, if the record fails to show that a party over whose objection evidence in chief has been admitted, out of the usual order, was deprived of the right or cut off from the means of answer to it, such action is not in legal view prejudicial, even if technically irregular.</p> <p>3. Reproducing Testimony of Deceased Person.</p> <p>Where the testimony of a deceased person, or a party in a former trial, is sought to be reproduced by the evidence of one who heard it, but only as to a particular portion, it is a sufficient qualification to testify to this, that the witness can recollect and state the substance of the part offered.</p> <p>4. Evidence Depending upon Proof of Conspiracy.</p> <p>To make a case of error in refusing evidence, the competency of which depends upon proof of a conspiracy, that fact must appear with reasonable clearness, inasmuch as whether or not it has been established, is a matter peculiarly for the trial court. On that point, under the general rule stated, nothing is shown by the record-here, to the prejudice of the defendant below.</p> <p>5. Acts or Declarations of Third Parties.</p> <p>As showing a person’s state of mind when killing another with whom he was in conflict, it is not competent to prove the acts or declarations of a third party at enmity with him, in no wise connected with the homicide, notwithstanding they manifest most vicious feeling, and are by one who sometime prior thereto had joined in a violent assault upon him.</p> <p>6. Declarations of Co-Conspirator — Rule as to.</p> <p>Much latitude is left to a trial court in determining the prima facie proof necessary to admit evidence of the acts or declarations of a party as a co-conspirator with one who is being tried for an alleged crime;.and if on that question, there is no failure of proof at any material point, the admission of such evidence, otherwise competent, will not be regarded as error. Price v. Junkin, 4 Watts, 85; Nudd v. Burrows, 91 U. S., 426.</p> <p>7. Statements of Co-Conspirator Which Weje Incompetent.</p> <p>After evidence of a conspiracy between the defendant and his son to kill the deceased, against objection, the state was allowed to put in the sou’s declarations to a third party, in the lather’s absence, as follows : “Are you going to town to-day? There is going to he some shooting; if father don’t kill a man I will.” At another time: “ I would as soon shoot Snyder as I would a rabbit.” Held, error, as the statements were not in furtherance of a common purpose of the two to kill.</p> <p>A Charge to Jury — Repetitions Should be Avoided.</p> <p>The true objects iu charging a jury are (1) to bring into view the issues in a case, and (2| by a pertinent statement of the, law, show how a jury should apply the evidence in the various aspects which the trial may develop; and if that be done, in legal view a charge is complete. Hence, when a proposition once has been clearly given, it is the right of the court not to repeat it in varied form of expression, though equally correct; and to avoid possible confusion in the minds of the jury, it generally is wise to refuse to do so.</p> <p>s>. Rule as to Charge as to measure of Proof.</p> <p>It is error to charge without qualification that upon the requisite measure of proof by the state, of an unlawful killing by the defendant the burden is thrust on him to show, by the greater weight of evidence that it “ was done, not of malice, but in the necessary defense of his person from death or enormous bodily harminasmuch as the apparent effect of such an instruction is to preclude him from the right to take life to protect against the reasonably grounded apprehension of such consequences.</p> <p>>0. Submitting Question Without Evidence.</p> <p>To submit to a jury iu a trial of one for murder, by a charge to that effect, a question as to the defendant’s guilt, upon the theory of “his aiding and abetting ” another who may have done the killing, when there was no evidence upon that point, is misleading and erroneous.</p> <p>11. Misleading and Erroneous Charge as to Self-Defense.</p> <p>The trial court said to the jury “ that the foundation of the legal right to take human life in self-defense, and that necessity must be real or the appearance such as to impress an honest man of ordinary firmness with the honest belief that such appearances are real. In this case, gentlemen, it is for you from all the circumstances in the case to say whether or not at the time the defendant fired” the fatal shot, “if such you find the case to be, there was any necessity for so doing, and whether the circumstances were such as would have impressed an honest man of ordinary courage with an honest apprehension of danger of the loss of life or of receiving great bodily harm, either to himself or to one whom he had a right to protect.” Held, that this is misleading and erroneous in putting before the jury as a test of the right to kill iu defense against apprehended danger, not what in good faith and the careful use of his faculties reasonably was the appearance to the defendant, but what an “ honest man of ordinary firmness,” and “ ordinary courage ” might he supposed “ honestly ” to think of the situation in which the life was taken.</p>

<p>BRIDGES — MUNICIPAL CORPORATIONS.</p> <p>1. Evidence Incompetent to Impeach Validity oe Law.</p> <p>The clerk of either house of the state legislature may certify, relative to the proceedings of the house in which he served, to the facts appearing upon the journals, but evidence in the form a of copy of an original bill, certified as a correct copy by the clerk, for the purpose of impeaching a law as it appears in the session laws on account of the ommission of words, is incompetent.</p> <p>2. Effect of Such Evidence if Competent.</p> <p>And if such evidence was competent, it would amount to nothing more than negative evidence that the bill was not amended by striking out the omitted words; and it is doubtful if it would go that far, where it appears to have been engrossed in the form in which it appears in the session laws and so read and put upon its passage.</p> <p>3. Omission of Word Constituting Material Difference.</p> <p>The omission of the word “ hundred ” from a bill, relating to bridges within municipalities, providing that ‘‘ persons desiring a bridge at any other locotion may also file their petition and that the petition shall be considered and the location voted upon if they file a petition containing not less than twenty-five hundred signatures”, constitutes a material difference.</p> <p>4. Presumption of Regularity in Passing Law.</p> <p>Where the journals show that a bill was passed, and there is nothing in them to show that it was not read as the constitution requires, the presumption is that it was so read, and this presumption is not liable to be rebutted by proof. Miller v. State, 3 Ohio St., 475.</p> <p>6. Bridges Within Municipalities — Classification—Laws.</p> <p>The matter of building bridges within and to be paid for by municipalities, is a proper subject of municipal control and may be provided for by a law applicable to cities of a certain grade and class.</p> <p>- 6. Law of General Nature and Uniform Operation.</p> <p>A law relating to the matter of building bridges, within municipalities, which is made applicable to all cities of a certain grade and class, is a law of a general nature and having a uniform operation throughout the state within the meaning of Sec. 26, Art. 2, of the constitution.</p> <p>7. Act. 94 O. L175, Limited to One City, Valid.</p> <p>The act of April 14, 1900, 94 O. L., 175, to supplement Sec. 2835, Rev. Stat., and providing for proceedings to be had in “ cities of the third grade of the first class to accomplish the location and construction of bridges across navigable rivers,” is not invalid for the reason that there is but one city in the state of the class to which the law applies.</p> <p>8. That it Might Have Been Made Broader not Valid Objection.</p> <p>Nor is it a valid objection to the law in question that it might have been framed so as to have been equally suitable for and applicable to cities of other grades and classes.</p> <p>9. Restricted by Natural Conditions — Not Valid Objection.</p> <p>The fact that all municipalities of or that may come into the class may not be in a similar natural situation, that is, may not have navigable streams to bridge and therefore not in a situation to avail themselves of the law, is not a valid objection to the law.</p> <p>10. Judicial Notice — Law May Eventually Apply to Other Cities.</p> <p>In determining Whether the act in question, which relates to “cities of the third grade of the first class having a navigable river passing into or through the same ” is invalid, as limited in operation to one city in the state, the court may take judicial notice that other smaller, growing cities have navigable streams within their limits and may in time come within the statute.</p> <p>11. Words as to Navigable River — Not an Added Classification.</p> <p>The words “ having a navigable river passing into or through the same,” in the act referred to, do not constitute a new or additional classification, but are simply a provision for a condition that may or may not exist in cities of the grade and class referred to.</p> <p>12. Natural Conditions Would Justify Classification.</p> <p>There are sufficient apparent natural reasons suggested by necessity for a difference based upon the navigability of streams, and the necessity of different laws with respect to the bridging of navigable streams, to justify the placing of cities of that character in a class by themselves for the purpose of bridge legislation.</p> <p>13. Rule as to Voting Under Law in Question.</p> <p>Under the provision of the act in question that “ each registered elector of such municipality shall be entitled to vote upon the question of construction, reconstruction, enlargement or repair of bridges and to vote for only one location therefor,” each voter may cast a negative vote that shall cover each proposition, but an affirmative vote'is limited to the general proposition and to one location.</p> <p>14. Negative Vote as to General Proposition.</p> <p>If a voter, under the law in question, marks his ballot “ no,” as to any proposition, and does not mark “ Yes ” to any proposition, this is a negative vote as to the general proposition and as to every bridge, the same as if he marked it “No” to each and every proposition.</p> <p>15. Affirmative Vote as to Location and Proposition.</p> <p>Where a voter, under said law, with respect to any proposition or location votes “ Yes,” this amounts to an affirmative vote as to the particular location and an affirmative vote as to the general proposition.</p> <p>16. Cannot Vote Against Proposition and for Location.</p> <p>An elector, under the statute in question, cannot vote against all bridges, or against the general proposition, and at the same time vote his choice of locations to be counted if the general proposition carries.</p> <p>17. Form of Tally Sheet.</p> <p>For .an election under said act the form of the tally sheet should show, first, the number of persons voting; second, the tally of ballots counted; third, the vote on the various propositions or locations, “ Yes,” or “ No .”</p> <p>18. Rule as to Determining Result.</p> <p>From the number of ballots counted deduct the number of votes in favor of all locations. The remainder will be the number of negative votes. If this number is less than one-half of the whole number of ballots cast, the general proposition to build a bridge has carried ; if more, the proposition is lost. If proposition carries, the locátion receiving the largest number of affirmative votes is the location selected.</p>

<p>CORPORATIONS — UNIVERSITIES.</p> <p>1. University a Private Corporation.</p> <p>A university of learning that has received its charter from the state and is exempt from paying taxes by legislation of the state, but has received no other benefit from the state, and has an endowment from private donors, and charges tuition fees to students, is a private corporation. The charity it administers may be public, but the corporation is private.</p> <p>2. State Will not Exercise Visitatorial Power or Interfere in Management.</p> <p>Where the corporation is private and is not administering funds contributed to its aid by the state, the state will not exercise visitatorial power over its domestic affairs, and will not interfere with its government finless there has been unjust, unfair and oppressive treatment of its students, nor will the state interfere with the management of the trust funds of the university unless there has been a breach of trust on the part of the officers of the university.</p> <p>3. Failure of Student to Perform Obligations — Dismissal-</p> <p>Whether the student, when he pays tuition for instruction in the university, thereby enters into a contract or obtains a mere license, is not material; in either case, there are numerous obligations which he agrees to perform and his failure to perform such obligations may be of such a nature that the university may be justified in dismissing him from the institution.</p> <p>4. Student Disciplined not Entitled to Formal Trial.</p> <p>The student agrees to be disciplined by the faculty according to the custom of such institutions and, in administering such discipline, the authorities should afford him a fair opportunity of presenting evidence of his innocence, but are not under obligation to afford him all the formalities of a trial in a court of justice.</p> <p>5. Students Agree to Conform to and be Tried by Rules.</p> <p>The faculty of a university, under the custom of the land which has been uni" form for so long a time that it has become law, are justified in disciplining students in the ' institution, and the student who enters such institution agrees to conform to that rule of law and to be tried for his demeanors by such rule.</p> <p>6. When Faculty May Remove Student.</p> <p>Where a student has been guilty of various breaches of duty, of such a nature-that it is injurious to the institution to allow him longer to remain as a student, and where opportunity has been afforded him to make full explanation before the i acuity, and present evidence of his innocence, and where the faculty have made a careful examination of his conduct and have found his acts to be such that he is a very undesirable student and his presence is injurious to the benefits of the university, they are justified in removing him from the institution.</p>

<p>FRAUD — DAMAGES.</p> <p>1. Damages Cannot be Recovered for Disgrace of Buying Worthless Stock.</p> <p>A person is not entitled to recover damages for injuries to his feelings and for his disappointment or his disgrace in the community as a result of having been induced- to buy worthless mining stock by false representations, made knowingly or recklessly, that the property was unencumbered.</p> <p>2. Evidence of General Talk of Financial Condition.</p> <p>In an action for damages for the sale of the stock of a mining company upon the false representation that the property was unencumbered, it is doubtful whether evidence, in support of the claim that the defendant or his agent had . knowledge that the property was heavily encumbered, that the matter was talked about in the city, on the produce exchange and on the oil market and in offices generally, but where no witness is able to testify that it was ever mentioned in the presence of defendant or his agent, and the same may be said in regard to a custom of putting such stock on the market.</p> <p>3. Evidence in Rebuttal Improperly Refused.</p> <p>Where, in such an action, evidence is given that the plaintiff was present at a meeting of the directors of the corporation on a certain occasion and was then told that the company owed a large sum for the mines; that the debt was serious and outstanding ; and that at that time that he expressed no surprise, that he kept quiet, plaintiff in rebuttal should be permitted to give the reasons why he did not make a statement.</p> <p>4. Charge Not Applicable Under Pleadings.</p> <p>While the president of a corporation who, being inquired of by a person desiring to make an investment in the company, carelessly and recklessly made misstatements which misled such person, may be liable in damages, a charge to that effect would be improper in an action based upon charges that the statements were fraudulently made and was properly refused.</p> <p>5. Bare Fraud — Punitive Damages not Recoverable.</p> <p>In an action against the president of a corporation involving false statements or bare fraud concerning the financial condition of the corporation, without a showing of gross or malicious fraud, or a very corrupt condition, punitive damages in any, form cannot be recovered.</p> <p>6. Deposition Without Proper Certificates.</p> <p>A deposition taken before a notary public in Arizona, containing copies of instruments recorded in the office of a county recorder, containing certificates of the notary and county recorder, but without the certificate of a presiding judge or the governor, are inadmissible in evidence. Sec. 906, U. S. Rev. Stat.</p>

<p>Heard on Error.</p>

<p>PUBLIC CONTRACTS.</p> <p>Construction of Subdivisions 6 and 7, Sec. 3988, Rev. Stat.</p> <p>Subdivision 7 of Sec. 3988, Rev. Stat., relating to school-houses, providing that “any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not; and if it is higher, such residue shall be rejected,” is apparently in conflict with subdivision ó of said section, which provides that “ none but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material, which is the lowest in the aggregate for such improvement or repairs,” but if possible said subdivisions should be reconciled. Therefore, where the discretion vested in the board by subdivision 6 is not exercised, then in the consideration of bids containing two separate items or more, any part of a bid which is lower than the same part of any other bid should be accepted.</p>

<p>INJUNCTION — QUO WARRANTO.</p> <p>1. Injunction Cannot Take the Place oe Quo Warranto.</p> <p>Injunction cannot be made to take, directly or indirectly, the place of quo warranto. Therefore, an action, under secs. 1277 and 1278, Rev. Stat., authorizing taxpayers to sue when the prosecuting attorney, upon request, fails to do so, will not lie to restrain a county auditor lrom paying salaries to deputy supervisors of elections on the ground that the law (sec. 2966-8, Rev. Stat.J, under which they assume to act, is unconstitutional.</p> <p>2. Not Authorized Because Taxpayer is Without Other Remedy.</p> <p>The mere fact that a proceeding in quo warranto can only be brought by a designated public officer, and that if such officer should decline to bring such proceeding, a taxpayer is without remedy, is not sufficient to authorize an action under secs. 1277 and 1278, Rev. Stat. Taxpayers are left in many cases without remedy except by the faithful peiformance ol duty by public officeis, the law presuming that such officers will properly periorm the duties incumbent upon them.</p>

<p>PUBLIC OFFICERS — FEES.</p> <p>1. Payment oe Assistant to Deputy Supervisors oe Elections.</p> <p>In an action to enjoin payment of compensation to a person acting as assistant to the board of deputy state supervisors of elections,.in which it does not appear what services such assistant performed, an answer averring that such person was acting “ as assistant to said board and that his compensation * ® * is one of the necessary expenses in the performance of the duties of said board,” is sufficient to bring such expenditure within sec. 2966-4, Rev. Stat.,providing, after specific provisions, for “all proper,necessary expenses in the performance of the duties of such supervisors.”</p> <p>2. Compensation Should Be Allowed by Commissioners.</p> <p>Compensation to an assistant to the board of state supervisors of elections, authorized under sec. 2966-4, Rev. Stat., providing, in addition to specific provisions, for '“ all proper necessary expenses,” is within sec. 894, Rev. Stat., requiring, where the amount is not fixed by law, allowance by the county commissioners.</p>

<p>FIRE DEPARTMENT — REMOVAL OF MEMBER.</p> <p>¡1. Municipal Departments — Failure or Member to Pay Debts.</p> <p>Section 1545, Rev. Stat., of tbe federal plan law of Cleveland, 'providing that no member of tbe “ police, fire or sanitary police force, shall be removed or reduced in rank, except for cause ” contemplates, to authorize removal, a proper and sufficient cause. Tbe mere fact that a member of a department owes a small debt, which he has neglected to pay, would not justify his removal, under a rule of the department requiring members to promptly pay their debts, particularly where it does not appear how long he has owed the debt or that he has ever refused to pay it.</p> <p>2. Evidence Restricted to Charges in Specifications.</p> <p>Where the member of a municipal department is charged with the violation of a rule of the department requiring members to promptly pay their debts, and the specification filed charges the failure to pay a certain claim, evidence that such member has failed to pay other debts is incompetent.</p>

<p>Heard on Frror.</p>

<p>PARTNERSHIP — SALES.</p> <p>1. Invalid Sales by One Partner.</p> <p>One parter has no right to sell property belonging to the firm, other than that in which the firm is engaged in dealing.</p> <p>2. Purchaser Put Upon Inquiry by Firm Name.</p> <p>The name “ The Taylor Coal Company ” is of a character to put a would-be purchaser of property of the firm, other than that in which such company is dealing, on inquiry as to the nature of the concern, whether a corporation or a partnership.</p> <p>3. Partner May Recover From Purchaser.</p> <p>A person purchasing property, other than that in which such firm is engaged in dealing, of a partnership doing business under style of The Taylor Coal Company, from one partner without knowledge or consent of the other, does so at his peril, and if, as between such partners, such sale was unlawful, the purchaser may be required to account to the other partner. -</p>

<p>PUBLIC WAYS.</p> <p>1. Property Owner may Enjoin Closing Prescriptive Way.</p> <p>A property owner has a property right in a public way, whether the fee to such way be in the municipality in trust for public uses or in an abutting owner. Such property owner is, therefore, unless compensated, entitled to an injunction against the closing or the obstruction of a public way, obtained by prescription, across railroad tracks.</p> <p>2. Not Necessary that Property Should Actually Abut.</p> <p>It is not essential, in order to entitle such property owner to an injunction, that his property should actually abut upon such way. It is sufficient if it is near enough to be materially affected by closing or obstructing such way.</p> <p>8. To Defeat, Interruption Must be for Statutory Time.</p> <p>Where it appears that a way has been traveled continuously and by the public generally, whenever they saw fit, for more than twenty-one years,_ a prescriptive right is obtained which cannot be defeated by an interruption for less than the statutory period.</p> <p>4. Interruption Incident to Moving Trains not Sufficient.</p> <p>The interruption to the use of a footway across seven or eight railroad tracks, incident to the moving of many trains, is not such an interruption as will defeat a prescriptive right.</p> <p>5. Right Extends Crear Across street.</p> <p>The right of an abutting property owner is not simply to the center line of a street, but extends across the street.</p>

<p>Heard on Error.</p>

<p>CONTRACTS.</p> <p>1. Petition in Action for Breach of Warranty.</p> <p>In an action for damages for breach of guaranty in a contract of sale, it is not sufficient to allege that the article sold and guaranteed was broken or refused to act, without plaintiff’s fault, but it must also be alleged that such occurred through the fault of defendants or of defects in manufacture.</p> <p>2. Same — Allegation of Damages.</p> <p>In such action the different items of damage need not be alleged, but may be lumped and pleaded in gross.</p> <p>3. Acceptance of Article not Waiver of Defects.</p> <p>The test and acceptance of an ice plant by the purchaser is not a waiver of defects therein, when the contract of sale guaranteed, in case of its acceptance, that it would accomplish the results specified therein for one year.</p> <p>4. Reserving Special Exception to Charge.</p> <p>Where a charge correctly states the general rule of damages applicable to the case, if any particular part is objectionable, a special exception should be reserved. Sec. 5298, Rev. Stat.</p>

<p>Heard on Error.</p>

<p>EJECTMENT — CONSTITUTIONAL LAW.</p> <p>1. Ejectment — Will not Lie Where Possession Cannot be Claimed.</p> <p>A suit in ejectment, cannot be maintained where there is an outstanding title (property had been leased for an unexpired term), for the reason that under such circumstances the right to immediate possession cannot be claimed.</p> <p>2. Act 86 O. U., 270, Does not Apply to Existing Causes.</p> <p>The act of April 12, 1887, 86 O. U., 270, to amend the act of March 28> 1888, providing a commission to establish boundaries and lines of canals, etc., of the state, by accurate survey, cannot under the rule that laws have prospective, not retroactive, operation be applied to causes of action existing at the time of the passage of the act.</p> <p>3. If Retroactive, Would be Unconstitutional.</p> <p>If the act of April 12, 1887, 86 O. U., 270, above referred, should be held to apply to a cause of action existing at the time of its passage, the law would be in contravention of Sec. 28, Art. 2 of the constitution, providing that the general assembly shall not pass retroactive laws, and Sec. 19, Art. 1 of the bill of rights providing that private property shall ever he held inviolate.</p>

<p>Heard on Error.</p>

<p>MASTER AND SERVANT.</p> <p>1. Generar Rure as to Liabirity oe Landrord.</p> <p>A landlord or the owner of a building, of which his tenant has exclusive possession, is not liable to third persons for injuries resulting from defects in the property unless there is some contract or arrangement varying this liability.</p> <p>2. Freight Erevator — Used by Emproyes — Duty oe Inspection.</p> <p>An elevator is in many respects a dangerous machine and though it may primarily be intended only as a freight elevator, yet if employes, in the course of employment are authorized or permitted to use the elevator as a means of transportation, the employer using or controlling the operation of the elevator is required to exercise care and caution, both in the. construction and operation of the machine to render it as free from danger as careful foresight and precaution may reasonably dic.tate.</p> <p>3. Emproyer’s Fairure to Respect — Liabirity.</p> <p>The lessee of a store room on the third floor of a building, having the use of an elevator, is liable as an employer for injuries sustained by an employe in the performance of his duties, by reason of defects in the cable of the elevator (which cable, in case at bar, broke, and the elevator dropped to the cellar, and caused the injuries complained of), where it appears that no inspection of such elevator was made by the employer, and that had a reasonable inspection been made the defect would have been discovered.</p> <p>4. No Defense That he Does not Have Furr Contror.</p> <p>An employer having leased the third floor of a building cannot avoid his duty and responsibility as such to his,employes, and refuse to inspect or neglect to make examination of the condition of the machinary of an elevator of which he has the use, and which he requires or permits employes to use, by the claim that he did not lease the elevator and did not control that portion of the building where the propelling power was located.</p> <p>5. Emproyee Does not Assume Risk, When.</p> <p>An employe, in the absence of knowledge of defects, who is required or permitted to use an elevator in a building leased by his employer, in conveying goods to the third floor, and who is permitted or directed to ride in such elevator, while in the performance of such duties, does not assume the risk of injury resulting from his employer’s negligence in not performing his duty as an employer to furnish safe machinery and a safe place to work. And in the absence of directions to the contrary, the employes of such person would be justified in riding up and down in such elevator, in the'performance of their duties, and would have a right to assume that it would be safe for such purposes.</p> <p>6. Questions Within Province oe the Jury.</p> <p>The question as to settlement of a claim for personal injuries having been submitted to the jury upon evidence of the defendant that the complainant accepted in settlement thereof the payment of full wages while he laid was up and his subsequent employment, the receipt of wages and employment being admitted by plaintiff, but denied as having been received in settlement of his claim, and employe having refused to sign a written agreement to that effect, a reviewing court will not disturb the verdict of the jury, finding against the employer.</p>

Heard on Error. This case was tried to a jury and resulted in a verdict for tbe plaintiff, Corcoran, for the sum of $>9,500.

<p>Heard on Error.</p>

<p>WILLS — EXECUTORS—TRUSTEES.</p> <p>1. General Rule as to Executors and Special Trustees.</p> <p>To constitute the person named in a will as executor a special trustee, separate and apart from his office of executor, it is not enough that the powers granted to him, or the duties imposed upon him in relation to a particular fund, be such as are usual in the course of ordinary administration; it must also appear that the intention was to withdraw the particular trust from the management and control of the executor as such, and to create a separate office for its management; and this must appear in the face of the presumption that every provision made in the will for the management of the estate, and every part thereof before it passes into the hands of the beneficiary, was intended as a direction to the executor in his official capacity.</p> <p>2. General Rule as to Acting in Both Capacities.</p> <p>Where an executor is to be held as acting in both capacities, as executor and as trustee, it must plainly appear that such was the intention of the testator. The executorship itself is a trust, and every provision in the will regarding the management of the assets, before they pass out of the executor’s hands, into those of the beneficiaries, will prima facie be held as coming within that trust; and the contrary intention must be made plainly to appear. As a general rule, the duties of the executor as such, are co-extensive with the provisions of the will; and it is only in cases of unmistakable intention, or of inherent necessity, that a separate character will be assigned to him.</p> <p>S. Rule Where it is Difficult to determine Character of the Trust.</p> <p>Where the provisions of a will are so close to the border line that separates the office of trustee from that of the executor that it is difficult to determine to which class the office belongs, the general rule, above stated, resolves the question in favor of the view that the duty, or trust, devolves upon the executor or the trustee as executor, by virtue of his office as executor.-</p> <p>4. General Rule Subject to Qualifications.</p> <p>The general rule that where there is a devise or bequest to an executor in trust, the executor receives the property or fund at once as trustee, and the same never becomes assets, is subject to the qualifications, first, that if. needed as assets the title of executor is superior to that of trustee, so that the former may take, use and account for the samé as assets; and, second, if the property is not reduced to the form or condition in which it is to be distributed as trust property, .the duty of thus transforming it may devolve upon and be exercised by the executor as such; and this will be the case unless the will distinctly provides that this duty shall devolve upon the trustee as such. In such cases, the same person being both executor and trustee, he will not take in the latter capacity until he has fully discharged his duties in the former capacity, and not until the fund or property has been distinctly set apart as trust property.</p> <p>5. Rules Applied in Eavor of Executorship.</p> <p>Under a will, devising an estate consisting of both real and personal property, which, after directing payment of debts and funeral expenses, makes bequests of personal effects to relatives and friends, and certain sums of money to executors in trust, and then devises, “ all my real and personal property of every kind and nature, save as specifically devised, to said above named executors, in trust for the execution of my will,” with full power of sale, etc., in which case the property could not be at once applied to the purposes named in the will, the title which such executors take devolves upon them as executors, and their relations to the estate as trustees do not arise until the estate has been reduced to money and everything has been brought to a pass where nothing remains but to distribute and invest the funds as provided by the will. .</p> <p>6. Letters or Administration Necessary in Such Cases.</p> <p>Under the will in question the executors may proceed to sell the property, real' and personal, without any special order or license of any court other than that contained in ordinary letters of administration, but the titles and powers being vested by virtue of executorship, they must take out letters of administration.</p> <p>7. Letters When Administration not Necessary — Not Void.</p> <p>Though it may not be strictly necessary and though its propriety or expediency may be doubtful or open to criticism, yet if authorized, the action of' the court in granting letters of administration cannot be regarded as void or erroneous.</p> <p>8. Full Credit to Judgments in Other States.</p> <p>Under Sec. 1, Art. 4, of the constitution of the United States, requiring that full faith and credit be given in each state to the public acts and judicial proceedings of every other state, the courts of Ohio are bound to recognize the judgments of the courts of Michigan upon the accounts of executors where such courts have jurisdiction in the premises, as conclusive upon matters involved therein, and as foreclosing any collateral inquiry into the same matters.</p> <p>9. Executors Reports op Domiciliary and Ancillary Administration.</p> <p>Where an executor has accounted, as he may be required to do, for so much of the estate as was located in another state, under ancillary administration there, the requirements of a general accounting in the court of domiciliary or principal administration, is fully met by reporting to such court the fact of the accounting in the court of such other state, together with the judgment of the proper court of such state approving the accounts, and by accounting to the domiciliary court for the balance due to the estate according to the judgment of the court of the state of ancillary jurisdiction.</p> <p>10. Statement Upon Erroneous Assumption or Law.</p> <p>A statement made by an executor in an application for letters of ancillary administration in Michigan, that an appeal had been taken from the order of probate in Ohio, which resulted in a delay in the appointment of himself and hiS colleague, based upon an erroneous assumption as to the effect of the laws of Ohio upon an appeal from such an order, where it does not appear to have been made knowingly or wilfully, does not constitute a false statement or one which will render the appointment invalid.</p> <p>11. Error — Exceptions by One Party Available by Another.</p> <p>Exceptions by one party to the disallowance of exceptions to the accounts of an administrator in the probate and common pleas courts, are available in behalf of other parties who, in common pleas court, are allowed to come in and are recognized as excepting to such accounts. Such parties have, therefore, a right to prosecute error through such exceptions.</p> <p>12 Error — Exceptions to Executors Accounts — In Rem.</p> <p>Proceedings in error upon disallowance of exceptions to accounts of executors, are not, as a rule, in personam, but in rem, and, if regular, are binding upon all persons equally, whether they are personally present to take part in the controversy, or hold themselves aloof; and this rule applies to judgments in an ancillary administration in another state as well as to judgments in the domiciliary administration in Ohio.</p> <p>13. Invalid Objection to Allowing Such Proceedings.</p> <p>Under the foregoing rules, an objection to allowing persons who first became parties to a proceeding in error to the disallowance of exceptions to the accounts of an administrator in the court of commou pleas to prosecute error in the' circuit court upon exceptions by other parties in the lower courts, on the ground that the original parties were parties to a contest of such accounts in an ancillary administration in another state, and that the parties who came in subsequently were not, and that judgments which would be res judicata, as to original parties would not be so as to the others, is not tenable or valid; and particularly where the objections urged are upon the ground that the courts were without jurisdiction in the ancillary administration, which, if true, would render the judgment void as to all parties.</p>

<p>Heard on Error.</p>

<p>CONTEMPT — IMPRISONMENT.</p> <p>1. Injunction Enforced Against Persons not Parties to the Suit.</p> <p>A person having actual notice of an injunction is amenable thereto, although not a party to the suit in which it was issued. Therefore, where an injunction was granted restraining a manufacturer of flour from dressing and labelling bis goods by certain ornamental designs and labels in imitation or similar to certain others, it is a violation thereof for persons who were agents of such manufacturer and had knowledge of the injunction, to sell flour upon their own responsibility under a design made by themselves which violates such injunction; and they .are liable: in contempt without an original proceeding for an injunction.</p> <p>2. Section 5581, Rev. Stat., is Penal — Construed Strictly.</p> <p>Section 5581, Rev. Stat., providing for the enforcement of injunctions, and imposing a fine for its violation payable to the county, and imprisonment until the fine is paid, is penal in its nature and should he construed strictly, against the party bringing the proceeding to enforce it.</p> <p>2. Imprisonment for Failure to Pay Costs Illegal.</p> <p>A court bas power, under Sec. 5581, Rev. Stat., providing for the enforcement of injunctions, to impose imprisonment for failure to pay a fine, adjudged in a proceeding in contempt, but a judgment imposing imprisonment until both fine and costs are paid is illegal, inasmuch as the order to pay costs amounts simply to a judgment for money and the constitution provides that there shall be no imprisonment for debt in civil actions, except for fraud. •</p> <p>4. Judgment Modified and Reversed — Costs.</p> <p>A judgment in a proceeding in contempt imposing fine and costs and imprisonment until both are paid will, on error, be modified so as to provide for the imprisonment for the non-payment of the fine and reversed as to the costs, and requiring the costs on the error proceeding to be paid one-half by each party.</p>

<p>LIENS.</p> <p>1. Vendors’ Liens — Mechanics’ Liens — Mortgages—Priority.</p> <p>A vendor’s right to be paid the balance of the purchase money is superior to the lien of a material man; and if the xormer, for a valuable consideration, before a judicial sale Ox >ne property, conveys the legal title to another, the latter becomes vested with the rights and interests of the vendor, and the lien of such original vendor, where the property is mortgaged by his vendee, passes to the mortgagee. Mutual Aid B. & L. Co. v. Gashe, 56 Ohio St., 27¿>, followed.</p> <p>2. Same — Rule of Priority Applied.</p> <p>Under the rule that a vendor’s lien, by virtue of subsequent conveyance to and mortgage by vendee, passes to the mortgagee, the latter, where property was sold for part cash down and the balance to be paid in installments, and vendor conveyed to vendee to enable him to mortgage and . borrow money to build on the property, and who absconded after obtaining money by mortgage, in a suit to marshal liens, is entitled to priority to the amount of the vendor’s lien as against the holders of mechanics’ liens, though the latter attached prior to the execution of the mortgage.</p> <p>3. Agreement to Postpone Vendor’s Lien to Mortgage.</p> <p>An agreement by such vendor with the mortgagee of his vendee, that he would postpone his vendor’s lien to the mortgage, does not extend to mechanics’ liens or defeat the priority of the vendor’s lien in favor of the mortgagee.</p> <p>4. Vendor Receiving Mortgage Money and Paying to Vendee.</p> <p>The fact that the vendor of land for which the purchase price had not been paid’, who had executed deeds to enable the vendee to raise money to build on the property, received the mortgage money and paid it over to the vendee, who absconded shortly after, without paying his creditors, does not make the vendor responsible therefor to holders of mechanics’ liens.</p> <p>5. Money Paid on Another Contract — Not Available.</p> <p>Where such vendor, after conveyance to and mortgage by his absconding vendee, received from the latter certain sums of money, proceeds of the mortgage, to apply on another contract, the money so received cannot be deducted from the amount of the vendor’s lien or reached in case at bar.</p>

<p>Heard on Error.</p>

<p>NEGLIGENCE — TRIAL.</p> <p>3. Rule as to Directing Verdicts.</p> <p>Where there is no dispute in regard to the facts in a case and can be no dispute upon the testimony, it is proper for the court in its discretion to direct the jury to return a verdict for the defendant, the only question being one of law as to whether there was any actionable negligence or liability on the part of defendant.</p> <p>2. Employer and Employee — Negligence.</p> <p>Where an employee in an iron foundry, whose duties required him to go to and from a cupola, was familiar with conditions and accustomed to go back and forth in daylight and after dark, he cannot recover for injuries received from falling while descending from the ladder to a platform, on the ground that the lights were turned out just as he was in the act of swinging upon the ladder. An employer owes his employee nothing more than ordinary care, and under circumstances stated cannot be held to have been guilty of negligence. The court, in this case, was justified in directing a verdict for defendant.</p>

<p>FEES — COUNTY OFFICERS.</p> <p>Additional Compensation to County Officers.</p> <p>The services performed on the decennial county board of equalization, under the Hendley-Royer law, by the auditor, county surveyor and county commissioners are without the scope of their official duties as such, and are not so “incident” or “germane” to the regular duties of the offices to which they have been respectively elected, as to make the provision for compensation contained in the Hendley law, in contravention of the act of the legislature, 94 O. L., 396, or of the constitution, Art. 2, Sec. 20.</p>

Heard on Error. 1. The action not being upon the attachment bond was necessarily an action for malicious prosecution. 2.. Being an action for malicious prosecution the original court (the J. P.) had no jurisdiction. 3. The original court having had no jurisdiction an appellate court would have none on appeal.

<p>DEBTORS AND CREDITORS.</p> <p>Debtors and Creditors — Bill op Sale — Parol Evidence Varying.</p> <p>A bill of sale absolute upon its face may be shown by parol evidence In an action at law for damages to have been intended as a mortgage and given as security for a debt, without showing fraud on the part of the creditor obtaining it.</p>

<p>HAMLETS — ROADS AND STREETS — STREET RAILROADS.</p> <p>Power of County Commissioners to Grant Franchise in Hamlet.</p> <p>The county commissioners have no power to grant a franchise to a street railway company over the streets and roads in a hamlet, and cannot maintain an action to enjoin the construction of the road in violation of the terms thereof. The exclusive jurisdiction over such streets is vested in the trustees of the hamlet, under Sec. 1651, Rev. Stat.</p>

<p>EXEMPTION — JUDGMENT.</p> <p>1. Waiver of Right to Claim Exemption.</p> <p>Where an order in aid of execution, under Sec. 6680, Rev. Stat., upon a judgment was in force at the time of the rendition of a judgment for damages in favor of the judgment debtor, directing payment of a certain sum to the creditor on the first judgment, if the judgment debtor is entitled to the amount recovered in the last judgment as exempt in lieu of homestead, he should proceed according to law to secure it, that is by modification of the original or by a new order which will prevent payment under the original order in aid of execution; and if he neglects to do so until after the money has been paid upon such judgment he cannot subsequently claim it.</p> <p>2. Judgment Creditor Stands in Relation of Garnishee.</p> <p>A judgment debtor, who, at the time a judgment was rendered, was directed by an order in aid of execution to pay a certain sum to the judgment creditor in another action, stands in the relation of a garnishee and the mere fact, without legal assertion of the right, that the money on the second judgment might be claimed as exempt in lieu of homestead by the judgment debtor, would afford no defense to a failure to comply with the original order in aid of execution.</p> <p>3. Assigning Judgment — Defeats Claim to Exemption.</p> <p>A judgment debtor, under circumstances above stated, who, instead of claiming the money due under the judgment as exempt by proper legal steps, immediately assigns his judgment for damages, does not thereby defeat the operation of the order in aid of execution, and cannot subsequently claim the money paid under it as exempt or direct its disposition in favor of another creditor.</p> <p>4. Agreement to Refund — Not a Trust, When.</p> <p>An agreement by attorneys for the judgment creditor in the original action that if the judgment debtor should recover against the judgment debtor in the second action, on account of payment to the judgment creditor under the order in aid of execution on the first judgment, that they would indemnify him or restore the money so paid', does not establish a trust in favor of the judgment debtor against which he can assert his claim to exemptions.</p>

<p>Heard on Error.</p> <p>Jury: 90 111., 363.</p> <p>The rule of damages in such 'a case: James v. Allen Co., 44 Ohio St., 226, 6 N. E., 246.</p> <p>To constitute a substitution: Wood on Master and Servant, page, 106; 16 Penn. St., 196; Mechem on Agency, Sec. 625; Clark on Cont., pp. 187, 192 and 612; Thurston v. Ludwig, 6 Ohio St., 1; Greenleaf on Ev„ 394 (14th Ed).</p> <p>Not sufficient evidence of a new contract: See Wood on Master and Servant, pp. 306, 307, 268, 269, 205; 1 Beach on the Modern Law of Cont., 86-94; and especially on page 778 and cases cited; Amer. Ency. of Law, Vol. 14, pages 772-797 (1st Ed.), Pension, Sec. 3897b.</p> <p>No right to diminish teachers’ pay: Sec. 4017, Rev. Stat.</p>

<p>LANDLORD AND TENANT — NEGLIGENCE.</p> <p>1. Rule as to Liability foe Negligence.</p> <p>In an action for personal injuries brought by the tenant of a building against the owner thereof and her agent, for negligence in failing to keep a cellar door closed, the liability of the owner rests upon her ownership, and the liability of the agent upon actual participation in the wrong.</p> <p>2. Photograph to Describe Premises in Evidence.</p> <p>A photograph of premises where an accident occurred which appears to be substantially correct and which is used by witnesses on both sides in describing such premises in the presence of the jury, and introduced in evidence and submitted to the jury as an exhibit, must be regarded as evidence, and not merely upon the footing of a view of premises by a jury.</p> <p>3. Omission oe Photogp.afh Fatal to Bill of Exceptions.</p> <p>A reviewing court is not, therefore, at liberty to consider a case on error upon the question of the weight of evidence where it appears that a photograph of certain premises, used for the purpose of describing such premises, and introduced in evidence as an exhibit, is not attached to the bill of exceptions, although the bill contains the usual certificate that it contains all the evidence submitted to the jury.</p> <p>4. Exception to Rule Requiring All the Evidence.</p> <p>In some cases, where it has been made fairly to appear from the bill of exceptions that certain evidence has been lost and such fact is certified by the trial court before whom the bill of exceptions was made up, it has been held that the reviewing court may consider the record in determining the weight of evidence notwithstanding the omission of such evidence.</p> <p>6. Presumption that Evidence was Material.</p> <p>In the absence of evidence to the contrary, it must be presumed that evidence admitted was competent and material and it is necessary that the immateriality of the evidence omitted must be disclosed or the omission thereof will be fatal.</p>

<p>Heard on Error.</p>

<p>GAS AND OIL LEASES.</p> <p>1. Grantee Charged With Notice by Possession in Operating eor Oil.</p> <p>Where the owner of land permitted her husband and his partner to enter upon-the premises and operate the same for oil, without a written lease, and without reservation of interest, rent or royalty, the firm being permitted to receive the entire production, and to hold themselves out to the world as owners thereof, and being in absolute possession of the premises at the time of a sale thereof by the wife, her grantee is charged with notice, not only of rights which a mortgagee of the oil business may have acquired, but of rights which were acquired against grantor by estoppel; and grantee takes the premises subject to such rights.</p> <p>2. Not Tenants at Will — Mortgage Succeeds to Rights Acquired.</p> <p>Where the owner of lands permitted her husband and his partner to enter into possession of the premises, without written lease, reservation of rent or royalty, and operate the same for oil, being permitted to receive the entire product, such firm was not merely a tenant at will, but acquired a right in equity to compel the owner of such propertv to execute a lease or grant, conveying the usual rights and interest which are conveyed by such instruments and a mortgagee of such firm succeeds to the rights thus acquired.</p> <p>8. Evidence oe Reservation Though not Contained in Deed.</p> <p>In an action by the grantee of the land in question for rent and royalty, evidence that there was a reservation in fact of the oil, is competent notwithstanding the deed contained no such reservation, particularly where it appears that the grantor and her husband at the time of the conveyance expected that the mortgage of the oil interests would be paid off and that the rights would revert to them.</p> <p>4. Claim as Between Original Parties — Does not Aeeect Successors.</p> <p>The fact that as between the owner on the one part and her husband and bis partner on the other part, there was an understanding that she was to receive a rental, affords foundation for a claim against them, but does not in any way affect the rights of mortgagees of the partners without notice or their successors in interest, or the title acquired by estoppel.</p>

Heard on Error. cited: The affidavit filed with the magistrate is defective in the following particulars, to-wit: First. It does not state the kind, value, or ownership of the property taken. Redmond v. State, 85 Ohio St., 81; Wharton's Crim. Law, Sec. 1223; Spencer v. State, 13 Ohio, 401. Second. It does not state that the property was obtained by reason of the alleged pretenses. Kennedy v. State, 34 Ohio St., 310, 314; Wharton’s Crim. L-, Sec. 1227. Third.

<p>Heard on Error.</p>

<p>SCHOOLS- CONSTITUTIONAL LAW.</p> <p>J. Law Relating to Schools are oe a General Nature.</p> <p>Laws relating to the subject matter of education and the efficiency of our public school system, both from the vital interest which all people of the state ’ have in them, as well as from the provisions of Sec. 2, Art. 6 of the constitution, are of a general natnre.</p> <p>. Act 94 O. L., 539, Unconstitutional.</p> <p>The act of April 10,1900, 94 O. L., 539, providing for the creation of a pension fund for the pensioning of teachers in city districts of the second grade of the first class, and making it the duty of the treasurer of the board of education in such city to reserve ten per cent, of teachers’ salaries for such purpose, is within the inhibition of Sec. 26, Art. 2 of the constitution, providing that all laws of a general nature shall have uniform operation throughout ifii" state, and is invalid, there being but one such city in the state.</p> <p>3. Section 6 of the Act Excludes Other. Cities From Class Named.</p> <p>Section 6 of Act 94 O. D., 539, relating to the creation of a teachers’ pension fund in cities of the second grade of the first class, in providing that the first . election to the retiring board therein provided for, shall be held in September, 1900, determines the fact that no other city which is not of the class and grade named in the act at that time could ever come within its provisions, and, therefore, renders the law unconstitutional as lacking uniform operation throughout the state.</p> <p>4. Cannot be Upheld as'•Beneficial to School System.</p> <p>The law in question, being applicable to but one city in the state, cannot be upheld on the ground that it adds to the efficiency of the public school system, in making provision for teachers who, during long years of service, have given their best efforts to the betterment of society. That argument bears directly upon and supports the proposition that the .law is of a general nature and should have uniform operation throughout the state.</p> <p>5. Rules of Board of Education not Creating Conditions.</p> <p>The fact that there are certain rules employed by the board of education of the city within the class named in the law in question, not in force in other places, does not so create conditions different from those in other parts of the state as justify or uphold the law.</p> <p>6. Mandamus Dies to Compel Payment of Full Salary.</p> <p>Mandamus will lie to compel the treasurer of the board of education of Cleve-. land to pay one who is employed as a teacher in its public schools the full amount of salary due him, without deducting any part thereof for the pension fund authorized by act 94 O. D., 539, the law being unconstitutional.</p>

<p>Heard on Error.</p>

<p>MASTER AND SERVANT.</p> <p>1. Employee With Knowledge Cannot Charge Negligence.</p> <p>A porter employed in a club house for several years and familiar with the surroundings, cannot in an action against the club for personal injuries from falling down an elevator shaft, charge it with negligence in failing to light a passage-way to the shaft, or to provide appliances to keep persons from entering the shaft, when the elevator was not there, or in the want of any rule as to the operation of the elevator, or of signals to indicate when the elevator was removed, when these facts were known to him at the time of his injuries.</p> <p>2. Rules Habitually Broken — Evidence.</p> <p>Where such case was tried by plaintiff on the theory that the rules of the club forbidding its employees to ride on an elevator were habitually violated with the knowledge of the club, it is not prejudicial error to permit an employee ' to testify that the managers of the club had told him not to allow the men to ride thereon.</p> <p>3. Same.</p> <p>In such action it was error to refuse to permit plaintiff to testify that it was his practice to ride up and down on the elevator sometimes when loaded and sometimes when empty, to the knowledge of his foreman, and that the rule forbidding riding on the elevator was habitually broken.</p> <p>4. Same — Erroneous Instruction.</p> <p>A refusal to charge in such action, that if the jury should find that defendant could have avoided injuring plaintiff, he could recover, though negligent, was proper.</p> <p>5. Same — Proximate Cause.</p> <p>If, in such case, plaintiff’s negligence contributed to his injury, which would not have happened except for defendant’s negligence, such contributory negligence will not defeat the action unless it was the proximate cause of the injury.</p> <p>6. Court may Reeusb to Submit Questions — Sec. 5201, Rev. Stat.</p> <p>The particular questions of fact contemplated by Sec. 5201, Rev. Stat., requiring the court, upon request of either party, to submit questions to the jury, for special findings, are such that the answers to them will establish ultimate and determinative facts, and not those which are only of a probative character. Therefore, where the questions are not such as will enable the court, in the application of the law, to determine the rights of the parties, and are those which simply tend to prove them, the court may refuse to submit them.</p>

<p>CHATTEL MORTGAGES — ERROR.</p> <p>1. Assignee of Mortgagee May Replevin From Bona Fide Purchaser.</p> <p>An assignee of a chattel mortgage is not compelled to present his claim to and be paid out of funds in the hands of the receiver of the mortgagor, arising from the sale of the mortgaged property; he may replevin the mortgaged property though the same is in the possession of a bona fide purchaser at such sale, who is without notice of his claim.</p> <p>2. Evidence in Receivership Proceedings Inadmissible.</p> <p>In an action to try the right of property replevied by the assignee of a chattel mortgage after, the same had been sold to a bona fide purchaser without notice, at a sale by the receiver of the mortgagor, evidence of the proceedings taken by the receiver in selling the property was properly refused, it not appearing that the holder of the mortgage was a patty to the action of the receiver, and therefore was not bound by anything that was done therein.</p> <p>3. Assignor of Chattel Mortgage — Subsequent Acts Will Not Defeat.</p> <p>The doctrine that any one who takes a chattel mortgage as assignee during the first year and before it is due, and before it is time to renew it upon the records, may be cut off from rights he has under that mortgage, by the actions of the mortgagee, his assignor, (consenting to receivership in case at bar) is a dangerous one and does not exist in law. Where an owner has parted with his property, and given title to another, he can make no admissions that will bind his vendee. ,</p> <p>4. Claim of Usury May be asserted Against Assignee of Mortgagee.</p> <p>A chattel mortgage is a chose in action and is not negotiable paper, and does not so adhere to the notes which it secures as to become transferred with them so as to cut off equities of the mortgagor. Therefore the mortgagor has the right to set up usury against the assignee of a chattel mortgage, the notes not being sued upon, notwithstanding the mortgage was transferred before due and without notice of usury.</p> <p>5. Question Not Denied — Scintilla Rule.</p> <p>A reviewing court will not say a verdict is contrary to the evidence where there is no contradiction of the question in issue, though the evidence containing the proposition is so slight and uncertain that it is a mere straw on which to hang the verdict.</p> <p>6. General Verdict — Rule as to Reversal.</p> <p>A reviewing court will not disturb a general verdict if there is sufficient evidence to sustain it upon either of the two propositions, either of which would warrant the verdict.</p>

<p>CORPORATIONS — CONTEMPT.</p> <p>1. Duty of Corporation for Profit — Fairure to Perform — Equity.</p> <p>The object and purpose of a corporation for profit is to make money. Therefore, it is the duty of its directors, as trustees for the stockholders and for each of them, to use the capital of the corporation, for the purpose of producing profits, and their failure so to do may be inquired into by a court of chancery.</p> <p>2. Stockhorder may Ascertain Cause of Fairure of Dividends.</p> <p>While the law permits a board of directors of a corporation in their discretion to keep money on hand for specific or certain purposes, the general rule is that stockholders are entitled to a dividend from the profits. Therefore, a stockholder has the right to demand that if profits are made by the company that they shall be awarded to him, that dividends shall be declared, and if no dividends are declared to ascertain the reason why.</p> <p>8. Inspection of Books in Making Such Inquiry.</p> <p>It is a prima facie rule of law that purchasers of stock in a corporation have the right to invoke the aid of a court of equity to compel the transfer of such stock upon the books of the company, to be permitted to examine its books and to make inquiry into the affairs of the corporation, to the end that their rights be protected, especially where it appears that the corporation was a successful, dividend paying company at the time of such purchase, but since, • and for several years, has paid no dividends, and it is alleged that it is being managed in the interests of a rival company.</p> <p>4. Power to Punish for Contempt — Secs. 6906, 6907 and 5290, Rev. Stat.</p> <p>The inherent power of courts to enforce their orders by summary proceedings in contempt is not abridged by Secs. 6906, 6907, Rev. Stat., which provide for securing attendance of witnesses, and this power is equally applicable to cases under Sec. 5290, Rev. Stat., relating to production of documentary evidence (books and papers of a corporation in case at bar) because, if it is necessarv to the determination of a case to require the production of papers and documents, it is just as essential that it be done as it is that a living witness should be produced and heard upon the stand.</p> <p>6. Circuit Court has Power to Punish Fairure to Produce Books, etc.</p> <p>The Supreme Court having held in Hale v. State, 55 Ohio St.. 210 [45 N. B. Rep., 199, 60 Am. St., 691, 36 X. R. A., 254], that the general assembly has no power to and that Secs. 6906, 6907, Rev. Stat., do not abridge the power of courts to secure the attendance of witnesses, the circuit court has the right, independent of statute, to proceed as for contempt for disobedience of an order on a corporation to produce certain books and papers or documentary evidence for inspection.</p> <p>6. Officers of Corporation Acting Under Orders — In Contempt.</p> <p>The secretary and general manager of a corporation, of which the principal directors are nonresidents and not within the state, is deemed in possession of its books and p ¡pers, and his refusal to obey an order of court directing an examination thereof is contempt of court for which lie may be imprisoned notwithstanding he may be acting under the orders of his superiors.</p> <p>7. Petition in Error Does not Delay Inspection — When.</p> <p>A stockholder in a corporation, having been granted leave to inspect the books oí the corporation for the purpose of ascertaining its financial condition, has the right to proceed at any time thereafter to make his demand on its secretary and acting manager, and if the request is refused, to make an application to the court for proceedings as for contemnt, and the filing of a petition in error or other pleadings in the Supreme Court should not delay proceeding under such order unless delayed by regular order from the proper court as in supersedeas.</p> <p>8. Disputes in Inspection Should be Referred to the Court.</p> <p>Where, under an order of court granting an examination of the books and papers of a corporation, a dispute arises as to the right of the parties to inspect any books or paper, that matter should be brought before the court by the party making the objection to the examination.</p>

<p>On motion for order of inspection and copy. v</p>

<p>Heard on Error.</p>

<p>PARTNERSHIPS — ADMINISTRATORS.</p> <p>1. Administratrix -of Deceased Partner — Pacts Necessary to Charge; as Partner.</p> <p>In order to charge the administratrix of the deceased member of a partnership, as a member thereof, and liable as such for the payment of certain claims-against the firm, it is necessary that an agreement in the nature of partnership contract should appear, although it need not be in writing.</p> <p>2. Promise to Pay Certain Claims — No Subsequent Liability.</p> <p>The fact that from the circumstances and manner in which a business was carried on there was some holding out of a partnership relation between the administratrix of a deceased member of the firm and surviving copartners, but which was in fact merely a co-operation of the administratrix, under a. mistake as to her duty, in carrying out on behalf of the estate a contract previously made by the decedent with the firm, and the obligations of which she aided in fully discharging, is not sufficient to establish a partnership as against the undisputed and positive declarations of the administratrix and members of the firm, that no such relation existed, and the trial court, upon a verdict finding that, as to claims subsequently arising, such a partnership actually existed, improperly refused to grant a new trial.</p> <p>5. Such Promise Amounts Simply to a Guaranty.</p> <p>The statement of an administratrix that she would pay or see that certain labor claims connected with a business in whjch her decedent was a partner were paid, would simply amount to a guaranty, and not to holding herself out as a member of such partnership, or as being so jointly interested in the business-as to justify her being held as a principal.</p> <p>4. Must be in Writing and Sued Upon.</p> <p>And if the promise referred to amounted to a guaranty by an administratrix to-pay certain claims of a partnership in which her decedent was a member, it cannot be enforced unless it is in writing, nor unless sued upon. Such a promise is not available in an action based upon averments that the administratrix was, by agreement or otherwise, a member of the partnership.</p> <p>6. Rule as to Creating Partnership Liability.</p> <p>■ The holding out, in order to create liability as for partnership debts, must be-of a character to fairly give reason to believe that a partnership exists. And in this case, in order to make the administratrix liable, it must have been a holding out that she was personally a partner and jointly interested personally. A reliance upon the magnitude of the estate, or upon any promise which the administratrix may have-made, that she would settle claims, etc., would not have the effect of creating a partnership, particularly where it does not appear that creditors were deceived as to the authority of the administratrix, and they are as much bound to know the law upon that subject as she.</p> <p>6. Declarations Which do not Estop.</p> <p>Declarations made by such administratrix after the completion of the work do not bind her upon the theory that she held herself out as a partner and was estopped from denying the existence of such relation, for in order to give rise to an estoppel there must have been reliance and performance upon such declaration by the persons whose claims are asserted.</p> <p>7. Statements by Agent or Attorney.</p> <p>Statements of the attorney of an administratrix that she was intending to come down and settle the estate of her decedent, and would see all the claims against a partnership of which he was a member in the performance of work undertaken before his death, were paid, and in giving assurance that the work would continue to be paid for, do not amount to representation of a partnership by the agent; and if such statements were sufficient, they would impose no such liability on the administratrix unless it appeared that they were made in her presence or upon her authority.</p> <p>8. Question of Estoppel not Involved Below not Reviewed.</p> <p>In an action against the administratrix of a deceased member of a partnership in which such administratrix and surviving members of the firm are charged with being partners, the reviewing court will not consider the question of estoppel against the administratrix, because of her acts and holding herself out as a partner, to deny existence of partnership, where there is no averment of such a state of facts in the petition and no such question was presented to the jury.</p>

<p>NEGLIGENCE.</p> <p>1. Boys Riding on Hand Car for Pleasure — Not a License.</p> <p>The fact that boys of immature age have been accustomed to ride on a hand car of a railway company, for their own pleasure, by the consent and invitation of the section foreman, although continuing at irregular periods, for over a year, is not sufficient to constitute a license upon the part of the company to so use the hand car, when .the rule of the company prohibits such use to the knowledge of the foreman, in the absenc.e of a showing that some one of the managing officers of the company had actual or constructive knowledge of such permission and use.</p> <p>2. Company’s Liability — Same.</p> <p>Where a boy, fifteen years of age, requested the section foreman to permit him to accompany the section men upon a hand car, which was about to go down the track to bring in a signal, which request the section foreman granted, and the boy was injured by falling from the car, while assisting in propelling it, no recovery can be had on the ground that the section men permitted the boy to assist in propelling the hand car, and in so doing, to stand in a dangerous place, without at least a showing that the section men wilfully and intentionally caused the injury.</p> <p>3. Whether Company Owed Any Duty, Quaere?</p> <p>Whether the company owed any duty, or was responsible at all in such a case, quaere.</p>

<p>IMPRISONMENT — HABEAS CORPUS.</p> <p>1. Imprisonment — Indigent Convict — Sec. 1028, Rev. Stat.</p> <p>Where an indigent convict is sentenced to remain in the county jail until fine and costs are paid, the refusal of the county auditor to order a discharge from imprisonment in the exercise or the power conferred upon him by Sec. 1028, Rev. Stat., does not furnish-a legal ground for discharge of the convict upon habeas corpus. In re Calvin B. Moore, 7 Circ. Dec., 575 (14 R. 237), not followed.</p> <p>2. Sentence — Omission oe “ or Secured to be Paid.”</p> <p>Where the sentence under Sec. 7327, Rev. Stat., omits the clause “ or secured to be paid,” such omission does not render such sentence void. If such omission is material, it is only an irregularity or informality and furnishes no valid ground for a discharge upon habeas corpus.</p> <p>3. Person Bawfueev Imprisoned — Supposed Injustice.</p> <p>When a convict is lawfully imprisoned, such convict cannot be discharged on habeas corpus on the ground that some supposed oppression or injustice will result from said imprisonment.</p>

<p>Heard on Error.</p>

<p>OIL AND GAS LEASES.</p> <p>1. Ore, and Gas Lease is oe Productive Land Only.</p> <p>A lease for oil and gas purposes, providing that “ if gas only is found second party agrees to pay $100 in advance each year for the product of each well while the same is being used off the premises ” is a lease of productive territory only. If the first well drilled is productive, there is an implied agreement upon the part of the lessee to drill other and a sufficient number of wells to develop the whole territory, but if the first well is unproductive, the lessee is not required to drill a second well or pay rental for any well.</p> <p>2. Supplemental Contract Reviving Original Lease.</p> <p>Where lessee, after the lease in question had become void by failure to drill a well-within the time specified, paid the rental and agreed to immediately drill a well, and within six months to drill a second one, such contract is not an independent agreement to drill the wells, but is supplemental and should be construed with the original lease. The lessee’s duties and liabilities are,, therefore, to be determined by the rules above stated.</p>

<p>Heard on Error.</p>

<p>NEGLIGENCE — RAILROAD COMPANIES.</p> <p>1. Failure to Provide Saee Place to Work.</p> <p>Neglecting to remove cars from a track upon which an approaching train is directed to enter railroad yards after dark constitutes a failure to discharge the duty incumbent upon a railroad company of furnishing a safe place for its employees to work.</p> <p>2. Negligence oe Fellow Servant and Superior Combining.</p> <p>Where the negligence of a superior servant or officer and that of a fellow servant combine and the two together cause the injury, the master is liable.</p> <p>3. Duty Which Cannot be Delegated to Escape Liability.</p> <p>Where a duty that the master is required to perform in the way of furnishing a safe place to work, or safe and sufficient appliances or machinery, is delegated to a servant, such servant stands in the place of the master. The master cannot delegate such duty and thus protect himself against negligence.</p> <p>4. Rules Applied — Railroad Company Liable.</p> <p>Where the assistant general yard master of a railroad company directed the division yard master to remove cars from a certain track, which would be required for an approaching train, and the latter failed to comply with such order and sought to warn the engineer of the approaching train by leaving word with a switchman, the latter is not a fellow servant of a brakeman on such train, but stands in the relation of the master; and .where such switchman failed or forgot to notify the engineer, and by reason of such failure the approaching train, entering the yards after dark and under a signal that everything was all right, collided with the cars in question, the railroad company is liable for resulting injuries to a brakeman.</p>

<p>Heard on Error.</p>

<p>OIL AND GAS LEASES.</p> <p>1. Consideration in Gas and Oil Lease.</p> <p>The consideration of one dollar in an oil and gas lease is sufficient to sustain the grant of the privilege to the lessee of entering on the leased land for a specified period, to drill for oil and gas.</p> <p>2. Mutuality in Gas and Oil Lease.</p> <p>That in such lease the lessee did not expressely promise on his part to fulfil the terms of the contract of lease, will not avoid the lease for want of mutuality, as, if within the specied term, the lessee entered upon the lands and exercised the privileges granted and found oil or gas in paying quantities, the law will infer a promise on his part to fulfil the terms of the lease.</p> <p>3. Same — Clause Modifying Habendum Clause.</p> <p>A provision in an oil and gas lease for the term of two years, and as long thereafter as oil or gas is found in paying quantities, not exceeding in the whole term twenty-five years, that “ in case no well shall be drilled on said premises within two years from the date hereof, this lease shall become null and void unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled,” is not void as being inconsistant with the habendum clause, or as being against public policy, and confers upon the lessee the right to keep the lease alive as against the lessor for a reasonable time after the expiration of the specified time of two years, by tendering the specified yearly rental.</p> <p>4. Same — Extension of Time a New Contract — Recording.</p> <p>Under such lease the payment at the end of two years of the additional sum per acre and the obtaining of further time to drill for oil and gas, would constitute a new contract or license, which would be void as against a subsequent lessee without actual notice, unless recorded, or unless the first lessee was in actual possession of the land leased.</p>

<p>INSURANCE — FIRE.</p> <p>1. Fire Insurance — Assignment—Parol Evidence may Vary.</p> <p>An assignment, absolute in form, of a policy of insurance against loss by fire, may be proved by parol evidence to have been given and accepted as collateral security for a debt due from the assignor to the assignee, though the fact that the assignment was intended as collateral security was not communicated to the insurer.</p> <p>2. Assignment as Security Valid, When.</p> <p>An assignment of a policy of fire insurance, absolute in form but intended as collateral security for a debt due from the assignor to the assignee, is valid, and does not avoid the policy, where such an assignment is not prohibited therein, and no misrepresentation of facts is made to the insurer, its assent being given without inquiry.</p> <p>3. Assured and Mortgagee may Join in Suit.</p> <p>Where a policy of fire insurance contains a clause making loss, if any, payable to the mortgagee in case of fire, and assured afterwards, not observing such clause, transfers such policy to the mortgagee, by assignment absolute in form, but intended simply to indemnify the mortgagee in case of 'loss, the assured and the mortgagee may join in an actiou upon such policy.</p>

<p>ERROR — NEW TRIALS.</p> <p>1. Judgment oe Circuit Court Shoudd Guide Triad Court.</p> <p>The decision of the circuit court reversing the judgment of the common pleas-for error of law in refusing a new trial upon the ground that the verdict was against the weight of the evidence, is the law of the case until the facts are changed either by additional evidence material to the issue or the judgment of the circuit court reversed by the superior court. Therefore, where, upon a retrial of the case, the record shows that it was submitted upon precisely the same evidence as before, it is error for the trial court to refuse to direct the verdict in favor of the plaintiff in error in consonance with the law of •the case as laid down by the circuit court, and also to refuse a motion for a new trial for insufficiency of evidence, the verdict being the same as before.</p> <p>2. Section 5305, Rev. Stat., Appdies to Triad Court.</p> <p>Section 5306, Rev. Stat., as supplemented 93 O. U., 217, providing that the same court shall not grant more than one new trial on the weight of evidence-against the same party in the same case, is for the regulation of new trials in the trial court.</p> <p>3. Circuit Court May Reverse on Weight oe Evidence a Second Time.</p> <p>Where the trial court has overruled a motion for a new trial upon the weight of evidence and the circuit court has reversed the judgment because of the error in overruling such motion, the circuit court is not precluded by the clause of Sec. 5306, Rev. Stat., as supplemented 93 O. D-, providing that the same court shall not grant more than one new trial upon the weight of evidence, from again passing upon all errors appearing on the record,, including the one that the verdict is not sustained by sufficient evidence.</p>

<p>JOINT JUDGMENTS.</p> <p>1. Appearance Presumed to be General.</p> <p>An appearance will be taken to be general unless tbe contrary appears.</p> <p>2. Joint Liability.</p> <p>L was in the possession of a fund, the proceeds of property sold on commission, in' which property G and D claimed interests, to the knowledge of L; D had admitted to L that the money could not safely be paid to D or G without the consent of the other. L paid the money to D without G’s knowledge or consent, G having established his interest in the property and claim on the fund, he is held entitled to judgment against L andD.</p> <p>8. Joint Judgment.</p> <p>Where the defendants are both liable for acts done in connection with the same transaction and to the same extent and amount, a joint judgment is proper.</p>

<p>DOWER.</p> <p>Release oe Dower in Favor, oe Creditors.</p> <p>Where a wife in consideration of the scaling down of the claims of certain of her husband’s creditors and an extension of time on the amounts so reduced, has joined in a trust deed, releasing her dower and said trust deed had been construed by the court under Sec. 6343 Rev. Stat., 56 O. L., 231, to inure to the equal benefit of all creditors as a general assignment, to the extent of the amounts of the claims intended to be covered by said trust deed, the wife’s release of dower is operative ; as to the other general creditors, it is not.</p>

The stockholders in this case were quite numerous, some residing in and some out of the state. Held: however, that it was error for the common pleas court to proceed until all of the stockholders, at least those within the jurisdiction of the court, were brought in.

<p>Heard on Error.</p>