Volume 11 — Ohio Nisi Prius Reports, New Series

<p>PEDESTRIAN STRUCK BY AUTOMOBILE AT STREET CROSSING.</p> <p>Negligence — Woman Alighting from a Street Car Struck by an Automobile as She Passed Around the Bear End — Law of the Boad as Prescribed by Statute — Cincinnati Ordinance Invalid Because Unreasonable — Application of the Buie of Ordinary Care — Questions of Negligence and Contributory Negligence Where the Automobile Was Out of Its Proper Course and the Injured Woman Failed to hook in -the Direction From Which it Was Approaching — Charge of Court — Burden of Proof.</p> <p>1. In the absence of any legislative provision in the law of the road, applicable to vehicles .passing each other where both are going or headed in the same direction, the common law rule of ordinary care obtains, bearing in mind the general rule of keeping to the right and the usages and conditions of the time and place.</p> <p>2. The Cincinnati ordinance, regulating the use of automobiles and motor vehicles on the streets, alleys and park driveways of the city, is probably invalid because unreasonable, in so far as an arbitrary and unqualified rule of going to the left is prescribed for vehicles going or headed in the same direction; but assuming the contary, it is still true that neither this ordinance nor Section 6310, General Code, give to a vehicle the right to pass to the left of a street car which has come to a standstill to discharge passengers on a wide, w§ll improved and much traveled street upon which there is a double track street railway, in the center of such street.</p> <p>3. When an automobile attempts to pass a standing car by turning to the left, it should be so managed as not to imperil one who is leaving the car and whose whole attention in the exercise of ordinary care may be occupied with the ordinary dangers in the form of cars and vehicles rightfully approaching from the opposite direction.</p> <p>4. Failure of a woman, .alighting from a str et car and passing around the rear end, to look for an automobile approaching from an unexpected direction does not as a matter of law leave an unrebutted presumption of negligence on her part; and, acting under instructions requiring ordinary care on the part of both, the determination of the July as to where the negligence lay was one peculiarly within their province, and the evidence does not require that the finding be disturbed.</p> <p>5. Negligence or contributory negligence on tne part of a plaintiff are two entirely different matters, when considered as a defect in plaintiff’s case, or as an affirmative defense; and where the court in its general charge instructs the jury as to what would constitute negii gence on the part of the plaintiff, failure to charge as to such negligence from the standpoint of contributory negligence is not error when the issue of contributory negligence as a defense is not raised or not clearly raised by the pleadings, and counsel for the defendant although asked by the court in regard thereto expressly declined to request that such a charge be given.</p>

<p>PROSECUTION FOR MALICIOUS DESTRUCTION OF PROPERTY.</p> <p>Criminal Law — Probate Court Without Jurisdiction In a Case of Malicious Destruction of Property, When — Acting on Legal Advice May be Shown Where Malice' ,is Charged — ■Right of Church Trustees to Protect the Church Property — Arraignment of Defendant Necessary in a Criminal Prosecution — Error in Charge of Court —Sections 10020 and 10021..-</p> <p>1. Inasmuch as malicious destruction of property Is a félony if the property destroyed is of the value of one hundred dollars or more, the probate court is without jurisdiction over a cause where the defendant is so charged.</p> <p>2. Where malice is an essential ingredient of the offense, as for instance where the defendant is charged with the malicious destruction of a line fence, it is error to deny to him the privilege of showing to the jury that he acted on legal advice.</p> <p>S. It is also error to charge the'‘jury, in an action against trustees of a church for removing a fence supposed to divide the church property from the adjoining land, that they had no right to remove the fence unless they were'the owners of the property individually; or to refuse to charge that they should be found not guilty, if it appeared that they had a right in the premises, as trustees on account of long use of the land by the church.</p>

<p>JUSTIFICATION OF SLANDER..</p> <p>Slander — Time, Place and Persons Present Need Not he Pleaded — Averment of Justification TVorlcs an Aggravation of Damages, When— Verdict of $5,000 Reduced to $500 — Charge of Court.</p> <p>1. In an action for slander it is not material that the time, place and persons in whose presence the slanderous words were uttered should be alleged in the petition.</p> <p>2. The plea of justification by the- defendant, followed by an entire failure to offer any evidence in support of the truth of the charges uttered, is not consistent with -the theory of good faith or an honest belief on the part of the defendant in the truth of the charges and constitutes an aggravation of damages.</p> <p>3. Where the slanderous words were spoken to a priest and in the presence or hearing of no one else, and were not repeated, and grew out of a family dissension, and counsel for plaintiff had stated during the trial that they would be satisfied with a verdict of $1,000, a verdict for $5,000 is excessive, and a new trial will be granted unless the plaintiff consents to a reduction of the verdict to $500.</p>

<p>LIABILITY OF PROPERTY FOR. DEBTS.</p> <p>Conveyance — By Father to Daughter Not in Trust for Father, When— But Must he Regarded as Transferred in Fraud of Creditors, When.</p> <p>1. A statement by a business man at the time of making a conveyance of property to his daughter, to the effect that the business in which he was engaged was subject to fluctuations’ and he desired to put the title to this property in such shape that it would afford a home for himself and his children in case anything unfavorable happened • to him in his business, is not inconsistent with the theory that the conveyance was to the daughter absolutely, and not to her in trust for himself.</p> <p>2. But where it appears that at the time of the conveyance he was in an insolvent condition, and indebtedness existing at that time remained unpaid at the time of his death, the conveyance to the daughter must be regarded as in fraud of such pre-existing creditors.</p>

<p>ACTIONS AGAINST RECEIVERS.</p> <p>Receivers — Discretion of the Court in Granting Leave to Sue — Causes Involving Damages Can Not he Determined hy the Conscience of the Chancellor — Time <md Form for Filing Action.</p> <p>An application for leave to sue a receiver will be denied, where the application seeks to file his action in another jurisdiction, and his claim is for damages, and he has delayed making application unt-il the property has been sold and distribution is about to be ordered.</p>

<p>CITY LIABLE FOR. INJURY TO ONE STEPPING INTO AN EXCAVATION IN A PARK.</p> <p>Municipal Corporations — Control of Paries Not a Governmental Function —Municipality Liadle for Injuries Sustained in a Parle dy One Exercising Due Care — Section 8114.</p> <p>1. A decision on demurrer may be reviewed by another judge of the same court before whom the case has come for trial on the merits, in order that error, if any has occurred, may be eliminated from the record.</p> <p>2. A municipality in acquiring and maintaining public parks acts in a private rather than a governmental capacity, and is liable for negligence in keeping the pathways in such condition that injury results to one rightfully in the park and exercising due care.</p> <p>3. But if it be true that holding and maintaining of public parks by a municipality is done in its private capacity rather than as a governmental function, Section. 3714, General Code, may be construed as including parks under the heading of “public grounds,” and therefore as imposing the same obligation upon the city with reference to public parks as with reference to streets and bridges.</p>

<p>CONSTRUCTION OF A DEVISE AFFECTING TITLE.</p> <p>Title — Question of, Where Property Has Descended by Will — Heirs of the Body Of .a Life Tenant Construed to Mean Children — Such a Construction Necessary Where All the Words of the Will Can Not Otherwise be Given Effect — Remainder in Children of the Life Tenant and Not in Heirs by Descent to Take in Succession.</p> <p>Under a devise “to my said son” of the undivided one-half of certain real estate, “to have and to hold the said property for his life, and the remainder over at his death to the heirs of his body, their heirs and assigns forever share and share alike.” the children of the said son of the testatrix are seized with a fee simple title.</p>

<p>ACTIONS AGAINST DEFUNCT CORPORATIONS AND THEIR TRUSTEES.</p> <p>Corporations — In the Hands of Trustees Under Quo Warranto .Proceedings — Venue of Action Against — Summons—-Jurisdiction—Construction of Sections 12828 and 12829.</p> <p>Jurisdiction may be obtained over a defunct corporation in an action brought in a county other than the one in which its principal place of .business was located, but such jurisdiction does not extend to the trustees individually who are administering the affairs of the corporation, and a motion to quash the service as to the trustees individually will lie.</p>

<p>PLEADING WHERE'CUSTOM IS RELIED ON.</p> <p>Negligence — Collision of Interurban Cars — Injured Motorman Relied on Custom, But Failed to Plead It — Status of Cause After Reversal by Circuit Court of Judgment for Pl&mtiff. ■ ■</p> <p>In an action for damages for personal injuries, a, plaintiff depending on. custom as a justification for the course which he pursued and which resulted in the accident, should plead the custom relied on and make it an issue.</p>

<p>EQUITABLE LIEN FOR. ATTORNEYS’ FEES.</p> <p>Attorney and Client — Lien of Attorney for Services Rendered — Under-an Agreement for a Certain Proportion of the Amount Recovered —Pleading.</p> <p>1. An agreement between attorney and client, such as is set out in the petition in this case, operates as an equitable assignment to the attorney of the agreed portion of the judgment thereafter obtained as compensation for services rendered in that behalf, and gives to the attorney an equitable lien on the proceeds from the settlement of said matter.</p> <p>2. In pleading such a contract between attorney and client, it is not necessary to allege whether or not the contract was in writing, or if in writing to attach a copy thereof to the petition, but only to allege the substance of the contract.</p>

<p>THE HOWLAND ACT CONSTRUED.</p> <p>Fire Insurance — Promise of Solicitor that Provision of Policy Against Other Insurance Shall he Waived — Not Binding ■ on the Company, When — Buies of the Common Law Not Abrogated by the Howland Act — Section 9586.</p> <p>1. The Howland act, providing that any person who solicits insurance and procures an application therefor shall be held to be the agent of the company thereafter issuing a policy on such application, anything in the policy to the contrary notwithstanding, was not • intended to give to a mere solicitor of insurance all the powers of a general agent, or to change the rules of the common law as to the authority of an agent to bind his principal.</p> <p>2. Where it does not appear that a solicitor of fire insurance was authorized to waive the provision of the policy against other insurance, or that the agents who wrote the policy consented to such a waiver or had knowledge that other insurance had been placed on the same property, a petition for a reformation of the policy so as to provide for such waiver will be denied.</p>

<p>KEEPING SALOONS OPEN DURING A TIME OF TUMULT OR. RIOT.</p> <p>Criminal Law — Constitutionality of Section 12806 — ■Issuance of Proclamation Thereunder hy Mayor — Fot a Delegation of Legislative Power — But a Determination of Pact Which Puts the Law Into Operation.</p> <p>1. Section 12806, in so far as it provides that when the mayor of a city determines the fact of the existence of tumult, riot, or reasonable apprehension thereof, he may issue a proclamation against the keeping open of any saloon until the proclamation shall be withdrawn, and providing punishment for the violation of such a proclamation, is constitutional and_ valid.</p> <p>2. Where the evidence shows that one who has been brought to trial under this statute violated such a proclamation, and that there was at the time of the issuance of the proclamation a tumult, riot, or reasonable apprehension thereof, a conviction must be upheld notwithstanding no proof was offered of knowledge on the part of ■ the accused of the issuance of the proclamation.</p>

<p>INJUNCTION SECURED BY A BIDDER. AGAINST ACCEPTANCE OF HIS BID.</p> <p>Bids and Bidding — Right of a Bidder to Relief When He Finds He Has Made a Serious Mistake in His Figures — Contracts'—•Rescission— Injunction.</p> <p>where a bona fide bidder for public work in good faith submits a bid which is based on a mistake in measurements which would involve him in serious financial loss were he to do the work for the amount . named, the minds of the parties have not met, and he. can not be compelled to execute the proposed contract, notwithstanding the terms upon which the bid was submitted provided that it should not be withdrawn; and injunction will lie on the' petition of the bidder to restrain the board having charge of the contract from accepting the bid and insisting that he execute the contract or subject himself to an action for damages.</p>

<p>CONTROL BY A MUNICIPALITY OF RATES FOR. ELECTRICITY.</p> <p>Electrical Franchise — Control of Rates Thereunder hy the Municipality —Terms of Franchise May he Enforced hy Injunction — Unlawful Devices for Increasing Rates — Charges for “Readiness to Serve” —Schedule of Discounts.</p> <p>1. The acceptance from a municipality of an electric franchise carries with it an obligation to furnish electric light and power agreeably to the provisions of the ordinance and the law, and specific performance of 'the obligation thus incurred may be enforced by the municipality through the medium of a mandatory injunction, or at least an injunction may be obtained against violation of the obligations thus assumed.</p> <p>2. Furnishing electricity and payment therefor are parts of the same transaction, and complaint will not lie against an ordinance on the ground that both subjects are covered by its title.</p> <p>3. The power of a municipality to fix a maximum rate for electricity includes the power to fix a maximum rate for varying quantities used, and this power is not improperly exercised when it is so exercised as to permit of a reasonable profit to the lighting company.</p> <p>4. Inasmuch as a reasonable return on the whole investment is presumed to have been contemplated by council when it fixed the rates, an additional charge of seventy-five cents per month for “readiness to serve,” or any other device for increasing the total sum collected from the consumer, can not be maintained.</p>

<p>PROSECUTION OP A SUPERINTENDENT OF PUBLIC WORK FOR. FRAUD.</p> <p>Criminal Law — Sufficiency of Indictment Under Section 12918, Relating to Fraud, by a Superintendent of Public Worlc — Intent—Aider and Abettor May be Indicted Jointly or Separately.</p> <p>1. It is unnecessary to charge criminal intent in an indictment under a statute which does not make intent an essential element of the offense defined in the statute.</p> <p>2. Charging in the indictment that one knowingly and unlawfully permitted a thing to be done is sufficient under a statute which makes it unlawful to knowingly permit the thing to be done.</p> <p>3. An indictment is not indefinite and vague which charges that the defendant permitted “slag cement” to be used on a public improvement instead of “Portland cement,” and which avers that the specifications call for the “best grade of Portland cement” and that “slag cement” is a different material from “Portland cement.”</p> <p>4. An aider and abettor may be indicted jointly with the principal offender or separately as for a substantive offense.</p>

<p>JURISDICTION OVER. GARNISHEE.</p> <p>Attachment — Premature Action Against Garnishee — But Judgment May be Taken Against Garnishee in Such a Oase by Consent.</p> <p>1. An action will not lie against the - garnishee in an attachment case before the discharge of the attachment.</p> <p>2. But where the defendant garnishee consents that judgment shall be rendered against him without waiting for the discharge of the attachment, judgment will he entered notwithstanding the premature filing of the suit, hut will not include interest where the question of the liability of the defendant for interest is controverted.</p>

<p>VOID CONTRACT FOR. “EXTRAS” FOR A SCHOOL BUILDING.</p> <p>Public Contracts — Advertising for Bids for Work and Material Mandatory Upon All Public Boards — ■“Urgent Necessity” Defined — Excuse for Failure to Advertise Not Afforded Thereby, Unless — Bec- . tion 7683.</p> <p>1. Failure of a board of education to advertise for bids for “extras,” which have become necessary for the completion of a high school building under a contract theretofore awarded, renders void a contract for the supplying of such extras, unless an urgent necessity existed for completion of the work without the delay incident to advertising for the submission of bi'ds.</p> <p>2. Whether failure to comply with a statutory requirement with reference to public work may be excused by “urgent necessity” for an early completion' of the work must he determined from the circumstances of the particular case.</p> <p>3. The necessity for the completion of a high school building, which was already in use by some of the pupils who found ingress to the building without passing through the main corridor where the work in question remained to he done, did not present such a case of “urgent necessity” as to release the parties from the necessity of advertising for bids for the customary period in the statutory manner.</p> <p>4. Advertising for bids for public work is not merely directory as to boards of education, but is mandatory as to all public boards.</p>

<p>ACTIONS AGAINST RESIDENT AND NON-RESIDENT JOINT DEBTORS.</p> <p>Parties — Where the Action is Against Joint Debtors One of Whom, is a Non-Resident — Summons—Partnership.</p> <p>In an action against partners,-one of whom is within the jurisdiction of the court and the other is not, both should he made parties, and a return of “not found” made as to the non-resident, after which the action may proceed and judgment he taken against the resident partner.</p>

<p>LIABILITY OF ASSIGNOR. FOR. RENT FOR. ASSIGNED REAL ESTATE.</p> <p>Assignments for the Benefit of Creditors — Assignee, not Chargeable for Rent of the Real Estate Assigned, When. .. .</p> <p>It is the business of an-, assignee to sell and not to let the premises as- • ■ signed, and where the assignor continues to occupy the assigned property as a dwelling and makes some repairs, and no rent was collected from him, and the assignee was reasonably expeditious in effecting a sale of the property, he is not chargeable for rent for the period the property was in his hands.</p>

<p>COMPUTATION OF TIME IN APPEALS FROM JUSTICES’ COURTS.</p> <p>Appeal — Time for Perfection of, from Justices’ Courts — Common Law Rule Abrogated — Sections 6105 and 4951, Revised Statutes.</p> <p>Where a judgment is rendered by a justice of the peace on the 21st day of the month, an appeal which is filed on the 31st is within time. ■ •</p>

<p>PROSECUTIONS FOR. SELLING LIQUOR. IN DRY. TERRITORY.</p> <p>Tenue — Bule as to Necessity for Proof of, in Criminal Cases Somewhat Relaxed — Criminal Responsibility of One in Charge of Place Where intoxicating Li'quor is Sold in Dry Territory.</p> <p>1. A trial judge will not set aside a verdict of guilty because of failure to establish venue, where the proof was to the effect that the offense charged was committed in the city in whicn the judge resides and has' resided for many years, but failed to name the county and state.</p> <p>2: In a prosecution for selling intoxicating liquor, in “dry” territory, a verdict of guilty will not be set aside for lack of proof that the defendant was the owner or lessee of me place where the liqudr was sold, when the evidence established that he was in the custody, care, control and management of the place.</p>

<p>WARRANTY OF MACHINERY.</p> <p>Warranty — Failure of,- as a'Defense — Buyer and Seller Deal at Arms Length — Seller’s Praise — Failure of Buyer to.Examine Property— Examination by Third Party .Long Subsequent Not Competent .to ■ .Shorn Failure,of Warranty...-. , ■ ; . • . ...</p> <p>...Where.machinery, s.old under- warranties .and,,t.o -be delivered.on cars at place" of sale,'is'three months' later, ordered’ ’forwarded 'to a third ’'" party,' a" 'customer• of'the purchaser;' -who-upon'^examtaation" finds that it is in bad condition and refuses to pay for it, the testimony of this third party as to the condition in which the machinery reached him is incompetent in an action by the original seller against the first purchaser for the agreed price, where there has been a failure to show what care the machinery had during the three months interval.</p>

<p>VALIDITY OF AN AWARD BY ARBITRATORS.</p> <p>Arbitration — Objection to an Arbitrator on the Ground of Partiality— Irregularity in the Hearing of Testimony — Waiver—Burden of Proof as to the Manner in which the Arbitration was Conducted —When an Agreement to Arbitrate Ma/y be Revoked — What Constitutes a Revocation.</p> <p>1. Where one of the parties to an arbitration objects to the finding on the ground that the arbitrator denied his request that witness be called as to certain matters in dispute, the burden is upon him to establish the fact of such refusal.</p> <p>2. The burden is also upon the objecting party to show that when he gave notice that he “wouldn’t stand for any such doings” he meant to revoke his agreement to submit to an arbitration, and not that he intended to merely declare that he would not stand by the award.</p> <p>3. The arbitrators constitute the tribunal in the matter of an arbitration and a revocation of the agreement to arbitrate is not effective unless it is delivered to all the arbitrators.</p> <p>4. Where the agreement to arbitrate does not specify that the finding must be in writing, the award must be considered as made at the time the arbitrators agreed as to what it should be, notwithstanding one of the arbitrators subsequently reduced the finding to writing, and the revocation of the agreement to- arbitrate is too. late when notice thereof is not given until after the arbitrators have come to an agreement and the objecting party has become aware what finding will be made.</p>

<p>DAMAGES FOR MALPRACTICE.</p> <p>Physician and Surgeon — Liability of, for Unskillful Treatment of Patients — “Average” Skill and “Ordinary” Skill Equivalent Terms —Evidence—Charge of Court — Words and Phrases.</p> <p>1. In an. action for damages on account of failure on the part of the defendant physician to exercise due skill and care in the treatment of the plaintiff, it is not error to admit the testimony of a physician of recognized professional standing as to what constitutes proper, usual and approved treatment of wounds.</p> <p>2. It is within the discretion of the court for good reasons and in the furtherance of justice to- permit a witness to testify on rebuttal as to facts which properly should have been brought out in chief.</p> <p>3. The law implies a promise on the part of a physician to treat his patient in a proper and skillful manner, and a charge of court ■ based oh such an implied promise is not erroneous.</p>

<p>SUABILITY OF SURETIES ON BOND OF STATE TREASURER., n</p> <p>Sureties — Liability of, on the Bond of a State Treasurer — Where Public Funds Were Unlawfully Loaned and Interest Accepted Thereon as a Gratuity — Unlawful Acts Distinguished from Those Merely Unofficial — Measure of the State’s Damages — Liability of Sureties Go-extensive with that of the Principal.</p> <p>The condition of the bond of a state treasurer that he “shall, during the term of his office, faithfully discharge the-duties imposed upon him by law to the best of his knowledge and belief,” renders his sureties liable for the wrongful and unlawful loaning out by him of funds in his custody belonging to the state, notwithstanding subsequent compliance by him with the- other condition of the ■bond to “turn over and deliver to his successor in office, or any other person entitled thereto, all money and other properties coming into his custody as treasurer, as required by law.”</p>

<p>REMEDY OF CREDITORS OF A” DECEDENT WHERE PARTITION IS SOUGHT.</p> <p>Estates of Decedents— Partition May be Filed at Any Time, but Decree Must be~ Delayed for One Year — Remedy of Creditors of Estate where Partition is Prayed— Section 12028.</p> <p>Where an answer, in a proceeding to partition the realty of a decedent, alleges that there is not sufficient personal property to pay the debts, the court will permit the action to go to decree after the lapse of the statutory period from the death of the decedent, and upon distribution will order that a sufficient amount of the proceeds from the sale be turned over to the administrator to pay the indebtedness of the estate as certified by the probate court.</p>

<p>PROSECUTION FOR. HAVING POSSESSION OF A FISHING NET.</p> <p>Game and Fish-7-3aving Net in Possession a Misdemeanor — Intent— Venue — Jurisdiction of Justice of the Peace and His Reasonable Discretion — Section 1J/26, Relating to Possession of Fishing Nets.</p> <p>1. Where a defendant is charged with having in his possession a fish: ing net contrary to the provisions of Section 1426, General Code; a justice of the peace has jurisdiction to hear and determine the case himself and it is not error for him to refuse to grant a jury trial.</p> <p>2. Whether the justice should grant a change of venue because he is himself a material witness is a matter for his own determination, and his reasonable discretion fn that behalf will not be interfered with where it appears to a reviewing court from an examination of .the evidence that the only testimony which the justice- could have given would have been cumulative.</p> <p>3. It is not material in such a ca-se that the affidavit charge or the evidence establish that the defendant’ had the net in his possession for the purpose of catching fish.</p>

<p>PROSECUTION OF A TEACHER FOR. WHIPPING A PUPIL.</p> <p>Torture — What the Affidavit Charging This Offense Must Allege — Malice, Actual or Implied — ■State of the Law in Ohio as to the Punishment of Pupils by Teachers — Section 6084a, Revised Statutes.</p> <p>1. In a prosecution for torture, the offense is insufficiently described by an affidavit charging unlawful, willful or cruel torture, even though aided by the words by “beating.and striking said person with a stick.”</p> <p>2. Before a school teacher can be convicted under the law of Ohio of torture in the punishment of a pupil, the. state must show that the punishment administered was immoderate and excessive, and the teacher was actuated by malice express or implied, and the punishment must have been of such a nature as to produce or threaten to produce lasting or permanent injury; and testimony to the effect that the teacher had been reasonably patient with the pupil and had talked with him and reasoned and temporized with him when the same offense had been committed- on former occasions, and the punishment was with a stick on the legs and all evidence of it disappeared within a few days, is not sufficient to support a conviction of torture.</p>

<p>TITLE TO REAL ESTATE OF A LONG MISSING ADOPTED DAUGHTER..</p> <p>Title — Presumption of Death: of an Heir Unheard of for More than Seven Yeairs — Rights Under Mortgages Executed by the Widowed Foster Mother — Estoppel—Subrogation—Resulting Trust — Statute of Limitations.</p> <p>1. Title to property left by foster parents is not extinguished by the mere fact that the adopted child has been absent and unheard of for eleven years, notwithstanding the estates of the parents have been administered upon their decease during the intervening period.</p> <p>2. In süch a ease the adopted daughter retains .her interest in real property left by her foster father, as against a mortgage executed ■ by her foster mother after becoming a widow, an accounting having first been made in favor of the mortgagee for the v.alue of the widow’s dower and any resulting trust in her favor.</p> <p>3. A claim by tbe executor of the widow for a balance due him on account of costs and debts paid .may be asserted against the equitable interest of the widow in the land, but not against the interest of the adopted daughter.</p>

<p>OBSTRUCTION OF JUSTICE BY LIBELOUS UTTERANCES.</p> <p>Contempt — Utterances Against o Judge and Grand Jury,May Be Sum± marily Punished, When — Function of a Committee Appointed by. the Court to Malee Inquiry as to a Supposed Contempt — Common,. Law Rule with Reference to Contempt — Constitution of English and American Courts — Not Necessary to Prove Actual Obstruction of Justice, if the Utterance Complained of “Tended” to Obstruct the Due Administration of Justice — When a Criminal Prosecution Becomes a “Pending” Cose — Section 12188.</p> <p>1. A committee appointed hy the judge of a court to ednsi'der and ascertain whether a certain person has been guilty of contempt of . court, acts in an advisory capacity only, and the report of its conclusions and recommendations will be either adopted or rejected by the court according as they may be founded on facts and sound law.</p> <p>2. It is not the duty of such a committee to report as to whether the evidence is of such a character that a conviction can probably be obtained, or to ascertain the rules of evidence applicable to the case, but it should confine itself to a finding as to whether there is reasonable and probable ground for believing that the person named has been guilty of contempt.</p> <p>3. A criminal prosecution becomes a “pending” case from the moment the indictment is returned into court, and the rules of law applicable to pending cases are thereafter applicable to such a proceeding.</p> <p>4. A judge of the common pleas court may punish summarily as for contempt' one guilty of uttering or publishing false and libelous matters of and concerning the judge and grand jury, if it appear that the utterance- complained of tending tó obstruct the due .administration’ of justice. ■</p>

<p>AN UNCONSTITUTIONAL PROVISION AS TO SUBROGATION.</p> <p>Employers’ Liability Insurance — Injured Employe Not Entitled to Subrogation to Rights of Employer, Until — Retroactive Legislation —Section 6510-4 Unconstitutional.</p> <p>1. ' Where, under a policy of employer’s liability insurance, the employer has no right of action against the insurance company on account of injury to an employe until he has paid in money the ¿mount of .the judgment recovered, the employe can not be subrogated to .the rights,-of the employer against the company.'</p> <p>2. T,he provision of the supplement to Section 9510, enacted April ..30,. 1910," giving the. right of subrogation to an employe under a judgment recovered by him against his employer for an ' '■ i injury,- -is-'retroactive as -to recoveries had prior to the date of its ■:. i'.-enactment,- ¿hd.as.to such recoveries is unconstitutional and void.</p>

<p>DAMAGES FOR. FALSE REPRESENTATIONS.</p> <p>Building Contracts — Liability of Owner for False Representations to a Sub-contractor — As to the Amount Remaining Due to the Principal Contractor — Privity in Tort — Presumption that the False Representations Were Made to Induce the Sub-contractor to Complete the Work.</p> <p>An action for damages for false representations will lie where brought by a sub-contractor against the owner of the building whereon the sub-contractor performed labor and furnished materials upon the faith' of representations made by the owner to the. sub-eontraetor that there was money enough on hand to pay all the bills and leave the general contractor a nice profit, whereas hut a very small sum remained due to the general contractor as the owner well knew, and the general contractor was insolvent.</p>

<p>STALE RIGHTS OF BENEFICIARIES UNDER AN OLD TRUST DEED.</p> <p>Property Conveyed in Trust — Explanatory Paper, Contemporaneously Issued, Lost — -Reconveyance by Trustee to Grantor — Survival of Bights in Heirs of. the Cestui Que Trustent — Stale Rights — Statute of Limitations.</p> <p>1. A trust contingent upon the arrival of the beneficiaries at their majority is terminated by the deaths of the beneficiaries before reaching their majority.</p> <p>2. Where property was conveyed in trust by a father to one of his sons in 1863, and in 1865 was reconveyed by the son to his father, and in 1871. one-half of the same parcel was again conveyed by the father to the same son but in fee simple, and the son at once went upon the property and has remained in possession ever since, it is too late forty years thereafter for heirs of the cestui que trust under the first deed to assert title under said deed.</p>

<p>MISCONDUCT THAT DOES NOT WORK PREJUDICE.</p> <p>Attorney and Client — Breach of Duty on the Part of Counsel in Going Outside of the Record in Argument to the Jury — Not Ground for Setting the Verdict Aside, When.</p> <p>While it is breach of duty for an attorney to go outside of the record in his remarks to the jury, such an act does not warrant the setting aside of the verdict, where the sole issue was as to the value of certain legal services, and the misconduct of counsel manifestly had no effect upon the jury as shown by the fact that the verdict returned was for only half the amount asked whereas the evidence would have warranted a finding for the full amount.</p>

<p>INCONSISTENT CAUSES OF ACTION.</p> <p>Pleading — In an Action on an Express Contract There Can he No Recovery on Quantum Meruit.</p> <p>In a suit on an express contract a motion to strike from tbe petition a ground of action wbicb is inconsistent with the allegations that the parties entered into an express contract should be sustained.</p>

<p>VALIDITY OF A LOCAL OPTION ELECTION.</p> <p>Election Under Jones Law• — Providing that Traffic in Intoxicating Liquors May Be Prohibited in a Residence District — Construction of the Phrase “Qualified Electors” — Description of Residence District Sufficient, When — Sections 4861, 4863, 6068 and 6158.</p> <p>1. The right to vote has its source in the Constitution of the state, an'd the statute requiring registration in no way qualifies that right. It follows therefore that the phrase “qualified electors,” as used in the statutes relating to local option elections, must be construed to mean an elector who is qualified to register within the proposed residence district, and not in the more restricted meaning of one who is not only qualified t'o register but actually has registered. ' 1 '•</p> <p>2. -A local option election is not invalidated by reason of the insufficiency of the description of the "residence district” involved therein, where there is a map. of the proposed district attached to the petition, and the description of the district by enumerating certain voting precincts presents no more difficulty ■ with reference to venue than would be encountered in a prosecution for illegal voting.</p>

<p>TIME FOR. BRINGING ACTIONS FOR. WRONGFUL DEATH.</p> <p>Limitations of Actions — Where Damages we Sought for Wrongful Death —Saving Clause of Section 11238 Not Applicable — Section 10112-3 Contains Its Own Limitation.</p> <p>The limitation contained in oection 10773, tnat every action cased on a claim for wrongful death shall he brought within two years, is a part of the right of action itself and not merely a limitation on the remedy; and the saving clause of Section 112.S3, relating to causes commenced or attempted to be commenced in due ume but which have failed for some reason other than on the merits, is without application in such a case.</p>

<p>ACTION FOR. DAMAGES AGAINST A CITY CONTRACTOR./ AND HIS SURETY.</p> <p>Municipal Corporations — Action for Breach of Contract for Building a Sewer — Plea of Conformity With Provisions of the Burns Law Not Necessary, When — Optional Whether a City Shall Complete an Abandoned, Contract by Lay Labor or by a New Contract or by Both Methods.</p> <p>1. In an action on the bond of the contractor for a sewer improvement, the cdst of which is payable by special assessment on the abutting land, the petition is not subject to demurrer for failure to allege the certification, as required by Section 3806, General Code, that funds sufficient to meet the cost of the proposed improvement are in the treasury and unappropriated, where the petition avers the passage of the resolutions and ordinances prescribed by Section 3878 et seq., the advertising for bids, the letting of the contract, default by the contractor, notice to his sureties and " proceedings by tbe city 'to- complete tbe contract; but' it is sufficient in sucb a case if the petition allege that the bonds to pay the entire cost of the improvement has been authorized.</p> <p>2. A' provision in a contract for a public improvement authorizing the municipality, upon default of- the contractor, to complete the work either by day labor or by contract as it may elect, is an option to complete the contract in either manner,.or partly by one method and partly by the other; and the fact that after the abandonment of the job by the contractor the city began to do the work by day labor does not preclude the reletting of the work remaining to another contractor, especially where further material will be required to complete it.</p> <p>3. The formalities and requisites of an original letting are not nec- ' essary in. the case of the reletting of a contract for the completion of a public improvement after default by the original contractor.</p>

<p>MEASUREMENT OF THE DISTANCE PUPILS MUST TRAVEL TO SCHOOL.</p> <p>Schools — Transfer of Pupils to the nearest Public School — How the Distance Should be 'Measured — -Section '11S5.</p> <p>In determining the distance pupils of a public school must travel in going from their home to the school house, the measurement should begin át the exit from tne curtilage and run thence along the most direct established route by lane or path to the nearest highway and then follow the' center line' of the highway to the door of the ■ school house.</p>

<p>AS TO RIGHT TO ENJOIN LAYING RAILWAY TRACK ACROSS STREET.</p> <p>Property Rights in-Land — Inviolable but Subject to the Public Welfare —Right of Abutting Owner to Injunction Against Laying of Rail- ' way Track Across Street — Extent of Authority Conferred by Agreement Between Company and, Municipality — Character of the neighborhood One of the Determining Factors.</p> <p>1. The provision of Sections 8763, 8764 and 8765, for an agreement between a municipality and a railway company as to the terms and conditions upon which the company may occupy with a track any portion of a street, alley, way -or public ground, and the ordinance granting the right to build a track across a street in accordance with the terms and conditions therein embodied affects the rights of á property owner as a member of the general public only, but leaves his private property rights intact.</p> <p>2. The laying of a railway track across a street which forms a cul-de-sac constitutes an injury which may be enjoined if it appear that the injury is material and substantial in character.</p> <p>3. But where the evidence is conflicting as to the extent of the injury and some of it is to the effect that the laying of the proposed track will, owing to the peculiar conditions, enhance the value of the plaintiff’s property, and the neighborhood is a lumber district where there is much- smoke and noise, the damages which may be sustained are evidently such as can be compensated in a suit at law, and the petition- for an injunction against the laying of the track will be dismissed.</p>

<p>ASSESSMENTS FOR. STREET PAVING AND SIDEWALKS ON BRIDGE APPROACHES.</p> <p>Assessments for Streets and Sidewalks — Where Upon the Approach to a Bridge Built by County Commissioners — No Statutory Authority for Assessing the Cost Against the County — Paving Differentiated from the Grade Supporting it — Section 7444-</p> <p>Injunction will not lie to restrain the collection of assessments from an abutting owner for a sidewalk and the paving of the street constituting the approach to a bridge constructed by county commissioners within a municipality, notwithstanding the approach is at such a grade as to render access thereto impracticable from the property which it is proposed to assess.</p>

<p>AMENDMENTS AFTER. THE STATUTE HAS RUN.</p> <p>Statutes of Limitation — Application of, to an Amended Petition — Pleading.</p> <p>The har of the statute of limitations does not operate to prevent the filing of an amended petition, where the original petition was filed in time.</p>

<p>INCRIMINATING TESTIMONY BEFORE A GRAND JURY.</p> <p>Criminad Law — Rights of One Under Examination as to a Criminal Act —Privilege Against Self-Incrimination — Intent to Become a Yolum teer Witness Before a Grand Jury Mtist Be Clear — Scope of Motions to Quash — Election as Between Indictments — Section 13621.</p> <p>1. When one is subpoenaed to appear as a witness before a tribunal created by law and that one is under investigation as to a criminal act alleged to have been committed by him, nothing said by him then and there can be the predicate of any indictment against him, unless he volunteer to become such a witness with a full knowledge of the. possible or probable results to him. The intent to thus become a volunteer must be clear, definite and certain. Article •. I, Section 10, of the Constitution does not mean he can not be asked self-incriminating questions, nor does it .mean he must claim a privilege against self-incrimination. Such a witness under such . . circumstances is exempt from becoming a witness at all.</p> <p>2. The statutory definition of a motion to quash not only includes defect in form or manner of stating a crime in the indictment, but also the substance of the crime therein, and this is true notwithstanding that the same defect in substance may he reached by demurrer to the indictment. The accused not only thus has the . choice of two remedies, but may use both, each m turn if necessary.</p> <p>3. When one, who has been indicted two or.-more times for the same criminal act, moves for an election' and also to quash all the in- . dictments against him, he may abandon temporarily or permanently his motion to elect and.press the motions to quash. An accused has the right at all times before demurring or pleading in bar or the general issue, to destroy, if possible, all the indictments against him by motions to quash and pleas in abatement, and thus prevent the necessity of an election by the state; and when such an one ha,s thus abandoned his motion to elect, the state has not the right .to exercise its election under that motion without the consent of the .. accused, and" especially is this so when the purpose of the state is . ‡® reserve, one of the indictments fpr future use in the event the . . first, be set aside by the court, . ,</p>

<p>PROSECUTION FOR. FALSE ANSWER.S UNDER. THE DEAN LAW.</p> <p>Liquor-' Laws — Review of Decisions of the 'Supreme Court Relating Thereto — Constitutionality of Amendment to the Dean Law Re- ., lating to Answers to Questions Propounded to Liquor Dealers by Assessors — Compliance mth this Provision Does Not Constitute a License to Sell — Universal and Uniform Operation of Laws Distinguished.</p> <p>The provisions of Sections 6081, et seq., General Code, requiring that ea'ch "assessor make a return as to each place, within his jurisdiction in which intoxicating liquors are sold,' together with answers to certain - prescribed questions covering the . history and character of the person or firm carrying on said business, does not .amount to a license to one complying therewith to carry on the ■, traffic, nor does it discriminate between persons so engaged, or fail to apply equally or to afford equal protection of the law to all; but’ it is a regulative provision and is constitutional, and an indict • • ment' will lie for making under oath a false answer to one of the questions so propounded.</p>

<p>TONTRACTS BETWEEN ATTORNEY AND CLIENT.</p> <p>Attorney and Client — Contracts Between, for Services and Compenso tion — Provision for a Portion of the Amount Recovered to go to the Attorney Not Champertous, When — Attorney Can Not be Remitted to a Quantum Meruit, When — Equity—Parties.</p> <p>1. A contract wherein a client is released from payment for services already rendered, or thereafter to be rendered, in connection with a specific matter, and which binds the client to pay all costs and expenses, and the rights of the attorney are limited to a certain specific fund to be recovered, or received in compromise, and in the event this fund does not come into existence as contemplated, the attorney is to receive nothing, is a valid contract in the absence of any showing of undue influence, fraud or duress.</p> <p>2. Such a contract will be construed to operate as an equitable assignment, and is enforcible by an action in equity.</p> <p>3. Where the fund so recovered is in the form of stock certificates which have been pledged, the pledgees are proper parties to an action brought by the attorney to establish his rights therein.</p> <p>4. Greater liberality is allowed in equity than in law, in pleading matters of inducement.</p>

<p>WATER. RIGHTS IN OHIO CANALS.</p> <p>Canals — Creation of Water Power Not Within the Purpose of Their Construction — Grantees of Water Rights Took Them Subject to Fluctuations of Tides and Changes of Time — Penial of Injunction Against Interference by the State Board of Public Works With a Pam— Piscretion of Public Officials — Res Adjudioata — Public Exigencies— Section J/.S5.</p> <p>1. By the act of February 4, 1825, whenever the state took possession, through its agents or officers, of any lands, water, streams or materials, necessary for the prosecution of improvements intended by this act, the mere act of taking possession vested in the state the fee simple to the water and streams, the same as in the lands through or over which they flowed.</p> <p>2. Private individuals can not compel the state to respond in damages for the destruction of water power created by the construction of canals, nor can they maintain injunction proceedings to restrain the state from destroying the same by abandoning the canals.</p> <p>3. The board of public works was without authority to enter into an agreement or contract to build and forever maintain a dam for the purpose of affording water power to a riparian mill owner, and such agreement or contract would confer no right upon such riparian owner and no obligation upon the state to maintain such dam; nor can the state be prevented from destroying such dam and thus' destroying such water power.</p> <p>4. A private individual, as such, can not maintain injunction proceedings against, or interfere with, an officer or officers of the state in the performance of his duty, unless it can he shown that such officer acted in had faith or from corrupt and malicious motives.</p> <p>5. Public officers as such are vested with certain discretionary powers, and in the absence of corruption, malicious intention or caprice, a court of equity will not interfere with such discretionary powers.</p> <p>6. A present owner of property is hound by the decision of a court of competent jurisdiction in a prior case between his grantor'- and' the lessee of the adverse party, where the subject-matter was the same and the same questions were at issue., in such prior action.'</p>

<p>LIABILITY OF MUNICIPALITY GROWING OUT OF FORMATION OF ICE ON SIDEWALK.</p> <p>Negligence — Water Dropping from Eaves of Building Runs Over Sidewalk — lee Norms and a Pedestrian is Injured — Municipality Not Liable as for Maintaining a Defective Sidewalk, When — Nuisance.</p> <p>1. Water cast upon the sidewalk by natural causes, which afterward freezes and causes a dangerous condition for pedestrians, does not in the absence of proof of unreasonable delay in its removal afford ground for an action against the municipality, by one who fell on the ice and was injured, for negligence in permitting the sidewalk to become defective.</p> <p>2. The formation of ice on a sidewalk is the result of a natural rather than an artificial cause, where it is due to water which fell from the eaves of a building and was carried by gravity over the walk where it froze.</p>

<p>RES JUDICATA IN DIVORCE PROCEEDINGS.</p> <p>Divorce and Alimony — Doctrine of Res Adjudicata as Applied to Proceedings in — Estoppel Created Against a New Action, When — Binding Character of a Judgment of Dismissal — Section 11986.</p> <p>1. The doctrine of res adjudicata applies to divorce proceedings in Ohio.</p> <p>2. Where a petition for divorce has been dismissed upon a hearing on the merits, in a case where the court had jurisdiction of the person and of the subject-matter, such order and judgment of dismissal is a bar to future proceedings in a new action in any court as to all grounds for divorce alleged in the petition so dismissed, or that were known to the plaintiff to exist at the time of the filing of such petition.</p>

<p>CHANGE OF BENEFICIARY.</p> <p>Mutual Benefit Societies — Validity of Attempted Change of Beneficiary Under a Policy Issued Toy Modern Woodmen — New Certificate Effective Although Not Issued Until After Death of the Insured.</p> <p>Where a member of the Modern Woodmen of America forwarded to .the official camp, three days before his death, a petition designating his son as beneficiary under a policy held by him and accompanied the petition with the required fee, but the new certificate was not issued until after his death, a case is presented which warrants the association in paying the amount of the policy to the son named in the new certificate.</p>

<p>VALIDITY OF ANTE-NUPTIAL CONTRACT.</p> <p>Gomity — As Between Courts of Different States — Illinois Judgment Declaring Ante-nuptial Contract Void Eeld to he Conclusive in Ohio —Circumstances under which Fraud in the Making of such a Contract may he Predicated. — Effect of Foreign Judgment of Land Titles.</p> <p>1. The decision of a court of another state is conclusive on the courts of this state, in which land involved in the controversy is situated, when the title to the land is only indirectly or incidentally involved in the case determined in the foreign court; and the determination of an Illinois court as to the validity of ■ an ante-nuptial contract in which the right to dower in , Ohio real estate is involved is, therefore, conclusive when pleaded in an action here for the assignment of dower, and the same question between the same parties can not he relitigated here.</p> <p>2. Where a man worth as much as $131,000 executed an ante-nuptial contract with a girl without means or business experience, or knowledge of the value of his property, by the terms of which she is to receive an annuity of $500 and $10,000 at his death, the disproportion between the amount stipulated in the contract and the amount which she would receive under the law as' his Widow is so great as to stamp the contract.as a fraud upon her, and does not bar her right to dower in his real estate as his widow.</p>

<p>PROSECUTION IN VILLAGES OF CITY OFFENDERS UNDER LIQUOR LAWS.</p> <p>Liquor Selling in Dry Territory — Violations Occurring in a Oity— Prosecuted Before the Mayor of an Outlying Village — Fines Applied in Part to Payment of Detectives and Attorneys — Policy of the State as Revealed in Its Enactments — Validity of Ordinance— Motive — Injunction—Sections 4220, 4311, 4314 and 4316.</p> <p>1. It is within the discretion of the council of a village in a “dry” county to provide that a percentage of all fines and forfeited bonds thereafter paid into the village treasury by violators of the local option statute shall constitute a separate fund, to be known as the secret service fund and used in the employment of detectives and attorneys for the prosecution of violators of said law; and an allegation that the motive behind said ordinance is to enrich the village treasury by fines collected from violators of said law in a neighboring city does not state a ground that affects the validity of the ordinance nor does, it afford reason for complaint by a taxpayer.</p> <p>2. The well established rule that injunction will not lie against criminal proceedings is applicable to proceedings brought before the mayor of a village against violators of the local option law in a neighboring city; and defendants in such actions must have resort to their remedy at law.</p>

<p>IMPROPER. REMARKS TO A JURY.</p> <p>Misconduct — 0/ Counsel in His Argument to the Jury — Not Ground for Setting the Terdict Aside, Unless — 'When it Must be Assumed that Prejudice Resulted.</p> <p>1. Misconduct of counsel, or error of omission or commission on the part of the court, is not ground for disturbing the verdict of a jury, unless as a result there has been manifest prejudice and failure to ascertain the truth.</p> <p>2. But where counsel in his argument to the jury arraigns a corporation against a blind boy without means and not a party to the action, the' court must presume that prejudice resulted and the jury were thereby prevented from properly weighing the evidence in the case,- notwithstanding no objection was made to the remark at the time by opposing counsel.</p>

<p>PROSECUTION FOR. CRUELTY TO ANIMALS.</p> <p>Venue — Sufficiently Established, When — No Right to a Trial by Jury Where the Charge is for a First Offense Punishable by Fine Only— Notwithstanding a Second Offense Ma/y Be Punished by Imprisonment — Common Law and Constitutional Right to' Trial by Jury— Section 13876.</p> <p>1. In a criminal trial before a' magistrate in the city of Cleveland, the venue is sufficiently established if .the evidence makes it appear that the offense was committed in Bedford township in the state of Ohio and within ten miles of the “public square,” when it is a matter of common knowledge that the city of Cleveland is located in Cuyahoga county and there is a Bedford township in that county which is within ten miles of the public square in the city of Cleveland.</p> <p>2. Where a statute makes a second and subsequent offenses punishable ■by imprisonment, this provision is not s® intimately connected and allied with a previous provision makin^Jj^ first offense punishable by fine only that the two can not be separated, and it is not error for a magistrate to refuse a trial by jury to one charged with a first offense.</p> <p>3. To keep horses in an open field without water or care in the month of December, in the latitude of Cleveland when the temperature is as low as 16 degrees Fahrenheit, constitutes cruelty to animals within the meaning of the Ohio statute.</p>

<p>AS TO LIEN ON REALTY FOR. DOW TAX.</p> <p>Regulation of Liquor Traffic by Taxation — Hen Under the Dow Law Against Premises Where Intoxicating Liquors are Sold — Defense by Property Owner Where the Sales Were Surreptitious — No Presumption Raised by the Testimony of Criminals and Moral Degenerates, When — Section 6012.</p> <p>1. A property owner who was not a party to the sale of intoxicating liquors on his premises may take issue as to the fact of salés having been made thereon, where it is sought to enforce the lien for the Dow tax against the property on account of such sales.</p> <p>2. No lien is created on the property unless the “business of trafficking in spirituous liquors” has been conducted on the premises; and evidence which would -be sufficient to establish such traffic against those making the sales may not' be sufficient to establish the fact against the owner of the property, even though actual or constructive knowledge of such sales by the owner is not necessary to support the lien.</p> <p>3. While the statute may make competent the testimony-of accomplices in crime, or of self convicted moral degenerates who induce the eommissibn by another of an unlawful act, for the purpose of creating evidence as to such act, such testimony raises no presumption against a property owner as to sales of intoxicating liquor by others on his premises, although if supported'by' corroborative circumstances it may create a presumption against the persons who made the sales.</p>

<p>ADVERSE POSSESSION AS BETWEEN CO-TENANTS.</p> <p>Title — As Between Go-Tenants, Where One Co-Tenant and His Descendants Mad Been in Possession for Fifty Years — Effect of a Contract 6y a Co-Tenant to Bell to Another Co-Tenant — Adverse Possession as Between Co-Tenants — Possession Under Defective Court Proceedings.</p> <p>1. A defective deed, by order of court in the completion of a land contract oetween co-tenants, gives color of title, and, followed by an exclusive possession, is sufficient to show an adverse holding,</p> <p>2. Adverse possession is dependent on a claim of exclusive ownership by the one in possession rather than acquiescence in such claim by the one excluded; and where, as in this case, the plaintiff has lived near the premises occupied exclusively for more than forty years, twenty-six years of which time have been since his majority; and during all of this time he has made threats of suit to contest defendant’s exclusive right to the property after his uncle’s death, and during all of the time defendants have claimed exclusive owner-’ ship by reason of purchase from claimant’s ancestor, and have urged him to bring suit within the lifetime of those knowing the facts, the proof of title by adverse possession is clearly made out, and the right of partition by such claimant is defeated.</p>

<p>ACTION BY DIVORCED WIFE TO REOPEN SETTLEMENT WITH HER. HUSBAND AFTER. HIS DEATH.</p> <p>Divorce and Alimony — Testimony Fails to Support Suit by Wife— Settlement Agreed Upon Out of Court — Husband Permits Wife to Take a Decree — Action by Wife After Husband’s Death for a Further Allowance from His Estate — Fraud Between the Parties and Fraud on the Court.</p> <p>Where a wife in an action for divorce finds after testimony has been heard that she will have great difficulty in making a case, and thereupon enters into an agreement out of court with her husband whereby he is to cease resisting her action and is to pay to her a specified sum as alimony, she is to release all further claim in his estate, and the terms of the settlement are concurred in by her father, her counsel and herself, and her petition for divorce indicates by its allegations that she had a very good idea of the extent and value of .the estate, and the agreement is carried out and she takes a decree of divorce, a ease of deception as to the value of the estate or of over-persuasion in the making of the contract of settlement is not made out, and an action will not lie after ■the death of the husband to set aside the settlement and the release which she executed to any further claim against his estate.</p>

<p>FRAUDULENT REPRESENTATIONS BY A NATIONAL BANK AS A GROUND FOR DAMAGES.</p> <p>Counter-Claim, Against a National Bank — Based on Fraudulent Representations and Practices — Vltra Vires Acts by a Bank — FstoppeUStatute of Limitations.</p> <p>1. One who has been deprived of his property by reason of the machinations of the officers of a national bank, acting apparently within the scope of their duties but acting fraudulently, whereby the bank obtained an advantage, may enforce his claim.against the bank for damages as for money had and received.</p> <p>2. Where it is averred that the endorsement and guaranty sued on by the bank was fraudulently obtained, by - reason whereof the bank secured a benefit, and it is expressly denied that the defendants either authorized the endorsement and guaranty or knew anything about it,..the bank is estopped from pleading the statute of limitations against a counter-claim of defendants where the bank’s officers, by promises not to sue on the bank’s claim and conduct calculated to induce a reasonable man to forego a threatened suit, secure delay until the statutory period has run against the counter-claim and then sue on the bank’s claim.</p>

<p>PROPER. PARTIES TO A PROCEEDING FOR A TELEPHONE FRANCHISE.</p> <p>Telephone Franchise — Application to Probate Court for — Necessary-Parties — Intervention by a Competing Company — Nature of Interest Intervenor must Show — Mere Concern not Sufficient — Limitations as to the Tested ■ Rights of the Senior Company — Sections 11255, 11262, 9118 and 9114.</p> <p>In a proceeding instituted in the probate court by a telephone company in which an order of the probate court is sought, directing the mode of construction of telephone lines along certain streets and alleys of a municipality, a competing telephone company is not a proper or necessary .party and, it not appearing that its lines will be affected by the order sought, such company has no right to intervene, and hence can not prosecute error.</p>

<p>WIDOW’S DOWER. IN ENCUMBERED REAL ESTATE.</p> <p>Dower — Upon What Basis Computed — Where Property Was Under Mortgage at Time of Marriage — Allowance of Attorney's Fees to Executor. ■ • ;</p> <p>1. A widow is dowable only in the surplus arising from the sale of lands held by her husband in which he had only an equity of redemption at the -time of his marriage to her, having mortgaged the land before the marriage. . •</p> <p>2. The fact that an executor is also an attorney'does not preclude an allowance to him of fees for attorneys employed by him, 'where no ■ allowance is made to him personally for performance 'of the same ■ services; and the rendering of legal services for an executor is not necessarily inconsistent with the performance of like services by the same attorneys for the widow of the decedent.</p>

<p>AMOUNT OF RECOVERY UNDER. AN APPEAL BOND.</p> <p>Modification of Judgment on Appeal — Calculation of the Amount Due Under the New Finding• — Interest on the Modified Judgment — Recovery of Costs.</p> <p>1. A judgment which has been modified by a reviewing court draws- , interest on the amount found due as modified from the date of the entry of the original judgment.</p> <p>2. The'obligee under an appeal bond which covers costs is entitled to recover judgment for the full amount of costs incurred «without having first paid said costs himself.</p>

<p>MTCH IMPROVEMENTS.</p> <p>Appeal — None Provided from County Commissioners^-In the Matter of Ditch Improvements — Sections 6453, 6463, 6468 and 6469.</p> <p>In the absence of a finding by the county commissioners that a proposed ditch improvement is necessary, the board is not authorized to proceed. No appeal from the finding of the board of county commissioners that a proposed ditch improvement is unnecessary is provided by statute; hence, the action of the probate court dismissing such appeal is not erroneous.</p>

<p>SANITARY POLICEMEN AND THE CLASSIFIED SERVICE.</p> <p>Civil Service — Sanitary Policemen Not.Members of, When* — Municipal Corporations — Mandamus—Sections 4411, 4412 and, 4484.</p> <p>One who was appointed to the sanitary police force in February, 1910, but who had not passed a competitive examination conducted by the civil service commission and whose name was not certified by said commission, is not a member of the classified service nor entitled to the protection afforded to persons in that service, but holds a temporary appointment only, and is subject to summary dismissal, and mandamus will not lie to compel his restoration to the- force after such dismissal.</p>

<p>AS TO LIABILITY FOR. COAL MINING ROYALTIES WHILE THE PROPERTY WAS IN THE HANDS OF A RECEIVER.</p> <p>Pleading — Assignee of Claims Not Entitled to Set Up a New Defense, When — Lease of Coal Lands — Minimum Royalty Not Collectible During Period Property Was in the Hands of a Receiver, When.</p> <p>1. Where creditors named as defendants in an action for a receiver made up the issues in the case by proper proceedings and afterward assigned their claims to a trustee, such trustee is not entitled to be made a party to the suit with leave to plead a defense not pleaded by his assignors.</p> <p>2. A lessor of coal lands under a lease which provides for payment of a minimum amount of royalty by the lessee, unless unable to mine the minimum quantity by reason of strikes or other causes over which the lessee had no control, can not collect the minimum royalty for the period during which the leased property was in the hands of a receiver, and especially where the receiver was appointed upon the petition of the lessor and in his petition he alleged that the lessee was unable to meet its obligations because of the depressed condition of business generally.</p>

<p>TITLE NOT ALIENATED BY QUIT-CLAIM DEEDS.</p> <p>Title — Fee Tail Estates — Estoppel and Recitals — Executory Contracts and. Consideration — Attempt to Alienate an Estate in Expectancy— Recitals which Did Not Pass cm After-Acquired Title — Adequate ■ Consideration Essential to Specific Performance — Devise of Lands to a Daughter and the Heirs of Her Body.</p> <p>1. A testator devised to his daughter and the heirs of her body 100 acres of land, thus creating a fee tail estate in his daughter. A few years later the daughter deeded her interest in the 100 acres to one of her brothers, which brother, during a course of twenty-two years and during the life of the daughter secured quit-claim deeds from six of the eight children of the daughter. The deeds were the ordinary quit-claim deeds and each recited one dollar considerations and contained the following, recital: “The foregoing is intended to convey to the said W. S. B. Randall all my right, title, interest and estate in and to the foregoing described real estate, whether vested or contingent, which I now have or may hereafter have or derive from the will of my late grandfather, John Randall, giving and bequeathing said real estate to my mother, Hannah Carter, and the heirs of her body.”</p> <p>Held: Under the decision in Dungan v. Klein, 81 O. S., 371, the children had no estate in the land during the life of their mother which they could alienate.</p> <p>2. The recitals contained in the quit-claim deeds were not sufficient to pass the after acquired title at the death of the daughter. For a recital in a quit-claim deed to create estoppel by deed the grantor must make a definite assertion of some fact that he is seized or possessed of the particular estate which his deed purports to convey. The recital was simply an assertion that the grantor intended to convey something which he did not then have but hoped to acquire. It lacks the very essence of an estoppel, the assertion of a fact which justice and good morals should preclude a party from gainsaying.</p> <p>S. The deeds were not sufficient to amount to executory contracts to convey the after acquire title- because not founded on an adequate consideration, which is essential for specific performance by a court of equity.</p>

<p>ACTION FOR. MONEY PAID FOR THE BENEFIT OF ANOTHER.</p> <p>Pleading — Where the Action is for Recovery of Money Paid for Another — Necessary Allegation as to a Request to Malee the Payment.</p> <p>In a suit on an account for money paid for the use and benefit of the defendant, it is necessary to allege that the payment was made at the request of the defendant, expressed or implied.</p>

<p>PASSENGER INJURED WHILE ON RUNNING BOARD.</p> <p>Negligence — Street Railways — Projecting Objects on Street for Which the Company is not Liable where Passengers are Injured by Being Struck Thereby.</p> <p>A passenger on a summer car who steps out upon the running board when no necessity exists therefor and without the knowledge of the conductor or motorman, and is struck and injured by some object on a passing wagon, has no cause of action against the street railway company.</p>

<p>SUBROGATION BY A PRINCIPAL TO THE SECURITY OF HIS ASSISTANT.</p> <p>Principal and Surety — Assistant Postmaster Short in Sis Accounts— Postmaster Subrogated to the Security of the Assistant,</p> <p>When a postmaster is compelled to make good to the Government a shortage in his office caused by the defalcation of an assistant, he is entitled to be subrogated to the security which the Government held for the fidelity of said assistant, and he may maintain an action against the sureties on the bpnd given by the assistant for the faithful performance of his duties.</p>

<p>PUNITIVE DAMAGES FOR UNLAWFULJRAILROAD¿RATES.</p> <p>Ohio Railroad Commission Act — Construction of ¡Sections Relating to Unlawful Rates — Pleading—Punitive Damages.</p> <p>1. In an action to recover, treble damages from a railway company, under favor of Section 569, the plaintiff must bring himself within the act as an entirety, and must make a case for the punishment of the defendant company for the doing or omission to do something prohibited or required by the act considered as a whole, and not by some one or more segregated sections thereof.</p> <p>2. A lawful rate is a rate scheduled and established pursuant to the statute, notwithstanding it may be per se an unjust and discriminatory rate, and punitive damages can be recovered only upon an allegation of violation of the established rate.</p> <p>3. An allegation by tbe defendant company that the rate complained of was the established rate constitutes a good defense, as does also an allegation that an action involving the justice of the rate complained of is now pending; but an allegation that the burden of the rate complained of does not fall upon the plaintiff, but upon his customers, is not defensive.</p>

<p>RECOVERY OF MONEY LOST IN GAMING.</p> <p>Attachment for Recovery of Money Lost in Gaming — Statute Remedial and the Action- ex Contractu — Section 11240.</p> <p>An attachment will lie against á foreign corporation in an action for recovery of money lost in gaming.</p>

<p>EXPENDITURES IN CONNECTION WITH CONTAGIOUS DISEASES.</p> <p>Township Trustees — Act as a Board of Health, When — Responsibility of, for Provision for Infectious Diseases — Sections 8891 and 5660.</p> <p>In arranging for the care of persons suffering from a contagious disease, township trustees act as a hoard of health, and they are liable officially for indebtedness so incurred notwithstanding failure on the part of the clerk of the township to certify that funds sufficient to meet the proposed expenditure are in the treasury and unappropriated.</p>

<p>TRIAL AND PUNISHMENT OF POLICEMEN.</p> <p>Municipal Corporations — Control of Police Department — Trial, and Punishment of Police Officers — Sections 4319, J/380 as Amended, 4878 and 4388.</p> <p>The power to try and to punish officers and employes of the police department is exclusively given under the Ohio statutes to the director of public safety, who has no authority to confer this power upon another, and the chief of police is therefore without power to try and punish police officers.</p>

<p>CODE PLEADING AND THE ADOPTION OF THE COMMON LAW FORMULA.</p> <p>Pleading — Use of the Common Law Count — In Conflict With Correct Principles of Pleading as. 'Established by the Code.</p> <p>Where the averments in a petition are in the old form of common count as in assumpsit for work and labor the court may, on motion to . strike from the petition, order that the allegations be made definite and certain by statitng the facts constituting the cause of action in the manner required by the code.</p>

<p>LIBEL TO THE TRADE OF A BUSINESS HOUSE.</p> <p>Libel — Damages Sought Because of the Printing and Distribution of Circulars Injurious to the Trade of a Business Souse.</p> <p>A sufficient basis is afforded for an action for damages for libel, where the'colloquium sets forth that the flour sold at the store of the plaintiff was purchased at certain mills which are named and that it is a first class or best grade of flour, followed by the allegation that the defendants have published of and concerning this flour that it is not as represented but is of second quality or second grade.</p>

<p>REVIVOR. OF ACTION TO CONTEST WILL.</p> <p>Wills — Legal Representative May Revive Contest of — Character of the Estate Immaterial — Section 12080.</p> <p>An action to contest a will does not abate on the death, of the plaintiff, but' may be revived in the name of the legal representatives of the plaintiff; and it is immaterial whether the estate consist of realty or personalty.</p>

<p>CHANGE OF BENEFICIARY.</p> <p>Life Insurance — Change of Beneficiary — Consent of Company Required, When — Compliance with Terms of the Policy Can Not he Waived By the Company After the Death of the Insured.</p> <p>1. The consent of the company is required to effect a change C beneficiary under a policy of insurance, issued by a regular life insurance company, which provides that, subject to the approval of the company, the insured may at any time during the continuance of the policy change the beneficiary by written notice to the company at its home office, accompanied by th,e policy, such change to take effect on the indorsement of the same on the policy by ' the company. '</p> <p>2. Where the insured, under such a policy, undertook to change the beneficiary and did all that he could do to accomplish that result, and forwarded to the company due notice, but diled before .the company had approved such change of beneficiary, the attempted change was not effected, and the original beneficiary is entitled to the money payable under said policy, there being no evidence that the company had in any manner waived the provision in the policy respecting the change of beneficiary. ' •• '</p>

<p>RIGHTS OF REMAINDERMEN.</p> <p>Wills — Contingent Remainder — Testing of Rights — Remaindermen Not Estopped from Questioning Claims of Those who Dealt with the Life Tenant — Benefits Accruing to Remainderman from Contract Made ly Life Tenant — Title to Certificates of Stock,.</p> <p>1. Under a will which gives, devises and bequeaths “all my property, ■both real and personal, of which I may die possessed to my beloved wife, M. J. A., during her natural life, and at her death to be distributed in accordance with the laws of the state,” the remainder is a contingent remainder which vests among those who are heirs at law of the testator at the time of the death of the life tenant.</p> <p>2. The affidavit filed in such a case by the widow in lieu of a final account, and published as notice of a final account, was not notice ' to Anybody of a proceeding for a construction of the will or determination of the rights of the devisees under the will; and the action of the court in confirming the account was not intended to and did not have the effect of determining who were the distributees under the will or under the law.</p>

<p>AS TO THE SALE OF PLUMAGE OF THE WHITE HERON.</p> <p>Classification of Birds — Construction of the Phrase “Any Wild Bird”— White Heron Ho Longer a Game Bird — Plumage of White Heron May Be Offered for Bale — What Birds are Protected — Section^ lJt09 amd 1J/12.</p> <p>1. The phrase “any wild bird” as used in Section 1409, General Code, as amended, means’ añy wild bird native' of ’ Ohio and also migratory birds which cross the state at regular intervals.</p> <p>2. The white heron .is a wild bird, but -not a game bird under the amended statute; it does not have its habitat in, Ohio, and is never seen here, unless it be a vagrant specimen at rare intervals, and it is therefore not protected by the statute, and to have its plumage for sale is not a violation of law.</p> <p>3. A construction of Section 1409 which would make it prohibit the . sale or having in possession for sale plumage of the white heron would render the statute unconstitutional in that it would bé in violation of the Fourteenth Amendment of the Federal Constitution.</p>

<p>GUARDIANS, NATURAL AND TESTAMENTARY.</p> <p>Parent and Child — Guardian and W'wrdt — Best Interest of Child Must Determine as Between Natural and Testamentary Guardian — Sections 10916 and 10931.</p> <p>1. The appointment by the probate court of a testamentary guardian of a minor child will be set aside, where it appears that the appointment was made without notice to the surviving parent, who was ' living at the time within the jurisdiction of the court.</p> <p>2, A decree of divorce which gives.the custody of a minor child to one' of the parents does not clothe that parent with authority to appoint a testamentary guardian for the child, and as between the testamentary guardian and the surviving parent, the court will eon1 ' sider only the best interests of the child in choosing its guardian.</p>

<p>NECESSARY AVERMENTS IN AN ACTION FOR DAMAGES FROM BLASTING.</p> <p>Pleading — Action for Damages Resulting From Blasting — Allegations of Negligence in the TJse of Explosives Necessary.</p> <p>An action will not lie for damages resulting from the use of explosives in making an excavation, unless negligence is alleged.</p>

<p>RIGHTS OF FRATERNAL BENEFICIAL ASSOCIATIONS.</p> <p>■Mutual Benefit Societies — Mandamus to Compel issuance of a Lic'ense to a Foreign Fraternal Association — Construction of Sections 9469 mul 9410.</p> <p>1. It is not in contravention of the laws of this state for a fraternal beneficial association, chartered under the laws of Pennsylvania, to issue certificates in this state which contain provisions for payment to its members of cash surrender values, loan values, paid-up insurance and dividends arising from accumulated savings from death losses and expenses.</p> <p>2. Where the certificate of such an association sets forth that its constitution and by-laws are made a part thereof, and there is a provision in said constitution and by-laws as to extra assessments, it is not necessary that the certificate set forth such provision.</p> <p>3. In an action in mandamus to compel the superintendent of insurance to renew the license of such an association to do business in this state, want of an averment in the answer that notice was duly given to the officers of the association that its license would not be renewed on expiration, makes the answer had on demurrer.</p>

<p>TESTACY AND INTESTACY DEFINED.</p> <p>Descents — Devise of Life Estate hut not of Fee — How the Fee Parses in Such a Case — Wills—Sections 8514 and 8517.</p> <p>One who leaves a will which bequeaths a life estate only, permitting, the fee to go where the statute sends it, does not die intestate 'as to said fee, and in consequence the fee passes under the provisions of (Section 8574 rather than 8577.</p>

<p>EXPOSING COMMODITIES FOR SALE IN UNSEALED MEASURES.</p> <p>Weights and Measures, — Constitutionality of Ordinance Requiring that Measures be “Sealed” — Evidence of Capacity of Measure in Pounds Not Admissible where the Charge is Exposing for Sale — “Heaped” and “Stroked” Measure — Sealer May be Mandamused to Seal Correct Measures — Sections 3651, 6416, 6411 and 4622.</p> <p>1. An ordinance making it “unlawful * * * to expose for sale any commodity, article or articles which are commonly sold hy measure, in any measure, utensil or receptacle which is not tested, marked and sealed” hy the city sealer of weights and measures, is within the power vested in municipalities by' Section 3651, General Code, “to regulate the weighing and • measuring of hay, wood and coal and other articles exposed for sale,” and is a reasonable exercise of the police power of the state.</p> <p>2. Keeping turnips in boxes used as measures is an exposing for sale by measure within the meaning of an ordinance making it unlawful “to expose for sale” by measure not sdaled.</p> <p>3. In a prosecution under, such an ordinance the gravaman of the offense is the fact that the box was not sealed by the city sealer, and not that the measure did not contain sufficient cubic capacity; and it follows, therefore, that evidence that a former sealer approved boxes of like size and character, or that the boxes contained the requisite number of pounds for the measure sold, should be excluded.</p> <p>4. Turnips are- articles usually sold by heaped measure as defined by Section 6416, General Code, and a box or crate not containing when stroked a heaped bushel of turnips is not a lawful measure for turnips, notwithstanding it contains more cubic inches than , is, required for dry measure by Section 6417.</p> <p>5. Mandamus will lie to compel a city sealer to seal measures which are in accord with the proper standards.</p>

<p>DISTRICT TUBERCULOSIS HOSPITALS.</p> <p>Constitutional Law — Provision for Tuberculosis Hospital Districts within the Police Power — But Unequal Allotment of Taxes Renders Act Invalid — Actions by Prosecuting Attorneys to Enjoin Misapplication of Funds — Sections 2921 and 311/8 et seq. and Article X, Section - of the State Constitution.</p> <p>1. A prosecuting attorney is empowered to bring an action to enjoin a contemplated misappropriation of a county fund, notwithstanding the fund in question is derived in part from taxes levied in other counties.</p> <p>2. A district tuberculosis act is within the police power of the state, and such an act will be sustained “by the courts unless some clear abuse of discretion is embodied in its provisions.</p> <p>3. But the district tuberculosis act of 1909 (Section 3148, et seq., General Code), violates the constitutional provibion that the county commissioners shall determine the necessity and fix the amount of taxes to be levied, in that it makes the hospital trustees a body superior to the county commissioners who act merely as ministerial officers in so- far as the levy of taxes for tuberculosis hospital purposes is concerned.</p> <p>4. Moreover a taxing district having been created by law, it is not within the power of the Legislature to provide for an unequal allotment of taxes within the district by dividing the hospital expenses ¿mong the counties composing the district in proportion to the number-of patients received' from- each county for treatment, with a credit to each county of the amount received from pay patients received therefrom.</p>

<p>CONTEMPT IN INTERFERING WITH A RECEIVERSHIP.</p> <p>Proceedings in Contempt- — Separate Action in the Name of the State not Necessary — Contempt in Securing the Appointment of a Receiver of Property Already in the Hands of a Receiver Appointed by a Court of Concurrent Jurisdiction — Jurisdiction as Between Two Courts Where the Same Subject-Matter is Involved in Both Proceedings.</p> <p>1. In a proceeding to punish as for contempt in violating an order of injunction, it is not necessary to institute a new action in the name of the state, but proceedings in contempt may be had in the same case in which the order of injunction was issued.</p> <p>2. A finding of guilty of contempt can not be based upon a mere intention or purpose to violate an order of the court, but it must appear that something has been done by the accused toward effectuating or carrying out the purpose so formed.</p> <p>3. But where property has been under the control of a court of competent jurisdiction for two years, and one who served as receiver during a part of that time and was discharged, thereafter secures his reappointment as receiver of the same property at the hands of a court of concurrent jurisdiction but without power to review, the interference with the management of the trust which is thus brought about constitutes a flagrant contempt, and a finding to that effect may be made against all who actively participated with knowledge of the facts in securing such reappointment without waiting until there has been physical interference with the court in its possession of the property.</p> <p>i. No court of concurrent jurisdiction only has authority to seize property over which another court has obtained jurisdiction and which it is administering upon through a receiver; and persons.who attempt to thus wrest from the court control of the property place themselves in direct contempt of its authority.</p>

<p>DEMAND AS A PREREQUISITE TO AN ACTION FOR NECESSARIES.</p> <p>Necessaries — Demand Not a Prerequisite to an Action for Recovery for, 'When — Attachments—Proceedings in Aid of Execution — Appeal— Sections■ 10272, 10436, 10441 and 10382.</p> <p>1. ' Demand is a prerequisite to the bringing of an action for necessaries only when the action is accompanied by an order of attachment; for a civil action before a justice of the peace for necessaries, or in bringing proceedings in aid of execution, demand .is not a condition precedent.</p> <p>2. Appeal' does not lie to a proceeding in aid of execution to enforce a ■ judgment for necessaries, where the transcript shows that the defendant filed a motion to discharge the attachment which the justice overruled and exceptions were .taken. ■. .</p>

<p>RULE IN OHIO AS TO REMOTEIDAMAGES.</p> <p>Negligence — In Permitting a Culvert to Become Clogged — Causing Great Pressure of Water and Resultant Damages in Time of Flood —Damages Proximate and Remote — Rule a<s to Liability for Remote Damages — Charge of Court.</p> <p>Whether or not upon the-facts admitted or established the injury-complained of was too remote to entitle the plaintiff to damages, -on account of the negligence of the defendant, is a question to be de- ' termined, in Ohio, by the jury under proper instructions from the court! , , -</p>

<p>CONSTITUTIONALITY OF THE ACTS RELATING TO THE MUNICIPAL COURT OF CLEVELAND.</p> <p>Courts and Necessary Legislation for their Establishment — Two-Thirds Vote of the General Assembly Required, When — But a Majority Vote Sufficient to Modify an Existing Act — Effect of Repealing Acts, and of the Re-enacting of Parts of Acts so Repealed.</p> <p>1.- The General Assembly establishes a court when it enacts that there shall be a court, fixes the number of judges, defines the jurisdlction and prescribes the procedure to be followed therein; to do this requires a two-thirds vote, but a court may be abolished or its jurisdiction or functions modified by a majority vote.</p> <p>2. The act of May, 1910, -creating a municipal court for the city of Cleveland, received a two-thirds vote in' the General Assembly and was a valid enactment; and inasmuch as the amendatory act of 1911 does not attempt to create a new municipal court, but only modifies in some respects a court already established, a majority vote was all that was necessary to render the enactment valid, and the original as so amended authorizes the expenditure of public funds.</p>

<p>PROSECUTION FOR. BRIBERY.</p> <p>Criminal Law — Entrapment as a Defense — Aiding and Abetting in the Solicitation and Acceptance of a> Bribe — Analogy Between Bribery and Offenses Against the Postal Liquor Laws — Testimony Warranting the Belief that the Persons Involved Were Probably Inclined to Accept Money.</p> <p>A showing that the prosecution of one accused of bribery was an entrapment to which the state was a party does not constitute a defense.</p>

<p>AS TO UNDUE INFLUENCE OVER. A TESTATOR.</p> <p>Wills — Undue Influence — Alleged to Have Been Exercised by a Second Wife — Whose Children Fared Better than Those of the First Wife.</p> <p>Undue influence over a testator on the part of his second wife is not shown hy the fact that the children of the second wife fared hetter than the contestant, a child of the first wife, where the second wife was not herself given an undue proportion of the estate.</p>

<p>SOLICITATION OF BRIBES.</p> <p>Bribery — Averments of Intent and Purpose in the Solicitation of a Bribe — Indictment Sufficient, When — Averments Directed Against an Aider and Abettor.</p> <p>1. The unlawful intent and purpose of one who is charged with the solicitation of a bribe is sufficiently set forth in the indictment by averments that the solicitation was “with the intent and purpose that he * * * might then and there be influenced” in his official action.</p> <p>2. A count in such an indictment, which charges that one of the defendants did unlawfully and knowingly aid and abet, encourage and procure his co-defendant to commit the crime of soliciting a bribe in the manner and form set forth in the indictment, is a sufficient allegation of the ultimate facts to set forth the offense, where followed by- a recital of the acts which it is proposed to show the defendant committed.</p>

<p>UNRECORDED OR UNACKNOWLEDGED LEASE FOR MORE THAN THREE YEARS FROM DATE.</p> <p>Validity of Lease — Where Running for Three Years from a Future, Date and XJnacTcnowledged or Recorded — Forcible Entry and Detainer — Competency of Lessor to Execute Lease — Charge to Jury by Justice of the Peace — Section 8511.</p> <p>1. Where the validity of a lease is denied on the ground that the lessor was without mental capacity at the time of its execution, the issue as to. his competency may be raised in a forcible entry and detainer proceeding and evidence heard thereon as in a suit in equity.</p> <p>2. A lease for a term of three years from a future date is a lease for' three years only, and such a lease is valid notwithstanding it was not acknowledged or recorded.</p>

<p>PROSECUTION FOR. SOLICITING A BRIBE.</p> <p>Criminal Law — Indictment for Soliciting a Bribe, Good Against Demurrer, When — Recitals Which Show the Crime to Have Been Complete — Section 12828.</p> <p>An indictment for soliciting a bribe is not deficient because of failure to charge that the solicitation was for the purpose of influencing official duty or action, but the crime is shown to have been complete if the solicitation was of such a character as to exhibit a willingness to accept a bribe.</p>

<p>CHARACTER. OF A DECREE FOR ALIMONY AGAINST A NON-RESIDENT.</p> <p>Alimony — Nature of a Judgment for — Where the Defendant is a NonResident Having Property Within the Jurisdiction — Actions in Personam and in.Rem.</p> <p>A judgment for alimony and costs may be enforced against personal property of a non-resident, within the territorial jurisdiction of the court and under its control, 'notwithstanding he was served with summons by publication and no personal service was thereafter obtained upon him, and he did not enter an appearance in the action in which the. decree was rendered.</p>

<p>ACTION ON BOND OF A DEFAULTING BUILDING CONTRACTOR.</p> <p>Contract for Erection of a Building — Default of Contractor — Action on Bond for Faithful Performance — Waiver of Provision that Suit Must Be Brought Within Six Months — Payment of Percentages-Stipulated to he Retained Until Completion of the WorJc.</p> <p>1. The provision of a bond securing the faithful performance of a-building contract, that suit upon the bond must be brought within six months of the first breach of the contract, will be deemed to have been waived by the bonding company, where a person was designated by the bonding company to complete the work, the' owners consenting, but the amount remaining to be done was so great that by no possibility could it have been completed within six months from the first breach.</p> <p>2. A bonding company will not be heard to complain that the plaintiff. owners did not retain until the completion of the contract the percentage stipulated therein, where the payments were made to the person designated by the surety company to complete the work.</p>

<p>ACTIONS AGAINST FOREIGN CORPORATIONS.</p> <p>Corporations — Suit May Be Maintained Against a Foreign Corporation —Notwithstanding the Cmse of Action Arose in Another State— Section 178.</p> <p>A foreign corporation, which has qualified under Sections 178-180, General Code, for doing business in this state, may be sued in this state upon a cause of action accrued in another state.</p>

<p>THE FIXING OF RATES FOR. GAS BY MUNICIPALITIES.</p> <p>Municipal Corporations — Gas Rates Fixed by Council — Are Binding on Gas Company, "When — -Pleading—Sections 3982 and 3983.</p> <p>1. It is not good form to deny, for want of information, the passage of an ordinance which is pleaded and of the passage of which the defendant was given notice in due course.</p> <p>2. Where no rate has been fixed for gas for a period of not more than ten years, by the passage of an ordinance by council and its acceptance by the gas company, it is competent for council from time to time to fix the rate which shall be paid for gas; and a denial by the gas company of the right of council to pass such an ordinance is open to demurrer.</p>

<p>WAYS RESERVED BY IMPLICATION.</p> <p>Easements and Ways of Necessity — Unaccepted Dedication of a> Private Way to Public Use — Gan Not be Recalled, When — Rights of Lot Owners in Such a Way Distinguished from Those of the General Public — Covenants Against Incumbrance Do 'Not Extinguish Such a Way.</p> <p>Where an owner of land has laid out and used a way over one parcel for the benefit of a second parcel, and he afterwards conveys both parcels by deeds of warranty to different parties,, a right is reserved by implication to the grantees of the second parcel to use the way marked out over the first parcel notwithstanding the covenant against incumbrance, if such use is reasonably necessary to the use and enjoyment by them of their own property, formerly constituting the second parcel of the common grantor.</p>

<p>ATTACHMENT AGAINST A FOREIGN EXECUTOR..</p> <p>Attachment — Constructive Service May Be Obtained Against a Non- . Resident Executor, When.</p> <p>Foreign executors are subject to suit in the same manner they are permitted to sue, and constructive service may be had in an attachment suit against a non-resident executor, where the property of the decedent which is attached is within the state.</p>

<p>These cases were heard together, being alike in all essential particulars. The petition in each case asks for the foreclosure of a chattel mortgage given to plaintiff by the defendant, Dorothy Reese, as security for the payment of the unpaid portion of the purchase price of certain household goods, consisting of hall, parlor or sitting room, bedroom, dining room, kitchen and bath room furniture. The chattel mortgages are in usual form and contain the usual conditions, and at the time of the commencement of these actions the defendant, Dorothy Reese, was in default for payments thereon and said mortgages had become absolute. They were duly verified and filed in the recorder’s office of this county, prior to November 15, 19.09, and were valid and subsisting liens upon said household goods prior to and at the time of the levy of the defendant, James T. Lindsay, as county treasurer' thereon. Said household goods were located in a flat, consisting of a hall, a parlor or sitting room, three bedrooms, a dining room, kitchen and bath room on the second fldor and known as 12114' South Front street, in the city of Columbus, Ohio. ■ ’!</p> <p>On November 15, 1909, three inspectors', appointed by the state dairy' and food commissioner of this state, went to said flat at about 10 o’clock p. m., and remained there for a half-hour during which time they made three separate purchases of three pints of beer each, making in all nine pints of beer, and paid fifty cents per pint therefor. The beer.was hept in an ice box in the kitchen (not included in said mortgages and therefore not involved ■ in these actions) and was taken therefrom into the dining room where it was drunk. During their stay the inspectors were in all of the rooms of said flat, and at the times said purchases were made there were, two girls present besides Dorothy Reese.</p> <p>Upon the report of said inspectors of the three sales of beer above mentioned the auditor of Franklin county' was ordered to and did assess and charge against the defendant, Dorothy Reese, on the auditor’s and treasurer’s duplicates of such assessments in said county, an assessment of taxes for carrying on the business of trafficking in intoxicating liquors, together with a penalty thereon, as provided in General Code, 6087 et seq., which taxes and penalty stand charged upon' said duplicates and aré unpaid. Whereupon the defendant, James T. Lindsay, as treasurer of said county, distrained and levied upon said household goods for the payment of said taxes and' penalty, under General Code, 6077, and was about to sell the same when these actions were commenced.</p> <p>Said defendant, as such treasurer, claims a lien upon said household goods prior to the lien of said mortgagees, under the provisions of Genera;! Code, 6078; that such levy shall'take precedence of all mortgages on goods and chattels used' in carrying on such business.' ! ......-‘.¡v;</p> <p>Plaintiffs also afeked in their petitions that1 the .¡.defendant, '.James T. Lindsay, as such treasurer, be enjoined 'frbii;-selling said goods, but after these actions were -commenced the; ¡goads were sold by him under an agreement whereby said defendant holds the proceeds thereof subject to the order of this court.</p>

<p>TRIALS BEFORE JUSTICES OUTSIDE OF THEIR TOWNSHIPS.</p> <p>Jusiicés of the Peace — Jurisdiction of, in Attachment Proceedings— Trial Must he. Held in Township in which Justice Was Elected— Sections 582, 588 and 58J¡.</p> <p>1. The provision of Section 582, providing that no justice of the peace shall hold court outside the township for which he was elected, is in civil actions mandatory; and while by Sections 582 and ' 583 such a jiistice of the ’peace- has jurisdiction in attachment cases co-extensive- with the county, these latter sections do not enlarge . - • the territorial jurisdiction, .of such justice of -the peace for holding , court. Where, in an attachment case, such justice of the peace, attempts to hold court outside his township, his proceedings' therein are coram non judice and void.</p> <p>2. -Consent by parties to the action to such justice of the peace holding' court outside his township will not confer-, jurisdiction on such ' 'justice to pronounce a valid judgment</p>

<p>VOID JUDGMENTS BY JUSTICES OF THE. PEACE.</p> <p>Judgment — Parol Announcement of, by a Justice of the Peace Without Entry Upon His Docket Hot a Bair to a Future Action on the Same Gause — Section 10378.</p> <p>A justice of tbe peace in rendering judgment under tbe provisions of Section 10378, General Code, speaks only by bis docket; from wbicb it follows that a parol announcement by a justice of bis conclusions in tbe case on trial before bim without any memorandum or entry having been made on bis docket, is not res adjudicata as to a subsequent action upon tbe same cause.</p>

<p>CONVICTION OF A COMMON PLEAS JUDGE OF AIDING AND ABETTING AN EMBEZZLEMENT.</p> <p>Evidence — Declarations of a Party May Be Received in a Civil Case, 'When — But Have Never Been Held Admissible in a Criminal Case —Circumstances Requiring the Exclusion of Such Testimony.</p> <p>1. Yerbal declarations are received in evidence in an action between third parties when accompanied by the following prerequisites: (a) The declarant must be dead;. (6) The declaration must have been against the pecuniary interest of the declarant at the time it was made; (c) The declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; (d) The court should be satisfied that the declarant had no probable motive to falsify the fact declared. ' -</p> <p>2. It is not sufficient that in one or more points of view a declaration may be against interest; if .it appears, upon the whole, that the interest of the declarant would rather be promoted than impaired . . by the declaration, such declaration is not admissible.</p> <p>3. This species of evidence stands on the extreme limit of competent testimony, and is not highly favored by the courts, and the tendency is rather to restrict than enlarge the right to receive it; and unless such evidence comes clearly within all the conditions requisite for its reception under the rule, the better authority requires •the rejection of such evidence.</p> <p>4. The application of the rule to criminal cases has not been established in any reported cases in the United States.</p> <p>5. Where the defendant is on trial for aiding and abetting the princi- . .pal, who .is a guardian of.-an old man, in embezzling the funds of the ward, in the control and possession of such guardian; —wwhere it appears that the defendant as a common pleas judge ap^v^ointed such guardian and retained the case in his court until sucif- guardian had paid the defendant a considerable sum of money, on' aa..alleged claim for legal services rendered by the defendant for the Nyard before the defendant became common pleas judge; • . \. • . ■ . .</p> <p>where it appears that tbe defendant had no book account against.the ward, and that at no time made a claim that he had a book account against the ward, and where the proof establishes the fact that at the time of the payment of the money by the guardian to the defendant that whatever claim, if any, the defendant had against the ward was then barred by the statute of limitations, and where there was very convincing evidence tending to prove that the' defendant had been paid for his services rendered the ward, or at least that the defendant was indebted to the ward on notes for money borrowed of the ward;</p> <p>where it further appears that the alleged claim for services were for services performed by the defendant at different times extending ■ back over a period of twenty-five or thirty years previous to the time of the defendant going on the common pleas bench as judged the payment by the guardian to the defendant having been made during the latter part of the second term of the defendant as judge, the defendant having during said period of twenty-five or thirty years had two law partnerships, the last partner, S, having died in 1903, the ward having died in 1907;</p> <p>and where at the .trial of the defendant so charged with, aiding and abeting the guardian in the embezzlement of said funds, the question of fact arising whether or not the defendant had a bona fide claim against the ward, or honestly and in good faith thought he-had;</p> <p>and the defendant offered as a witness, the administrator of the estate of S who, if he had been permitted, would have testified in substance: “'that in 1903, he inquired of the ward, if he .owed the estate of S, and that the ward replied, ‘that he did not, but that he did owe the defendant.’ ”</p> <p>Held: Said declaration was properly rejected, for the reason that the same does not fall within all the prerequisites of the rule.</p>

Heard on demurrer to answer and cross-petition of defendant for divorce on the ground that defendant has not resided in this staté for one year.