Volume 12 — Ohio Circuit Court Reports, New Series

<p>TAXATION OF COLLEGE PROPERTIES.</p> <p>Educational Institutions — Taxation of Buildings and Lands belonging to — Professors Residences and Vacant Land Exempt — Section ></p> <p>1. The exemption from taxation of property belonging to colleges and academies, provided by Section 2732, Revised Statutes, extends to all buildings and lands that are with reasonable certainty used in furthering or carrying out the necessary objects and purposes of the institution.</p> <p>2. Residences occupied by the president and professors and janitor are exempt, as also is vacant land from which no revenue is derived, but land used for agricultural purposes or pasturage is not exempt.</p> <p>3. Land used for a pumping station, from which water is furnished to the college community and is also sold to outsiders at a profit, is taxable so long as the practice of vending water to persons not connected' with it is continued.</p>

<p>PROCEEDINGS TO SET ASIDE A WILL.</p> <p>‘Wilts — Effect of Order Admitting to Probate — Argument to Jury Based on Such Order Constitutes Misconduct, When — Review of Proceedings not Limited to, Urged on Motion for a New Trial— Testar mentary Capacity — Proper Definition of — Eccentricities and Delusions Affecting Mental Capacity — Charge of Court — Sections 5858 to 5866 and 5926.</p> <p>1. An order admitting a will to probate is, by force of Section 5926, Revised Statutes, prima facie evidence only of its validity; from which it follows that in a proceeding to contest a will under Section 5858, Revised Statutes, et seg., a statement by counsel in argument to the jury to the effect that the probate judge, experienced in such matters, had admitted the will to probate on the same evidence heard in the proceeding to contest, and that it would be presumptuous in the jury to hold differently, constitutes misconduct of counsel prejudicial to the rights of contestants, for which a judgment based on a verdict sustaining the will is reversible.</p> <p>2. A trial court is presumed to know what errors occur at the trial of a cause and, having certified that a bill of execptions, showing the errors excepted to is true, the fact that the attention of the court was not called thereto by affidavit or otherwise upon a motion for new trial can not preclude a reviewing court from the consideration thereof on error.</p> <p>3. Mental capacity to make a will requires a comprehension of the nature of the act testator is performing, an understanding of the extent of property of which he is disposing, a realization of the relation which he holds to those who have claim upon him and ability to make a rational selection among them; “capacity enough to attend to ordinary business, and to know and understand the business he was engaged in,” lacks essential requisites of testamentary capacity to make a will, and to so charge is misleading and prejudicial.</p> <p>4. A testator’s eccentricities, peculiarities or delusions must not affect either the natural or selected objects of his bounty or interfere with his testamentary capacity to make a will. Whether or not such conditions of mind affect testamentary capacity is a question for the jury under proper instructions, and to charge that they are of no consequence, if testator has sufficient mental capacity to transact ordinary business and of understanding the nature of the business in hand, is prejudicial.</p>

<p>PLACING VENDOR’S STATEMENT ON A SEPARATE SHEET RENDERS CONTRACT OF CONDITIONAL SALE VOID.</p> <p>Conditional Sales — Vendor Held to Strict Compliance with Statutory Provisions — With Reference to Notice of His Claim — Section</p> <p>The rule that statutes which prescribe the manner in which mortgages or contracts of conditional sale shall be executed and filed or recorded must be strictly complied with, renders a contract oí conditional sale filed with the county recorder insufficient, where the statement of the vendor as to the amount due and unpaid does not appear “thereon,” but is embodied in an affidavit on a separate sheet attached to the contract of sale.</p>

<p>COLLISION BETWEEN TROLLEY CAR AND BUGGY,</p> <p>Negligence — Resulting in Buggy Being Run Down by Electric Car — ■ Charge of Court — Pleading—Burden of Proof — Last Chance — Inpeaching a Former Witness.</p> <p>1. Instructions to the jury which were approved either expressly or by implication at a former hearing of the same case on review, will not be held erroneous at ,a second hearing of the same case unless error clearly appears.</p> <p>2. A special instruction to the jury is erroneous which does not state the manner in which the negligence of the defendant caused the accident, and includes any negligence not charged in the petition.</p> <p>3. Negligence can not be predicated against a traction company,, because the motorman of the car which was in collision with a buggy did not stop his car or reduce its speed when he saw the buggy on the track, regardless of the intervening distance and the opportunity which the driver had to get the vehicle off the track before the car reached him.</p> <p>4. A question which leads a witness to answer by using the same words which a former witness has .denied using is incompetent, and permitting such a question to be answered constitutes reversible error.</p>

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

<p>COMPETENCY OF PAROL EVIDENCE TO SHOW THAT NOTES WERE NOT TO BECOME EFFECTIVE WITH DELIVERY.</p> <p>Negotiable Instruments Law — Delivery of Notes Secured by Chattel Mortgage — Oral Agreement as to When Notes are to Become Effectual — Construction of Section SlIOo — Burden of Proof — Evidence.</p> <p>It is clear that under Section 317Qo of the negotiable instruments law, it is admissible to prove by parol evidence that a promissory note was not intended to become effectual until the happening of a specified event at some date subsequent to its delivery; and im asmuch as a chattel mortgage is an incident only of the debt and can not be made any more than that by its terms, the rule is not changed by the fact that the note ig secured by such a mortgage.</p>

<p>RESTORATION OF MONEY TO INSOLVENT AFTER. ASSIGNMENT,</p> <p>Debtor and Creditor — Fraudulent Transfer of Money in Contemplation of Assignment — Money .Restored to Assignor After Assignment— Action by Creditors for an Accounting.</p> <p>One who with knowledge .of the insolvency of another and his contemplated general assignment for the benefit of creditors, receives from the insolvent a large sum of money and gives due bills therefor, holds the money in trust for the creditors, and can not absolve himself from liability tlierefor to the creditors by returning the money to the insolvent personally after the assignment has been made, especially where there was no disclosure to the assignee of such restoration.</p>

<p>CORRECT TITLE NECESSARY IN PROCEEDINGS IN ERROR.</p> <p>Error — Proceeding in Essentially a New Case — Can Not be Instituted in the Name of a Decedent and Executor Thereafter Substituted— Jurisdiction — Service of Summons — Waiver.</p> <p>Waiver of service of summons in a proceeding in error against a deceased person by an attorney for the executor of the deceased gives the circuit court no jurisdiction, and the plaintiff in error can not cure the defect by adding or substituting the name of the executor.</p>

The plaintiff was the owner of property -on Martin street, Cincinnati, and alleged that the defendants represented to him that they had a purchaser for -$1,000, and the property was sold at that figure. Plaintiff alleged that he subsequently learned that, the real price paid to defendants for the property was $1,200, and he sued for the $200 difference.

<p>SERVICE OF SUMMONS ON THE WRONG PARTY.</p> <p>Summons — Action Filed Against Controlling Instead of Subsidiary Company — Service had on Officer of Subsidiary Company — Service Defective and Amendment thereof Ineffectual — Injunction against Multiplicity of Suits — Section 50Jfl,</p> <p>1, Service upon the chief clerk of the superintendent of a railway is not service upon a chief officer, and where such service is had upon a petition in which the wrong company is named as defendant, the substitution of the name of the proper company, and the amend* ment of the return of summons to conform thereto, is ineffectual to bring the proper company into court.</p> <p>2. Where it appears that as many as six actions are being prosecuted by the same plaintiff as administrator of as many different estates against the same defendant, which can result only in .void judg* ments, a court of equity will intervene by injunction to prevent a multiplicity of suits and vexatious litigation.</p>

<p>CONSTRUCTION OF THE WORDS “ NEXT OF KIN.”</p> <p>Wills — Words “Next of Kin” will be Construed in Their Teehnieal Sense, When — Presumption Where it is not Known Whether Certain Relatives are hiving or Dead.</p> <p>Where it appears that a testator was uncertain as to whether certain relatives were living or dead, it will be presumed, in the absence of any reference to the statute of descent, and distribution, that he intended by the use of the words “next of kin” to designate a particular class of persons related to him in an equal degree of consanguinity.</p>

<p>LIABILITY FOR. INJURY TO SURROUNDING PROPERTY FROM BLASTING.</p> <p>Blasting — Injury to Surrounding Property from — Creates no Liability in the Absence of Negligence — Charge of Court as to the Degree of Care Necessary in the Use of Explosives in Such Work.</p> <p>It is not negligence per se to use explosives for blasting, and a charge to the jury in an action for damages to , property from blasting in the neighborhood is not erroneous, where the jury are told that “the users of such materials, knowing their explosive power and their destructive tendency, are bound to exercise the highest degree of care in their use.”</p>

<p>PRO CEEDURE WHERE CAUSES ARE MISJOINED.</p> <p>Improper Joinder of Gauses of Action — Proper Procedure by the Plaintiff — iError to Dismiss the Petition — Section 5064.</p> <p>A liberal construction of the civil code in furtherance of justice requires that, where separate causes of action against several defendants are improperly joined, the plaintiff be permitted to file a petition against each defendant as provided by Section 5064, Revised Statutes.</p>

<p>PROHIBITION OF BUSINESS NEAR AN AGRICULTURAL FAIR INVALID.</p> <p>Constitutional Law — Delegation of Power to Agricultural Societies— In Derogation of Property Rights, When — Police Power and its Limitations — Agricultural Societies Bound by the Limitations of Private Corporations — •Tyranny in the Control of Corporations— Creation of Monopolies — Business which Disturbs Religious Exercises Distinguished — •Section 7006.</p> <p>1. Section 7006 of Revised Statutes of Ohio which provides that “whoever establishes a temporary place of business for the sale of any article whatsoever or offers for sale any such article * * * within one-fourth of a mile of the fair ground of any agricultural society, while the fair of such society is being held therein, unless he had obtained the written permission of the board of such society” and imposing a penalty for the violation thereof, is an unconstitutional exercise of power by the Legislature.</p> <p>2. Such provision violates Section 1, Article XIY, of the Federal Constitution, because it abridges the privileges and immunities of citizens, deprives them of their property without due process of law, and denies to each the equal protection of the law.</p> <p>3. The delegation of power to the board of such fair, to determine who shall do the forbidden act, is an unlawful restriction upon a lawful business, giving the board the power to destroy competition and create a monopoly and to deprive a citizen of the right guaranteed to him by Section 1, Article I; of the Bill of .Rights of enjoying and possessing his property.</p>

<p>Error to Cuyahoga Common Pleas Court.</p> <p>Estill v. Fox, 23 Ky. (18 Am. Dee., 213) ; Woodson v. Gordon, 7 Tenn., 196 (14 Am. Dec., 743) ; Ellmore v. Hoffman, 2 Ashm. (Pa.), 159; Commonwealth v. Bennett, 16 Serg. & R. (Pa.), 243; Cooper-v. Roicley, 29 Ohio -St., 547; Hoss v. Layton, 3 Ohio St.. 352.</p> <p>14 Enc. Law (2 Ed.), 625; Mecch v. Bioner, 19 N. Y., 26; McDougall v. Walling, 48 Barb.. 364; Collins v. Ragrew, 15 Johns., 5; 8 Enc. Law (2 Ed.), 239, 247; Davis’ Appeal, 39 Conn., 395; Bump, Fraud. Convey. (3 Ed.), 508; Cannon v. Cheney, 8 C. C., 143 (affirming Cheney v. Camion, 35 Bull., 313); Rogers v. Edmund, 21 C. C., 655; 1 Bates’ Pleadings, 444; Rice v. Earnham, 7 N P., 189; Cooper v. Rowley, 29 Ohio St., 547; Perry, Trusts, Sec. 863, 864; Bettman v. Hunt, 12 Bull., 286.</p>

Guy H. Deiter was indicted for grand larceny. He excepted to the indictment by filing a verified plea in abatement which, among .other facts, set forth that one of the judges of the Common Pleas Court of Pike County directed the clerk of said court to draw from the jury wheel in the presence of the sheriff, thirty-five names of persons to serve as grand and petit jurors for the November term, 1908, of the court in said county, and to appear at 9 o’clock a. m., on November…

<p>PROVISION FOR. THE'APPOINTMENT OF LEGAL COUNSEL UNCONSTITUTIONAL.</p> <p>Constitutional Law — Legal Counsel — Duties of, are those of Public Officers — Provision for Appointment of, by County Commissioners, Void — Quo Warranto to Oust Counsel so Illegally Appointed — Sections 799, 845, 1277, 1278a, and 3977.</p> <p>In so far as Section 845 attempts to authorizé the appointment of legal counsel by county commissioners, it contravenes the provision of Section 2 of Article X of the Constitution of the state of Ohio, that all county officers shall be elected by the electors of their respective counties.</p>

<p>TRAFFIC IN NON-INTOXICANTS NOT SUBJECT TO DOW LAW TAX.</p> <p>Taxation — Sale of Non-Intoxicating Liquor — Not Subject to the $1,000 Doxo Law Tax — Meaning of the Word “Other” — Section 1/864-9.</p> <p>1. There are two definitions of the word "other.” One applies to and includes articles which are specifically named; the other has application to articles of the same kind as those generally described.</p> <p>2. Traffic in non-intoxicating liquor is not subject to the Dow tax.</p>

The. plaintiff in error brings this proceeding in this court to reverse the judgment -of the common pleas conirt rendered in an action wherein the State of Ohio prosecuted Walter Scheu for the illegal sale of intoxicating liquors. .

<p>ACTI6N FOR. THE LOSS OF A TRAVELING BAG.</p> <p>Gamers — Liability of a Parcel Carrier — For Failure to Deliver Traveling Bay at Baggage Room — Burden of Proof — Charge of Court.</p> <p>Tn an action to recover for the loss of a traveling bag from a carrier of parcels for hire, to whom it was entrusted to be delivered at a designated depot in time for a particular train, a prima facie case is made out by the testimony of the plaintiff that he inquired at the baggage room at the proper time and was unable to find his baggage.</p>

<p>OWNERS OF THE FEE ONLY HAVE A VOICE AS TO THE CHARACTER. OF STREET IMPROVEMENTS.</p> <p>Streets — Injunction Against the Improvement of — Will not Lie on the Petition of a Lessee for Years or a Mortgagee — Assessments—Notice — Irregularities—Benefits—Meaning of the Word “Owner."</p> <p>A lessee of land ^butting on a proposed street improvement is not entitled to notice of the resolution declaring the necessity of said improvement; nor is he entitled to an injunction to restrain the making of said improvement, or the levying of assessments on the demised lands to pay for the same, because of irregularities in the proceedings, or because his estate will be damaged by the improvement.</p>

<p>AVOIDANCE OF RELEAES UNDER. CLAIM FOR. PERSONAL INJURIES.</p> <p>Release. — Charge of Fraud in Obtaining — Tender Back a Prerequisite to Suit — Where One Suffering from Personal Injuries has Received Some Compensation — Contracts Voidable for Fraud Distinguished from, those Absolutely Void — Pleading in Avoidance — Accord and Satisfaction.</p> <p>Under' a claim for personal injuries, where a contract of release has been entered into which is not void, but merely voidable for fraud, it is incumbent upon the plaintiff, before asserting the cause of action to which the contract or release is a bar so long as it remains in force, to rid himself of that obstacle by appropriate measures of avoidance, and a tender back of the consideration received is a prerequisite to such avoidance.</p>

<p>ATTACHMENT — ERROR TO JUDGMENT ON APPEAL.</p> <p>Error can not be prosecuted to a judgment rendered on appeal from the determination by a justice of the peace on a motion to discharge an attachment.</p>

<p>PRESUMPTION AS TO ELECTION BY WIDOW.</p> <p>Widow — Presumption that She Elected to Take the More Valuable Estate Arises, When — Executory Devise — Title—Competency of Evidence — Attaching Charge of Court to Bill of Exceptions as an Exhibit — Error in Submitting to Jury Question as to Widow’s Bights — Errors in Admission of Evidence and Charge of Court which are not Prejudicial.</p> <p>1. Where all the records of the probate court were destroyed by fire subsequent to the probate of a will and the settlement of an estate, there being no direct evidence that the widow was cited to elect or made any election to take under the will^ a court will presume that the required citation was issued' and that the widow elected to take the more.valuable estate.</p> <p>2. A will provided that the testator’s real estate should pass to his wife and child in the same manner ’as provided by statute, and then provided: “in the event of the death of my said son without lawful issue, leaving my said wife' surviving him, then in that case, all my property, real and personal, remaining shall pass and go to my said wife as her sole and separate property.” The son having died in infancy subsequent to the death of testator,, the widow under the above quoted clause of the will took the estate in fee simple by way of executory devise.</p> <p>3. In case the widow had elected not to take under the will, and thereafter the son had died without lawful issue, whether or not the widow, notwithstanding-such election, would have taken the estate in fee simple by way of executory devise — Quaere.</p>

<p>IMITATION OF AN ESTABLISHED COMMERCIAL NAME.</p> <p>Unfair Competition■ — -In the Use■ of the Word “French" as Applied to Ice Cream — Circumstances Suggesting a Purpose to Deceive — Trade Names.</p> <p>Where a family named French has carried on a dairy and milk business for a great number of years under their own name, and more recently have built up in connection therewith an extensive business in ice cream, injunction will lie against the use of the word “French” in connection with an ice cream business carried on by a competitor who is not a Frenchman and whose manifest purpose is to attract trade by creating a false impression as to his own identity.</p>

<p>REGULATION OF AFFAIRS OF FRATERNAL BENEFICIARY ASSOCIATIONS.</p> <p>Fraternal Insurance and Mutual Benefit Societies — Limitation of Liability of — Based on Disappearance of Member for Seven Years or More.</p> <p>Where a fraternal beneficiary association reserves the right to amend its by-laws, a by-law providing that no death losses shall be paid where the only evidence of death is the presumption arising from disappearance for seven years, is for the mutual benefit of the members, not against public policy, and is binding upon the beneficary of a member, notwithstanding its adoption but fifteen days before the legal presumption of the member’s death would be established and notwithstanding the receipt of dues and assessments from the beneficiary up to date of the amendment. ,</p>

<p>PROSECUTION FOR. FALSE ARREST.</p> <p>False Imprisonment — Action for Damages on Account of — Competency of Evidence as to Nervous Effects Resulting from — Motive of Plaintiff — Defendant Liable for Natural Consequences of Arrest — Newly Discovered Evidence as a Ground for New Trial.</p> <p>1. Newly discovered evidence, if cumulative only, or such as might have been discovered with reasonable dilligence, is not availablé as a ground for a new trial.</p> <p>2. One causing an arrest to be made is liable for the natural and probable consequences of such arrest.</p> <p>3. It is competent for a plaintiff in an action for false arrest to testify as to the effect of the arrest upon her mental and nervous condition.</p> <p>4. Where the facts upon which an action for false arrest are based are sufficient, the motive prompting the bringing of the action is immaterial.</p>

<p>SALE OF DRUGS BY PHYSICIANS WHO ARE NOT PHARMACISTS.</p> <p>Physicians — Sales of Drugs or Pharmaceutical Preparations 5y a Physician from his Own Store — Not Within his Business as a Physician, When — Exceptions to Criminal Statutes — Negative Averment not Necessary, When — Section 77 of the Act of May 9, 1908 (99 O. L., 507).</p> <p>A physician who sells from his own drug store, or a store in which he is a part owner, drugs, chemicals or poisons to one or for the use of one who is not. his own patient, does not in so doing act within the business of a physician, and if he be not a pharmacist or assistant pharmacist such action subjects him to the pains and penalties provided by statute where such sales are made by others than pharmacists or assistant pharmacists.</p>

<p>PROOF AS TO QUALITY OF GOODS SOLD.</p> <p>Sales — Quality of Goods Sold — Alleged Breach — Evidence that is Insufficient to Establish a Contract or Its Breach.</p> <p>The filing of an affidavit charging that the goods sold did not come up to the contract does not prove breach of contract, nor does the fact that the plaintiff pleaded guilty to the charge of adulteration prove that the goods were adulterated.</p>

<p>SUBJECTING REAL ESTATE TO PAYMENT OF DEBTS OF ANCESTOR..</p> <p>Quieting Title — Right of Owner of Estate in Remainder to Bring Proceeding — •Liability of Land to Payment of Debts of Ancestor — Application of the Statute of Limitations — When the Statute 'Begins to Run — Sections 5779, 6137, 4981 and 4985.</p> <p>Inasmuch as liability to have title by descent divested by a proceeding to subject the land to payment of debts of the ancestor is cast upon the heirs by statute, such a proceeding is not exempt from the statute of limitations, but must be brought within six years from the discovery by the administrator of the fact that the personalty is insufficient to pay the debts; and after the running of the statute it\is the right of an owner of an estate in .remainder, though not in possession, to bring an action to quiet his title in said estate against the claims of the administrator.</p>

In the matter of the petition against prohibition of the sale of intoxicating liquors in a residence district (part of Winton Place) in the city of Cincinnati, Vice-Mayor Galvin rendered the following, opinion: “Under the provisions of what is commonly called the Jones law, being the act passed March 2, 1906, it is- provided in Section I that whenever a majority of the qualified electors of a residence district in a municipal corporation shall sign a petition in favor of…

<p>BREACH OF CONTRACT FOR. THE SALE OF CATSUP.</p> <p>Sales of Catsup — Action for Breach of Contract for the Sale of — Shortage in Measurement — Belay in Payment — Waiver—Charge of Court —JSrror—Custom and Usage — Pleading.</p> <p>1. Where no waiver is pleaded as to the most important of the breaches of a contract, it is error to charge the jury that the defendant had no right to rescind the’contract if he had waived all the breaches of its material provisions.</p> <p>2. If catsup had been sold by the barrel, and the testimony shows that it was customary and necessary to run the catsup into barrels and close them up while hot, there is an implied agreement between the parties that the shrinkage shall be borne by the purchaser.</p> <p>3. And if there is a provision in the contract that the measurements shall be made at the place of shipment, it amounts to a condition precedent, and a refusal by the buyer to be bound by this provision justified the seller in repudiating the whole contract.</p>

<p>ASSAULT BY A CONDUCTOR. UPON A PASSENGER..</p> <p>Torts — Assault upon a Passenger by a Railway Conductor is Within the Scope of His Authority, When — Company Liable for Punitive as Well as Actual Damages — Master and Servant — Charge of Court —Error—-Purpose of Sections SJ/3S and SJfiJf.</p> <p>A different rule applies to assault by a conductor of a railway train upon a passenger in transit upon his train, than to ordinary cases of injuries inflicted by servants acting in other capacities; and where a conductor makes an assault upon a passenger whose conduct is peaceable and who is not violating any of the rules of the company, he must be held 'to have acted within the scope of his authority and to have rendered the company liable for punitive as well as actual damages.</p>

<p>CONVEYANCE OF PROPERTY BY INFIRM PARENT TO SONS.</p> <p>Deeds — Action to Set Aside — Doubt as to Grantor’s Capacity — But the Purpose Accomplished was Evidently in Accordance with an Intention Long Entertained — Burden of Proof as to Fairness of Transaction. v</p> <p>Notwithstanding some doubt by the court as to the weight of the evidence, deeds will not be set aside on the ground of undue influence and lack of mental capacity, where they accomplish substantially • ’ the' same result- achieved by the grantor by the execution of a will six years before when no doubt existed as to his mental condition or freedom of action.</p>

<p>DAMAGE TO LAND FROM DIVERSION OF WATER. BY NEW BRIDGE.</p> <p>Negligence — Alleged, in Construction of Bridge — Whereby Water was Diverted upon Plaintiffs Land — Proximate Cause.</p> <p>Recovery for damages to land by flood waters can not he had from a railway company for negligence in the construction of a bridge, where it appears that the flood was unprecedented, and also that other causes to produce the injury intervened and the building of the bridge was therefore not the proximate cause.</p>

The relator in this ease filed the following petition in this, court praying for a writ of mandamus directed against the defendant board and its individual members: The relator, Benjamin Gaines, is a resident of the city of Cincinnati, in the county of Hamilton and state of Ohio, and is a duty matriculated student of the Ohio Medical College of the University of Cincinnati, where he has been pursuing his studies for four years.

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

<p>CONFESSIONS OBTAINED UNDER. DURESS IN CRIMINAL CASES.</p> <p>Criminal Law — Duress in Obtaining Confessions — Circumstances under Which, Admissions by a Suspect are not Voluntary — Prejudicial Error in the Admission of Testimony.</p> <p>1. Where a person suspected of crime is taken to a private office and questioned for two days and nights regarding circumstances surrounding the crime, and is kept under restraint until released by habeas corpus, and is repeatedly told that if he would tell the truth he would he allowed to go, his interrogators assuming to be the final arbiters of what was the truth, it is evident that his statements were influenced by fear of further restraint or the hope of regaining his liberty, and such statements can not be regarded as voluntary.</p> <p>2. The claim that .the statements made by an accused person under such circumstances were not confessions, but were mere admissions, does not make them competent evidence against him where they constitute conclusive evidence with reference to the crime charged, and to receive such statements as evidence constitutes prejudicial error.</p> <p>3. It is also prejudicial error to admit a statement of a conclusion by a witness, who has stated no facts from which the conclusion can be drawn, and as to which the jury are quite as competent as the witness to draw a conclusion.</p>

<p>STATUS OF POLICIES ISSUED BY UNLICENSED INSURANCE COMPANIES.</p> <p>Insurance — Policies Issued by Unlicensed Companies — Payment of Premiums not JSnforcible in Ohio — Policies may be Collected in State of Issue.</p> <p>Where an insurance company, which has not complied with the Ohio law requiring that a license be issued to do business within the state, evades this requirement by issuing policies outside of the state on property located within the state, an action can not be - prosecuted in the courts’of the state for the recovery of premiums on such policies; but payment on a policy so issued may be en- ' forced within the jurisdiction of the state in which it was issued, and an action for recovery of premiums may be maintained within such state provided jurisdiction can be obtained over the person of the policyholder.</p>

<p>AS TO APPOINTMENT OF COUNSEL FOR COUNTY OFFICERS.</p> <p>Legal Counsel — Prosecuting Attorney is, in five First Instance — Legality of Appointment of Assistants — Sections 81/5 and 1271.</p> <p>In an action in which the board of county commissioners is a party and in which the prosecuting attorney says he is willing and able to prosecute, the board of county commissioners is without authority to employ other legal counsel.</p>

<p>NOT NEGLIGENCE PER. SE TO ALIGHT FROM A STREET CAR AT A SAFETY STOP.</p> <p>Municipal Con-porations — Injury to Woman■ from Defect in Street — Not Negligence to Alight from Car at Safety Stop, When — Charge of Court — Ordinary Care — Error—Evidence.</p> <p>1. The accepted definition of ordinary care, that it is that degree of care which a person of ordinary prudence would use under like circumstances and conditions, applies to a class rather than to a particular individual, and a judgment will not he disturbed on the ground that the use of this definition of ordinary care in the charge of the court was unfair to the plaintiff in that particular case.</p> <p>2. Inasmuch as an ordinance providing that street cars shall stop on the further cross-walk is a requirement which applies to the street car company, and in no way controls passengers in boarding or alighting from cars, it is not error to exclude such an ordinance in an action against a municipality for damages on account of injuries to the plaintiff from stepping into a hole in the street after alighting from a car.</p> <p>3. It is not negligence per se for a passenger to alight from a street car which has made a safety stop, but has not yet reached its regular place for stopping.</p>

<p>NEGLIGENCE — UNGUARDED BELT — PROXIMATE CAUSE.</p> <p>Where an employe while standing upon a stool is thrown by the toppling over of the stool upon an unguarded belt and injured, the fact that the belt was unguarded was not the proximate cause of the injury, and recovery can not be had against the master because of the unguarded belt.</p>

The plaintiff filed a petition in the common pleas court, alleging that the defendant is an Ohio corporation, organized for the purpose of conducting the business of an inn-keeper, and was on March 12, 1905, and still is operating the Auburn Private Hotel, in Cincinnati, for the entertainment and accommodation of the general traveling public; that on said date the plaintiff was a guest at the defendant’s hotel, and placed his wearing apparel in the care and custody of the…

<p>INJURIES ALLEGED TO HAVE BEEN SUSTAINED ON • A DEFECTIVE SIDEWALK.</p> <p>Sidewalk- — Allegation that a Defect in had Existed “for a Long Time’’ —Objection on the Ground of Indefiniteness too Late when First Made on Review — Charge of Court — Definition of Ordinary Care — ■ Qualifications of a Juror Who had Himself Recovered a Verdict in a Similar Case — Weight of Testimony.</p> <p>1. In an action for damages for injuries resulting from a defective sidewalk, the objection that because of the indefinite allegation that the defect had existed “for a long time” the petition does not state a cause of action, comes too late when deferred until the case reaches the reviewing court.</p> <p>2. The fact that one of the jurors in a similar action l'or damages against a municipality had recovered a ¡verdict, does not constitute ground for a reversal of the judgment in the present case, where it appears that counsel for the municipality made no examination. of the juror before going into the trial,</p> <p>3. Where there is an allegation in the answer of the city that the plaintiff having full knowledge of the condition of the walk voluntarily went upon and used it and thereby contributed to his alleged injury, the city is entitled to a more definite charge as to the plaintiff’s negligence in so doing that is found in the statement that if he was negligent in going upon the walk he could'not'recover.</p> <p>4. The evidence being evenly balanced as to whether there was a walk at the point where the plaintiff claimed to have been injured, affidavits to the effect that on the night of the accident and while he was being helped home he had stated that the place where he had fallen was more than a block distant' from the point alleged in the petition are a sufficient warrant for granting a new trial, and the overruling of the motion was error of a character that makes it necessary to reverse the judgment.</p>

<p>CHANGE IN THE FLOW OF SURFACE WATER.</p> <p>Municipal Corporations — Liability of, for Injury to Property — By Increased Flow upon it of Surface Water — Measure of Damages— Negligence not Necessary as a Basis of Action — Discretion as to the Order of Admitting Testimony — Charge of Court.</p> <p>1. Where damages are claimed on account of an increased flow of surface water upon the premises of the plaintiff, it is immaterial whether or not the wrong was due to negligence or otherwise.</p> <p>2. The measure of damages to property due to increasing the flow upon it of surface water is the cost of restoration to its former condition, and where cost of restoration and necessary repairs are both allowed the latter should he eliminated from the verdict.</p> <p>3. It is not an abuse of discretion to permit the admission of evidence out of order, when the court at the time states to opposing counsel that they may offer evidence to meet it.</p> <p>4. Where in the charge to the jury the eourt speaks of damages resulting from or by reason of the acts complained of, other acts are necessarily excluded.</p>

<p>MISTAKE IN DESCRIPTION OF LEASED PROPERTY.</p> <p>Lease — Rescission of, for MistaTce in Description — Lessee not Entitled to Recover Rents Paid, When — Circumstances Warranting Rescission of Lease — Description by Metes and Botmds and by Occupation — Intended Use of Property not Material, When.</p> <p>1. Where a mistake has occurred in the description ■ of land held under lease, it is immaterial that in the advertisement offering the land for lease it was described by both metes and bounds and by occupation, while in the lease as afterward executed it was described by metes and bounds only, since the description by metes and bounds would control that by occupation.</p> <p>2. A mistake in the description of leased premises may be material notwithstanding the lessee has not used the property for the purpose intended at the time the lease was executed, and where it appears that the mistake was mutual and that the lessee acted immediately upon discovering it, he is entitled to a rescission of the lease; but there can be no recovery of rents' paid while the lessee was in possession and enjoyment of the premises previous to the discovery of the mistake.</p>

<p>EXCLUSION OF FOUNDATION IN SETTLING FIRE LOSS.</p> <p>Insurance — Construction of Section 3691 — Providing that Cellar and Foundation Shall Not he Considered as Part of Structure in Settling Loss — Charge of Cou/rt with Reference t.o Total Loss — Appraisement — Section 361$.</p> <p>1. Notwithstanding the insurable interest which the owner of a building has in the foundation upon which it rests, he can not recover for the foundation where the policy includes it as a part of the building.</p> <p>2. Where it is undisputed that the loss was total, a failure on the part of the court to qualify the definition of "total loss” in the charge to the jury does not constitute error; and where the building exclusive of the foundation is a total loss, a disagreement as to the amount of the loss is unimportant and the necessity for an appraisement does not exist.</p> <p>3. A charge that the jury need not consider whether or not the property was vacant at the time the policy was applied for and issued is not erroneous under the provisions of Section 3643, particularly when the evidence is undisputed that the agent of the company . had knowledge of such vacancy.</p>

<p>PROXIMATE CAUSE OF INJURY TO A LOCOMOTIVE FIREMAN.</p> <p>Negligence'■ — Fireman Suffered Injuries in Carelessly Stepping from Ms Engine — Proximate Cause — Placing Guard Rails and LigMs on Bridges not a Duty of Railway Company■ — Section 3805, Providing ' Joint Liability for Lessor and Lessee of Railway Tracks.</p> <p>1. Where a fireman is injured in stepping off his engine backwards and in the dark, and without making'any efiort to discover where he was stepping, the fact that his reason for getting off was that the engine was out of repair and needed attention does not constitute the proximate cause of his injury or render the railway company’ liable therefor.</p> <p>2. Nor does the fact that the engine happened to be standing at the time on a -bridge which was unlighted and not provided with guardrails add to the responsibility of the .company or-■ eliminate the . element of plaintiff’s own negligence as to his safety.</p>

Tbe plaintiff, a passenger on a traction car, was injured at a crossing of traction and steam railway tracks, the injury consisting chiefly of disfigurement of his face. A judgment was entered below in his favor for $3,000 • against the traction company. A settlement had previously been made with 'the steam railway company.

In the court below the wife in this case was decreed $4.50 per week alimony. The husband appealed to the circuit court, which granted the same judgment as the common pleas, and remanded the case to the common pleas for execution. Thereafter the common pleas court committed the husband to jail for contempt in failing and refusing to pay the judgment, and the wife brought an action before a justice of the peace on the bond for appeal to the circuit court for $40 unpaid alimony.

<p>LIABILITY FOR. LIQUOR TAX WHERE SALES ARE SMALL.</p> <p>Tax on Liquor Business — Traffic Carried on in Small Quantities — Seller Liable for the Tax — Notwithstanding the■ Sales are Made in Connection with an Illegal Business — Section JjS6Jr9.</p> <p>1. The purchase of a few pints of beer at a time and the sale of it.at a ' profit constitutes trafficking in intoxicating liquors' as defined by the statute, and renders the seller liable to payment of the tax on trafficking in spirituous, vinous, malt or other intoxicating liquors.</p> <p>2. The fact that the sales are made in connection with-an illegal busi- ' ness does not*har the state from enforcing collection of this tax.</p>

<p>DETERMINATION OF LIABILITY UNDER. A BOND.</p> <p>Bond — For Performance of Public Work — Default of Contractor— Methods of Ascertaining Liability of Sureties — Discretion in Re-letting Contract — Section 1536-553. ' •</p> <p>In the absence of a showing of abuse of discretion, the sureties of a defaulting contractor for public work will not be heard to complain, because the contract was relet to the next lowest and best bidder and the loss thereby sustained was taken as the measure of their liability.</p>

<p>EQUITY AND ACCOUNTING.</p> <p>Conversion — Claim for Recovery on Account of — Not Equitable and not Appealable, When — Creation of Trust in a Publication — Action for Profits Resulting — 'Jurisdiction as to Copyrighted Booh Plates and in Actions for Recovery of Specific Personal Property — Pleading.</p> <p>1. A claim for wrongful conversion does not become an equitable action by reason of a mere averment that the amount due is unknown, coupled with a prayer for an accounting, when the allegations of the petition do not otherwise require a decree granting equitable relief; this being true, such an action is not appealable.</p> <p>2. Where a publication is given by its founder in trust to a society, and in reliance on the trust thus created large sums were contributed by members of the society which were- used in extending the circulation and value of the publication, equity will not require the trustees of the society to account to the estate.of the donor of the publication for profits derived herefrom.</p> <p>3. There can be no recovery of profits arising from the publication of the books of an author unless the books were copyrighted, and in that event the state courts would be without jurisdiction.</p> <p>4: An action for recovery of book-plates and electrotypes is an action for recovery of specific personal property and can not be determined by the circuit court on appeal.</p>

<p>ACTION FOR. BREACH OF WARRANTY OF GOODS.</p> <p>Evidence — Objections to Questions Should be Mude before Answered— Traveling Salesman — Services by, Outside of Regular Line of Work — Warranty of Goods — Custom—Contracts.</p> <p>1. It is not correct practice to postpone an objection to a question until it develops what the answer will be, and then move to strike the answer out; and where it becomes necessary to move to strike out part of an answer, the motion should clearly state what part of the answer is embraced therein, or it.will be the duty of the court to overrule the motion.</p> <p>2. While it is true that a traveling salesman, charged only with the duty of selling goods, has no power to modify a contract made for his employer, it is possible that he has rendered services for his employer in the way of adjusting differences which may have arisen or in completing the contractual relation, which are not within his ordinary line of duty.</p> <p>3. The same rule which permits a buyer to sue on a breach of warranty without first returning the goods, also relieves him from the necessity of shipping out the goods which he still has remaining on hand with the accompanying risk of injury to his trade, after a reasonable test has made it apparent that the goods are of inferior quality.</p> <p>4. While custom may aid in construing a contract, and parties will be considered as having entered into a contract with reference to an established custom, yet custom can not be substituted for the plain provisions of the contract.</p>

<p>INJURY TO EMPLOYE FROM EXPOSED COG WHEELS.</p> <p>N'egligence — Doctrine of Assumed Risk without Application — Where there has been a Failure to Afford Protection Against Injury by Machinery — Unsafe Place to Work by Reason of Slippery Condition of Floor — Charge of Court — ■Evidence•—Section J¡SGJi-89c.</p> <p>1. The doctrine of assumed risk has no application where the risk which it is alleged was assumed arose out of a violation of the statutory obligation of the master to protect his employes against injury by machinery and appliances.</p> <p>2. It -is not error to- exclude the opinion of an expert witness as to whether certain cog-wheels were “exposed,” where the jury viewed the premises and had before them the evidence with reference to said gearing.</p> <p>3. A charge of negligence in permitting oil and grease to accumulate on the floor where plaintiff was obliged to stand while at work, is eliminated from the case by a finding by the jury that the accident was due to .exposed gearing; and the judgment will not be reversed because of refusal to give special charges relating to either assumption of risk or the slippery condition of the floor.</p>

<p>PROCEDURE UNDER. THE JONES LOCAL OPTION LAW.</p> <p>Liquor Laws — Jurisdiction of the Circuit Court — Discretion in Betting a Case for Trial — -Time for Filing Findings of the Judge and for a N-ew Trial.</p> <p>1. The circuit court has jurisdiction to reverse the judgment in a Jones law local option case and remand the case tor a new trial, notwithstanding no express provision therefor is contained in the act.</p> <p>2. The setting of cases for hearing and the granting of continuances are largely matters of judicial discretion, and error will not lie to the action of a court with reference to these matters unless an abuse of discretion is shown.</p> <p>8. A reasonable time should be allowed for a new trial after the filing with the clerk of the municipality of the findings of the judge od the original hearing.</p>

<p>CARE AT A RAILWAY CROSSING.</p> <p>Negligence — Buggy Struck by Train at Railway Crossing — Evidence Establishing Negligence in Nailing to Look and Listen — Error in Refusing to Direct Verdict for the Railway Company.</p> <p>It is error to overrule a motion to direct a verdict for the defendant railway company in a crossing injury case, where the testimony offered on behálf of the plaintiff shows that she was familiar with the crossing and its surroundings and the schedule of the trains, and that others similarly situated as herself with reference to the crossing heard, the warning whistle and saw the approaching train in ample time for her, had she been proceeding with due care, to have become aware of the approach of the train and avoided the collision.</p>

<p>OWNERSHIP OF PROPERTY AS BETWEEN HUSBAND AND WIFE.</p> <p>Presumption — As to Husband’s Means being Used in the Purchase of Property Standing in the Name of His Wife — Action to Subject to Husband’s Debts — Burden of Proof — Circumstantial Evidence.</p> <p>The rule that the burden of proof rests upon the plaintiff, and does not shift to the defendant by reason of presumptions in his favor, applies to an action to subject to a husband’s debts property conveyed to his wife; but on account of the relation of husband and wife less evidence is required to raise a presumption in favor of the plaintiff in such an action, and where circumstances do raise a presumption that the property was paid for from the husband’s means, the fact that the wife remained silent during the trial when proof that her money was used in the purchase might easily have been produced if in existence, together with inconsistent statements previously made by her, is a sufficient. basis for a decree against her.</p>

<p>DAMAGES AGAINST A POLICEMAN FOR. ASSAULT.</p> <p>Police — May Arrest Without Warrant and Without Explaining Reason, When — Interference of By-stander — Assault of Officer on Bystander ■ — Verdict Awarding Damages Sustained■ — Charge of Court.</p> <p>In an action against a policeman for damages for assault and battery, where the officer answers that the plaintiff interfered when he was attempting to arrest a third party and that he used no more force toward plaintiff than was necessary to prevent such interference, the law is correctly stated to the jury when they are told that the defendant as a peace officer was justified in arresting without warrant one found violating a valid city ordinance, and that the officer might use such force as.was necessary to defend himself from attack by the offender, and this he might do without notifying him of the cause of his arrest.</p>

Harrington, the plaintiff in error, a prisoner in the Cincinnati work house, filed a petition in the court of common pleas.for a writ of habeas corpus, which having 'been denied, error was' prosecuted thereto. Harrington ivas committed to the work house by the police court under sentences which aggregated- more than five years.

The defendant in error, plaintiff below, while employed as a motorman by the railway company, was severely injured in a collision, due to the fact that he left the car barn under the impression that the car which he was scheduled to meet at that point had arrived, whereas -the regular crew on the approaching car, whom he saw at the car barn, were not on that run on that ,clay.: . The jury gave him a verdict of $3,500.

<p>AS TO AGREEMENTS TO FORBEAR. SUIT.</p> <p>Limitation of Actions — Effect of an Agreement to Forbear Suit on a Condition Famed, — Positive Evidence Required as to Existence of Such an Agreement — Failure óf >Consideration.</p> <p>Evidence of some conversation between the parties to the effect that if they could not settle'their differences they would arbitrate, does not constitute evidence of a positive agreement to forbear suit on a condition named, and does not preserve the claim against the running of the statute of limitations.</p>

<p>INSTRUCTIONS TO JURY IN ACTION FOR. PERSONAL INJURIES.</p> <p>Negligence — Preponderance of Evidence — Charge of Court — Error—• Proximate Cause.</p> <p>A charge of court is erroneous which permits the plaintiff to recover on a preponderance of the evidence, regardless of his own possible negligence, and without the negligence of the defendant being the direct or proximate cause.</p>

<p>Plaintiff in error, Ellis B. Gregg, guardian of the estates of the minor defendants in error, filed an application' in the probate court for allowance of compensation as attorney for himself as.guardian in defending litigation concerning real estate in which his wards had an interest, which litigation was not then and is not yet at an end. . The probate court allowed him compensation for ordinary services, but expressly continued so much of said application as related to attorney’s fees in the real estate litigation until the final result thereof. Appeal was taken to the common pleas court, which court, of its own motion, appointed a guardian ad litem, who- filed a motion attacking the jurisdiction of said court to entertain said, appeal, the chief reasons being that the order appealed from was not a finality, and if it were it was not the settlement of the guardian’s account.’. The motion was granted in part and overruled in part and the court retained for hearing so much of the appeal as related to the allowance for ordinary compensation.</p> <p>Thereupon error was prosecuted to the' circuit court, and at the hearing in this court, which was more than four months after the final order on said motion in the common pleas court, the guardian ad liiem on behalf of his wards asked leave to file a cross-petition in error assailing the jurisdiction of the common pleas court on the same grounds set forth in his motion to dismiss the appeal. Objection was made by the plaintiff in .error to the filing of this motion on the ground that the four months had elapsed.</p>

The defendant in error was riding in a one horse wagon with .a driver, and in crossing Broadway at Eighth street a ear coming from the north on Broadway collided with the wagon and she was thrown from the wagon and injured. At the trial below she was given judgment for $550.

<p>RECOVERY ON A CONTRACT NOT RIGIDLY PERFORMED.</p> <p>Contracts — Failure to Laterally Perform — Preponderance of Evidence— Burden of Proof — Charge of Court.</p> <p>1. A contractor may recover notwithstanding his contract has not been rigidly 'performed.</p> <p>2. There are no degrees of preponderance;' if the evidence preponderates at all, however slightly, it is sufficient.</p>

<p>AMENDMENT AFTER. R.EVER.SAL.</p> <p>Pleading> — Authority to Amend after Reversal by the Supreme Gotirt— Payment of Taxes under a Mistalce of Law but with Knowledge of the Pacts. ■</p> <p>Where tile Supreme Court sustains a demurrer and remands the case ■for further proceedings, the circuit court has authority to allow an amendment to j;he pleading to which the demurrer was'directed.</p>

<p>ACTION AGAINST FOREIGN RAILWAY CORPORATION.</p> <p>Attachment — Action before Justice of the Peace — Foreign Railroad Gwporations — Jurisdiction over Personally and over the Properti/ of — Sections 6JtTS, 6J/S9 and 6J/96.</p> <p>1. Sections of the code of civil procedure relating only to jurisdiction over the person are not applicable under the section relating to attachments where jurisdiction is sought over the property attached.</p> <p>2. The right of attachment against personal property of a foreign railroad company, having no place of business or officer upon whom summons can be served within the county, is given under Sectiou 6489, and such a company is not exempted from attachment by the provisions of Section 6478.</p>

<p>DISCRIMINATION IN THE MATTER. OF VEHICLE LICENSES.</p> <p>License Fees for Vehicles — Ordinance Rendered Invalid by Providing Unequal Fees for Vehicles of the Same Glass — Recovery of Excess Collected.</p> <p>An ordinance which provides that a license fee of $25 shall be paid by each wagon hauling sand, fire-clay, safes, engines, boilers or logs, and other wagons of the same class pay only $10, is unreasonable and can not be enforced.</p>

<p>LIABILITY FOR. INSURANCE ASSESSMENT.</p> <p>Mutual Benefit Insurance — Liability of Members of an Insolvent "Company to Assessment — Defenses. . '</p> <p>The holding in the case of Swing v. Crane, as to defenses a member of a mutual insurance company may set up against an assessment, does not militate against the findings of a trial court or the conclusions that may he reached in an action to enforce payment of such an assessment.</p>

<p>PROSECUTION OF ERROR. TO CHARGE OF COURT.</p> <p>Where error is prosecuted to the charge of the court, the record should show that the charge as embodied therein embodies all that the court said to the jury on the subject complained of.</p>

<p>CONSTRUCTION OF THE ONE PER CENT. LIMITATION ON MUNICIPAL BOND ISSUES.</p> <p>Municipal Corporations — Limitations of Bond Issues — What Bonds May be Excluded in Determining Whether Limitation has been Reached —Bridges—Validity of Ordinance Providing for Less than a Completed Structure — Intention to Complete the Structure — Sections 2835 and 2835b.</p> <p>1. A. municipal council has power and discretion to authorize contracts to be entered into and to issue bonds for the completion of parts of a bridge over a navigable river within the municipal limits without making provision for the construction of a draw or other method of spanning the river. The fact that an expressed intention to complete the bridge is revokable will not defeat the exercise of such power.</p> <p>2. An issue of bonds amounting to $525,000 by a city having an aggregate of $370,000 of bonds authorized and a tax valuation of $79,-000,000, will not be deemed as in excess'of the 1 per cent, aggregate limitation prescribed by Section 2835,- Revised Statutes, if in view of the modification of Section 28350, eliminating all bonds issued prior to April 29, 1902, wjhether they be original bonds to provide for payment for construction of water works or bonds to refund indebtedness created by such original issues, the proposed issue added to that already authorized not within the excepted b.onds, does not exceed the prescribed limitation.</p>

<p>NEGLIGENCE ON PART OF MUNICIPALITY.</p> <p>Dangerous Sidewalk — Bordering pn Unguarded Wall Over which a Pedestrian Might Fall — Liability of the Municipality — Pleading-Variance — Interrogatories. ‘</p> <p>Where a street and.sidewalk run so near an unguarded retaining wall as to create the impression that the wall is within the line of the sidewalk,' the municipality is liable for injuries sustained by á pedestrian who fell over the wall; and a variance between the . . ■ allegations of the petition and the proof as to the location .of the . wall.is not material. .</p>

<p>JUDGMENTS-EXECUTION — LIEN—PRIORITY—SECTION 5415.</p> <p>Where the levying of., execution .on a judgment is delayed for. more than one year, the.judgment creditor while retaining his lien loses his priority to a subsequent judgment under which execution was levied upon the land of the debtor'within one-year.</p>

<p>OFFICE OF CERTAIN MOTIONS AND DEFENSES.</p> <p>Pleading — Motion for Judgment and to Malte more Definite and Certain . —Good Faith in the Filing of Answer or Gross-Petition not 'Material; When-^-Frror.</p> <p>1. While the overruling of a motion to make definite and certain may constitute reversible error, the question whether or not the overruling was proper can not be determined on a motion for judgment, • but only on a petition in error.</p> <p>2. The object of a motion to strike from the files is to test the correctness of its form or -the regularity of its filing; and i if an answer contains a good defense or a cross-petition a good cause of action, it is immaterial whether or not it was filed in good faith, or for purposes of delay only.</p>

<p>EVIDENCE ESTABLISHING A COMMON LAW MARRIAGE.</p> <p>Husband and Wife — Marriage per Verba de Praesenti, Valid, When — ■ Agreement not Made in the Presence of Witnesses — Competency of Testimony of the Parties thereto — Death of One does not Preclude Receiving Testimony of the Other — Question of the Validity of the Marriage One of Fact for Jury or Court, When — Sections . 59J/1 and 58/,2.</p> <p>1. A mutual agreement entered into in good faith between competent parties to contract the relation of husband and wife, followed by cohabitation as such, constitutes a valid marriage, even if the agreement was not made- in the presence óf witnesses.</p> <p>2. When it appears that the relation between the parties was in its inception meretricious and not accompanied by any evidence of marriage, but subsequently their relations to each other assume a matrimonial character by being surrounded by evidence of a valid marriage, a question of fact is presented for the determination of the jury or court trying the issue of marriage or no marriage between the parties.</p> <p>3. In such case either party is a competent witness to prove the agree'ment. After the matrimonial status is fixed by cohabitation, the parties thereafter come under the rule of exclusion as is provided in Subdivision 3 of Section 5241, Revised Statutes.</p> <p>4. In this case, notwithstanding the husband is dead, not being a party the wife is not rendered incompetent as a witness by Section 5242, Revised Statutes.</p>

The plaintiff in this ease sued to quiet title to a strip of ground claimed by the defendant village as a street. The contention of the village was that certain streets within the territory which now- forms a part of the village were dedicated by the owner of the lands in 1849, thirty years before the incorporation of the village. The plaintiff built a fence across one of these streets and for many years used the space as a garden.

<p>State v. Johnson, 58 Ohio St., 417; People v. Rodrigo, 69 Cal., 601; State* v. Shea, 104 Iowa, 724; Commonwealth v. McKie, 67 Mass. (1 Gray), 61; United States v. Lunt, 1 Sprague, 311; People v. Shanley, 62 N. Y. Supp.; 389; State v. Schmidt, 19 S. Dak., 585; State V. Fowler, 52 Iowa, 103; People v. Lynch, 1Ó1 Cal., 229; Marts v. State, 26 Ohio St., 162; Goins v. State, 46 Ohio St., 457; Darling v. Williams, 35 Ohio St., 62; Jordan v. State, 13 C. C., 471; Stewart v. State, 1 Ohio St., 66; Bennett v. State, 10 C. C., 84.</p> <p>Error to Huron Common Pleas Court.</p>

Banks and Banking — Burden of Proving Payment of a. Savings Account — Charge of Court — Error. A bank, in an action by a depositor to recover the balance of a savings account, has the burden of proving an alleged payment or withdrawal by the depositor. The burden is not on the depositor to show the balance claimed and that payment has not been made. Error to Lucas Common Pleas Court.

The defendant in error, while crossing the street at Sixth and Vine, fell and was so severely injured as to cause a miscarriage.

<p>BOARDING A CAR IN MOTION.</p> <p>Negligence — In Attempting to Board a Car which was Still in Motion_ Judgment not Sustained by the Evidence,</p> <p>A judgment for damages in favor of an intending passenger, who was injured in an attempt to board a car, is not supported by the evidence, where it appears that the attempt to board the car was made and the injury occurred before the car had been brought to a standstill.</p>

The plaintiff in error was arrested and tried before the mayor of the city of Delaware, Ohio, on an affidavit charging the unlawful… Held: resulting in a prohibition of the sale of intoxicating liquors within the county, it was argued that the court should take judicial notice of things which are public in their effects and relations and ought to be known within its jurisdiction, citing Black on Intoxicating Liquors, Sec. 102, p. 136, where reference is made to Rauch v.…

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

The intestate, a traction ear conductor, was killed while adjusting’ his trolleys by a run-a-way car which came down the grade behind him. At the first trial the administratrix recovered a judgment of $6,000, which was set aside by the circuit court.

<p>QUESTIONS ARISING ON SETTLEMENT OF AN EXECUTOR’S ACCOUNT.</p> <p>Estafes of Decedents — Exceptions to Account of Executor — Certification of, to the Common Pleas Court — Repairs Made by Executor to ■ Property Devised — Additional Compensation — Counsel Fees for Defending MEll — Liberal Allowance for Successful Defense where the Contract was for a Contingent Fee — Authority of Executor to Employ Counsel for Other Matters — Division of Expense — Form of Order to Distribute — Jurisdiction—Section r>85.</p> <p>1. Where a probate judge has any interest whatever in a controversy, whether financial or otherwise, he is authorized under Section 535, Revised Statutes, to certify the case to the common pleas, either on motion of the parts interested or acting sua sponte.</p> <p>2: An executor has authority to make needed repairs on a building specifically devised with the direction to turn the property over to the devisee at any time after one year from the death of the testator, but such repairs should only go to the extent of keeping the property in as good condition as the executor found it.</p> <p>•3. If an executor defends in an action to set the. will aside, and the action results in sustaining the will, he may be allowed a reasonable amount for counsel fees in that behalf, and where his contract with counsel was on the basis of a contingent fee the allowance will be made more liberal because of that fact.</p> <p>1. The fact that an executor is a man of affairs with business experience and ability does not afford ground for denying to him the aid of counsel in the settlement of the estate.</p> <p>5. An order to an executor with reference to the distribution of the • fund in his hands should merely direct him to pay it out in accordance with law and the provisions of the will; any further direction as to whom the fund is to be paid' is inoperative and void.</p>

<p>DISMISSAL ON ERROR. FOR. FAILURE TO FILE TRANSCRIPT.</p> <p>Error Proceedings — Effect of. Failure to File Transcript Within Four Monihs from Rendition of Judgment — Jurisdiction.</p>

<p>AS TO GENUINENESS OF PROMISSORY NOTES FOUND AMONÓ A DECEDENT’S PAPERS.</p> <p>Promissory Notes — Presumption as to Delivery and Consideration— Genuineness of .Signature — Testimony of Expert Witness ■ as to' Ilandwiiing — May Give Reasons for his Opinion on Examination in Chief, as Well as the Opinion Itself.</p> <p>1. Where a number of standards of handwriting have been admitted, in evidence for the purpose of proving the genuineness of a signature, it. is an abuse of discretion on the part of the trial judge amounting to prejudicial error to refuse to permit the jury'to take to their room all the standards so introduced as exhibits.</p> <p>2. An expert witness on handwriting should be confined to matters apparent on the face of the writing. He can not be permitted by argument or inference to draw conclusions as to matters not appearing on the face of the writing, and the value of his opinion will depend upon the clearness with which he demonstrates its ' correctness. ; ■ ■</p> <p>3. Where promissory notes are found among the papers of. a decedent delivery will be presumed; and nothing else appearing, the.form of such notes, stipulating that they were for value received,, is prima facie evidence of consideration.</p>

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

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

<p>RECOVERY BY WIFE BECAUSE OF SALE OF OPIUM TO HUSBAND.</p> <p>Action for Injury to Consortium — Proximate Cause of Injury — Implied Malice — Intervening Agency — Intention-Sale of Opium to Susland —Damages Awarded, to Wife.</p> <p>A wife may maintain an action for the loss of the society and companionship of her husband occasioned by the wrongful acts of a druggist who, against her protest, wantonly or maliciously furnishes ' her husband, an opium habitue, with morphine in such quantities as to incapacitate him.</p>

<p>AS TO SETTLEMENT OF DAMAGES FOR A TORT.</p> <p>Failure to Bead Paper before Signing — Not Negligence, When — Release — Evidence—Error in Arresting Case from Jury.</p>

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

The plaintiff below was struck by an automobile belonging to the motor car company, and recovered judgment below for $4,-000 on account of the injuries sustained. Error to the Superior Court.

<p>CHILD STRUCK AT CROSSING BY TRACTION CAR..</p> <p>Negligence — In Operation of Traction Gar Approaching a Grossing— Child Struck and Killed — Speed of Oar Proximate Cause — Whether Speed loas Reasonable a Question for the Jury — Error in Charge of Court.</p> <p>1. A traction company is not justified in running a car at full speed when approaching a public crossing, although it is not a street intersection, particularly when several children were walking on the sidewalk toward the crossing with their backs to the car and in full view of the motorman.</p> <p>2. Where it appears that had the car been running at a maximum rea- • sonable rate of speed, the child who was struck at the crossing would have passed over in safety and the collision would have been avoided, then the greater rate of peed at which the car was running was the proximate cause of the injury.</p> <p>3. The question what was a reasonable or unreasonable rate of speed at that particular place and under all the circumstances was one for determination by the jury.</p> <p>4. An instruction to the jury in such a case, which requires that a verdict he returned for the defendant without regard-to any act of negligence on the part of the company in the running of its car prior to the instant the child attempted to cross the track, is erroneous.</p>

<p>NEGLIGENCE IN FAILING TO SEE AN APPROACHING TRAIN.</p> <p>Injury to a Section Hand — Who Failed to See an Approaching Train-Circumstances when Failure to Give Warning of Train's Approach is not Negligence.</p> <p>When a section hand-,.at work beside a railway track in the full light of day, failed to see or hear a train approaching on a track which was straight for more than a mile and was struck and injured by it, though a-movement of a few inches only would have prevented the accident, he can not recover damages therefor, notwithstanding he was given no warning of the train’s approach by' either the engineer or the section boss.</p>

The petition alleged that in September, 1902, while one of plaintiff’s teams, attached to a coal wagon, was being driven along Spring Grove avenue, Cincinnati, at a point where the space between the street ear track and the curb was narrow, a traction car came rapidly up from behind and without warning to the driver of the coal wagon and in attempting to pass struck the hub of one of the wheels of the wagon with such force as to break the wagon and harness and kill one of…

<p>LIMITATION ON THE USE OF NATURAL GAS.</p> <p>Corporations, Municipal and Commercial — Control of, where Operating Public Utilities — Void Provision in Grant to Natural Gas Company — Permitting the Supplying of Gas for Heat and Power, but not for Illuminating Purposes — Transfer 'of Rights to Artificial Gas Company — Ordinance—Injunction—Construction of Section 7777 — Authorising City Solicitor to Apply for Restraining Order.</p> <p>1. A city solicitor is clearly authorized under Section 1777, Revised Statutes, to bring suit in the name of the municipality to enjoin a public utility company from violating its obligations to the city and its inhabitants.</p> <p>2. Such an action will lie, notwithstanding the corporation is acting under color of an ordinance, if the provision of the ordinance complained of is in excess of the power of council to grant.</p> <p>:i. A municipality is without authority to prescribe by ordinance that a commodity acquired by its inhabitants shall not he used for any purpose that is not dangerous or injurious; and a provision in the ordinance embodying a grant to a natural gas company, that gas shall not be furnished for illuminating purposes, but only for beating and power, is void, and the company may he compelled to either furnish gas for illuminating purposes or abandon its rights In the streets.</p>

<p>INJUNCTION AGAINST EXECUTION ON JUDGMENT FOR. RESTITUTION OF DEMISED PREMISES.</p> <p>Forcible Entry and Detainer — limitation of Effect of Judgment — Enforcement of, May- be Enjoined, When — Questions as to Title — Lessee Holds Over — Right to Declare Forfeiture for Failure to Pay Rent WaivéU by Failure to Malee Demandi — Title to Permanent Lease- ■ hold- Quieted.</p> <p>1. The provision of Section 6601, that a judgment in an action for forcible entry and detainer shall not be a bar to a second action, constitutes an exception to the general rule that equity will not enjoin the enforcement of a judgment where a defense at law was available;- and if the facts alleged by one praying for an injunction against the enforcement of such a judgment entitle him to a decree quieting his title or fixing the extent of his title, injunction which is merely ancillary to the main issue of title, will lie until the question of title has been determined.</p> <p>2. Where a lessee under a lease for three and one-half years renewable forever, holds over for twenty days before notice is served upon him to quit thé premises, he thereby elects to renew the lease, and the provision not having been complied with that a forfeiture could only be declared after demand for unpaid rent duly made according to law, the lessee upon offering to pay his arrearages is entitled to a decree quieting his title to a permanent leasehold.</p>

<p>ACTION IN ATTACHMENT ON A JUDGMENT.</p> <p>Promissory Note Signed with Initials and Surname only — Note Reduced to Judgment — Action in Attachment on the Judgment — When an Action in Attachment is Begun — Defects in Service by Publication not Available, When — Failure to Plead a Meritorious Defense —Sections 5010 and 5858.</p> <p>1. Where a note which was signed by the maker with his initials and surname only, has been merged into a judgment in which he is designated in the same manner as upon the note, the judgment becomes an evidence of debt owing by him under that name, and such judgment is not void in the sense that in a subsequent suit in attachment on the judgment the judgment debtor is not required to show a meritorious defense to the action.</p> <p>2. Where the defendant in such a case fails to set forth his defense to the action in his petition to vacate the judgment, objection to the service had upon him by publication will not lie for defects therein.</p> <p>3. An action has been begun under the attachment law when the petition has been filed and summons issued thereon, and the order of attachment will not be set aside because issued before the service by publication was begun.</p>

<p>ROSE LAW NOT PROHIBITIVE OF THE SALE OF NONINTOXICATING MALT LIQUORS.</p> <p>Liquor Laws — Prosecution for Sale of Near Beer Containing a Very Small Proportion of Alcohol — Non-Intoxicating Liquors, not Proscribed by the Bose Law — Evasions of the Bose Law — Discretion in the Matter of Sentence — Constitutional Law.</p> <p>Non-intoxicating malt liquors are not within the proscriptions of the act (99 O. L., 35) for the sale or furnishing of which in Rose county local option territory one may be prosecuted and convicted; intoxicating liquors only come within the inhibitions of this act.</p>

<p>REQUIREMENT UNDER A LIFE INSURANCE POLICY THAT PROOF OF DEATH BE MADE IN WRITING.</p> <p>Dife Insurance — Averment that all Conditions were Performed — Inconsistent with Averment of Waiver — Proof of Death — Notice of Defect is not Necessary, When — Requirement as to Identification of Deceased — -Pleading—Evidence.</p> <p>1. Averments in a petition in a suit on a life insurance policy, that the condition as to proof of death was definitely performed on a certain date and that every condition required by the policy was performed, are wholly inconsistent with a subsequent averment that the condition of the policy with reference to proof of death had been waived; and in the absence of any averment óf an excuse for non-performance, or any inference to be drawn from the petition that there was such an excuse, evidence could not be offered on the question of waiver.</p> <p>2. The requirement that a proof of death be made in writing is a reasonable requirement, as is also a requirement as to the identification of the deceased.</p> <p>3. Notice of a defect in a proof of death is not necessary, where repeated notices have been given by the company that no proof of death has been filed.</p>

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

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

<p>POSSESSION UNDER. CONTRACT OF PURCHASE.</p> <p>Forcible Detainer — Evidence as to Title — Extent to which the Question of, may be Drawn into the Case — Contract of Purchase — Ejectment.</p> <p>1. In an action in forcible detainer before a justice of the peace, it is competent for tbe defendant to offer in evidence a contract of purchase for tbe purpose of showing the nature of his possession.</p> <p>2. A showing of possession under a contract of purchase is a complete defense to. an action in forcible detainer; and for failure to perform some of the conditions of the contract the plaintiff must have resort to a suit in ejectment.</p>

<p>APPEAL FROM THE DECISION OF A CANVASSING BOARD.</p> <p>Elections — Temporary Change of Residence — Right of Voter to Have Vote .Counted — Affiliation with Political Party not Evidence that the Vote of an Elector was Cast for that Party — Naturalization— Rule Determining the Residence of Students — Presumption as to the Legality of a Ballot — Time Necessary to Gain Residence After Majority — Legislature Without Power to Impose an Educational Test — Section 2966-31.</p> <p>1. Presence for a temporary purpose does not secure the right to vote, and absence for a temporary purpose does not forfeit the right.</p> <p>2. The right to have a legal ballot counted is the right of the voter who casts it; and after it has been deposited in the box, the act or omission to act of no officer can deprive the voter of this right, so long as it is reasonably certain that the ballot remains unchanged.</p> <p>3. The fact that a voter affiiliates with a particular party can not be considered as sufficient evidence of how he -cast his ballot for any particular office, when the matter is in issue in an election contest.</p> <p>4. A contestant having proved that a certain voter who was an alien could not have been naturalized, on account of minority under the general provisions of the naturalization laws within one year before the contested election, is not bound to negative the exceptional circumstances under which the naturlization of such voter might have been effected at an earlier time.</p> <p>5. There is no special rule for determining the residence of students for election purposes; the same rules that determine the domcile of other persons apply to them.</p> <p>6. The fact that a student voted raises a presumption of the legality of his ballot and of his innocence in casting the ballot, which presumption overcomes the presumption that the domicile given on the matriculation card of such student continues until affirmative evidence of a change is given.</p> <p>7. A person during minority has not the capacity to change his domicile, and a student domiciled outside the state must remain in Ohio one year after attaining his majority in addition to the necessary intent to change his domicile to acquire a residence for voting purposes.</p> <p>S. Under the Constitution the Legislature has no right to require "voters to possess an educational qualification, and any act of the Legislature which has such effect, or which would prevent the judges of election from assisting other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the constitutional right of the voter. Serrible.</p>

<p>CONVERSION OF COLLATERAL BY A BROKER.</p> <p>Criminal Law — Stock Broker Charged with Embezzlement — Relation to his Client not that of Agent — Section 68J/2.</p> <p>Where a broker holds as collateral shares of stock belonging to a client, the relation between them is not that of principal and agent, but of debtor and creditor, and the conversion of the stock by the broker to his own use does not constitute embezzlement.</p>

<p>Motion for leave to file a petition in error.</p>

<p>AS TO INTERROGATORIES FOR. DISCOVERY OF ADDITIONAL PARTIES.</p> <p>Final Order — Sustaining of Dermcrrer to Interrogatories is not, When — • Proceedings for Disclosure of Unknown Parties — Breach of Contract — Error—Sections 5099 and 6707.</p> <p>Where a petition declares against a single defendant, but alleges that the plaintiff was given to understand that the defendant was acting as agent or manager for others who were interested in the profits of the enterprise, the sustaining of a demurrer to interrrogatories attached to the petition wherein a disclosure was sought of the names of such unknown parties, does not constitute a final order, and error proceedings based on the sustaining of the demurrer will be stricken from the files.</p>

<p>DURATION OF CONTRACT OF EMPLOYMENT.</p> <p>Employment — Breach of Contract for — Construction of Agreement— Words and Phrases.</p> <p>The contract of employment relied upon in this case was for a term of at least one year.</p>

<p>CONTROL OF INTANGIBLE PROPERTY BY INJUNCTION AGAINST ITS CUSTODIAN.</p> <p>Alimony■ — •Service on Defendant by Publication — Order that Corporate Stocks be Transferred to Plaintiff — Corporation the Custodian of Its Stock — Situs of the Corporation is Situs of Its Stock.</p> <p>1. An injunction against a custodian of intangible property gives to the court such control of the property as authorizes a decree transferring the title from the owner of the property before the injunction issued to another party to the suit who has been duly served with summons.</p> <p>2. In an action by a wife for alimony,-the fact that the husband was served by publication only does not render invalid an order awarding to the wife stocks in corporations for profit which have been brought into the action as defendants and enjoined against a transfer of the stock.</p>

The plaintiff sued for a balance of $639.45, due for services and expenses in connection with an arbitration. The jury'returned a verdict for the amount claimed, but failed to compute interest thereon. In entering judgment on the verdict the court below added interest.

<p>AS TO AUTHORITY TO MAKE CONTRACT FOR SALE OF APPLES.</p> <p>Agency — Contracts—Boole Accounts — Determination by Jury will not be Set Aside, Wheru — Section 5086.</p> <p>. 1. The objection that cash items alone can not, without special authority, be the subject of a book account is not well taken, where the action is on a contract and there is an averment in the petition that the indebtedness arose “for money laid out and expended and commissions in the purchase and sale of goods by the plaintiff for the defendant at his request.”</p> <p>2. Where neither party, to an action on an account has kept his books in such a way as to strenghten his oral testimony, but the plaintiff seems to have been a fair and candid witness, the finding of the jury in his favor will not be disturbed.</p>

<p>THE DEFENSE OF SELF-DEFENSE IN A TRIAL FOR HOMICIDE.</p> <p>Criminal Law — Reopening of a Case in Chief — Discretion of the Comt —Rights of the Defendant — Self-Defense—Burden of Proof — Charge of Cowrt — Use of the Word “Honestly” in Connection with Belief.</p> <p>1. While it is within the discretion of a trial judge to re-open a case at any time before it is finally closed and let in testimony in chief, it is error to thereafter refuse to allow the defendant at least a reasonable time to recall his witnesses and make answer to the new evidence.</p> <p>2. Before a defendant in a homicide case can be required to establish self-defense by a preponderance of the evidence, the state must establish that the killing by him was an unlawful killing within the degree of the crime charged.</p>

<p>GAS AND OIL.</p> <p>Construction of Oil Lease — Requirement as to When Lessee shall begin Work — Effect of Payment of Rental without Commencing Operations — Extension of Lease Thereby.</p> <p>1. An oil lease providing that “operations * * * shall be commenced and one well he completed within six months from the date thereof, and in case of failure to complete one well within such time,” the lessees promise to pay “ten dollars per annum within three months after the time for completing such wells, * * * until one well shall be completed, and a failure to complete one well, or to make such payment * * * renders this lease null and void,” requires the lessee to commence work upon the premises within such six months period. Paying the stipulated sum per annum, without commencing operations to sink a well, does not give lessees the option to sink a well or not as they choose.</p> <p>2. The provision of a gas and oil lease, that the annual rental shall be payable within three months after the six months during which a well was to be completed, extends the lease one year from the termination of the six months’ period, and not from the additional three months’ period.</p>

<p>AS TO PAYMENT OF A NOTE BY USURIOUS INTEREST.</p> <p>Pleading — Want of Consideration and Payment of a Note Distinct Defenses — Variance Between Allegations of Petition and the Evidence Submitted.</p> <p>Where payment is relied upon as a defense from liability upon a note, it is necessary that it should he pleaded; and it is error to admit evidence with reference to payment, or to charge the jury with respect thereto, where the only defense set up is want of consideration.</p>

<p>PROCEEDINGS WHERE A VOIDABDE RELEASE HAS BEEN GIVEN FOR PERSONAL INJURIES.</p> <p>Claims for Personal Injuries — Releases which are Void and which are Voidable — ■Consideration for Release — Pleading Release in Reply by Way of Avoidance — Procedure for Cancellation of Release.-</p> <p>1. Where, in an action for damages resulting from injuries alleged to have been sustained through the negligence of the defendant, the answer sets forth as a defense that the plaintiff in writing released the defendant from all claims resulting from such alleged negligence, and the reply sets forth facts which, if established, would render such release voidable, and further fact which, if established, would render such release void, and there is evidence tending to establish the facts which might render the release voidable only, but no evidence tending to establish the facts necessary to be established to render the release void, it is the duty of the court, on motion of the defendant, to instruct the jury to return a verdict for the defendant.</p> <p>2. One dollar is sufficient consideration, in law, to sustain such release.</p> <p>3. Facts that, if established, would render the release void, may be pleaded in the reply by way of avoidance of the defense of release; but if the facts would render the release voidable only, and not void, the plaintiff can not avail himself thereof by way of reply.</p> <p>4. If the release is voidable only and not void, the plaintiff can not maintain his action while it stands uncaneeled, and he can not seek its cancellation in a reply but must do so by petition in a suit in equity for that purpose only, or as a cause of action in the same suit in which he seeks to recover damages for the injury (following Perry v. The M. O’Neil & Co., 78 Ohio St., 200).</p>

<p>ALTERATIONS IN A PROMISSORY NOTE.</p> <p>Promissory Notes — Charge of Court with Reference to Material Issues in an Action to Enforce Payment — Error—Sections 3171m and 3175o.</p> <p>The time of maturity of a note and the manner of its payment are material parts thereof, and it is error to refuse to charge the jury with reference to these matters where they constitute issues of fact which the jury must determine.</p>

The plaintiff below recovered a verdict for $250 against the automobile company on account of injuries from being struck by one of their autos.

<p>WHAT CONSTITUTES A DISMISSAL.</p> <p>Dismissal — Record Necessary to Show, Where Made Without Prejudice —Section 5314-</p> <p>The evidence of the dismissal of an action by the plaintiff during term time is the court’s entry'to that effect.</p>

<p>CONSTRUCTION OF CONTRACT FOR SCHOOLING.</p> <p>Schools — Pupil Taken III in the Middle of the School Year — Construction of Contract as to Whether Parent Could he Held for Charges for the Entire Year.</p> <p>Where a parent sends his son to a school under a contract with the principal of such school, and pays the tuition for part of the year at the time the son enters — Held:</p> <p>1. Whether the contract be for the entire school year or for a shorter period must be determined from all the facts, words, acts, conduct arid circumstances surrounding the parties at the time.</p> <p>2. If the contract be for the entire school year it may be discharged by the son becoming disabled by illness from attending the full year; both parties must be deemed to have acted on the assumption that, if such an event intervened, the agreement for the full school year would be discharged.</p>

<p>INJURY FROM EXPLOSION OF MOLTEN BRASS IN A CRUCIBLE.</p> <p>Proximate Cause of Explosion — Variance between Allegations and Proof —Res Ipsa Loquitur — Presumption—Evidence—Charge of Court.</p> <p>It is evident that the oil which might collect on brass turnings would pass off in form of vapor long before the brass was melted, and could not therefore have caused the explosion in the crucible which is complained of in this case; and in the absence of evidence that ordinary brass, whether turnings or ingots, will form a scum in fusion of sufficient strength to imprison vapors between it and the molten metal and cause an explosion, no presumption arises that the use of oil brass turnings was the proximate cause of the explosion.</p>

<p>SALE OF COLLATERAL BY BANK HOLDING NOTE FOR. COLLECTION.</p> <p>Promissory Note Secured by Collateral — Sale of the Collateral to Itself —By Bank to which the Note had been Sent for Collection — Bank Held for Value of the Collateral above Amount Due on the Note— Meaning of the Word “Holder” — Notice to Owner — -Agency-^Trust Relation — Consent of Owner to Purported Sale — Statute of Limitations.</p> <p>1. A bank having in its possession a promissory note for collection is not the “holder” of the note.</p> <p>2. The rule that a pledgee of securities can not become the purchaser thereof either at a public or private sale, except where authority so to do has been expressly conferred, is a bar to the purchase of such securities by a bank which received for collection the note to which the securities were attached, where the note authorizes the “holders” thereof in the event of default of payment at maturity to sell the securities in whole or in part with the right reserved to the holder to become the purchaser and absolute owner thereof, free of all trusts and claims.</p> <p>3. The maker of a note, which was not paid at maturity, can not be held to have been given notice of the sale of the securities pledged for its payment by the mere return to him of the canceled note, where it appears that he had requested the bank to pay the note for him and retain the securities for its own protection, notwith- • standing the bank declined so to do at the time the request was made.</p> <p>4. Moreover the bank may be said on principles of equity to have held the stock as trustee for the maker of the note, and therefore not liable for conversion of the securities until such time as it actually parted with them by sale, or gave notice to the maker that it claimed to hold the stock as its own and denied that he had any right to it in the absence of a contract with respect thereto.</p> <p>5. In such a case, failure of the maker to claim the stock, or to protest against its being held by the bank, did not amount to consent on his part to the purported sale, and the statute of limitations did not begin to run against him until he received notice from the bank of its claim of ownership under the purchase.</p>

<p>PAYMENTS ON MORTGAGE FOR. THE PURPOSE OF PRESERVING THE LIEN.</p> <p>Limitation of Actions — Methods by Which the Running of the Statute is Barred — Payments to Prevent Operation of the Bar — Lien of Mortgage Preserved by Acknowledgment, Though Debt is Barred.</p> <p>1. Either one of the three methods, prescribed by Section 4992, Revised Statutes, for keeping claims alive — payment, promise of payment or acknowledgment thereof — complies with the saving clause of the. .statute and is adequate to prevent its running. Hence, payment of a sum of money within fifteen years after the maturing of a note secured by mortgage, is sufficient to constitute an acknowledgment of an existing liability.</p> <p>2. A nephew having an interest in a mortgage upon his uncle’s lands, transferring his interest therein to his brother by written assignment, recognizes the existence and validity of the mortgage and note secured thereby; and having obtained within a month thereafter a warranty deed of the-mortgaged premises, in which he subsequently granted back a life estate to the uncle in pursuance of a family arrangement to leave him in possession undisturbed during his life, he can not assert that payments made by him and endorsed upon the note did not operate to keep the mortgage alive after the uncle’s death.</p> <p>3. Payments on or acknowledgments of a debt secured by mortgage, by the owner of an equity of redemption, may operate to keep the mortgage lien alive as against the statute of limitations, although a right of action on the debt against the original debtor may be barred.</p>

The plaintiff was thrown from his seat .on a wagon to the street in a collision with an interurban car. He complained of severe injury to his spine and nervous shock. The jury gave his $4,-500, but the trial judge reduced the verdict to $3,500.

<p>LOSS OF FINGERS IN EXPOSED COG-WHEELS.</p> <p>Negligence — Operator of a Machine Injured While Attempting to Clean It — Cog-Wheels Exposed — But Unguarded Wheels Not Proximate Cause of the Injury — Section J/S6J/-S9C.</p> <p>1. Where the operator of a machine who is familiar with its mechanism is told by the foreman to let work go and clean Ms machine, and without waiting for the machine to become empty, which would have required five to eight minutes, he attempts to clean it while in motion and is injured thereby, and it is shown by the testimony that it was the uniform custom to wait until the machine was empty and had been stopped before, cleaning it, the injury must be held to have resulted from the operator’s own negligence.</p> <p>2. Exposed cog-wheels are not the proximate cause of such an accident, where it appears that had a guard been-placed over the wheels it would have been necessary to have removed it before cleaning the machine.</p>

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

The defendant in error recovered a judgment below of $2,955 on account of injuries sustained in alighting from a street ear.

<p>AS TO LIABILITY OF A MASTER. FOR INJURIES RESULTING FROM NEGLIGENCE OF A FELLOW-SERVANT.</p> <p>Master and Servant — Liability of Muster for Failure of Foreman to Inspect Scaffold Upon Which Men were at Work — Construction of Section 4288o — Charge of Court.</p> <p>1. In an action by an employe for injuries resulting from the falling of a scaffold, the master can be held liable on the ground of negligence of his foreman only upon the presentation of proof that it was the duty of the foreman to inspect the scaffold.</p> <p>2. The provisions of Section 4238o, as to an employer’s liability for personal injuries to an employe notwithstanding the negligence of a fellow-servant, do not apply to a temporary scaffold ere.cted by the employer on the land of a third person.</p> <p>3. A charge of court that “if the jury found the platform (scaffold) in question was an appliance used in the business of the defendant and necessary to his business, then the statute would apply,” is erroneous where the scaffold was a temporary structure built in sections as the work on the building progressed.</p>

<p>INJUNCTION AGAINST FORFEITURE OF LEASE FOR. UNDER-LETTING.</p> <p>Landlord and Tenant — Covenant Against Under-letting — Covenant Waived for a Time by Lessors — •Then Insisted Upon — Injunction Against Forfeiture of the Lease.</p> <p>Injunction will lie to restrain the lessors of premises from declaring the forfeiture of a lease containing a covenant against under-letting, where past violations of this covenant had been made with the knowledge of the lessors and without objection from them; but such an injunction will not operate to prevent lessors from insisting upon an observance of the covenant against under-letting in the future, after notice of their intention to thereafter stand on the covenant.</p>

<p>INJURY TO A BOY EMPLOYED IN OPERATING A DEFECTIVE MACHINE.</p> <p>Master and Servant — Machine Out of Order and Liable to Start Itself —Boy Employed to Operate It — Duty of Master to Instruct — Negli-. gence — Charge of Court.</p> <p>1. An employer will be held to have known that a loose key would be liable to cause a belt to shift from the loose to the fixed pulley and thus start the machine unexpectedly, while a boy sixteen years of age employed in operating the machine would not be likely to appreciate the danger, and the crushing of his hand by the sudden starting of the machine is a matter for which the master will be held liable.</p> <p>2. Where a machine is from any cause not reasonably safe to operate, and is especially dangerous for a boy of sixteen to operate, and the master knew or by the exercise of ordinary care would have known the facts with reference thereto, a charge of the court to the effect that under such circumstances it was the duty of the master to instruct the boy how to safely operate it is not erroneous.</p>