Volume 12 — Ohio Nisi Prius Reports, New Series

<p>LABOR CONDITIONS FOR WOMEN.</p> <p>Constitutional Lem — Validity of Aot Relating to Female Operatives_ Bale and Purchase of Labor — Freedom of Contract — Private Right . and Public Welfare — Contrariety of Decision, Owing in Part to Changing Commercial and Industrial Conditions, Financial Cupidity and the Blunting of High Purpose — 102 O. L., 488.</p> <p>The act of May 31, 1911, relating to preservation of the health of females employed in manufacturing, mechanical, mercantile and other establishments, is not in derogation of the constitutional' right of freedom of contract, nor is the classification arbitrary or the exemption unreasonable which is therein established, but the act is justified on the ground of public health, morals and the general welfare, and is valid and enforcible.</p>

<p>WORKMAN KILLED BY BEING KNOCKED OFF A WALL.</p> <p>Negligence — Derrick Collapses and "Workman is Knocked from a "Wall —Inherent Danger as Affecting Liability of Owner and Principal Contractor — Collateral Negligence of Independent Contractor Removing "Wall — Assumed Risk — Granting of Remittiturs Not Likely to Terminate Litigation.</p> <p>1. Whether the work of taking down a wall ruined by fire was inherently dangerous is a question of fact for the jury.</p> <p>2. The holding of the Supreme Court in the case of Bridge Co. v. Steinbrock, 61 Ohio St., 250, does not permit of the arrest of a ease from the jury on the ground that the accident was not due to inherent danger from the condition of the wall upon which the decedent was employed, but was the result of the collateral negligence of an independent contractor.</p> <p>3. A workman employed in taking down a wall can not be held to have assumed the risk arising from a defective derrick, where it does not appear that he assisted in constructing the defective portion of the derrick.</p>

<p>NEW SECRET SERVICE LAW INVALID.</p> <p>Constitutional Law — Secret Officer for Prosecuting Attorney — Section 2615-1 Inoperative and Section 151¡1 Remains in Force — Uncertain Meaning of the Term “Presiding Judge.”</p> <p>Section 2915-1 of tbe General Code, providing for tbe appointment of a secret service officer by tbe prosecuting attorney, is' inoperative and void for tbe reason that it is impossible to determine wbat judge or officer is designated' by tbe statute to fix tbe compensation of sucb appointee; and inasmuch as it can not be supposed tbe Legislature would bave repealed tbe existing act providing for tbe appointment of sucb an officer without providing a substitute therefor, and these, acts so far as tbe attempted amendment, supplement or repeal are concerned relate to a single subject, Section 1541 remains in force.</p>

<p>REMAINDERMEN WITHOUT RIGHT TO PARTITION.</p> <p>Partition — Does Not Lie Where There is an Outstanding Life Estate in the Whole Tract — Moaning of Partition — Section 12029.</p> <p>Tire right to immediate possession is essential to the right to partition. A remainderman, therefore, is not entitled to partition, notwithstanding the owner of the intermediate estate consents thereto.</p>

<p>DETERMINATION OF RIGHTS OF JUDGMENT CREDITORS IN LANDS OF A DECEDENT.</p> <p>Decedent’s Estates — Frótate Court Without Equity Jurisdiction to Determine Equities and Set Aside Deeds — Procedure for Ascertaining Rights of Judgment Creditors in Lands of a> Decedent.</p> <p>In a proceeding by an administrator to sell real estate to pay debts, there is no general equity power in the prohate court which will permit of a determination of the rights of judgment creditors of the estate in land claimed hy the widow by virtue of a lost deed which she caused to be restored after her husband’s death; but the proper forum for judgment creditors thus situated is in the common pleas court, where they may file an action in the nature of a creditor’s hill asking to have the deed in question set aside and the land sold to satisfy their judgments.</p>

<p>CONTRADICTORY PROVISIONS IN BUILDING CONTRACT.</p> <p>Reformation of Written Obligations — Decree of, Will be Granted, When —Evidence Permitting Reform of a Building Contract — Extraneous Facts — Mistake—Relief in Equity.</p> <p>1. The rule that a written obligation can be reformed only on clear and •convincing evidence is satisfied in the case of a building contract, containing a provision which seems to exclude allowances to the owner enumerated in the specifications, where the weight of the testimony is to the effect that this provision was inserted for the very purpose of eliminating these allowances.</p> <p>2. In determining such a case it is competent for the court to consider the price for the work specified in the contract, and where the price would not permit of the allowances claimed by the owner without causing the contractor to do the work at a loss, that fact must be regarded as confirmatory of the contention of the contractor that he insisted on the allowances being eliminated and the provision in question was inserted for that purpose.</p>

<p>RECOVERY OF ILLEGAL FEES DRAWN BY A PUBLIC OFFICER.</p> <p>Office and, Officer — Fees and Mileage Paid Illegally — Action Toy Prosecuting Attorney for .Recovery of — Compensation—Voluntary Payment — Sections 2866 and 2921.</p> <p>1. Fees and mileage illegally paid to a coroner may be recovered in an action brought by the prosecuting attorney under the provisions of Section 2921.</p> <p>2. The fact that money so paid was in compromise of a claim made against himself by the county commissioners for a larger sum paid to him- as salary under an unconstitutional law is not a bar to such an action.</p> <p>3. The rule that money voluntarily paid can not be recovered does not apply to the case of one public officer dealing with another public officer with reference to their compensation as such officers.</p>

<p>DEFENSES OF GENERAL DENIAL AND CONTRIBUTORY NEGLIGENCE MAY BE COMBINED IN THE SAME ANSWER.</p> <p>Pleading — Purpose of — General Denial and Contributory Negligence Are Inconsistent Defenses But Are Permissible — Developments of the Trial May Be Relied On to Disclose which is the True Defense.</p> <p>While a general denial is inconsistent with the defense of contributory negligence, it is not the policy of the law to deny to a defendant the right-to prove contributory negligence unless he first admit his own negligence, and a motion to strike the second defense from an answer containing a general denial and also averring- contributory negligence, on the ground that it is a sham pleading, must be overruled.</p>

<p>WOMAN STRUCK AT A RAILWAY CROSSING.</p> <p>Negligence — Weight of Evidence as to, at a Railway Crossing — Night Dark and Foggy — No Bell or Whistle Sounded — Pedestrian Struck by Train — Verdict Against Railway Company Upheld.</p> <p>Where the automatic bell at a railway crossing does not ring and neither the locomotive whistle nor bell is sounded, a presumption arises that no train is approaching, and if the air was full of smoke and the night so dark and foggy that the engineer whose locomotive struck the decedent at the crossing, although looking ahead where the deceased must have been, did not see her or know until the next day that any one had been struck, the question as to whether the decedent should have seen the approaching train is not sufficiently clear to require that a verdict in favor of her administrator should be set aside.</p>

<p>BUILDING AND REPAIR OF COUNTY ROADS.</p> <p>Taxation — Levies for Roads — Construction of the Emergency Section of the Smith One Per Cent. Tax Law — Discretion of County Commissioners as to an Additional Levy — 102 O. L., 266.</p> <p>The expense of constructing, re-constructing, repairing and maintaining county roads made necessary by emergency may be met by eounty commissioners in their discretion by a levy in' excess of the limitation fixed by the general taxing statute..</p>

<p>"MUTUAL MISTAKE."</p> <p>Contracts — Agreement Not Varied on the Ground of Mutual Mistake, Unless — "What Constitutes a Mutual Mistake — Parol Evidence to Vary a "Written Instrument.</p> <p>1. A “mutual mistake” is one wherein both parties agree that the mistake occurred; or, is in law that situation which arises wherein “very clear and satisfactory evidence” shows that while one party denies such mistake, nevertheless the intent of the parties to a contract is not expressed in its terms.</p> <p>2. Under the mere plea of a “mutual mistake” a party should not be permitted under any and all circumstances to- give evidence seeking by parol to vary the terms of a written instrument.</p> <p>3. Were parties under any and all circumstances to be permitted to plead a “mutual mistake” and thereunder seek by parol to vary the terms of a written contract, the rule prohibiting the changing of written contracts by parol would practically be abrogated.</p>

<p>JURISDICTION OF THE MUNICIPAL COURT OF CLEVELAND.</p> <p>Construction of Section 1579-6 — Conferring Jurisdiction 6y Reference— Application of the Exemption as to Householders and Freeholders Found in Section 10225.</p> <p>The jurisdiction of the municipal court of Cleveland is limited, in civil oases, to residents of said city and to such residents of the county outside of the city as are not householders or freeholders and are served with process when within the corporate limits.</p>

<p>TRANSPORTATION EXPENSES INCURRED BY SHERIFFS.</p> <p>Allowances to Sheriffs — May Include Automobile Hire, "When — Term “Livery Hire” Construed — Words and Phrases — 102 O. L., 93.</p> <p>If is -within the discretion of county commissioners to make an allowance to the sheriff for automobile hire, incurred in and necessary to a proper administration of the duties of his office in the service of writs and processes or in pursuing or transporting persons who are wards of the state or are charged with crime.</p>

<p>DEFECTIVE GRANT OF RIGHT TO APPROPRIATE EASEMENT FOR ELEVATED RAILWAY TRACK.</p> <p>Terminals for Transportation Uses — Easement for an Elevated Railway Across a River Landing — Condemnation of, Permissible — Procedure Necessary to Render Grant of Right to Appropriate Valid/— Discretion of Council as to Terms and Conditions Must Be Exercised — Paramount Use — Sections 3283, 3283a, 6415 and 6420.</p> <p>1. Authority to appropriate an easement across a public landing, lying within a municipality, for the purpose of erecting thereon an elevated railway, is granted by Section 3283a, Revised Statutes, but in making such an appropriation it is necessary to follow the procedure laid down in Title/ II, Chapter 8, Part 3, Revised Statutes.</p> <p>2. An ordinance granting to a railway the right to condemn such an easement is void, if not based upon an agreement between the railway company and the municipality wherein the discretion of council has been exercised as to the terms and conditions and limitations under which the grant is made.</p> <p>3. Such an ordinance, where it deals with streets and the public landing, deals with two, distinct subjects, and is invalid on that ground.</p> <p>4. Whether the rule of law, that as between a railway and a navigable river the use of land for the purposes of navigation is paramount to its use for railway purposes, is applicable to the terminals required, for these respective means of transportation — Quaere.</p>

<p>INJURIES FROM THE BITE OF A DOG.</p> <p>Pleading — Injuries from the Bite of a Dog — Necessary Allegations in am Action for Damages — Section Revised Statutes.</p> <p>In an action for damages on account of a dog bite, it is not necessary to allege that the dog was known to the owner to be vicious or that he was in fact vicious.</p>

<p>AS TO DAMAGES TO PROPERTY FROM THE BLOCKING OF A STREET.</p> <p>Abutting Owner — Not Entitled to Damages from Blocking ’of Street, When — Elimination of Grade Grossing by Vacating Portion of Street and Blocking it with a Fill.</p> <p>Where in the elimination of a grade crbssing a part of a street is vacated and blocked with a fill, an action for damages by an abutting owner on that part of the street not vacated does not lie on a complaint of less convenient means of ingress and egress, where the same inconvenience is suffered, though perhaps in less degree, by the general public.</p>

<p>TRANSFERS OF CORPORATE STOCK.</p> <p>Corporations — Authority of an Executor to Transfer Stock — Order to Sell at the Market Price within the Requirement of the Statute— Proper Procedure to Compel a Transfer — Certified Copy of Order of Court Can Not he Demanded — Limitations on the Function of Transfer Agents — Sections 10704 and 8673.</p> <p>1. An order by the probate court directing the sale of corporate stock belonging to the estate of a decedent at the market price is an order to sell for not less than the market price on the day the sale is made, and is a sufficient compliance with the statutory requirement that the court must order the stock sold at not less than the price fixed by the order.</p> <p>2. Such an order is sufficient to protect the corporation issuing the stock against any claim which might be made on account of a wrongful transfer; and it is not necessary for the protection of the corporation that the representative of the estate in presenting the stock for transfer accompany it with a certified copy of the order of court authorizing the transfer.</p> <p>3. It is a matter of grave doubt whether the appointment by a corporation of a transfer agent of its stock is in ■ compliance with the statutory requirement that the “secretary” of the corporation “register all subscriptions and transfers of stock.”</p> <p>4. The proper procedure for compelling a transfer of stock is by petition asking for a mandatory injunction; and in such a case it is not necessary that the transfer agent be made a party.</p>

<p>ABSOLUTE POWERS OF THE OHIO TAX COMMISSION.</p> <p>Taxation — Construction of 101 O. L., 399, Relative to the Tax Commission of Ohio — Injunction Does Not Lie Against the Commission— Remedy "Where Constitutional Rights are Violated "by Action the Commission May Save Taken.</p> <p>Injunction does not lie to restrain the Tax Commission of Ohio from certifying to the Auditor of State the gross intra-state earnings of a railway company, to be used as a basis for levying an excise tax against the said company; but in such a case the appeal against a violation of constitutional rights in the matter of taxation lies, either in an action against the Secretary of State to restrain him from canceling the articles of incorporation of the plaintiff company for refusing payment of the taxes assessed, or in an action against the State Treasurer for recovery of taxes illegally paid.</p>

<p>CONSTRUCTION OF A CONTRACT OF ACCIDENT INSURANCE.</p> <p>Accident’ Insurance — Construction of a Condition Precedent as to Payment of Premiums — Change of Relation from Insurer and Insured to Debtor and Creditor.</p> <p>1. The condition written into a policy of insurance against accident or injury,. that “the actual payment of the respective premiums on the date when due or within seven days thereafter, whether the insured is entitled to indemnity at the time or not,” is a condition precedent to the renewal of the policy for another term and against future injury, and not a condition precedent to the payment of indemnity by the company for injuries sustained after the payment of one premium and before the next premium fell due.</p> <p>2. If the above is not the true construction of the condition, but the true meaning is that the insured shall not he entitled to be paid for injury sustained unless he continues the policy in force after the accident, then such condition is inoperative.</p>

<p>THE LICENSING OF POOL ROOMS.</p> <p>Municipal Corporations — License Fees for Regulation of Pool Rooms— Fee Not a Tax. When — Motive of Public Officers in the Requiring of a License Not Material.</p> <p>An ordinance regulating pool rooms, which places a license fee of $15 on each pool table maintained in a pool room within the corporate limits, will not be held invalid on the theory that it is a tax for revenue purposes, or for the reason that it has been levied with the intention of prohibiting pool rooms altogether.</p>

<p>ADMINISTRATION OF THE ESTATE OF A FOREIGNER.</p> <p>Estates of Decedents — Bight of Appointment of Administrator Where Treaty Provisions Apply.</p> <p>Where the accredited representative of the Austro-Hungarian Government appoints a representative to act, in his absence, as administrator of a deceased citizen of the Austro-Hungarian Monarchy, and the appointment is made a matter of record in the probate court of the county in which the death of the decedent occurred, it becomes the duty of the probate court to appoint such accredited representative as administrator of the estate of the said decedent, statutory provisions to the contrary notwithstanding.</p>

<p>EFFECT OF DISMISSAL FOR WANT OF JURISDICTION OVER DEFENDANT.</p> <p>Dismissal — Not a Hearing on the Merits, When — Final Order — Appeal and Error — Sections 10382 and 12241.</p> <p>1. The hearing and granting of a motion to dismiss for the reason that the court is without jurisdiction over the person of the defendant, is not a hearing which involves the merits of the case.</p> <p>2. The sustaining of such a motion is a final order to which error will lie, hut is not a final judgment from which an appeal can be taken.</p>

<p>INFRINGEMENT OF TRADE NAME BY RECEIVERS.</p> <p>Receivers — Not Liable in Infringement of Trade Name on Gross Profits, When — Proceeding for Accounting of Profits of Alleged Infringement —Determination of Expenses, Losses, etc. — Sales Not Properly Included in an Accounting of Profits.</p> <p>Where, under orders of court, receivers were engaged in running a complicated manufacturing corporation which had been manufacturing fruit syrups, flavoring extracts, etc., under the name “Yionana” and where such name had .been adopted and used on its goods upon the actual suggestion of the Intervenor who had been in charge of the Vionana department, and who previous to. such employment owned and controlled all the stock of the Vionana Specialty Company, a separate corporation, which had manufactured similar goods, and where such name had never been registered as a trademark, and where the apparent evidence of ownership of such name, in the shape of transferred certificates of stock and the stock-book of said specialty company w'ere in the possession of the Mihalovitch-Fletcher Company and receivers, and where it appeared that such corporation spent thousands of dollars advertising its goods under such name and claimed to be the owners of such trade-name, and under such circumstances and upon advice of counsel receivers continued to use such name, notwithstanding intervenor notified them not to do so; •</p> <p>Held (1): That, irrespective of the court’s ultimate finding upon the question of ownership in such trade-name, the receivers, under the circumstances, were justified as reasonably prudent business men in believing the name was the property of the corporation and could not be charged with fraud or intentional wrong in continuing to use the name as same had been used when they took over the business; and</p> <p>Held (2): That in a proceeding for an accounting of profits for alleged infringement by receivers, considerations of equity must be applied in determining the amount of profits to be allowed. In such case net and not gross profits will be allowed, after deducting a ratable proportion of the general expenses incurred by the receivers in the operation of said business. Regis v. Jaynes, 191 Mass., 245; Nelson v. Winchell, 203 Mass., 75, distinguished.</p> <p>(3) In determining the expenses chargeable against gross profits, store-rent, clerk hire, fuel, power and the general expenses of the receivers in conducting such business are to be deducted in proportion as the aggregate sales in such department bear proportion to the sales in all departments. The rule in the Tremolo Patent Case, 23 Wall., 518, followed.</p> <p>(4) Losses, such as bad debts, discounts, etc., incurred in the sales of goods sold under such trade-name are also to be deducted in ascertaining the net profits of the sales.</p> <p>(5) Goods sold in bulk, to which no such labels are attached, but bearing a stock shipping tag affixed by some clerk, .and which tag was in no way descriptive of the character of the goods and, which tag was affixed without direction of receivers and without evident intention to violate the court’s decree, are not properly included in the accounting.</p>

<p>VALIDITY OF THE SMITH ONE PER CENT. LAW.</p> <p>Taxation — Limitations on the Power to Levy Become Unconstitutional, When — Impairment of Contracts — Function of Budget Commission —Discretion of, Will Hot Be Interfered With, When — Sections 5649-3a and 102 O. L., 266.</p> <p>While it is probable that contracts entered into in good faith by a municipality prior to the enactment of the Smith one per cent, law would be protected by constitutional guaranties against impairment by limitations on the taxing power, yet mandamus lies to compel the placing on the tax duplicate of the levy provided in the budget as originally fixed, and thereafter reduced by the budget commission, where nothing is shown beyond a possibility that contracts may be impaired or payments be delayed, and it does not appear that the discretion lodged in the budget commission has been abused, and there is nothing more than a difference in judgment between the budget commission and the corporation as to needs for the year, and the corporation failed to avail itself of its opportunity to present its case to the commission.</p>

<p>INHERITANCE BY A WIDOW WHO HAS TAKEN UNDER HER HUSBAND'S WILL.</p> <p>Wills — Testator Dies Intestate as to Some of His Property — Widow Elects to Take Under the Will — Not Barred thereby from Life Estate in Lands Not Covered by the Will — Descent and Distribution.</p> <p>Election by a widow.to take under the will of her deceased husband does not preclude her inheritance of lands as to which her husband died intestate and to which no reference was made in his will.</p>

<p>ENCROACHMENTS ON HIGHWAYS.</p> <p>Roads — Encroachment Upon, "by Supports of an Overhead Railway Bridge — Public Control Over Toll Roads with Reference to Nuisances the Same as That Over Highways — Method of "Establishing "Width of Highway where Records Hove Been Destroyed — Right to Encroach Gan Not be Acquired by Adverse Possession — Sections 7515, 9235, 11219 and 11220.</p> <p>1. Where the record of a roadway as shown by plats, and other evi- ' dences of title has been destroyed, its width at a particular point may be established at sixty feet by the testimony of persons long familiar with the fences and land lines in that vicinity, aided by ancient private plats and surveys, and particularly by the presumption created by Section 7515.</p> <p>2. No lapse of time bars an action by public officials to recover lands forming part of a highway or street, or to compel the removal of obstructions placed thereon, however long they may have been maintained and regardless of their character as to permanency.</p> <p>3. The fact that the highway which is being obstructed was a toll road at the time the obstruction was placed therein and was not abandoned by the company then owning it for more than twenty-one years after the placing of the obstructions does not give title by adverse possession by rendering operative the statute of limitations.</p> <p>4. Moreover a railway which is without authority under its charter to use the highways or parts thereof in such a manner as to interfere with the public use can not, after having occupied a considerable portion of a highway for a great number of years with the abutments of an overhead bridge, plead its own wrongdoing as a defense against a public demand that, on account of the great increase in traffic along the road and the construction of street railway tracks thereon, these obstructions be removed.</p>

<p>JURISDICTION OVER ACTS OF A TESTAMENTARY TRUSTEE.</p> <p>Wills — Property Left to Testamentary Trustee — Instruction from Court as to Use of Principal for Support of the Ward.</p> <p>Where a will vests in a testamentary trustee discretion in the employment of a portion of the principal in maintaining the cestui que trust, the trustee is an officer of the prohate court in the administration of the trust, and the common pleas court is without jurisdiction in an original action to determine whether or not the welfare of the ward requires a sale of some portion of the property and the use of the proceeds, or whether the price offered for the property which it is proposed to sell is reasonable and proper.</p>

<p>LIABILITY OF OWNER FOR INJURY BY JOY RIDING CHAUFFEUR.</p> <p>Automobile — Negligence of Chauffeur Not Acting within Scope of His Employment — Owner Not Liable Therefor — Automobile Not a Dangerous Instrumentality — No Civil Protection to the Public from Irresponsible, Reckless, Joy-riding Chauffeurs.</p> <p>1. The owner of an automobile is not liable in damages for the negligent acts of his chauffeur while the latter is acting beyond the scope of his employment.</p> <p>2. Whether or not automobile is a dangerous agency, is a question of law, and not of fact.</p> <p>3. The automobile is not to be classed with dynamite, nitro-glycerine and other dangerous instrumentalities, and is not, therefore, a dangerous agency within the meaning of the 47 O. S., 387, nor can such dangerous agency be inferred from the act regulating its use.</p>

<p>NECESSARY ALLEGATIONS IN A SUIT ON A CONTRACT OF INDEMNITY.</p> <p>Pleading — All Averments Must be Made which are Pertinent to the Issue — Conditions Precedent and Conditions Subsequent.</p> <p>In an action on a contract of indemnity which stipulates how notice of default shall be brought home to the defendant surety, averments should be made which will inform the defendant as to when the plaintiff first became aware of the liability of the defendant through the default of his principal and also the date when this information was communicated to the defendant by the plaintiff.</p>

<p>MONEY PAID TO WRONG PERSON BY BANK.</p> <p>Banks and Banking — Question as to Negligence — Where Money Has Been Paid to Wrong Person — Should be Submitted to Jury — Vnusual Oare Required in Identifying a Depositor who Signs by “His Mark.”</p> <p>Where money on deposit has been paid by a bank to the wrong person, the question whether the bank is relieved from liability for the error on the ground that it exercised reasonable care is one for - the jury.</p>

<p>POWER OF NOTARIES TO COMMIT UNDER A COMMISSION ISSUED IN ANOTHER STATE.</p> <p>Notary Public — Authority to Take Depositions — Does Not Include Power to Punish for Contempt a Recusant Witness — When the Commission Under which He is Acting Comes from Another State — Distinction Between Causes Pending Without and Within the State — Construction of Statutes Relating to the Taking of Depositions.</p> <p>A notary public duly appointed and qualified under .the laws of the state of Ohio, has no authority to punish a witness for contempt in refusing to testify before him in the taking by such notary public of a deposition pursuant to a commission or dedimus issued to such notary public by a court of another state wherein the action in which such deposition is to be used is pending.</p>

<p>LIABILITY FOR LOSS OF PROBATE COURT FUNDS.</p> <p>Office and Officer — Probate Court Funds Lost Through Bank Failure— Liability of the Judge Holding Office at the Time and of His Successors Therefor — Voluntary Assumption of Fictitious Account— Statute of Limitations Not Applicable, When — Section 11226.</p> <p>The Commercial Bank of Cincinnati failed in 1895 having therein on deposit a large sum of money deposited, by the probate judge of Hamilton county. Through the payment of dividends from time to time this became reduced in amount until on final distribution a balance of $634.61 remained unpaid. This shortage was carried by the judge holding office in 1895 and those who have succeeded him as a cash asset on the books of the court. The present action was brought to recover the amount of the final shortage, and the several judges were made defendants. Held:</p> <p>1. Such an action is subject to the ten years statute of limitations; and the incumbent in 1895 having been re-elected in 1897 and again in 1900, his incumbency continuing until 1902, the right of action was carried forward to that date and is not barred by the statute.</p> <p>2. Succeeding judges having voluntarily assumed the fictitious account they are also liable on their official bonds for the amount thereof.</p>

<p>RIGHTS UNDER A CONTRACT OF PURCHASE MADE BY AGENT.</p> <p>Agency — Constructive Trust Under Contract of Purchase Entered Into by Agent — Vendors Proper Parties to Action by Principal for Carrying out of Agreement — Injunction—County Property May be Sold by County Commissioners at Private Sale.</p> <p>1. Where one acts as agent to make a certain purchase at an agreed compensation, and after effecting the purchase refuses to recognize the interest of his principal in the contract, a constructive trust is created in the property in favor of the principal.</p> <p>2. In such a case the persons with whom the agent has negotiated for the property and to whom he has paid a part of the purchase price are proper parties to an action hy the principal for a completion of the contract and a recognition of his rights therein; and upon tender of the amount remaining due under the contract he is entitled to an injunction against transfer of the property to the agent and decree for its transfer to him.</p>

<p>INJURY FROM OBSTRUCTION ON SIDEWALK.</p> <p>Sidewalk — Duty of Tillage with, Reference to Obstructions Upon — Failure to Mark Obstruction by Signal Lights — Ministerial Functions.</p> <p>1. The duty of a village to keep its streets and walks free from obstructions is a ministerial duty.</p> <p>2. A petition which alleges that a contractor, with knowledge on the part of the village, erected barriers on a sidewalk which were not marked with signal or danger lights-during the night time, and by reason of the negligence of the village in that regard the plaintiff suffered an injury, is good against demurrer by the village.</p>

<p>AS TO LIABILITY OF SURETIES FOR STATE FUNDS DEPOSITED IN BANK.</p> <p>Principal and Surety — Knowledge of Its Own Officers is Changeable to a State in Dealing With Sureties — Bonds Which It is Not Necessary to Renew — Provisions of Depository Act Which Do Not Affect the Hazard of the Surety — Jurisdiction of State Board of Deposit — Connivance Between Principal and Officer — diving Bond Releases the ' Surety — Surety' for State Deposit Not Liable for Money Secretly Deposited — Sections 323', 326 and 327.</p> <p>1 The state in dealing with a hank and surety company as to deposits of state moneys, under the provisions of Section 326, is chargeable - with knowledge possessed hy the state treasurer, and is incapacitated hy reason of any legal omission or commission in his dealings with a hank a,s an individual with reference to monies belonging to the state.</p> <p>2. No renewal is necessary of a bond given to secure repayment of monies belonging to the state which have been loaned to a bank under the depository act.</p> <p>3. The provisions of Section 327, relating to lending to depositories monies belonging to the state, the giving of bond, etc., constitute a part of the bond, but those parts which are directory to the board of deposit and which could not in any way affect the hazard of the surety do not afford a basis for subsequent relief to the surety.</p> <p>4. Such a bond is not retrospective, and the state appearing in the courts to ask its enforcement' is shorn of its sovereignty and held to the same rules that apply to a private citizen.</p> <p>5. The state board of deposit, after having designated a depository, is not required to exercise continuous supervision over the bank containing the deposit, but after the designation has been made the discretion is solely with the state treasurer, and failure of the board to subsequently meet and pass upon the qualifications of a designated depository is not such negligence as will release an accepted surety.</p> <p>6. Since principals are bound by the maximum of good faith in dealing with sureties no recovery can be had from a surety for state funds deposited in a designated bank on the ground that the funds were obtained by secret connivance between the state treasurer and the officers of the bank before the enactment of the depository law and remained so converted for a considerable period before bond was given to secure the deposit.</p> <p>7. Where the funds deposited by the state as recited in the bond were neither increased nor decreased, but consisted of funds therefore secretly placed in the bank, the surety is not bound therefor under the strict wording of their liability.</p>

<p>CAUSE OF ACTION DEFEATED BY TARDY SUBSTITUTION OF PARTY PLAINTIFF.</p> <p>Substitution of Party Plaintiff — Bar of the Statute Not Affected Thereby, "When — Application of Statute of Limitations where Subrogation is Not Asked — Knowledge of an Involuntary or Go-Trustee of. Intention of Acting Trustee to Misapply Funds — Sections 11261, 11222 and 11227.</p> <p>1. Substitution of an assignee of the original party plaintiff, where not asked until,the statute of limitations has run, does not avoid the bar by relating back and making the substituted party the plaintiff ab initio.</p> <p>2. Where the action is an attempt to recover from the defendant on an implied promise as co-trustee, the six years rather than the ten years statute of limitations is applicable.</p>

<p>RECEIVERS FOR CORPORATIONS.</p> <p>Receivers — Appointment of, Will Not he Made for Convenience of Corporations — But Must he Based, on a Prayer for Legal or Equitable Relief — “Usage of Equity" Can Not Ripen from Local Practice — Section 11894.</p> <p>Ground for the appointment of a receiver for a corporation is not shown where there is no prayer for legal or equitable relief, and especially if the purpose appears to be merely to stave off creditors by preventing them from realizing on their claims through suits at law.</p>

<p>ACTIONS ON FIRE POLICIES COVERING THE SAME PROPERTY.</p> <p>Fire Insurance — Joinder of Causes of Action Against Different Companies — Carrying Policies on the Same Property — Not Permissible to Avoid a Multiplicity of Suits — Contracts of Insurance are Purely Personal and None the Less so where Loss is to be Proportioned— Section 11806.</p> <p>Causes of action against different insurance companies, carrying separate policies on the same property damaged or destroyed by fire, can not be joined in the same petition even though the policy provides that the insurance company shall not be liable for a greater proportion of any loss on the property than the amount of the policy bears to the -whole amount of insurance on the property.</p>

<p>LIENS IN FAVOR OF SUB-CONTRACTORS AND MATERIAL MEN.</p> <p>Mechanic’s Liens — Liability of Owner to Sub-Contractors — Where Principal Contractor Was Paid Prematurely — Advance Payment Treated as in Collusion and Fraud — Section 8335.</p> <p>Where payment is made by an owner to a principal contractor before the work is completed and before payment was due under the terms of the contract, and such payment was not made to enable the principal contractor to complete the work, but was made solely for hite accommodation, it is invalid as against the rights of subcontractors and material men who subsequently completed their liens within the time required by law, and as to them the fund will be treated as still in the hands of the owner, and the liens of subcontractors and material men will attach thereto to the extent of their claims.</p>

<p>ACQUISITION OF RESIDENCE FOR PURPOSE OF APPLYING FOR A DIVORCE.</p> <p>Divorce — Determination of Residence — Loose or Liberal Construction of Statutes Conserving the Marriage Relation Not to be Permitted - Actual Residence Necessary to Acquire Domicil.</p> <p>1. The fact that a former resident of Cincinnati, who became connected with the Government service in Washington, has been accustomed to return to Cincinnati to vote, is without significance in determining his domicil in a divorce proceeding.</p> <p>2. Domicil in Ohio, for the purpose of obtaining divorce, can be acquired only by absolutely abandoning the former residence outside of the state.</p> <p>3. One who had resided for twelve years in Washington, D. C., came to Cincinnati, Ohio, and rented a furnished room which he occupied for a few days in succession at intervals during the year. When not occupying this room he lived with his wife and family in Washington and he accompanied them on a three months European tour. After the lapse of a year he filed a suit for divorce in Cindinnati, claiming statutory residence in this state.</p> <p>Held: That his residence in Washington was not abandoned at the" time of the attempted transfer of his domicil to Cincinnati, and he has not acquired a residence in Ohio within the meaning of the divorce statutes.</p>

<p>APPROPRIATION OF LAKE FRONTAGE DEVOTED TO PARK PURPOSES FOR RAILWAY PURPOSES.</p> <p>Eminent Domain — Fee to Land Appropriated for Park Purposes Not Obtained by Municipality, When — Interest Obtained Determined by Statute, Not by Measure of Compensation — Municipality May Sell or Lease Only Property Held in Fee — Use for Park and for Wharf Purposes Distinguished — Additional Servitude without Further Compensation May Be Enjoined — Tax-Payer Can Not Enjoin Lease for Wharf of Property Condemned for Park Purposes — Riparian Ownership and Governmental Interest Distinguished — Injunction Does Not Lie to Prevent Change in Use of Property Appropriated— Sections 8677, 8681 and 8698.</p> <p>1. A municipality in appropriating lands for park purposes, in 1872, by virtue of Section 507 of act 66 O. L., 234 (R. S., 2232; General Code, 3677), limiting the amount taken to that “reasonably necessary for the purpose to which .it is to be applied,”. did not obtain the fee thereof, notwithstanding the fee therein was prayed for; and it follows that upon lease of part of said property for exclusive wharf purposes, the reversioners are entitled to additional compensation for the increased servitude as one not contemplated in the original condemnation proceedings.</p> <p>2. The interest acquired by condemnation proceedings is determined by the provisions of the statute, and not by the measure of compensation allowed therefor. A written statement was filed by a property owner .in condemnation proceedings for municipal park purposes, under Section 513 of act 66 O. L., 236 (R. S., 2236; General Code, 3681), setting forth that he was the owner in fee of one parcel, is not such an answer as is required by statute, raises no issue, and can not, upon the property being devoted to other than the use appropriated, be deemed an admission of the interest taken, or estop such owner from denying title in fee in the municipality.</p> <p>3. Section 676 of the municipal code of 1869 (R. S., 2673; General Code, 3698 et seq.), authorizing sale or lease of municipal property, does not apply to lands in which the municipality has an easement only, acquired hy reason of exercising the governmental powers of the state.</p> <p>4. Wharf use of land with the exclusive right to construct and use piers, passenger station, ticket offices, freight warehouse, railroad tracks, etc., necessary for' a lake transportation company, is a separate and distinct use from that for park purposes, notwithstanding the declaration of council that such wharf use is not inconsistent with park use. The latter use implies recreation purposes merely; the former, commercial purposes.</p> <p>5. Injunction lies to prevent the imposition of the additional servitude for wharf purposes upon land appropriated for park purposes, pending determination of compensation for the new use, notwithstanding a reversioner, hy acquiescing in the appropriation, may bring his action for damages.</p> <p>6. A tax-payer can not enjoin a municipal corporation from leasing for wharf purposes land condemned for park uses, the former use not being a diversion to another inconsistent use, and with no intention to abandon such park use.</p> <p>7. The title of the state and of municipalities to laqd under the water of Lake Erie is not that of a proprietor, but it is held in trust by them for public purposes of navigation and fishery. Riparian ownership embraces all such facilities and instrumentalities as will further navigation and fishery purposes, and includes access to navigable water and the right to wharf out to it. The fact that a municipality has used public funds for piling, and for filling in submerged land for park purposes, does not defeat the right of reversionary riparian owners in such lands.</p> <p>8. Injunction will not lie to prevent a municipality from condemning lands in which it has an easement only, but in which it sought to obtain the fee as authorized by General Code, 3692, the necessity for obtaining such lands being wholly within the discretion of the council thereof; hence, where the declared purpose in condemning land for public purposes is wise and lawful, condemnation will not be enjoined, unless the evidence shows clearly that the declared purpose is not the real purpose. Evidence of negotiations by city officials other than members of council is admissible to determine the real purpose of council in passing a resolution and ordinance condemning lands for a public purpose, the declared purpose being traversed as not the real purpose.</p>

<p>UNLAWFUL CONDUCT OF A LAWFUL STRIKE.</p> <p>Strikes — Circumstances Warranting Workmen in Collectively Leaving Their Employment — Peaceable Persuasion Justified, whether Directed Against Other Workmen Likely to Enter the Employer's Service or Against Customers of the Employer — But Threats and Intimidation are Subject to Injunction.</p> <p>1. A labor union strike, where the purpose is to settle a trade dispute, or some other question growing out of and incidental to the relations of the strikers themselves with their employer, and the conduct of the strikers is free from force, intimidation or false representations, and is intended to better the condition of the strikers rather than to punish their employer, is a lawful undertaking, notwithstanding the strikers may know that their collective action will result in damage and injury to their employer.</p> <p>2. Where an employer, contrary to the working agreement into which he has entered with his employes, displaces some of them, and further violates said agreement by giving the union no opportunity to fill the places of those discharged with competent fellow-servants, and steadfastly refuses to meet the business agent of the union, and otherwise exhibits an intention to ignore and disregard the said agreement with the union, a sufficient justification for a strike is afforded, and a strike under such circumstances can-not be said to have been provoked through sympathy for the discharged workmen.</p> <p>3. Strikers have the right, in the conduct of a lawful strike, to use peaceable means to induce customers or prospective customers of their employer to withdraw their patronage from him and give it to others.</p> <p>4. But the distribution of circulars among customers of the employer, which are so couched as to be understood as a threat against those who continue to patronize him, and the accompanying of such distribution by conduct and language on the part of the strikers of such a character as to leave no doubt of their intention to injure those who continue to patronize him, constitutes an illegal conduct of the strike against which injunction will lie.</p>

<p>DISMISSAL FOR DEFAULT VACATED.</p> <p>Dismissal — Failure to Reply Not Ground For — Vacation of Judgment on Merits for Failure to Answer Interrogatories — Sections 11850 and 11681.</p> <p>1. A defendant is not entitled to a judgment of dismissal on the ground that the plaintiff is in default for reply to answer.</p> <p>2. A judgment will be set aside and vacated at a subsequent term of court where the matter came up on a motion by the defendant to dismiss for failure to answer interrogatories attached to the answer of the defendant, and the entry shows a hearing on the merits with judgment of dismissal.</p>

<p>LEGISLATURE WITHOUT AUTHORITY TO VACATE AN ORDER OF DISBARMENT.</p> <p>ConstiUitiondl Law — Conferring ‘of Authority to Practice Law a Judicial Act — Charles A. Thatcher’s Reinstatement by the General Assembly Without Effect — Judicial and Ministerial Acts.</p> <p>1. Where one claims the right to practice law by virtue of a special act of the Legislature appointing him to be an attorney at law, and objection is made to his participation as an attorney at law-in the trial of a case then pending, no question of his fitness to occupy the office of an attorney at law is raised, but the court is' required to determine his right to practice, and in so doing will determine the constitutionality of the act under which it is . claimed such authority was conferred.</p> <p>2. While the Gteheral Assembly may enact laws prescribing the qualifications necessary for admission to the bar, and may also provide for disbarment in cases where the commission of certain offendes has been satisfactorily established, authority to admit an applicant to the privileges of an attorney at law involves the exercise of judicial power, and an attempt by the General Assembly to exercise such authority is an attempt to exercise judicial power, and is void and without effect.</p>

<p>CONTRACTS FOR INTERCHANGE OF TELEPHONE BUSINESS.</p> <p>Telephones — Public Policy of the State that Indiscriminate Service Shall be Furnished — Jurisdiction of Courts to Enforce Specific Performance of Contract — Policy of the Courts where Public Bights Are Involved — Contracts Which Are Illegal in Part — Connections with Neighboring Telephone Exchanges.</p> <p>1. Where two telephone companies combine to jointly serve the subscribers of both companies, equity will not enforce a contract which provides for any discrimination of service among those similarly situated.</p> <p>2. An agreement between two such companies that neither will operate in the territory of the other, or connect with each other’s competitors, is agáinst the public policy of the state, and a court of equity will not enforce such a contract unless the illegal part can be eliminated; and if it appear that the contract would not have been entered into had the exceptionable provisions been omitted, it is evident that the consideration is to that extent unlawful and the contract can not be enforced in any part.</p>

<p>LOCATION OF UNDERGROUND BAKERIES.</p> <p>Bakeries — Location and Sanitation of — Injunction Does Not Lie to Protect a Baker Who Has Been Ordered to Remove His Bakery from Underground Room — Section 1012.</p> <p>The arrest of one who is maintaining a bakery below ground would not cause him such irreparable injury as would warrant a court of equity in preventing a threatened arrest by injunction.</p>

<p>CONSTRUCTION OF PROVISION FOR A FRANCHISE TAX.</p> <p>Street Railway Franchise — Construction of, with Reference to Percentage of Earnings to be Paid to Municipality — Earnings of Interurban Companies Entering the City Over Tracks Covered by the Franchise Subject to Tax.</p> <p>Under the franchise granted to the Cincinnati Street Railway Company, August 18, 1896, which provides that “the said company shall pay * * * five per cent, of its gross earnings to the city from every source of its said routes or lines of roads, or any extension thereof now owned or hereafter acquired by said company, and also all future extensions of any of said lines, and all future connections of said' lines, within or without the corporation limits of the city of Cincinnati or within the county of Hamilton,” the percentage is to be figured, not on the actual receipts of the company, but on its gross earnings, and “gross earnings” comprises all revenue which flows from the franchise itself, including gross earnings within the city limits of interurban companies which enter the city over the lines of the Cincinnati Street Railway Company under agreements entered into 'between the said' company and interurban companies, notwithstanding the Cincinnati Street Railway Company receives' from said interurban companies only a proportion of the earnings of the interurban companies within the city limits.</p>

<p>MAINTENANCE OF PROPERTY OF WARD.</p> <p>Guardian and Ward — Premises of Ward Occupied by Guardian — Rental and Repairs — Account of Guardian Final Upon Confirmation as to Matters Adjudicated Unless Appeal is TaJcenSections 10969, 10972, 10991 and 109S4-</p> <p>1. It is tbe duty of a guardian to keep real estate belonging to bis ward in reasonable repair; and where tbe property is occupied by tbe guardian, be is chargeable with a fair rental therefor, and he may deduct from the rental the cost of reasonable and necessary repairs made by him upon the property during his tenancy.</p> <p>2. The cost of repairs of property of a ward should be made from the income of the ward’s estate, or if the income is insufficient from the principal, leave so to do having been first obtained from the probate court.</p> <p>3. Each account of a guardian with his ward, whether intermediate or final, upon confirmation becomes an adjudication of all matters between the said guardian and ward contained in the account, unless an appeal be taken, or a subsequent guardian during the minority of the ward, or the ward within two years after he arrives at full age, file a petition in the common pleas to open up and review the settlement for fraud or manifest mistake.</p>

<p>PROCEEDINGS OF THE OHIO TAX COMMISSION SUBJECT TO INSPECTION.</p> <p>Records — Right of Public to Inspect Public Documents — Proceedings of Ohio Tam Commission Subject to the Same Rule.</p> <p>Tbe proceedings of tbe Tax Commission of Obio constitute a public record, and subject to proper regulations these records are open to inspection by any and all persons who choose to examine them, regardless of their interest or lack of interest in the subject-matter.</p>

<p>REMOVAL OF GARBAGE.</p> <p>Removal and Disposal of Garbage and Other Refuse Matter — Power of Municipalities with Reference Thereto — Limitations as to Articles which May Be thus Classed — Impairment of Contracts — Constitutional Law.</p> <p>1. The authority which is vested in municipalities to control the collection and reduction of garbage and offal does not include the right to take, without compensation to the owners, slaughter-house offal and other articles of a sanitary character, unless such articles are mixed with garbage and other matter which is noxious and dangerous to health and life.</p> <p>2. One who has existing contracts for the removal of slaughter-house and other offal of a sanitary character, and possessing value, may enjoin the enforcement of an ordinance in so far as it is in impairment'of his contract obligations.</p>

<p>LIMITATIONS ON THE CIVIL RIGHTS ACT.</p> <p>Civil Bights — Character of Business in which Discrimination May and May Not Be Shown — Public Accommodations Do Not Necessarily Make a Public Place — When Service May Be Refused Without Regard to Color, Nationality, Religion or Station in Life.</p> <p>An action for damages will not lie under the civil rights statute for refusal to serve a colored man a glass of soda from a soda fountain maintained in a candy store maintained hy the defendant.</p>

<p>STATUS OF PURCHASERS AT JUDICIAL SALE WHO FAIL TO TAKE PROPERTY.</p> <p>Judicial Sales — Purchaser Who Fails to Take Not in Contempt, When— Rigor of Former Rulings Relwed — Application of the Doctrine of Caveat Emptor — Unmerchantable Title — Fair Dealing.</p> <p>In the interest of justice and fair dealing a court, in the exercise of a sound discretion, will not punish as for contempt a purchaser at judicial sale for declining to take the property, where reasonable question exists as to the marketability of the title; and in a partition sale the fact that the decree was prematurely entered is a sufficient ground for overruling a motion to punish the purchaser for the failure to take the property.</p>

<p>TRANSFER OF COUNTY FUNDS.</p> <p>Authority of -County Commissioners and Auditor to Transfer Funds— Powers Must be Strictly Construed — Procedure in Common Pleas for Obtaining an Order for Transfer — Exhausted Funds — Unexpended Balances — By Whom Funds May Be Transferred — Taxes from Specific Levies — Transfer of Surplus from Special Loans — Sections 2113, 5699, 5651, 2296 and 2571.</p> <p>There is no statutory authority whereby the county commissioners and auditor, for the purpose of meeting present needs by replenishing exhausted funds, may transfer to such funds either receipts in bulk from undivided taxes, or from the sale of bonds issued for a specific purpose, or from duplicate tax payments, or from the floating debt, depository interest or election funds, and an attempt so to do is void, and moneys so attempted to be transferred should be restored to the funds to which they belong; but funds arising from fees paid into county offices may be so transferred.</p>

<p>CONSTRUCTION OF CONTRACT FOR SERVICES OF ATTORNEY.</p> <p>Attorney and Client — Employment of Counsel at a Fixed Compensation —Duties Largely Increased by Subsequent Legislation — But Employment Held to. Have Been Under an Express Contract, and Additional Services Hot Excepted Therefrom.</p> <p>Under a resolution adopted by a board of trustees providing “that W. T. P. be and he is hereby appointed attorney for the board at a compensation of $50 per month, subject to the will and pleasure of the board both as to term of service and rate of compensation,” the employment was under an express contract from month to month, and the fact that as a result of subsequent legislation the duties of the attorney were rendered much more arduous would not entitle him to additional compensation, as on quantum meruit, but the board had the right under the express agreement to allow additional compensation either before or after the work was done.</p>

<p>SECURITY FOR COSTS ON APPEAL.</p> <p>Appeal — Security for Oosts — Requirements as to, Apply to Appealed as Well as Original Oases — Sections 11614 to 11620.</p> <p>A non-resident plaintiff, in an appeal from a justice of the peace to the common pleas court, may be required to give security for costs, notwithstanding the judgment below was in his favor.</p>

<p>ASSESSMENTS BY THE FRONT FOOT.</p> <p>Assessments for Improvement of Streets — Construction of 101 O. L., 134 —Respecting the Third Method of Computing Special Assessments —Rule of the Haviland Case Again Prevails.</p> <p>1. When a statute, which has received a settled judicial construction, is repealed and is afterward re-enacted in the same terms and for the same purpose and object, it will be presumed that the legislative body, so re-enacting it, intended that it should bear the same construction which had been given to the original, unless a different intention is shown.</p> <p>2. The term “foot front” in Section 2264 of the Revised Statutes, having been construed by the courts as meaning, for assessment for the improvement of a street, a frontage equal to the linear measurement of the most prominent and conspicuous side of a property, rather than the side actually abutting on the street on which the improvement is made; and the courts, upon the repeal of this section (96 O. L., 39, Sec. 50) and the substitution of another act providing for an assessment by the “foot frontage” having construed that substitution as an intention of the General Assembly to abrogate the former construction by the courts of the meaning of the term “foot front”; when the latter act was repealed and in the repealing act an assessment was provided for by the “foot front” in language identical with old Section 2264 (101 O. L., 134), the presumption arises that, by so doing, the General Assembly intended the assessment so provided for by the “foot front” should mean tbe same that it bad theretofore been construed to mean by the courts.</p> <p>3. The act of April 22, 1910 (101 O. L., 134), amending„Section 3812 of the General Code, requires the third method of assessing property for improvemenas to be made by the “foot front,” meaning thereby that if a lot abuts lengthwise on - the improvement, but fronts breadthwise on another street and not on the improvement, the lot should be deemed as fronting breadthwise on the improvement and be assessed for the number of feet on the improvement that it would have in such case, and no more.</p>

<p>ERROR TO THE MAYOR OF A VILLAGE IN TWO COUNTIES.</p> <p>Jurisdiction of a Mayor — Where the Town Lies in Two Counties — Prosecution of Error — Section 3539.</p> <p>1. Inasmuch as the village of Milford is situated in both Hamilton and Clermont counties, the jurisdiction of its mayor is made, by Section 3539, General Code, co-extensive with both counties.</p> <p>2. But where the offense was committed in Hamilton county, and the trial was held and judgment rendered at the situs of the village which is in Clermont county, the prosecution of error must be to the Common Pleas Court of Clermont County, and where such proceedings are filed in Hamilton county the court is without jurisdiction and the proceedings must be dismissed.</p>

<p>ADMISSION TO BAIL IN FIRST DEGREE MURDER CASES.</p> <p>Bail — Constitutional Rights. with Reference to — Discretion of the Court —How Exercised — Where the Defendant is Charged with Murder in the First Degree — Presumption of Guilt — Burden of Proof — Defenses — Evidence Before the Grand Jury — Alibi in Rioting and Lynching Cases.</p> <p>1. Under the constitutional provision that “all persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great,” an application for bail by one who is under indictment for murder in the first degree is addressed to the sound legal discretion of the court, with the presumption against admission to bail, and the burden upon the applicant of showing that the proof is not evident or the presumption of guilt great.</p> <p>2. That the accused has been three months in jail, that the grand jury in indicting him acted upon insufficient evidence, or that there are matters of defense, are not considerations which will move a court to grant an application for bail, when the charge is murder in the first degree; and where the charge is based upon alleged participation in rioting or a lynching, the defense of an alibi, even if established beyond per adven ture, could not be considered.</p>

<p>CONSTITUTIONALITY OF ACT PROTECTING MEMBERS OF LABOR UNIONS FROM DISCHARGE.</p> <p>Violations of Personal Rights — Interference with Membership in a Labor Organisation — Constitutionality of Ohio Act Providing a Penalty Therefor — Right of Employer to Refuse Business Relations with Any Persons Whomsoever — Not Interfered with by Protection to Employe in His Right to Belong to a Labor Union — Motive of Discharge of Employe Determines Quality of Act.</p> <p>Section 12943, General Code, which subjects an employer or his agent to criminal prosecution for preventing employes from joining or belonging to a lawful labor organization, or for coercing or attempting to coerce by discharging or attempting to discharge them because of their connection with such organization, .is not in contravention with constitutional guaranties, but is a valid exercise of legislative power.</p>

<p>AUTHORITY TO INCREASE OR DIMINISH PAY OF POLICE OR FIREMEN.</p> <p>Policemen and Firemen — Tenure of. Dependent upon Conditions Not Existing at Time of Appointment — And Salaries May be Increased or Diminished During Term of Office.</p> <p>Members of the police and fire departments of a municipality are not appointed for a “term” within the meaning of Section 4213, P. & A. Anno. General Code, and having no fixed or definite term the restriction as to changes in salaries does not apply to them, and council has power to increase or diminish their salaries after appointment.</p>

<p>CONTRACT WITH AN UNAUTHORIZED AGENT.</p> <p>Pleading — Liberty of the Code Does Not Permit Looseness in Statement of Cause of Action — Pleading of One Cause and Attempt to Prove Another — Action for Commissions — Contracts.</p> <p>Tbe rule that an action must he founded upon a definite theory which can not he thereafter changed or departed from', does not permit a plaintiff in a suit on an express contract to prosecute his action as for breach of an implied contract.</p>

<p>SIGNS AND THE RIGHT TO PLACE AS BETWEEN TENANTS.</p> <p>Lease — Failure to Record Immaterial — So Far as Such Failure Concerns One Claiming Lack of Notice of Rights Reserved Therein, When— Reformation of, Will Be Denied, When — Signs and the Right to Place Them on Outer Wall.</p> <p>1. A party can not claim to have been misled as to the terms of an unrecorded lease, where it appears that no search was made of the records for the lease and reliance, therefore, was not placed upon the fact that no lease appeared of record.</p> <p>2. Moreover, a party occupying the middle portion of a building nowhere adjacent to 'the outer wall has notice, without consulting the lease, that the party occupying the intervening space adjacent to the outer wall has the exclusive right to the use of that wall for advertising purposes.</p> <p>3. Reformation of a lease will not be granted on a mere showing that some provision, which was agreed upon between the lessor and an agent of the lessee was not incorporated into the lease subsequently drawn by the lessor and executed by officers-of the lessee company.</p>

<p>VALIDITY OF ACT LICENSING MONEY LENDERS.</p> <p>Constitutional Law — Act Licensing Money Lenders — Not Rendered Invalid- by Reason of Exemption Therefrom of Banks and Building Associations — Interest of Husband and Wife in Earnings of Each Other — 102 Ohio Laws, 4-69.</p> <p>1. The nature and conduct of the business of banks and building associations, and the existing laws applicable to them in the way of regulation and inspection of their business, furnishes a sufficient warrant for their exemption from the provisions of the act of May 31, 1911, requiring that persons engaged in the business of making loans upon chattels or personal property of any kind and of purchasing or making loans upon salaries or wage earnings secure a license therefor from the Secretary of State, and the classification thereby created is a proper one and the act is not rendered violative of the equality clause of the Constitution by reason thereof.</p> <p>2. Neither is this act rendered unconstitutional by reason of the restriction which it places upon the right of a married man to bor- • row money without his wife joining therein.</p>

<p>SUFFICIENCY OF PETITION UNDER THE JONES LAW.</p> <p>Intoxicating Liquors — Porhihition of Sale of, in a Residence District — mature and Character of the Proceeding — Hearing Heed Hot necessarily he Before the Same Judge Who Received the Petition — Method of Procedure — Rights of the Majority — Hearing Delayed More than Forty Days — Statute Directory and Hot Mandatory as to Time— Burden of Proof as to Sufficiency of Petition and as to Fraud in Procuring Signatures — Prima Facie Evidence as to Sufficiency — Petition Need Not he Addressed to Mayor or Judge hy Name — Omission of Location of a Saloon from Map — Sections 6140 et seq.</p> <p>1. The proceedings growing out of the filing of a petition for the prohibition of the sale of intoxicating liquor in a residence district are judicial in character; and where such a petition is presented in the common pleas court of a county where there are several judges, it should be filed in the,miscellaneous room, and after having been received by the judge presiding in that room, it should be given a regular number and advanced on the trial docket for hearing within forty days and then referred to the assignment commissioner to be set by him for hearing before whatever judge happens at the time to be not engaged.</p> <p>2. When a petition either to prohibit or to permit the sale of intoxicating liquor in a residence district is presented to the court or the mayor, and the petition is found to be correct in form and properly filed, it must be accepted as prima facie evidence of its sufficiency; and the burden is upon the contestants to show that there are among the signers persons who are not qualified electors or were not residents of the district at the time of signing the petition. 11 C.C.(N.S.), 351, not followed.</p> <p>3. Sections 6140 and 6141 are not inconsistent with Section 6149, General Code, and changes in population since the last regular municipal election can not be permitted to interfere with the provision found in Section 6149.</p> <p>4; Tt is not necessary in such a case that the petition be addressed,, to the mayor' by name or to a particular judge of the common pleas court, but it is sufficient if it is filed with the mayor or a judge within three months of the signing thereto of the first names procured'. " ■ •</p> <p>5. The opening of a new saloon within the prescribed territory after the signatures to the petition were obtained but before the hearing thereon, does not cause the map attached to the petition and which does- not show the location of such saloon to be open to objection; but objection does, lie to a map which failed to show the location of all the saloons within the prescribed district at the time the petition was sent out for signatures.</p> <p>6. A signer who asks to have his name stricken from the petition on the ground of fraud or misrepresentation must establish such fact by a preponderance of the evidence, and testimony offered in that behalf will be closely scrutinized.</p>

<p>APPLICATION OF STATUTE OF LIMITATIONS TO ACTION OF SURETY PAYING HIS PRINCIPAL'S DEBT.</p> <p>Reimbursement of Surety — Action For, Barred by the Statute of Limitations at the End of Six Tears, When — Nature of the Action — Promissory Note Paid by Surety — Assignment of Note — Section 11222.</p> <p>A surety who pays his principal’s promissory note when due, has a cause of action against him for reimbursement. And where the note is not in judgment and is independent of any security, lien or preference, the action in favor of the surety rests upon the implied promise of the principal to save him harmless in .the premises, and is barred in six years under the provisions of Section 11222 of the . General Code, notwithstanding the note has been assigned to the surety by the payee.</p>

<p>POLICE SURVEILLANCE OVER ONE CHARGED WITH PRACTICING USURY.</p> <p>Usury — Note Broker Collecting Usurious Interest Not Subject to Police Surveillance — Injunction Lies Against that Method of Eradicating Usurious Practices — Function of Courts of Equity.</p> <p>1. injunction is a remedy for preventing the breach of the duty not to take an unwarrantable advantage of the process of law, a duty partly legal and partly equitable only; and here the remedy, an injunction, is primary.</p> <p>2. Where the evidence shows that no criminal procedure is invoked, that trespasses are continuous, and, that, in order to obtain a remedy at law, a multiplicity of suits must follow, there is no adequate remedy at law, and equity will intervene.</p>

<p>FATAL INJURY AT A RAILWAY CROSSING.</p> <p>Negligence — Passenger on Electric Car — Fearing Collision with Railway-Train, Jumps and, is Fatally Injured — Proximate Cause — Next of Kin, , ...</p> <p>1. The fact that the petition in an action for damages on account of wrongful death does not disclose all of the next of bin does not afford ground for a motion by the defendant for a new trial.</p> <p>2. A court can not apportion negligence as between persons or agencies either in degree or as to time, but must accept the finding of the jury in that behalf where based upon the evidence and circumstances of the case.</p>

<p>INFORMALITIES IN PROCEEDINGS FOR ABOLISHING GRADE CROSSINGS.</p> <p>Grade Crossings — Ordinance for the Elimination of — Failure to Name in the Ordinance Certain Streets Upon which Dangerous Crossings Exist — May he Cured hy a Supplemental Ordinance — Enlargement of Existing Overhead Crossing within the Scope of Grade Crossing Improvements — Provision Limiting Time for Preparing Plans May Be Waived.</p> <p>1. Inasmuch as a mere informality in the passage of an ordinance, or the omission of some preliminary step required by law, may be cured by a supplementary or amendatory ordinance, subject to any intervening rights, the proceeds from an issue of municipal bonds, authorized for the purpose of abolishing grade crossings, may be applied so far as necessary to the elimination of crossings of Streets not specifically named in the original ordinance, where these streets are within the scope of the grade crossing improvement as fully understood at the time the issue of bonds was authorized, and the omission has been remedied by specifically naming these streets in a, supplemental ordinance as within the improvement.</p> <p>2. Where a. high railway embankment crosses a street, and this embankment has been pierced at the street intersection by two parallel tunnels of a size to permit the passage of a single vehicle at a time, outbound travel being accommodated by one of the tunnels and inbound travel by the other, and the facilities thus afforded are inadequate and passage through is attended, with some danger, a general plan for the elimination of dangerous grade crossings includes within its scope authority to remove these tunnels and substitute therefor a bridge which will span the street and afford greater facilities and increased safety for the travel passing thereunder.</p> <p>3. The provisions of Sections 8876 and 8877, requiring the preparation of plans within a limited period after the passage of an ordinance for abolishing dangerous crossings, is directory and not mandatory, and is a provision which may be waived by the parties for the purpose of giving more time for preparing the plans and for other purposes.</p>

<p>THE PROFESSIONAL STATUS OF MR. THATCHER.</p> <p>Disbarment amt Admission to the Bar — Extent to which an Order of Disbarment is Operative — Constitutionality of the Statute for the Relief of Thatcher — Why the Discretion of the Lower Courts Should be Controlled Thereby — Inherent Power of the Courts.</p> <p>1. The order of disbarment in Thatcher’s case in the Supreme Court, being based on inherent power and not upon legislative authority, is not controlled by the statute applicable to disbarment. Hence the order of disbarment of the Supreme Court .does not operate as disbarment in any court of the state except the Supreme Court.</p> <p>2. If admission and disbarment of attorneys be exclusively the exercise of judicial power, then the act of the Legislature providing that the order of disbarment entered in one court shall disbar in all courts is unconstitutional as an exercise of judicial power.</p> <p>3. The act of the Legislature for the relief of Thatcher confers upon him the color of right to the office of an attorney. The court of common pleas should not, sua sponte, challenge the validity of the legislative act. Hence a proceeding instituted by the court to determine a Question of constitutional law should be dismissed without deciding tne Question, when it appears that the decision is not necessary to determine a ease before the court.</p> <p>4. If the statute providing for disbarment is regulative and advisory, then its application is discretionary with the courts, and the act for the relief of Thatcher should control the discretion at this time.</p>

<p>APPLICATION OF THE DOCTRINE OF ACCELERATION OF REMAINDERS.</p> <p>. Wills — Life Estate Bequeathed to Widow — Terminated dy Her’Election to Talce Under the Lem — Immediate Distribution of the Estate Ordered.'</p> <p>The election by a widow to take under the law, rather than under the will of her late husband which bequeathed to her for life the entire income of his estate from every source derived, accelerates the remainder and causes it to vest at once in accordance with the terms of the will.</p>

<p>APPLICATION OF THE REFERENDUM ACT.</p> <p>Municipal Initiative and Referendum, — Application of, to Ordinances Passed by a Tillage upon Becoming a City — Uncertainty as to Certain Features of the Act — Evidently Made © Law Without Intent to Make it Effective — Sections 4227-1-2-3, P. & A. Anno. General Code.</p> <p>Ordinances creating police and fire departments for a village which has' been advanced to the grade of a city are ordinances providing for the expenditure of money, and are therefore subject to the referendum provided by the Crosser act, and do not become effective for sixty days after passage.</p>

<p>LEVY ON PERSONAL EARNINGS.</p> <p>Attachment — Sufficiency of Affidavit in Support of — Where the Proceeding is Directed Against Personal Earnings — Necessary Allegations to Exempt Ninety Per Gent, of Earnings for Services Rendered within Three Months.</p> <p>1. An affidavit in support of a proceeding in attachment on a claim for necessaries, where directed against more than ten per cent, of personal earnings of the defendant for services rendered within three months, is insufficient when it is not alleged that the defendant is not the head or support of a family or in good faith the support of a widowed mother.</p> <p>2. A married man who is living apart from his family and not supporting them, is not entitled to the benefit of the statute exempting ninety per cent, of his earnings from attachment.</p>

<p>CONSTRUCTION OF ORDINANCE PROHIBITING: ERECTION OF A BLACKSMITH SHOP IN A RESIDENCE DISTRICT.</p> <p>Municipal Corporations — Control of Council over Erection of Buildings —Limited to Plan and Material — Intended Use Not Ground for Refusing a Permit — Blacksmith Shops in Residence Districts — Elimination of Objectionable Features by Modern Methods — Ordinance Presumed to Embody a Yalid Legislative Intent — Injunction.</p> <p>1. It is not within the powers of a municipal council, under Section 3636, P. & A. Anno. General Code, to authorize the building commissioner to refuse a permit to erect a building, lawful in material to be used and in plans and method of construction, and not in itself a nuisance, on the ground of its contemplated use; and where application is made for a permit to erect a building of a lawful character, the duty of the building commissioner is purely ministerial and mandatory.</p> <p>2. The presumption of a valid legislative intent requires that Section 452 of the codified ordinances of Cincinnati, prohibiting the erection of a blacksmith shop within a square in which two-thirds of the buildings are used as residences, unless consent is given in writing by two-thirds of all the property owners within the square, be construed as applying to the use to which the building is to be devoted, and the word “erected” will be understood to apply to the putting in place of the appliance necessary for carrying on the work of blacksmithing.</p>

<p>PUBLICATION OF COUNTY COMMISSIONERS' ANNUAL REPORT IN A GERMAN NEWSPAPER.</p> <p>Publication — Construction of Section %S08, General Code, Providing for the Publication in a German Newspaper of the County Commissioners’ Annual Report — Constitutional Law.</p> <p>1. A newspaper published in the German language is competent to publish the annual report of the county commissioners, as provided in Section 2508, General Code, if it have a bona fide circulation within the county of six hundred or more copies, notwithstanding its circulation is not distributed generally over the county, but is limited to a comparatively few townships, and does not include all the townships containing German residents, and but a small proportion of its subscribers speak the German language exclusively.</p> <p>2. The provision of this statute for publication of the county commissioners’ annual report in a newspaper published in the German language, if there be such a paper published within the county of the required circulation, is not violative of the constitutional guarantee that political power shall be exercised for the equal protection and benefit of the people, and that laws of a general nature shall have uniform operation throughout the state.</p>

<p>ASSIGNMENT OF INTEREST IN OPTION TO PURCHASE LAND.</p> <p>Specific Performance — Where Interest in a Privilege of Purchase was Assigned — And the Property was Sold to Another than the Assignee — And the Owner of the Pee, into Whose Lease the Privilege was Incorporated, Refused to Accept the Purchase Price.</p> <p>1. The contract between Z and M, set forth herein, conveyed to M a one-half interest in the privilege of purchase-of land held by Z under a lease, and M is entitled to one-half of the profits from the sale of said land, whether sold by himself or by Z.</p> <p>2. The contract made by Z for sale of said land is the only contract for the sale thereof which is enforcible, and M is entitled to his share of the profits arising therefrom.</p> <p>3. The lessor having refused to accept the amount named in the lease upon tender thereof, interest will not he allowed to him on said amount, and the purchaser standing ready to take the land at the price so named will not be required to pay interest on the amount of his tender.</p> <p>4. Costs of the present litigation will be assessed against the balance of proceeds remaining from the sale of the land over and ahoye the purchase price named in the lease.</p>

<p>THE VICE OF ALLEGING BOTH WILLFULNESS AND NEGLIGENCE.</p> <p>Pleading — As to Acts which were Willful and Acts which were Negligent — Doctrine of the Last Chance — Plaintiff Required to Elect.</p> <p>Where a plaintiff alleges that the wrongful act complained of was both willful and negligent, a motion to require him to elect upon which he will rely will be granted, not because willfulness is always incompatible with negligence, but for the reason that the plaintiff’s petition should contain allegations which unconditionally — and not alternatively — preclude his own negligence as a directly contributing cause of the injury.</p>

<p>THE PROHIBITION AGAINST BAKERIES LOCATED IN CELLARS.</p> <p>Constitutional Law — Police Power — Property Rights — Classification of Cellars and Basements — Legislation Haying Prospective and Retrospective Application — Measurers for Promotion of Sanitation and the Public Health — Habeas Corpus.</p> <p>The provision of Section 1012, P. & A. Anno. G. C., prohibiting the use of cellars or basements for bakeries is a reasonable exercise of the police power of the state, and is not rendered unconstitutional by reason of its application to bakeries so located prior to the enactment of this particular provision.</p>

<p>HABEAS CORPUS FOR RELEASE OF A MEMBER OF THE OHIO NATIONAL GUARD.</p> <p>Habeas Corpus, — Writ for One Held, Under Color of Military Authority and Amenable to Military Jurisdiction Will be Denied by a Civil Court — Effect of the Federal Act Relating to 'the Militia,</p> <p>1. A civil court may, in any case, inquire by what right a person is restrained of his liberty; but if it appear, upon such inquiry, that the person is held under color of military authority, and that the person restrained is amenable to the jurisdiction of the military court, the application should be denied.</p> <p>2. The amendments to the act of Congress approved January 21st, 1903, entitled “An Act to Promote the Efficiency of the Militia and for Other Purposes,” have only increased the authority of the United States over .the organized militia of the various states, and decreased the authority of the states, but have not otherwise changed the individual status of soldiers of the organized militia.</p> <p>3. It appearing that troops had been paraded by authority of a specific order from the War Department, that they might be inspected by officers of the United States army to determine their efficiency, the state courts will, not assume jurisdiction of an application for a writ of habeas corpus to release a soldier, so ordered, from custody. of the military authorities.</p>

<p>TAXATION OF RECEIPTS FROM JOINT ENTERPRISES.</p> <p>Taxation — Construction of the Term “Gross Receipts” — Public Utility Corporations and, the Excise Tax — Contracts for Production of a Common Fund for the Benefit of the Parties Concerned.</p> <p>The words “gross receipts” as used in the act providing for the collection from public utility corporations of an excise tax and penalties (101 O. L., 399) embraces only such receipts as are the property of the corporation making the payment, and do not include that part of the proceeds from a joint enterprise which have been collected and are still in hand but which belong to another.</p>

<p>ORGANIZATION OF A COUNTY BUILDING COMMISSION.</p> <p>Commission for Building a New Court House — County Auditor Must Act as Recording Officer — Failure of Members to Attend — Mandamus to Compel Performance of Duty — Sections 2341, 2342 and 2409.</p> <p>1. A distinct legislative intent appears in the provisions of Section 2342, P. & A. Anno. G. C., that the county auditor shall act as the recording officer of a commission to huild a new court house, and a writ of mandamus will issue requiring him so to act, notwithstanding the earlier and in some measure conflicting provision for the appointment of a clerk of the hoard of county commissioners in place of the auditor.</p> <p>2. In the absence of a different provision in the statute, a county building commission will he governed in the conduct of its business by ordinary methods and parliamentary rules, and a failure of the county commissioners to attend the meetings of the building commission or to vote will not subject them to mandamus, unless such refusal relates to participation in business requiring an affirmative vote of five members.</p>

<p>MANDAMUS TO COMPEL PERFORMANCE OF OFFICIAL DUTY.</p> <p>Office and Officer — Mandamus to Compel County Treasurer to Publish the Tax Rate — Must be Brought by Official Whose Duty it is to Enforce Official Action — Publisher of Newspaper, Without a Contract to Make Such Publication, Without Rights in the Matter— Section 6253, General Code.</p> <p>Mandamus to compel public officials to perform duties required by law can be instituted only by a public officer whose duty it is to.enforce the performance of official duty by other officers and by other relators having a direct beneficial interest, or where the public injury will be serious if the duty be not performed, or the proper public officer refuses to bring such proceedings; and hence a mandatory order to compel publication by the county treasurer of the rates of taxation, does not lie upon application of a publisher having no contract to publish the same, notwithstanding relator may own the only newspaper printed in the German language in the county able to qualify under General Code, 2648, 6263.</p>

<p>CHRISTIAN SCIENCE AND DIVORCE.</p> <p>Divorce — Wife Embraces Christian Science — Zeal for that Faith on Her Part and Indifference on the Part of Her Husband Result in a Separation — Decree Refused — Custody of Afflicted Child.</p> <p>1. A decree of divorce will not be granted on the ground of gross neglect of duty to a devotee of the Christian Science faith, where it appears that the strained relations existing between herself and husband are due to her adoption of this faith and his indifference thereto and resulting incompatibility between two persons of strong mentality.</p> <p>2. In such a ease the custody of an afflicted son twenty years of age, who has been committed to an institution, will be accorded to the husband.</p>

<p>SUING BY INITIAL LETTER.</p> <p>Names of Defendants — Failure to Sue by Full Christian Name — Defeats Lien on Transcript of Judgment, When — Title in Bona Fide Purchaser Without Knowledge — Subrogation.</p> <p>The filing in the common pleas of the transcript of a magistrate’s judgment does not create a lien upon the real estate of the debtor as against title pf a subsequent bona fide vendee, where the debtor was sued by initial letter and the action was not one which fell within the statutory exception for the naming of a party defendant by initial letter or a contraction of his name and the purchaser was without actual knowledge of the filing of such lien or judgment.</p>

<p>TRUST DEED CONVEYING PARTNERSHIP PROPERTY TO BE APPLIED TO LIQUIDATION OF PARTNERSHIP DEBTS.</p> <p>Partnership — Deed Conveying Property of — Held to Create an Express Trust — Where the'Purpose Was to Liquidate Partnership Liabilities — Administrator of Deceased Partner Brings an Action for an Accounting• — Estoppel—Laches.</p> <p>1. A deed by which, two partners constituting a firm “remise, relinquish, release and quit-claim” all partnership property to one partner to enable him to settle, compromise and pay partnership debts, both partners acknowledging that each shall remain liable for his proportionate part of existing firm debts, counsel fees and court costs in defending actions against them as partners, conveys absolutely the legal title for the purposes designated, but does not constitute a bargain and sale of all interest, legal and equitable, of one partner to the other. Upon its face it is a trust deed creating an express trust in any residue of partnership property, after paying firm debts, in which both partners participate.</p> <p>2. Probate courts being courts of plenary and exclusive, jurisdiction in the matter of appointing administrators, their records can not be collaterally impeached; hence, in an action by an administrator of a deceased partner for an accounting of partnership property by the surviving partner, the.right of plaintiff to maintain the action can not be raised.</p> <p>3. An order of probate directing assignee for creditors to turn over property of insolvent partnership to partner to whom the firm has conveyed its property to enable him to extinguish firm debts, is not a finding of absolute conveyance to such grantee and does not estop the representative of another partner from maintaining an action for an accounting against such grantee.</p> <p>4. Laches in bringing suit for an accounting by an administrator of a deceased partner against a surviving partner, to work an estoppel, can not be predicated upon mere lapse of time. The burden is on the partner asserting the defense to show knowledge in the administration of a residuum of partnership property after settling the firm’s affairs.</p>

<p>A WIDOW'S RIGHT TO DISPOSE OF THE DEAD BODY OF HER HUSBAND.</p> <p>Burial — Cremation—And Disposal of the Remains of the Dead — State of the Law with Reference Thereto — Widow Has Paramount Right to Elect as to the Disposition to be Made of the Remains of Her Husband — Injunction.</p> <p>It is the duty of a widow as the heir or next of kin of her deceased husband to dispose of his body in a reasonable and sanitary manner, and where in conformity with his expressed desire she elects to cremate his body, injunction will not lie against that method of disposal, where based only on sentimental objections to cremation on the part of other near relatives.</p>

<p>PREVENTION OF CRUELTY TO LIVE STOCK IN TRANSIT.</p> <p>Cruelty to Animals — Society for Prevention of — Provisions of the Ohio Code Not in Conflict with the Federal Act — Discretion of Humane Society Officers — Sections 10062 et seq.</p> <p>1. The Ohio statutes for prevention of cruelty to animals in respects other than those covered hy the Federal twenty-eight hour live stock shipment law, are constitutional and enforcible, as applied to interstate shipments of live stock.</p> <p>2. The discretion of officers and agents of a humane society in determining that the reloading of crippled live stock in transit, which has been unloaded for rest, feed and water, and the loading of such live stock in cars containing the carcasses of dead animals, constitutes cruelty, will not be interfered with by a court of equity upon the complaint of live stock commission men, in the absence of any showing that such discretion was abused.</p>

<p>EXPENDITURES FOR ELIMINATION OF GRADE CROSSINGS.</p> <p>Municipal Corporations — Auditor’s Certificate Not Reqúired Under the Burns Law, When — Expenditures for (Grade Crossings.</p> <p>The provision of Section 3806, P. & A. Anno. G. C., making it necessary before any contract, agreement or other obligation involving an expenditure of money is entered into by a municipality that the auditor certify the money required to meet the proposed expenditure is in the municipal treasury to the credit of the fund from which it it is to be drawn and not appropriated for any other purpose, is primarily applicable to expenditures derived from the general revenue producing powers of the municipality; and such a certificate is not necessary where a specific power is conferred upon a municipality for a specific purpose with a specific provision for payment of the expenditure involved in the exercise of such power.</p>

<p>QUALIFICATION OF A GERMAN NEWSPAPER FOR PUBLICATION OF ORDINANCES.</p> <p>Publication — German Newspaper Qualified to Publish Ordinances, When —Bona Fide Circulation — Nationality of Subscribers — Section 4228.</p> <p>1. The term “paid circulation” is used in Section 4228, General Code, in contradistinction from gratuitous circulation. It does not mean that each subscriber shall have made satisfaction in money of Ms obligation to pay for the paper, but it means that he is to pay for the same and not receive it as a gratuity.</p> <p>2. To fulfill the requirements of Section 4228, General Code, it is not necessary that the newspaper printed in the German language, which qualifies to publish ordinances, should have its entire circulation among persons able to read German.</p>

<p>SETTLEMENT OF ROYALTIES UNDER A COAL LEASE.</p> <p>Accord and Satisfaction — Acceptance of Voucher in Full of Royalties. Due — Bar to an Action for Recovery of a Balance Claimed Still " to be Due — Contract Embodied in an Accord and Satisfaction Can Not be Varied by Parol Testimony.</p> <p>Where a voucher in payment of royalties falling due under a lease of coal lands embodies an unequivocal offer .to settle for the amount therein set out, which is the amount named in the lease with a deduction on account of one of the unavoidable casualties provided for in the lease, and the voucher is accepted by the lessor and is collected, it amounts to an accord and satisfaction of the claim, and parol testimony ^is not admissible to vary the terms of the contract embodied in the accord and satisfaction with reference to deduction made by the lessee from the gross rental falling due.</p>

<p>NATURE OF TITLE TO PROPERTY SOLD IN PARTITION TO AN HEIR.</p> <p>Title — By Inheritance and, by Purchase — Property Sold in Partition and Bought in by Heir.</p> <p>Where property is purchased at a sale in partition by a tenant in common that part of the title which was cast by the law of descent upon said purchaser is extinguished and the whole title vests in him by purchase. Freeman v. Allen et al, 17 Ohio State, 527, reluctantly followed.</p>

<p>CONTINGENT REMAINDER NOT LIABLE FOR COLLATERAL INHERITANCE TAX.</p> <p>Taxation — Application of the Statute Providing for a Collateral Inheritance tax — Section 5331.</p> <p>The devisee of a contingent remainder is not liable for the collateral inheritance tax.</p>

<p>A JAIL MATRON IS NOT A PUBLIC OFFICER.</p> <p>Office and Officer — Mandamus to Compel Reinstatement of One Excluded from the Position of Jail Matron — Tenure of Office.</p> <p>1. Mandamus is the proper remedy for reinstatement in office of one wrongfully ejected therefrom and to compel the issuance of a certificate for salary due and unpaid.</p> <p>2. But a woman serving as matron of a jail is not a public officer, and could not become a public officer under our present Constitution, but is a mere assistant of the sheriff whose term Of office expires with that of her superior, and thereafter she can have no claim upon the office or its emoluments except through reappointment by the incoming sheriff.</p>

<p>ACTION FOR INJURIES SUFFERED AT THE HANDS OF A MOB.</p> <p>Mobs — Statutory Remedy for Violence by, Limited to Lynching — County Not Liable for Mob Violence Within Municipal Limits, When— “Correctional Power” Not Synonomous with the Power Attempted to be Exercised by Strikers — Words and Phrases — Sections 627.8, 6283 and 10213.</p> <p>1. The statutory provision for recovery of damages by persons who have suffered at the hands of a mob is limited to injuries, whether fatal or otherwise, suffered from a mob attempting to lynch another, and does not embrace injuries resulting from violence by a mob having no intent or purpose to lynch.</p> <p>2. No legal responsibility attaches to a county for injuries resulting from the violence of a mob acting within the limits of a municipality, until such a degree of disorder has developed that the mayor becomes satisfied he can no longer cope with the situation and calls upon the sheriff to aid in the suppression of said violence!</p> <p>3. In an action for recovery of damages caused by a mob, whether brought by the injured person or a third person, the word “and” can- not be read “or” in the phrase “assaulted and lynched” as used in Section 6281.</p> <p>i. The phrase “correctional power,” as used in the statutes relating to mobs, applies only to acts of violence by a mob against one apprehended for committing a crime, and can not be applied to the power exercised by a collection of strikers or strike sympathizers in attempting to intimidate or drive out strike breakers.</p>

<p>PROCEEDINGS FOR DESIGNATING A MUNICIPAL DEPOSITORY.</p> <p>Municipal Corporations — Validity of an Ordinance Designating Legal Depositories — Mandamus to Compel Compliance by the Treasurer.</p> <p>Doubts as to the validity of an ordinance providing for the deposit of public funds in certain banks as legal depositories will be resolved in favor of a treasurer objecting to compliance therewith, and a writ to compel such compliance' will be refused where it appears that the ordinance was not published 'for fifteen days, or the advertisement for bids not made for two weeks, or less than twenty-nine days elapsed between the passing of the ordinance and the award.</p>

<p>TITLE TO RAILWAY RIGHT-OF-WAY.</p> <p>Railways — Agreement for Use of a Right-of-way Ripens Into Title Thereto, When — Breach of Agreement as to Manner of Use of Right-of-way Will Not he Enjoined, When.</p> <p>1. A contract releasing to a railway company a right-of-way across certain lands does not operate to convey the title to said strip, where not executed and acknowledged in accordance with the laws then in force for conveyance of real estate; but the subsequent construction of the road and its use along said right-of-way entitles the railway company to a conveyance of the said strip of land for said purpose.</p> <p>2. As against a subsequent grantee of the lands crossed by the right-of-way the railway company is the owner of the strip, notwithstanding the deed to said grantee contained no reference thereto.</p> <p>3. A railway company which has agreed for a valuable consideration not to locate a track in a certain manner on its right-of-way, and subsequently finds it necessary to disregard this agreement in order to properly discharge its duty to the public, will not be enjoined against a breach of its agreement, but the owner of the land will be remanded to a suit for the damages growing out of the breach.</p>