Volume 13 — Ohio Circuit Court Reports, New Series

This case is in this court on appeal. The action was brought by the plaintiff to enjoin the deféndant's from enforcing the payment of a tax known as the Dow tax,' as amended by the Aiken statute, imposed upon William Doering for carrying on the traffic in intoxicating liquors bn an electric power boat or launch in Ashtabula county, belonging to the plaintiff, and from selling said boat to satisfy such tax.

Plaintiff in error was indicted for murder in the first degree. He was convicted of manslaughter and sentenced to the penitentiary. Prom this judgment he now prosecutes error. The various errors assigned as grounds for reversal will be considered in their order.

<p>INJURIES RECEIVED IN EXPOSED MACHINERY.</p> <p>Unguarded Machinery — Failure to Enclose Does Not Render a Master Liable for Injury in, When — Proximate Cause — Negligence—Doc- ' trine of Respondeat Superior — Charge of Court — Section J¡S64-89c.</p> <p>1. The fact that an engine was not surrounded with a guard-rail does not render the master liable for an accident to an outsider who was assisting the master’s own employes .in carrying a heavy piece of machinery past the engine, where it appears that under the circumstances a guard-rail would not have prevented the happening of the accident.-</p> <p>2. Where, in such a case, there is testimony tending to prove that the plaintiff tripped over a corner of the engine platform while walking backwards assisting in carrying the weight, and the accident was due to no fault of the workmen assisting him, it is error to refuse to charge the jury on that theory of the case.</p>

The intestate, a child four years of -age, was killed by being struck by a traction car at the Warsaw and Windfield avenues crossing.' The jury found in favor of the traction company.

<p>RECOVERY OF FEES ILLEGALLY PAID TO COUNTY OFFICER..</p> <p>Office and Officer — Settlement of Fee Account with County Commissioners — Misapplication of Public Funds Through Illegal Payments Section 12 77.</p> <p>An action will lie on behalf of the state for recovery from a county officer of moneys paid to him as fees for which there was no authority of law.</p>

<p>ACTION FOR. FRAUD IN THE SALE OF CERTIFICATES OF STOCK.</p> <p>Judgment — Where the Action is Against Several Parties for a Wrong . Committed by One — False Certification of Stock — Damages Therefor and Measure of Damages for Fraudulent Sale of Stock — New Trial Will be Granted on Newly-Discovered Evidence, When.</p> <p>1. In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which, is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another, and the failure of the court so to submit the case to the jury that they may find for one defendant and against the other is error.</p> <p>2. It is error to charge that “If the party signed certificate of incorporation certifying that there had been $150,000 paid in, not knowing whether it was true or false, when in fact it was untrue, and such signing was done without knowledge thereof as to its truth or falsity, such statement would be recklessly made, and party making it would be liable for damages resulting, the same as though he knew the statement to be untrue.”</p> <p>3. It is error to charge as to a fraudulent sale of stock, that the measure of damages is the difference between the price paid and the value at the time of trial after the sale.</p> <p>4. On newly-discovered evidence offered by defendant in support of a motion for a new trial, a new trial should be granted when such evidence is competent for the purpose of rebutting the evidence to sustain the plaintiff’s action although incidentally tending to impeach the plaintiff, provided that its character be such that it ought to influence a different verdict.</p>

There was a recovery below of judgment for $1,125 on account of injuries to the minor son of the plaintiff from the falling of a platform on which a sewer construction gang was at work and with whom the boy was employed by the Heffron Company. In a subsequent action brought on behalf of the boy a verdict was returned for the company.

This is an action in quo warranto, wherein the state claims the company has misused its franchise in that it declared a stock dividend of $400,000 in the year 1908 out of its surplus funds.

Tbe defendant in error, a motorman on the C., G. & P; line, sustained injuries for which he was awarded a judgment below of $1,000,

<p>SIDEWALK ASSESSMENTS.</p> <p>Sidewalks — Estoppel of Property Owner — Against Attack on Assessment — Benefits—Grade of Walk as Constructed — Assessments Against Corner Lot.</p> <p>1. The fact that a sidewalk as constructed is some feet below the grade of the intersecting street does not invalidate the assessment, where it appears that the grade of the sidewalk is at the proposed grade of the intersecting street, the improvement of which is in contempla- . tion.</p> <p>2. Payment of an assessment for a sidewalk on one side of a corner lot does not relieve the owner from payment of the assessment for the walk on the other street, where the improvement is one for which he himself petitioned.</p>

<p>STALE CLAIM FOR. FIRST YEAR’S SUPPORT.</p> <p>Estates of Decedents — Claims Against, Not Enforcible Years after Estate has been Closed — Repose of Rights — Waiver.</p> <p>Tbe settlement made by an administrator -will not be opened up forty years after tbe estate was closed in order to let in tbe claim of tbe widow for ber first year’s support, where no sucb claim was asserted at tbe time tbe estate was being settled.</p>

<p>The error relied upon in the above case is that the verdict and judgment of the trial court is not sustained by sufficient evidence. This case has been tried three times, at each trial a verdict and judgment being rendered for defendant in error.</p>

The plaintiff in the original action was a passenger on a Mill-creek Valley ear owned and operated by the defendant, the Ohio Traction Company, and was burned and otherwise injured by the explosion of gasoline on an automobile which collided with a Vine-Norwood ear running south on Vine street hill while the Millcreek Valley car was running north, and it is claimed in the petition that the defendant, knowing that the collision had occurred, aud that the automobile was on the…

<p>CONSPIRACY AGAINST TRADE UNDER THE OHIO ANTI-TRUST LAW.</p> <p>Quo Warranto* — Sufficiency of Petition Charging Usurpation and Misuse of Corporate Privileges — Conspiracy Against Trade — Identity of the Conspiracy not Lost by Abandoning the Old Company and Organizing a New One to Continue the Unlawful Trust — Quo Warranto — Pleading—Redundant and Irrelevant Matter — Sections 6160 and 6112.</p> <p>1. A motion will lie in an action of quo warranto to strike from the petition redundant and irrelevant matter which is prejudicial to the defendant.</p> <p>2. A petition in an action of quo warranto against a corporation is sufficient which charges the defendant, in general terms, with usurping and misusing corporate privileges and franchises, and with exercising powers and privileges inhibited by law, without specifying in detail the particulars in which the corporation is usurping, misusing and exercising such powers, privileges and franchises.</p> <p>3. Where the petition in an action of quo warranto against a corporation, after charging the defendant in general terms with usurping and misusing corporate powers and franchies, and; with exercising privileges and franchises inhibited by law, also proceeds to specify in detail some of the particulars of such usurpation and misuser, such specification of particulars, if. pertinent to the inquiry, are not prejudicial and will not be stricken out on motion.</p> <p>4. When an unlawful trust or conspiracy against trade nas been formed by • a corporation and its officers, stockholders and agents, the trust or conspiracy does not lose its identity by the action of the participants in dissolving or abandoning the corporation and transferring its property and business to a new corporation organized by them for the purpose of continuing the unlawful trust or conspiracy; and if the new company so organized continues the trust or conspiracy already formed, it and its participating officers, stockholders and agents must answer for the previous acts of the old company and its officers, stockholders and agents committed in furtherance of the common design.</p> <p>5. In an action of quo warranto charging a corporation with forming and being a party to a trust and conspiracy against trade in violation of the Ohio anti-trust act, the state may inquire as to all acts committed by any participant from the time it is alleged that the trust or conspiracy was formed.</p> <p>6. A corporation and its own officers, stockholders and agents, without the participation of others, may be guilty of forming a trust and conspiracy against trade in violation of the Ohio anti-trust act, and all, including the corporation, may be counted in making up the two or more necessary parties.</p>

There is nothing on’the face of the certificates signed “W. S. Hood, Supt. ’ ’ to indicate that Hood .represented the bridge company as superintendent or manager, and the course of dealing between the plaintiff, Lippert, and the defendant bridge company indicates merely that the defendant would continue to pay the time checks issued to the laborers only so long as there was money due to Hood as sub-contractor.

The plaintiffs bring these actions on behalf of themselves and the survivors and other descendants of ex-slaves of the late John Randolph, of Roanoke, Virginia, who died testate May 24th, 1833, and whose will was on December 7th, 1837, admitted to probate in the general court of Virginia at the capital.

The plaintiffs in error were convicted and sentenced to pay a fine of fifty dollars each under an ordinance “To regulate the use of gasoline, naptha, benzole and other light petroleums, and coal tar productions in the dry-cleaning business in the city of Cincinnati, Ohio.”

We regret that we are unable to take the same view of this case as the common pleas court. It seems a great hardship that the engine company should lose the $2,500 for a failure to state the date of the labor involved in installing the engine in question which completed the contract in “furnishing” the same.

<p>At tbe first trial of this case below recovery was had of a verdict of $8,000 as damages for the death of the intestate, which the trial court reduced to $6,000. That judgmént was reversed by the circuit court, when a second trial was had resulting in a verdict of $9,000.</p>

The relator filed a petition in the common pleas court setting forth that the defendant company was incorporated under the laws of the state of Arizona, but having its principal office in the city of Cleveland, Cuyahoga county, Ohio, where the defendant, George H. Palda, its secretary, and the other defendants, some six in number, directors of said company reside.

<p>ATTACHMENT AGAINST NON-RESIDENT CORPORATIONS.</p> <p>Attachment — Averments of Affidavit — Non-Resident and Foreign Corporations Distinguished — Amendment of Return of Summons — Service upon Agent — Sections 10238, 10244, 10253, 10262 and 11276, General Code.</p> <p>1. An affidavit in attachment which alleges that the defendant corporation is a non-resident of the county is not defective because of omission to aver non-compliance with the statutory requirement as to the filing by foreign corporations of a statement with the Secretary of State.</p> <p>2. Where there are debts owing to the defendant corporation in the county, service may be had on a secretary or agent, if no other chief officer can be found in the county; and where the attachment and service of summons were issued together and returned in the same way hy the constable, the two returns may he read and construed together as showing a lawful service of summons.</p>

<p>COMMISSIONS FOR. SALE OF LAND.</p> <p>Real Estate Broker — Entitled to Commissions on Sale of Property, When —Hearsay Evidence and Weight of Evidence.</p> <p>1. Incompetent hearsay evidence, when admitted without objection, has some probative force.</p> <p>2. To entitle a real estate broker to recover commissions he must show that the purchaser was induced to apply to the owner through means employed by the broker. It is not indispensable, however, that the purchaser be introduced to the owner by the broker, or that the broker be personally acquainted with the purchaser, or that the broker at the time have knowledge of the negotiations between the owner and the purchaser.</p>

The defendant in error recovered a verdict of $257.47 for injury to his horse and buggy in a collision with a traction' car on College ITill. The petition alleged that the horse was frightened and uncontrollable at the time of the accident, that the motorman saw or could have seen the peril in which the plaintiff was placed in ample time to have stopped the car, and that the situation was further complicated by the fact that a down car was running on the up track.

This action was brought in the court of common pleas to recover an amount charged as taxes upon premiums sent by policy holders in Ohio through the mails to the home office of the company at New York city. The Supreme Court, passing upon a demurrer to the original petition, held that the insurance company was not liable. An amended petition was filed and a demurrer thereto sustained in the court of common pleas.

<p>LEGALITY OF AN ATTACHMENT.</p> <p>Attachment — Against a Non-Resident on an Account — Defendant Sued by Ms initials — Description of the Property' Attached.</p> <p>1. An attachment may Be issued on the ground that the defendant is a non-resident of the state when the suit is a civil action for the recovery of money on an account.</p> <p>2. A motion to set aside an attachment will not lie on the ground that the defendant has Been sued by his initials instead of his Christian and middle names, where it appears that he has Been in ‘the habit of using his initials in Business transactions, and has been commonly designated By his initials, and to the plaintiff . he had been known in his dealings by his initials, and they plainly indicate who is meant.</p> <p>3. The holding of the Supreme Court in Green v. Ooit, as to the necessity for an accurate description in the sheriffs return of the ' property’ attached, is not applicable where the property levied on is persohalty, and the discription of the property attached as “forty car. loads of staves” is- sufficient.</p>

<p>AS TO RECOVERY OF FACTOR’S DEPOSITS OF PROCEEDS OF SALE.</p> <p>Banks and Banking — Deposits of Customers’ Money by Factors Who Have Made Bales and, Collected the Proceeds — Factor Becomes Bankrupt — Bank not Liable for Proceeds of Bales Made at About the Time of the Act of Insolvency, When — Fund not Traced.</p> <p>1. In an action for recovery of the proceeds of sales made by factors and deposited in the defendant hank, the burden is on the plaintiff owners of the.property sold to prove that the proceeds from the sales in question were deposited on that particular day and remained in possession of the bank.</p> <p>2. Although the bank may be held .to have known that the greater portion of the deposits made by the factors was derived from sales made for their customers, it can not be held to have had knowledge of the ownership of the deposits made on a particular day or to be liable for the payment in good faith of checks drawn against such deposits.</p> <p>3. Checks drawn by such factors and held by their customers, but not accepted by the bank, have no preference against the fund on deposit over the claims of general creditors.</p>

<p>COLLISION OF VEHICLE AND TRAIN AT CROSSING.</p> <p>Negligence — Of a Driver not Imputable to a Traveling Companion, When — Effect of Failure to Charge Driver with Negligence where a Collision has Occurred through His Fault.</p> <p>1. When a passenger in a road vehicle sees or hears anything indicating danger that the driver could not, or probably does not see or hear, it is his duty to warn the driver thereof; but it is not incumbent upon him to call attention to every approaching vehicle or possible peril, which is as manifest to the driver as to himself.</p> <p>2. Where the question of the driver’s contributory negligence as a cause of an accident is not raised by the pleadings, a reviewing court is not at liberty to hold the verdict erroneous in that it contains no finding whereby he may be excluded from participation in the damages awarded on account of fatal injuries to his wife sustained in the collision which occurred with a railway train.</p>

<p>DISCREPANCIES BETWEEN APPLICATION FOR. LIFE INSURANCE AND THE COPY RETURNED.</p> <p>Life Insurance — Construction of the Statutory Provision that Copy of Application Must Accompany Policy Issued — Evidence—Defenses —Section 8628.</p> <p>Where discrepancies appear between the original application for life insurance and the copy of the application which was returned with the policy, and these discrepancies are matters of substance, it is not error to exclude them as evidence, if the court finds that they were of such a character as to afford a reasonable ground for a defense.</p>

The plaintiff in error was convicted in the court of common pleas of this county under Section 6835, Revised Statutes, for having in his possession certain implements. used by'burglars for breaking and entering houses, with the intention of using the same burglariously, and upon said conviction was sentenced to the penitentiary of the state.

<p>LIQUIDATED DAMAGES FOR. BREACH OF CONTRACT OF EMPLOYMENT.</p> <p>Liquidated Damages — Stipulation for, Valid, When — Sum Named not a Penalty, When — Its Reasonableness to be Determined from Circumstances at the Time the Contract' was Made.</p> <p>1. A stipulation for liquated damages for discharge before expiration of term of employment is valid, where the sum named is for a complete breach of the contract of employment, and is not based upon the amount of wages to be paid, but is dependent upon uncertain damages arising from the discharge.</p> <p>2. In determining whether -the sum stated as damages is reasonable, the question must be viewed from the standpoint of the parties at the time the contract was made, and not on an ex post facto basis after litigation has arisen and the case is up for trial.</p>

<p>CERTIFICATION OF ASSESSMENTS.</p> <p>Sidewalks — Service of Notice upon Agent of Abutting Land — Oertifica- . tion of the Assessment — Statute of Limitations — Section 3855, General Gode.</p> <p>The particular act which saves an assessment from the two years statute of limitations is its certification by the municipal corporation to the county auditor.</p>

<p>PURCHASE BY A COMPETING COMPANY OF AN UNCOMPLETED RAILWAY INVALID.</p> <p>Purchase and Consolidation of Parallel Railway Lines — Policy of the State With Reference to Competing Lines — Applies to an Unfinished Line — Construction of the Provisions of Section SJ¡09 — Merely an Enabling Act as to the Selling Company.</p> <p>The provisions of Section 3300 as to when one railroad may aid, lease or purchase another and Section 3409, providing when a railroad company may sell its road-bed, when read and construed together prohibit the acquiring by a railway company of a parallel and naturally competing line which is under construction but not yet completed.</p>

In the first ten eas'es and last four above named, the plaintiffs in error and defendants in error respectively were arrested, tried and convicted before the mayor of the village of Delhi for an alleged violation of Section 7033, Revised Statutes, which prohibits performance of common labor on Sunday.

Although counsel for plaintiff in error does not urge the ground stated in the petition in error that the verdict is not sustained by sufficient evidence, we have read the same .to ascertain whether the alleged errors in the charge of the court are prejudicial.

<p>CLAIM FOR. INSURANCE AGAINST AN INSOLVENT.</p> <p>Fire Insurance — Promissory Not Given for, an Evidence of Debt Only— Assertion of Claim Against an Insolvent Corporation — Partially Executed Contracts — Payment—Pleading—Trial.</p> <p>1. In an action against an insolvent corporation for a receiver and the winding up of its affairs, a creditor may come in by leave of court and assert his claim by a motion in proper form.</p> <p>2. Where a promissory note is given for insurance, it does not constitute payment of the premium, but during the term of the insurance is a mere evidence of indebtedness arising under a contract not yet completed; and where a receiver comes in-and takes possession of the property covered by the insurance, he is chargeable with the cost thereof for the remainder of the term the policies have to run.</p>

In this case a judgment was recovered below of $5,000 on account of the wrongful death of the intestate, a locomotive engineer.

The plaintiff below in the above entitled case brought suit in the common pleas court of this county for damages on account of the death of his wife, who was struck and fatally injured by an in-bound interurban car as she alighted from an out-bound ear of the Cincinnati Traction Company. The case was removed to Clermont county for trial, where a verdict was returned for the husband of $3,000.

The plaintiff in error brought an action for recovery of compensation for something over a mile of roadway, which it was claimed the village had taken possession of and is using as a street without first making compensation therefor.

<p>This case is here on error to the judgment of -the court of common pleas.</p>

<p>EXAMINATION OF MEDICAL STUDENTS.</p> <p>Examination of Applicants for Certificates to Practice Medicine and Surgery — Abuse of Official Discretion in Appointment of Places for Bolding Such Examinations — Mandamus—Section 1273, General Code.</p> <p>The delay for more than three years on.the part of the State Medical Board to appoint a time for holding, in other cities than Columbus, examinations of applicants for certificates to practice medicine and the failure to fix a date for such examinations in June, which is the month when medical students complete their studies and desire to apply for certificates, is an abuse of the discretion vested in that board, and unless the said board desires to set forth by answer a reason for its inaction in that respect, a peremptory writ of mandamus will issue against'it.</p>

Charles C. Redkey, as executor, plaintiff in error, against William Worthington, as .administrator, defendant in error, is in this court on petition in error to reverse the judgment of the court of common pleas.

<p>LIABILITY FOR. SHOCK OF TELEPHONE LINEMAN BY CURRENT LEAKING FROM HIGH TENSION RAILWAY WIRES.</p> <p>Electric Wires — Joint Use of Poles by Telephone and Electric Railway Companies — Lealcage from Railway Wires Causes Death of Telephone Lineman — Pleading—Charge of Oowrt — Assumption of Rislc.</p> <p>1. Where poles are occupied by the wires of a telephone company and an electric railway company, and an action is brought on account of the death of an employe of the telephone company by reason of a shock received through leakage from the high tension wires of the railway company, it is not error to admit evidence against the railway company, notwithstanding an allegation in the petition that the telephone company had knowledge of the situation and of the danger (if there was danger) to its employe.</p> <p>2. The allegation in the answer of the railway company, that as a matter of fact neither that company nor the telephone company had knowledge of the leakage and dangerous situation, left the question as to the possession of such knowledge open, and would have rendered a judgment in favor of the railway company on the pleadings erroneous.</p> <p>3. A charge of court which relieved the railway company from the exercise of any care for the safety of employes of the telephone company while at work on poles used in common by the two companies, with full knowledge by the railway company that through its negligence employes of the telephone company were being placed in a place of danger, would be erroneous.</p> <p>4. A special charge to a jury is erroneous, where the question of contributory negligence has been raised and the word “might” is so ' used with reference to the danger encountered that it could be understood to mean a possibility of danger.</p> <p>5. An employe can not be held to have assumed the risk growing out of negligence not of his own employer, but of another corporation.</p> <p>6. A refusal to give a special charge which properly states the law applicable to the case can not be cured by substituting words more satisfactory to the court than those used in the request.</p>

<p>PROSECUTION FOR. KEEPING A PLACE WHERE INTOXICATING LIQUORS WERE SOLD IN DRY TERRITORY.</p> <p>Violation of County Local Option Law — Prosecution for — Proof that an Election had been Held — Documentary Evidence in a Criminal Trial — Barkeeper not Liable to Prosecution, When — Section 13195, General Code (6942, R. S.).</p> <p>1. The admission of documentary evidence showing the result of a county local option election does not violate the provisions of the Bill of Rights giving to an accused person the right to confront the witnesses.</p> <p>2. It is not error to admit in evidence in a prosecution for keeping a place where intoxicating liquors are sold in "dry” territory the certificate as to the result of the local option election previously held.</p> <p>3. An information under Section 6942, will not lie against a barkeeper for keeping a place where intoxicating liquors are sold in violation of law, if it appears that the owner of the place was in control and present and the barkeeper was without authority and subject to the direction of the owner.</p>

<p>INJURY FROM THE FALLING OF AN ELEVATOR. BLOCK.</p> <p>Negligence — Employe Operating Elevator — Injured Toy Falling of Block and Pulley — Amendment of Pleadings During Trial Not Ground for Oontinuance, When — Proximate Cause — Sections 621/2 and 11363, General Code.</p> <p>1. Where the block and pulley connected with the operation of an elevator are fastened in place by nails only, a finding by the jury that the insecure fastening was the proximate cause of the falling of the appliance, and injury to the plaintiff employed underneath, will not be disturbed.</p> <p>2. Section 6242, General Code (R. S. 4238o), is declaratory of the general principle of the law of negligence in the operation of defective machinery and appliances, and it is not error to give to the jury the substance of this section as the law of the case, notwithstanding the defense of negligence on the part of a fellow-servant was not interposed.</p> <p>3. A judgment of $8,000 for injuries to an employe who was receiving only $1.75 per day at the time of the accident, and who some months thereafter returned to work at $8 a week, and two years later was advanced to $10 a week, and four years after the accident was again receiving his old pay of $1.75 a day, is excessive and in this case is reduced to $5,000.</p>

<p>Error to tbe Common Pleas Court of Columbiana County.</p>

The plaintiff in error was charged with violation of an ordinance of the village of St. Bernard, tried, convicted and sentenced to pay a fine of $100.

<p>ASSESSMENTS FOR. SEWERS.</p> <p>Local Drainage — Property Provided with, by Construction of a Sewer —Not Subject to Assessment for a Second Sewer.</p> <p>Where a sewer has been constructed which provides certain property with facilities for local drainage and the property has been assessed therefor, the fact that the property owner has not availed himself of the benefit of the sewer by connecting his property therewith, does not warrant the levying of a second assessment against the same property for a second sewer, so located that the property might be connected with it also for purposes of local drainage,</p>

<p>VALIDITY OF PAYMENTS TO A BANKRUPT.</p> <p>Bankruptcy — Payments ~by a Dehtor to Bankrupt After Filing of Petition, are Valid, When.</p> <p>Payments made by a debtor to a bankrupt in good faith after the filing •of the petition in bankruptcy but before the adjudication thereon, and payments made for services rendered after the filing of the petition, and payments made subsequent to the adjudication where based upon an uncompleted contract for personal services involving tbe exercise of skill «upon which reliance was had, are not recoverable by the trustee in bankruptcy from the debtors by whom such payments were made.</p>

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

<p>INDEFINITE DESCRIPTION IN CHATTEL MORTGAGE.</p> <p>A chattel mortgage covering “one registered Jersey bull” is void for uncertainty, where it appears that at the time the instrument was executed the mortgagor was the owner of three registered Jersey bulls.</p>

<p>PROXIMATE CAUSE OF AN ACCIDENT AT A RAILROAD CROSSING.</p> <p>Negligence — At a Railway Crossing — Failure of Watchman to Lower the Gates — Bad Condition of the Crossing — Decedent’s Wagon Breóles Down — And He is Struclc and Killed by a Train — Proximate Cause — -Charge of Court — Evidence—Rights of Railway Trains and the Public at a Crossing — $10,000 for Death Not Excessive, When.</p> <p>1. Where it is admitted, in an action growing out of a crossing accident, that the watchman failed to lower the gates upon the approach of the train, his negligence in that respect must he regarded as the efficient cause of the collision which followed between the train and the wagon which the decedent was driving; and minor errors of judgment subsequently committed by the decedent during the moment of great peril and excitement, after he had gone upon the track and before he was struck, do not warrant the setting aside of a finding by the jury against the railway company.</p> <p>2. The testimony on cross-examination of witnesses called by the railway company, to the effect that other wagons had broken down on that crossing as did the one which the decedent was riding, was competent as tending to prove knowledge on the part of the railway company of the defective condition of the crossing, and also for the purpose of testing the credibility of other witnesses who had testified in chief that the crossing was' in fair condition.</p> <p>3. It is not error for a trial judge, in a special charge to a jury, to assume as a fact a matter which was to be determined by the jury, where the matter was an undisputed fact as to which the jury could reach but one determination. .</p> <p>4. An award of the full statutory amount of damages for a wrongful death is not excessive, where the age of the decedent was forty-five, his health good, his earnings $700 a year, and seven children were left surviving him.</p>

In February, 1904, the Coshocton Glass Company was a corporation under the laws of Ohio, engaged in manufacturing glass bottles and wares, with its office at Coshocton, Ohio. Its capital stock was $60,000, of which $35,000 was common stock and $25,-000 was preferred. The common stock was owned by said Thomas J. Gainor, then living, and one E. K. Sober and E. G. Van Horn, they having a controlling interest in the corporation.

This case was tried in the court of common pleas upon the issues made in -the pleadings and evidence, resulting in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company. Appeal was taken to this court, and was submitted to the court upon the pleadings and evidence.

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

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

<p>AS TO NEGLIGENCE OF A CARRIER IN FAILING TO AID AN INJURED PASSENGER.</p> <p>Negligence — Question of, Where a Passenger Fell from a Train, and the Train was not Bached up to Give Him Aid — Oases Involving Liability of Carrier for Failure to Succor one Injured by a Train, Distinguished.</p> <p>A young man fell from a passenger train, one-fourth of a mile from the station to which he was being carried, and both of his legs were cut off. Upon the arrival of the train at the station, the conductor was informed of the accident', but he did nothing in the way of providing assistance, and ordered that the train proceed to its destination. Friends of the lad ran down the track, and at the end of fifty minutes succeeded in getting a physician to him. He was carried eight hundred feet to the nearest point an ambulance could approach to the place of the accident, and the ambulance transferred him to his home, where he died a few hours later from loss of blood. An action was brought against the railway company, based on the theory that if the train had been backed and the young man removed to the depot immediately, his life could have been saved. Held:</p> <p>That under the circumstances the railway company was not guilty of negligence in failing to back up the train and render aid.</p>

<p>STORING DYNAMITE WHERE IT BECOMES A PUBLIC MENACE.</p> <p>Explosives — Negligence in the Storing of, Where Lives and Property •are Endangered — Beneficiaries May Sit Within the Bar During the Trial of a Negligence Case — When Counsel May Renew a Proposition. Once Overruled — Pleading—Presumption as to Contributory Negligence — Charge of Court.</p> <p>1. A railroad company does not have an unquestionable right to store dynamite cartridges wherever and however it pleases on its own property, but such dangerous substances must be so cared for that they will not injure the property and lives of others.</p> <p>2. It is within the discretion of a trial court to permit.a widow and her children — beneficiaries of the trust represented by the nominal • plaintiff' — to sit within the bar and within view of the jury during the trial, and the overruling of a request to exclude them therefrom is not error.</p> <p>3. There may well he cases where counsel may properly renew the discussion of some proposition to the court, even after a ruling has been made against him, if he has reason to believe he can throw new light upon the matter, and his action in so doing is not misconduct.</p>

<p>TITLE TO CORPORATE STOCK.</p> <p>Corporations — Lost Certificate of Stock — Proceedings for a Reissue— Evidence as to Title, Legal und Equitable.</p> <p>While the fact that a lost certificate of stock, standing in the name of the plaintiff seeking a reissue thereof, would in the absence of other evidence be conclusive as to his title, an order of court for such a reissue will be reversed as against the weight of the evidence, where it appears that the evidence upon which the order was‘based showed that while the naked legal title was in the plaintiff the equitable title was in a corporation of which he was a member.</p>

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

<p>Plaintiff recovered a judgment against the traction company of $1,350 in the court below.</p>

<p>RESPONSIBILITY OF TRACTION COMPANY FOR. COLLISION OF CAR. WITH AUTOMOBILE.</p> <p>Negligence — Collision Between Electric Gar and Automobile Results in Injury to Passengers on the Car — Motorman Exonerated from Blame.</p> <p>Weight of evidence as to responsibility for a collision between an elective car and an automobile, resulting in injury to passengers on the car.</p>

<p>INSUFFICIENT SHOWING TO SUSTAIN AN ATTACHMENT.</p> <p>Attachment — Motion to Discharge Should he Sustained, When — Effect of Averment Denying Truth of Affidavit — Burden of Proof.</p> <p>1. Where, in an action in attachment, an affidavit by the defendant in support of a motion to discharge denies the truth of the allegation contained in the affidavit upon which the attachment was issued that he° has property and rights in action which he conceals, the burden is upon the plaintiff to show by a preponderance of the evidence that his allegation in that behalf is true.</p> <p>2. An affidavit by the defendant, averring that the affidavit of the plaintiff upon which the attachment was issued is not true, must be accepted as a denial of the allegation that the defendant has property and rights in action which he conceals.</p> <p>3. Evidence offered by the defendant that he is the head and support of a family is ground for a discharge of the attachment, where not met by evidence of greater weight offered by the plaintiff.</p>

The action below was for recovery on certain promissory notes and to enforce statutory liability and liability for unpaid stock subscriptions.

<p>SPLITTING UP AN APPEAL.</p> <p>Appeal — No Statutory Authority for Dividing a Decree in Order to Appeal From a Part Only — Construction of Sections 12224 and 12231.</p> <p>There is no statutory .authority for splitting up a cause, in order that an appeal may be taken from that part of the judgment which is unfavorable and leave standing the part which is favorable.</p>

<p>INJURY ON LOOSE BOARD IN SIDEWALK.</p> <p>Municipal Corporations — Liability to a Pedestrian Injured on a Defective Sidewalk — Notice.</p> <p>The fact that portions of a plank sidewalk had been in bad condition, due to the sliding of an adjacent hillside of which the municipality had notice, does not as matter of law amount to notice of the defect causing the injury.</p>

<p>PROCEEDINGS IN ACTION ON A CREDITOR’S BLL.</p> <p>Pleading — Where the Action.is on a Creditor’s Bill — New Party in Asserting a Counter-Claim — Can Not Assert Another and Different Claim from that set up in the Petition — Section 11319, General Code.</p> <p>1. Where a plaintiff, in an action in the nature of a creditor’s bill seeking to have property sold and the proceeds applied to the payment of his debt, brings in another party who claims to have some interest in the property in question, such other party can not by answer and cross-petition assert against his co-defendant, whose property it is sought to subject to sale, a claim for a money judgment, but such other party is confined to the assertion of a claim against the particular property in question.</p> <p>2. On the allegations of the pleadings in this case, it was error for the court to make a finding as to the amount due from one of the defendants to the other, notwithstanding the defendant against whom the finding was made was in default for answer.</p>

<p>PREMATURE PERFORMANCE OF A CONTRACT.</p> <p>Contracts — Work Done Without Awaiting Authorization — Action by Manufacturers of •a Fire Extinguishing System for Recovery for Putting Frozen Water Pipes in Order.</p> <p>The correspondence in this case shows upon its face that no contract was entered into as averred in the petition, and the action thereon must therefore fail.</p>

<p>NOTE SECURED BY WAREHOUSE RECEIPTS AND GUARANTEED.</p> <p>Warehouse Receipts — Guarantor of Note Secured By Such Receipts— May Rely on Recital of Receipts as to the Property Represented.</p> <p>Tbe guarantor of a promissory note secured by warehouse receipts pledged as collateral may rely on the quantity and quality of tbe property set out in tbe receipts, and is not limited to the actual amount found to be on hand when the sale is made.</p>

Goods were shipped from Alabama to the defendants, with charges prepaid in accordance with contract. But by an error of the freight clerk at the place of shipment the freight charge was made $20.15 less than the established rate. The consignees accepted the goods knowing that the freight had been partly prepaid, but refused to complete the payment when the company sought to collect the balance due.

<p>COLLISION BETWEEN CAR AND WAGON.</p> <p>Negligence — In Driving in Front of a Street Gar — Gircumstamces Under Which Looking and Listening Would Not he Sufficient — Weight of Evidence.</p> <p>A driver is guilty of contributory negligence, when from a position immediately behind a 'standing street car he turns into the parallel Track, without being able by looking to see whether there was a car approaching on that track or by listening to distinguish the . bell on the car before him from the bell on an approaching car; nor is he relieved from negligence by the fact that two cars had just passed on the track upon which the car which struck him was approaching.</p>

<p>FOR RECOVERY ON ACCOUNT OF THE COLLAPSE OF A BRIDGE.</p> <p>In an action for damages on account of a tort, it is error to charge the jury that -the plaintiff may recover if it appears from a preponderance of -the evidence that he was without fault, unless .predicated upon proof that the accident was due to the negligence of the defendant.</p>

<p>INCHOATE DOWER. OF WIFE.</p> <p>Dower — Inchoate Right of Wife not Barred — By Sale of Lands by a Judgment Creditor — Notwithstanding Mortgage in Which She Had Joined Was Set up by Way of Cross-Petition — Wife’s Equity of Redemption not Foreclosed, When — Pleading—Summons_Redemption.</p> <p>1. Where the judgment creditor of a husband brings an action to marshal liens and sell the real estate of the husband, summoning the wife, but seeking no relief against her; and a mortgagee is also made a party defendant, and files a cross-petition asking for a sale of the property, but issues no summons for the wife, who signed the mortgage but who in no way enters her appearance or participates in the proceeding, and a decree is entered ordering a sale of the property under the judgment creditor’s petition, and the mortgagee’s cross-petition, which is accordingly done, the-wife’s equity or redemption is not foreclosed, nor are her rights in the real estate extinguished.</p> <p>2. Where, after the sale of the property, the husband dies and the. mortgagee’s claim has been barred by the statute of limitation, the wife may, without redeeming, assert her right of dower in said property and have the same set off to her.</p>

The defendant in error recovered a judgment -below for $500 as damages on account of the striking of a wagon, which he was driving on Eastern avenue, by a car which came up from behind.

<p>PROSECUTIONS FOR. VIOLATION OF THE ROSE LAW.</p> <p>Liquor Laws — Prosecution Under the Search and Seizure Law — Illegal Sales of Intoxicating Liquor — Failure to Attach Exhibits to Bill of Exceptions — Proof that a Gounty Has Toted, “Dry” — Effect of an Objection Based Upon a Wrong Reason — Evidence of Detectives and of Saloon Keepers — Sections 610S and 6169. 1. The mere facts that exhibits offered in evidence are of considerable bulk or weight does not excuse a failure to attach them to the bill of exceptions or to properly mark them for identification on review on the weight of the evidence. 2. The failure of a. county clerk to sign his certificate attached to the record of a local option election, showing the result to have been that the county was voted “dry,” renders the certificate invalid as evidence; but the contention that the county was in fact voted “dry” may be sustained by other evidence. 3. The evidence of detectives, offered in a prosecution for violation of the Rose county local option law, is governed by the same rules and entitled to the same credence as that of other witnesses under like conditions, and this is particularly true where detectives testify whose compensation is not dependent upon the conviction of •the accused; but where the accused is a saloon keeper who operated a saloon prior to the local option election and is charged with continuing to conduct the business in the same manner after the county was voted “dry,” his testimony may properly be viewed with caution and measured by his bias in his own favor.</p>

The plaintiff sued to enjoin the operation of hammers and heavy machinery in defendant’s factory adjoining her residence. She w-as given a decree in the court below.

<p>EVIDENCE VARYING AN AGREEMENT.</p> <p>Sale of Real Estate — Written Contrast Giving Broker Commission by Whomsoever the Property is Sold — Parol Evidence as to ~an Exception to the Contract Inadmissible.</p>

This action began in the court of common pleas. It is founded upon a contract for an exclusive interchange of telephone business between the plaintiff and the defendant companies. The relief sought is an injunction against the defendant company from a violation of the contract by connecting its exchange with and routing business over the lines of the Central Union Telephone Company.

<p>ACTION ON A CONTRACT OF EMPLOYMENT.</p> <p>Corporations — Contract for Employment — Action for Recovery for Breach of — Authority of President.</p> <p>The president of a corporation can not bind the company by the admission of a stipulation into an express contract of -which there is no other evidence.</p>

<p>TO ENFORCE LIABILITY OF SURETIES.</p> <p>Sureties — Liability of, Limited to Exact Letters of the Bond — Guaranty of Payment for Goods Sold on Credit — Sureties Released on Account of Violation by the Seller of Provisions of the Bond.</p> <p>Sureties on a bond securing payment for goods sold on credit are released, where contrary to the terms of the bond payment for the first car load was not required when the third car was ordered and settlement was not insisted on as provided for on a specified date and on the first day of each succeeding month thereafter but time for payment was extended by permitting the amount due to increase from month to month.</p>

<p>JUDGMENT OF DISBARMENT SUSPENDED.</p> <p>Disbarment — Purpose of a Judgment of Suspension of the Judgment Proper, When — Reclamation of Offender.</p> <p>In a proceeding for disbarment, punishment is not the sole end to be attained, but also protection 'of the public and the reformation of the accused; and where it appears that the accused now acknowledges the wrong committed and since the suspension has conducted himself in a manner above criticism and has inspired in the minds of his fellow attorneys the belief that he has been sufficiently punished, the further execution of the judgment will be suspended and the accused restored to the practice of his profession.</p>

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

<p>SALE OF PLEDGED CHATTELS.</p> <p>Notice of Sale of Pledged Chattels — Contract of Pledge Not Terminated When Notice of Sale is Inadequate — Right of Surety to Subrogation to Rights of Pledgee — Section 12194, providing when a judgment may be Revived by a Surety.</p>

<p>LIABILITY FOR ASSAULT UPON A RAILWAY TRESPASSER.</p> <p>Assault — Liability for, Where the Assailant was Acting in a Dual Capacity — Railway Policeman May Also Act as Agent for the Company, and Company Become Liable for Assault Committed by Sim While Acting as Agent — Driving People From Railway Yard Not the Duty of a Policeman — Evidence as to Intention — Witness Will Not be Permitted to Testify to the Purpose Which Controlled Sim, When.</p> <p>1. A detective employed by a railway company, wbo has. been duly commissioned as a policeman by the governor, may act as the agent of the company for some purposes and not within the scope of his authority as a policeman, and the company is liable for his acts as such agent, but is not liable for acts done within the scope of his authority as a policeman.</p> <p>2. When an employe of a railway company, who is duly commissioned as a policeman by the governor, drives people from the company’s yards who are not committing or threatening to commit crime, and has done so for a long period with the knowledge of the company, he does so as the agent of the company and not as a policeman, and the company is liable for his acts as such agent. *</p> <p>3. It is not error for a court to exclude the testimony of an employe of a railroad company, who acted at times as a duly commissioned policeman and at other times as the agent of the company, as to whether in doing a certain act he intended to act as a policeman or as the agent of the railroad company.</p>

<p>JUDICIAL NOTICE OF THE RESULT OF A LOCAL OPTION ELECTION.</p> <p>Liquor Laws — Prosecution for Selling Intoxicating Liquor in Dry Terri- ° tory — Failure to Prove the Toting of the Territory Dry — Of What Facts a Court May Take Judicial Notice.</p> <p>An election which, resulted in voting a county “dry” under the Rose local option law is a matter of such common notoriety that a judge, before whom one is afterward brought for trial on the charge of violating the law thus rendered operative in the county, may take judicial notice of the holding of the election and its result; and in such a case a conviction will not be set aside for failure to specifically prove the holding of the election and its result.</p>

<p>PROSECUTION FOR. BEING A KNOWN THIEF.</p> <p>Criminal Law — Conduct and Reputation with Reference to a Particular Class of Ojfenses-Put in Issue, When.</p> <p>In a prosecution for being a known thief, it is sufficient to charge the defendant with being then and there a known thief without setting forth the facts upon which the charge is based.</p>

<p>UNLAWFUL SALES OF INTOXICATING LIQUOR.</p> <p>Liquor Laws — Knowledge of Sales Contrary to the Bose Law Not Necessary on the Part of the Proprietor of the Place, When — Section 6108, et seq.</p> <p>In a prosecution under Section 2 of the act of March 5, 1908 (99 O. L., 35), for keeping a place where intoxicating liquors are sold contrary to the provisions of said section, it is not necessary to prove actual knowledge on .the part of the keeper of the premises of unlawful sales of liquor made thereon, where such sales were made by one placed by him in charge of the premises.</p>

<p>EVIDENCE JUSTIFYING CONVICTION OF MURDER. IN THE FIRST DEGREE.</p> <p>Criminal Lcno — Trial for Homicide — Events of Pursuit Competent— Testimony as to Reputation — Previous Attempts of Defendant to Shoot Another — Opinion of Witness as to Effect of Certain Conduct — Definition of the Three Degrees of Unlawful Homicide — Time Not a Requisite in Determining Premeditation.</p> <p>1. On a trial for homicide the state may prove what took place in the pursuit and capture of the defendant.</p> <p>2. The subsequent admission of evidence, previously erroneously excluded, cures the error of excluding such evidence.</p> <p>3. A witness called by the accused to testify as to the reputation of the accused as a quiet, peaceable citizen may be asked on cross-examination if he had not heard of instances of trouble the accused has had with his neighbors.</p> <p>4. In a trial for homicide evidence that the defendant on a former occasion attempted to shoot another person is not competent, and it is not error to exclude such evidence.</p> <p>5. In such a' trial a witness offered- by defendant to prove a quarrel with the deceased may be asked on cross-examination, whether “anything occurred there in W’s (the deceased) • conduct, or language or manner to arouse anybody”?</p> <p>6. A charge of court is correct which defines the different degrees of murder as follows: “If the killing was unlawful only, with or without purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter; if the killing was unlawful and malicious and with a purpose and intent to kill, but without deliberate and premeditated malice, the degree of crime is murder in the second degree; if all of these elements were present, if the killing was unlawful and malicious with deliberate and premeditated malice and with a purpose and intent to kill, theh the degree of crime is murder in the first degree.”</p> <p>7. In explaining the element of premeditation in murder, it is not error to charge that “it is not the time of deliberation and premeditation that is requisite, but the actual existence of deliberation and premeditation before the time the fatal shot is fired.”</p>

The action was for $400 damages to the plaintiff’s automobile. At the time the collision occurred there was a milk wagon traveling in the same direction as the automobile and ear and between the auto and the sidewalk. The plaintiff alleged that there was not room for the auto between the track and the milk wagon, and that he was endeavoring to get past the milk wagon in order to turn out for the ear to pass when his machine was struck.

<p>STRUCK BY A CAR A.T A STREET CROSSING.</p> <p>Negligence — Degree of Care Required of a Street Car Company and Pedestrians at Street Grossings — Charge of Court — Ordinary Care— Swrden of Proving Contributory Negligence.</p> <p>In an action against an electric street railway company for damages to a pedestrian from being struck by a car at a street crossing, it is error prejudicial to tbe company to charge the jury that “if you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff can not recover; but if it did not do this, hut could in the exercise of ordinary care have avoided injuring him, plaintiff having exercised ordinary care, then he can recover.”</p>

<p>THE LIMITATION OF MUNICIPAL INDEBTEDNESS.</p> <p>Municipal Corporations — Authority of, to Borrow Money — Application of the Four Per Cent. Limitation of the Longworth Act — Voted Bonds and Bonds Not Voted — Construction of Section 8945, General Code.</p> <p>The statutory limitation upon the authority of municipal corporations to borrow money by an issue of bonds does not act upon bonds lawfully issued for a purpose within the statute upon approval of the electors of the corporation.</p>

<p>CONTRACTS FOR PUBLIC WORK WHICH ARE ESSENTIALLY NON-COMPETITIVE.</p> <p>Public Contracts — •Construction of the Act Providing for the Building of Court Souses — Tax-payer Not Guilty of Laches in Seeking to Enjoin Public Contract, When — Expenditure by Contractor in Furtherance of Work Not a Defense tfb an Illegal Contract — Work that is Non-Competitive in Character Need Not be Submitted to Competitive Bidding — Section 2888.</p> <p>1. A tax-payer is not guilty of laches in bringing suit to enjoin the illegal expenditure of public money, where within a day or two after the execution of the contract complained of with bond for its faithful performance he served notice through his counsel upon the prosecuting attorney of the county to bring such an action, and three days later, when the refusal of the prosecuting attorney to bring such an action was communicated to him, his own suit was filed.</p> <p>2. Nor is he estopped from bringing such an action because the defendants have been to considerable expense in preparing to execute the contract, where the ground of his action is that the contract is illegal for the reason that the defendants are wholly without authority to execute it, or having executed it to carry it out.</p> <p>3. The addition, when it was incorporated into the General Code, of the words “and shall be governed by the provisions of this chapter relating to the erection of public buildings in the county” to the act of March 8, 1906, providing for the appointment of a commission for the building of court houses, is not effectual to limit or restrict the powers of the commission as granted by the original act, where the work of such a commission in building a court house had been carried almost to completion before these words were incorporated into the original act; but in such a case the work should be completed under the provisions of the act as it originally stood.</p> <p>4. But should it be assumed that the statute controls in the form in which it'now appears in the General Code, it would still be true that the work of interior decoration is so essentially - non-competitive in character that the commission is not required to submit it. to competitive bidding, where the building has cost more than two million dollars, and is imposing in appearance, beautiful in design and monumental in character, *the walls of which it is proposed to decorate in harmony with the style of the building itself, and thus add to its dignity and beauty, and exhibit the highest esthetic taste of present day culture.</p>

<p>CONTRACT FOR. PUBLIC IMPROVEMENT.</p> <p>Bids and Bidding — Construction Which Will he Placed on Specifica- ■ tións Must he Known to Bidders — Injunction Against Award of Contract for Wood Bloch Paving — Where the Proposals Could Not' he Reconciled.</p> <p>The execution of a contract for a public improvement will be enjoined, where the specifications were impossible of enforcement and the bidders were not made aware of the construction which would be placed upon the specifications in determining which was the lowest and best bid.</p>

<p>EXTENT OF CARRIERS’ LIABILITY FOR GOODS LOST IN TRANSIT.</p> <p>Carriers — Freight Charges May Properly be Regulated by Value Placed on the Property Shipped — Limitation on Carriers’ Liability Where no Value is Given.</p> <p>The liability of an initial carrier for goods lost in transit is limited to the value of the goods as fixed by the contract of shipment, and where the valúe of the goods was asked at the time of shipment and was not given, and the contract provides that in such cases the company shall not be held for more than fifty dollars, no greater sum than that can be recovered in the event the goods are lost.</p>

<p>Heard on appeal.</p>

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

<p>PURCHASE BY A CORPORATION OF ITS OWN STOCK.</p> <p>Corporations — Purchase by, of Their Own Stock, Not Illegal, When— Nature of the Transaction — Action on Note Given by Corporation in Payment for Its Own Stock — Defenses—Estoppel—Contracts— Ultra Vires Acts.</p> <p>1. A corporation where not prohibited by its charter, or a statute or constitutional prohibition, may purchase its own stock, and there is no statute or constitutional provision in Ohio preventing such purchase.</p> <p>2. Before such a purchase will be held for naught it must be shown that it was not made in good faith and will result to the injury of creditors.</p> <p>3. Such a transaction is not malum in se, and a note given by the corporation, the consideration of which is the purchase price of such stock, is not per se void.</p> <p>4. If such note includes other considerations than the purchase price of the stock and these can be separated, the note would at most only be void to the extent of the consideration which w,as included therein for the purchase of the stock.</p> <p>5. Where a corporation purchases its own stock and gives a note therefor, such transaction so far. as the sale and purchase of the stock is concerned becomes an executed contract, and the mere want of power to purchase such stock will not be a good defense in an action against the corporation to collect such note.</p> <p>6. A corporation, which has purchased its own stock and given a note in payment, and thereafter sells the stock, is estopped from setting up the defense of want of power to make such purchase.</p>

<p>CONTROVERSIES OVER. LINE FENCES.</p> <p>Partition Fences — Sale of Construction of — Where Township Trustees Are Called in, One Notice to Adjoining Landowners Sufficient — Sections 5910, 5911, 5912 and 591S.</p> <p>The provisions of the statutes with reference to the building of partition - fences contemplate a continual proceeding, and the notice required by Section 5910, General Code, is sufficient for all the purposes of the case.</p>

<p>PEDESTRIAN KILLED AT RAILWAY CROSSING.</p> <p>Negligence — Duty of Pedestrian at Railway crossing — destructions to View — Company Not Liable for StriMng of Pedestrian by Train, When.</p> <p>An action does not lie against a railway company for the death of a pedestrian by being struck by a train at a crossing, where the decedent was in full possesion of his sight and hearing and had an unobstructed view of the track for 1,200 or 1,500 feet, notwithstanding the train which struck him was running at a high and dangerous rate of speed, and an ordinance was violated in so doing, and no signals were sounded, and there were obstructions along the tracK but not in the line of view of the decedent.</p>

<p>DEGREE OF CARE REQUIRED ON A SIDEWALK KNOWN TO BE UNSAFE.</p> <p>Defective Sidewalk — Pedestrian Injured While Walking Over — What Constitutes Ordinary Carre — Where a Sidewalk is Known to he Unsafe — Charge of Court as to Contributory Negligence.</p> <p>1. A person who in the daytime voluntarily attempts to pass over a sidewalk in a city, which he knows from any cause to be dangerously defective and which he might have easily avoided, can not be regarded as in the exercise of ordinary care or prudence, and therefore can not maintain an action against the municipality for damages sustained on account of any such known defect, even though the city was guilty of negligence in allowing such defect to exist.</p> <p>2. It is error to charge that if an ord-inarily prudent man would have attempted to pass over a walk alleged to be dangerously defective, with knowledge of its condition, and if the plaintiff in attempting so to do exercised the care which an ordinarily prudent'man would have exercised in the condition which this walk was in at the time, he was not guilty of negligence in attempting to use the walk and is entitled to recover.</p>

<p>ACTION ON BEHALF OF AN INFANT BY HIS NEXT FRIEND.</p> <p>Parties — Competency of Testimony by an Infant Plaintiff — Where the Defendant has Become Imbecile.</p> <p>1. Where an action is brought by an infant through his next friend for recovery of damages on account of personal injuries, the infant is the party plaintiff and is not competent to testify where imbecility on the part of the defendant has intervened.</p> <p>2. Nor is such a party plaintiff rendered competent as a witness by the exception to the statute which provides that nothing therein eontainéd shall apply to actions causing death.</p>

<p>INJURY FROM STEPPING INTO A HOLE IN THE STREET.</p> <p>Municipal Corporations — Care in Keeping Streets in Remonably Safe Condition — Woman Steps from Street Car Into a Hole — Negligence —Charge of Court.</p> <p>1. Where the evidence tends to show that a passenger in alighting from a street car could by looking have seen a hole in the street and have avoided stepping into it, a refusal to give a special instruction to the jury, directed to that phase of the case and requested before argument, is prejudicial error.</p> <p>2. It is not error to refuse to give judgment for the defendant, where the jury failed to answer an interrogatory as to whether the street was in reasonable safe condition, but did find that the city had constructive notice of a defect in the street.</p> <p>3. But a general verdict for the plaintiff in such a case is not sustained by sufficient evidence, where the evidence seems to bear out the theory that plaintiff stepped heedlessly from the car and unnecessarily used a part of the street not intended for pedestrians.</p>

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

<p>SURRENDER. OF PROPERTY BY EXECUTRIX TO CREDITOR..</p> <p>Executors and Administrators — Preference of One Creditor by Turning Over to Him Notes Belonging to the Estate — Section 10697.</p> <p>An exeGutor as such has no power before final settlement to turn over, without an order of the probate court, notes held by the estate to a creditor of the estate, and one holding notes so turned over does not have a valid title to them upon which to sue the maker.</p>

<p>PROSECUTION FOR. HOMICIDE.</p> <p>Criminal Lem — Evidence Sufficient to Support a Judgment of Manslaughter — Objections to the Admission of Evidence — Verdict May be Guilty of Murder in the First, Second or Third Degree.</p> <p>1. Where there is no suggestion that any other person could or did commit the crime, and the circumstances point as strongly as in the present case to the defendant, a judgment of guilty of manslaughter will not be set aside for lack of sufficient evidence.</p> <p>2. It is not error in the case of one charged with murder in the first degree to charge the jury that, if the evidence justifies it, a verdict may be returned of guilty of .murder in the second degree, or of manslaughter or of assault and battery.</p> <p>3. An objection to the admission of evidence is not sufficiently specific, if it is not addressed to any particular question, and no motion is made to rule out any answer given either before or after the entering of the objection.</p>

<p>REVIEW OF PROCEEDINGS FOR. REMOVAL OF AN ADMINISTRATOR.</p> <p>Administrators — Circuit Court Without Jurisdiction for Review of Proceedings for the Removal' of- — Sections 12241, 12247 and 12248.</p> <p>The circuit court is without jurisdiction to review by a proceeding in error an order of the common pleas court removing an administrator in a proceeding brought into that court on error to the probate court.</p>

<p>PERMITS TO FISH FOR. CARP IN LAKE ERIE.</p> <p>Fishing in Lake Erie — Permits for Taking Oarp — Apply to All Lake Erie Waters — Yalidity of Section 145S-</p> <p>1. The Ohio statute as it now stands, providing - for the issue of permits or licenses by the fish and game commission for the taking of carp from the waters of Lake Erie, is general in its nature and is a valid enactment.</p> <p>2. When an applicant to fish for carp has satisfied the commission that he will not violate the law, he is entitled to a permit to fish in any of the marshes, inlets, hays or waters connected with Lake Erie, and is not subject to prosecution for placing his seine in the waters of Mud creek.</p>

<p>OFFICIAL SERVICES FOR WHICH NO PAYMENT IS PROVIDED.</p> <p>Chiefs of Police — Service of Process hy, Where Issued hy Mayor — No Provisions for Payment — Service Must he Regarded as Gratuitous.</p> <p>1. There is no provision of law for payment of a chief of police for service of process issued by a mayor in cases wherein the state of Ohio is plaintiff.</p> <p>2. Costs collected for services of such process by a chief of police issued by a mayor, are not recoverable by the officer where they have been turned over to the city, or by the city if turned over to the officer.</p>

<p>INTEREST ON DEPOSITS OF PUBLIC FUNDS.</p> <p>Interest — Action for Recovery of, from a Bank — Where. Received by a County Treasurer on Public Funds Deposited Without Authority.</p> <p>1. An action may be maintained by the prosecuting attorney for recovery from a bank of interest on public funds deposited therein, whether so deposited lawfully or otherwise.</p> <p>2. Where such an action is brought for the benefit of a county, the state is not a real party in interest, and the six years statute of limitations is available.</p>

<p>BOYCOTT OFf A HOTEL.</p> <p>Injunction Against a Boycott — Injury to Trade or Patronage by at Combination of Persons May be Restrained, When — Disputes Between Capital and Labor — Resort to Coercive or Threatening Measures —Unlawful Conspiracies — Distribution of Cards Calling Upon the Public to Cease Patronizing a Certain House — Freedom of the Press and Public Speech.</p> <p>1. Peaceable persuasion and argument, oral, printed or written, by members and officers of labor unions to divert patronage from a hotel claimed by them to be “unfair to labor” will not be enjoined as an unlawful boycott.</p> <p>2. Injunction will lie to restrain coercive measures by labor unions in the maintenance of a boycott against a hotel claimed to be “unfair to labor.” Whether or not such claim is well founded is immaterial.</p> <p>3. Coercive measures to enforce a boycott may consist of violence or any form of intimidation such as threats, oral, printed or written. The restraint of such unlawful acts by a court of equity does not violate any right of trial by jury or any constitutional provisions as to the freedom of speech or the press.</p> <p>4. The distribution by pickets in a labor union boycott, or cards warning patrons of a hotel and saloon not to patronize the place as unfair, and threatening to publish the names of any who do so, may be enjoined.</p>

<p>INJURY THROUGH NEGLIGENCE.</p> <p>Test of Liability of Master for Injury to One Servant Caused by negligence of Another — Burden of Proving Contributory negligence— Charge of Court — Prejudicial Error.</p>

<p>AS TO LIGHTING OF STREET CROSSINGS BY INTERURBAN RAILWAYS.</p> <p>Classification of Interurban Railways — Fundamentally Different from Street Railways — For-Practical Purposes are in the Same Class as Steam Roads — Subject to the Same Obligations, When — Municipal Corporations — Sections 3162 and. 9122.</p> <p>Interurban railways, by analogy of statutes regulating, the nature of business conducted, and mode of operation, now belong to the genus railroads, rather than that of street railways; hence interurban railways are deemed railroads within the meaning of General Code, 3762, and as such may be required by municipal ordinance to light street crossings. State v. Cleveland, 83 Ohio St., —, followed.</p>

<p>INJURY TO A CUSTOMER IN AN AUTOMOBILE GARAGE.</p> <p>Negligence — Application of the Principle of Res Ipsa Loquitur — Competency and Weight of Evidence — Error—Presumption—Burden of Proof.</p> <p>The doctrine of res ipsa loquitur controls in fixing responsibility for , injuries sustained by a prospective purchaser of an automobile, occasioned during his inspection of the machine by. its sudden and unexpected movement against him while being manipulated and operated by the owner in the garage of the owner. Negligence of the owner in such a case is presumed and the burden of rebutting it is on him.</p>

<p>SALARY OF POLICEMEN CAN NOT BE INCREASED OR DIMINISHED.</p> <p>Policemen are “Officers" — Salary of Policemen Can Not be Increased or Diminished During Term of BHs Appointment — Sections 4213- and 4124 — Ordinances.</p> <p>1. A duly appointed patrolman of the police department of a city is an officer within the meaning of the laws of Ohio.</p> <p>2. A city council has no power to increase or diminish the salary of a police officer, appointed under the civil service provisions of the municipal code, during the term for which he was appointed which is during good behavior.</p>

<p>AS TO THE EXECUTION OF TESTAMENTARY TRUSTS.</p> <p>Trusts and Trustees — Trusts Enforcible in Accordance with Their Terms Until Equity Decrees Otherwise — Probate Court Can Not Terminate a Trust• — •Should Examine Accounts and Make Necessary Orders — Limitation on Acts of Trustee — Executor Can Not by Agreement Divert Trust Funds.</p> <p>1. It is the duty of the probate court (General Code, 11202) to examine accounts filed in that court, and sua sponte or on request of an interested party make such orders as are'proper and necessary to secure a faithful and correct administration of the trust.</p> <p>2. A testamentary trust, where possible of performance and .not contrary to law, must be enforced according to the provisions of the instrument creating it, until a court of equity decrees otherwise.</p> <p>3. The probate court has no power to terminate a testamentary trust.</p> <p>4. A trustee should confine his acts to the carrying into effect of the provisions of the trust under which he is acting, and if in doubt apply to the proper court for instruction (General Code, 10857).</p> <p>5. Where a testator in his will provided for the erection of a family vault and that a specific sum should be used for that purpose, and further provided “that the sum of $500 shall be set aside and in-’ vested in good farm piortgages, etc., and the income held as a perpetual fund for the care of such vault after the same is erected”-— Held: That the executor can not, even -by consent of all persons having an interest in the estate of the decedent, use sai'd sum in the erection of the vault, and if it is so used the executor is chargeable therewith and must account therefor as provided in said will.</p>

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

<p>TITLE TO CERTIFICATES OF STOCK.</p> <p>Power of Attorney for the Transfer of Stock — Power Not Exercised by the One Named Therein During Her Lifetime — But Stock Assigned to Her Son — Interpretation of a Deed Covering Real Estate and Belongings Thereto. '</p> <p>1. A power of attorney endorsed on a certificate of stock by a husband iti favor of his wife, on the same day on which the certificate was issued to him, will be construed as a general power to transfer the stock on the books of.the company, which not having been exercised by the wife during her lifetime ceased at her death, and her attempt to sign the certificate over to her son conveyed no title.</p> <p>2. A deed conveying certain real estate upon which was situated a health college, and also covering belongings of the college in the form of personal property specifically described, can not be construed as covering a certificate of stock in possession of the grantor at his home in another state, where the negotiations for the transfer of the property were had and the deed was executed.</p>