Volume 13 — Ohio Circuit Court Decisions

<p>DEEDS — CONDITION—APPROPRIATION.</p> <p>Laubie, Frazier and Burrows, JJ.</p> <p>1. Condition Subsequent does not Operate oe Itsele.</p> <p>A condition subsequent .in a deed of land does not of itself operate to revoke the conveyance and the title to land so conveyed. Notwithstanding a failure to comply with the condition the title remains in the grantee until some action is taken by grantor, or by the court, whereby grantee is ousted. A mere declaration by grantor that the condition upon which the land was sold has not been complied, effects nothing.</p> <p>S. Waiver oe Right to Forfeiture.</p> <p>Where lands were deeded to a railway company in consideration of one dollar and “ the express condition subsequent” that the road should be constructed and in operation within two years, otherwise the lands were to be reconveyed to the grantor, and the condition was not complied with, the failure to commence proceedings upon the condition for more than seventeen years after the time within which it was to be performed and not until the railway company had made large and valuable improvements and expended large amounts of money thereon, the grantor standing by and permitting it to be done without making any claim whatsoever to the land, constitutes a waiver of the right to insist upon forfeiture and is a bar to the enforcement of the condition or a recovery of the property.</p> <p>8. No Action Lies Under Sec. 6448, Rev. Stat.</p> <p>Where property was deeded to a railway company in consideration of one dollar and a condition subsequent that the railroad should be constructed and in operation within two years, and the railway company failed to perform such condition, and by reason of having permitted the company, for a period of seventeen years, to retain the property and make expensive improvements, without a claim to the property, grantor has lost the right to claim forfeiture, he is not, though no further compensation was paid him, entitled to recover the value of the property under Sec 6448, Rev. Stat., authorizing actions, as for appropriation, for land taken without compensation and not under cons tract in writing. The contract or the deed is the sole measure of the right- or remedy of either party. Whether action for damages for breach of contract, under circumstances stated, would lie, quaere.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>CONVEYANCES — WITNESSES—NOTARY.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Interest oe Witnesses or Notary does not Invalidate Conveyances</p> <p>Inasmuch as Sec. 4106, Rev. Stat., prescribing what shall constitute the proper attestation and acknowledgment of instruments for the conveyance of land, etc., does not require that either the witnesses or the official before whom the same is acknowledged shall he disinterested, it is not sufficient to invalidate a conveyance in Ohio that the witnesses or the notary public, before whom the acknowledgment is taken, is a stockholder in a corporation to which the conveyance is made.</p> <p>2. Acknowledgment is a Ministerial Act.</p> <p>The acknowledgment of a mortgage of real estate, under Sec. 4106, Rev. Stat., providing for the acknowledgment of such instruments, etc., before a notary public and certain other officials, is a ministerial and not a judicial act.</p> <p>3. Grantor Estopped erom Claiming Invalidity.</p> <p>The grantor in a mortgage of real estate may elect the witnesses and official before whom he desires to acknowledge it and he ordinarily has the possession and control of it until acknowledged. Accordingly, he is in such case estopped from complaining that the witnesses thereto are, interested in the conveyance and from claiming that the conveyance is on that account invalid,</p>

<p>Heard on Error.</p>

<p>LIFE INSURANCE — COMPROMISE-FRAUD.</p> <p>Douglass, Voorhees and Donahue, JJ.</p> <p>1. Petition Sufficient as Against Demurrer.</p> <p>A petition in an action by the assignee of a life insurance policy, setting up the contract of insurance, the assignment for a valuable consideration, the assent of the company issuing the policy to the assignment, demand upon and payment by the assignee of the annual premium,, and the death of the insured, is sufficient as against a demurrer, no other facts intervening to defeat recovery.</p> <p>2. Affirmative Defense — Burden of Proof — Fraud.</p> <p>A defense in such action that the policy was taken out by the plaintiff in the name of the assignor upon an agreement that the latter should apply therefor and the former pay the premium thereon and that an assignment thereof should be made, etc., and that it was amere wagering policy, is an affirmative defense, the burden of proving which rests upon the defendant. Therefore, no evidence having been offered in favor of such defense, it will be considered as withdrawn notwithstanding no formal withdrawal appears in the record, especially where such fact is conceded in argument on review and the trial court in its charge substantially so stated.</p> <p>3. Fraudulent Compromise — Refunder Unnecessary.</p> <p>Where a party is entitled to a specific sum of money, as for instance the proceeds of a life insurance policy, and is fraudulently induced to. compromise or to accept a lesser sum, it is not necessary that he tender or return the amount so received in order to maintaiu an action to recover under the policy. Insurance Co. v. Hull, 51 O. S., 270, followed.</p>

<p>MUNICIPAL CORPORATIONS -WORKHOUSES — NEGLIGENCE.</p> <p>Norris, Day and Mooney, JJ.</p> <p>(Of the third circuit, sitting in place oí Douglass, Voorhees and Donohue, JJ., o the fifth circuit.)</p> <p>1. Governmental Powers.</p> <p>The power conferred on municipalities to preserve the peace and protect persons and property by the arrest of offenders and their commitment and detention in jails or workhouses, is of a public or governmental nature, in which the sovereign state exercises its functions through the aid of a municipality.</p> <p>2. Municipality not Liable for Negligence in Workhouse.</p> <p>A municipal corporation is not liable in an action for negligence to a person who is injured while operating a defective machine in a workhouse to which he has been sentenced at hard labor upon conviction of an offense against the ordinances of a city, or the statutes of the state. The non-liability of the municipality rests upon the same reason as does that of the sovereign exercising like powers.</p>

Appeal. cited: Mr. Hicks was a naked agent selected by the mortgagees and by them only, for the purpose of demanding and taking possession of the property for them. Justice v. Uhl, 10 Ohio St. 170; Lee v. Hennick, 52 Ohio St. 177, 181 182 [39 N. E. Rep. 473], Sureties are creditors, and that mortgages made to them to secure them against their liability as such, are not subject to the operation of the statute. Hatkrader v. Eeiby, 4 Ohio St. 602.

<p>STREET RAILWAYS — HIGHWAYS.</p> <p>Caldwell, Hale and Haynes, JJ.</p> <p>(Haynes, J., of the sixth circuit, taking the place of Marvin, J.)</p> <p>Street Railways — Highways—Abutting Owner’s Right to Compensation. Street railways, propelled either by horse or electric power, legally authorized and located in a public highway, are not a new and additional servitude entitling the owner of abutting land to additional compensation for the mere use of the highway or the destruction of trees standing thereon, made necessary for the proper location thereof, but where the owner is deprived of the mean3 of ingress and egress to his premises, or the s me is made more inconvenient and burdensome, as where by the construction thereof large quantities of water are thrown upon his land which otherwise would have gone in another direction, his property rights are invaded, and he is entitled to compensation.</p>

<p>WILLS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Evidence Tending to Prove Undue Influence.</p> <p>In an action to set aside a will for want of sufficient mental capacity in testator and having been produced by undue influence, any testimony tending to show that the will was not testator’s or that it was brought about by undue influence, is competent. Thus testimony that the first wile of testator was frugal and industrious, that he had affection for her, that they lived happily together, that his daughter by that marriage was frugal and worked in her father’s house after her mother’s death until just before testator’s second marriage, and that testator suddenly took a violent dislike to her husband, etc., is properly submitted to the jury as tending to prove undue influence in a case where testator married a second time and willed all of his property to his second wife, although the fact of his former wife’s frugality and industry and his daughter’s services did not, of itself, take away his right to dispose of his property as he saw fit.</p> <p>2. Expert Testimony — 'Weight and Competency.</p> <p>The testimony of non-expert witnesses, acquainted with the testator, giving opinions as to the mental capacity of a testator to make a will in connection with the facts upon which their opinions are based, is competent, notwithstanding their testimony discloses little opportunity to observe or little knowledge of the facts, and their inability to state facts sheddingmuch light on testator’s condition. Under such circumstances, the question is as to the weight rather than the competency of the testimony.</p> <p>3. Witnesses in Prooe oe Execution oe Wide.</p> <p>Under Secs. 5862, 5863 and 5864, Rev. Stat., prescribing the order of trial and what evidence constitutes a prima facie case for the contestee,in an action to set aside a will, the judgment of the probate court admitting the will to probate and the will itself are competent and sufficient evidence to make a prima facie case. The witnesses thereto, if living or competent, should be brought into court and subjected to cross-examination like other witnesses. Hence an affidavit by a witness to a will, that the will was signed by testator in the presence of the witnesses and that the witnesses signed in his presence and in the presence of each other and at the request of testator, and that testator wis of sound mind and memory and not under restraint, is not proper evidence in the absence of any proof that either of such witnesses is dead, incompetent or absent and such affidavit was properly ruled out.</p> <p>4. Charge to Jury — Pureey Abstract Propositions.</p> <p>Only persons of sound mind and memory are within Sec. 5914, Rev. Stat., prescribing who may make a will. Therefore, in an action to contest a will, as made without testamentary capacity and under undue influence, it would be misleading to instruct the jury, and there was no error in refusing such an instruction, that “ it is the right of every man, which can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law,” for the reason that it leaves out the question of mental capacity and undue influence and is not applied to the facts in issue.</p> <p>6.Same — As to Power oe Court to Make Disposition oe Property.</p> <p>An instruction that “ after his death neither court nor jury have the power to make for him a disposition of his property different from the disposition he intended to make, upon any theory that such intended disposition was unjust and wrong,” is a correct statement of an abstract proposition of law, but might be misleading standing alone and without qualification in an action to contest a will upon the ground of want of mental capacity of testator and undue influence brought upon him to make the will in controversy, for while he may make an unjust will, the jury have the right to consider whether, if he was sound mentally and without undue influence, he would have made such a will, and it was not error to refuse the instruction.</p> <p>6. Undue Influence Determined erom Facts and Surroundings.</p> <p>In determining whether there was undue influence, the facts and circumstances surrounding testator at the time he made the will, his feelings towards his children and his wife, should be considered.</p> <p>7. Evidence Tending to Support Mental Soundness.</p> <p>The fact that a daughter, after leaving her father’s house, brought suit against him for and made a settlement with him as to her share of her mother’s estate, is evidence, in a will contest, tending to show that the daughter at that time regarded her father as of sound mind.</p> <p>8. Mental Soundness Notwithstanding Eccentricities.</p> <p>Where it appeared that testator, for twenty years after making his will, associated socially with men in general, bought lands and built and repaired houses, rented houses and collected the rents, bought bonds and sold them, and conducted a merchant tailoring business, that he made no bad bargains nor showed mental incapacity to cope with the men with whom he dealt; held, that the evidence showed testamentary capacity, notwithstanding it also appeared that testator was eccentric and excitable, occasionally became intoxicated, and, during the later years of his life, allowed his business to become more or less run down.</p> <p>9. Highest Degree oe Mental Capacity not Required to Make Will.</p> <p>It does not require the highest degree of mental capacity to make a will. A person who, at the time of making his will, has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who have a claim upon his bounty, and the manner in which it is to be distributed, has sufficient mental capacity to execute a will.</p> <p>10. Fraud or Ineluence Must be Shown toJhave had Eeeect.</p> <p>To invalidate a will for fraud or undue influence, it must appear that the fraud or influence complained of had some effect upon the testator in making his will. A mere suggestion that testator should make certain provisions, etc., is not sufficient.</p> <p>11. Will Held to be a Natural One.</p> <p>Where it appeared that testator, who died worth about $15,000, leaving a widow, his wife by a second marriage, and two children by her, and a daughter by a former marriage, who had previously received about $6,000 out of her mother’s estate, and who had sued her father and made a settlement with him, a will bequeathing the whole of testator’s estate to his second wife was not an unnatural one or one which indicates undue influence.</p> <p>12. Reviewing Court may Review Testimony in Will Case.</p> <p>A reviewing court has the power to review the testimony in a will case, and if the verdict is clearly and manifestly against the weight of the evidence, it has power to set aside the verdict and order a new trial. This power is not defeated by Sec. 5861, Rev. Stat., providing that the question of the validity of a will in an action contesting it must be submitted to tbe jury and tlieir verdict thereon shall be conclusive, etc. The trial by jury means a common law jury trial, in which the court presides and passes upon questions of law and is conducted in all respects as any other trial.</p> <p>13. Verdict set Aside — Wide Sustained.</p> <p>In a contest of a will the questions of mental capacity and undue influence are peculiarly questions for the jury, and cannot be determined entirely by the number of witnesses testifying, but where it appears that twenty-three testify to the soundness of testator’s mind, while only six, three of whom are interested, testify to the contrary, the preponderance of witnesses should be considered and given great weight by a reviewing court even against the verdict of the jury holding him incapable of making a will; and where from the whole evidence it clearly appears that the testator was not mentally incapable, the verdict of the jury will be set aside and a new trial ordered as in other cases.</p>

<p>INSOLVENCY — PREFERENCES.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Transaction Fraudulent and Void Under Sec. 6343, Rev. Stat.</p> <p>Where an insolvent debtor mortgages his whole property for its full value to secure a loan from a third person, and upon the same day turns over to certain creditors the entire proceeds thereof, leaving more than half of his indebtedness unpaid, the effect of the transaction is to turn over to these creditors his entire property, and he will be considered as having done so in contemplation of insolvency and with intent to prefer such creditors, within the meaning of Sec. 6343, Rev. Stat., as amended 93 O. L. 290, making such transactions void.</p> <p>2. Section 6343, Rev. Stat., Includes Payment of Money.</p> <p>Section 6343, Rev. Stat., as amended 93 O. L. 290, providing that every act or device done in contemplation of insolvency or with intent to prefer creditors, such as sales, conveyances, transfers, etc., shall be void is sufficiently broad to include “ payment of money,” made under the above circumstances, although the term “payment” is not specified in its inhibitions.</p> <p>3. Section 6343, Rev. Stat. — Exceptions.</p> <p>Section 6343, Rev Stat., providing that sales, conveyances, transfers, mortgages or assignments made in contemplation of insolvency shall inure to the benefit of all creditors, exempts mortgages given to secure a new loan and not a pre-existing debt if filed for record within three days.</p>

<p>NEGLIGENCE — CHARGE TO JURY.</p> <p>Haynes, Parker and Mooney, JJ.</p> <p>(Mooney, J., sitting in place of Hull, J.)</p> <p>1 Rules oe Railway Company Need not be in Writing.</p> <p>. Orders to employes in railway shops are not required to be given by written rules; the rule in respect to such companies is not different from that applied to other industries. Hence, in an action for negligence for want of sufficient rules for the protection of employes, it is improper to exclude proof that an oral rule was made, was in existence and was actually communicated to an employe, and which, if followed, might have tended to his safety in the work in which he was engaged.</p> <p>2. Choosing Dangerous Method oe Work — Contributory Negligence.</p> <p>The fact that a person does not surround himself with all precautions and take the course that in all situations is absolutely free from danger, does not raise a presumption of negligence against him, but where there are two ways of accomplishing a certain work, with reasonable dispatch, one absolutely safe and the other attended with danger, the adoption of the latter raises a presumption of negligence; and to remove this presumption and to show the exercise of ordinary care, the burden is upon the person so choosing.</p> <p>8. Rule Applied.</p> <p>Where a man thirty-two years of age, of more than ordinary intelligence, employed about a railway company’s shops for more than three years, and for more than a year accustomed to assist in raising tanks from the floors of locomotive tenders, by the aid of lifting jacks, in attempting to reach certain blocking to support the tank, placed his head and arms under such a tank, one end of which he had raised and left supported by a jack only, which slipped and let the tank fall upon his head, causing his death, he was held to have been negligent, and especially where it appeared that by a few steps he could have procured the blocks without danger.</p> <p>4. Danger oe Defective Appliance or Condition.</p> <p>A person using an appliance, a lifting jack in this case, for several years and frequently, may, in the absence of evidence to the contrary, be fairly presumed to know its weakness, if it has any. The same rule applies to other conditions, such as a floor made slippery by fresh paint, where the person had worked thereon for several hours. In either case the person so employed should be held to have assumed the dangers suggested, particularly where it appears that he had already had instances of the weakness of the appliance and the slippery condition of the floor.</p> <p>6. Lack of Causal Connection Between Negligence and Injury.</p> <p>The fact that a railway company employed only two men, when it should have employed three (though it is not so held in this case), to accomplish certain work, furnishes no ground for recovery where, from the position in which an employe who is injured placed himself, he would not have escaped injury by reason of the employment of another man or any precaution or warning given at the time by such extra person, inasmuch as there is no causal connection between the alleged negligence and the happening of the injury.</p> <p>6. Assumption of Risk of Certain Methods.</p> <p>Where a person performed certain work many times with the assistance of one man, he should be held to know the dangers of so doing and by voluntarily attempting to perform the work another time without objection or demand for the assistance of a third person, he cannot recover for an injury caused thereby.</p> <p>7. Evidence Necessary"to Remove Such Presumption.</p> <p>Evidence to remove a presumption of contributory negligence in an action for personal injuries must be exculpatory; that is, it must show some reason or sustain some excuse therefor, and it must appear from other evidence, that notwithstanding the act done seems to be contributory negligence, or a risk assumed by the plaintiff, under the peculiar circumstances, such result does not follow.</p> <p>8. Rule as to Instructions Before Argument.</p> <p>Instructions to the jury before argument, under Sec. 6190, Rev. Stat, should embody general rules, not only correct in the abstract, but so covering the case in issue as not to give a one-sided view of any particular theory of counsel or attach undue importance to particular items of evidence.</p> <p>9. Rule Applied.</p> <p>Where plaintiff alleges the commission of several acts of negligence, as a result of which the injury complained of occurred, a charge, singling out each of these several acts and instructing the jury that any one of them alone would not, as a matter of law, entail liability, is unfair, misleading and improper.</p> <p>10. Duty oe Court To Instruct as To Presumption oe Negligence.</p> <p>The purpose of an instruction to a jury is not to state general abstract propositions, but to deliver instructions which will aid the jury in arriving at a proper verdict. Thus, where it appears that there were two ways in which a servant might have performed his work, with reasonable dispatch, one safe and' the other attended with danger, and the servant adopted the dangerous way, it is the duty of the court to instruct the jury that the burden rests upon the servant to remove such presumption and to show that he was exercising ordinary care before he can recover; and a failure to comply with a request to so charge constitutes prejudicial error.</p> <p>11. Rule as to General Charge.</p> <p>Where the general charge fairly covers a case, in the absence of any request to make more particular statement, or specific objection made at the time to particular language, it will- be considered to have given the jury proper instruction, in the light of which they should have arrived at a proper and just conclusion.</p> <p>12. Single Questions to Experts Need not Meet Case Fully.</p> <p>It is not necessary, in the examination of expert witnesses, to state an entire case in one question. It is sufficient, for example, to ask such a witness if a certain method of doing certain work, by two employes, is safe, and if the question is incomplete or it is necessary that the evidence should show as to which of such employes such method would or would not have been safe, the additional facts may be developed on cross-examination.</p>

<p>MUNICIPAL CORPORATIONS — CONTRACTS.</p> <p>Norris, Day and Mooney, JJ.</p> <p>1. Action by City Solicitor Under Sec. 1777, Rev. Stat.</p> <p>An action to restrain a municipal corporation from paying money to a water company in pursuance of a contract, claimed to be illegal, to pay hydrant rentals for fire purposes is properly brought under Sec. 1777, Rev. Stat., by the city solicitor, inasmuch as if the contract is illegal, the payment would be a “ misapplication of the funds of the corporation ” and also “ a performance of a contract made in behalf of the corporation in contravention of the law.”</p> <p>2. Contract not Requiring Certificate Under Sec. 2702, Rev. Stat.</p> <p>A contract entered into between a city and a water company, by which the city agrees to pay hydrant rentals for water for fire purposes for thirty years, is not void upon the ground that no certificate was made by the clerk, under Sec. 2702, Rev. Stat., that there are funds in the city treasury, sufficient to satisfy the amount falling due under the contract for the full period of thirty years.</p> <p>3. Contract Invalid Without Ratifying Vote.</p> <p>Under Secs. 2435-46, Rev. Stat., 83 O. U., 146, authorizing cities of the fourth grade of the second class to contract with a water company for a period not exceeding twenty years, and Sec. 2434, Rev. Stat., requiring such contracts to be ratified by a vote of the electors thereof, an affirmative or ratifying vote of the electors is required to validate any such contract for twenty years as well as for a greater period. Therefore a contract by the city of Defiance to pay money for the use of fire hydrants for a period of thirty years without being ratified by an affirmative vote of its electors, is void.</p> <p>4. Cannot be Scaled Down in Years.</p> <p>A contract entered into by a municipal corporation with a water company for a period of thirty years without a vote of electors ratifying the same, as required by Secs. 2435-46 and 2434, Rev. Stat., is absolutely void and cannot be scaled down in years to establish its validity.</p> <p>6. City not Estopped by Acts Under the Contract.</p> <p>The fact that a city council entered into a contract with a water company to furnish water for fire purposes, for a period greater than the statute permits without a vote of ratification by the electors thereof, made payments thereon and passed ordinances and resolutions to carry out such contract, does not estop the city, by its solicitor, from maintaining an action to enjoin the further performance of such contract.</p> <p>6. Company Charged With Knowledge of City’s Power.</p> <p>An individual company or corporation in making a contract with a city council to furnish water for fire purposes for a period beyond which the council had the power to contract, is bound to know the extent of the power of such body and cannot be said to have relied to its prejudice upon any action of the council therein ; and a water company having served a municipal corporation for ten years under an illegal contract, and having received full pay therefor, cannot be heard to complain of a termination of the contract; and if the bondholders of such a company stand upon a more favorable position on the question of estoppel than the company itself occupies, this fact cannot be urged, iu behalf of the company, in an action in which such bondholders are not parties.</p> <p>7. Contract Raised by Pleadings — Judgment.</p> <p>In an action under Sec. 1777, Rev. Stat., to restrain the officers of a municipal corporation from making payments to a water company, alleging that the claims are illegal, and the invalidity thereof arises from the invalidity of the contract with the city, which is denied by the water company, claiming as assignee under a contract with another person, and that the city, having induced such company to complete the contract, is estopped, a determination of the issue requires a consideration of the contract, which is sufficiently raised by the pleadings, and if its illegality appears iudgment on the pleadings should be granted.</p>

<p>POLICE COURT — NEW TRIAL — JURY TRIAL — WAIVER.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Motion eor New Trials in Police Court.</p> <p>Under Sec. 1793, Rev. Stat., dividing police courts into monthly terms, and Sec. 5307, Rev, Stat., requiring motions for new trials to be filed during the term, etc., a motion for a new trial therein, not filed for nearly six months after rendition of judgment, is not in time to give the police court jurisdiction to hear and determine it.</p> <p>2. Police Judge — Credibility oe Witnesses.</p> <p>In trials in the police court, the judge of that tribunal, having an opportunity to see the witnesses, is best qualified to judge of the credibility, and his findings, where the evidence is conflicting, should not be disturbed by a reviewing court, as against the weight of the evidence, unless manifestly wrong.</p> <p>3. Presumption that Jury Trial was Waived.</p> <p>A police court is a court of record and as such under Sec. 1788, Rev. Stat., has jurisdiction of a prosecution for assault and battery under Sec. 6823, Rev. Stat., defining the offense and prescribing the penalty therefor. Hence, the circuit court will presume, trial by jury being necessary unless waived, that the jury was waived, unless;.by a proper bill of exceptions, it appears that the accused either demanded such a trial or refused to waive the right thereof, and was not so tried.</p> <p>4. Waiver Should Appear oe Record.</p> <p>In case of a trial in the police court, such as for assault and battery, in which the accused has the right of trial by jury and waives it, the only safe and proper rule for such court is to have the fact noted upon the record.</p>

<p>EXECUTORS ARD ADMINISTRATORS — WILLS.</p> <p>Douglass, Voorhees and Donahue, JJ.</p> <p>1. Action to Recover Possession oe Read Estate by Executors — Peeading.</p> <p>In an action for possession of real estate brought by the executors of a will, it is sufficient to allege that they have a legal estate in the premises, are entitled to the immediate possession thereof, and that the defendant unlawfully keeps them out of possession. Although the will is the source of the executors’ title, it is not good pleading to make the will, or a copy thereof, a part of the petition; yet, when this has been done, and no motion is made to reform the pleading, the objection is waived by demurring to the petition.</p> <p>2. Devise oe Read Estate and Personae Property to be Soed and Distribution oe Proceeds to be Made by Executors, Construed.</p> <p>A testator by his will gave to his widow certain real estate so long as she should remain his widow, and directed that the balance of his real estate and personal property should be sold at private of public sale, and the proceeds be applied to the payment of all his just debts and funeral expenses; and provided, that after all of his said debts were paid, then, should his said widow prefer her legal share in the residue rather than the real estate so given her said real estate sliould be also sold and she should have her legal share of the estate; and provided, that after his said -widow had received her legal share, as she should desire, the balance of the estate should be equally divided among his six children, naming them. The widow elected to take her legal share in the residue of the proceeds of sale of all of said property after payment of said debts; and for a valuable consideration released her interest in said proceeds to the children of the testator named in the will. The testator appointed two executors with full power to execute the will as therein directed. Held:</p> <p>(a) That the direction to sell the real estate was not left discretionary with either the executors or with the heirs; but that the direction to sell was imperative, and the only discretion given the executors is as to the manner of sale.</p> <p>(b) That under the direction to sell, the real estate is to be regarded, for the purpose of distribution, as converted into money; and the beneficiaries take, ft the death of the testator, a vested interest in the proceeds of the sale.</p> <p>(c) That the imperative direction to sell the real estate, and the unconditional requirement to distribute the proceeds among the beneficiaries named, are powers coupled with an interest; and, by force of the will, the title to the real estate of the testator vests in fee in his executors, and does not descend to his heirs.</p> <p>(d) That the duty of making the sale and the distribution of the proceeds devolves, by the will, upon the executors, and not upon his heirs.</p> <p>(e) That the executors take the fee in the real estate, and with it the right of possession; and the executors may maintain an action for possession, under Sec. 5781, Rev. Stat., against one wrongfully in possession, and the heirs are not necessary parties.</p>

Heard on Error. cited: Whüe the finding of the jury is to be taken in favor of the defendant upon each and all of these issues, yet, if a finding upon.any one of them would entitle the defendant to judgment, such, judgment would not be reversed for, error in the instruction,of the court relating-,to either of .the others. . Sites v. Haverstick, 23 O. S. 626. ..

<p>STREET RAILWAYS.</p> <p>Swing, G-iffen-and Jelke, JJ.</p> <p>1. No Ordinance Regulating Speed oe Electric Cars in’ Cincinnati.</p> <p>There is no ordinance regulating the speed of electric cars upon the streets of Cincinnati. - - -, •. i . , -‘ , -</p> <p>2. The Daw is that.oe,Reasonable Safety.</p> <p>The law regulating the speed of such cars is that of reasonable safety in view of all the facts and surrounding conditions.</p>

<p>ERROR — RAILROADS—NEGLIGENCE.</p> <p>Douglass, Voorhees and Cook, JJ.</p> <p>(Judges Douglass and Voorhees, of the fifth circuit, taking the places of Judges Laubie and Burrows.)</p> <p>1. Proceedings in Error — Section 6716, Rev. Stat., Construed.</p> <p>Section 6716, Rev. Stat., requires that a plaintiff in error “ shall file with his petition either a transcript of his final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.” Where the transcript is sufficient to exhibit the errors complained of, although it may not be a full transcript of the proceedings had in the cause, it is sufficient under said section.</p> <p>2. Unnecessary Facts Need not be Brought Into Record, When.</p> <p>Where a plaintiff in error does not complain that the cause, in which he is seeking a reversal, has been tried two or more times in the court below, and the judgment set aside by the reviewing court on the weight of the evidence, and such trials and reversals are not necessary in the determination of the errors complained of, he need not bring such facts into the record or transcript.</p> <p>3. If Pacts Become Material Answer or Cross-Petition may Bring Them Into the Record.</p> <p>If such facts as to former trials and reversals become material parts of the record as affecting the rights of the defendant in error, it devolves upon him to bring them into the record, either by cross-petition in error or by answer, setting them up as extrinsic facts, as a reason why the plaintiff in error can not have the judgment reviewed on error on the weight of the evidence.</p> <p>4. Procedure — Review on Weight of Evidence — Section 5306, Rev. Stat., 93 O. L. 217, Considered.</p> <p>Section 5306, Rev. Stat., as amended April 23,1898, 93 O. L. 217, does not affect the jurisdiction of this court to review a judgment of a lower court on the weight of the evidence, where the action was pending, or the right to prosecute error existed, prior to the amendment taking away such rights ; and the statute in force when the action was commenced governs the proceedings in error.</p> <p>5. Approaching Railroad Crossing — Required to Loor and Listen.</p> <p>It is the duty of a traveler upon a highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possession of his faculties, he fails to see or hear an approaching train, when a prudent man, by exercising his senses of seeing and hearing with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.</p> <p>6. Omission to Ring Bell or Sound Whistle at Crossing, not Sufficient to Authorize Recovery, When.</p> <p>The omission to ring the bell or sound the whistle at a public crossing is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, by the exercise of ordinary care, might have avoided the accident.</p> <p>7. When Undisputed Pacts and Circumstances Show Injury Might Have Been Avoided, Negligence a Question of Law.</p> <p>Where the undisputed facts and circumstances show, that by the exercise of ordinary care a party might have avoided injury, in such case the question of negligence becomes a matter of law merely, and the court should so charge the jury.</p>

<p>CONSTITUTIONAL LAW.</p> <p>Douglass, Voorhees and Donahue, JJ.</p> <p>1. Act 93 O. D. 660, is Local and Constitutional.</p> <p>The act of April 26,1898, 93 O. D. 660, in so far as it prescribes and limits the compensation of county officers, the operation of which is expressly limited to Holmes county, relates to a subject local in its nature and*therefore does not conflict with Art. 2, Sec. 26 of the constitution of this state, requiring uniform operation of general laws.</p> <p>2. Contingency — Submission to Vote Does not Invalidate.</p> <p>The contingency named in Sec. 13 of said act, “ that if upon such election a majority of the votes cast upon said proposition shall be in favor of a salary law, this act shall take effect and be in force from and after the first day of January, 1899, but if a majority of said votes cast on said proposition be against a' salary law then this shall be void ” does not make said act invalid. This submission by the legislature to a local constituency oí a question affecting their local interests does not render such act invalid, although by its terms it was to take effect only after it should be approved by a majority of the popular vote at such election.</p> <p>í General Rule as to Contingent Laws.</p> <p>The power of the general assembly to pass laws cannot be delegated by them to any other body or to the people, but a valid statute can be passed to take effect upon the happening of a future event whether certain or uncertain : (a) Laws may be absolute, dependent upon no contingency, or they maybe subject to such conditions as the legislature may impose, (b) No valid reason appears why a vote of the people in favor of a law should be excluded from the number of those firture contingent events upon which it is provided that a law shall take effect, (c) While power to make the law cannot be delegated, yet, authority may be conferred as to its execution under and in pursuance of the law. In such event the contingency of. a popular vote becomes the law’s appointed means of determining a result which the law declares and enacts shall be the contingency of its operation. Making the operation of the láw depend upon a popular vote is a part of the law itself, and thus putting it into operation is the legislative will on the subject. It is the law that makes the vote, and not the-vote that makes the law.</p> <p>4. Presumption is in Favor oe- Validity oe Law.</p> <p>The presumption is always in favor of the validity of a law ; and it is only when there is a clear usurpation of a power, or a manifest assumption of authority, or a clear incompatibility between the constitution and the law, that judicial tribunals will refuse to execute it.</p>

<p>Heard on Error.</p>

<p>HOMESTEAD — LIFE ESTATES.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1 Purpose oe Sec. 5438, Rev. Stat.</p> <p>The purpose of Sec. 5438, Rev. Stat., exempting from execution a homestead) not exceeding in value $1,000, is to save to unfortunate debtors who have families, a place where they may live. The property set off is not thereby relieved from being subjected to the payment of a judgment to the extent that it never can be so used, but is relieved only while occupied by debtor’s family as a homestead.</p> <p>2. Allowance Out op Life Estate.</p> <p>The purpose of Sec. 5438, Rev. Stat., providing for homestead exemption not exceeding in value $1,000, is as well subserved to one holding a life estate in the whole property by setting off r.n amount the fee simple title to which is worth $1,000, as it would be if the debtor owned a fee simple in the property. In neither case could any benefit be derived by the debtor beyond_his own life.</p>

<p>Heard on Error.</p>

<p>NEGLIGENCE — AVERMENTS AND PROOF.</p> <p>Douglass, Voorhees and Donahue, JJ.</p> <p>Negligence — Necessary Averments and Proof.</p> <p>In an action to recover from a railroad company for personal injuries received by a brakeman in consequence of negligence in the loading of cars, which negligence was the proximate cause of the injury, the plaintiff must aver and prove: (1) That the loading was negligently done. (2) That the company had, or should have had knowledge thereof. (3) That the employe did not know of the negligence. And if these propositions are not affirmatively established in such a way that the record will show that there is evidence tending to establish them, it is the duty of the court to instruct the jury to return a verdict for the defendant. .</p>

<p>CHATTEL MORTGAGES.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Whether Interested Person can Act, Quaere ?</p> <p>A party to a deed or mortgage cannot act as an officer to take the acknowledgment of such deed or mortgage. Whether a party who has an interest in the property mortgaged or in the debt secured by such mortgage, can act as an officer in the acknowledgment of such instrument, quaere ?</p> <p>2. Notice oe such Interest as Mortgagee may have.</p> <p>A chattel mortgage regular upon its lace and appearing to be properly executed, is, when recorded or filed, notice of the interest of the mortgagee therein, notwithstanding there may be a hidden delect or the mortgagee’s interest may not be as stated in the affidavit.</p>

Heard on Error. cited: The discharge in bankruptcy shall release a bankrupt from all of Ms provable debts, except such as (1) * * * (2) Are judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another. Bankruptcy Act (1898), Sec. 17. In order that the judgment shall not be released, the injury to the person or property must have been wilful and malicious.

Heard on Error. cited: The motion of the defendant, George H. Thomson, to discharge and dismiss the action, should be overruled. 1. Because he has entered his appearance to the action, by calling in question the jurisdiction of court and asking the court to decide upon the sufficiency of the allegation upon which the action is founded. He thus questions the jurisdiction of the court over the subject matter and asks it to decide an issue upon the merits of the action.

<p>Heard on Error.</p> <p>cited:</p> <p>Measure of recovery- 2 Phillips Insurance, Sec. 1226; Richards Insurance, Sec. 112.</p> <p>Action in name of real party in interest. Section 8993, Rev. Stat. and 4995, Rev. Stat.; Davis v. Harness, 38 Ohio St.' 397; Protection Ins. Co. v. Wilson, 6 Ohio St. 553, 563.</p> <p>A policy made in the name of a particular person “ for whom it may concern,” or with any other equivalent clause, will be applied to the interest of the party or parties for whom it is intended by the person effecting the insurance if such party has authorized its being made beforehand or subsequently adopts it; and parol evidence is admissible to show to whose benefit the insurance was intended. 1 Phillips Insurance, Sec. 363; .Richards Insurance, Secs. 131, 132; Protection Ins. Co. v. Wilson, 6 Ohio St. 553; Story Agency, Sec. 161; Rider v. Insurance Co., 20 Pick. 259.</p> <p>The language “ all shipments belonging to them, or as agents ” is equivalent to “ for whom it may concern.” Hooper v. Robinson, 98 U. S. 528; 1 Phillips Insurance, Sec. 409; Turner v. Burrows, 8 Wend. 144; Burrows v. Turner, 24 Wend. 276; Sunderland Marine Ins. Co. v. Kearney, 16 Adol. & El. 925; Shaumat Refining Co. v. Insurance Co., 12 Gray, 540 ; Farrow v. Insurance Co., 18 Pick. 53; Davis v. Bo'ard-man, 12 Mass. 80, 83; Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606 [6 Am. Rep. 146]; Daniels v. Insurance Co., 5 Fed. Rep. 425.</p> <p>It is of no consequence that the Walsh-Upstill Company did not inform Hutchinson & Company that this insurance was for the benefit of the consignee. Mechem Agency, Sec. 796; Huntington v. Knox, 7 Cush. 371, 375; Davis v. Boardman, 12 Mass. 80, 83; Daniels v. Insurance Co., 5 Fed. Rep. 425.</p> <p>The Walsh-Upstill Company’s failure to inform Hutchinson & Company for whom this insurance was obtained did not amount to a concealment. 1 Phillips Insurance, Secs. 568, 571, 585; Nicoll v. American Ins. Co., 3 Woodb. & M. (C. C.) 529.</p> <p>It is not necessary, under such a policy, that the holder of the policy notify the insurer whether it is insuring as principal or as agent. This is a matter for the insurer to make inquiry concerning, if he desires to be informed, and if he fails to inquire, the holder of the policy is not required to give information upon the subject, nor is it guilty of concealment because it fails to do so. Hooper v. Robinson, 98 U. S. 528, 539 ; Davis v. Boardman, 12 Mass. 80, 83; Hale v. Burr, 12 Mass. 86, 88.</p> <p>Papers to be taken by the jury. Railroad Co. v. McCamey, 5 Circ. Dec. 631 (12 R. 543).</p> <p>Interrogatories for the jury. Ohio Rev. Stat., Secs. 52, 101; Sun Oil Co. v. Insurance Co., 8 Circ. Dec. 145 (15 R. 355); Union, etc., Ins. Co. v. McMillen, 24 Ohio St. 67; Manhattan Ins. Co. v. Filis, 32 Ohio St. 388.</p>

cited: The court is not bound to submit a case to the jury simply because the plaintiff alleges in a petition that some act or omission is negligent. There must be some proof to support it. In this case there was none. Mad River & R. E. R. R. Co. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]; Rake Shore & M. S. Railroad Co. v. Knittal, 33 Ohio St. 468.

<p>WILLS.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Bequest — Conveyance—Eee Simple and Uiee^Estate.</p> <p>A bequest “ I give and devise to my beloved husband * * ® my real property ” (describing it) “ out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term of his natural life ” conveys an estate in fee simple in the property first mentioned and a life estate in the balance.</p> <p>2. Words Used Indicate “Distinction — Section 5970, Rev. Stat.</p> <p>The words, in such will, “ out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken ” clearly indicate a distinction between the devises; and, under Sec. 5970, Rev. Stat,, providing that all the estate which testator possesses shall pass unless it clearly appears that he intended to convey a less estate, it can not be said that testatrix in this case clearly intended to convey less than a fee simple.</p> <p>3. Word “ and ” not Equivalent to “ and Also.”</p> <p>The word “ and” as used in the devise above.'quoted, is not equivalent to “ and also.”</p> <p>4. Presumption as to Intention oe Testatrix.</p> <p>It may also be presumed, in construing the will in question, that testatrix intended to bequeath to her husband something of substantial value and the fact that a life estate in the property first bequeathed, would have been unprofitable and valueless to him, should be considered.</p> <p>5. General Legacies — Paid Out of Personal Property.</p> <p>All general legacies are to be satisfied out of personal property before a resort can be had to real estate unless otherwise directed by the will.</p> <p>6. Use and Consumption of Personal Property.</p> <p>A bequest “ I give and bequeath to my beloved husband so much of my personal property as he may desire to use absolutely in addition to the provision made for him,” etc., conveys the use of all personal property after payment of debts, costs, expenses and legacies, i. e., the right not only to the income but so much of the principal as may be necessary for reasonable comfort and support.</p>

<p>ACCIDENT INSURANCE.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Accident — Failure to Meet Premiums.</p> <p>An accident policy, issued to a railway engineer March. 28,1900, upon a stipulated premium per year, to be paid in four equal installments, for which he executes an assignment of part of his wages for April, May, June and July, conditional that the payments are premiums for consecutive periods of two, three and five months, and each shall apply only to its corresponding insurance period, is in effect a policy for a year if all the payments are made. The first installment pays to May 28, the second to July 28, the third to October 28, and the four for the balance of the year. Therefore, the first payment only having been made, no recovery can be had by the insured for an injury happening May 29, where it appears that he quit his work May 17 and collected his salary in full for that month, notwithstanding the May installment, if left with the railway company, would not have been paid until June 16, the company paying on the 15th for the preceding month.</p> <p>2. Agent’s Knowledge op Other Insurance.</p> <p>Where an agent soliciting accident insurance, and drawing the application for a policy, has full knowledge and in his own writing states that the applicant has other insurance, and issues the policy to the applicant, the fact of other insurance will not be permitted to defeat a claim thereon.</p>

<p>HEARD ON ERROR.</p> <p>cited :</p> <p>An action to recover compensation for lands taken for public use must be brought by the owner of the land at the time the action is commenced. Pittsburgh & W. Ry. Co. v. Perkins, 49 Ohio St. 326, 333 [31 N. E. Rep. 350]; Fries v. Railway Co., 56 Ohio St. 135 [46 N. E. Rep. 516]; Clarke v. Cleveland, 6 Circ. Dec. 176 (9 R. 118); Cincinnati, P. & V. Ry. Co. v. Davis, 10 Circ. Dec. 745 (19 R. 589).</p> <p>Elizabeth Webber possessed all the rights of Jacob Webber and was therefore, the only proper person who could have brought this action Railroad Co. v. Robbins, 35 Ohio St. 531; Warner v. Tanner, 38 Ohio St. 118,120; Railroad Co. v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175]; Railway Co. v. O’Harra, 50 Ohio St. 667, 678 [36 N, E. Rep. 14],</p> <p>The owner has twenty-one years from the time of the taking of his land in which to bring an action to recover compensation therefor'. Section 4977, Rev. Stat., gives to a claimant twenty-one years in which to bring an action to recover the possession of real estate wrongfully withheld from him. See, also, Dane v. Kennedy, 13 Ohio St. 42, 46; Tootle v. Clifton, 22 Ohio St. 247, 252 [10 Am. Rep. 732 ]; Thomason v. Day ton, 40 Ohio St. 63, 68.</p> <p>Municipal corporations áre subject to the operation of the statute of limitations in the manner and to the same extent as natural persons. Cincinnati v. Evans, 5 Ohio St. 594; Elster v. Springfield, 49 Ohio St. 82 98 [30 N. E. Rep. 274]; Hartman v. Hunter, 56 Ohio St. 175, 179 [46 N. E. Rep. 577]; Mott v. City of Toledo, 7 Circ. Dec. 216 (17 R. 472).</p> <p>The city having abandoned the proceedings to appropriate the land by its failure to comply with the order of the probate court within the time provided by the statute governing the same,-it lost whatever rights it had secured by virtue of the appropriation proceedings. It had no right to take possession of the land sought to be appropriated subsequent to the period stated in the order of the probate, court without the consent of the owner. However, having taken possession without such consent, the owner, if he so elected, could have maintained ejectment proceedings and ousted the city therefrom. Dillon on Municipal Corporations, Secs. 611 and 613; Elliott on Roads and Streets, Secs. 130» 242; Ryan v. Hoffman, 26 Ohio St. 109, on page 120.</p> <p>The owner having elected to bring an action for compensation, she could sue for the amount of the award in the appropriation proceedings or have the damages assessed as of the time of entry of the city upon the land. Toledo v. Groll, 1 Circ. Dec. 441 ( 2 R. 199). (Aff. by S. C., 23 Bull. 220.)</p> <p>A dedication cannot be based upon presumption. There must be facts shown from which a dedication can be fairley inferred. Those facts must be external and unequivocal, such facts as clearly indicate an intention to dedicate. The intention which must be shown to establish a dedication must be clear and unequivocal. It cannot be left to presumption or inference; but must be established clearly and without question. Elliott on Roads and Streets, Sec. 156; Eongworth v. Cincinnati, 48 Ohio St. 637, 645 [29 N. E- Rep. 274]; Millikin v. Bowling Green, 6 Circ. Dec. 483 (9 it. 493); Cherry v. Howe, 9 Circ. Dec. 131 (17 R. 246) ; Toledo v. Converse, 11 Circ. Dec. 468 (21 R. 239); Bass & Eake Co. v. Hollenbeck, 5 Circ. Dec. 242(11 R. 508.); Washburn on Easements, page 205; Case v. Favier, 12 Minn. 48. Mere lapse of time alone not sufficient. Penquite v. Eawrence, 11 Ohio St. 274.</p> <p>Even though the owner consent to the entry by the city, still that would not deprive him of the right to recover compensation for the land taken. Penn. Ry. Co. v. Platt, 47 Ohio St. 366, 382 [ 25 N. E. Rep. 1028] ; Goodin v. Canal Co., 18 Ohio St. 169, 179 [98 Am. Dec. 95].</p> <p>However much the opening and widening of Niagara street would benefit the remaining property of the owner, he would still be entitled to recover for the land actually taken. Cincinnati, E. & N. Ry. Co. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Youngstown v. Moore, 30 Ohio St. 133.</p>

<p>FIDELITY BONDS.</p> <p>Hayues, Parker aud Hull, JJ.</p> <p>False Material Reprenentations in Obtaining Fidelity Bond.</p> <p>In an application to a fidelity and guaranty company for an indemnifying bond guaranteeing the faithful performance of duty by an agent of a company requiring the bond, answers to questions as to the agents having previously made application to another indemnity company and as to -whether the same was refused, etc., are material and vital, being representations with respect to .matters about which the defendant company had a right to be informed as affecting the hazard involved in giving the bond. False answers to such questions by the applicant, and with knowledge thereof by the party for whose benefit the bond is required, render the same invalid.</p>

<p>HEARD on Error.</p>

<p>ASSESSMENTS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Presumption in Pavor or Public Files or Records.</p> <p>The presumption from a petition for a' street improvement accompanied by a resolution ordering the improvement, identified by the city clerk as original papers, and appearing to have been duly recorded, together with memorandums on the backs of the papers indicating, in proper continuity, the action of the council thereon, is sufficient to impose the burden of proof upon persons or property owners who, in an action to enjoin the assessment, deny having signed the petition. In the absence of evidence impeaching such records or files, they should be sustained,</p> <p>2. Waiving Jury not Fatal Irregularity.</p> <p>The fact that a jury is waived in proceedings under Secs. 22-32, Rev. Stat., ei seq., to appropriate certain property through which the city has been petitioned to open and extend a street by the property owners thereon, is not such an irregularity as to invalidate the award made by the probate judge to whom the question of compensation was submitted, especially where it does not appear that there was any fraud, collusion or unfairness in the transaction, that the award is excessive, or that the complainants were prejudiced in the slightest degree. Whether there is any irregularity in such a proceeding, quaere?</p> <p>3. Failure'to Question such Method Estops.</p> <p>Where no question is raised as to such proceedings either by the city or the persons from whom the property was appropriated, but both seem contented with the award, and the city pays the award and the owners accept the same and the city takes possession of the land and holds the same, the petitioners for the improvement cannot be heard to complain, even if the proceedings were irregular, in the absence of averment oi fraud or prejudice.</p> <p>4. City Acts as Trustee — Good Faith Required.</p> <p>Where a city brings an appropriation proceeding in the probate court against the owners of the property sought to be appropriated, in conformity to a ■ petition therefor and asking that the costs and expenses thereof be assessed against the petitioners as above stated, the city acts in the capacity of a trustee for such petitioners to acquire such property. Therefore, it devolves upon the city to exercise good faith to preserve and protect the rights of the petitioners.</p> <p>5. Burden or Proor as to Benerits.</p> <p>Where it is averred by the plaintiffs in an action to enjoin assessments for a street improvement that they are not benefited by the improvement, the introduction of the petition for the improvements signed by the plaintiffs and setting forth that they believe and acknowledge that their properties will be benefited thereby, casts the burden on them to prove the failure of benefits. Whether it estops them from such declaration, quaere?</p> <p>6. Assessment Sustained — Estoppel—Contract.</p> <p>Where the improvement petitioned for is one which the council has power to legislate for and make, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed in accordance with Sec. 2267, Rev. Stat., this is sufficient to make the assessment valid; and whether the petitioners are bouud by contract or estoppel is not material. The court is, however, of the opinion that petitioners are estopped, and this even though it may turn out to be an agreement invalid because the city was not authorized to enter into it; that it is not necessary for the city to invoke the rule in Lewis v. Symmes, 61 O. S. 471.</p>

Heard on Error. cited. 1. Mental pain and suffering when accompanied by physical injury is recognized by all courts as a proper subject of damage. 8 Am. & Eng. Ency. Raw (2 ed.), 658, 662, 666, 667, 668, 669; Black Law & Practice in Accident Cases, Sec. 281. _ 2. What constitutes bodily injury. Warren v. Railroad Co., 40 N. E. Rep. [163 Mass. 484 ]; Consolidated T. Co. v. Eamberton, 36 Atl. Rep. 300 [86 N. J. R. 297]; Reach v. Reach, 33 S. W. Rep. 703 [11 Tex. Civ.

<p>Heard on Error.</p>

<p>Heard ON Error.</p> <p>cited:</p> <p>1. Jurisdiction of justices of the peace in attachment. Kelly v. Flanagan, 11 Circ. Dec. Ill (20 R. 891); Collins v. Bingham Bros., 12 Circ. Dec. 825 (22 R. 588 ); Court Index, September. 26, 1901.</p> <p>cited :</p> <p>1. Motion. Smith v. Hoover, 89 Ohio St. 249.</p> <p>2. Jurisdiction of justices of the peace in attachment. Watkins v. Schlecter, 9 Dec. 590 (7 N. P. 42).</p>

<p>COPORATIONS — PROMOTERS—FRAUD.</p> <p>Wilson, Sullivan and Summers, JJ.</p> <p>1. Organization or and Sale or Property to Corporation.</p> <p>A person as owner, part owner or agent, coupled with an interest in ihe proceeds, of a patent right or other property, may legally form a corporation or other association and sell the patent right or other property to it for a price agreed upon between them, regardless of the profits to be made thereby, provided no false representations are made.</p> <p>2. Promoter Deeined — Duty.</p> <p>A promoter is one who organizes a corporation and as such occupies a fiduciary relation thereto. He is bound to fully disclose his relations to the property which is the subject of the enterprise. Any suppression, concealment or misrepresentation of material facts connected therewith is fraud upon the corporation.</p> <p>3. Liability or Promoter ror Fraud.</p> <p>Where a promoter, having made a secret arrangement with the owner of a patent right for the sale of the same for $3,000,'conceals such fact, and induces other persons to join with him in forming a corporation for its purchase for $15,000, claiming that to be the lowest figure for which the patent right can be purchased, and investing them, by his conduct, with the belief that he is interested in the enterprise with no other expectation of profit to himself than such as shall accrue to all stockholders therein, while in fact he is making a large profit by the sale, he is liable as a trustee for the profits thus fraudulently obtained.</p> <p>4. Fraud Must be Proved — Suspicion not Surricient.</p> <p>Fraud must be proved by clear and conclusive evidence. Hence the fact, that a stockholder is active in inducing persons to take stock in a corporation to purchase and manufacture a patented article, as above stated, together with other acts from which a suspicion of his participation in the fraud practiced would seem to be justified, is not sufficient to hold him jointly liable with the promoter, in the absence of evidence showing his knowledge of the fraudulent purchase.</p> <p>5. Remedy or Persons Fraudulently Induced to Become Stockholders.</p> <p>Persons fraudulently induced to become stockholders in a corporation through the misrepresentation of the promoter thereof, may rescind the contract of subscription to stock and recover their subscriptions, offer t'o restore the stock and sue in equity for a rescission of the contract and recover the money paid by them, or join in an equitable action, for an accounting, to charge the promoter as a trustee of the profits fraudulently retained by him.</p>

<p>SCHOOLS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Manual Training, not Public Schools.</p> <p>A manual training and polytechnic school, founded upon private donation, accepted under Secs. 4095 to 4104, Rev. Stat., relating to trust funds for such purposes, is not a public school in the sense that common schools, established and supported by the general common school system, are public schools.</p> <p>2. Rule as to Acceptance oe Trust Funds.</p> <p>Under Sec. 4096, Rev. Stat., relating to trust funds for endowment, maintenance or aid of universities, colleges or institutions of learning, the directors are at liberty to reject a proposed donation if in their opinion the terms are unlawful or for any reason unacceptable, but if donations are accepted, they must be accepted upon terms prescribed.</p> <p>3. Authority to Regulate Such Schools.</p> <p>Tlie authority to regulate educational institutions founded upon endowments, prescribe the course of study and fix terms and conditions upon which students may enter, is placed in the directors and is found in Sec. 4099, Rev. Stat. The directors are authorized to delegate part of their authority to a faculty, hut not to any independent board of education.</p> <p>4. Authority oe Directors to Make Rules.</p> <p>It is within the discretion of the board of directors to make such rules and regulations as they may deem advisable so long as they do not interfere with some positive right (for example, that of free tuition) existing in favor of the public. And courts are not authorized to interfere with this discretion because it may seem that the policy adopted by the directors is unwise.</p> <p>6. Rule Valid Though Excluding Certain Pupils.</p> <p>A rule adopted by the directors of such school “ that all regular students entering the ninth grade of the public schools, who shall elect manual training, must pursue the correlative course as prescribed by this board under the instruction of the teachers of the polytechnic school,” is not unreasonable or unjust, or a denial of the clear right of pupils, though it discriminates against or has the effect of excluding members of the high school who belong to the ninth grade for the first half of the freshman year, the course of study being such as to make it impracticable for such students.</p>

<p>Heard on Error.</p> <p>cited:</p> <p>1. That the railway company, defendant in error, on the facts stated in its petition was entitled to the relief sought, can hardly be seriously disputed; injunctions of this character have been frequently granted. Nashville, C. & St. R. By. Co. v. McConnell, 82 Fed. Rep. 65.</p> <p>2. While the force of the maxim that “ He who comes into equity must come with clean hands ” is well established within certain limits, a qualifying principle, as well settled as the maxim itself, must be recognized, that the iniquity which will bar a complainant must be directly connected with the matter in litigation. 11 Enc. of Raw (2 ed.), p. 164; on the same point, Pomeroy Equity Juris., Sec. 899 ; Bateman v. Far-gason, 4 Fed. Rep. 432; Strait v. National Harrow Co., 51 Fed. Rep. 819 ; Bonsack Machine Co. v. Smith, 70 Fed. Rep. 383 ; Beach Eq. Jur., Sec. 16; Chas. E. Wisewall Estate, 74 Fed. Rep. 802; Dennehy v. Mc-Nulta, 86 Fed. Rep. 825, 827; EaFayette Bridge Co. v. Streator, 105 Fed. Rep. 729, 731; Chicago v. Stockyards Co., 45 N. E. Rep. 430 [35 R. R. A. 281; 164 Ill. 224]; Equitable Gas R. Co. v. Coal Tar Mfg. .Co., 3 Atl. Rep. 108 [65 Md. 73, 84]; 67 Pa. St. 166; Mossier v. Jacobs, 66 Ill. App. 571; National Distilling Co. v. Importing Co., 56 N. W. Rep. 864 [39 Am. St. Rep.-902 ; 86 Wis. 352, 355]; Sylvester , v. Jerome, 34 Pac. Rep. 760 [19 Colo. 128]; Wright v. Wright. 26 Atl. Rep. 166 [51 N. J. Eq. 475]; Eiverpool & E. & G. Ins. Co, v. Cline, 88 Fed. Rep. 160; Leonard v. Rutland (Vil.), 28 Atl. Rep. 885 [66 Vt. 178, 182]; Foster v. Winchester, 9 So. Rep. 83 [92 Ala. 497, 501]; 11 Tenn. 124, 126; Nester v. Brewing Co., 29 Atl. Rep. 102 [161 Pa. St. 473, 483 ; 24 E. R. A. 247; 41 Am. St. Rep. 894]; 50 Ga. 421, 422.</p>

<p>GUARDIAN AND WARD — ACCOUNTS—BONDS—ACTIONS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. No Cause Accrues on Guardian’s Bond Untie Account is Fired and Settlement.</p> <p>No cause of action on the bond of a guardian accrues in favor of his ward until the filing of the guardianship account and the settlement of the estate in the probate court.</p> <p>2. Facts Which Fail to Give Common Pleas Jurisdiction.</p> <p>The probate court is given exclusive jurisdiction under Sec. 524, Rev. Stat., to appoint and to remove guardians, to direct and control their conduct and to settle their accounts. Therefore, the common pleas obtains no jurisdiction of an action on the bond of a guardian to compel an accounting and payment of funds belonging to his ward, from the fact- that the guardian died without filing his account and left no books of account, or memoranda from which his indebtedness could be ascertained.</p> <p>3. Allegation as to Jurisdiction — Conclusion oe Raws.</p> <p>An allegation in a petition in an action upon a guardian’s bond that “an accounting cannot be obtained from or with such guardian in the exercises of the power and jurisdiction of the probate court in respect to said estate, and such jurisdiction is ineffectual for such purpose,” states a conclusion of law and not of fact to be taken as admitted upon demurrer.</p>

<p>COURTS — JUDICIAL NOTICE — SUNDAY*</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>1. Municipal Courts Take Judicial Notice of Ordinances.</p> <p>Municipal courts take judicial notice of the ordinances of the municipality in prosecutions for the violation of the same.</p> <p>2. Same Rule in Reviewing Court.</p> <p>Upon a petition in error to reverse the judgment of the municipal court assessing a penalty for the violation of an ordinance, the reviewing court occupies the same relation to the ordinance as the municipal court, and will take judicial notice of the ordinance under which the conviction was had.</p> <p>8. Ordinance Against Common Labor — What it Must Contain,</p> <p>An ordinance prohibiting common labor or opening places of business on the first day of the week, commonly called Sunday, which does not except works of necessity and charity, is invalid, and a conviction under it will he reversed.</p>

<p>LIS PENDENS.</p> <p>Caldwell,'Hale and Marvin, JJ.</p> <p>1. Case is Lis Pendens During Whole oe Term.</p> <p>A case is in court, lis pendens, during the whole of the term at which judgment' is rendered and not simply to the time when the judgment is rendered.</p> <p>2. Rule Applied.</p> <p>Under the forgoing rule, a suit for divorce and alimony, restraining the transfer of property by injunction, Which was dismissed, but at a later term, upon motion for rehearing filed at the same term, reheard and judgment prayed for granted, was lis pendens from time of dismissal to filing of motion for rehearing.</p>

<p>Quo Warranto Demurrer to Petition.</p>

<p>Heard on Error.</p>

<p>NEGLIGENCE — COMPROMISE—EVIDENCE.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Failure to Speak Tends to Impeach Subsequent.</p> <p>The fact that a man does not speak when he is naturally expected to speak or when it is his duty to speak, tends to impeach his testimony when he after-wards testifies to facts that were not stated under such circumstances. Rule applied to failure to include in a statement immediately following an injury to a railroad employe, that a hand-hold on the car was defective or came off.</p> <p>2. Failure to Establish Custom oe Signaling.</p> <p>Unless it is made to appear that it was the custom of a railway company, in the use of a pony engine or “pusher,” in helping trains over a grade, to give a signal when about to cut such engine off, thereby causing more or less of a jerk to the train, evidence that no such signal was given does not establish negligence on the part of the railway company, unless it appears that it was done in an unusual manner.</p> <p>3 Compromise — Verdict Against Weight oe Evidence.</p> <p>Where it appeared that an employe, after an injury, was sent to a hospital by a railway company, for medical attendance, and afterwards accepted a certain sum of money and signed a receipt in full for all claims against the company growing out of the accident, and afterwards remained in their employ for. over two years without complaint, accompanied by testimony as to his mental soundness when he signed the receipt, as opposed to the employe’s own testimony, in a suit brought four years after the accident, a finding against the claim of settlement, was held to be against the weight of the evidence.</p>

<p>Heard on Error.</p> <p>cited:</p> <p>As to the construction of Revised Statutes, Sec. 7240. Authorities gathered in Nobles v. Georgia, 168 U. S. 398, 406 [18 S. Ct. Rep. 87] ; State v. Reed, 7 So. Rep. 132 [41 La. Ann. 581] ; Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 557; 1 Bates’ Digest, column 895; State v. Arnold» 12 la. 483; 16 Am. & Eng. Enc. of Law (2 ed.), 622, n. 2; State v. Riesewetter, 45 Ohio St. 254, 260, 261 [12 N. E. Rep. 807] ; Gandolfo v. State, 11 Ohio St. 114, 118; People v. Mcllvaine, 26 N. E. Rep. 929 [125 N. Y. 596; 18 Am. St. Rep. 820] ; People v. Hettick, 58 Pac. Rep. 918 [126 Cal. 425] ; Raros v. Commonwealth, 84 Pa. St. 200, 211.</p>

<p>Appeal by DEFENDANTS.</p>

<p>Heard on Error.</p>

<p>Appeal.</p> <p>cited:</p> <p>1. Jurisdiction of the insolvency court of Cuyahoga county, Ohio, as fixed by statutes. 92 O. B.'475; Secs. 548-17, 548-32; Secs. 6835, 6358, Rev. Stat.; 93 O. B. 132.</p> <p>2. The question of the exclusive right, power and jurisdiction of the probate court to administer estates of insolvent debtors has been firmly settled by a long line of decisions of the Supreme Court and inferior courts of this state. Hallowell v. Bayliss, 10 Ohio St., 536; Thomas v. Talmage, 16 Ohio St. 433; L/indemann v. Ingham, 36 Ohio St. 1; Dwyer v. Garlough, 31 Ohio St. 158; Johnson v. Sharp, 31 Ohio St. 611 [27 Am. Rep. 529]; Betz v. Snyder, 48 Ohio St. 492, 502 [28 N. E. Rep. 234; 13 L,. R. A. 235]; Clapp v. Banking Co., 50 Ohio St. 528, 535, 538 [35 N. E. Rep. 308]; Havens v. Horton, 53 Ohio St. 342 [41 N. B. Rep. 253]; Mercer v. Cunningham, 53 Ohio St. 353, 361 [41 N. B. Rep. 788]; Sayler v. Simpson, 45 Ohio St. 141 [12 N. B- Rep. 181]; Farwell v. Dry Goods Co., 5 Circ. Dec. 303, (11 R. 100); Jones, In re, 5 Dec. 233 (5 N. P. 102); Ad lard v. Stockstill, 5 Dec. 493 (5 N. P. 487).</p> <p>3. The purpose of Secs. 6343 and 6344, Rev. Stat. Hallowell v. Bayliss, 10 Ohio St. 536, 543, 544; Shorten v. Woodrow, 34 Ohio St. 645, 653; Blandy v. Benedict, 42 Ohio St. 295, 299; Graham Dumber Co. v. Julien, 5 Dec. 167 (7 N. P. 391); Wachtel v. Campbell, 9 Dec. 572 (7 N. P. 507); Spangenberg v. Schwartz, 9 Re. 244 (11 Bull. 283); Callahan v. Ice & Refrigerating Co., 7 Circ. Dec. 349 (13 R. 479); Wilder v. McDonald, 63 Ohio St. 383, 393 [59 N. E. Rep. 106].</p>

<p>Heard on Error.</p>

<p>ELECTIONS — LOCAL OPTION — TRIAL.</p> <p>Uaubie, Burrows and Cook, JJ.</p> <p>1. Form of Ballot at Local Option Election.</p> <p>The ballots used at an election under Secs. 4364-24 and 4864-25, Rev. Stat., to determine whether or not the sale of intoxicating liquors as a beverage shall be prohibited in the township, need not conform to the requirements of either Sec. 2966-32 or Sec. 2948, Rev. Stat., as to the form of the ballots. A ballot but one inch wide and without any of the requirements of the Australian ballot law, simply with the words “ for the sale” or “against the sale ” written or printed upon it, is sufficient in form at such election.</p> <p>2. Prosecuting Attorney Required to Elect as to Sales.</p> <p>Where upon a trial on an indictment for selling intoxicating liquors as a beverage in a township where such selling is prohibited the evidence tends to show a number of sales to different persons upon the same night, it is the duty of the court, upon motion of the defendant, at the conclusion of the testimony for the state, to require the prosecuting attorney to elect upon which sale he relies for conviction.</p> <p>3. Erroneous Charge, as to Burden of Proof.</p> <p>In such case, it is error for the court to charge the jury, “ that the record of the township trustees showing the majority of the votes, cast at an election, held for the purpose of determining whether or not, intoxicating liquor should be sold as a beverage in the township, were against the sale, made a prima facie case that the sale was prohibited and that it devolves upon the defendant to show by a preponderance of the evidence that the election was illegal,” The burden is upon the state in such case to show beyond a reasonable doubt that the election was held in conformity to the statute.</p>

The plaintiffs are assignees of a finding of court that the assignors w,ere the owners of a valid claim against the unincorporated Catholic congregation known as the Church of the Atonement.

<p>Heard ok Error.</p>

<p>NEGLIGENCE — PROXIMATE CAUSE.</p> <p>Daubie, Burrows and Cook, JJ.</p> <p>1. Failure to give Statutory Signals — Not Proximate Cause.</p> <p>The failure to give the statutory signals, by bell and whistle, of the approach of a train to a highway crossing cannot be a ground for recovery in an action for wrongful death where it appears that the train, after passing the crossing and several hundred feet therefrom, struck the decedent as she attempted to cross the tracks on the private grounds of the company, where people were in the habit of crossing.</p> <p>2. Erroneous Application oe Rule of Conduct after Discovery os Danger.</p> <p>In such case, it was error for the court to charge : “If the decedent in this case was negligent in going upon the .track in the manner and at the time she did, yet, if the engineer in charge of the train, ought, by the exercise of ordinary care, to have seen the decedent in her perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to have avoided the collision, and failed so to do, it would be negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”</p> <p>8. Where Contributory Negligence Appears — Duty to Direct1'Verdict.</p> <p>In such a case, if the undisputed facts clearly establish negligence on the part of the decedent in failing to look and listen for the approaching train, it becomes the duty of the court to instruct the jury to return a verdict for the defendant.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>MORTGAGES — BUILDING AND LOAN COMPANIES — MECHANICS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Sale or Mortgage oe real Property — Misrepresentation as to Value. A purchaser of real property who, if competent ahd capable of judging of its value, examines it, cannot avoid the transaction by showing a statement Of the seller that the property is worth more than it really is, this, rule is applicable to a mortgagee of real estate, mortgagee being required to advance, at" the suit of a receiver, the full amount of a loan. , ■</p> <p>2. Rule Applied — Mortgage Sustained.</p> <p>Representations as to the value of real estate offered as security for a loan, to the effect that the property is worth $9,000 when in fact it is not worth more than $6,000, held not to amount to fraud or to vitiate mortgage,. where it appeared that the report of appraisers appointed by the loan company, showing the real value of the property, was given on the same application and it also appeared that the general manager of the loan company also examined the property. Under such circumstances the loan company cannot be said to have relied on the statements of the applicant for the loan.</p> <p>3. Representations as to Ownership — Notwithstanding Equitable Interest.</p> <p>The fact that a mortgagor, having the legal title to property mortgaged so far as the record discloses, represents that he is the sole owner thereof, notwithstanding another has an equity in it, will not defeat the mortgage where the equitable owner makes no claim of any interest therein prejudicial to the mortgagee.</p> <p>4. Agency — Power to Solicit and Consummate Loans.</p> <p>The representative of a loan company appointed to solicit subscriptions to its capital stock and collect the membership fee therefor, and who has power to solicit loans, collect fines and dues, appraise property and do everything necessary to consummate a loan, though he received a commission from the borrower by way of compensation for making the loan is not the agent of the latter, but of the company.</p> <p>5. Interest on Mechanics’ Liens.</p> <p>A loan company having contracted to pay holders of mechanics’ liens the balance due upon a building constructed by them upon the mortgaged premises, they are entitled to interest thereon from the time of completion thereof, less the amount of dues and premiums due the loan company.</p>

<p>RIPARIAN OWNERSHIP — BOUNDARIES.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Riparian Rights Pass Without Being Included in Lines.</p> <p>The title to land under the water of a navigable stream abutting a platted lot passes, to the center of the stream, with a conveyance of the lot. Unless excluded by apt and proper words, riparian rights pass without measurement of the bed of the stream and without payment therefor by the acre or otherwise, except as included in the price paid for the land on shore.</p> <p>2. Meander Line not a Boundary Line.</p> <p>The meander lines run in surveying lines bordering upon navigable rivers, are not run as boundaries, but for the purpose of defining the sinuosities of the banks of the stream and ascertaining the quantity of land conveyed.</p>

<p>CONTRIBUTORY NEGLIGENCE.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Contributory Negligence Defeating Recovery.</p> <p>There can be no recovery for the death of a person who attempted to cross a railroad track, in broad daylight, at a point where there'was an unobstructed view of the track for a mile in the direction from whence the train came, without an exercise of any of the vigilance required by law at such places, and it does not appear that anything could have been done to save such person after he was seen by servants of the railway company, notwithstanding the train may have been running at an unlawful rate of speed and though no bell or whistle was sounded.</p>

<p>BANKRUPTCY — PROPERTY—RECEIVERS.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Property Reached by Proceedings in Aid oe Execution Within Bankruptcy Act.</p> <p>Under Sec. 67f of the bankrupt act of 1898, property affected by levy, judgment, attachment or other lien within four months of filing a petition in bankruptcy shall be deemed discharged and released therefrom and held to pass to the trustee. Therefore, property discovered by a proceeding in aid of execution under Sec. 5475, Rev. Stat., authorizing the examination of a judgment debtor, and paid into the hands of a receiver within four months of the commencement of bankruptcy proceedings as aforesaid, does not pass to the judgment creditor instituting such proceedings nor give him any lien on, or right to the sáme, superior to that of the trustee in bankruptcy.</p> <p>2. Receiver Acts as Oeeicer oe Court — Compensation and Costs.</p> <p>A receiver, appointed by a state court to take possession of a fund discovered by a proceeding in aid of execution under Sec. 5475, Rev. Stat., acts as the officer of the court, and is entitled to reasonable compensation for his services and expenses as such and for costs in a proceeding instituted by the trustee in bankruptcy of the same debtor’s estate upon exception to the allowance of the receiver’s claim.</p>

<p>Heard on Error.</p>

<p>Heard on Error.</p>

<p>CONTRACTS — GUARANTY.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Rule of Construction of Contracts of Guaranty.</p> <p>A contract of guaranty like any other contract will be given that construction and effect which best accords with the intention of the parties as manifested by the terms thereof, considered in connection with the subject matter to which it relates, and the circumstances accompanying the transaction.</p> <p>2. Should Include Obligation Reasonably Embraced — No Extension.</p> <p>Guarantors should be held to every obligation reasonably and fairly embraced within their contracts, but the guaranty should not be strained beyond its obvious meaning for the purpose of enlarging the liability of guarantors.</p> <p>3. Assumption Against Continuing Guaranty.</p> <p>Unless the contract of guaranty admits of no other construction than that it is a continuing guaranty, the presumption is that it is not so intended.</p> <p>4. Rule as to Consideration of Subsequent Circumstances.</p> <p>Subsequent transactions not amounting to a modification of the contract, and not part of the concomitant circumstances, can not be considered as a part of the circumstances under consideration in formulating the terms of the contract, and hence cannot be looked to for the purpose of ascertaining the sense in which or the intent with which such terms were used; but subsequent transactions under or in pursuance of the contract, or with the contract in view, may be looked to for the purpose of discerning the interpretation the parties have put upon its doubtful provisions.</p> <p>6. Guaranty Restricted to First Loan.</p> <p>A guaranty by stockholders individually for the benefit of a corporation in these words: “We * * * hereby jointly and severally guarantee to you the payment of any and all sums of money that may be loaned to you to * * *; providing said loan shall not exceed in the aggregate $¡3,000,” is not a continuing guaranty, but is restricted to the first $3,000 loaned.</p> <p>6. Acts of Estoppel — Do not Extend Guaranty.</p> <p>While such guarantors by soliciting further loans for the corporation may have estopped themselves from claiming to have been totally relieved in consequence of credit having been given beyond the sum named, such acts do not of themselves extend the terms of the original guaranty to cover the balances due upon credits given beyond the amount named.</p> <p>7. Payments Upon Independent Loans.</p> <p>A corporation, notwithstanding the execution of a guaranty to a certain bank to pay any and all loans made by it up to a stipulated amount, has the right to make other loans from such bank and discharge them without reference to loans for which its guarantors had become bound. Hence, payments upon the later loans are not necessarily, or as a matter of law, required to be credited upon the loans guaranteed.</p>

<p>Heard ON Error.</p>

<p>TRADE SECRETS — DAMAGES—JURISDICTION.</p> <p>Douglass, Voorhees and Donahue, JJ.</p> <p>1. Trade Secret Deexned.</p> <p>A trade secret is a plan or process, tool, mechanism or compound known only to its owner and those of his employes to whom it is necessary to confide it, in order to apply it to the uses intended ; and is distinguished from a patent in that as soon as the trade secret is discovered, either by an examination of the manufactured product sold or offered for sale, or in any other honest way the discoverer has the full right to use the same, while in case of the inventor, who obtains a patent, the secret is made public, and the inventor is protected by letters patent from iuiringement thereof.</p> <p>2. Rule as to Trade Secrets Known by Employes.</p> <p>The fact that the discoverer of a trade secret which he is using secretly, • communicates to an employe to better enable the latter to discharge his duties as such, does not authorize such employe to sell it in the market, nor to sell his services with the added value of the secret; but if the employe himself knew the idea or brought the knowledge to his employer, the only property interest the employer can claim is the product of the skill, the industry and intelligence of the workman ; he does not own the idea.</p> <p>3. Ideas Evolved by Employes and Known to Others not Trade Secrets.</p> <p>The patterns and castings evolved and perfected in a tube mill by the combined skill, knowledge and experience of employes during several years, are the property of the concern, but, though there may be a certain individuality in their construction and some care taken to keep them from the public, if such articles are in general use in tube mills, if artisans in that line of business have lull knowledge of the character of the machinery and patterns used, and can readily, approximately reproduce them, they are not trade secrets, the use of which by another can be restrained by injunction.</p> <p>4 Equity wile Enjoin use of Property Wrongeueey Obtained.</p> <p>A court of equity will enjoin tbe use of patterns of one tube mill by another where they were surreptitiously and wrongfully abstracted by an employe having charge thereof and also in the employ of the latter, if brought in time, but if, when the action is brought, no further use of such patterns is contemplated, the granting of an injunction would effect no relief.</p> <p>6. Inquiry as to Damages — When Equity wiee not Retain.</p> <p>A court of equity will take jurisdiction of an inquiry of damages only where it is incidental to other relief in order to dispose of a whole controversy in one court, but when the main reason for which the aid of equity is sought has vanished, no reason exists for retaining jurisdiction for assessment of damages.</p>

<p>NEGLIGENCE — RES ADJUDICATA.</p> <p>Swing, Giffen and Jelke, JJ.</p> <p>1. Erroneous Charge as to Contributory Negligence.</p> <p>The owner of private property owes no duty to a city requiring him, in constructing his house or maintaining his water service pipes, to anticipate and provide against a rush of water from a break in a water main caused by the negligence of the city. Hence, in an action against the city for damages resulting therefrom, there being no issue and no evidence of contributory .negligence, a charge that if the acts or omissions of the property owner contributed in any degree to the injury complained of he cannot recover, is erroneous. Schweinfurth v. Railroad Co., 60 Ohio St. 215; Johnson v. Cincinnati, 11 Circ. Dec. 318 (20 R. 657), followed.</p> <p>2. Former Recovery Should be Pleaded — Rule when not Pleaded.</p> <p>A former recovery to be relied upon as an estoppel should be pleaded; if not pleaded, a petition filed by the same plaintiff together with the judgment thereon, are admissible in support of the claim that the matters in litigation were determined in another suit, but such determination is not a conclusive bar thereto, the jury having the right to find for the plaintiff if he is entitled to recover.</p> <p>3. Questions which Might have been Ditigated.</p> <p>Every question that parties might have litigated in a suit will be deemed at rest, whether actually determined or not. The fact that part of a judgment obtained by consent is in satisfaction of one cause of action and of damages accruing thereafter, does not detract from the judgment proper covering all the issues.</p> <p>4. Eeeect oe Defense oe Res Adjudicata.</p> <p>A defense of res adjudicata, sustained by evidence and considered by a jury as a bar to the action, renders the consideration of other questions unnecessary, a verdict having been found for the defendant.</p>

<p>MUNICIPAL CORPORATIONS — STREETS,</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>1. Municipal Authorities Cannot Contract to Surrender street.</p> <p>Municipal authorities are prohibited by Sec. 2640, Rev. Stat., requiring streets to be kept open and free from nuisance, from making contracts which will permit encroachments. Hence an action will lie to compel the removal of abutments of an overhead railroad bridge which encroach upon and materially lessen the width of a street, notwithstanding the same were constructed under agreement with municipal authorities.</p> <p>2. No Such Authority Coneerred by Sec. 3284, Rev. Stat.</p> <p>A railroad company, under Sec. 3284, Rev. Stat., providing that when a street or stream, etc,, shall be crossed, etc., and it becomes necessary to divert the same, the company shall restore the street or stream to its former state of usefulness, acquires no right to so occupy a street as to materially lessen its width or impair its usefulness.</p>

Heard ON Error. cited: Defendant below could not waive any rule or law of the Grand Lodge which was the substance of the contract. Leonard v. Insurance Co., 97 Ind. 299, 306; State v. Temperance Benevolent Assn., 42 Mo. App. 485; Supreme Council Am. Legion of Honor v. Green, 17 Atl. Rep. 1048 [71 Md. 268; 17 Am. St. Rep. 527]; McCoy v. Mutual Ins. Co., 25 N. E. Rep. 289 [152 Mass. 272]; Grand Lodge A. O. U. W. v. Jesse, 50 Ill.

Heard ON Error. cited: Upon the presumption, where plaintiff makes a prima facie case that the death of an insured person was occasioned by violent and external means, that such killing was accidental, and burden of proving otherwise is on . the insurance company. 5 N. Y. St. 566; Shultz v. Insurance Co., 40 Ohio St. 217, 223 [48 Am. Rep. 676]; 42 Md. 414; Insurance Co. v. Gridley, 100 U. S. 614; Fidelity & Casualty Co. v. Weise, 80 Ill. App. 499; Amer.

<p>NEGLIGENC" — MASTER AND SERVANT.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Rule as to Negligence oe Employe in Walking on Railroad Track.</p> <p>Whether a section man, having been directed by his foreman to proceed to a certain point, was guilty of negligence in walking upon the railroad track in going from one point to another to perform the duties required of him, depends upon the duty in which he is engaged, the distance he had to go, the immediate presence of the foreman under whom he was working, the rules and customs in force as to the foreman keeping watch for and giving warning to the workmen of the approach of trains, the practice of trackmen to walk upon the track in like cases, and other circumstances bearing upon the question of prudence; and the question is for the jury to determine.</p> <p>2. Employe Entitled to Care oe Foreman.</p> <p>A distinction exists in the degree of care required of a workman under the immediate supervision of a foreman and one bound to care and watch for himself. So a workman in the immediate presence of his superior, but a few rods away and under his supervision and care, may be exonerated from a charge of contributory negligence if he occupies momentarily a place of danger, though .not absolutely required to do so by the work in hand, if he proceeds in the customary manner, under the eye of his foreman and without caution from or disapproval of the foreman.</p> <p>3. Evidence oe Negligence oe Foreman in Failing to Warn Employe.</p> <p>Evidence of a custom among trackmen at work under a foreman to depend upon the latter to warn them of approaching trains in time to leave the track in safety, and of foremen giving such notice, together with proof of the negligence of the foreman in failing to give warning to a trackman on an errand up the track, of an approaching train, as in this case, notwithstanding negligence of the foreman was not charged, is competent to show want of contributory negligence on the part of the deceased in walking on the track without looking for approaching trains, although possessed of all his senses.</p> <p>4. Case Should be Submitted to Jury, When.</p> <p>On a motion to direct a verdict for the defendant in an action for negligence against a railway company, the view most favorable to the plaintiff should be taken ; and where the facts testified to are such that they cannot be said to admit of no rational inference but that of absence of negligence on the part of the railroad company, or the presence of negligence on the part of the plaintiff’s decedent, nor that plaintiff failed to furnish a scintilla of evidence on all essential points to sustain his claim, the case should be submitted to the j ury.</p> <p>5. Negligence After Observing Employe on Track — Question for Jury.</p> <p>Whether, notwithstanding the negligence of a trackman killed by a passing train while walking on a railroad track, in the line of his duty, the injury to him might have been avoided, by the exercise of ordinary care upon the part of the engineer thereof after observing, of after he should have observed the peril of deceased, is a question for the jury, the evidence being contradictory as to the engineers having been in a position to observe the deceased.</p>

Heard ON Error. contends as follows: The Wills Act oí 1840 not only abolishes the rule in Shelly’s case as to wills, but provides, “ When any lands, tenements and hereditaments are given by will to any person for life and after his death to his heirs in fee or by words to that effect, the conveyance shall be construed to vest an estate for life in such first takers and a remainder in fee simple to his heirs.” The effect of this act is plainly shown by a comparison of McFeely…

Appeal. First. Our claim is that Lorain street in question was established and opened by the county commissioners on the third day of January, 1887, at the then legal width of sixty feet. Whatever was thereafter done, if anything, to make its width sixty-six feet was by some authority other than said commissioners, and the same legal proceedings were necessary to tack on the additional six feet in width as if no street were in fact there.

cited: Telegraph companies are not insurers but are liable for loss occasioned by their negligence and cannot contract against such liability. 25 Am. & Eng. Enc. Eaw (1 ed.), 749; Telegraph Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500]. Failure to transmit a message in the form received is prima facie evidence of negligence. Telegraph Co. v. Griswold, 37 Ohio St. 301, 313 [41 Am. Rep. 500] ; 25 Am. & Eng. Enc.

Heard on Error. cited : ' 1. There is an exception to the general rule of caveat emptor arising from the duty which a lessor owes a lessee. Where there are concealed defects attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them.

cited: On motion to strike out: 1. The statute expressly prohibits a street railroad to be constructed without the consent of a majority in interest of the owners of property on the street. Roberts v. Easton, 19 Ohio St. 78, 86. 2. The consent of abutting property owners inures to the lowest bidder, by whomsoever obtained. Knorr v. Miller, 3 Circ. Dec. 297 (5 R. 609). 3. Obtaining consents by purchase. Makemson v. Kauffman, 35 Ohio St. 444, 445; Doane v. Chicago City Ry.

<p>ERROR — BILLS OF EXCEPTIONS — EVIDENCE.</p> <p>Parker, Haynes and Hull, JJ.</p> <p>1. Bilí, of Exceptions Failing to Present all the Evidence.</p> <p>A bill of exceptions from a justice of the peace in a forcible entry and detainer case certifying that plaintiff’s husband, as her duly authorized agent, served written notice to vacate her premises upon the defendant personally, that plaintiff demanded in open court that the defendant produce such notice, which the defendant refused to do, and that no other or further testimony on the question of written notice on the defendant to vacate said land ” is not sufficient to authorize a review of the question upon the weight of the evidence.</p> <p>2. Improper eor Judge to Determine Evidence Considered.</p> <p>It is not for the court to say what testimony was considered by the jury m arriving at their conclusion or what testimony bore upon a particular question, if the question as to the weight of the evidence is to be presented to a higher court for review. There may have been admissions by or conduct of the party that tended to establish the fact in dispute, and to which the jury gave weight, and the evidence may not have appeared to the conit to bear on the question. It is, therefore, essential that'the reviewing court, in such cases, have all the testimony that went to the jury.</p> <p>3. Question not Subject to Review on Error.</p> <p>Section 6610, Rev. Stat., authorizing exceptions to the opinion of the justice of the peace upon questions of law an 1 evidence in actions for forcible entry and detainer, has reference solely to the competency of the evidence and not to the weight or sufficiency thereof. Thus the question whether the notice required by statute was or was not given, having been submitted to the jury, is not subject to review on the weight of the evidence.</p> <p>4. Notice to Vacate — Prerequisite in Forcible Entry and Detention.</p> <p>Under Sec. 6602, Rev. Stat., written notice to vacate in not less than three daj'S must be served and three days must elapse as prerequisites to bringing an action in forcible entry and detention, both of which facts must be established by proof in order to entitle the plaintiff to recover. Whether such notice has been given is a question for the jury, to be determined by them along with other questions in issue, and not by the court, as in case of service of summons.</p> <p>6. Proof of Notice in Forcible Entry and Detention.</p> <p>It is not necessary to serve a notice to produce where the instrument is itself a notice, or where from the nature oí the case one party has notice th t th • other party will offer testimony as to the instrument in question. Therefore, the writt= n notice to vacate premises, required by Sec. 6602, Rev. Stat, a a prerequisite to commencing an action in forcible entry and deta ner, may be proven by parol, without any preliminary notice to produce made prior to the trial, where demand is made in open court for its production and failure to comply therewith.</p> <p>6. Copy of Notice Need not be Made or Retained.</p> <p>Section 6602 Rev. Stat., providing for the service of notice to vacate by leaving a written copy with the defendant at his place of abode, does not require iwo copies to be made in order to sustain forcible entry and det ,iner. It is immaterial to the defendant whcthei the pi intiff retain a copy of the notice in question.</p> <p>7. Failure to Produce Paper Upon Notice — Evidence.</p> <p>Where it appears from the record that the defendant in forcible entry and detainer was served personally with a written notice to vacate, as required by Sec. 6602, Rev. Stat., his failure to produce the notice upon demand therefor in open court, may be considered as evidence that its contents if produced would be against the contention of the defendant and in lavor of the plaintiff, which, when taken in connection with other evidence in the case tenis to support a verdict for plaintiff not to be disturbed by the reviewing court.</p>

<p>Heard on Error.</p>

<p>DEEDS — COUNTY PROPERTY — PARTIES.</p> <p>Caldwell, Marvin and Hale, JJ.</p> <p>1. Deed Conveying Hand in Fee to County.</p> <p>A deed of land contaiuing the usual language granting a fee, full warranties of title and reciting that it is given in consideration of the location of the county seat of justice therein “ and in fulfilment of our promises made before and at the time of the location aforesaid to make the following conveyance in case such location should be adopted an'd agreed by the commissioners for that purpose appointed,” contains all the elements necessary for the conveyance of a fee simple and conveys a complete title to the county for the purposes mentioned. Such a conveyance is not a dedication of the lands to the use of the public in general, but amounts to a conveyance for a certain and definite purpose in which the public at large takes no interest as individuals.</p> <p>2. Abutting Owner — Member oe Public — No Right to Sue.</p> <p>"Where land is conveyed to county commissioners, part of which is to be used for court house purposes and other county buildings, and part for a public square, to be divided and appropriated for the respective separate purposes at the will and discretion of the commissioners, neither the fact that a private owner’s property abuts the part on which the buildings have been erected, nor that he is a member of the public, gives him any interest in that part, nor to restrain the commissioners from devoting that part to the buildings.</p> <p>3. Action Should be Brought by Prosecuting Attorney.</p> <p>Where land is conveyed to a county for the purposes of a public square and county seat buildings, if the commissioners, in devoting one part to the court house and jail, are not acting in harmony with the provisions of the deed conveying the property, the prosecuting attorney is the proper person to bring an action to restrain such use. Such action is not open to individuals, whether suffering special or general injury thereby, and especially if there has been no separation of the land in question into building and park purposes.</p> <p>4. Distinction Between Dedication and Grant.</p> <p>A distinction exists between dedication to public use and grants to individuals, in the manner and evidence of accomplishment in the character of the interests bestowed,, and in the rights which individuals enjoy therein. Municipal corporations and boards of county commissioners are authorized to hold and convey lands for corporate purposes, the same as individuals, while as to lands dedicated to public use, the corporate rights are passive and not active, and officials representing such public organizations merely manage and control it as trustees for the public, to whose use it is dedicated, and cannot appropriate it to the individual use of the corporations.</p> <p>5. Eaidure to Object or Bring Suit — Estopped.</p> <p>Where the advertising and letting of contracts for the building of a county jail were of such public character that owners of land abutting that on which the jail is being erected had notice of the intention to build long before any . movement to do so was commenced, the absence of objection and delay in bringing suit to enjoin the building until after the contracts have been let, the building partly erected and thousands of dollars expended therefor, such delay being unnecessary and injurious to the commissioners, such owners are estopped to deny that the commissioners are going contrary to the provision of the deed granting the land to the county and from maintaining suit to restrain the erection of the building.</p> <p>6. That Right is Doubteud — Does not Defeat .Estopped.</p> <p>Nor will the contention that the county had no right to erect a jail on the land in question, as where a party enters upon land knowing he has no right, avail to prevent estoppel against plaintiffs for remaining silent until after the county had commenced operations, where the question in contention is doubtful, but in a case like the present, where there is a claim of right to enter and nothing more than a doubt in regard to the matter can exist, the plaintiffs are bound to act without delay.</p> <p>7. Action to Abate Pubdic Nuisance.</p> <p>An action to abate a public nuisance can only be brought as provided by statute. Hence, an action to enjoin the erection of a jail as being a nuisance, upon county property, can only be maintained upon the ground of being a public nuisance, to maintain which abutting owners and individuals are not proper parties.</p>

<p>Heard on Error.</p>

cited. The statute leaves something yet to the care of the purchaser. He is not to have the power to subject his neighbor to a fine, or imprisonment if he has seen fit to buy with his eyes shut. Lamberton v. State, 11 Ohio, 282; Poage v. State, 3 Ohio St. 229, 234; 3 Ohio Comp. Dig. Col. 740. The record of a conviction for crime must show that the defendant was arraigned on the indictment. Hanson v. State (4th Syl.), 43 Ohio St. 376; 3 Ohio Complete Digest, Tit. Arraignment.

<p>INTOXICATING LIQUORS — BEAL LAW.</p> <p>[Before Hon. John M. Cook, circuit judge of the seventh circuit, ia Guernsey county.*]</p> <p>1. Beal Law not in Conflict with Art. 2, Sec. 26 of the Constitution.</p> <p>'The Beal municipal local option law, Secs. 4364-20, Rev. Stat. et seq., 95 O. L. 87, providing for submitting the question, whether intoxicating liquors shall he sold as a beverage in any municipal corporation to the electors thereof, is not in contravention of Art 2, Sec. 26 of the constitution, requiring general laws to have a uniform operation throughout the state, in that it is not applicable to portions of the state outside of municipalities, it is not essential to the uniform operation of a law that it apply to every person and every foot of territory in the state. Gordon v. State, 46 Ohio St. 607 [23 N. E. Rep. 63; 46 L. R. A. 749] holding Secs, 4364-24, Rev. Stat., et seq., valid applies to and governs this case.</p> <p>2. Beal Law not in Conflict with Art. 1, Sec. 18, Const.</p> <p>Sections 4364~20b, Rev.'Stat., 90 O. L. 90, in that it permits a resubtnission of the question as to the sale of intoxicating liquois in municipalities at any time after two years of the determination thereof by vote, and renders it possible at a subsequent election to remove any prohibitive bar to the sale thereof, cannot have the effect of suspending the law within the meaning of, and in contravention of Art. 1, Sec. 18 of the constitution, which declares that the legislature alone can suspend laws.</p> <p>3. Not in Conflict with Art. 3, Sec. 11, Const.</p> <p>Sections 4364-20b, Rev. Stat., does not, by permitting a municipality, which has voted for “ no sale” of intoxicating liquors, to subsequently vote for “ the sale,” if the vote upon resubmission so declares, contravene Art. 3, Sec. 11, by granting to the people pardoning power. A second election, although in favor of “ the sale ” will not absolve from any offense previously committed.</p> <p>4. Beal Law Does Discriminate Unlawfully.</p> <p>The sale of intoxicating liquors may be prohibited or restricted and courts will not interfere with the constitutional discretion of the legislature to determine the methods of providing against the evils resulting from the traffic. Hence, Secs. 436J-20b,Rev. Stat., which permits manufacturers of intoxicating liquors to sell at wholesale to dealers outside the municipality which has voted to prohibit the sale thereof as a beverage withiu its limits, is not au unlawful discrimination between parties living within and without such corporation or in contravention of the fourteenth amendment to the U. S. constitution, or Art. 1, Secs. 1 and 2 of the state constitution.</p> <p>6. Rule as to Uncertainty in Statutes.</p> <p>Statutes that are not clear and definite as to methods of enforcement will not he declared void unless they are found to be so imperfect as to render such acts impossible ot execution. Thus, Sec. 4364-20b, Rev. Stat., permitting the sale of intoxicating liquors in “ wholesale quantities,” without specifying the amount, is not incapable of execution ; and inasmuch as the legislature, under the Dow law, Secs. 4364, Rev. Stat., has fixed the quantity which a manufacturer thereof may sell at one gallon or more, that quantity may be deemed to be the in tent of the legislature in the use of the word “ wholesale ” in this later act.</p> <p>6. Trial by Jury from County, Within and Without Municipality.</p> <p>A violation of Sec. 4364-20b, Rev. Stat., imposing a penalty for thq unlawful sale of intoxicating liquors in municipal corporations having voted against the sale thereof, while it must necessarily be committed within the municipality, is also committed within the county, and as such may be tried bj jurors selected from the county both within and without the corporation within Art. I, Sec. 10 of the constitution, requiring an impartial jury from the county where the offense is committed. It is not necessary that the jurj be selected from the municipality where the offense is committed.</p> <p>7. Legislature may Provide Quantum oe Proof.</p> <p>The legislature has power to provide the quantum of proof necessary and what shall constitute prima facie evidence of a legal election under Sec. 4364-tOa, Rev. Stat. There is no constitutional provision prohibiting the general assembly from determining what shall be sufficient evidence, prima facie or conclusive, in actions subsequently arising.</p> <p>8. Power of Legislature as to Distribution of Fines.</p> <p>Section 4364-20g, Rev. Stat., providing that fines imposed for violation of the preceding sections shall be applied to the funds of the municipality where imposed, is within the power of the legislature to make such distribution of fines as it may deem advisable.</p> <p>9. Constitutional Law — Inferior Courts.</p> <p>A law should not be declared unconstitutional without a clear and strong conviction of the incompatibility of the constitution and the law.</p>

<p>Heard ON Error.</p>

<p>HeaRD ON Error.</p>

<p>STREET RAILWAYS — QUO WARRANTO.</p> <p>Parker, Haynes and Hull, JJ.</p> <p>1. Rule as to Rights in streets.</p> <p>The use of the streets of a city belongs to the public at large and is not limited to the. residents of any particular locality. Therefore, a city by imposing conditions to the exercise of a franchise granted to a corporation to construct and operate a street railway in its streets acts as the agent of the state and for the whole public, and the state may interfere by quo warranto when the conditions in which the public are interested are not complied with.</p> <p>2. Remedy oe City or Individuad — Quo Warranto by State.</p> <p>The fact that a city or individuals may have a remedy by action ex contractu or otherwise and cannot proceed by quo warranto, affords no valid objection or obstacle to the state availing itself of such extraordinary remedy for the advantage of the general public.</p> <p>3. Ordinance Under Secs. 25'Jl and 2602, Rev. Stat.</p> <p>Under Secs. 2501 and 2502, Rev. Stat., providing for the granting by municipalities of permission to street railway companies to construct and operate their lines upon such terms and conditions as may be prescribed by the council thereof, an ordinance prescribing the terms and conditions upon which the franchise is to be enjoyed, has the force and effect of an act of the legislature, for the violation of which an action may be brought ex contractu by the city, or in quo warranto upon the relation of the state.</p> <p>4. Quo Warranto Proper Remedy, When.</p> <p>Where a street railway company acquires the franchise, lines, etc., of other companies, by virtue of Sec. 2505a, Rev. Stat., conferring power to lease or purchase, and charges rates of fare in excess of the maximum fare which original companies were allowed to charge, quo warranto by the state is the proper proceeding to prevent such illegal use of leased or purchased lines.</p> <p>5. Adeegations Sueeicient Against Demurrer.</p> <p>Under Sec. 2505a, Rev. Stat., 93 O. R. 214, conferring upon street railway companies power to lease or purchase property of street railway companies, or to acquire its franchises, and providing the amount of fare that may be charged, an allegation in a petition- in quo warranto against such a company, that a purchase of the Hues of the defendant was made under the authority of the statute, and that the company is offending against the statute in that it is charging more for a continuous ride in the same general direction over such line or purchased lines within the corporation than the maximum fare charged over any one of such lines prior to such lease or purchase, although general in form, is sufficient to withstand a demurrer.</p>

<p>ASSIGNMENTS FOR CREDITORS.</p> <p>Adams, Douglass and Voorhees, JT.</p> <p>1."Assignment — Rights or Parties, Other Than Creditors, to Chose in Action not Included in Schedule — Sec. 6343, Rev. Stat.</p> <p>Where a deed of assignment does not transfer to the assignee all of the property of the assignor, but is limited to specific real estate described in the deed and to specific personal property schedulized therein, such assignment does not include property not described in the deed and is a partial assignment, and nothing will pass by such deed that is not so therein set forth or specified.</p> <p>2. Partial Assignment — Property Included.</p> <p>Where a deed of assignment does not on its face purport to be all of the assign- or’s property, real and personal, it is a partial assignment and includes only such property as is particularly described in the instrument.</p> <p>3. Effect of Upon Property not Included.</p> <p>Where a deed of assignment on its face purports to convey all the assignor’s property, when in fact he has other property not disclosed in the assignment, it is void as against creditors; but if it does not so purport, it is valid, notwithstanding property may remain in the hands of the assignor unassigned, which property, being unaffected by the deed of assignment, is free to be transferred or assigned by the assignor.</p> <p>4. Section 6343, Rev. Stat., Considered.</p> <p>Section 6343, Rev. Stat., either before or after the amendment of April 26> 1898, 93 O. L. 290, does not apply to an assignment, where it was not the purpose and intent of the assignment to prefer one or more creditors of the assignor.</p>

<p>DEDICATION — ESTOPPEL.</p> <p>Giffen, Swing and Jelke, JJ.</p> <p>1. Designating Public Square on Peat — Acceptance Necessary.</p> <p>Designating on a plat duly recorded as a “ public square ” does not vest title in the city unless such “ public square ” is accepted by ordinance or some other act.</p> <p>2. Levying Assessments Against Public Square — Estoppel.</p> <p>The levying of assessments against such “ public square ” for the improvement of an alley abutting thereon estops the city from appropriating the same to public use by accepting the dedication.</p> <p>3. Plaintive Entitled to Injunction Though not Owner in Pee.</p> <p>Under such a state of facts the plaintiff, owner of property abutting on the space designated as “ public space,” has obtained su*ch an interest therein as to entitle him to an injunction against interference with such interest, but not such an interest as to give him title in fee.</p>

Heard on Error. cited; Where one is made a legal beneficiary in a certificate, that certificate is valid and in full force until another legal beneficiary has been substituted. Supreme Council C. B. Legion v. McGinness, 59 Ohio St. 531 [53 N. E. Rep. 54]. Punctuation may aid in arriving at the meaning of a statute, but does not control. Albright v. Payne, 43 Ohio St. 8,14 [1 N. E. Rep. 16].

Heard on Error. cited: The legal title to decedent’s realty is not in his executors, and the devisees by uniting in a conveyance can effectually convey this real estate and divide the proceeds without their intervention.

<p>EVIDENCE — EXCEPTIONS—STREET GRADES.</p> <p>Giffen, Swing and Jelke, JJ.</p> <p>1. Exception To Reeusae to Permit Answer to Question.</p> <p>An exception to a refusal by the court to permit a witness to answer a question is not properly saved unless it appear from the record what the answer would have been.</p> <p>2. Rule as to Inquiry as to Reasonableness oe Grade.</p> <p>The limitation of the liability of municipalities by the Supreme Court in Akron v. Chamberlain, 34 Ohio St, 328, to cases where damages result from changing an established grade and from establishing an unreasonable grade, does not permit an inquiry into the reasonableness of an established grade, unless it appear that the establishment of the grade was wantonly or recklessly done.</p>

cited: 1. The amended petition upon its face does not entitle the plaintiff to recover. The allegations of overwork, and being too tired and sleepy “ to fully realize or appreciate ” the danger into which he voluntarily put himself, will not avail to dispense with the rule of law upon that subject.

<p>ATTORNEY’S FEES.</p> <p>Swing, Giffen and Jelke, JJ.</p> <p>Attorney’s Fees.</p> <p>Strict proof is required by law to establish a change of contract as to attorney’s fees, and when an attorney has contracted for a specific sum it is better that he should fail to recover the value of his services quantum meruit for want of sufficient proof of such change than that the credit and dignity of the legal profession be relaxed in this regard.</p>