Volume 13 — Ohio Nisi Prius Reports, New Series

<p>APPORTIONMENT OF STOCK DIVIDENDS BETWEEN LIFE TENANTS AND REMAINDERMEN.</p> <p>Distribution — Where Stocks Placed by Testator in Trust — Increased Enormously in Value Through Segregation of Surplus Earnings— Widow and Son Made Beneficiaries for Life — With Remainder to "Lawful Heirs” — Entire Proceeds Held to Belong to the Trust Fund —Consideration of the Massachusetts and the Americam, Rules as to Distribution Between Life Tenants and Remaindermen — Wills— Residence of Testator — Construction of the Phrase "Lawful Heirs" ■ —Evidence.</p> <p>1. In an action to construe a will the question of the competency of witnesses will he limited to matters pertaining to the estate, without regard to the fact that such witnesses may he interested adversely in the final distribution.</p> <p>2. Where the question of the legal domicile of the testator is in doubt, and it does not appear that at the time of his removal from Ohio it was his intention to make his new home his permanent resi-dence, and from the facts as presented the probate court might well have reached the conclusion that at the time of his death the testator was a resident of Ohio, the question as to his residence can not be subsequently raised in an action to construe the will, and distribution of the estate will be made under the laws of Ohio.</p> <p>3. By the term “lawful heirs” as used in the will under consideration the' testator referred to brothers and sisters of both his wife and himself as a class, and the gifts under his will were direct, and the distribution should be made among those living at the time of his own death and the death of his wife respectively per stirpes.</p> <p>4. Representatives of life tenants are entitled on final distribution to receive that portion of the fund in the hands of the trustee which should have been distributed to the life tenants during their lives as income from the trust fund.</p> <p>5. The apportionment of the proceeds from the sale and liquidation of what was originally the Latrobe Steel Works was made, not as earnings, but as the proceeds from sale of the entire assets and working capital of the company which eventually succeeded to the property and capital of the Latrobe Steel Works; and upon distribution of that part of said proceeds paid to the trustee of a deceased stockholder of the Latrobe Company, the entire amount will be treated as belonging to the trust estate, and not as income, and as between the remaindermen and representatives of the life tenants will be paid over to the remaindermen.</p>

<p>DETERMINATION AS TO OWNERSHIP OF FIXTURES INSTALLED BY A LESSEE.</p> <p>Fixtures — Railway Tracks and- Track Scales Placed upon Leased Property are Personalty, When — Public Policy, Having in View the Encouragement of Trade, Tending to Relax the Old Rule as to Fixtures —Competéncy of Evidence Relating to an Oral Agreement — Landlord and Tenant.</p> <p>1. Spur railway tracks and a track scale, so as to be removable with comparative ease from the freehold, are trade fixtures which may be removed by the lessee installing them there, or by the receiver of said lessee, where the lease contains no provision with reference to such fixtures and no provision that such installations shall become a part of the realty, and a privilege of purchase was given the lessee.</p> <p>2. In determining the question of whether, in providing facilities for carrying on business on leased property, the intent was that they should be regarded as trade fixtures or otherwise, testimony as to an oral agreement between the landlord and an officer of the lessee company that such fixtures were to be regarded as a part of the realty is inadmissible, in the absence of any rule of the company or action by the board of directors which authorized such an agreement, or of any such provision in the written lease.</p>

<p>AS TO VALIDITY OF AN EXCHANGE OF PROPERTY WITH AN AGED MAN.</p> <p>Adequacy of Consideration — Allegations as to False Representations, Duress and Senility — Right of an Administrator to Recover from One Who Dealt with His Intestate upon an Unfair Basis of Yalue,,</p> <p>1. Where a man eighty-three years of age, having a wife and young children, desired on account of his infirm condition to give up his farm, which had a value of about $8,000, and was persuaded- to exchange it for city property, which could be occupied by himself and family and some income derived from the renting of rooms, the fact that in the exchange he received a consideration of perhaps $2,000 less than he gave, does not constitute such gross inadequacy as would warrant a court in giving judgment for the difference in an action brought therefor by his administrator.</p> <p>2. Mere inadequacy, or inequality in value between the subject-matter and the price, does not furnish basis for remedial effect; in- the absence of inequitable incidents, or when the circumstances do- not show the same to be so gross as to constitute fraud.</p> <p>3. Where a transaction is claimed to have been induced by undue influence for an inadequate consideration, the remedy is equitable rescission. Failure to rescind promptly does not entitle one to maintain an action for damages for undue influence in the transaction.</p>

A number of land owners filed their petition with the county auditor of Defiance county, Ohio, and a duplicate or a copy thereof with the county auditor of Paulding county, praying that the joint board of county commissioners of these two counties order an improvement by deepening, widening and straight-' ening, of a natural water-eourse known as Gordon Creek, situated partly in each of these counties, and for like improvement of certain tributaries of that creek, all having…

<p>VACATION OF JUDGMENT DURING TERM.</p> <p>Procedure — Steps Required for Setting Aside a Judgment During Term —Inherent and Plenary Power of the Court With Its Limitations —Sow this Power May Be Invoiced — Nature of the Showing to he Made at Preliminary Securing — Summary of Procedure — Action hy the Court Sua Sponte — Application of Rules Laid Down — Bond ■ Required for Payment of Original Judgment or any Modification Thereof — Cognovit Notes and Rights of Sureties — Judicial Discrer. tion — Sections 8296 and 11631 et seq.</p> <p>1. Por the vacation of-a judgment at the term-of its rendition the. defendant should file a motion setting forth one or more of the grounds specified in Section 11631, or any other grounds he may deem sufficient, and give the plaintiff reasonable notice in writing of such filing and of the time and place of the hearing demanded;</p> <p>2.- The defendant at the preliminary- hearing should present, by affidavit, or orally or hy both methods, his evidence-in support of the motion to vacate, and this evidence the plaintiff may controvert hy affidavit or orally.</p> <p>3. Át the same -time the defendant should proffer a verified answer to ' the petition, setting forth affirmatively facts' showing non-liability •-■■in whole or in part. If the answer does not state facts which, if established, would constitute a defense to the claim-, the proceeding will be treated as at an end and the judgment will not he disturbed; hut if a good defense is stated, and the court upon hearing finds sufficient grounds for vacáting the judgment,' an - order will he entered setting forth the grounds so found and sus-:--pending.-the judgment, and providing for making up the issues-. . .in the usual manner,-and if necessary an injunction will he granted as provided for in Section 11638. - . ,</p> <p>4. After the issues have been made up the cause stands for trial to a jury or'to the court in the regular way and as though no judg-' ment had been previously rendered. If the trial results in a- ver-' diet or finding for- the defendant, which withstands a motion for a..new trial if one is filed, the original judgment will then-he-, vacated and a judgment entered confirming the verdict or finding;. hut if the verdict or finding is for the plaintiff and for the same.' amount originally found due, that judgment will stand and a' proper order will be entered confirming it, or if a different amount be found due an entry will be made modifying tbe original judgment accordingly.</p> <p>5. In the case under consideration it is held the claim that judgment was taken for more than was’due is not competent at a preliminary hearing, but by an irregularity in the confession of judgment on the note in suit the accommodation makers were not accorded-their right to be certified as surety in the judgment on the note, which authorizes the court in the exercise of its discretion to permit the judgment to be opened up.</p>

<p>BILL OF EXCEPTIONS NOT PART OF THE COSTS.</p> <p>Costs — Are Given Only by Statute — Expenses of Litigation Distinguished from Costs — Section 1162/f.</p> <p>The word “costs” has a fixed legal significance and includes only such items as are allowed by statute, and the expense of preparing a bill of exceptions for the purpose of prosecuting error can not be taxed-as a part of the costs.</p>

<p>LIABILITY OF CARRIER FOR APPLES DAMAGED IN TRANSIT.</p> <p>Carriers — Action, on a Bill of Lading — Custom or Usage Will Not be Considered, When — Liability for Apples Rendered Unsalable in Transit.</p> <p>1. Where, in the absence of explanation, the bruising, mixing and freezing of a car load of assorted apples resulting in their practical destruction appears to have been due to the fact that the closed box car in which they were shipped became disabled in transit, and to their transfer into an open and unsuitable box car, the railway company is liable for the total loss occasioned thereby.</p> <p>2. In an action on a bill of lading, a court will not consider a usage or regulation affecting the mode or place of delivery, with reference to which it is claimed the shipper contracted, where such usage or regulation is unreasonable in its operation and contrary to public policy.</p>

<p>PROCEEDINGS IN ATTACHMENT.</p> <p>Attachment — Where Directed Against Excess Over Ninety Per Gent, of Personal Earnings of a Married Man — Demand in Writing Not Necessary — Service on Agent of Defendant — Statement as to Nature of Claim Sued on — Failure to Aver that the Claim was Incurred in the County — Service of Process by Special Constable Not an Elector of the Township — Sections 10272, 10266, 10253, and 1732.</p> <p>1. The provision of Section 10272, making a demand in writing a prerequisite to the bringing of a suit in attachment for the excess over and above ninety per cent, of the personal earnings of the debtor, is applicable only to cases where it is sought to reach personal earnings of married men.</p> <p>2. A return of summons, served on the “agent” of the defendant company within the county in which the action was brought, will not be set aside, although it is the better practice to follow the statute strictly.</p> <p>3. The statement in the affidavit that the plaintiff’s claim is for “board, lodging and washing” is sufficient to save the action from a motion to discharge the attachment; but it is necessary that more facts be stated in the bill of particulars.</p> <p>4. Failure to aver in the affidavit that the claim was incurred in the county in which the suit is brought, renders the affidavit insufficient and requires that the attachment be discharged.</p> <p>5. Proof that the special constable, appointed to serve the process, was not an elector of the township in which the action was brought, is ground for discharge of an attachment based upon such service.</p>

<p>EXERCISE OF MUNICIPAL POWER FOR THE PURPOSE OF EFFECTING BY INDIRECTION A PURPOSE DIFFERENT FROM THAT EXPRESSED.</p> <p>Municipal Corporations — Circumstances under which Courts of Equity May Interfere with Administrative Municipal Government — -Motives of Council Immaterial — Exercise of Power for a Purpose Different from that Expressed — Nullifying the Statutory Restrictions as to Granting Street Railway Franchises — Bartering Away Police Power — BeeTcing to Prevent Future Legislation Affecting the Public Safety and Well-being — Evidence—Burden of Proof.</p> <p>1. Courts of equity will not interfere with municipal corporations in their internal police and administrative government, unless they are transcending their powers, or some clear right has been withheld or wrong perpetrated or threatened, which must be proved by the petitioner by a preponderance of issuable facts, upon which the court can base its judgment, irrespective of the motives of members of council.</p> <p>2. A municipal council possesses only such powers as are delegated to it by the state, which powers must be exercised in good faith for the accomplishment of the object for which the power is delegated, and not colorably for such a purpose in order to accomplish another object for which the power is denied to it by the state.</p> <p>3. Ordinances passed by council, ostensibly in the exercise of a power to change the names of streets, but really for the purpose of nullifying the law of the state, forbidding the grant of a railway franchise unless certain conditions are complied with, are invalid.</p> <p>i. An ordinance, granting a street railway franchise, bartering away the state’s police power, as well as the right of future councils to legislate upon topics relating to the safety and well-being of the public, is invalid.</p>

<p>LIABILITY FOR INJURIES ON DEFECTIVE PREMISES HELD UNDER. LEASE.</p> <p>Landlord and Tenant — Premises in Defective Condition — Lessee Can Protect Himself Against Defects Only hy Covenant — Doctrine of Caveat Emptor Applies — Allegations a<s to Concealment of Defects.</p> <p>1. A lessee who desires to protect himself as to the condition of the premises he is about to lease must bind the lessor by an express covenant as to condition, and this necessity exists regardless of the length of the term of the lease or.whether it be oral or in writing.</p> <p>2. An action against a landlord for injuries to a tenant, due to defective condition of the demised premises, can be based on fraudulent concealment of the defect by the landlord only when there is an allegation' of knowledge of the defect on the part of the landlord and of want of knowledge by the tenant and that the defect was concealed by the landlord.</p>

<p>AS TO THE OFFENSE OF INTOXICATION.</p> <p>Municipal Corporations — Ordinance for Punishment of Drunkenness Not Valid, When — Section 3664.</p> <p>Intoxication is not an offense under the law of Ohio, unless the good order and quiet of the corporation is thereby disturbed.</p>

<p>QUESTIONS RELATING TO HOMESTEAD EXEMPTION.</p> <p>Homestead Exemption — As to Whether Husband and Wife are “Living Together” Within the Meaning of the Statute — Residence of Husband When His Whereabouts are Vnlcnown — Possession by Wife of a Home Encumbered With Liens — Section 11738.</p> <p>1. A court is not precluded from holding that a husband and wife are “living together” within the meaning of the homestead exemption statute, by the fact that following his assignment for the benefit of creditors the husband became unable to support his wife and even his whereabouts are now unknown to her, where she expresses confidence that he will return to her as soon as he is able to provide for her support.</p> <p>' 2. It appearing in such a case that the wife is a resident of the state and the husband when last heard from was a resident of the state, a court will assume that he is still a resident of the state.</p> <p>3. The fact that at the time of the assignment the assignor and his wife were living in a house which belonged to her and was heavily encumbered with liens, and from which they removed and she has since collected rent therefor, is not a bar to an allowance of homestead exemption.</p>

<p>INJUNCTION AGAINST REFUSAL TO WORK WITH PETITIONERS.</p> <p>Labor Unions — Differences Between Labor Factions — Efforts to Prevent a Warring Element from Securing or Holding Employment May Be Enjoined.</p> <p>Where a labor organization splits into two hostile factions, injunction will lie upon petition of one of the factions to restrain the other from threatening to strike or quit in a body employment where the plaintiffs are employed or are promised employment.</p>

<p>PROOF AS TO HABITUAL DRUNKENNESS.</p> <p>Divorce — Husband Charged with habitual Drunkenness — Occasional Lapses Hot Sufficient to Establish Such a Charge, Where the Conduct of the Defendant is Otherwise Good — Section 11919.</p> <p>A decree of divorce will not be granted against a husband on the ground of habitual drunkenness for three years, where there is • proof 'that he is an industrious man, and desires to live with his wife and provide for their children, and his appearance is not that of one addicted to drink, and there is no proof of his having been intoxicated, except on four occasions, during the last three years.</p>

<p>TRIAL BEFORE A MAGISTRATE WITHOUT A JURY.</p> <p>Criminal Laio — Trial Before a Police Court or Magistrate — Jurisdiction to Try Without Jury Depends on Waiver in Writing — Section 18511.</p> <p>■ Under the law of Ohio a magistrate or police judge is without jurisdiction to try, without a jury, one charged with an offense for which imprisonment can be imposed, unless a jury has been waived in writing.</p>

<p>CONSTITUTIONALITY OF THE DEAN LAW.</p> <p>Constitutional Law — Answers Required by the Lean Character Law— Not in Contravention of Constitutional Rights — Inhibition Against Licensing the Sale of Liquor not Violated — Equal Protection of the Laws — Privileges and, Immunities — Sections BOSS and 18219.</p> <p>1. The answers required under the Dean law from one engaged in the sale of intoxicating liquor, do not bring said law into conflict with Article Y of the Constitution of the United States, or of Section 10 . of the Bill of Rights of the Ohio Constitution because of possible incrimination'of the person answering.</p> <p>2. Nor is this law in contravention of the constitutional provision against licensing the traffic in intoxicating liquors.</p> <p>3. Nor does said law violate Sections 1 and 2 of the Bill of Rights of the Ohio Constitution or the Fourteenth Amendment of the Federal Constitution.</p>

<p>DEFENSES IN ACTION IN TORT.</p> <p>Pleading — Property Damaged by Negligence — Owner Indemnified by Way of Insurance — May Still Proceed Against the Party Causing the Injury, When — Defenses—Actions Which Are Assignable.</p> <p>1. The fact that an owner of property damaged by negligence has received indemnity therefor by way of insurance, can not be pleaded as a defense in an action by the owner against the party causing the damage.</p> <p>2. But where the petition of the owner for damages for injuries to personal property sets up a cause of action which sounds in tort, a cause is alleged which would survive and is assignable, and an averment in the answer that said cause has been assigned by the plaintiff to some person or corporation to the defendant unknown, and he has by that act ceased to be a party in interest, constitutes a defense which can not be destroyed by a motion to strike out.</p>

<p>INTERFERENCE WITH BUSINESS BY POLICE.</p> <p>Injunction — Against Interference with Business by Police — Not Avail-fable to One Who May be Concealing Illegal Transactions— Doubts of a. Chancellor will be Resolved Against o> Relator Charged with Secretly Carrying on Gambling, When.</p> <p>An injunction against the stationing of police about a place of business in such a manner as to interfere with the business carried on therein will be refused, where the court has- reasonable ground for the belief that things of a forbidden character, such as gambling, aré being carried on in connection with such business, and the plaintiff in his testimony exhibits a lack of candor and a willingness to suppress the facts, and otherwise by his conduct forfeits his claim on a court of equity.</p>

<p>FORFEITURES UNDER THE RAILWAY COUPLER ACT.</p> <p>Railways — Equipment of Gars with Automatic Gouplers — Dirt Trains are Engaged in “Traffic” — Purpose of the Act is Protection of Train Operatives — Acts of 1902 and 1906 Harmonized.</p> <p>1. The moving of dirt by a railway company from one point on its line to another, for the purpose of constructing a yard or fill, constitutes “traffic” within the meaning of Section 8950, P. & A. Anno. G-. C., requiring that all cars used in moving state traffic be equipped with automatic couplers.</p> <p>2. The use of cars equipped with couplers of the character specified by the statute, except that they will not couple by impact, subjects the company to forfeitures as provided by Section 8965, relating to couplers out of repair, rather than to the forfeiture provided in Section 8954, relating to ears which have not been equipped with couplers.</p>

<p>NECESSARY PARTIES IN AN ACTION IN PARTITION.</p> <p>Partition — Husbands and Wives of Tenants in Common Not Necessary Parties — Division of Fee to Counsel Filing the Action May be Made to Other Counsel in the Case, When.</p> <p>1. Counsel other than for the partitioner in a partition case, who perform services which are of benefit to the parties in interest and assist in the determination of the case, are entitled to share in the fee regularly allowed to counsel for the petitioner, but are not entitled to an extra counsel fee on account of such services.</p> <p>2. The wives and husbands of tenants in common are not necessary parties to an action for partition, and counsel whose services consisted in bringing into the case the wives and husbands of the tenants in common in the lands sought to be partitioned are not entitled to share in the counsel fee to be awarded in the case. Weaver v. Gregg, 6 Ohio State, 547, and Mandel v. McClave, 46 Ohio State, 407, distinguished.</p>

<p>DISCRETION OF COURT IN REQUIRING PHYSICAL EXAMINATION OF PARTY TO ACTION.</p> <p>Breach of Promise — Defense of Physical Incapacity — Plaintiff Required to Submit to an Examination — Discretion of Court — Privilege of Physician — Evidence—Section' lUfif.</p> <p>1. It is within the discretion of a trial judge to require an adverse party to submit to a physical or medical examination, and the physician making such examination can not claim privilege, but may be required to testify as to the condition of said party.</p> <p>2. Such an examination may be required in an action for breach of promise to marry, where the physical incapacity of the plaintiff has been asserted as a defense.</p>

<p>DANGEROUS BRAKE DEVICE.</p> <p>Negligence — Street Railways — Lady’s Dress OaugM on Projection of Brahe Device and She ~Was Thrown to the Street — Approved Devices which are Nevertheless Dangerous.</p> <p>In an action against a traction company for injuries to a passenger wbo was thrown to the pavement by the catching of her dress on a brake device, evidence that the device was located and maintained in a manner which would easily be recognized as dangerous and Improper by reasonably prudent officials and operatives is sufficient to send the case to the jury, notwithstanding there was no defect in the apparatus but it was admitted to be approved and standard construction.</p>

<p>COMPENSATION TO ATTORNEYS REPRESENTING A RELIGIOUS SOCIETY.</p> <p>Excessive Verdict — Power of Trial Court With Respect to — Remittitur— Counsel Fees — Where an Unnecessary Amount of Labor Was Performed — Difficulty in Obtaining Testimony of Attorneys Against the Claim of an Attorney for Services — Legal Ethics.</p> <p>1. There resides in a trial court, in furtherance of justice and due administration of the law and regardless of the grounds for a new trial set out in the statute, plenary power to grant, in case of an excessive verdict, either a new trial or the option to the plaintiff of accepting a remittitur.</p> <p>2. Where, in an action affecting the title to church property, the record discloses that the judgment as entered in favor of the church was based upon well settled law of this state, a court in a subsequent action to fix compensation to counsel for the church, will note the fact that said counsel brought into the case many features and performed a great amount of labor for which no occasion existed.</p> <p>S. Furthermore, in view of the difficulty of obtaining testimony from attorneys calculated to reduce the amount claimed by a brother attorney for services rendered, a court will not be entirely governed, in an action to recover counsel fees, by the fact that certain attorneys testified that said services were worth a very large‘sum, and no testimony by attorneys was offered in opposition thereto.</p> <p>A Where the testimony goes to show that the time consumed by two attorneys in and about a case in which they were employed, although covering three and one-half years, did not amount to more than one hundred and fifty days, a verdict'for $15,000 in their favor, which must be paid by a religious society, will be regarded as excessive, and a new trial will be granted in the event the plaintiffs refuse to accept a remittitur of $5,000.</p>

<p>INDEBTEDNESS OF DECEDENT TO HOUSEKEEPER. ON NOTES.</p> <p>Estates of Decedents — Promissory Notes Executed to Housekeeper Held Not to Have Been Gifts Without Consideration.</p> <p>Promissory notes for specific sums of money, payable one day after date but understood to be payable at the death of the maker, are supported by a good and valuable consideration and may be ordered paid out of the estate of the maker, where it appears that they were executed by him and delivered to his housekeeper to make good to her a reduction in her wages, made necessary by a change in his financial ability.</p>

<p>THE RIGHT TO GIVE BAIL.</p> <p>Sureties — Mandamus Lies to Compel Acceptance of Bail in-a Criminal Prosecution — Notwithstanding the Surety is Proposing to go Upon the Bond for Hire — Bill of Bights, Article I, Section 9.</p> <p>Where the right to hail exists, the only duty pertaining to the office of one authorized to accept bail relates to the sufficiency of the bond in form and amount, without regard to the character of the proposed surety with respect to his being a professional bondsman.</p>

<p>LIMITATION IN TIME AS TO PROSECUTIONS FOR MISDEMEANOR.</p> <p>Criminal Law — Construction of Section 12381- — As to when the Bar of the Statute Falls as to Prosecutions for Misdemeanors.</p> <p>The bar of the statute, limiting the prosecution of misdemeanors to three years from the date of the offense, is prevented from falling where a preliminary hearing has been had within the three year period, and a motion to quash an indictment will not lie on the ground that it was not returned until more than three years after the commission of the offense alleged.</p>

<p>PROXIMATE CAUSE AND LEGAL CAUSE.</p> <p>Negligence — Jury Should Fix Liability — Where a Chain of Negligent Acts by Different Parties Result in Injury to an Innocent Person.</p> <p>The watchman at a steam railway crossing failed to lower the gates upon the approach of a backing train, without a headlight, and only a brakeman’s lantern to show its approach. At the same time a street car attempted to pass over the crossing, without the conductor first going forward to see whether the crossing could be safely made. When directly upon the steam railway tracks the street car stopped, and a passenger, seeing the danger impending, sprang from the rear platform and was injured. Held:</p> <p>In an action for damages brought by the injured passenger against both companies, demurrer by the steam railway company will not lie on the ground that the petition fails to allege that the gates were placed not further than fifty feet from the crossing; or on the ground that the proximate cause of the injury was the stopping of the street car on the crossing; but the court will submit to the jury the question whether any or all of the negligent acts complained of contributed to the injury of the plaintiff, and if the jury find only a particular act or acts in the chain of causation produced the injury, that they specify such act or acts.</p>

<p>DAMAGES FOR CHANGE OF GRADE.</p> <p>Change of Grade — Right to Damages Vests, When — And Passes to Grantor Who Has Suffered the Diminished Value — Construction of Section $823.</p> <p>The right of an abutting owner to compensation on account of a change of grade vests not later than the time when the work of changing the grade has so far progressed as to materially obstruct and interfere with access to the property; and in the absence of an agreement to the contrary the right to receive such compensation remains in such owner, and does not pass to a grantee to whom the property was transferred subsequent to such vesting.</p>

<p>DAMAGES FOR SHORTAGE IN LAND CONVEYED.</p> <p>Pleading — In Action for Damages for Shortage in Land Conveyed Under Deed of General Warranty.</p> <p>In an action for damages for shortage in land conveyed under a deed of general warranty by metes and bounds, the mere statement of the breach is not enough, but the fact or facts which show the breach must be alleged.</p>

<p>TO ENJOIN ULTRA VIRES ACQUISITION OF CORPORATE STOCK.</p> <p>Corporations — Situs of Action to Enjoin Railxoay Merger — Property Rights of Stockholder — Jurisdiction—Corporations—Process.</p> <p>1. An action by a stockholder in a railway company to enjoin the acquisition by the company of stock in another railway on the ground that such acquisition would be xiltra vires, is an action for protection of the property rights of the stockholder, and the company whose stock it is proposed to acquire is not a necessary or proper party.</p> <p>2. Such an action must be brought in a county haying jurisdiction oyer the company in which the plaintiff is a stockholder.</p>

<p>ACTION FOR TORT OF A PUBLIC OFFICER OF ANOTHER STATE.</p> <p>'Jurisdiction — Refused by an Ohio Court — Where the Action Wa>s for Malicious Imprisonment by Officers of Another State.</p> <p>An Ohio court of common pleas will not take jurisdiction of an action in tort, brought by a resident of the state of Kentucky against a public officer of that state, where the only reason for the Ohio court assuming jurisdiction is that the defendant was found in this state, and the similar policy prevailing in both states indicates that justice could be better administered in a suit of like character now pending between the same parties in the state of their residence and the county where the cause of action arose. ■</p>

<p>REFUNDERS FOR DOW TAXES.</p> <p>Taxation — Procedure where Liquor Dealer Retires from Business — And Aslcs for a Refunder for Dow Tax Paid — No Notice Required of Entering of his Name on the Duplicate — Pleading—Section 6014-</p> <p>In an action against a county treasurer for recovery of a balance claimed to be due to one who has retired from the business of trafficking in intoxicating liquors before the expiration of the year for which he had paid the Dow tax, an allegation of the mere filing of an affidavit with the county auditor, setting forth that on a certain day the affiant did cease to do business and retired therefrom, does not meet the requirement of the statute that the auditor must be “satisfied” that the business has in fact been abandoned before he issues a refunding order.</p>

<p>QUALIFICATIONS FOR BRINGING AN ACTION TO QUIET TITLE.</p> <p>Action Quia Timet — Gan Not be Invoked to Create Title — But are Maintainable 'Only by Those Having Title — Inherited Title Not Divested by Indebtedness to Decedent — Proper Procedure with Reference to the Debtor Heir — Rights of Other Creditors of Said Heir and of Co-tenants.</p> <p>Inasmuch as a debtor heir must account to the estate of the decedent for the amount of his indebtedness, and his interest in the estate is liable for all his indebtedness without precedence to the claim of the estate, it follows that his co-tenants can not maintain an action against him and creditors other than the estate to quiet their title in the lands of the decedent.</p>

<p>DECISIONS AND OPINIONS DISTINGUISHED.</p> <p>New Trial — Time for Filing Motion for — Runs from the Decision in the Case — Not Necessarily from Announcement of the Opinion of the Court — Section 11578.</p> <p>Whether the remarks of a court at the end of a case — oral or in writing —are its decision, should be stated by the court — if these remarks are merely the court’s opinion, as the basis of a finding, they are not the court’s decision and no entry is necessary. But if such remarks are intended as a decision under the code, the court should say so and cause immediately an entry to that affect to be made of record, so that counsel may thus be advised definitely that time has begun to run.</p>

<p>MANDAMUS TO COMPEL AWARD OF BID FOR. PUBLIC WORK.</p> <p>Bids and Bidding — Mandamus to Compel Award by County Commissioners — Necessary Allegations — Discretion of Board in Making an Award for Public Work.</p> <p>1. Inasmuch as compliance by county commissioners with the provisions of Section 2343 is a condition precedent to the making of a valid contract for a public improvement, a petition in mandamus to compel the letting of a contract to the relator will not lie in the absence, of allegations that these conditions precedent have been complied with.</p> <p>2. The discretion reposed in county commissioners as to who is the lowest or best bidder, precludes a court from granting a writ of mandamus for the award of the contract to some other bidder, in the absence of any allegation or showing of abuse of such discretion.</p>

<p>INJURY FROM FALLING INTO HOLE IN THE STREET.</p> <p>Municipal Corporations — Liability of, for Injury from, Defect in Street— Question of, One for the Jury — Pleading—Trial.</p> <p>1. In an action for injuries due to a fall caused by a hole in the street, the question whether the hole was of sufficient size to constitute a dangerous defect, if it appears to he one as to which reasonably prudent men might disagree, will be left to the jury for determination under all the circumstances of the case.</p> <p>2. The fact that the evidence indicates that the hole was large does not preclude recovery on the ground of contributory negligence, where it appears that at the time of the accident the hole was filled or partly filled with freshly fallen snow.</p> <p>3. An averment in the answer that the plaintiff was injured through her own negligence and carelessness is not an averment of contributory negligence.</p> <p>4. A court has inherent power to grant leave to file a reply at any stage of the proceedings, and where a ease is tried on the theory that a xeply has been filed traversing the allegations of the answer, judgment will be entered on the verdict as though a reply had been in fact filed before the verdict was returned.</p>

<p>FINAL JURISDICTION OF MAGISTRATES IN CRIMINAL CASES.</p> <p>Jurisdiction — Of Magistrates is Final in Criminal Cases, When — Pro-hate Court Shorn of Jurisdiction on Error — Effect of the Enactment of Section 13432 as it Now Stands.</p> <p>Section 13432, General Code, gives final jurisdiction to justices of the peace in cases in which, imprisonment is a part of the punishment and a jury is not waived, and where it is attempted to carry such a case to the probate court a motion to discharge the accused will lie.</p>

<p>ESTOPPEL AGAINST CHANGED INTERPRETATION OF AGREEMENT.</p> <p>Release — Of an Endorser from Liability — Claimed under cm, Agreement Perhaps Purposely Made Indefinite — Estoppel—Injunction Against Levy of Execution.</p> <p>Where one of two parties secures from the other the partial performance of an indefinite agreement, and in so doing is aware of the understanding the party performing has as to the conditions embodied in tbe agreement, the said party is thereafter estopped, at least until the party performing has been placed in statu quo, from denying that the agreement should be as understood by him, and upon full performance he is entitled to all the benefits flowing therefrom.</p>

<p>STREET RAILWAY FARES WITHIN THE CORPORATE LIMITS OF CINCINNATI.</p> <p>Street Railways — As to the Right to Coiled Double Fares for a Single Continuous Journey in the Same General Direction within the Corporate Limits of Cincinnati — Injunction—Sections 91W et seq.</p> <p>The court is of the opinion that a double street railway fare — one on the track of an interurban road, and a second fare on the track of the Cincinnati Street' Railway Company — can not be legally collected for a single continuous journey in the same general direction within the corporate limits of the city of Cincinnati; but inasmuch as it is a matter that is in some doubt, the court declines to grant an injunction against the collection of such double fares, but leaves the status as it is until the law can be fully determined.</p>

<p>CONTRACT WITH AGED WOMAN NOT ENFORCIBLE.</p> <p>Specific Performance■ — Not Available Against an Aged Woman — Notwithstanding Absence of Fraud or Undue Influence, When — Plaintiffs Remedy an Action for Damages.</p> <p>An action for specific performance of a contract for the sale of real estate will not lie against a woman seventy-five years of age, notwithstanding her only objection to carrying out the agreement was-one of sentiment in connection with the property, hut the plaintiff will he relegated to an action for damages, where it appears that at the time of obtaining the contract the plaintiff knew that she was without the legal advice she was accustomed to have in connection with such transactions, and that only a minimum price was being proposed for the property, and the arrangement as to deferred payments was one which would be open to controversy, and the only damages he has sustained by reason of the breach is the loss of profits from a re-sale of the property, which' can he easily ascertained in an action for damages.</p>

<p>AN INVALID HIGHWAY CROSSING ACT.</p> <p>Constitutional Law — Provision for Avoiding Grade Crossings on Highways Invalid for Lack, of Provision for Notice to Railway Company.</p> <p>Section 8897, P. & A. Anno. G. C., authorizing a municipality in constructing a highway across an existing railroad to build it otherwise than at grade and charge one-half of the cost thereof to the railway company, is unconstitutional for the reason that no provision is made therein for notice to the company of such intention, with opportunity to be heard as in other assessment cases.</p>

<p>INVALIDITY OF THE VAGRANCY ACT.</p> <p>Constitutional Law — Section 13409 Relating to Vagrancy — Loosely Drawn and in Violation of the Bill of Rights.</p> <p>Section 13409 of the General Code, defining vagrancy and providing for the fining and imprisonment of vagrants, is indefinite to a degree which renders its enforcement impracticable, and is in violation of the inalienable right to the liberty clause of the Bill of Rights, and both the statute and the Cincinnati ordinance enacted thereunder are unconstitutional,</p>

<p>VALIDITY OF AN ISSUE OF MUNICIPAL BONDS FOR PURCHASE OF AN ELECTRIC LIGHT PLANT.</p> <p>Municipal Corporations — Proceedings for an Issue of Bonds in Excess of Two and One-half Per Cent, of the Aggregate Listed Value of Taxable Property — Application of the Grosser Act — Construction of Paragraph If of Section 3939.</p> <p>1. Paragraph 12 of Section 3939, P. & A. Anno. G. C., approved by the Governor on May 26, 1911, means the same and is reconcilable with the same paragraph as it appears in the act approved by the Governor on May 22, 1911,* the legislative intent being that mu: nicipalities should have the power to purchase or erect electric light plants for the purpose of furnishing light to the municipality and its inhabitants; and it follows that an ordinance providing for the erection of such a plant and the supplying of light therefrom does not contain a dual purpose and is not subject to attack on that account.</p> <p>2. An election for the purpose of authorizing a municipality to issue bonds in excess of two and one-half per cent, of the aggregate value of the property listed for taxation within the municipality is rendered invalid where less than sixty days elapsed between the passage of the resolution declaring the necessity of the .issuance of said bonds and the election approving said issue.</p> <p>3. The fact that the resolution declaring the necessity for an issue of bonds recited that such necessity existed “in the fiscal year” during which the resolution was adopted, is not rendered invalid by reason of the fact that the proceedings with reference to such bond issue were not completed until after another fiscal year had begun.</p> <p>4. An ordinance providing for the expenditure of money does not become operative under the Crosser law, Section 4227-1 P. & A. Anno. G. C., until sixty days after its passage; and advertisement for the sale of the bonds from which the funds for such expenditure are to be derived is without authority of law until the sixty days have expired, and the bids can not lawfully be opened and the bonds sold under an advertisement thus prematurely made.</p>

<p>UNREASONABLE RULE OF AN ASSOCIATION OF EMPLOYERS.</p> <p>Employer and Employe — Injunction Lies Against Enforcement of an Order for a Lockout, When — Rights of Both Parties.</p> <p>Injunction lies against enforcement of an order for a lockout, where under the rules of the organization of employers making the order its members are liable to fine or expulsion for disobedience thereof.</p>

<p>VERBAL AGREEMENT AS TO LOCATION OP A DIVIDING LINE INVALID.</p> <p>Boundary — Between Adjacent Lands Not Changed by Consent Verbally Given — Adverse Possession — Fences—Estoppel—Injunction.</p> <p>Where a fence has been recognized for more than twenty-one years as the true line between the lands of adjacent owners, the procuring by one of the owners of a survey which located the line twelve feet over on his land, together with a verbal direction given by , him to the adjoining owner to build a new fence on the new line, does not estop such owner from- afterward insisting that the line of the old fence shall be treated as the dividing line; and in such a case injunction lies to restrain the adjoining owner from the ancient line.</p>

<p>CLOSE QUESTION AS TO WHETHER THE INJURED PLAINTIFF WAS A VOLUNTEER.</p> <p>Pleading — Allegations Sufficient to Save the Plaintiff from the Rule Denying to a Volunteer the Right to Maintain an Action for Injuries.</p> <p>Where a plaintiff, suing for damages for injuries, names his own employer and a tenant of his employer as defendants, and alleges that the 'injury occurred while he was assisting the foreman of said tenant, and that the assistance was being rendered at the request of said foreman, and that as the owner of the premises it was beneficial to his own employer, a demurrer interposed by said tenant does not lie on the ground that the plaintiff at the time of the accident was acting as a mere volunteer.</p>

<p>LABOR. TROUBLES.</p> <p>Strikes and Labor Troubles — Blanket Injunction Will Hot be Issued Against a Labor Union — Hor Against Individual Members, Unless —Attitude of a Court of Equity With Reference to Disputes Between Capital and Labor:</p> <p>A court of equity, in carrying out its recognized duty of refusing to permit either employer or employe to terrorize the other, must also refuse to permit that it be itself made a scarecrow by issuing an injunction for the purpose of frightening either side; from which it follows that a blanket injunction will not he issued against a labor union for the purpose of restraining its unnamed members from committing offenses, nor against individual members of a union except upon hearing; or if the circumstances are such as to require the issuance of such an order without notice, the reason therefor must be of sufficient force to require that it be set forth in an entry.</p>

<p>PLACES OF PUBLIC ACCOMMODATION UNDER THE CIVIL RIGHTS STATUTE.</p> <p>Civil Rights — Confectionery and Ice Cream Parlor Falls Within the Statute, When — Exclusion of a Colored Mam — His Right to Maintain an Action for Damages Upheld — Section 10213 — Meaning of the Words “Public Accommodation."</p> <p>A confectionery store and ice cream parlor, where foods and refreshing non-intoxicating drinks are served, and tables, chairs and other conveniences are provided for the convenience of customers, is a place of “public accommodation” 'within the meaning of the civil rights statute.</p>

<p>TAXES PAYABLE BY A CORPORATION IN PROCESS OF DISSOLUTION.</p> <p>Taxation — Duty of Receiver with Reference to Return for Taxation — Of Property of a Corporation in Process of Dissolution — Section 11945.</p> <p>Where a corporation is in court for the purpose of dissolution, the receiver thereof will return for taxation the personalty so coming into his hands and will be required to pay taxes on the real estate belonging to the corporation due and to become due for the current calendar year.</p>

<p>INVALIDITY OF LOITERING ORDINANCE.</p> <p>Loitering — No Authority Conferred XJpon Municipalities to Prohibit by Ordinance — Disorderly Conduct — Sections 3658 and 3664.</p> <p>1. Municipalities are without statutory authority for the enactment of an ordinance making loitering or wandering about the streets a crime.</p> <p>2. Disorderly conduct is not defined by any Ohio statute, or by any ordinance of the city in which the accused was convicted of loitering, and the court is unable to sustain the conviction by holding that loitering constitutes disorderly conduct as a matter of law.</p>

<p>BELATED DEMAND FOR. AN ACCOUNTING FROM THE REPRESENTATIVE OF A TRUSTEE.</p> <p>Trust — Terminated by Death of Trustee — Statute of Limitations and Other Restrictions — Run Against Claims Not Filed with Representative of the Trustee.</p> <p>A trust is terminated by the death of the trustee, and the relation of debtor and creditor thereupon arises, and where the beneficiaries under the trust neglect to demand an accounting by the representative of the trustee, or to file their claims with him, the statute of limitations runs against them and all the restrictions which apply to the filing of claims against the estate of a decedent also obtained against them.</p>

<p>ESTATES TAIL AND FOR LIFE.</p> <p>"Wills — Construction of a Devise and “to the Heirs of Her Body in Fee” —Buie in Shelley’s Case — Partition Proceedings Hot Subject to Attack by the Parties Thereto or Their Privies — Purchaser at Partition a Grantee of the Parties — Title—Estoppel—Bights of Mortgagee as Against Parties to the Mortgage Who Were Without Title.</p> <p>1. A devise of real estate in Ohio, to A. C., “for the term of her natural life, and at her decease to go to the heirs of her body in fee,” made by a resident of Ohio, after 1840 does not create an estate tail in A. C.. but vests in A. C. an estate for life, with remainder to the issue of her body. The rule in Shelley’s case can not be applied to declare such a devise an estate tail.</p> <p>2. The rule in Shelley’s case is a rule of property and not a rule of construction to be applied in the determination of the meaning' of language in a grant or devise; and since the abolition of this rule in Ohio, as to wills, in 1840, it can not be invoked either as a ■ rule of property or construction, to determine the character of the estate devised.</p> <p>3. A decree or judgment in partition proceedings, finding the interest ■ and title of the parties thereto can not be attacked or questioned in a subsequent action or proceeding instituted by any of the parties to the former proceeding or their privies, so long as the judgment or decree in the former action remains unreversed and in full force. •</p> <p>4. A deed in partition proceedings made by the sheriff in pursuance of a decree of the court, where all of the parties are duly and legally served with process or enter their appearance or answer to the merits, is the deed of the parties to the proceedings; and a purchaser under such a deed is to be regarded as the grantee of the parties to the partition proceedings. The transfer to- the purchaser, in such a case, operates as a complete extinguishment of the title and interests of the parties to the partition proceedings. •</p> <p>5. Where persons, who do not have title to real estate, join in a mortgage to secure the payment of their own debt or the debt of any one of them, and in such mortgage warrant their title, by covenants of general warranty, such a covenant is one that adheres to the land, runs with it, and is transmitted with the estate whether the same passes by descent or purchase. Such persons are subsequently estopped, by their mortgage deed, as between them and the mortgagee and those who acquire title to the land through the mortgagee • or his interest in the land, from setting up their want of title at the time the mortgage was executed.</p> <p>6. A party who voluntarily tabes the benefits of a judgment or decree in a partition proceeding will not be permitted in a subsequent action or proceeding to question the validity of the proceeding, findings or judgment. He is concluded and estopped by the former judgment or decree.</p>

<p>NECESSARY AVERMENTS IN AN ACTION FOR DAMAGES FOR. BREACH OF CONTRACT.</p> <p>Pleading — Averments as to an Agreement, Alleged to he in Breach, Are Sufficient, When — Essential Allegations Gam, Not he Beached hy a Motion to Strike Out — Brevity Essential, But ■Should he Subordinated to Purposes of the Gode — Pacts Excusing Non-Performance Not Immaterial or Irrelevant — Election Gan Not he Bequired as Between Allegations of Fact — Pleading of Inconsistent Allegations of Fact in the Alternative — Evidential and Ultimaste Facts.</p> <p>1. An allegation of an agreement is often an allegation of mixed law and fact, and it is sufficient to allege the agreement as it was at the time of the breach without giving all the agreements and modifications thereof resulting in the ultimate agreement.</p> <p>2. Except as specifically provided by the code, an insertion of agreements bodily in a petition is not good pleading, but the remedy is not a motion to strike out but for a reformation of the petition. However informal a pleading may be a court can not strike out allegations essential to plaintiff’s cause of action.</p> <p>3. Where the line between evidential and ultimate facts is not clear and the plaintiff relies upon certain well defined facts in support of what otherwise would be an essential allegation of mixed law and fact, he should he allowed to plead them so that the issues as to such facts of their sufficiency may be clearly presented. Brevity in pleading is to be desired and is accomplished by the allegation of ultimate facts, but should be subordinate to the purposes of the code, which is to present clear and separate issues of law and fact.</p> <p>4. Facts constituting excuses for non-performance of condition, waiver of performance, estoppel to claim non-performance, and interpretation by the parties themselves of ambiguous conditions are not immaterial nor irrelevant.</p> <p>5. Allegations or fact in a petition not pleaded in the alternative, all of which may be true and therefore not inconsistent although the plaintiff is not required to establish all and might ultimately elect to establish one or more, may be and should ordinarily be alleged in one statement as a cause of action; but whether so alleged or divided into separate statements or counts, each sufficient as a cause of action, the plaintiff is not required to elect between them.</p> <p>6. If the allegations of fact can not all be true and are therefore inconsistent, nevertheless, if they are such that the plaintiff can have a fair doubt as to which he can establish, he may be permitted without error, and therefore in such cases should be allowed to plead such facts in the alternative in the form of separately numbered statements or counts.</p>

<p>AS TO RECOVERY OF COSTS IN AN ACTION FOR. A NUISANCE.</p> <p>Costs — May Be Recovered in an Action for Maintaining a Nuisance, When — Horse Injured in Hole in Street — Sections 11626 and 10232.</p> <p>1. An action for damages for injury to a horse resulting from a hole in a public street is an action for a nuisance.</p> <p>2. Inasmuch as justices of the peace do not have jurisdiction in such a case, a plaintiff recovering a judgment for less than $100 and more than $5 may also recover his costs.</p>

<p>CORRECTIONS OF TAX DUPLICATE BY COUNTY AUDITOR.</p> <p>Taxation — Construction of Tax Commission Act — With Reference to Corrections of Duplicate Made hy County Auditor — Act Operates Prospectively Only — Auditors Were Not Deprived of Authority to Mahe Corrections in Duplicate of 1911.</p> <p>Giving to the act creating the Tax Commission of Ohio the prospective effect required by the rules of construction, it follows that the power with which the commission was clothed operated only upon returns made to it, and a correction of his duplicate made by a county auditor before the close of 1910 was not affected by this act, and was a legally authorized correction of the duplicate.</p>

<p>Appeal from probate court, in the matter of the exceptions to the final account of E. B. Campbell, executor of the estate of Drusilla Akins, deceased.</p>

<p>COMPENSATION FOR THE PRIVILEGE OF LAYING GAS PIPES IN THE STREETS.</p> <p>Municipal Corporations — Power of, to Contract for the Use of Streets— das Company Estopped from .Disputing Validity of Ordinance Under Which it Has Long Operated — Sections 9320 and 10128.</p> <p>1. A municipality may, in its propriety character, make a contract with a gas company, granting to such company the right to. use the city streets for the purpose of laying pipes for the purpose of distribution of gas to consumers, and providing a consideration for such use.</p> <p>2. A gas company which has accepted several ordinances granting it the right to lay its pipes in the streets, and has so laid its pipes and used them for a long period, is estopped from questioning the validity of the ordinances under which it has been operating; nor can it successfully resist, as unreasonable, or as an unconstitutional taking of its property without due process of law, the collection by the municipality of a consideration of ten per cent, of its sales of gas as provided in its contract for the use of the streets.</p>

<p>cited and commented upon Scofield v. Railway, 43 Ohio St., 571; State v. Railway, 47 Ohio St., 130; Texas & P. Ry. v. Oil Co., 204 IT. S., 426; Abilene Cotton Oil Co. v. Railway, 38 Tex. Civ. App., 366; Gentsch v. State, 71 Ohio St., 151; Palmer v. Tingle, 55 Ohio St., 423;-."Western Union Tel. Co. v. Publishing Co., 181 U. S., 92; High, Injunctions, Section 31; Brown’s Appeal, 66 Pa. St., 155; Pomeroy, Equity, Section 281.</p>

<p>LIENS FOR FEES OF AN ATTORNEY UPON THE JUDGMENT RECOVERED.</p> <p>Attorney and Client — Lien may he Asserted on Judgment for Seriviees Rendered — Extent of Such Lien — Mode of Trial — Right of Trial hy Jury has not heen Extended hy Section 11SJ9 — But Court of Equity Talces Jurisdiction for All Purposes.</p> <p>1. An attorney acquires an equitable lien on the proceds of a judgment recovered through his efforts in favor of his client, and where no agreement was entered into as to the amount of Ms compensation the extent of the lien so acquired will be the reasonable value of the services rendered.</p> <p>2. An action to determine the amount due to an attorney on account of services in procuring a judgment in process of settlement is an equitable proceeding, properly referable to a master for report, and does not fall under Section 11379, which merely preserves the common law right of trial by jury, and does not extend to cases peculiar to a court of equity. Q-ausaullus v. Pettit, 46 Ohio St., 27, criticized.</p>

<p>SERVICE ON FOREIGN CORPORATIONS.</p> <p>Summons — Service on Agent of Foreign Corporation — -No Advantage Given Over Domestic Corporations — Section 11288.</p> <p>The agent of a foreign corporation doing business in this state, may be served in any county in the state where he may be found and by process issuing out of any county in the state.</p>

<p>FAILURE TO ENJOIN THE CARRYING ON OF BUSINESS BY A LOCAL TELEPHONE COMPANY.</p> <p>Telephone — Certificate from Public Utilities Commission Not Necessary for a Company Purposing to do a Private Business Only — Failure of Proof as to a Contrary Intention — Adequacy of Present Service and Pleading with Reference Thereto — Injunction—Franchises Distinguished.</p> <p>1. A. certificate from the public utilities commission is not necessary to authorize a telephone company to carry on a telephone business, unless the company is seeking to exercise some license or franchise, and proof of the incorporation of a telephone company and the purchase of fifty telephone instruments and some poles, cross-arms, wire, etc., is not sufficient to sustain an allegation that the company is about to exercise a franchise and engage in the public service, as distinguished from providing private lines for the use of stockholders and others residing within a short distance.</p> <p>2. An allegation by an existing telephone company that it is rendering adequate service in the field of its operation, where not supported by any evidence and traversed by the answer of the defendant, requires a judgment in favor of the defendant as to that issue.</p> <p>3. It is not contempt of court for persons who have been enjoined from entering into the telephone business to communicate with each other over private lines, which are not connected with any switchboard and are not capable of serving anyone except those on each particular wire.</p>

<p>LOSS OF LIEN BY FAILURE TO RECORD ASSIGNMENT OF MORTGAGE.</p> <p>Assignment of Mortgages — Construction of Act Relating to Failure to Record Assignment Renders Lien Invalid as to Subsequent Purchasers Without Notice — Right of a Purchaser to Rely on the Title as it Appears of Record — Merger—Equity as Between Two Innocent Parties — Sections 8543 and 8546.</p> <p>1. Where a purchase money mortgage has been executed and delivered to the grantor of the lands conveyed, a reconveyance of the lands to him by the grantee does not cause the greater and lesser estates to meet in him and thus effect a merger, where the mortgage was not surrendered by him upon receiving the reconveyance or at any time thereafter, but had been assigned and thus passed into possession of third parties.</p> <p>2. Where there has been a failure to record the assignment of a mortgage, a subsequent purchaser of the land in good faith for full value without notice of the assignment takes title free from the * lien of the mortgage in the hands of the assignee.</p> <p>3. Moreover, as between an innocent purchaser of land and the assignee of a mortgage the assignment of which has not been recorded, the act of negligence which caused the conflict of interest was0the failure to record the assignment, and the equity of the purchaser of the land is first in time and superior in merit.</p>

<p>RENTAL FOR"OIL AND GAS LANDS.</p> <p>Oil and Gas — Liability of Lessee for Rental — Where no Well is Sunk During the First Tear of the Lease.</p> <p>Where a lease covering oil and gas lands contains the provision that, in the event no well is completed during the first year of the lease, it may be extended by payment of an “annual rental thereafter until said first well is completed,” but does not stipulate that the rent shall be paid in advance, the lessee has the provilege of paying at any time during the year, and upon his failure to pay suit will lie therefor.</p>

<p>LACHES IN PAYING TAXES ON ANOTHER MAN’S LAND.</p> <p>Taxation — Land Wrongfully 'Returned as Delinquent — Construction of the Provision for Return of Money to Purchaser at Tax Sale— Laches in Payment of Taxes Wrongfully Charged — Both Chance and Peril Involved in Purchases at Ta>x Sales — Errors Fundamental and Clerical in Tax Duplicate — Sections 2908, 2781 and 2782, R. S., and 2588 and 2590, G. C.</p> <p>1. The provision of Section 2908, R. S., as that statute read in the year 1885, that where land is erroneously returned as delinquent and is sold for taxes, the sale shall be void “and the money paid by the purchaser at such tax sale shall be returned to him,” authorized the refunding only of the money paid for the certificate of purchase at the time of the delinquent sale, and did not authorize the refunding of taxes which became due and were paid by the purchaser subsequent to the delinquent sale.</p> <p>2. Where an error in apportioning taxes is due to the neglect of a legal duty, it is deprived of the character of a mistake In the legal sense, and does not fall into the class which are characterized as clerical errors.</p> <p>3. Inasmuch as the mistake which forms the basis of the present suit was due to the negligence of the auditor in placing in plaintiff’s name on the tax duplicate land which did not belong to him, and upon which plaintiff paid taxes for a long period, it must he treated as a fundamental rather than a clerical error, and an order for the issuance of, a refunder for taxes so wrongfully charged, and which the plaintiff paid, can not be granted.</p>

<p>DAMAGE TO PROPERTY FROM COLLAPSE OF SEWER.</p> <p>High- "Water Clauses Sewer to ■Burst — Adjacent Property Damaged — Liability of Municipality Growing Out of the Building of an Embankment.</p> <p>An action by a property owner, for damages resulting from tbe bursting of a sewer during bigb water, does not lie against a municipality on tbe allegation that tbe collapse of tbe sewer was due to the building of an embankment upon which a street is carried over low ground, unless it is made to appear that the embankment turned the rising water into the basin in which tbe sewer was located and from which basin the embankment prevented tbe water from escaping.</p>

<p>DEPARTURE FROM CAUSE OF ACTION ON APPEAL.</p> <p>Appeal — Open to Dismissal where Cause of Action Has Been Changed —Character of Action for Recovery of Insurance Premiums Overdue.</p> <p>1. An action to recover insurance premiums alleged to he due and unpaid is not an action on an account, but is for money paid out at the request of the defendant.</p> <p>2. On appeal to the common pleas, a motion will lie to strike from the flies an amended petition which states a cause of action different from that tried before the justice of the peace.</p>

<p>DAMAGES FOR INEXCUSABLE SEIZURE OF HOUSEHOLD GOODS.</p> <p>Unjustifiable Seizure by an Installment House — Measure oí Damages Therefor — Prejudice of Jury — Charge of Court — Grounds for Remittitur.</p> <p>1. The entering of plaintiff’s apartments by agents of an installment house, and the seizing and carrying away of part of her household furniture, through mistake but without justification, was an act which was calculated to prejudice a jury impanneled to fix the damages suffered by plaintiff thereby; and where the verdict so returned was for $3,500, it must he regarded as excessive, and it is the duty of the trial court to reduce by remittitur the amount thus fixed.</p> <p>2. In the case at bar the plaintiff was in delicate health, and the damages suffered by her from humiliation and nervous shock may reasonably be fixed at $1,000, while there may properly be added thereto $500 as punitive damages and $500 as counsel fees, making $2,000 the total allowance.</p>

<p>AGREEMENT TO MAINTAIN A STAIRWAY.</p> <p>Deeds — Privity of Estate — Covenant Runs with the Land, When — Evidence as to Intention of the Parties — Land Subjected to a Servitude by Agreement to Maintain a Structure.</p> <p>1. The recital in a deed, "subject to the condition that the owner of the part of the said lot herein described shall build, construct, maintain and keep in repair a passage, stairway and landing not less than three feet in width along and adjoining the party wall between the south part of said lot and the part herein described,” constitutes a covenant running with the land, and not a condition subsequent or an agreement personal to the parties thereto.</p> <p>2. In construing such a recital it is not error to admit testimony throwing light upon the circumstances surrounding the parties to the deed at the time of its execution.</p>

<p>HORSE INJURED IN A TOLL GATE.</p> <p>Negligence — On the Part of a Toll-road Company — In Blocicing the Wa>y By Leaving the Gate Down at Night.</p> <p>Injury to the horse of a traveler on the highway from leaving a toll gate down at night without lights or other warning, constitutes a cause of action.</p>

<p>USE OF STREETS BY INTERURBANS.</p> <p>Franchise of an Interurban Railway — Does Not Give Right to Dse Street for Unloading Freight, When.</p> <p>A franchise granting to an interur.ban railway company the right to run upon tracks laid in certain streets and to “transport passengers, baggage, mail, express, freight and other articles pertaining to the business of said railway company,” does not give the company the right to use a portion of one of the streets so designated as a station for loading and unloading freight.</p>

<p>TAXABILITY OF ATHLETIC CLUB PROPERTY.</p> <p>Taxation — Construction of the Phrase “Purely Public Charity” — Property of a Gymnasium and Athletic Club Palls Within that Designation, When— Use to which Property is Devoted Determines Ms Character — Section 5353.'</p> <p>1. The words “public charity only,” as used in Section 5353 of the General Code, must of necessity be given the same meaning as the words “purely public charity” as used in the same connection in -the state Constitution and in the sixth paragraph of Section 2732, Revised Statutes..</p> <p>2. Where property is used for purely public charity, the form or name or character of the organization controlling it is without importance and can in no way affect the question of its taxability.</p> <p>3. The property of a gymnasium and athletic club, a corporation not for profit, without capital stock or salaried officers, supported by initiation fees and donations in the form of life memberships, open to males of a certain age and good moral character up to the capacity of its facilities, and devoted exclusively to -the promotion of good health through physical culture, is property devoted to purely public charity and is not subject to taxation.</p>

<p>MAINTENANCE OF FENCES ON RAILWAY RIGHTS-OF-WAY.</p> <p>Railways — Liability for Insufficient Fence on Right-of-way — Agreement Made by Predecessor in Title, Upon Subdividing His Tract, to Maintain Fence Not Available to the Railway Company — Section 8918.</p> <p>Liability of a railway company for live stock killed by a train is not defeated by an agreement on the part of a predecessor in title to build and maintain a right-of-way fence, in the absence o-f an averment by the railway company that compensation for the building of the fence was taken into account and made a part of the consideration to be paid to the land owner by the railway company at the point where the stock was killed.</p>

<p>INCONSISTENT THEORIES OF NEGLIGENCE.</p> <p>Pleading — Disregard of Provision of Code as to Avoiding Repetition-Negligence and Inconsistent Averments with Reference Thereto.</p> <p>1. Tbe disposition of pleaders to follow the common law method, and in an action for personal injuries allege every conceivable form of negligence possible under the circumstances of the case, is in direct contravention of the provision of the code which requires a statement of the facts without repetition.</p> <p>2. Recapitulation of all the grounds of negligence contained in the body of the petition at the end thereof, is in violation of the Code forbidding repetition.</p> <p>3. Where a specific charge of negligence is not coupled with any of the facts alleged in the general charge of negligence, but is inconsistent with the facts so alleged, it will be stricken from the petition.</p>

<p>LIABILITY OF BROKER. TO SELLER OF SECURITIES.</p> <p>Sales of Securities — Broker Liable to Seller Upon Default of Undisclosed Purchaser — Measure of Damages Growing Out of the Default.</p> <p>1. A broker, who buys shares of stock for an undisclosed third person, becomes personally liable to the seller upon default of his principal.</p> <p>2. Such broker is not relieved from such liability by making it known that he is buying for a third person,'unless he names his principal or discloses his identity so that the seller knows to whom he is selling.</p> <p>3. In such case, upon default of the principal, the seller may rescind the contract, retain the stock, and recover from the broker the difference between the contract price and the market price at the time of the default.</p>

<p>PERMITTING PROSTITUTES TO RESORT IN A DRAM SHOP.</p> <p>Criminal Law — Ordinance Prohibiting Use of Dram Shop as a Place of Resort for Prostitutes — Prosecution Thereunder — Knowledge on Part of the Keeper as to Character of Habitues — Degree of Proof Required to Establish that Certain Women Are Common Prostitutes —Character Must Be Distinguished from Reputation.</p> <p>1. In order to establish guilt on the part of the keeper of a dram shop, under an ordinance making it a punishable offense to “permit such place to be used, frequented or resorted to by [among others] . any common prostitute,” it must be made to appear from the evidence that the persons named in the affidavit were common prostitutes, and that the defendant had knowledge that persons so using, frequenting and resorting to his place were of the character charged; and in the trial of one so accused it is error to refuse to admit evidence that the instructions of the defendant to his employes were to exclude objectionable characters.</p> <p>2. A common prostitute is a woman who habitually engages in acts of prostitution, and either habitually solicits men to engage in such acts with her, or habitually resides in a place kept for that purpose, or who holds herself out as one who is willing and anxious to engage in acts of promiscuous prostitution.</p> <p>3. The evidence required to place a woman within the designation of a common prostitute'relates less to individual acts than to general conduct and behavior characteristic of one plying that avocation.</p> <p>4. Under the Columbus ordinance evidence relating to womien of questionable behavior must go to the question of character rather than reputation; and the practice of seeking to establish lewdness by the testimony of police officers as to reputation, without further evidence as to facts and circumstances upon which such reputation is based, is to be severely condemned.</p>

<p>DAMAGES CAUSED BY THE CLOSING OF A STREET.</p> <p>Municipal Corporations — Street Closed by Washing Out of Bridge — Failure of Municipality to Restore Bridge — Action for Damages by a Resident Affected Thereby.</p> <p>An action will not lie against a municipality for damages growing out of the closing of a street, where the plaintiff sues on behalf of all the residents of that part of the city affected thereby.</p>

<p>AFFIDAVITS IN REPLEVIN.</p> <p>Replevin — Affidavit Rendered Void l>y Being 8%oorn to Before Plaintiff's ■ Attorney as Rotary — Sections 10462, 11524, 11532 and 11356.</p> <p>The making of an affidavit in replevin before the attorney for the plaint iff as notary renders the affidavit void, and a writ based upon an affidavit so made must be dismissed.</p>

<p>LOSS OF CORPORATE STOCK THROUGH LACHES OF THE HOLDER..</p> <p>Equitable Intervention — Denied to a Stockholder Guilty of Gross Laches ■ — Stock Forfeited for Failure to Pay Assessments — Irregularities Not Available to Support a Stale Equity — Knowledge of the Fact of Forfeiture — Intervening of New Rights — Subdivision Owned by a Corporation — Lots Unsaleable for Many Years Finally Become Valuable — Delinquent Stockholder Denied Relief.</p> <p>H held stock in a corporation which acquired a tract of land -and platted it into lots for a subdivision. ' The property was without street car facilities, sewers or other conveniences, and for a long period the company was in a precarious condition financially. H took no interest in its affairs and failed to pay'assessments levied on her stock. In the meantime the property was taken over by another company with a reduced capital, the old company was dissolved and delinquent stock forfeited. At the end of fifteen years, owing to the growth of the city, the building of a street car line and provision for other improvements, the property had become valuable, and H. filed a petition in equity, praying for a decree declaring that the property was held in trust for the benefit of the stockholders of the old company.</p> <p>Held: That H has slept upon her rights, and notwithstanding some irregularities in the manner of dissolving the old company and cancelling its delinquent stock, a court of equity will not be moved by so stale a claim, in the face of gross laches, to grant the relief which she seeks.</p>

<p>APPEAL QUASHED FOR. IRREGULARITY.</p> <p>Appeal — Statutory Provisions with Reference to Bond on Appeal from Justice of the Peace — Where Signed by a Non-Resident there is in Law no Surety — Sections 10219, 10383, 10394 and 10395.</p> <p>A motion lies to dismiss an appeal from a justice of the peace, where the surety on the bond is not, and was not at the time of the giving of the bond, a resident of the state.</p>

<p>LEGALITY OF PROCEEDINGS FOR. A PUBLIC IMPROVEMENT, i</p> <p>,Municipal Corporations — Legislation by Council for a Public Improvement — -Requirements as to Publication of Ordinances — Bids for the Work — Acceptance of Material Manufactured by Only One Concern —Section 4228.</p> <p>1. An ordinance reciting that at an election duly held an issue of bonds was authorized for the purpose of meeting the expense of a designated public improvement and appropriating the proceeds from the sale of said bonds for said purpose, is the determining ordinance with reference to such .improvement, and where published in accordance with law injunction will not lie to stop the proposed work because of failure to publish a subsequent ordinance which merely ordered the director of public service to enter into a contract with the lowest and best bidder for the carrying forward and completion of said work.</p> <p>2. Public officials in considering bids for a public improvement are not debarred from determining to use material which is manufactured by only one firm, where such material is not covered by patents, .and in the exercise of a reasonable discretion it is accepted, all things considered, as the best offered for the purpose intended.</p>

<p>PUBLICATION IN ATTACHMENT.</p> <p>Attachment — Affidavit for Publication Defective, When — Statutory Provissions Must be Strictly Followed — Section 11292, Relating to Service by Publication.</p> <p>1. In an action in attachment the affidavit for publication can not be assisted by the affidavit for attachment or by the petition, but each of the three must be sufficient in itself for the purpose which it fulfills.</p> <p>2. An affidavit for publication in an attachment proceeding is insufficient if it neither refers to Section 11292 by number, or states that the action is one in which it is sought by a provisional,remedy to take or appropriate the property of another, and service obtained under such an affidavit is open to a motion to quash.</p>

<p>DISCRETION IN ALLOWING AN APPLICATION FOR A REVIVOR.</p> <p>Revivor — Relay of More Than One Yew in Applying for — Circumstances Warranting a Court in Granting Application — Sections 11402, 11410 and 11411.</p> <p>In an action for damages on account of malpractice, which, caused the plaintiff much suffering and los's, a court in the exercise of substantial justice will permit a revivor out of time against the executor of the defendant, where objection thereto is based entirely upon the negligence 'of the plaintiff in delaying his application and the disadvantage under which counsel for the executor labor in being deprived of the aid of the decedent in the preparation and trial of the case.</p>

<p>SERVICE OF SUMMONS IN DIVORCE CASES.</p> <p>Divorce — Laxity in the Matter of Service of Summons — Notice Miust .Be Given by Publication tohen the Defendant is a Non-Resident Section 11297.</p> <p>The statutory provisions for service of summons in actions for divorce should he strictly construed and .followed, which requires that where the defendant is a non-resident of the state notice must be given by publication, and not by personal service.</p>

<p>CONSTRUCTION OF THE WORKMEN’S COMPENSATION ACT.</p> <p>Compensation for Injuries Sustained by Employes — Right of Recovery on the Ground of Negligence Enlarged — Former Defenses Eliminated — Test of Employer’s Liability — Section 1465-60.</p> <p>1. The Workmen’s Compensation Act, General Code, Section 1465-60 (102 O. L., 529, Sec. 21-1), which provides that an employer of five or more workmen, who has not paid the premiums prescribed by said act, shall be liable in damages to any employe for injury caused by “the wrongful act, neglect or default” of such employer, his officers, agents, or other employes, enlarges the basis for recovery on the ground of negligence as it exists at common law, not only by taking away the defenses of the fellow-servant rule, contributory negligence, and assumption of risk, but also by making such .employer liable in damages for injuries caused by any wrongful act, neglect or default, gross or slight, which causes such injuries.</p> <p>2. The test of liability, under General Code, Section 1465-60, is not whether the employer exercised ordinary care but whether he was guilty of any wrongful act, neglect or default, which caused the injuries.</p>

<p>AS TO COMPETITIVE BIDDING FOR. ENGINEERING WORK.</p> <p>Municipal Corporations — Contract with Engineers for Discovering Water Waste Need Not be Submitted to Competitive Bidding— Certificate of Auditor — Ordinance Authorizing Payment.</p> <p>1. A director of public service may employ, without competitive bidding, competent engineers to locate serious water waste, notwithstanding the cost thereof will exceed $500.</p> <p>2. Where the funds to be used in paying for such services are not to be derived from taxation, but from the revenue arising from water rents, it is not necessary the auditor first certify that there are sufficient funds in the treasury and unappropriated to meet said obligation.</p> <p>3. An ordinance, subsequently passed authorizing payment for such services of the sum required in excess of $500, is a mere granting of authority to pay a valid obligation and is itself valid.</p>

<p>VACATION OF DEFAULT JUDGMENT AFTER. TERM.</p> <p>Judgments — Misunderstanding Between Attorney and Client — Resulting in Judgment Being TaTten by Default — Held Not to Have Been an “Unavoidable Casualty or Misfortune” — Procedure where Foreign Corporation Has Failed to File a Certificate with the Secretary of State — Sections 11631 and 183.</p> <p>1. A misunderstanding between attorney and client, by reason whereof a default judgment was taken against the client, does not constitute such unavoidable casualty and misfortune as authorizes the vacation of the judgment after term.</p> <p>2. In an action by a foreign corporation it is not necessary that the petition aver compliance with the statutory requirement as to the filing of a certificate with the Secretary of State as a condition precedent to the right to do business within the state. The defense of such non-compliance must be raised by answer, and does not go to the jurisdiction of the court, and is too late after judgment.</p>

<p>DETERMINATION AS TO BENEFICIARY.</p> <p>Beneficial Insurance — Brothers of a Policeman Distinguished, as His Beneficiaries — Designation Hot Revoked by Subsequent Marriage— And Court Without Authority to Order the Fund Paid to the Widow.</p> <p>The designation by an unmarried man of his brothers as beneficiaries of a fund payable as his death by a mutual benefit association is not invalidated or revoked by his subsequent marriage. Brotherhood of Railway Trainmen v. Tcsylor, 9 C.C. (N.S.), 17, distinguished.</p>

<p>ACTION BY STOCKHOLDERIFOR. INSPECTION OF BOOKS.</p> <p>Corporations — Injunction Restraining Refusal to Permit Stockholder to Examine Books and Records — Statutory Right Extends fot Preferred Stockholders — Parties—Section 8673.</p> <p>1. Where an action is brought against a corporation, and its president is also made defendant therein, as president and individually, and a cause of action is stated in the petition against the corporation but not against the other defendant, the latter will be dismissed from the case, on demurrer.</p> <p>2. General Code, Section 8673, which prescribes that the books and records of a corporation for profit shall be open for inspection by holders of stock, at all reasonable times, applies to holders of preferred as well as to holders of common stock.</p>

<p>LOCAL OPTION IN RESIDENCE DISTRICTS.</p> <p>Petition to Prohibit Liquor Traffic in Residence District — Description of Proposed District and Map thereof Insufficient, When — Section 611,0.</p> <p>Where neither the petition for the prohibition of the sale of intoxicating liquor in a residence district, nor the map attached thereto, or the map and petition taken together, give the number or location of the saloons in the proposed territory, the requirement of the statute that the number and location of the saloons be shown has not been complied with, and the petition or the map and petition taken together are insufficient and must be dismissed.</p>

<p>DAMAGES FOR. INJURY TO A MINOR.</p> <p>Infants — Pleading in Action for Injuries to Minor — Beal Plaintiff the Minor, Though Suit is by Next Friend — Section 7997.</p> <p>In an action by a minor'through his next friend for damages for personal injuries, a motion lies to strike from the petition items of expense for board, lodging and medical care as being irrelevant and immaterial.</p>

<p>EASEMENT FOR. A DRAIN.</p> <p>Easements — Drain Carried Across an Adjoining Lot Belonging to the Same Owner — Both Lots Subsequently Pass to New Owners — Easement for Drains of Strict Necessity, and Easements by Implication.</p> <p>1. Where the owner of two lots of land, on which he has built houses drains one house by means of a private sewer which is laid through the other lot, and subsequently sells and conveys the house so drained, himself retaining the other lot, an easement is thereby created to continue the use of such private sewer, provided such easement is of a permanent nature, apparent, and beneficial to the premises so sold and conveyed.</p> <p>2. In such case, where the use of the drain is not granted by the conveyance, but the premises are conveyed with all “appurtenances,” “rights,” or “privileges,” the easement is created by implication.</p> <p>3. But where, in such cáse the .grantee is ignorant of the existence of the drain, and the same is not apparent on examination of the premises conveyed, no easement is created, except in case of strict necessity.</p> <p>4. There can be no implied easement of drainage by strict necessity, where a privy-vault or cess-pool can be constructed on the premises which will take up the drainage even though the construction thereof will involve considerable expense and be less convenient than the drain, and may detract from the appearance and value of the property.</p> <p>5. Where such an easement has been created by implication, and thereafter the grantor sells and conveys the servient tenement, and the conveyance does not mention the easement, and there is nothing in the appearance or condition of the premises to put the purchaser on . inquiry, and the latter pays the purchase money and receives his conveyance without having knowledge of such easement, the easement is extinguished and he takes the property free of the same.</p>

<p>PRESUMPTION AGAINST INTESTACY.</p> <p>Wills — Residuary Clause May Be Followed by Other Bequests — Partial Wills Almost Unknown, and a Presumption Arises Against Intestacy as to Any Part of cm Estate — Words and Phrases.</p> <p>1. The will of B provided in one of its clauses that “all of my effects and household goods not mentioned above is to be divided between,” etc. Held: That said clause is residuary, notwithstanding it is followed by other bequests.'</p> <p>2. The doctrine of ejusdem generis is limited in its application to clauses not residuary,, and the word “effects” as above used is therefore not limited to property of the same general character and description as household goods.</p> <p>3. Where a provision in a will is equivocal or of doubtful or uncertain meaning, the terms of the residuary clause will be so construed as to prevent intestacy; and this rule gives to the children in this case the entire estate share and share, except the specific legacies named therein.</p>

<p>LIMITATIONS OF ACTIONS FOR RECOVERY OF TAX ASSESSMENTS. .</p> <p>Assessments — Character of Action for Recovery of — Application of the Statute of Limitations.</p> <p>An action for recovery of unpaid street assessments is an action upon a liability created by statute, and is therefore controlled by the six years statute of limitations.</p>

<p>LIABILITY TO TAXATION OF RAILWAY TERMINALS OWNED BY A MUNICIPALITY.</p> <p>Taxation — Municipally Owned Property Not Used, for Any Governmental Function• — Properly Placed on the Tax Duplicate — Railway Viaduct and Terminals Owned by the City of Cincinnati — Held Subject t# Taxation — Section 5399.</p> <p>1. There is no exemption from taxation by implication in Ohio. Article XII, Section 2, of the Constitution does not create exemptions; it merely authorizes the General Assembly to exempt certain kinds of property. Therefore no exemptions can exist unless found in the statutes in plain, unambiguous words.</p> <p>2. The public property which is exempt from taxation by the laws of Ohio does not include all municipally owned property, but only such public property as is employed in the exercise of some governmental function.</p> <p>3. A railroad owned and operated by a municipality is not employed by it in the exercise of any purely governmental function, but in the exercise of its proprietary or private functions, and is not exempt from taxation by the state.</p> <p>4. Section 5399 of the General Code does not prevent the county auditor from placing upon the tax duplicate municipally owned real estate omitted therefrom during previous years.</p> <p>5. The act of May 10', 1910 (101 O. L., 399), creating a tax commission, was not intended to give'to such commission any control over the property of municipal corporations:</p>

<p>FRANCHISE FOR. CONSTRUCTION OF LEASE OF WATERWORKS SYSTEM.</p> <p>Municipal Corporations — Grant to Erect a Water Worhs System — Bonds Can Not he Sold to Pay Rental Under Lease, When — Statutory Provision for Lease is an Express Grant of Power — Franchise May he Granted to an Individual — Franchise with Lease and Option Privileges Not Invalid as Containing More than One Subject- — Failure to Perform Contract Conditions Waived hy Counsel Own -Not -he Enjoined — Sections 3809 and 3939.</p> <p>1. The statutory provision for the selling of bonds by a municipality “for erecting or purchasing water works and supplying water to the corporation” is to be. read literally, and can not be construed to authorize a sale of bonds to pay rental under a lease of waterworks not yet constructed.</p> <p>2. The provision of Section 3809 that “any village * * * may contract * * * for the leasing of the water works, plant,” is an express grant of power to lease such plant.</p> <p>.3. An ordinance for a franchise to construct a water works system in a village may be granted to an individual as well as a corporation.</p> <p>4. A village prevented by inability so to do, from voting sufficient bonds to construct a water works system may grant a franchise to an individual to construct such a system, and at substantially the same time lease the system for a period of ten years as provided by Section 3809.</p> <p>5. A franchise for the construction, maintenance and operation of a system of water works, and providing that the village may lease the same and also for an option thereon at the expiration of the period, is not objectionable on the ground of unfitness or uncertainty, and as containing more than one subject, the lease and option features being conditions of the franchise and not subjects of limitation.</p> <p>6. Failure by a contractor to comply with the conditions of a contract entered into by him with a village, which "conditions were waived by council, is not in the absence of fraud or misconduct on their part a cause for injunction against performance of the contract, especially where such failure does not result in prejudice to the community.</p>

<p>PROXIMATE CAUSE OF COLLISION BETWEEN AUTOMOBILE AND INTERURBAN CAR..</p> <p>Negligence — Injwy to Driver of Automobile in Collision with Interurban Car — Blowing of Warning Whistle Does Not Necessarily Relieve Railway Company from Liability — Question of Proximate Cause One for the Jury.</p> <p>In an action for damages on account of injuries, resulting from plaintiff driving an automobile onto the track of an interurban road in front of an approaching car by which he was struck, the fact that the motorman blew his whistle when one thousand feet from the crossing is not of itself sufficient to warrant the arrest of the case from the jury, but the case should be submitted to the jury to determine whether the negligence of the defendant was, in view of all the conditions and circumstances, the proximate cause of the injury.</p>

<p>DESCENT OF REALTY IN WIFE’S NAME.</p> <p>Descent and Distribution — Husband Inherits Property Purchased by Wife — With Money Given Her by Her Parents — Section 8573.</p> <p>Where a wife takes title in her own name to property purchased for a home with funds given her by her parents for that purpose, and dies intestate and without issue, the property will be treated as having come to her by purchase rather than from an ancestor, and title thereto passes to her husband and his heirs and devisees under the rule that the descent of real estate is controlled by the legal title.</p>

<p>CONSTRUCTION OF STATUTE RELATING TO EMBEZZLEMENT OF PUBLIC FUNDS.</p> <p>Criminal Law — Construction of Section 12873 — Relating to Embezzlement by Public Officials — Mere Use of Public Funds Not a Crime.</p> <p>The use of public funds by the official in whose, custody they are placed •/by law does not constitute an offense, unless there is a defalcation on the part of such official; and where the testimony discloses that all funds so used by the defendant official have been returned, and-there is no defalcation as to any part thereof, a motion will be granted to instruct a verdict for the defendant.</p>

<p>RAILWAY COMPANIES WHOSE PROPERTY IS UNDER LEASE SUBJECT TO WILLIS LAW TAX.</p> <p>Taxation — Ohio Railways Under Lease — Liable for Payment of Willis ■ Law Franchise Fees — Tenant Company Not Agent of the Owning Company — Why Certain Classes of Corporations Are Exempt From this Tax — Meaning of the Phrase “Engaged in Business” — Sections 5J¡85 et seq.</p> <p>A railroad company, incorporated in this state and owning a line of railway which is being operated by another company under a long lease, is not relieved by reason of such lease from payment of the annual franchise fees provided by the Willis law, where it continues to maintain its corporate organization, collect rents, pay dividends, and to issue stock and bonds from time to time for extensions, betterments and refunding purposes.</p>

<p>LIABILITY FOR. DAMAGES RESULTING FROM A SEQUENCE OF EVENTS.</p> <p>Negligence — Pleading Where Damages Resulted from a Sequence of Events — Liability Where a Oow at Large Threw an Interurban Oar from the Track.</p> <p>In an action for damages on account of loss through, the negligence of the defendant, demurrer does not lie to an answer and cross-petition which denies negligence on the part of the defendant, and alleges that the loss resulted from a sequence of events put in motion by the plaintiff and the consequences of which might reasonably have been anticipated.</p>