Volume 14 — Ohio Circuit Court Reports, New Series

<p>BANKER. HELD TO HAVE ACTED AS AGENT IN; PURCHASE OF STOCK FROM A CUSTOMER.</p> <p>Agency — Banker Pretending to Sell Stock for a Customer, Purchases It Himself — Identity Not Having Been Disclosed, He is Held to Have Acted as Agent — Equity of Customer Not Barred by Lapse of Less than Pour Years Time.</p> <p>1. A hank official who gratuitously engages to find a purchaser for certain stock owned by a customer of the bank, thereby becomes the agent of said customer and can hot thereafter himsélf become the purchaser of said stock without full disclosure of that fact to his principal and the latter’s assent thereto.</p> <p>2. Mere lapse of time, short of four years from the discovery by the principal that the agent bought the stock for himself will not bar an action in equity for the restoration of the stock, notwithstanding meanwhile it has greatly increased in value.</p>

<p>Heard on appeal.</p>

<p>SCOPE OF INQUIRY IN AN ELECTION CONTEST.</p> <p>Elections — Contest of Result as Declared Under the Rose Law — Probate Judge Con Not be Compelled by Mandamus to Certify Case to Common Pleas — Right of Trial Court to go Behind the Returns— Judges and Clerics of Election Called to Impeach the Accuracy of Their Own Certificate.</p> <p>1. In a contest of election under the Rose County Option Law, the court may go behind the face of the returns and inquire in to the facts and correct mistakes.</p> <p>2. Where there are conflicting certificates signed by the same officers of election, parol evidence may be received to impeach the accuracy of the tally sheets and to explain errors therein or in the certificates relating thereto.</p>

<p>PROCEEDINGS IN FORECLOSURE OF MORTGAGE.</p> <p>Mortgages — Foreclosure of. — Jurisdiction as to Second Mortgagee, Where First Mortgagee Has Dismissed His Action — Second Mortgagee Hot Bound to Pay Off First Mortgage before Proceeding to Foreclose.</p> <p>1. The voluntary dismissal of a cause of action by a plaintiff mortgagee asking to have its mortgage foreclosed will not oust the jurisdiction of an equity court to grant relief to a second mortgagee of part of the land, asking to have the cloud of the first mortgage removed by a sale in parcels.</p> <p>2. A second or junior mortgagee may maintain an action to foreclose his mortgage, without first paying off the debt of the first mortgage.</p> <p>3. A second mortgagee who has been brought into á foreclosure suit by a first mortgagee, may be granted relief upon .a cross-petition to have tne cloud of the first mortgage removed from the property, even tnough the first mortgagee volutarily dismisses his cause of action, and a third party who has purchased the equity of redemption desires to have the first mortgage remain on the property.</p>

<p>ACTION ON A BOND FOR. PERFORMANCE OF A CONTRACT.</p> <p>Amendment — Denied for Laches in Malting the Application — Notice to Surety of Default as to a Part of the Contract — Surety Not Released dy Slight Deviation from Terms of the Contract — ¿Evidence as to Marltet Value.</p> <p>1. Having admitted by answer the execution of tbe bond sued on, a surety company will not be permitted, three years thereafter, to amend its answer by denying liability under the bond because of alterations therein, where it appears that during the interval depositions were taken upon notice to the surety and the original bond was exhibited, and especially when to interpolate the condition in the bond alleged to have been altered would have the effect of making the bond and contract «inconsistent.</p> <p>2. Failure of the payee of a bond for the performance of a contract to notify the surety of default by the principal as to a part of the contract does not, in the absence of actual prejudice shown, release the surety as to defaults as to which notice was duly given.</p> <p>3. A surety is not released by slight deviations as to amount and time of delivery of the article contracted for, where by request of the payee of the bond securing the contract and not affecting the period of liability.</p> <p>4. Admission of evidence as to market value at other nearby points of the article forming the subject of the contract, in the absence of such evidence as to market value at the place of delivery, is not prejudicial to the interests of the surety on the bond.</p>

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

<p>The .plaintiff below was given a verdict of $900 on account of injuries sustained.</p>

<p>ESTOPPEL AGAINST CONTEST OF A WILL.</p> <p>Wills — Devisee in Possession Estopped from Contesting, When — Leasing and Collection Of Bents from Land Devised — Contest of a Will Not a Proceeding to Quiet Title — Section 12010.</p> <p>1. A daughter who went into possession of land devised to her by the will of her father, and leased the land and collected the rents under the lease frem the date of the probate of the will, is estopped thereby from contesting the validity of the will; and having full knowledge of the condition of the estate and,the terms of the will she can not raise the bar so erected by a surrender to the executor of the rents received, cr by bringing the money into court, but the acceptance of the devise remains an absolute bar to a contest by her of the validity of the will, and where such an action has been brought by a devisee so situated its dismissal by the trial court is not error.</p> <p>2. One who- has no legal pecuniary interest in an estate in case of intestacy, and who under a will has only the interest of a remainder-man, is a necessary party defendant in an action to contest the validity of said will, but has no such interest as will permit him as such legatee to file and maintain an answer and cross-petition to contest the validity of the will, cr to join in the prayer of the petition to have an issue made up; and it is not error for a trial court to dismiss a cross-petition filed under such, conditions.</p> <p>3. An action to contest a will can not take the place of a proceeding to quiet title under the statutes of this state.</p>

There was a recovery below by the defendant in error in this case of $2,500, which was reduced to $2,000 in the court below.

<p>LIABILITY FOR. DEATH OF A BOY FROM BEING STRUCK BY A CAR.</p> <p>Negligence — Newly-Discovered Evidence "Which is Cumulative Only — • Charge of Court as to Degree of Negligence for Which a Boy May Be Meld.</p> <p>In an action against a traction company on account of the death of a boy eight years old from being struck by a car, it is prejudicial error to fail to so modify the usual charge to the jury with reference to negligence as to hold the decedent to only that degree of care and prudence which may he expected from a child of his age, capacity and intelligence.</p>

<p>LIABILITY OF MUNICIPALITIES FOR. DEFECTS IN SIDEWALKS.</p> <p>Municipal Corporations — Degree of Ciare Required in Maintaining Sidewalks in Safe Condition — Slight Depressions — Reasonable Care on the Part of Pedestrians — Weight to be Given to Evidence of Prior Accidents.</p> <p>Reasonable care is all a municipal corporation is charged with in the maintenance of its sidewalks, and it is not liable for slight depressions not exceeding two inches, unless there be something in the condition of the depression specially calculated to cause an injury.</p>

<p>ACTION FOR DAMAGES WHERE A RELEASE IS PLEADED.</p> <p>Release — Pleaded in an Action for Personal Injuries — Tender Back of Amount Received Not Necessary, When — Releases which are Void and Those which are Voidable Only — Negligence—Weight of Evidence.</p> <p>1. Where, in an action for damages for personal injuries a release is pleaded by the defendant and the plaintiff denies in his reply that he ever entered into such a contract of release, the plaintiff is not bound to tender back the amount paid to him by the defendant in consideration of the alleged release.</p> <p>2. A claim that the injuries received were due to the breaking of a chain which contained an open link, of which the defendant is alleged to have had knowledge and the plaintiff supposed had been repaired, raises a question of negligence which is peculiarly within the province of the jury, and where the testimony tends to support the claim a determination by the jury in favor of the plaintiff will . not be set aside on the weight of the evidence.</p>

<p>LIABILITY OF RAILWAY COMPANY FOR. MAINTENANCE OF DITCH.</p> <p>Contracts — Release of Railway Company from Obligation to Maintain Ditch — i'Error in Tahing Case from Jury.</p> <p>1. In an action for damages by an abutting property owner against a railway company, based upon failure of the company to con■struct and maintain a ditch and dike along the right-of-way granted by the plaintiff and in accordance with a contract entered into when said right-of-way was granted, the question whether the building with the consent of the plaintiff of a county ditch over and along the ditch in controversy had not carried a large amount of water to that point which did not naturally flow there, is one which should he submitted to. the jury.</p> <p>2. - Moreover the construction of a county ditch, over and along the ditch which the defendant company had agreed to open and maintain, released the railway company from further obligation under its contract to open and maintain the ditch alleged.</p>

<p>AN INVALID ACT RELATING TO SEWAGE DISPOSAL.</p> <p>Constitutional Law — Invalidity of the Act Requiring the Purification of Sewage and Protection of Streams from Pollution — Classification of Subjects and Uniformity of Operation — Sections 12J/0 et seq:, General Code, and Section 26', Article II of the Constitution.</p> <p>1. Section 1249, et seq., General Code, authorizing the state board of health to require the purification of sewage and public water supplies and to protect streams against pollution, lacks uniformity of operation by reason of the exception which is made of Ohio river cities from the operation of the law under certain conditions; and the invalidity of the exception is of such a character-as to affect the entire act and bring it within the inhibition of Section 26 of ' Article II of the Constitution.</p> <p>■ 2. Moreover the penalty clause, directed at members of council for failure to take the steps required to carry out the. orders of the state board of health, is also open to constitutional objection for the reason that it is directed against a legislative body and is destructive of the fundamental theory of government in that it substitutes to that extent the state board of health as the governing board in the place of council.</p>

<p>LIMITATION OF CARRIER’S LIABILITY TO SIX MONTHS.</p> <p>Carriers — Stipulation Limiting Liability to Six Months — Bar to an Action for Damages Suffered Through Fault of the Carrier, When— Contracts Will be Held to Have Been Executed With Full Knowledge, When — Release Must be Set Aside Before Action Can be Maintained.</p> <p>A shipper hy express, who signs a contract which limits the liability of the company to six months in so far as the commencement of an action for damages is concerned, is barred from maintaining such an action begun more than six months after the shipment was made, notwithstanding his allegation that he signed, the contract hurriedly, and without examining it, and supposing it was the hill of lading.</p>

<p>TITLE TO THE BANK OF A CANAL RESERVOIR.</p> <p>Canals — Nature of the Title Acquired by the State to Lands Occupied by Canals, Feeders, Reservoirs, Dikes, Locks and Dams — Title After Abandonment for Canal Purposes — Extent of the Land Comprised in the Banks of a Reservoir — Conversion- of the Licking Reservoir Into a Park. ...</p> <p>1. A reservoir used as a feeder for an Ohio canal became a. part of the canal system of the state, and the occupation of the land by the state for such a purpose amounted to an appropriation of the land, ■ the fee simple title passing to the state regardless of failure on the part of the owner to make application for compensation therefor.</p> <p>2. The abandonment of a canal does not cause the title’ to the land belonging thereto to revert to - the original owners, their heirs or devisees, but the title remains in the state until granted out by proper conveyance.</p> <p>3. The banks of a canal, and of its feeders and reservoirs, constituted a necessary part of the canal, and in the absence of an agreement to the contrary ’ formed a part of the original appropriation by the state; and the continued use of this land to the water’s edge by the abutting owners was not a matter of right, but of sufferance on the part of the state.</p> <p>4. The appropriation of land for the banks of a canal reservoir included a space of a sufficient width to hold the waters up to the storage' level and protect surrounding property and afford the agents of - the state a right-of-way over and around the property . ■■ --for purposes of maintenance.</p> <p>5. The General Assembly having set apart the Licking reservoir as a public park and pleasure resort for the people of the state generally, the state board of public works is without authority to • grant a ■ lease of its banks for’ building purposes that will interfere with the- 'free, and uninterrupted use thereof by the people and the • -agents.of the state. ’ . ' ' ’ '</p>

<p>PROOF AS TO INTENTION IN HAVING BURGLARS’ TOOLS IN POSSESSION.</p> <p>Criminal Law — Prosecution for Having Burglars’ Tools in Possession with Burglarious Intent — Weight of Evidence as to Intention— Time and Place when it was Intended to Use the Tools Need Not he Shown. '</p> <p>In the trial of one charged with having burglars’ tools in his possession with intent to use them burglariously, it is not necessary that the state prove the exact time and place at which the defendant purposed to use the tools, or that he purposed to use them within the jurisdiction in which the arrest was made and the trial is held; but it is sufficient if the evidence convinces the jury beyond a reasonable doubt that it was his intention to use the tools found in his possession burglariously.</p>

<p>PARTICIPATION IN A LYNCHING.</p> <p>Criminal Law — Prosecution of Members of a Mob for Homicide — Aiding and Procuring the Commission of Crime — Legality of Jury Array —Prosecution Indirectly Involving the Liquor Interests — Competence of Jurors Who Participated Actively in a Recent Local Option Election — Weight of Evidence — Charge of Court — Riot Not Embraced in Section 18692.</p> <p>1. An accused person, who has been jointly indicted with others for murder in the first degree, can not complain of the overruling by the court of his challenge to the jury array, where this particular defendant has been brought to trial upon election of the prosecuting attorney, and a copy of the venire, summoned in the case as against all the defendants,, was served upon him three days before the day set for his trial.</p> <p>2. Error will not lie to the overruling of a challenge to the jury array, on the ground that names had been placed in the jury wheel of persons who were known to have actively favored the “drys” in a recent local option election and the crime of which the defendant was accused grew out of a contest over the illegal sale of liquor, if it appear that there was an entire absence of evidence of any kind tending to show that the jury commission placed in the jury wheel names of persons who did not fulfill the qualification of being judicious and discreet.</p> <p>3. The instruction given in this case relative to the reputation of the defendant for peace and quietness and its bearing on the question of his guilt or innocence, was not prejudicial to his interests.</p> <p>4. In a prosecution of one alleged to have participated in a lynching, it is not error to charge the jury that “any words, acts, signs or motions, done or made for the purpose of encouraging the commission of the crime” may be considered by- the jury in connection with the criminal character of the alleged acts of the defendant, and a verdict of guilty may be based on evidence, which the jury believed was entitled to credit, that the defendant mingled with the crowd some hours before the lynching occurred,'and engaged in conversation regarding the events which led up to the.'lynching, and was heard to urge the crowd to avenge the blood which had been shed and soon: afterward the doors of the jail were battered open, and the cell in which the decedent was confined was forced, and the deceased taken out and hanged to a telephone pole until he was dead.</p>

<p>EStATES IN CURTESY.</p> <p>Curtesy in Lands — There Can be No Tenancy by Curtesy in. a Remainder where there is <m Outstanding Freehold Estate in Another —Right of Present Possession Necessary — Actions to Quiet Title.</p> <p>1. Where an estate for life is not terminated prior to the death of a ' wife who owns the remainder in fee no estate in' curtesy rests in her husband, but such estate is extinguished by her death.</p> <p>2. An action to quiet title does not lie where brought by a husband not .. in possession and having no interest in remainder, in the lands involved in the action..</p>

That the evidence failed to disclose the year in which the offense was committed — Foster vs State, 19 Ohio St., 415; Corry vs Gaynor, 21 Ohio St., 277, 280. That the affidavit upon which the. warrant was issued was defective, mainly for the reason that it is not speeially alleged “that the articles sold were not products of defendant’s own raising or manufacture” — St. Louis vs Meyer, 185 Mo., 583; Toledo vs Hutchinson, 55 Ohio St., 573.

<p>PROSECUTIONS FOR. VIOLATING THE ROSE COUNTY , LOCAL OPTION LAW.</p> <p>Illegal Sales of Intoxicating Liquor — Trial of Several Cases Together— Stipulation as to Evidence — Defendants Not Entitled to a Jury— Plea in Abatement — Finding of Error Not a Disproval of Charge— Evidence as to Reputation of Physician Issuing Prescriptions for Intoxicating Liquor — Proof as to Number of Sales — Failure to Require the State to Elect Upon which Sale it Would Rely.</p> <p>1. It is within the power of counsel, where a number of cases are pending which are of the same character, to stipulate that they shall he tried together, but only such evidence as relates to a particular defendant shall be applicable to his case; and a reviewing court will • presume that the trial judge in determining the case of each .defendant considered only such evidence as was competent and perti- ■ nent to that case.</p> <p>2. A finding that error has intervened in a trial on the charge' of making sales of intoxicating liquor in “dry” territory, "does not amount to a finding that no sales were made, or render it im- ’: possible that the defendant be found guilty of keeping a ¡ place where such sales are made.</p> <p>3. Where the defense is proffered in such a case that the sales were made on the prescription of a physician, it is not error to hear testimony as to the reputation of the physician as bearing on the question of good faith in the issuing of such prescriptions.</p>

<p>PRESCRIPTIVE RIGHT IN A ROADWAY WHICH HAS SHIFTED.</p> <p>Adverse Possession — Prescriptive Right-of-way Along the Banks of a Stream Passes by Devise or by Conveyance — Shift of Roadway in Conformity to the Shift of the Adjacent Stream Does Not Defeat the Prescriptive Right — Ingress and Egress — Water and Water-Courses.</p> <p>1. A party who uses a road or way as a means of ingress or egress to his own land, without let or hindrance over the lands of another and without obstruction for a period of twenty-one years, acquires a right by prescription to its use as an incident to his land, and the right will pass by conveyance or by devise of the land.</p> <p>2. A prescriptive right to the use of á road or way over the lands of another along the. banks of a stream as a means of ingress and egress, is not lost, modified, or affected by reason of a shift in the traveled road or way within a period of less than twenty-one years, where such shift in the traveled road or way was due to a like shift in the bed or bank of said stream, and no more land was used after said shift than was necessary if the use of said way was to be continued as a means of ingress and egress; but in such a case the traveled road or way lawfully shifts with the bed and bank of the stream.</p>

<p>LIABILITY OF MUNICIPALITY FOR UNNECESSARY DESTRUCTION OF SHADE TREES.</p> <p>Shade Trees — Unnecessary Destruction of, in Improving Street_Municipality Liaible Therefor.</p> <p>The officers of a municipality, have no right to destroy shade trees growing in the street in front of the property of an abutting owner, unless their removal becomes necessary in order that the space may be used fdr street purposes; and 'an abutting owner who'has been injured by-, the unnecessary destruction of his trees may recover damages from the municipality therefor.</p>

<p>DESTRUCTION OF SHADE TREES IN BUILDING SIDEWALKS.</p> <p>Shade Trees — Liability for Destruction of, in Building Sidewalk — Municipal Corporations — Damages—Streets.</p> <p>A municipality and its contractors are jointly liable for damages to shade trees by contractors for a street or sidewalk improvement, where the work is done under the direction of the city engineer, and the removal or injury to the trees was unnecessary in order to make the work conform to the established grade.</p>

<p>RAISING A PUBLIC ROAD SUBJECT TO OVERFLOW:</p> <p>Levees — Authority of County Commissioners to Construct — Raising of the Grade of a Public Road to Prevent Overflow — -Resulting Injury to Adjacent Property — Injunction Agajnt Does Not Lie, When— Measure of Damages- — Sections 6778 and 7JS3.</p> <p>1. The raising of the grade of a public highway which is subject to overflow in times of flood, can not he enjoined by an adjacent property owner on the ground that the road was long ago improved to a definite and fixed grade and no steps have been taken by the county commissioners to appropriate the land which will be damaged thereby or to make compensation to the owner.</p> <p>2. In such a case the owner of the lands damaged by the improvement has an adequate remedy at law, the damage being complete at the time the improvement is complete and measured by the difference in the value of the lands before the improvement was made and afterward.</p>

<p>PROSECUTION FOR VIOLATION OF LOCAL OPTION.</p> <p>Evidence — As to Payment of Special Tax to D. S. Government as a Retail Liquor Dealer — Competent in a Prosecution for Violation of Local Option Law — Bill of Rights — Competency of Exemplified Records.</p> <p>1. The provision in the Bill of Rights that an accused person shall he entitled to meet the witnesses face to face, applies to parol testimony only, and does not har the introduction of public records or other instruments in writing which may become competent in the trial of a criminal case.</p> <p>2. Inasmuch as the rules of the Internal Revenue Department do not permit the removal of records from the offices of the collectors, and the state is without authority to compel the production of such records, an exemplified copy of so much of said records as will show that the defendant, on trial for alleged violation of the county local option law, had paid to the United States the special tax assessed against retail liquor dealers, of necessity becomes the best evidence that can he produced of that fact, and it is not error to permit its introduction.</p>

<p>CARE AT A PUBLIC CROSSING.</p> <p>Negligence — Wagon and Team of Horses Injured at a Railroad Grossing — Crossing and Adjacent Tracks Obscured by Smoke of Passing Train Which Was Immediately Followed by Another Train Booking Over Grossing — Contributory Negligence — Burden of Proof —Error of Court in Refusing to Direct Verdict for Railway Company.</p> <p>1. Where a person, in a wagon drawn by a team of horses, approaching a railroad crossing on a public highway, stops upon hearing the ‘ whistle of an approaching train, and, after such train passes over said crossing, which leaves said crossing and the adjacent tracks of the railroad obscured by smoke, immediately drives upon said crossing, without waiting for such smoke to disappear that he might have an unobstructed vision; and without taking other precautionary steps in the exercise of ordinary care to avoid danger, and his wagon and team of horses are injured in a collision with another * train passing over said crossing, immediately after said first train, has passed over said crossing, is negligence, and- will defeat a recovery for such injury to which such negligence contributed.</p> <p>2. Where the danger at a railroad crossing is increased by a volume of smoke upon such crossing, or other conditions - obstructing the ' vision, greater care and caution are imposed upon one about to pass over such crossing.</p> <p>3. It is error upon the part of the trial court to refuse to sustain a mo- - tibn, at the conclusion of plaintiff’s evidence, .to direct a verdict for the defendant, in a collision case at a railroad crossing on a public highway, where the testimony of the plaintiff raises a clear presumption ' of negligence on his part which directly contributed to the injury of his property, in the absence of any tangible proof given tending to rebut such presumption.</p> <p>4. In an action for damages for alleged negligence, where the defense of contributory negligence is interposed, it is error upon the part of the trial court to instruct the jury that “the burden of proof is upon the plaintiff of proving the negligence of the defendant as • charged in the petition, and the burden is upon the defendant to ■ make out the evidence of contributory negligence by the plaintiff’s servant or agent,” without the further instruction that if plaintiff’é own testimony in support ot Ms cause of action raises a presumption of such, contributory negligence, the burden rests upon him to remove that presumption.</p>

<p>IMPROPER VERIFICATION.</p> <p>Verification of Pleadings — Proper Procedure upon Discovery of — Construction of Will in Action for Partition and an Accounting.</p> <p>Failure to properly verify an answer and cross-petition should he cured by amendment, and the dismissal of such a pleading: because not properly verified constitutes reversible error.</p>

<p>BASIS OF ADDITIONAL COMPENSATION TO COMMON PLEAS JUDGES.</p> <p>Salaries of Common Pleas Judges — Statutory Regulation Based Upon Population Because Litigation is in Proportion to Population — Regard May Be Had for Consideration of Injustice in Construing a Statute which is Ambiguous — Sections 128J¡a, Revised Statutes, and 2252, Q-eneral Code.</p> <p>A judge of the court of common pleas in a judicial subdivision containing more than one county, whose term of office began before the adoption of the present code, is entitled under Section 1284a,-Re-vised Statutes, to extra compensation calculated on the basis of the population of the subdivision, rather than on the basis of the population of the county where he happens to reside.</p>

<p>DAMAGES ON ACCOUNT OF THE FREEZING OF APPLES IN TRANSIT.</p> <p>Carriers — Negligence in Permitting Apples to Freeze While in Transit-Acts of God Can Not he Interposed as a Defense When Not Pleaded.</p> <p>1. The introduction into a charge to the jury of acts of God as a matter • of defense, when no such defense had been pleaded, constitutes error, hut in the case of a carrier' sued for the value of a shipment of apples frozen in transit the error was prejudicial to the plaintiff rather than the defendant and therefore not ground • for reversing the judgment on the application of the defendant.</p> <p>2. The freezing of a shipment of apples while in transit is not due to any inherent nature of the fruit which could not be guarded against, hut to the negligence of the carrier.</p>

<p>CONSTRUCTION OF A LAND SYNDICATE CONTRACT.</p> <p>Agreement to Unite Together in the Purchase and Sale of Lands — Status of One of the Parties Thereto Who Rendered Services in Lieu of Advancing Money for Carrying Out the Enterprise.</p> <p>The agreement involved in this action and set forth in the opinion js construed to have made B a partner in the contemplated purchase and sale of lands; and having performed all the conditions by him to be performed, B is entitled to receive his share of the proceeds of the enterprise after repayment to the other shareholders of the amounts advanced by them without interest.</p>

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

<p>REPLEVIN UNDER A CONDITIONAL SALES CONTRACT:</p> <p>Replevin — Not Defeated t>y Transfer of Property, When — Conditional Sales — Tender of Money Paid Not Necessary, When — As to Time for Filing the Contract.</p> <p>1. An action in replevin, or an action for damages where the property is not taken, is not defeated by the fact that the defendant did not have actual possession of the property at the commencement of the action, where it appears that the defendant sold the property just previous to the commencement of the action and that the plaintiff was ignorant of that fact.</p> <p>2. Where an action in replevin is brought by the vendor under a conditional sale contract against a subsequent mortgagee of the property, a tender under Section 4155-3', Revised Statutes, requiring refunder of money paid, is unnecessary.</p> <p>3! A conditional sale contract, withheld from record for six months, but filed a few minutes before the filing of a chattel mortgage on the same property, is sufficient to preserve the lien, in the absence of any statutory provision as to when such contracts shall be filed.</p>

<p>EXTENT TO WHICH IRREGULAR. SEWER. ASSESSMENTS ARE ENFORCIBLE.</p> <p>Municipal Corporations — Assessment for Sewers — Extent to Which Collections Irregularly Levied May Be Enforced.</p> <p>Under the curative provisions of the statute sewer assessments, which are illegal for irregularity in the proceedings, are enforcible to the extent to which expense has been incurred which is properly chargeable against the property assessed and is not in excess of benefits.</p>

<p>INSUFFICIENT SHOWINC TO DEFEAT A WILL.</p> <p>Wills — Want of Mental Capacity Not Shown, When — Testimony in Favor of Contestants Without Value, Where Based on Ideas of the Witnesses as to the Kind of a Will the Testator Should Have Made.</p> <p>Want of mental capacity on the part of a testator is not shown by a recital of circumstances and incidents which go no further than to indicate some physical weakness, or failure of memory, or mistake of an unimportant character in connection with his business affairs; nor can an attack on a will be successfully maintained where the witnesses for the contestants seem to have reached the belief that the testator was incompetent to make a will because he did not make the kind of a will which they would have made or which they thought he ought to have made.</p>

<p>CONTROL OF JUDICIAL DISCRETION BY MANDAMUS.</p> <p>Procedure in Criminal Cases — Election Between Indictments — Motions to Quash — Discretion of Trial Judge with Reference to — Extent to 'Which It May Be Controlled by Mandamus.</p> <p>1. Where a prosecuting attorney has intituted an action in mandamus in the circuit court to compel a common pleas judge to endorse an entry of election as between two indictments, against the same defendant, which entry the judge has refused to endorse for the reiason that he has granted a motibn to quash as to one of the indictments and purposes to make it applicable ' to- both, the question whether the judge erred in his view as to the validity of the indictments is not raised, and the circuit court will look only to the soundness of the procedure, and if it is found not to be in accordance with law determine whether it may be corrected in an action ih mandamus.</p> <p>2. When the prosecutor elected upon which indictment he desired to proceed, it was the imperative duty of the trial judge (defendant here) to enter the election upon the minutes oí the court without waiting to pass upon the motion to quash.</p> <p>3. But inasmuch as the circuit court could control the discretion of the trial judge no further than to require that the election of the prosecutor be noted, and would be without jurisdiction to require him to desist from making entries on the motions to quash pending a hearing in mandamus, the only relief which can be granted is to require that the election of the prosecutor be noted in order that he may preserve any legal right to a review which he may have ■ in the premises.</p>

<p>CONSTRUCTION OF THE STATUTE RELATING TO SODOMY.</p> <p>Criminal Law — Prosecution for Sodomy — Construction of the Statutory Phrase “Any Opening of the Body" — Section 18048.</p> <p>The word body as used in Section 13043, General Code, is not restricted in meaning to the human trunk excluding the head and limbs, but is synonymous with the words “person” or “human being.”</p>

<p>CONTRIBUTING TOWARDS DELINQUENCY OF A MINOR..</p> <p>Delinquency of Minors — Prosecution for Contributing Toward — Competency of Testimony as to Reputation of Rouse Visited — Proprietor of Liable for Penalty Although Acting Through a> Subordinate-Error — Charge of Court.</p> <p>1. Where á person is charged under 1654, General Code, with contributing to the delinquency of a minor under seventeen years of age, by renting a room to her for the purpose of.illicit intercourse, and the testimony shows that the minor went there for that purpose, it is not error to permit testimony o be given as to the reputation of the house in which such room is located.</p> <p>2. Where the charge of the court, taken in its entirety, is such that it is evident that the jury understood it in a mannér so as to correctly apply the law, it will not be held erroneous even though it contains some statements that are not strictly clear or proper.</p> <p>3. A person owning and conducting a house of ill-repute is guilty of contributing to the delinquency of a minor under seventeen years of age, where it is shown that such minor was admitted by a person apparently acting as a servant or employe and making' no inquiry as to the age of the minor.</p> <p>4. Where a person owns and conducts a house of ill-repue, the duty is imposed on her to know that those whom she permits in her house and to act apparently as her servants, shall obey the law, and in case they do not she as principal and proprietor of the house in which the delinquency occurs is liable to pay the penalty of the statute.</p>

<p>ACTION BY A TENANT IN COMMON FOR. RENTS AND PROFITS.</p> <p>Wills — Construction of Evidence Indicating Purpose of Testator Competent — Use of the Word “Heirs” Where There are Living Children —Adverse Possession Against a Tenant in Common — Statute of Limitations — Rents and Profits.</p> <p>1. The word “heirs” where used by a testator having living children will be regarded as synonymous with children.</p> <p>2. .The grantee of a one-half interest in lands does not by merely going .upon the.. lands and remaining in possession thereof and failing to account to the owner of the other half interest for rents and profits, thereby oust the said owner of the remaining half interest from possession or set the statute of limitations running against him.</p> <p>3. Testimony showing • that the son of the testator was heavily in debt is competent for the purpose of indicating the purpose of the testator in making no provision for said son and giving his entire estate to his son’s wife and their children, thereby protecting . the estate against the creditors of the said son.</p>

<p>FINALITY OF A DIVORCE DECREE.</p> <p>Divorce and Alimony — Finality of Decree — No Appeal Lies to the Grant of a Divorce — Nor cam a Motion for a New Trial Toe Entertained.</p> <p>The rendition of a decree of divorce fixes the status of the parties eo instanti, and the marital relation thus severed can he restored only by consent of the parties and their remarriage.</p>

<p>ACTION ON A CONTRACT FOR. ERECTION OF ELEVATORS.</p> <p>Action Prematurely Brought — Contract for Work to. he Delivered, Free from Liens — Not Fulfilled, When.</p> <p>Where a contract for the erection of certain elevators provides that the work shall be delivered free from all claims, liens or other charges, an action for recovery of balance due is prematurely brought where instituted while there is in force a mechanic’s lien in favor of a sub-contractor.</p>

<p>STATUTORY PROVISIONS TO BE OBSERVED IN THE EXECUTION OF A WILL.</p> <p>Wills — Requisites in the Execution of Same — Subscription and Attestation Recessary — Error in the Exclusion of Testimony.</p> <p>1. Upon a contest of a will, its validity will be sustained only when it appears that such will was executed in accordance with the provisions of Section 5916, Revised Statutes.</p> <p>2. The provisions of said section require that the testator shall not only subscribe but acknowledge the will as his will, in the presence , of two subscribing witnesses.</p> <p>3. T signed what purported to be his will and the same was signed by' the scrivener thereof and a son of said testator as witnesses thereto, but the latter was not present when said paper writing was written, nor did said testator make known to him that said paper writing was his will. Held: that said paper writing was not subscribed and acknowledged as contemplated by the provisions or said Section 5916, Revised Statutes, and the same is not therefore a valid will.</p> <p>4. Where testimony is offered on the trial by the contestants of an alleged will tending to show that one of the witnesses .thereto made, contradictory statements at different times touching his knowledge that the paper writing signed by him as such witness was subscribed and acknowledged as testator’s will, it is error upon the part of the trial court to exclude such testimony.</p>

<p>PROOF WITH REFERENCE]TO JDISPUTED3 WR.ITINGS.</p> <p>Evidence — Disputed Writings — Proper Method of Determining Authen ticity of — When a Writing may be Exhibited to Witness with the Requirement that Be Furnish in Open Court a /Specimen of Bis Writing for Comparison.</p> <p>1. When a witness has denied the authenticity of a document, purporting to have been written and signed by him, containing statements material to the issue in the case, he may be required on cross-ex amination to write specimens of his handwriting for the purpose of comparison. But this rule does not apply to the direct examination of the witness.</p> <p>2. In such a case where testimony has been given by another that the document is in the handwriting of the party, it may be offered for the purpose of impeachment; and if the witness be a party, for the additional reason that it is a declaration against interest'</p>

<p>PRIVILEGED COMMUNICATIONS.</p> <p>Libel and Slander — False Imprisonment — Expression of a Suspicion as to Who Committed a Larceny is Privileged, When.</p> <p>The expression to a police officer of a suspicion, by the owner of property which has been stolen, as to who it was who committed the theft, is privileged and can not be made the basis of an action for damages for slander or false arrest.</p>

<p>PROSECUTION FOR. AIDING IN THE SOLICITATION OF A BRIBE.</p> <p>Bribery — Aiding and Abetting in the Procurement of — Sufficiency of Averments in Indictment — Competency of Evidence — Entrapment— Reference to Defendant’s Failure to Take the Stand — Co-ercion of Jury — Sections 12880, 12829 and 18661.</p> <p>1. An indictment which charges a sergeant at arms of the state Senate with knowingly aiding and abetting A, a member of the Senate,' in the solicitation of a bribe, is not rendered insufficient by reason of failure to aver knowledge on the part of the defendant that A was a member of the Senate, or to aver how the defendant aided and abetted in the commission of the offense, or in stating the corrupt purpose to be that A “might be then and there influenced,” whereas the statute uses the words “to influence.”</p> <p>2. Where the character of the witness is attacked by showing his indictment and conviction upon a charge of felony wholly disconnected from the issue on trial, the trial court is not bound to permit counsel to go into details with reference to the crime so' charged or specifically into the history of the witness’ past life where the same is wholly immaterial and collateral.</p> <p>3. The entrapment complained of not having been originated by the prosecuting attorney or any officer of the state in this case was not of such a character as to bar prosecution for the offense alleged to have been committed by the defendant.</p> <p>4. The remark by a prosecuting attorney in his argument to the jury with reference to a certain statement that the “defense had an opportunity to deny it, and it stands uncontradicted,” is not such misconduct as necessitates the setting aside of a verdict of guilty, where the remark was immediately withdrawn by the speaker and the jury were instructed by the court to disregard it.</p>

Appeal irom the Court of Common Pleas of Franklin County. This action was brought by the city of Columbus against the plaintiffs in error, the owners of real estate described in the petition,'to enforce the collection of an assessment for the improvement of North High street in said city, and to foreclose an assessment lien as authorized by Sections 2286, 2287, Revised Statutes, and other sections.

<p>AS TO WHETHER. AN INTENDED GIFT WAS MADE COMPLETE.</p> <p>Gifts — Evident Intention of a Decedent to Make a Gift hut Lacking Delivery — Conversations with Attorney — Declarations Not Sufficient to Create a Trust — Failure to Pass Title — Sections 10851 and II494.</p> <p>Where one intending to make a gift to' another purchased United States money orders in the name of the prospective donee, but died before delivering them and with the orders in her possession, the gift .was incomplete and the administrator is entitled to the money.</p>

<p>LIABILITY FOR COST OF RAILWAY BRIDGES OVER ARTIFICIAL WATER. COURSES.</p> <p>Ditches — Construction of, Underneath Railway TracJcs^-Gompany Gan Not he Required to Meet the Expense of, When — Invalidity of -Assessments Imposed on Property for the Sole'Benefit of Others Than the Owner — Section 6518.'</p> <p>A railway company can not be made liable for the expense' of constructing a bridge or culvert over an artificial water-course, established after the company acquired its right-of-way at its own expense, and constructed a railroad thereon..</p>

<p>SALE OF CORPORATE STOCK BY AN ADMINISTRATOR..</p> <p>Estate of Decedents — Private Sale of Stock Certificates — Failure to Conform in All Respects with the Statute — Section 10704.</p> <p>Omission by tbe probate court to fix the lowest price at which corporate stock belonging to the. estate of a decedent may be sold at private sale, does not invalidate a sale made in all other respects in conformity with the statute, without collusion or fraud and at the market price.</p>

<p>REVIVOR. OF A DORMANT JUDGMENT.</p> <p>Judgment — Conditional Order of Revivor — How Made — Effect of — Will Sustain an Execution — Is in the Mature of a Summary Process— Protection to the Debtor.</p> <p>When a conditional order of revivor of a dormant judgment is made, tbe judgment is -revived for all purposes for, wbicb a judgment may be revived and will sustain an order of execution issued thereon, subject to the condition that if the judgment debtor, within a time fixed in the order of revivor, can show cause' why said judgment ought not to have been revived, the order of revivor will be set aside.</p>

<p>ARRESTS FOR VIOLATION OF FISH AND GAME LAWS.</p> <p>Fish and Game Laws — Deputy Sheriff May Arrest on View Persons ' Found Violating — Whether Officer’s Action was Reasonable is a Question for the Jury in an Action for Damages for False Arrest-Officer Not Liable for an Arrest Made Under a< Warrant Declared Defective on Proceedings in Error — Arrest Under Unconstitutional Statute — Counsel Fees in a False Imprisonment Case Allowable, When — Section 12525.</p> <p>1. A deputy sheriff or other person authorized by law to make arrests may, on view, arrest persons found violating Section 12525 of the fish and game act and not be liable for false arrest, notwithstanding the provision that prosecutions may be instituted only upon complaint of the owner or agent of the owner of the lands, or rights in lands or waters, where the trespass was committed.</p> <p>2. Where an arrest is made without a warrant, the arresting officer should within a reasonable time secure a warrant, and during the interval should use only such means and methods for detaining the party under arrest as are reasonable and necessary under the circumstances; and in an action for damages for false arrest and imprisonment, the -question whether the arresting officer so acted is one of fact for determination by the jury.</p> <p>3. In the event the party under arrest is hound over to the grand jury under a warrant which upon proceedings in error was declared to be defective, the arresting officer is not liable for false imprisonment, unless he detained his prisoner an unreasonable length of time and in an improper manner.</p> <p>4. Inasmuch as the Legislature is presumed to have passed only constitutional laws, an- arresting officer is not liable for false arrest or imprisonment where he acted, properly and within prescribed limits, under an act which was subsequently declared unconstitutional.</p> <p>5. Counsel fees can not be allowed to a plaintiff in an action for damages for false arrest and imprisonment, unless the evidence is such as would justify an allowance of exemplary or punitive damages.</p> <p>6. Where the arrest was not illegal and there was no false imprisonment, it is error to instruct a jury that they may allow as compensatory damages an attorney’s fee for services incurred in setting aside the proceedings of a justice of the peace had on a defective warrant.</p>

This is an action by which the city seeks to recover from the Labe Shore & Michigan Southern Railway Co. for water used by the railway company in its watering tanks and at the depot for flushing closets, etc. A petition and answer were filed, and the ease was submitted to the court upon an agreed statement of facts, in which it is agreed: “That the plaintiff is a municipal corporation, .and that the defendant is a railway corporation operating its railway through the city of…

<p>RUNNING AN AUTOMOBILE AT UNLAWFUL SPEED.</p> <p>Sections 12603 and 12604, General Code, providing a penalty for operating automobiles at a speed of more than eight miles an hour within the built up portions of a municipality or fifteen miles an hour in other portions or twenty miles an hour outside of the municipality, are constitutional; and a fine imposed upon one who struck and injured a human being while operating an automobile at unlawful speed will be sustained.</p>

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

<p>AS TO THE SUFFICIENCY OF A NEWSPAPER FOR THE PUBLICATION OF ORDINANCES.</p> <p>Publication of Ordinances — Determination as to the Sufficiency of the Periodical Selected — Designation of Payer by Council Creates a Presumption of Sufficiency Only — Basis for Determining Circulation.</p> <p>1. The fact that council has determined that a periodical, wherein it is proposed to publish ordinances, is a newspaper of general circulation, creates no more than a presumption that such is the fact, and does not preclude a court from examining the question for itself and making its own determination.</p> <p>2. The basis upon which the question of circulation should be determined is not subscriptions paid in advance, but bona fide subscriptions whether paid in advance or otherwise.</p>

<p>VALIDITY OF AN ASSESSMENT FOR. AN OUTLET'DITCH.</p> <p>Ditches — Validity of Assessments Against Lands on Account of Construction of an Out-Let Ditch — Benefits to Lands with Natural Drainage which Cast Their "Waters into the Ditch.</p> <p>A land owner is not entitled to relief from the assessment for an outlet ditch, where it appears that the assessment is only one dollar an acre, and his claim for relief is based upon natural drainage of the land in question, hut water flowing down from these lands finds its way into the out-let ditch,, whereas it was formerly east upon lower lands of the plaintiff and adjoining owners.</p>

<p>CULVERT WITHOUT GUARD-RAILS IN CITY STREET.</p> <p>Negligence — Responsibility of a Municipality for Maintaining a Culvert Without Guard-Rails — Question of Adjudication of a Former Trial —Jury Must Determine the Question of Contributory Negligence, When.</p> <p>1. A culvert which forms part of a city street is under control of the city council, and the municipality, as well as the county commissioners,' is responsible for maintenance of guard-rails thereon.</p> <p>2. In the second trial of a case, wherein a reversal of a judgment in favor of the plaintiff has been obtained upon the ground that it is against the weight of the evidence and it does not affirmatively appear in the record that the evidence is substantially the same as at the former trial, it is not error for the trial court to refuse to direct a verdict for the defendant upon the ground that the former judgment of reversal was an adjudication.</p> <p>3. The Act of May 9, 1908 (99 O. L., 454, 11577, G. C.), denying the right of the same court to grant more than one reversal in favor of the same party in the same action, upon the ground that the verdict is against the weight of the evidence, applies in the circuit court where the judgment to be reviewed was rendered and the proceedings in error were brought after its enactment.</p> <p>4. Whether one in the lawful use of that part of the street intended for pedestrians was guilty of contributory negligence in turning out upon the gravel and rough stones, which caused her to trip and fall over the side of a culvert which was not provided with guard-rails, is a question for the jury which can be reviewed only by a court having jurisdiction as to weight of testimony.</p>

<p>AS TO THE AUTHORITY OF COUNCIL TO FIX GAS RATES.</p> <p>Municipal Corporations — Cas Bates Fixed try Council Are Not Binding on the Gas Company, When.</p> <p>Where no rate has been agreed upon for gas used within the limits of a municipality, and council attempts by council to fix rates on both a meter and flat basis and to give to consumers the privilege of changing from one basis to the other at their option, and the gas company refuses to accept the terms thus imposed, the ordinance is not enforcible.</p>

<p>DETACHMENT OF LANDS FROM A MUNICIPALITY.</p> <p>Annexation and Detachment of Territory from a Municipality — Civil Actions — Appeal.</p> <p>A proceeding to detach unplatted farm lands from a municipality, as provided in Sections 3578 and 3579, General Code, is not a civil action, and is therefore not appealable.</p>

<p>SUFFICIENT GROUNDS FOR DIVORCE AGAINST AN INSANE DEFENDANT.</p> <p>Divorce — Habitual Drunkenness and Extreme Cruelty Sufficient Grounds for Divorce Against an Insane Defendant — Where the Cause (of Action Accrued Before Insanity Intervened — Appeal from Dismissal of Divorce Petition^-Bection 12002.</p> <p>1. A petition for divorce states sufficient grounds for a decree against an insane defendant, where habitual drunkenness and extreme cruelty- are charged a-s continuing for more than three years prior to the adjudication of the defendant as insane and his commitment to an asylum for the insane.</p> <p>2. Appeal, but not error, lies to an order vacating the appointment of a trustee for an insane defendant in a divorce proceeding and dismissing, without hearing on the merits, a petition which charges statutory grounds for divorce which accrued prior to the adjudging of the defendant as insane.</p>

<p>LIABILITY OF MUNICIPALITY FOR CHANGE OF GRADE OF STREET.</p> <p>Grade of Street — Designation by City Engineer of Grade for Sidewalk —Entitled Abutting Owner to Damages — 'Where Grade of Street is Subsequently Fixed at a Substantially Different Level.</p> <p>Where a stone sidewalk has been laid by an abutting owner, pursuant to a resolution of the city council requiring that this be done, and the city engineer at that time designated a grade for the sidewalk as he was required and authorized to do both by the resolution ordering that the sidewalk be laid and also by an ordinance providing that he should determine the grades of city streets and sidewalks, the acts of the municipality amount to such a permanent fixing of the grade of the street as warrants an abutting owner in improving his property in accordance therewith and to recover damages in the event that the municipality subsequently establishes a grade for the street at a substantially different level.</p>

<p>STATUS OF A GENERAL JUDGMENT WHERE TWO ISSUES ARE PLEADED.</p> <p>Judgment — Error Relating to. One Issue Only — Rot Ground.for Setting Aside a General Judgment — Action against Guarantor of a Vendee.</p> <p>Where there are two aspects under which the claim of plaintiff might he. established, and the jury found in his favor, the judgment will not be reversed for error relating to one issue exclusively, but will be affirmed unless the errors complained of are of such a • character as tó vitiate the vérdict as ,to both issues.</p>

<p>SALE BY SHERIFF.</p> <p>Judicial Sales — Foreclosure—Successful Bidder Entitled to Prosecute Error — Sale Will Not be Set Aside to Permit of Higher Bid — Option Obtained by One of the Appraisers from Successful Bidder.</p> <p>1. A purchaser at a sheriff’s sale, under a decree in foreclosure, is sufficiently a party to the action in which the sale is made to prosecute error to the circuit court to reverse the judgment of the court of common pleas, upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff.</p> <p>2. In tbe absence of fraud, irregularity or misconduct affecting tbe validity of a judicial sale, sucb sale will not be set aside and confirmation refused in order to' allow tbe bid of the purchaser to be advanced by another bidder.</p> <p>3. Tbe fact that one of the appraisers of tbe real estate did on the day of tbe sale obtain an option from tbe purchaser for a one-half interest in tbe premises, does not affect tbe regularity and validity of tbe sale, in tbe absence of any showing that said appraiser did in any wise prevent any one from being present or bidding at said sale.</p>

<p>ENFORCEMENT OF UNDERLYING MINERAL RIGHTS BY INJUNCTION.</p> <p>'Mines and Mining — Rights of Surface and Sub-surface Owners — Implied Right of-Ingress and Egress in Prospecting for or Removing Underlying Minerals — Maintenance of Derricks and Machinery in Drilling for Oil — Privilege of Storage — Damages to the Surface from Such Operations.</p> <p>1. The estates represented by ownership of the surface and of underlying mineral rights are mutually dominant, and servient, and in a conveyance of the surface there is an implied reservation of right of access to the estate below, and this right may be enforced by injunction.</p> <p>2. The owner of underlying oil and gas rights is entitled, to the use of the surface for ingress and egress in drilling a reasonable number of wells and may maintain thereon derricks and other necessary machinery; but storage rights will be limited to such as are incidental to the immediate production and marketing of the oil, and the question of damage to the surface from such operations will be left open for future determination.</p>