Volume 14 — Ohio Nisi Prius Reports, New Series

<p>COMPENSATION FOR CARE AND SERVICES RENDERED TO A DECEDENT.</p> <p>Contract for Services — Rendered to an Aged Couple — Arrangement for Testamentary Compensation — Supplemented by Subsequent Written Agreement for a Gift of Bank Stoclc — Compensation is Thus Made Large — But Agreement is Enforced — Statute of Limitations Not Applicable.</p> <p>For a period of twelve years the plaintiff cared for the aged testator and during part of that time for his imbecile wife also. The testator was. wealthy, but eccentric and parsimonious, and insisted on living under repulsive conditions. The plaintiff was not a relative, and the promise to her, in the first instance, was that she should be suitably compensated by will, and such a provision was made by the testator, but the plaintiff was not satisfied therewith and procured from him a secret agreement in writing that she should receive, at his death, certain valuable bank stock in addition to the provision made for her in his will. The compensation tlius provided was larger than she could have expected on a quantum meruit. It was admitted that she rendered faithful service.</p> <p>Held: The mental competency of the testator to make the agreement not being in dispute, and in view of all the facts — the certainty with which the amount of additional compensation is fixed, the character of the services rendered, the conditions under which they were rendered, the ample estate, the risk of relying on merely testamentary compensation, and the fact that to enforce the agreement will work injustice to no one — the agreement must be regarded as established and the estate as liable in damages for the value of the stock so promised, notwithstanding her mercenary motive, the excellent bargain which she drove and the defective character of the agreement upon which she relies.</p>

<p>DEMAND BY STOCKHOLDER FOR INSPECTION OF BOOKS.</p> <p>Corporations — Construction of the Statutory Privilege Given to Stockholders to Examine Books — Legislative Intent to Conserve the Interests of all Stockholders and of the Corporation — Idle Curiosity, Pursuit of Personal Advantage or a Purpose Hostile to the Interests of the Corporation, Bar the Right of Inspection — Ratio Decendi of Court Decisions and the Limitation Upon Them as Precedents — Section 8673.</p> <p>In an action by a stockholder to enforce the privilege of inspection of the hooks and records of the defendant corporation, the presumption of good faith obtained, and allegations of stock ownership, de- . mand for inspection and refusal thereof, make a prima facie case for judicial interposition; hut when this presumption is met by allegations of bad faith, they are defensive and material, and a motion does not lie to strike such allegations from the answer. [The dictum in Cincinnati Yolkshlatt Co. v. Hoffmeister, 62 Ohio St., 189, is not followed in this case.]</p>

<p>AN INVALID ORDINANCE.</p> <p>Constitutional Law — Ordinance Prohibiting Certain Occupations in Residence Squares — Rendered Invalid, by Provision Permitting a Majority of the Property Oioners to Consent to the Carrying on of Such Occupations — Blacksmithing and Horseshoeing — Custom— Words and Phrases.</p> <p>1. When the right of a public official to act is in question and no contractual relation exists, no custom should set aside well defined meanings of words.</p> <p>2. A municipal council has power to declare a blacksmith shop a nuisance and prohibit or restrict it as to location and use, and such council also has power to delegate to its building commissioner or other agent the power to grant a permit for such a shop restricted as to such location and use — but such council has not the power to delegate to any citizen or group of citizens of such municipality any power of control over such officer. The granting of such power of control is a delegation of legislative power and is void — and a writ of mandamus will lie to compel such officer to grant the permit without the consent of any citizen or a group of citizens of a municipality.</p>

<p>LIABILITY FOR. DOW-AIKIN TAX.</p> <p>Taxation — Keeper of a Restaurant — Supplying His Customers With Beer Without Profit — Liable for the Dow-AiTcen Tax — Sections 6071, et seg.</p> <p>The proprietor of a restaurant,' who accepts orders from his customers for beer which he procures in a neighboring saloon, collecting from his customers therefor and paying the saloon keeper in due course, is liable for the Dow-Aiken liquor tax, notwithstanding there is no profit to him in such transactions.</p>

<p>VALIDITY OF ORDINANCE AIMING TO PROTECT PERSONS ALIGHTING FROM OR BOARDING STREET CARS.</p> <p>Municipal Corporations — Police Regulations and the Public Convenience and Safety — Delegated Power in that Behalf — Reasonableness of a Regulation — Constitutional Requirement as to Equality and Uniformity of Legislation — Private Rights.</p> <p>The Columbus ordinance, providing that “all vehicles going in the same direction with street cars, within the corporation limits of the city, shall not pass between the street car and curb while passengers are getting off or on said street car, unless the vehicle has first come to a full stop,” is discriminatory and therefore void, for the reason that, while placing a burden upon the drivers of vehicles, it affords no protection at all to the persons whom it is intended to safeguard, to-wit, persons who have just alighted from or are about to board a car, and serves a useless purpose so far as “passengers” are concerned, inasmuch as they are not within the zone of danger.</p>

<p>PRIMARY AND SECONDARY LIABILITY ON A PROMISSORY NOTE.</p> <p>Promissory Notes — Reliance Upon Form of Note to Support Claim that Endorsers 'Were Not Co-Sureties with One of the Mahers, But Sureties for Rim — Finding as Between Accommodation Maher and Endorsers* — Section 11713.</p> <p>Where the endorsers on a note are not parties to an arrangement between the makers, whereby one of them was to be a mere surety for such endorsers, he is as to such endorsers a maker and not entitled to the rights of a co-surety.</p>

<p>ACTION BY MINOR FOR INJURIES.</p> <p>Pleading — Averment as to Tender Bade Not Necessary in Case of a Minor, When — Adjustment May Be Made After Claim is Established.</p> <p>In an action in equity by the next friend of a minor, to set aside a settlement made by tbe minor with his employer for injuries received, it is not necessary to allege a tender back of the sum paid to the minor in settlement, inasmuch as a finding in his favor may be made dependent upon his paying back the amount already received, or the jury may be instructed to deduct the amount found to be rightfully due him the sum previously received.</p>

<p>STATUTORY LIABILITY UNDER. A SURRENDERED STOCK CERTIFICATE.</p> <p>Corporations — Liability of Stockholders of an Insolvent Company — Effect of a Transfer which Was Never Entered on the Stock Ledger— Purchase by a> Company of its Own Stock Not Ultra Vires, When— Section 3258,-R. S., Establishes a New Rule of Evidence as to the Ownership of Stock — Sections 3254, 3258 and 3259, R. S.</p> <p>Officers of the defendant company, while entirely solvent, received back the stock of a dissatisfied holder and returned to him the amount he had paid for it, and this action was subsequently rati- ' ■■ fied by the directors and by each and all of the stockholders.-The certificate was released and surrendered by a writing on the back thereof, properly signed and witnessed, and was delivered by the holder to the secretary of the company with the request that the surrender be properly entered on the books of the company, but instead of so doing the secretary placed the certificate in an envelope marked “Treasury Stock issued to S.” The transfer was never entered on the stock ledger or any similar book; and the stub in the stock ledger continued to show that the certificate had been issued to S. Two years later the company became bankrupt, and the envelope containing this certificate came into the hands of the receiver, the present action to enforce stockholder’s liability following. There was no evidence or claim that any creditor made any investigation as to who were stockholders before giving credit to the company, although this information was available to all who were receiving credit. Held:</p> <p>1. Under the rule of evidence as established by Section 3258, R. S., as amended after the surrender of this stock but before the accumulation of an indebtedness, S was not a stockholder during the period when the debts of the company were incurred. Harpold v. Stobart, 46 O. S., 397, criticised and not followed.</p> <p>2. A corporation does not act ultra vires in the purchase of its own stock, where no question arises as to the good faith of the parties, and the transaction has been fully executed, and the company at the time was free from debt, and the purchase was made to-avoid loss to the company through the resistance of the dissatisfied holder against the securing of loans for the purpose of enlarging the business, and the transaction has passed unquestioned for a long period; and a stockholder so surrendering his stock is not subject to a continuing statutory- liability.</p>

<p>ELECTION TO TAKE UNDER. A WILL.</p> <p>Wills — What Constitutes an Election to Take — Hesitancy to he Expected Before an Irrevocable Election is Made — Probative Force of-a Course of Conduct Consistent with an Intention to Take.</p> <p>In tbe absence of any statutory election on tbe part of tbe decedent to take under the will of his wife, whose death occurred some months prior to his own, and the facts presented not being of such a marked character or of such long duration as to distinctly evince an intention to take under her will, or to operate as an equitable bar to dower or distributive rights, it is manifest that there was no election — actual, implied or constructive — to take under said will, but on the contrary the decedent retained his dower and distributive rights.</p>

<p>VERIFICATION OF PLEADINGS IN INJUNCTION PROCEEDINGS.</p> <p>Pleading — Verification of Petitioiu — Hoio Made Where there is a Prayer for an Injunction — Sections 11875, 11351 and 11354.</p> <p>Where the remedy sought is a permanent -injunction, the petition may be verified on belief; but if the petition request a provisional— ' temporary — injunction the request will on motion be stricken out unless the verification be sworn to positively.</p>

<p>LIABILITY OF SURVIVING PARTNER FOR TAXES.</p> <p>' Taxation — ■Surviving Partner of Dissolved Partnership Liable for Unpaid Taxes.</p> <p>A tax, whether regarded as a debt or a claim, is an indebtedness which may be recovered from a surviving partner of a firm which has been dissolved.</p>

<p>GAS CONSUMERS MAY ENFORCE SUPPLY.</p> <p>Mandamus — Lies Upon Petition of Consumer to Compel Gas Company to Furnish a Supply — Company Required, Under the Cincinnati Ordinance, to Install Meters Free of Cost — Sections 1571 and 12283.</p> <p>1. The Superior Court of Cincinnati has jurisdiction to issue writs of mandamus.</p> <p>2. A citizen and resident of a city may have a writ of mandamus issued, upon his own relation, to a public service corporation commanding it to furnish him gas in accordance with the terms and conditions of a city ordinance, when such corporation has- accepted the benefits of such ordinance, and is bound by its provisions to furnish gas to the citizens and residents of such city.</p>

<p>DAMAGES TO PROPERTY ON ACCOUNT OF A STREET IMPROVEMENT.</p> <p>Municipal Corporations — Street Improvements — Recovery by Abutting Owners for Injury to Property — Construction of Requirement as to Filing of Claim■ — Dismissal Without Prejudice — Sections 11586, 3823 and 3814. ■</p> <p>1. A motion to dismiss a cause without prejudice is within time, if made after the court has intimated that he is disposed to grant the motion of the defendant for an instructed verdict, but before the motion to instruct had been actually granted or a decision announced.</p> <p>2. An abutting owner is not barred from asserting a claim for damages on account of a street improvement by reason of failure to file a claim within two weeks after service of notice of the proposed improvement, where it appears that there was no service of notice upon him either personally or by publication.</p> <p>3. Moreover, under the rule of strict construction in favor of an owner seeking to recover for an injury to his property, a claim for damages need not be filed unless the improvement is one, the cost whereof, or a part thereof, is to assessed upon the abutting property.</p>

<p>DIRECTED VERDICT WHERE ASKED BY BOTH SIDES.</p> <p>Life Insurance — Payment of Premium Note in Dispute — Forfeiture of Policy a Consequence of Non-Payment — Instructed Verdict Ashed, by Both Sides — Court Directs for the Plaintiff — Parties Concluded by the FndAng Made — Waiver as to Notice for Inspection of Documents.</p> <p>1. The court was of the opinion, upon the evidence submitted in this case, that the premium note in issue was paid within the prescribed time and the policy of insurance on the life of the decedent was thereby saved from forfeiture; and both parties to the action having moved for an instructed verdict, and the court being thereby clothed with the functions of a jury, its finding that the note had been paid and the direction to the jury to return a verdict for the plaintiff had all the force and effect of "a finding by a jury, and no new evidence having been offered the verdict so returned will not be set aside on motion for a new trial.</p> <p>2. The proffer at the time of trial by counsel on both sides of all the documents in their possession, except one letter which counsel for the plaintiff did not have, and never had and the possession of which he could not obtain, amounts to a waiver of the objection to the documents on the ground that notice for inspection had not been complied with.</p>

<p>DETACHMENT OF FARM LANDS FROM MUNICIPALITY.</p> <p>Municipal Corporations — Interests of, Superior to Those of Owner of Unplanted Farm Lands Within Municipal Limits — Taxation of Such Lands in Excess of Benefits.</p> <p>A petition asking that unplatted farm lands be detached from the municipality within which they are located, on the ground that they are taxed in excess of benefits conferred, will not be granted where it appears that the city is growing rapidly in the direction of these lands, and that they are suitable for building lots, and that the interests of fhe municipality as distinguished from those of the land owner will be best served by their retention as part of the territory comprising the municipality.</p>

<p>MUNICIPAL REGULATION OF BILLBOARDS.</p> <p>Constitutional Law — Restrictions on Property Rights — Prohibitions Against Bill Boards Which Are Without Warrant — Police Power Not for the Furtherance of Aestheticism.</p> <p>A municipal council is without power to provide by ordinance that in no case shall any hill-board be erected within the municipal limits at a distance of less than fifteen feet from the sidewalk.</p>

<p>FORGED ENDORSEMENTS OF CHECKS.</p> <p>Negotiable Instruments — Depositor Induced to Draio Checks to'Order of Fictitious Persons — Liability of Bank for Payment of Such-'Checks on Forged .Endorsements — Ordinary Care on the Part of Depositor and of Bank. .</p> <p>1. The rule of law that a negotiable instrument made payable’ to a fictitious person or order is, in effect, an instrument. payable to bearer and needs no endorsement to pass it to another in the commercial world and affairs, applies only where it is so made with the knowledge of the party making it and does not apply where the maker or makers, supposing the payee to be a real person and intending payment to be made to such person or his-order;- is1 induced by the fraud of another to so draw it.</p> <p>2. Where, by the fraud of a third person, a depositor of a bank is induced to draw his chock payable to a non-existing person or order, the drawer or maker being in ignorance of the fact and intending no fraud, the hank on which the check is drawn is not authorized to pay it and charge the amount of the instrument so drawn to the account of its customer on the endorsement of the party presenting it, although the instrument appears to have been previously .endorsed by the party named as payee. Such endorsement is in effect a forgery, and the payment thereon by the hank confers no right on it as against the maker or drawer of the instrument — ;the check.</p> <p>3. In the absence of a course of dealing or understanding to the-contrary between the parties, that is. as between the drawer of .the check and the bank paying it, the duty of the banker is, in all cases, to pay the check to the person named or his order' where'The terms of the check are such; and the bank may and should withhold payment of the check until fully satisfied as to the genuineness of the endorsement. -. . .;</p> <p>4. The ordinary rule of law is that a hank is bound to know the.signature of its depositor before it is authorized to pay a check drawn by such a depositor to the order of a person named therein, ah'd this rule is fixed to protect the rights of the depositor. But if the carelessness of the depositor and his want of ordinary care contributed to the deception of the bank, such person would not be in a position legally to enforce such general rule against the bank.</p> <p>5. Where one of two interested persons or parties must suffer because of a fraud or forgery committed or perpetrated, justice imposes the burden upon him who is the first in fault and put in operation the power which resulted in the fraud or forgery.</p> <p>6. It is the depositor’s duty, when his pass book has been written up and returned to him with the checks charged to his account, to examine them within a reasonable time thereafter and report any forgeries discovered. After the lapse of a reasonable time a presumption arises that the checks of the depositor issued against his bank arc correct, and the depositor having failed to examine them at a proper time can not recover from the bank the amount paid on checks subsequently discovered to be forgeries without proving that the bank could have, by the use of ordinary care, detected such forgery.</p>

<p>AS TO NEGLIGENCE IN THE REPAIR. OF A COUNTY ROAD.</p> <p>Roads — Liability of County for Failing to Keep in Repair — Statutes Relating to Liability of County for Negligence Much More Strictly Construed Than in Case of Municipalities — Section 2408.</p> <p>Under the rule of strict construction in actions involving the liability of a county for failure to keep a road or bridge in repair, county commissioners can not be charged with negligence in failing to maintain a guard rail to prevent travelers from going over the side of the road and down a steep declivity, where there is no allegation in the petition that at the time the road was improved there was erected such a guard rail, or that such a rail was called for in the plans -for repair and not erected.</p>

<p>ATTEMPT OF RECEIVER. TO OBTAIN POSSESSION OF SAFE DEPOSIT BOX.</p> <p>Replevin — Not Available io a Receiver to Secure Possession of Contents of Safe Deposit Box Rented by the Insolvent — Owners of the Business Gan Not be Served by Publication.</p> <p>Where several persons composing a company engaged in business rent a safe deposit box, and stipulate and it is noted on the contract that the box can not be opened except in the presence of them all, a receiver of the company subsequently appointed can not maintain an action in replevin against the safe deposit company to obtain possession of the contents of the box; nor can service of summons be had in such a case by publication upon an absent member of the company.</p>

<p>APPORTIONMENT OF RENTS ACCRUING DURING TRANSFER OF PROPERTY.</p> <p>Rents — Accruing for Property Under Contract of Sale — Go to Grantor up to Bate of Conveyance, When — Apportionment of Rents and Charges for Interest Where Belay Occurs in Malcing Transfer — • As to Befault of Tender of Performance Where Transfer is to he Made A.fter Title Has Been Examined — Custom—Specific Performance.</p> <p>1. Upon the sale and conveyance of a reversion in land, in the absence of stipulation to the contrary, the vendor remains owner of all rents that have accrued before conveyance and the purchaser becomes owner of all rents that accrue thereafter. Rent is not apportioned as to time.</p> <p>2. The same rule applies where a tenement house, rented out by oral leases to a number of tenants, is sold and conveyed between rent days.</p> <p>3. Where there has been delay in carrying out a sale of a reversion in land, and the vendor remains in possession, ordinarily the vendor must account for the rents accruing from the day when the contract should have been carried out, and the purchaser pay interest on the purchase money from the same date. If, however, the delay is caused by the vendor, and the interest exceeds the rents, the purchaser will be released from payment of interest and the vendor may keep the rents.</p> <p>4. Where a sale of land is stipulated to be carried out “as soon as” the title has been examined and approved, a party is not in default if he tender performance within a reasonable time after such title has been approved.</p> <p>5. A custom, in order to be engrafted upon a written contract, must be shown to be certain, uniform, reasonable, and so generally known and publicly acquiesced in that the parties to the contract should have known of it.</p> <p>6. A court of equity may refuse to decree the specific performance of a contract, even though the legal obligation to the plaintiff be perfect, unless the latter submits to such conditions as the court finds equitable under the circumstances of the case.</p>

<p>TESTAMENTARY PROVISIONS IN RESTRAINT OF ALIENATION REPUGNANT TO THE POLICY OF THE LAW.</p> <p>Partition — Fee Simple Title Vests, When — -Under a Will Postponing Sale or Division of the Property Until After the Death of the Last of the Devisees — Full Authority in a Chancellor to Order a Sale to Prevent Waste — Wills.</p> <p>A testamentary provision that the property devised shall not be partitioned or sold until after the decease of the last survivor of the children of the testator is rendered void by the restraint which it imposes upon alienation, and an owner in fee simple of any part of the premises so devised may maintain an action in partition.</p>

<p>WORKMEN’S COMPENSATION ACT CONSTRUED.</p> <p>Master and Servant — Construction of Ohio Worhmén’s Compensation Act — Constitutionality of Provisions Abrogating Defenses — Effect on Defense of Comparative Negligence.</p> <p>1. The provisions of Section 21-1 of the Workmen’s Compensation Act of 1911 (G. C., 1465-60) abrogating the common law defenses of contributory negligence, assumption of risk and the fellow-servant rule, are not in conflict with any constitutional guaranty.</p> <p>2. Under the provisions of that act, in an action by an employe for damages for injuries alleged to have been caused by negligence of the defendant, his employer, since January 1, 1912, where it is admitted that the defendant employs five or more workmen or operatives and has not paid into the state insurance fund the premiums provided by the Workmen’s Compensation Act, such defendant can not be permitted to plead contributory negligence in its answer, either as a complete defense or as comparative negligence in mitigation of damages under favor of the Norris act (101 O. D., 195).</p>

<p>INVIOLABILITY OF A MUNICIPAL FRANCHISE.</p> <p>Municipal Corporations — Easement to Gas Company to Lay Pipe in Street — Gan Not be Abrogated by Yacation of Street — Gas Company May Recover Damages for Interf&i'ence with Its Pipe.</p> <p>1. A franchise, granting to a gas company the right to lay its pipes in the streets and alleys of a municipality, is a contract between the gas company and the municipality, which can not be abrogated as to one of the streets included therein by vacation of said street by the municipality and the reversion of title therein to the abutting owners; but the right to maintain said pipe continues so long as the right remains in the company to supply gas to the municipality and its inhabitants.</p> <p>2. Where the abutting owner is a railway company, who after vacation of the former street changed its grade for the purpose of laying a track thereon, and in so doing exposed the gas pipe and made it necessary that it should be relaid, the railway company is liable to the gas company for the cost of so relaying said pipe.</p>

<p>THE DIFFICULT TASK OF A TRIAL JUDGE ON MOTION TO SET A VERDICT ASIDE.</p> <p>The Scintilla Rule — Prima Facie Case — Weight of Evidence — No M dence Distinguished from Evidence toithout Legal Weight — Difficulty Always in Separating the Function of the Court and the Jury —Problem of the Court on Motion to Direct a Verdict for the Defendant Distinguished from that Presented on Motion to Set Verdict Aside.</p> <p>The testimony of non-expert witnesses as to the speed at which a car or train was running at a particular moment is of little weight, and while testimony by such witnesses that the car which caused the accident was “going pretty fast,” and at a “pretty good rate,” and as one witness “thought,” was going “awfully fast,” is sufficient under the scintilla rule to send the case to the jury, it is not sufficient to support a verdict for the plaintiff where the sole ground of negligence charged against the defendant company was the running of the car at an unlawful rate of speed, and the testimoney of the plaintiff was contradicted by the surrounding circumstances and by the testimony' of disinterested witnesses called by the defendant, some of whom were experts.</p>

<p>TWO INJURIES TO THE SAME PLAINTIFF CHARGED AGAINST THE SAME DEFENDANT.</p> <p>Joinder of Actions — Where the Same Employe Was Injured in Two Different Accidents While in the Same Employ.</p> <p>Causes of action are improperly joined, where an employe seeks to recover on account of two distinct injuries, occurring at different times, and in different apparatus, and for which damages are asked in different amounts.</p>

<p>MUNICIPAL WATER. RATES.</p> <p>Municipal Corporations — Sime of Water Meters a Proper Basis for Fixing Water Rates — Requirement of Cash Deposits in Advance From Water Consumers — Must Not be Discriminatory or Unreasonable— Tax-Payer May Sue to Test Validity of Municipal Water Regula> tions — Sections 3958 and 4314.</p> <p>1. Under Section 3958, General Code, the director of public service of a city owning and operating a water works may require consumers of water who have installed meters to pay a service charge based, upon the size of the meter, as part of the water rent necessary for the maintenance of the plant.</p> <p>2. The regulation of the director of public service may also require of meter users a cash deposit in advance for a quarterly period.</p> <p>3. But regulations that require such cash deposit in advance of domestic consumers only, and not of commercial or mercantile consumers, are discriminatory, unreasonable, and an abuse of the discretion vested in the director of public service, and therefore invalid.</p> <p>4. A tax-payer under Section 4314, General Code, upon refusal of the city solicitor to bring an action to. test the validity of such regulations, may bring an action in his own name.</p>

<p>ACTION TO COMPEL BUILDING OF A CROSSING OVER A RAILWAY TRACK.</p> <p>Covenants — Agreement by a Railway Company to Build a Crossing•— Not a Covenant Running with the Land,- When.</p> <p>A recorded agreement wherein a railway company covenanted with an owner of land abutting on its line to construct a crossing over its tracks within one year after the completion of its road, is not a . covenant running with the land which may be enforced after a long period of years against the successor of the company which entered into the agreement, where there was no condition requiring a successor to build or maintain such a crossing, or any reservation to the grantor of a right-of-way over said railway tracks.</p>

<p>ACTION UPON CONTRACT OF INSURANCE.</p> <p>Pleading• — Setting up a By-law of Defendant Insurance Company — Not a Departure where the Action is on the Policy.</p> <p>It is not a departure, in an action cn a policy of insurance, to set up in the reply the provisions of a by-law of the defendant company, which is a part of the contract of insurance and negatives the effect of an affirmative defense and therefore tends- to fortify and strengthen the cause of action set up in the petition.</p>

<p>ACTIÓN FOR RECOVERY ON CLAIMS FOR BUILDING A COURT HOUSER</p> <p>Counties — To ~What Extent Invested With Corporate Capacity — Limitations on Power to Sue and be Sued — Status of County Commissioners — Authority of a Building Commission — Its Members'"Not Public Officers — Purpose of Appointment — Actions Against Counties —Parties—Misjoinder—Sections 2333, et seq.</p> <p>1. The members of a county building commission are not public officers and are without authority to sue or to plead or be impleaded in any case. ' ....</p> <p>2. The presumption of .law that public officers will discharge the, duti.es incumbent upon them forbids that they should be regarded as proper parties to an action upon claims accruing against a county in- the construction of a court house, and where the county auditor and county treasurer have been made parties to such an action demurrer will lie for misjoinder of parties defendant.</p>

<p>TO ESTABLISH A LIEN FOR. OVERDUE ALIMONY.</p> <p>Proceedings in Aid of Execution — Action to Declare an Equitable Lien— On the Interest in a Decedent’s Estate Held by a Debtor for Alimony-Order to Pay Alimony in Effect a Judgment — Appearance for Purpose of a Motion is an Appearance for All Purposes, When — ■ Section 11769.</p> <p>1. Past due installments of alimony are in legal effect a judgment on which an execution may be issued.</p> <p>2. In an action to establish an equitable lien for such unpaid installments, a defendant who appears for the purpose only of moving to set aside the service made upon him by publication, on the ground that the court has no jurisdiction over the subject-matter of the action, enters a voluntary appearance and is in court for all purposes.</p>

<p>USE BY PUBLIC OFFICER OF FUNDS IN BANK IN PROCESS OF LIQUIDATION.</p> <p>Criminal Law — Use by Superintendant of Banks of Funds Under Bis Control — Not Within the Embezzlement Statute, When — Wrongful Appropriations Which Are Not a Complete Legal Breach of Trust— Restoration of Funds so Used — Fraudulent Conversion — Intent— Classification of the Embezzlement Statutes — Venue—Sections 12467, 12873 and 12876.</p> <p>1. The crime of embezzlement is accomplished by the absolute and fraudulent conversion of money by one in the position of trust. It is the defendant’s duty to account, together with his neglect or refusal to do so that constitutes the fraudulent breach of duty, and embezzlement. State v. Bailey, 50 O. S.-, 636, 646; Campbell v. State, 35 O. S\, 70; State v. Gunkleman, 13 N.P.(N.S.), 605, affirmed by the Supreme Court, followed.</p> <p>2. Use by tie State Superintendent of Banks, for payment of a private debt, of funds belonging to a bank which has been placed under his control for the purpose of liquidation, does not constitute a crime under the embezzlement statute, where the funds so taken were soon afterward returned to the depositary together with interest thereon during the period of such use.</p>

<p>CLAIMS FOR NECESSARIES.</p> <p>Necessaries — Judgment Creditors Not Entitled to Proceed on Claim as. for Necessaries, Unless — Shoeing a Horse Does■ Not Constitute a Claim for Necessaries — Exceptions—Sections 11559 and 11781.</p> <p>1. Unless it appear that a judgment rendered hy a justice of the peace was founded on a claim for necessaries, the defendant is entitled to his earnings for personal services within three months next preceding the entering of the judgment.</p> <p>2. A claim for work and labor in shoeing a horse, used hy its owner in the express business, is not a claim for necessaries within the meaning of that term as used in the code.</p>

<p>TITLE TO LAND PASSING THROUGH INTESTATE HUSBANDS AND WIVES.</p> <p>Descent of Non-Ancestral Property which Passed from. Intestate Husband to Wife Who Died Intestate After Marrying Again — Her Second Husband Also Dies Intestate — Life Estate — Dower.</p> <p>1. A husband, relict of a wife who died intestate, seized of an estate coming to her (under Section 8574, General Code — 4159, R. S.), from a former husband who died intestate, survived by such wife, without issue, has a dower interest only in his deceased wife’s estate and not a life interest. Spitler v. Heeter, 42 O. S., 100, distinguished.</p> <p>2. The real estate of such deceased wife upon her death without issue, she having title to such real estate from a former deceased husband, passes to and descends, under Section 8577, General Code (4162, R. S.), one-half to the brothers and sisters of such wife and one-half to the brothers and sisters of the deceased husband, subject to the dower interest of the second surviving husband.</p>

<p>AS TO VALIDITY OF A MUNICIPAL BOND ISSUE.</p> <p>Elections — Construction of Statutes Relating to Closing of Polls — An Election will not be Declared Void unless Clearly Illegal — Burden of Proof upon the Contestant — Recent Constitutional Amendment Relating to Bond Issues Construed.</p> <p>1. The statutory provision that polls shall be kept open until 6 p. m. is directory only, and the fact that an election for the purpose of authorizing an issue of municipal bonds the polls were closed at 5:30 p. m. is not sufficient to warrant the granting of an injunction restraining the putting forth of such issue, in the absence of fraud or a positive showing that the result would have been materially changed had the opportunity to vote been extended .to 6 p. M.</p> <p>2. Nor is an issue of municipal bonds rendered invalid under the recent amendment to Section 2 of Article XII of the state Constitution by reason of the failure of council to make provision for levying and collecting annually by taxation an amount sufficient to pay the interest on the bonds 'and to provide a sinking fund for their final redemption at maturity.</p>

<p>LIQUOR. TAX REFUNDERS BY REASON OF THE FLOOD.</p> <p>Constitutional Law — Act Authorizing Refunders to Liquor Dealers Closed for a Time by Flood Invalid Where Operating Retroactively, and of Doubtful Validity Where Operating Prospectively.</p> <p>1. The act of the General Assembly to provide for a refunder of portions of the tax on the traffic of intoxicating liquor in certain cases of enforced discontinuance of said traffic (H. B. 663, passed April 18, 1913), can not be made to operate retrospectively, so as to apply to any such discontinuance occurring prior to the passage and approval of such act, for the reason that such application would offend against that portion of Section 28, Article II, Ohio Constitution, forbidding the enactment of retroactive laws.</p> <p>2. Whether said act is constitutional when operating prospectively, Quaere.</p>

<p>ATTACHMENT FOR. NECESSARIES.</p> <p>Attachment — Of Personal Earnings on a Claim for Necessities — Brokers in Necessaries Not Entitled to the Benefit of the Statute — Section 10271.</p> <p>Only one actually furnishing necessaries directly to a wage earner is entitled to the benefit of the ten per cent, statute; and where necessaries are sold to a wage earner by a broker, an action in attachment does not lie for ten per cent, of the personal earnings of the debtor.</p>

<p>FACILITIES FOR. INTERCHANGE OF TRAFFIC.</p> <p>Railways — Control of, by Public Service Commission — Authority to Require the Putting in of Connection Tracks — -Such an Order Not, Unreasonable, When — Constitutional Rights and Due Process of Law as Applied to Orders Requiring Expenditures by Railways— Sections 522 and 611i-lf2.</p> <p>1. The paramount purpose and design of the Public Service' Commission law passed by the Legislature in the exercise of the police power was to regulate the public duties of public utilities not within the jurisdiction of courts. The latter has power to interfere with regulatory acts of the commission only when such corporate public utility is deprived of its property without due process of law, or its property is taken without just compensation. Because of the varying quantity of police power its scope is differently interpreted than are other specific constitutional provisions. Being the expression of social and economic conditions, courts when called upon to review such legislative acts must search for principles of constitutional morality from new and various experiences of present times and existing circumstances, because such power is limited only by public need, and the prevailing morality and strong and preponderant public opinion, from its nature incapable of exact definitions. Courts must therefore apply the same rule of opinion in judicial expression in determining whether a Legislature has deprived a person of his property unlawfully. Due process and police power should parallel each other in their lines of morality; and if the legislative act shall be found upon an analysis not to deprive one of his property in a way contrary to common standards of justice, it shall be deemed to come within the police power, and hence it will not violate the “due process” clause.</p> <p>2. An order by the State Public Service Commission requiring three railway companies, whose tracks intersect in the city of Wooster, to put in transfer or connecting tracks, at a total cost of about $14,000; in order to accomodate certain manufacturers and others whose traffic amounts to about two thousand cars per year, is not so unreasonable in its requirement of additional expenditure as to violate a constitutional right by taking the property of said companies without due process of law.</p> <p>3. Sections 522 and 614-42, General Code, furnish ample warrant to the Public Service Commission for requiring of railways the installation of proper facilities for the interchange of traffic. .</p>

<p>PERSONAL LIABILITY OF BANK DIRECTORS FOR. LOSSES DUE TO MISMANAGEMENT AND ACTION THEREON.</p> <p>Banks and Banking — Stockholders of a National Bank May Bring an Action Against Directors for Losses On Account of Mismanagement —Demand on Receiver Not Necessary — Forfeiture of Franchise Not a Prerequisite Where Recovery is Sought for Knoioingly Violating the Banking Statute — Liability of Directors May Be Determined by State Court — When Receiver’s Right to Collect on Statutory Liability Can Be Exercised Only for Purpose of Paying Debts — Stockholders Proper Parties, When — Adjustment of Variant Liability of Directors — Dividends Illegally Paid Will Be Deducted from Losses— Character of Action Against Directors — When Right of Action of Stockholders Accrues — Directors Required to Exercise Ordinary Care Only — Not Liable for Misfeasance of Former Directors — Pleads ing — Application of Statute of Limitations — Actions in Equity and at Law — Sections 11224, 11227 and 11238.</p> <p>1. Stockholders of an insolvent national bank which is in the hands of a receiver, appointed by the comptroller of the currency to wind up its affairs and pay its debts, may bring an action in their own names against the directors of the bank personally for losses due to mismanagement of the bank, without having first made a demand upon the receiver.</p> <p>2. Forfeiture of the franchise of a national bank is not a prerequisite to enforcement of the personal liability of directors prescribed by Section 5239, United States Revised Statutes, for knowingly violating the banking statutes, and an action against the directors for damages resulting from known violations of the federal banking act may be brought by stockholders in their own names.</p> <p>3. State courts in stockholders’ suits may determine the liability of directors of a national bank both at common law and under the national banking act, the statutory duty, however, being determinable under the statute in so far as the particular acts fall within its provisions.</p> <p>4. Neither Section 5239, United States Revised Statutes, nor Section 5234 authorizes a receiver to collect damages for the statutory-lia-' bility created for the benefit of stockholders of a national bank, the receiver’s rights are to be exercised only when necessary to pay debts of the bank.</p> <p>ñ. A receiver of a. national bank represents the office of comptroller of currency who appoints him, and in an action against its directors for mismanagement, allegations respecting the participation of the comptroller in the acts of the bank, being of such nature as to press themselves upon the consideration of a court of equity charged with the duty of conserving the rights of stockholders, set forth reasons for recognizing the stockholders as parties, rather than the receiver,- to bring the action.</p> <p>6. An action for misfeasance in the management of a national bank, brought by stockholders against its directors,’ some of whom were directors when the wrongful acts were committed and some of whom were elected Subsequently thereto, requires adjustment of variant liability, and renders the cause one in equity in which the court may apportion liability according to the loss of capital resulting from their acts.</p> <p>7. Illegal dividends paid by directors of a national bank to its stockholders will be deducted from their losses upon determination by a court of equity of the losses sustained by stockholders growing out of mismanagement by such directors, and may be adjudicated in the principal action.</p> <p>8. An action against directors personally for mismanagement of the affairs of a national bank, charging them with purchasing worthless or doubtful notes and bills from another bank taken by it for money loaned, accepting a promissory note executed by the latter bank, assuming its debts which were greater than its assets and making the former bank insolvent at its inception, is based on the common law obligations of such directors. The fact that other and . -• subsequent transactions by such directors directly or indirectly impaired the financial condition of the bank does change the nature or character of the action; nor does the fact that some of the directors were subsequently elected, causing a variant liability, effect - ■ ■ an' increase of causes of action, but are mere links to constitute the cause one in equity.</p> <p>9/Allegations in an. action under Section 5239, United States Revised Statutes, by stockholders against the directors of a national bank ' - -that certain directors mismanaged the affairs of the bank and cer- ■ ■' tain other directors, elected after the acts of mismanagement were - committed, knew or would have known if they had discharged their ‘ ' duty, Of the wrongful acts complained of, neither allege knowledge or negligence, express violation of the- statute, or the common law - ’ obligation of the directors.</p> <p>10; An action by stockholders of a national bank in their representative .' • capacity against its directors personally, for mismanagement of the affairs of the bank, involving an accounting, is an exclusively equitable proceeding and is governed by the ten years’ statute of limitations, prescribed by General Code, 11227, and not the four years’ limitation, prescribed by General Code, 11224.</p> <p>11. An’ action by stockholders against directors for loss of stock by mismanagement is distinguished from an action by a receiver for loss of corporate assets, and does not accrue as of the date of the mismanagement but from the date the loss actually occurs.</p> <p>12. Notwithstanding General Code, 11238, providing that there shall be but one form of action, the distinction between suits in equity and actions at law has not been abrogated. Observance of this distinction is essential to a proper application of the rule of limitation to the particular cause of action.</p> <p>13. Directors of a national bank, elected after consolidation with another bank and following its organization as such are not, under the rule of ordinary care required of them, liable personally for the mismanagement or misfeasance of former directors by which the stock of the bank was rendered valueless, especially if the new directors constituted a minority of the board and relied on the reports of the bank examiners and comptroller of the currency, .notwithstanding an investigation of prior management of the bank would have disclosed the insolvency of the bank.</p> <p>14. Allegations, in an action for misfeasance of directors of a national bank, to the effect that directors elected after such misfeasance circulated abstracts from government reports of the bank’s solvency, by reason of which the bank was kept open for twenty-one months longer, do not state a cause for diminution of assets which renders the new directors personally liable, and particularly is this true where there are sufficient assets to pay the debts of the bank.</p>

<p>UNWARRANTED REQUIREMENT AS TO SIDEWALK.</p> <p>Municipal Corporations — Arbitrary Use of the Police Power — In Requiring that a Sidewalk be Changed from- Brick to Cement — ‘‘The End Justifies the Means” not a Principle of Law.</p> <p>Where a hrick sidewalk substantially complied with the law at the time it was laid, and is now adequate and with the exception of a few minor details, which may he easily remedied at small cost, a resolution of counsel which seeks to compel the abutting owner,, to change the brick walk to one made of cement is an arbitrary use of the police power of the municipality and may be enjoined.</p>

The action in this case was in partition, and the purchasers at the request of counsel for the plaintiff paid the heirs the purchase money direct and for the deferred payments executed their notes to the heirs secured by mortgage on the property purchased. No money was distributed by the sheriff or paid into his hands.

<p>PROMISSORY NOTE INDUCED BY FRAUDULENT REPRESENTATIONS.</p> <p>Fraudulent Transactions — Adjustment of Rights as Between the Parties Thereto — Purchase of Bank Stock on Representation That it Gould Be Paid for with Dividends Accruing — Action of Note Evidencing the Debt.</p> <p>Where two persons have each used the other in a fraudulent transaction in the belief that the transaction would result in their making something out of nothing, a court will refuse assistance to either one to get an advantage over the other, and affirmative relief being asked by both the court will leave them where it finds them, requiring each party to pay the costs he has made.</p>

<p>DUPLICATION OF TELEPHONE SYSTEMS UNDER THE PUBLIC UTILITIES ACT.</p> <p>Telephones — Regulation by the Public Service Commission of the Extension of Lines — Utilities Act Does Rot Apply to Companies Previously Chartered — Sections 614-52 and 614-69.</p> <p>The provision of Section 614-52, denying to a telephone company the right to extend its lines into territory where another company is giving adequate service, unless such company shall..first secure from the Public Service Commission after a public hearing a certificate that such extension is necessary for the public convenience, does not apply where such company was chartered and in good faith constructing or operating lines prior to the going into effect of the public utilities act and is only seeking to make extensions within the territorial limits covered by its franchise.</p>

<p>JUDGMENTS COLLATERALLY ATTACKED ON MATTERS DEHORS THE RECORD.</p> <p>Judicial Sales — Rights of Innocent Purchaser at Sale under Proceedings Regular on Their Face — But Predicated on a False Return on the Summons — Conflicting Policy of Different States as to Effect of Judicial Records.</p> <p>1. A petition which recites that a suit to foreclose a mortgage had been brought in the common pleas court, that summons was duly issued thereon, that the return of the sheriff showed all parties to have served according to law, and that a judgment and decree of sale was entered thereon and the premises sold under said decree, and which seeks to set aside said decree and order of sale on the ground that the return of the sheriff was false and fraudulent, does not state a cause of action against the purchaser at said sale.</p> <p>2. The return of the sheriff, regular in form and proceeding had thereunder, will not he set aside in a collateral proceeding instituted for that purpose, especially when the rights of an innocent purchaser.at such sale have intervened.</p> <p>3. The public policy of this state will not permit of collateral attacks upon judgments predicated upon matters entirely dehors the record.</p>

<p>SECOND PAYMENT REQUIRED FROM GARNISHEE.</p> <p>Attachment and Garnishment — Effect of Entry Dismissing Garnishee— Where Bights of Parties Not Before the Court are Affected Thereby —Garnishee Required to Pay Second Claimant Balance Returned to Judgment Debtor — Collateral Attach — Res Adjudicata — Parties Presumed to Have Notice of Procedure Regularly Tahen — Nature of the Remedy of Attachment — Judicial Notice of Pending Cases and Proceedings Had Therein.</p> <p>1. Where a nisi prius court is composed of several judges they are not bound to take judicial notice of all the cases pending before the court as a whole or of proceedings which are being taken therein; and in endorsing an entry, a judge only passes upon the issues presented by the case before him as disclosed by the evidence and information he then has; and in so far as such an entry affects the rights of parties to another case and who are not before him, it is void.</p> <p>2. A garnishee who has been served with process in two different actions and has filed answers in both, is not relieved from liability for payment of the claim in the second case by compliance with an order made in the first case for payment to the clerk of court of the amount due the judgment debtor from the garnishee, the satisfaction therefrom of the claim involved in said first case, the transmission of the remainder to the non-resident debtor, and the discharge of the garnishee from further liability.</p>

<p>FINALITY OF A JUDGMENT RENDERED AT REQUEST OF PLAINTIFF.</p> <p>Judgment on Failure to Answer — Gan Not he Rendered on Motion of Plaintiff, When — But may he Final though Wrongly Rendered.</p> <p>1. Where one asserts an amount due for a claim which in its nature can not he split — and the defendant admits the claim but sets a lesser amount as its. value — a court can not on motion of the plaintiff under Section 11592, General Code, render a judgment as in default (Weaver v. Carnahan, 37 Ohio St., 363, followed); hut</p> <p>2. If such a judgment be rendered a court will not thereafter vacate it at the request of the plaintiff and against the objection of the defendant (Weaver v. Carnahan, supra); and</p> <p>3. Such a judgment is final and is a bar to any proceeding to recover th'e balance of the original claim.</p>

<p>COMPROMISE SETTLEMENT WITH AN INFANT.</p> <p>Infant — Legal Sanation to Compromise Settlement Made With Next Friend Not Binding Upon Infant, When — Pro Forma Judgment Vacated. . ;</p> <p>A judgment by -confession entered in the court of a justice of the peace to carry into effect a compromise and settlement made on behalf of an infant by his next friend is not binding upon the infant when there has been no hearing of the case by the justice of the peace, and the only purpose of the judgment is to give an apparent legal sanction to the compromise.</p>

<p>GUARANTEEING FINANCIAL RESPONSIBILITY.</p> <p>Building Contracts — Power of a Corporation to Guarantee Payment for Material Going Into Its Building — Guarantee Validated by Signature of Secretary, When — Guarantee and Warranty Distinguished.</p> <p>1. Where a corporation, engaged in erecting a building, guarantees to a dealer in brick the financial responsibility of the contractor to whom the brickwork in said building is awarded, the guarantee is that the'said contractor will pay for the brick sold to him for use in said building, and not merely that said contractor is a financially responsible person.</p> <p>2. A corporation which has been granted authority by its charter to erect a building is authorized to make such a guarantee, and where the secretary of the corporation is its acting general manager his signature to such a guarantee binds the company.</p>

<p>SWITCHING CHARGES DISTINGUISHED FROM CHARGES FOR. TRANSPORTATION.</p> <p>Railways — Charges for Shipment from a Local Station on One Road to its Municipal Terminus and Thence to a Private Switch Within the " Municipality on Another■ Road — Sections 8998, et seq,</p> <p>1. The rule that the remedy of a shipper who has been aggrieved by an overcharge for carriage must be found in an. application to the State Railroad Commission or the Interstate Commerce Commission, is not applicable where the relief sought is recovery of the penalty attaching to an overcharge for a switching service within the limits of a municipality. Townsend v. Central Trust Co., 187 Fed., 63, distinguished.</p> <p>2. A shipper who has been compelled to pay to a railway company an overcharge for a switching service rendered within the limits of a municipality is an aggrieved party within the meaning of the " /penal statute and may maintain an action for recovery of the • penalty provided in cases of such overcharge.</p>

<p>INTERSTATE BUSINESS NOT SUBJECT TO THE EXCISE TAX.</p> <p>Taxation — Pipe Line Companies and the Excise Tax — Only Interstate Business Subject to Assessment — Use of Receipts for the Purpose of Ascertaining Some Other Feature of the Business Subject to the Taxing Power of the ■State — Jurisdiction to Revise and Modify Excise Tax Returns — Section 5487, et seq.</p> <p>1. The state hoard of appraisers and assessors, having once made a determination as to the amount of gross receipts of a corporation subject to the excise tax, which amount has been certified to the state auditor and the tax levied thereon and paid, is without jurisdiction to thereafter reopen the matter and make a new and different determination as to the amount of the receipts of such corporation subject to the excise tax.</p> <p>2. A pipe line company, doing both an interstate and an intrastate 'business, is liable for the state excise tax only on its receipts from Ohio business.</p>

<p>PROBABLE LOSS NOT A DEFENSE FOR. DISREGARD OF FRANCHISE CONDITIONS.</p> <p>Public Utilities — Conditions (Embodied in Franchise Can Not be . Ignored, Through Fear of Financial Loss — Where Misrepresentation ■ or Fraud Are Not Charged Against the Municipality in Procuring the Franchise.</p> <p>In an action to compel a public service corporation to abide by a certain condition of its franchise, a defense is not stated by the aver- • ment that the company can not carry out the condition named without serious financial loss and possible bankruptcy.</p>

<p>VALIDITY OF ACT AUTHORIZING REPAIR. OF DAMAGES FROM FLOODS.</p> <p>Constitutional Laxo — Uniformity of Operation of General Laxos and Temporary General Legislation — To Determine the Circumstances Under Which a Laxo May he Carried Into Effect is a Proper Exercise of Judicial Poxoer — 103 O. L., 141.</p> <p>1. An act of the General Assembly which operates uniformly upon all counties, municipal corporations and political subdivisions throughout the state in the same condition or category, is within the constitutional requirement in that respect.</p> <p>2. The act authorizing the temporary repair of public ways and property, destroyed or injured by the floods occurring in March and April, 1913 (103 O. L., 141; and as re-enacted for the purpose of correcting typographical errors, 103 O. L., 760), falls within the Ohio rule as to uniformity of operation.</p> <p>3. The provision of this act, that in cases of the expenditure of $500 or more the court of common pleas must determine the necessity of such expenditure, is not a conferring of legislative power upon the courts, but is a provision for the exercise of judicial power.</p>

<p>REQUIREMENT OF BOND FROM EXECUTOR. EXCUSED THEREFROM UNDER. THE WILL.</p> <p>Estates of Decedents- — -Executor Excused from Giving Bond — When- a “Party Interested” May Demand a Bond — Construction of the Phrase “Party Interested” — Section 10607.</p> <p>1. Where W by deed conveyed all of his real estate to his grandson R and later by will devised all of said real estate to said grandson whom he named as executor without bond, and W, another grandson and an heir at law of the decedent filed -actions to set aside said deed and will and afterwards filed a motion in the probate court to require bond of the executor to whom administration was committéd without bond, W, the grandson making the motion, is a “party interested" within the meaning of Section 10607, G. C., and such situation with reference to the assets of the estate is one that makes the requirement of bond both prudent and proper and the court should so order.</p> <p>2. A “party interested” is one having an interest, share or concern in some project or affair; one involved, as financially interested; or, one concerned in a cause or its consequences; one liable to he affected or prejudiced; or one concerned for his own advantage; one who has a probable, though as yet an undetermined interest based upon some claim of right; one who has any right in the nature of property but less than title.</p> <p>3. When the administration, of an estate is committed without bond to one named as executor in a will by the terms of which bond is excused, and a party interested files a motion to require bond, it rests in the sound discretion of the court as to whether or not bond should he required. Administration bonds are favorites of the law and should he required of an executor, though excused by will, whenever a party interested moves that bond be required, or shows such situation with reference to assets of the estate as would render the giving of such bond either prudent or proper; or such bond may be required, if the court deem it necessary, when the administration of the estate is committed to such executor.</p>

<p>ENFORCEMENT OF PAROL AGREEMENT TO DISPOSE OF REAL PROPERTY BY WILL.</p> <p>Conveyance — Contract for Transfer of Property by Will — Enforcible by Decree, When — Heir Thereto Treated as a Trustee — Conditions Requisite and Degree of Proof Required Upon which to Base Such a Decree — Statute of Frauds — Section 8617.</p> <p>1. A parol agreement to dispose of real property in a particular manner, by last will and testament, may be specifically enforced by a court of equity, by treating an lieir as trustee, and requiring such heir to convey the property in accordance with the terms of the contract.</p> <p>2. Such performance will be required when the promisee has wholly performed her part of the agreement, the existence of which is established by clear and convincing proof, where it is impossible to restore her to her prior status, and where the non-fulfillment by the promisor operates as a fraud.</p>

<p>PRIVILEGED STATEMENTS BY ATTORNEY IN ARGUMENT.</p> <p>Slander — Action for Damages Against an Attorney — Based on Statements Made During Argument in Court — Question of Privilege a Legal One for the Court to Decide, When — Direct and Forcible Speech Permitted — Leniency and Liberalty in Deciding Whether the Circumstances Warranted the Language Used.</p> <p>Where an attorney is charged with uttering slander in an argument made before a jury, and there is no dispute as to the facts upon which his comments were based, and it appears that in the light óf said facts he had some warrant for the statements which he made, the case presented is not one for the jury to determine whether the statements so made were warrantd in view of the facts presented, but the court will hold that they were privileged, and that no cause of action exists against the attorney .because of slander in commenting upon the facts as he did.</p>

<p>ASSUMPTION OF,RISK UNDER. THE FEDERAL EMPLOYERS’ LIABILITY ACT.</p> <p>Construction of the Federal Employer’s Act With Reference to the Assumption of Rislc — Implied Terms of Contracts of Employment — ■ Negligence — Knowledge on Part of Employe of Defect Subsequently Causing Kim Injury.</p> <p>1. The report of a committee recommending the passage of an act, while not reaching the dignity of judicial authority, may be considered in the interpretation of the legislative enactment.</p> <p>2. The first section of the federal employers’ liability act of 1908 charges interstate railroads with liability to any employe for all damages arising in whole or in part by reason of the negligence of any of its officers or employes or any defect due to its negligence in its engines, etc. The first section contains no exception and in view of the remedial character of the statute and the purpose of its enactment, it is not permissible for a court to interpolate an exception exempting such railroads from liability to such employes .as may know of the negligence or the defect.</p> <p>3. The weight of authority (and particularly the Secisions of the federal courts) is that the doctrine of assumption of risk is based upon an implied term of the contract of employment. Section 5 of the federal employers’ liability act invalidates any contract or device whereby any carrier seeks to exempt itself from any liability created by the act. By virtue of Section 5 the doctrine of the assumption of risk is abolished. To hold otherwise would give to an implied contract greater efficacy than the act would permit to be given to an express contract.</p> <p>4. Section 4 of the federal employers’ liability act, which expressly abolishes the doctrine of assumed risk in certain instances where tile carrier is negligent and that negligence contributed to the injury, does not have the effect of limiting the liability under Sections 1 and 5 of the act for injuries caused in whole or in part, by the carrier’s negligence. The maxim “expressio unius est exclusio alterius” does not apply, for the reason that Section 4 is an enlargement of liability and not a limitation.</p> <p>5. The doctrine of assumption of risk of the negligence of the carrier has been entirely abolished by the federal employers’ liability act so far as interstate commerce is concerned. Under said act the only risk that the employe assumes is the ordinary dangers incident to his employment not due to any negligence on the carrier’s part.</p>

<p>DRUNKENNESS OF ITSELF NOT AN OFFENSE.</p> <p>Criminal Law — Intoxication or Drunkenness Not an Offense Against Which a Municipality May Provide.</p> <p>Drunkenness or intoxication, except as tlie good order and quiet of a municipality is thereby disturbed, does not constitute an offense under Section 3664, General' Code, for which punishment may be provided by ordinance.</p>

<p>VALIDITY OF ARREST BY OHIO NATIONAL GUARD.</p> <p>Militia — Aiithority of, to Make Regulations for Protection of Life and Property — 'Validity of Arrests Made by — Sow Accused Persons May Be Tried — Resisting a Person to Assist an Officer Gan Not be Made an Offense by Ordinance.</p> <p>1. The commanding officer of troops of the Ohio National Guard, when such troops are ordered into active service by the Governor, in cases of riot, disorder, invasion, or overwhelming disaster, may make reasonable regulations for the protection of life and property, whether martial -law has been proclaimed or not.</p> <p>2. Where a portion of a city has been visited by a disastrous flood, and much property has been temporarily abandoned by reason thereof, an order by the commander of troops excluding all persons from such flooded district without a pass was a reasonable and proper regulation.</p> <p>3. Troops so on duty under such circumstances might properly arrest a person who sought to force his way across their line, whether martial law had been declared, or whether the troops were called in aid of the civil authorities only; or they might forcibly eject him, using no greater force than necessary.</p> <p>4. After such arrest, the offender might' be brought to trial before a military commission if martial law were declared, but if not, he should be turned over to the civil authorities.</p> <p>5. Upon such a prisoner being turned over to the civil authorities, the jurisdiction of the military commander ceases; and the validity of an ordinance under which he is subsequently arraigned and tried by the civil authorities may be tested by habeas corpus.</p> <p>6. An ordinance of the city of Warren making it an offense “to resist a person called to assist an officer” is void; first, for the omission of the words “in making an arrest” and, second, by reason of the fact that the Legislature has made the same act an offense under the state law, and the city council was without authority to enact the ordinance..</p> <p>7. Even under laws making it an offense to resist a person called to assist an officer in making an arrest, citizen assistants are contemplated; and troops acting under the authority of the Governor would not be properly so designated. They are more in the class of officers themselves, as they act under the direction of their military superiors, and not by direction of the arresting officer.</p> <p>8. Where an officer has lawfully assumed control over or protection of property, and in an emergency justifying it has segregated it for its more complete protection, as by fire lines or guards, a person knowingly forcing his way through such lines or guards might properly be charged, under Section 12858, General Code, with resisting an officer, even though no force be directed against his person.</p>

The petition in this ease alleged that the plaintiff since the year-has. “Been engaged and is now engaged in the business and profession of a certified public accountant and factory cost specialist, in the state of Ohio, with his principal office and place of business in the city of Columbus, in said state.

<p>COST OF GAS CONNECTIONS FOR CINCINNATI.</p> <p>Municipal Corporations — Construction of Natural Gas Ordinance for Cincinnati with Reference to Cost of Connections to City Lamps— Custom of the City in Paying for Such Connections Not Binding.</p> <p>1. Under the ordinance granting to the Cincinnati Gas & Electric Company the right to furnish natural gas for heat, light and power and all other necessary uses to both public and private consumers, the gas company is required to construct at its own expense service pipes from its mains to the inside curb lines at least, and the city as well as private consumers is entitled to the benefit of this provision.</p> <p>2. The provision of Section 3 of the “Conover contract,” which puts upon the city the expense of service pipes connecting with street lamp posts, has not been made a part of the natural gas ordinance under which natural gas is now being furnished to the city.</p> <p>3. The fact that the city has heretofore paid for such service connections made since the passage of the natural gas ordinance, does not estop it from raising the question of its obligation to continue so doing, and under the rule that it is against public policy to permit public officials to bind the municipality as to the manner in which its ordinances shall be enforced, the question may be litigated without reference to previous custom.</p>

<p>SERVICE UPON A NON-RESIDENT;</p> <p>Summons — Constructive Service Against Non-Resident Defendant with No Chattel Property Within the State — Action to Reform Promissory Notes — Section 11292.</p> <p>Where a non-resident sends promissory notes into the- state for the purpose of collection, such non-resident is subject to constructive service of summons in an action for reformation of said notes.</p>

<p>PROCEEDINGS FOR ABOLISHING A GRADE CROSSING.</p> <p>Action ~by Tax-Payer — Ordinance May Oontain Only a Single Subject Though Involving Matters of Detail — Separation of Grade Grossings■ — Assessment of the Cost.</p> <p>1. Where the city of Cincinnati through its solicitor brought an action against the director of public service and a railroad company to test the validity of ordinances providing for the abolishment of the Hopple street grade crossing, in which case the ordinances were set out in full in the petition, and the case was contested by the railroad company, a final judgment in such cause is res adjudicata between the same parties not only as to what was determined, but also as to every other question which might have properly been litigated in the case.</p> <p>2. In such a proceeding the city solicitor appears on behalf of all the tax-payers of the city and an individual tax-payer can not thereafter maintain an action as such against the city and the railroad company to test the validity of the same ordinances.</p> <p>3. A property owner abutting on the proposed improvement may however bring such action when he can show irreparable injury.</p> <p>4. An ordinance providing for the separation of grade crossings does not contain more- than one subject where it provides in its preamble and the body thereof for other proceedings necessáry to the abolishment of the grade crossing but which require separate ordinances to effect the same. The validity of such an ordinance “is to be determined not by its form but in the light of the mischief the statute was intended to prevent.” Hefner v. Toledo, 75 O. S., 413.</p> <p>5. Where an ordinance recites both in the preamble and in the body thereof that in the separation of a grade crossing, the present crossing at grade is over a forty foot street, and that it will be beneficial to the city to widen the street to sixty feet before constructing the overhead crossing, but that no part of the widening is necessary to the abolishment of the grade crossing as it exists at present, and that tlie railroad company is not to bear any part of the cost of widening the street twenty feet or of the additional twenty foot overhead crossing, such an ordinance is not invalid because it charges the railroad with only its statutory proportion of the cost of abolishment of the existing forty foot grade crossing.</p>

<p>CONTEST OF WILL MADE WHILE TESTATRIX WAS IN EXTREMIS.</p> <p>Wills — Charge of Court with Reference to Capacity of Testatrix to Malee a Will — What is Implied by the Signature of a Witness to a Will-Validity of Will Executed While Testatrix Was in Extremis — Definition of Prima Facie Evidence — Special Charge Aslced During Argument — Restraint—Weight of Evidence.</p> <p>1. It is not the province of a court, in its charge to the jury, to marshal witnesses into classes graded by their credibility. State v. Tuttle, 67 O. S., 440; Sharp v. State, 16 O. S’., 218.</p> <p>2. It is not proper for a court in its charge to select one single fact to the exclusion of others and comment on it. Morgan v. State, 44 O. S„ 377.</p> <p>3. No special charge, as such, may be given to the jury except before argument. Sec. 11447-5 General Code; Village of Monroeville v. Root, 54 O. S„ 523.</p> <p>4. It is error, in connection with the mentality of a testator, to tell a jury it may find whether the attorney, who prepared a will, carried out the instructions of the testator.</p> <p>5. A jury is not chiefly interested whether a testator has the mentality to initiate a will and afterwards to remember the items of a will drawn by another under his instructions. Its chief concern is— was the testator of sound mind and memory at the time of the execution of the will. A testator’s mentality before and after that period is important only as bearing on that period.</p> <p>6. In the contest of a will, as in other actions, it is the. duty of the court in its charge to cover all the main issues, whether raised directly or by legitimate inference from the facts in the case.</p> <p>7. The verdict of a jury will not be set aside on account of the weight of the evidence unless it is unsupported by or is against the decided weight of the evidence. French v. Millard, 2 O. S., 44 at 53.</p>

<p>INVALID CONTRACT WITH CITY.</p> <p>Public Contracts — Statutory Requirements Must be Strictly Complied with in Dealing with Municipality — Sections 4328 et seq.</p> <p>An action will not lie either on contract, or quantum meruit or for tortious conversion, where against a municipality on a claim for more than $500 not contracted for under a written agreement.</p>

<p>CINCINNATI MUNICIPAL COURT LAW INVALID.</p> <p>Constitutional Laic — Act Creating a Municipal Court for Cincinnati— Rendered Invalid by Confusing the Administrative Function of Making an Appointment with the Legislative Function of Prescribing How it Shall be Made — Provision for a Presiding Judge is a Creation of a Public. Office — 103 O. L., 279.</p> <p>1. The legislative act providing for a Municipal Court for the city of Cincinnati (103 Ohio Daws, 279) is rendered invalid by reason of the fact that the General Assembly, in providing for a presiding judge with functions, emoluments and term of office different from that of the other judges of that court, created an office and by the naming of the present police judge as presiding judge of the said court attempted to exercise an appointing power not referred to among the exceptions contained in Section 27, Article II of the Constitution.</p> <p>2. Inasmuch as the duties prescribed for the presiding judge are bound up with the duties set forth for the associate judges, and the duties of the associate judges are dependent upon those of the presiding judge, the purpose of the act is incapable of fulfillment without the presiding judge, and the entire act becomes inoperative.</p>

<p>MISJOINDER IN PROCEEDINGS FOR. PARTITION.</p> <p>Partition — Accounting Upon a Separate Contract Improperly Joined— Section 11306.</p> <p>In an action for partition and an accounting for rents and profits, the plaintiff can not join as a third cause of action an accounting upon a separate contract entered into between the plaintiff and defendant, although the money that formed the basis of this contract was furnished by the plaintiff by a mortgage on his interest of the land sought to be partitioned. Such a cause of action does not arise out of the same transaction, nor is it a transaction connected with the same subject of action within the meaning of Section 11306, General Code.</p>

<p>EMPLOYE INJURED THROUGH CARELESSNESS OF FOREMAN.</p> <p>Pleading — General Denial and Allegations Inconsistent Therewith— Averments of Assumption of Pish and Contributory' Negligence and their Effect• — Design of the Code as to Certainty and Definiteness — When a General Denial is Proper — Variawce.</p> <p>1. A denial of each, and every allegation of the petition not herein specifically admitted to be true, pleaded with defenses of new matter inconsistent with a complete denial of the essence or gist of a cause, as well as with evasive and uncertain new facts, is improper and not authorized by the code.</p> <p>2. A plea of assumption of risk, admits that some servant has been guilty of neglect tending to cause the injury.</p> <p>3. A claim of contributory negligence implies some negligence on the part of defendant, and is inconsistent with a general or qualified denial of no negligence,</p> <p>4. A denial of every allegation not specifically admitted to he true, is an attempt to deny the negligence charged against defendant, and should not for this reason be given effect.</p> <p>5. The design of the code for certainty and definiteness is defeated by such a mode of pleading.</p> <p>6. The general denial in the technique of procedure has a definite and certain meaning and is proper only when the whole gist of a cause is assailed.</p> <p>7. New matter and defense acquire equal definite and certain meaning, and in logic and by natural inference admit all essential facts required to constitute plaintiff’s cause. It expressly or impliedly admits the averments of the petition, and alleges facts that destroy their effect or defeat them.</p> <p>8. Where a risk is an ordinary or an obvious one, and the facts showing injury clearly warrant the inference that plaintiff had, or ought, in the exercise of due care, to have knowledge of the peril or danger, he must in such case aver facts which will remove the case from the rule charging the servant with the assumption of risks.</p> <p>9. In such case the defendant may show assumption of risk under a general denial without pleading it.</p> <p>10. A plea that certain negligent acts were committed by plaintiff, which said negligence of plaintiff was a direct and proximate cause of any injuries which he sustained, while it has received some recognition as something more than a denial that plaintiff was without fault and constitutes an averment that plaintiffs own negligence was the sole cause of his injury, is at variance with the logic and reason- of pleading, setting up nothing that may not be shown under a general denial.</p> <p>11. The court in such case on motion to strike it out, may sua sponie order that it be made definite and certain by stating whether the alleged negligent acts of plaintiff were a .contributory cause with the negligence complained of and charged in the petition against defendant,</p>

<p>COMPLICATIONS ARISING ON DISTRIBUTION.</p> <p>Mortgage — All Rights Under, Pass to Successors in Title — Ejection— Statute of Limitations — Jurisdiction in Condemnation by the State —Rights Under the Common Law, in Equity and as Provided by General Statute.</p> <p>1. All the original rights between.mortgagor and mortgagee, in the absence of a stipulation to the contrary, pass to their successors in title, whether the transfer be by deed or not, among which rights is the right to eject on condition broken.</p> <p>2. The right to thus eject is barred in twenty-one years.</p> <p>3. An order of a court, or its finding — not a judgment — is a specialty, and-is barred in fifteen years.</p> <p>4. Whenever a court, in an action by the state to condemn, acquires jurisdiction of the person and the subject-matter, that jurisdiction obtains to the exclusion of other courts, both between the state and the parties, and also between the parties.</p> <p>r>. After the state by this power lias acquired property, the money paid is a fund subject to all the rights of all the parties, just the same as if the state had never intervened.</p> <p>6. Courts will not permit a law general in its nature to deprive one of any of his rights, legal, equitable, or statute, unless such general law expressly says so.</p>

<p>ADMINISTRATORS NOT SUBJECT TO GARNISHEE PROCESS.</p> <p>Attachment and Garnishment — Construction of the Statute Relating to the Effect of Service of Garnishee Process Upon a Public Officer.</p> <p>The executor or administrator of the estate of a decedent can not be held as garnishee before the filing of a final account in an action brought by a creditor of a creditor of the estate.</p>

<p>AS TO LICENSING OF MOVING PICTURE OPERATORS.</p> <p>Municipal Corporations — Ordinance Providing for Licensing Operators of Moving Pictures — Must Provide a Standard of Qualifications— Section 3657, General Code.</p> <p>While a municipality is well within its powers in requiring that operators of moving picture machines shall show themselves to be competent and trustworthy before being permitted to .handle so dangerous a mechanism under circumstances which may imperil the lives of an assembly of people, yet an ordinance may have that end in view and still be invalid by reason of failure to provide any standard of qualifications for such operators, leaving the matter of issuing licenses entirely to the judgment or caprice of those authorized to make the examination of applicants.</p>

<p>INVASION OF A TELEPHONE FIELD BY A COMPETING COMPANY.</p> <p>Telephones — Action to Prevent Competing Company Prom Entering Municipality■ — Capacity of Senior Company to Maintain Action— Telephone Companies as Public Utilities or Private Enterprises— Effect of Ordinance Granting Pranchises — Section 614-52.</p> <p>1. An established telephone company has capacity to maintain an action to prevent the invasion of its field by a competing company which has not secured from the Public Utilities Commission a certificate that the exercise of such a license is proper and necessary for the public convenience.</p> <p>2. The passage of an ordinance granting the right to supply telephone communication to the public within the limits of the municipality . is sufficient to bring the company accepting such ordinance within the public utilities act.</p> <p>3. A telephone company is either a public utility or a private enterprise; if the former, it is under the jurisdiction of the Public Utilities Commission and can not proceed without securing a proper certificate therefrom; if the latter, it does not possess the power of eminent domain and is without power to appropriate to its use the streets, alleys and public ways of a municipality.</p>

<p>ANTI-TRUST LAW NOT APPLICABLE TO FIRE INSURANCE.</p> <p>Valentine Anti-Trust Law — Not Applicable to the Writing of Fire Insurance — Sections 6390, et seq.</p> <p>Tbe business of writing fire insurance is not included under tbe provisions of tbe Valentine anti-trust law, and no recovery can toe had thereunder on account of any agreement among fire insurance agents which precludes unrestricted competition. Runde v. OlouA, 8 N. P., 436, and State v. Bovee, 6 N.P.(N.S.), 337, approved and , followed; State v. Ross, 4 N.P. (N.S.), not followed.</p>