Volume 15 — Ohio Circuit Court Reports, New Series

<p>MUNICIPAL APPOINTMENTS AND THE MERIT SYSTEM.</p> <p>Givil Service — Application of, to Vacancy Occurring Before Merit System was in Full Operation — Temporary Appointments — Sections 4480 and 4488, P. & A. Anno. General Code.</p> <p>An action lies to compel a director of public service to certify a vacancy to the civil service commission, notwithstanding at the time of the occurrence of the vacancy the civil service commission had not prepared rules and regulations adapted to carry out the purpose of the civil service act with reference to examinations and promotions.</p>

<p>ALLEGED LIBEL IN A COURT PROCEEDING.</p> <p>Libel — Materiality and Revelancy of Allegations Constituting the Alleged Libel — Degree of Privilege Attaching to Statements Made in Court.</p> <p>Statements made in court by attorneys and others, in relation to matters in litigation therein, are subject to an absolute privilege and can not be made the basis for an action for libel.</p>

<p>GOODS CONDITIONALLY SOLDAN ANOTHER STATE RETAKEN IN OHIO.</p> <p>Conditional Sales — Goods Sold in West Virginia Under Reservation of Title — Removed to Ohio and Subsequently Retalien — Conflict■ of Laws — Provisions of Section 8570 Pertain to the Remedy — Lex Pori Governs.</p> <p>1. Section 8570 of the General Code requiring one who sells chattels with reservation of title till payment of price to tender or refund back part of the money already paid before taking possession, pertains only to the remedy and will be observed by the courts whose jurisdiction is invoked to recover possession of the ■ property where such sales have been made in another state, ■ ■</p> <p>2. The laws of West Virginia on the subject of conditional sales’ of chattel property not requiring the vendor in such sales to tender or.refund to the purchaser of such property or any party receiving it from the vendor any portion of the money paid for the property before recovering posesssion of the same although more than twenty-five per cent, of the contract price has been paid, being in conflict with the established policy of our own state on the sub- • ject as shown by our statutes, will not be enforced by the courts of this state. ’</p>

<p>ESTABLISHING GUILT BY INFERENCE.</p> <p>Criminal Law — Prosecution for Soliciting dy Mail — Orders in Dry Territory for Intoxicating Liquor — Inference as to Knowledge of Manager — That Trade Circulars Are Being Sent Out from His Office — Effect of Silence When Confronted dy Such Evidence......</p> <p>The inference may reasonably be drawn that the manager or person ■ in charge of an office, from which emanate letters or circulars soliciting trade, has knowledge of such solicitation and is responsible therefor; and where such an inference as to the solicitation by mail in “dry” territory of orders for intoxicating liquors was not modified or rebutted by evidence, and the defendant remained silent when confronted by evidence of that character, a • reviewing court is not justified in holding that a finding of guilty by the court below was so clearly against the weight of the evidence as to require a reversal of the judgment.</p>

<p>WHEN ONE SHOULD STOP AS WELL AS LOOK AND LISTEN.</p> <p>Negligence — A.t a Railway Crossing — Circumstances Determine Degree of Care to be Exercised — Stopping Must be Added to Looking and Listening, When.</p> <p>It is the duty of one about to drive across a railway track to look and listen for an approaching car or train in such a manner as will.make his looking and listening effective; and where obstruction to vision or the noise of his vehicle make it necessary for him to stop in order that his looking and listening may be effective, it is his duty to stop, and failure so to do constitutes contributory negligence requiring the taking from the jury of an action for injuries from being struck under such circumstances.</p>

<p>ACTION BY DAUGHTERS TO RECOVER DIVIDENDS COLLECTED AND USED BY THEIR FATHER.</p> <p>Upon . attaining their majority the daguhters of R, who was their guardian and held stocks inherited by them from their mother, appeared in the probate court, receipted for balances shown to be due them on account of dividends collected on said stocks, and in writing in the presence of the probate judge asked that the accounts of their father as guardian be confirmed. For some years thereafter they permitted their father to continue to draw the dividends on said stocks and apply them to his own use, and then by written agreements authorized him to retain possession of said stocks and to collect and use the dividends as long as he lived. After another long interval suits were filed by the said daughters against their father, in which it was alleged that the agreements were void and the court was asked to cancel the agreements and adjudge to them the dividends drawn by their father. Held:</p> <p>1. The agreements did not change the situation of the parties, hut simply gave to the defendant a legal right to do what he had long been doing with the consent of the plaintiffs.</p> <p>2. Approval of the accounts of their guardian, long acquiescence in his use of the dividends, and a seeming recognition of the propriety of his having said income, require that a recission of the agreements with a judgment for the dividends he based on strong and convincing evidence.</p> <p>3. Inasmuch as that part of the agreements, which provided in each case that in case of the death of the daughter without issue before that of her father said stock should revert to him and become his property, can not become effective until the death of said daughters, its testamentary character and lack of consideration will not be considered at this time.</p>

<p>BOND ISSUES UNDER THE LONGWORTH ACT.</p> <p>Municipal Corporations — Limitations_ on the Power to Issue Bonds— Method of Ascertaining Whether the Limitation Has Been Reached —•Sections 3940, 3941 and 3945.</p> <p>Municipal bonds authorized by a vote of the electorate are not included and are not to be considered in ascertaining whether the limitations of one and four per cent, on the power of the municipality to issue bonds have been reached within the current fiscal year.</p>

<p>ENGINEER KILLED IN A COLLISION.</p> <p>Wrongful Death of a Locomotive Engineer — Fellow-Servant Doctrine Eliminated — N egligence — Railways.</p> <p>In an action for the wrongful death of a locomotive engineer, it will be presumed, in the absence of evidence to the contrary, that two trains were given the same track and came into collision, in obedience to orders to the switch tender from someone superior in authority to the engineer, and the question whether the engineer and switch tender were fellow-servants becomes immaterial.</p>

<p>PROCEDURE IN AN ACTION TO CONTEST A WILL.</p> <p>Wills — Proper Time for Disposing of Question as to Capacity of the Plaintiff to Maintain Action — Section 12082.</p> <p>Where the question is raised, in an action to contest a will, as to the right of the plaintiff to maintain the action, it is the duty of the court to determine this question before proceeding to submit to the jury the issue as to the validity of the will.</p>

<p>BAKERIES LOCATED IN CELLARS.</p> <p>Construction of the Statute Relating to BaTceries Located in Basements or Cellars — Habeas Corpus Not the Remedy for One Arrested Thereunder — Section 1012 P. & A. Onno. Q-. C.</p> <p>1. There should be read into the present statute relating to bakeries the exception of the original statute as to bakeries then located in basements and cellars.</p> <p>2. Inasmuch as one arrested for maintaining a bakery in a basement or cellar has, under this construction of the statute, a complete defense, habeas corpus will not lie to secure his release.</p>

<p>EFFECT OF DENIAL FOR WANT OF KNOWLEDGE.</p> <p>Evidence — As to Acceptance of Option for Cancellation of Lease — Pleading — Averment of Filing of a Certificate of Partnership — Denial for Want of Knowledge.</p> <p>A denial in the answer of the defendant “for want of knowledge” is insufficient, where referring to a public record, to put the plaintiff upon his proof.</p>

<p>INJURY TO OPERATOR OF EMERY WHEEL.</p> <p>Assumed Risk — Employer Relieved from Liability for Alleged Negligence — Resulting in Injury to ■Employe at Work at am Emery Wheel — Section 6%45,</p> <p>An emery wheel is a “simple tool” within the meaning of Section 6245, and where the evidence discloses that the injured plaintiff had worked at an emery wheel for more than thirty years and at the particular wheel by which he was injured for two years, a motion lies to direct a verdict for the defendant.</p>

<p>INCOMPETENT EVIDENCE AT A CRIMINAL TRIAL.</p> <p>Criminal Law — Admission of Guilt to Magistrate Conducting Preliminary Examination Competent at Subsequent Trial — Evidence as to ' Letter Written by the Defendant.</p> <p>1. The testimony of the magistrate, before whom the accused was brought for his preliminary examination, that he privately admitted his guilt, is competent evidence at his subsequent trial before the common pleas.</p> <p>2. A letter written by the accused to the prosecuting witness is not competent evidence against him, but where he failed to take the stand and deny its authenticity and his guilt was established beyond a doubt by competent testimony and his own admission, the judgment finding him guilty will not be reversed.</p>

<p>FORM OF VERDICT IN REPLEVIN.</p> <p>Replevin — Failure to Assess Value of Property Taken — Renders Verdict Irregular, When — Section 12059.</p> <p>A verdict wbicb. does not assess the value of the property replevined, in an action in which a redelivery bond has been given, does not conform with the statutory provisions with reference to the redelivery bond, and the entering of judgment on suca a verdict constitutes reversible error.</p>

<p>LIABILITY FOR SICK BENEFITS.</p> <p>Insurance — Offer to Pay Only a Part of © Claim Amounts to a Rejection of the Whole Claim — Construction of 'Provision as to Total Disability Under a Policy Providing for Sick Benefits.</p> <p>1. Acceptance of proof of disability on tbe part of a policy bolder and treatment of such proof as final, with an offer to pay a certain amount thereon but less than tbe amount claimed, constitutes a rejection of tbe claim by tbe company, and suit instituted thereon after such rejection is not prematurely brought.</p> <p>2. In a policy providing for sick benefits, a clause reading that to constitute total disability the insured must be “strictly, necessarily and continuously within the house and there regularly and personally attended by a legally qualified physician,” does not bar recovery by an insured who, under .the advice of his physician, went out for air and to his physician’s office for treatment.</p>

<p>RENTAL FOR. GAS AND OIL LANDS.</p> <p>Gas and Oil — Construction of Provision in Lease for Payment of Rental ' in Event of Failure to Sinlc Well Within Prescribed Time.</p> <p>A provision in a lease offgas and oil lands, that the lease shall become void in the event of failure to sink a well within a prescribed time, unless a stipulated rental is paid “annually thereafter until said first well is completed,” does not constitute a contract on the part of the lessee to pay the rental, but is a mere option to extend the lease by payment of cash rental if he so desires, and an action for recovery of rentals under such a lease will not lie.</p>

<p>INVALID PROCEEDINGS FOR ISSUE OF SCHOOL BONDS.</p> <p>Schools — Written Notice of Special Meeting — Necessary to Render Action Valid — Section 4751.</p> <p>Proceedings of a school board providing for an issue of bonds are invalid, where the action pertaining thereto was taken at a special meeting from which one member was absent, and no written notice of the meeting had been served on each member of the board either personally or at his residence or usual place of business.</p>

<p>PROVISIONS FOR„ARTIFICIAL DRAINAGE.</p> <p>Ditches — Action to Enjoin Levy of Assessment — Against Railway Right-of-way for County Ditch— Pleading — Benefits.</p> <p>Allegations by a railway company that its right-of-way has ample and sufficient drainage and the construction of a county ditch would be of no benefit to the company are good against demurrer in an action to enjoin the levying of an assessment against the company’s right-of-way for the construction of such a ditch.</p>

<p>ACTION FOR. RECOVERY ON ACCOUNT OF DEFECTIVE TITLE.</p> <p>Breach of Covenant — Warranty of Title Not Brolcen in the Absence of Eviction or Assertion of Paramount Title — Holder of Defective Title Without Remedy for Breach of Warranty, When — Importance of Adherence to Rule of Stare Decisis.</p> <p>An action for breach of covenant of warranty does not lie, where the owner of the outstanding interest has never threatened the plaintiff occupant with eviction, or disturbed his possession in any way, or asserted superior title, and the occupant has in no way recognized his rights in the property.</p>

<p>LIABILITY OF ADMINISTRATOR FOR LOSS THROUGH FAILURE OF TITLE.</p> <p>Title — ■Failure of, ®s to Land of a Decedent Bold by Ser Administrator— Caveat Emptor Not Applicable and Administrator Liable.</p> <p>Where an administrator sells at judicial sale land to wbicb his intestate had no title, and the purchaser is ignorant as to the facts regarding the title, an action by the purchaser will lie against the administrator in his individual capacity for the amount paid for the land, and in such a case the administrator can not, in his individual capacity, escape liability by virtue of the doctrine o'f caveat emptor.</p>

<p>INTEREST ON PUBLIC DEPOSITS.</p> <p>Depositaries of Public Funds — Interest Recoverable on Deposits — Made . by a Municipal Treasurer — With Knowledge on the Part of the Banlc as to their Trust Character.</p> <p>1. An action brought by a municipality against a bank for recovery of interest received by said bank on funds belonging to the municipality and alleged to have been deposited without its knowledge or knowledge on the part of the bondsmen of the treasurer who made the deposit, but with knowledge on the part of the bank as to the ownership and trust character of said funds, is not open to demurrer, and an accounting of profits so received may be required of said bank.</p> <p>2. But a petition which omits, in such a case, the averment of knowledge on the part of the bank of the true ownership of the funds so deposited, is open to demurrer.</p>

<p>EXTENT OF SECOND WIFE’S RIGHT TO DOWER. IN MORTGAGED LANDS.</p> <p>Dower — Computation of, to Second Wife — In Lands Encumbered by Mortgages winch Were Overdue at the Time of Her Marriage.</p> <p>1. Where land is mortgaged hy the husband and the condition is broken before marriage and after marriage the husband dies, upon sale of the land by his administrator for payment of his debts, and the proceeds of the sale of the mortgaged land are large enough to pay the mortgage debt and leave a surplus sufficient to allow the widow dower in the entire proceeds: Held, that the widow is only dowable of the surplus proceeds after paying the mortgage debt and not out of the entire purchase money.</p> <p>2. The husband was not seized of an estate of inheritance during coverture in the land, and at the time of his death he owned hut an equity therein.</p> <p>3. The widow’s rignt to dower in the land of her deceased husband is to be measured by his interest therein, and can rise no higher.</p> <p>4. The condition in the mortgage having been broken before marriage, the legal title at that time was in the mortgagee.</p>

<p>CONSTRUCTION OF THE STATUTORY DISQUALIFICATION OF NOTARIES.</p> <p>Attachment — Validity of Affidavit — Qualification of Notarial Officer— Sections 11524 and 11532.</p> <p>An affidavit in attachment is not rendered invalid by reason of the fact that it was sworn to before a notary who was employed as a clerk in the office of the attorneys for the attaching creditor.</p>

<p>LIABILITY FOR. INJURY TO A RAILWAY EMPLOYE THROUGH NEGLIGENCE OF ANOTHER. EMPLOYE.</p> <p>Neglige,nee — Where Resulting in Injury to a Railway Employe — Application of the State and Federal Statutes for Protection of Persons Engaged in Interstate and Intrastate Commerce — Section 9017.</p> <p>1. The Act of the General Assembly of Ohio passed February 28, 1908 (99 O. L., 25), in so far as it undertakes to impose a liability on common carriers by railroad while engaged in interstate commerce is void, but in so far as it undertakes to impose the same liability on such carriers while engaged in intrastate commerce is a valid enactment.</p> <p>2. The language of the act which divides railroads into those which are in whole, and those which are in part, within the state does not distinguish between common carriers by railroad, when engaged in interstate commerce and when engaged in intrastate commerce and in that form, in the absence of federal regulation, would apply to all commerce; but there is nothing in the act to warrant the presumption that the Legislature would not have passed it were it to be superseded, as it was, by the act of Congress of April 22, 1908, in so far as it applied to interstate commerce.</p> <p>3. The act of Congress passed April 22, 1908, and said statute of Ohio, impose upon common carriers by railroad a liability for injury to any of their employes resulting from the negligence of any other of their employes, and thus eliminate the defense founded upon the negligence of a fellow-servant. These two acts, the one applying to interstate commerce and the other to intrastate commerce, furnish an universal rule applying to all actions, for personal injuries, to an employe of common carriers by railroad, caused by the negligence of any other employe.</p> <p>4. Hence, in an action for personal injuries brought by a locomotive engineer, when injured in the discharge of his duties on one train, in a collision caused by the negligence of the conductor of another train, an instruction given to the jury, substantially in the language of the second paragraph of Section 1 of the act of February 28, 1908, there being no averment in the pleadings nor evidence in the case as to whether, at the time he was injured, he was engaged, in interstate or intrastate commerce, is a proper instruction.</p>

<p>AS TO PARTITION WHERE THERE IS A CONTROVERSY OVER. THE TITLE.</p> <p>Partition — Title of One Claiming Tenancy in Common Disputed — Controversy Over Title Must Be Settled Before Partition Can Proceed —Appeal—Section 5226, R. S.</p> <p>Where the ownership of one of the aliquot parts of land held in severalty is in dispute, an action in partition can not he maintained by the party claiming said interest until his title thereto has been determined.</p>

<p>DUTY OF ONE RIDING IN A VEHICLE DRIVEN BY ANOTHER. OVER A RAILWAY CROSSING.</p> <p>Negligence — At a Railway Grossing — Girl Riding with Her Parents Injured Toy a Train — Degree of Care Required hy Others Than the Driver — Failure to Loolc and Listen Defeats Recovery.</p> <p>1. The occupant of a buggy which another is driving m-ust use ordinary care for his own safety when crossing a railroad track on a public highway, and if he fails in this, and is thereby injured, he can not recover although the railroad company may have been guilty of negligence.</p> <p>2. Ordinary care requires that the occupant of a buggy, which another is driving, when about to cross the tracks of a railroad, should look and listen to discover if a train is in close proximity and avoid injury; and if when in full possession of his faculties he fails to do so, and is injured thereby, it is such negligence as will defeat a recovery, unless some further fact appears which excuses the occupant from this duty.</p>

<p>ENFORCEMENT OF DOWER RIGHT BY DIVORCED WIFE.</p> <p>Dower — Divorced Wife Not Divested, of Her Bight of, When — May Assert Her Bight in an Action for Partition — Section 11991.</p> <p>A wife who procures a decree of divorce from her husband because of his aggression retains her right of dower in any real estate which he may own not granted to her as alimony; and where an action is brought for the partition of property in which he holds an undivided interest, his former wife may ask by answer and cross-petition for an assignment to her of her inchoate contingent right of dower in her said former husband’s share of said property.</p>

<p>ERROR. IN REFUSING TO HEAR MOTION FOR A NEW TRIAL.</p> <p>Criminal haw — Motion for a New Trial Can Not be Ignored by Trial judge — Accused Can Not Demand that lie be Present at the Hearing as a Constitutional Right.</p> <p>The hearing of a motion for a new trial is not a part of the trial. The presence at the hearing of such motion of one convicted of a crime is not necessary and it is error for the trial judge to refuse to hear and determine same on account of the convict’s absence.</p>

<p>ALLEGED FRAUD IN THE PURCHASE OF RELEASES UNDER. A WILL.</p> <p>Pleading — Fraud Charged in Obtaining Releases from, Legatees — Copy of the Will Made a Part of the Petition — Answer in the Form, of a General Denial Not Insufficient — Failure to Sustain Burden of Proof.</p> <p>1. Where, in an action to set aside releases obtained by a life tenant from legatees under the will, on the ground that the said releases were obtained by fraud, the mistake is made of incorporating the will in the petition, objection can not be made to an answer in the form of a general denial, notwithstanding it involves a denial of allegations shown to be true by the will itself.</p> <p>2. The testimony having disclosed that the legatees were not under duress, but treated with the life tenant at arm’s length, and remarked that they understood their rights, and that they preferred “a bird in hand” to the contingencies in which their legacies were involved, it can not be said that they sustained the burden of proof devolving upon them, and judgment must be given for the defendant.</p>

<p>DEFECT AS TO PARTY DEFENDANT IN REVIEWING COURT.</p> <p>Proceedings 'in Error■ — Essentially a New Action in the Court of Review — Name of- Real Defendant Omitted — -Court Without Jurisdiction to Cure the Defect.</p> <p>Failure to name as the defendant in error the executor of the deceased defendant below can.not be cured by amendment of the petition in error after time has run for the beginning of proceedings in error.</p>

<p>AS TO VALIDITY OF ORDER. FOR. INSPECTION OF DOCUMENTS.</p> <p>Inspection of Books of a Corporation — Limitations on Authority of Court to Require that Permission to Inspect he Given — Where the Inspection Should he Made — Recessary Findings Upon which to Base an Order for an Inspection — Sections 11552 and 11555.</p> <p>1. It is not competent for a court in making an order for inspection of books, papers and documents, to require that they be removed for that purpose to some place other than where they are ordinarily, properly and lawfully kept, and particularly to require that such books and papers be taken to some distant point for inspection.</p> <p>2. And further, an order requiring the production of books and documents in court at the hearing, raises no presumption of compliance with the statutory requirements (though the journal entry recites that the court “was fully advised in the premises” before making the order) where there is no declaration in the motion or finding by the court that said books and documents contain evidence pertinent to the issue; and in view of the extraordinary-character of the order made in the present case, and the fact that it would probably be oppressive, it will be reversed.</p>

<p>INSTRUCTIONS TO JURY IN CASE OF INJURY TO A FOREMAN.</p> <p>Master and Servant — Foreman Injured in Appliance Erected Under His Own Direction — Negligence—Charge of Court — Application of the Equipoise Doctrine — Verdict of $8,000 Not Excessive for Injuries, When — Evidence as to Changes Made After the Accident.</p> <p>1. It is not error to permit a witness to reply to a question as to whether changes were not made after the accident in the appliances in which plaintiff.was injured, where the court expressly admonishes the jury that the answer is to be considered only for the purpose of testing the accuracy and weight of the opinion given by the witness as to the safety of these appliances.</p> <p>2. Where the plaintiff had been delegated by his superior to act as foreman in setting up the appliance with which he was working when injured, it follows that he was himself at fault if it was set up in an improper or unsafe manner, and it would be error to charge the jury that the plaintiff was a fellow-servant with his co-laborers on said work.</p> <p>3. An employer is not bound to provide the most approved appliances ' and materials for the use of his workmen, but is only bound to exercise reasonable and ordinary care as to the safety of the place in which the work is performed and the character of the appliances and materials used in the work, having due regard for the hazards of the service.</p> <p>4. A verdict of $8,000 in favor of a molder by trade, who is crippled for life and suffers and must continue to suffer pain, and who was receiving $3.10 a day at the time of the accident and could earn only $1.10 at the time of the trial, is not so excessive as to appear to have been given under the influence of passion or prejudice.</p>

<p>INSUFFICIENCIES UNDER A POLICY OF FIRE INSURANCE.</p> <p>Fire Insurance — Proofs of Loss May he Made Out hy Attorney for a Non-Resident Policy Holder — Failure to Operate Factory at Some Time Other than lohen Fire Occurred Does Not Void the Policy on the Ground the Property Was Vacant — Nor is Policy Voided hy Keeping Gasoline in a Pint Bottle Near Gasoline Engine.</p> <p>1. Proof of loss by fire may be made out and verified by an attorney for a non-resident client for whom he had negotiated the policy in question.</p> <p>2. Where the condition of manufacturing property as to occupation and operation was the same at the time of loss by fire as when the policy was written and delivered, recovery thereon can not be defeated by a showing that during the intervening period there had been times when the property was not operated at certain periods of the day or night.</p> <p>3. The keeping of gasoline in a pint bottle on a shelf near a gasoline engine to be used in starting the engine, the bottle being filled when necessary from a gallon can kept in a separate building, is a keeping of a small quantity for incidental use and not in violation of a policy inhibition against keeping gasoline on the premises, and in view of the fact that it was fully understood when the policy was written that it was used for manufacturing purposes and operated by a gasoline engine the keeping of gasoline in such quantity in the engine room must have been in contemplation.</p>

<p>CONFLICTING ELECTIONS BY TENANTS IN COMMON.</p> <p>Partition — Proper Procedure Where Inconsistent and Conflicting Elections Are Made — Good Eaith of One Without Means for Carrying Out an Election.</p> <p>1. It is not error in an action for partition for the court to refuse to accept inconsistent and conflicting elections by parties in interest, and in lieu thereof adopt the procedure of ordering a sale.</p> <p>2. Bad faith can not be assumed upon an election to take by a party in interest who is without means of his own with which to make good the obligations assumed under an election to take, where it appears that he is able to make arrangements for meeting the obligations ■ through the aid of others.</p>

<p>LIABILITY OF DRUG STORE FOR. DOW LAW TAX.</p> <p>Taxation — Intoxicating Liquor Sold from Drug Store on Physician’s Prescriptions, Held to be Fraudulent — Seizure of the Store on Claim for Dow Tax — Petition for Injunction Against Sale of the Property Dismissed — Extent to which a Drug Store Might be Subjected to Payment of Dow Tax.</p> <p>Prescriptions calling for beer or other intoxicating liquor can not be accepted as issued in good faith, notwithstanding the good repute of the physician issuing them has not been called in question, where the writings themselves are not produced, and the testimony regarding them is that the so-called patients went to the physician and specified what they wanted, sometimes specifying the number of bottles wanted, whereupon the physician would write a prescription calling for a certain amount of beer or other liquor and in some cases would add the word “refill,” but gave no direction as to how the liquor was to be taken; and sales of beer or other intoxicants upon such prescriptions are unlawful, and subject the owner of the store as well as the owner of the real estate to liability for the Dow tax, and injunction will not lie to prevent collection of the tax by distraint.</p>

<p>ASSESSMENTS FOR. IMPROVEMENT OF PUBLIC HIGHWAYS.</p> <p>Roads — Construction of Provision for Assessing Lands Lying Within One Mile of the Improvement — Injunction Against Collection of Assessment for Lands Lying Beyond Terminus — Taxing Districts— Equitable Distribution of Burden — Sections 6928, 7254 and 7332.</p> <p>Under the one mile road assessment act the taxing district is confined to one mile of the improvement Avithin a line drawn at right angles with the termini thereof.</p>

<p>APPORTIONMENT OF STOCK DIVIDENDS BETWEEN LIFE TENANTS AND REMAINDERMEN.</p> <p>Wills — Parties Financially Interested, in Construction of a Will Are Incompetent as Witnesses — "Lawful Heirs" Determined as of the Time of the Testator’s Death, Not at Time of Happening of a Contingency — Testator’s Domicile — Stock Dividends Treated as Capital and Distributed to Remaindermen Rather than to Life Tenant — Corporations — Trusts—Distribution.</p> <p>1. Parties who are financially interested in the construction of a will, and whose rights will be affected by the decision of the court, are not competent to appear as witnesses.</p> <p>2. In the will under consideration the term "lawful heirs” refers to those who answered that discription at the time of the testator’s death, rather than those falling within that class at the time of the contingency provided for in the will, and the distribution should be made per stirpes, representatives taking the share which would have gone to the ancestor if living, except where the will provides otherwise.</p> <p>3. A declaration by a testator in his will as to his domicile establishes that fact unless overcome by positive proof to the contrary, and his place of residence is declared by the testator to be Ohio, distribution will be made in accordance with the laws of this state, notwithstanding he may have lived for a time in another state and owned and accumulated property there.</p> <p>4. Stock dividends declared by a corporation out of earnings retained by the corporation and treated as a part of its capital go to remaindermen rather than to life tenants, and this is true of earnings carried as cash or invested in securities capable of ready conversion into cash, where such funds were devoted to the extension and promotion of the company’s business.</p>

<p>PRIVATE TELEPHONE LINES NOT PUBLIC UTILITIES.</p> <p>Telephones — Private Lines Not Public Utilities — Persons May Associate for the Construction and Use of Private Lines — Public Utilities Act Not Applicable to Companies Already Chartered — Section 614-52.</p> <p>1. 'A telephone company, upon which both primary and secondary franchises had been conferred prior to the enactment of the state public utilities law, is not subject to the provision of the section of that law requiring that a certificate be secured from the public service commission that the exercise of the franchise or permit granted to it is proper and necessary to the public convenience.</p> <p>2. The construction of a private telephone line and station for the use of a number of persons associated together for that purpose does not constitute a public utility, nor are persons so using such a line subject to control by the public service commission.</p>

<p>MEASUREMENT OF DISTANCE PUPILS MUST TRAVEL TO SCHOOL.</p> <p>In assigning pupils 'to the public school nearest to their residence, the distance should be measured by the most direct path from the school house door to the middle of the highway and thence to the said residence.</p>

<p>INTERFERENCE OF TELEPHONE WIRES WITH THE MOVING OF A BUILDING.</p> <p>Bights in the Street — As Between a Telephone Company and the Mover of a Building — By Whom the Expense of Baising the Wires Should he Borne — Franchise Bights — Trespass—Injunction.</p> <p>A telephone company may be required to raise its cables and wires, to such a height as to permit the moving of a building thereunder, but the company may insist on doing the work itself and charge the expense of so doing to the mover of the building.</p>

<p>BELATED PROCEEDINGS IN ERROR..</p> <p>Error Proceedings — What Constitutes Commencement of — Failure to Issue Summons Through Negligence of Clerk of Court — Application of Section 4988.</p> <p>Where a summons in error is not issued within the four months statutory limit, the proceeding is not saved by the provision of Section 4988 as-to the commencement of actions, and jurisdiction thereof is not acquired by the reviewing court.</p>

<p>AS TO THE REVIEW OF A JUDGMENT GRANTED BY DEFAULT.</p> <p>Discretion in Granting a Judgment by Default — Action of a Court in so Doing Will Not be Reviewed, When.</p> <p>The action of a trial judge in overruling a motion to set aside a judgment granted by default will not be reviewed, where the bill of exceptions discloses no reason for the failure of the defendant to file an answer or demurrer.</p>

<p>INJURY FROM PREMATURE STARTING OF CAR..</p> <p>Negligence — Pleading—Railways—Infants—Responsibility for Negligence Dependent Upon the Pacts — Employe Ordered Off Oar and Train Started Before He Had Alighted.</p> <p>1. An infant, over fourteen years of age, is presumed to he sui j.uris in the sense that he is chargeable with negligence, but the measure of his responsibility in that regard is a question for the jury.</p> <p>2. A petition is sufficient which alleges that the defendant negligently started a car while the plaintiff was in the act of leaving it upon the order of the defendant’s conductor, although it fails to allege speciffically that the car was started with the knowledge of any of the train crew that the plaintiff was in a place of danger, if the situation of the plaintiff on the car and his surroundings at the time it was started are stated, and from such statement it is apparent that the defendant either knew or ought to have known that the plaintiff was in a place of danger at the time the car was started.</p>

<p>TITLE UNDER. A DEVISE TO DEVISEE AND HEIRS.</p> <p>Specific Performance — Action to Enforce — Lack of Title Set up as a Defense — Construction of Clause in Will Devising the Land in Question — Evidence—Words and Phrases.</p> <p>1. In construing a clause in a will testimony by the scrivener as to instructions given him by the testator at the time the will was written, or as to what the testator said at that time regarding his intention in the disposition of his property, is wholly incompetent.</p> <p>2. Where an absolute estate in land has been conveyed to Z and her “heirs,” it can not be reduced to a life estate by a construction of a subsequent clause which would make the word “heirs” read “children,” unless the clause placing a limitation on the estate is as clear and unequivocal as the clause making the grant of a fee simple title.</p>