Volume 15 — Ohio Circuit Court Decisions

<p>APPEAL — JUSTICE OF THE PEACE.</p> <p>Caldwell, Marvin and Hale, JJ.</p> <p>Appeal by One Party Does Not Vacate Judgment of Dismissal Against Another, When.</p> <p>Where an action before a justice of the peace is dismissed as to one of the defendants thereto and judgment had against the other, an appeal by the latter does not vacate the judgment of dismissal and bring the former defendant into the common pleas court, especially where the rights of each defendant are distinct and separate from those of the other and can be determined without his presence.</p>

<p>Eeror to the court of common pleas.</p>

<p>ASSAULT AND BATTERY — DAMAGES—PRACTICE.</p> <p>Parker,, Hull and Haynes, JJ.</p> <p>1. Failure to Incorporate Affidavits in Support of, Preludes Review of Motion for New Trial. »</p> <p>A reviewing court cannot consider the action of the trial court in overruling a motion for a new trial, where affidavits filed in support of such motion are not incorporated in a bill of exceptions as there is no certificate of the trial court that the affidavits on file contain all the evidence offered upon the motion.</p> <p>2. Competent Evidence of Self-Defense in Assault and Battery.</p> <p>Where the defense in an action for assault and battery, is self-defense, evidence of the quarrelsome character of the plaintiff and of his general reputation as a quarrelsome and dangerous man is competent where such facts were known to the defendant at the time of the assault.</p> <p>3. JUDGMENT MAY BE REVERSED FOR SMALLNESS OF VERDICT.</p> <p>Where a verdict in an action for assault and battery is so small as to be clearly contrary to the weight of the evidence as to the injury sustained, a judgment rendered thereon may be reversed.</p>

<p>CRIMINAL LAW — INDICTMENT.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>Necessary Averments to Charge Crime Under Sec. 6830 Rev. Stat.</p> <p>In an indictment under Sec. 6830 Rev. Stat., for threatening to accuse another of a crime punishable by law, an averment that defendant threatened verbally and in writing to accuse another of burning his own building with intent to defraud, is not sufficient to charge a crime under the statute, but the indictment must show that the building was insured and that the defendant threatened to charge the. owner with burning it with intent to prejudice the insurer, and without such allegation the indictment is insufficient.</p>

<p>JUSTICE OF THE PEACE.</p> <p>1. Jurisdiction of Justices of Peace in Actions Against Railway Companies.</p> <p>The jurisdiction of justices of the peace in actions against railway companies is defined and limited by Sec. 6478 Rev. Stat., which provides that such an action may be brought before a justice of the peace in the township in which the president of the company may reside or in any township into or through which the road owned or leased by such company may be located. Section 384 Rev. Stat., which provides that where a summons, issued by a justice of the peace, against a householder, or freeholder resident of the county, is accompanied with an order to attach property, the jurisdiction, of which is coextensive with the county, does not include railway companies. Hence, a justice of the peace has no jurisdiction of an action against a railway company whose road does not enter the township and whose president is not a resident therein, although the summons in the actions is accompanied by an order of attachment.</p> <p>2. Filing Motion not an Appearance.</p> <p>The filing of a motion for an interpleader after judgment does not amount to an appearance.</p>

<p>Eeroe to court of common pleas of Lucas county.</p>

<p>Error to the court of common pleas.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>1. Train Exceeding Speed Ordinance — Negligence, a Question for Jury.</p> <p>The fact that a train maintains a speed through a city higher than that allowed by the city ordinance is not proof of negligence, but may be considered by the jury on the question of negligence.</p> <p>2. Thirty Miles an Hour Negligent Speed Within City Limits.</p> <p>Although a railway company may run its trains at any spce$l it may desire in the open country, yet in a city where its trains are required to pass over street crossings, where there are no gates, and ho watchmen, and where houses and other obstructions prevent those passing along the streets from observing the approach of trains, a railway company is guilty of negligence if it maintains as high a rate of speed as thirty miles an hour.</p> <p>3. Vigilance Required at Crossing Where Watchman Maintained — When off Duty.</p> <p>A person who approaches a railway along a public and much traveled street in a city after the watchman maintained by the railway company at that point has gone off duty, and, misled by the absence of signals or warning from the watchman, whom he believes to be still stationed at the crossing, omits the exercise of extraordinary vigilance, before attempting to cross, is not for that reason guilty of negligence contributing to his injury by a train running at the rate of thirty miles an hour.</p> <p>4. Facts Not Constituting Contributory Negligence.</p> <p>A person, driving in a street after dark, who, when very close to the first of two parallel railway tracks sixty feet apart which cross the street diagonally, receives a warning from a pedestrian that a train is coming and, being in doubt upon which track the train is approaching, drives rapidly forward and stops or attempts to stop in the space between the tracks, but in the excitement due to his perilous position permits his horse to move forward and come in contact with the train which is passing upon the second track, is not guilty of contributory negligence which will prevent a recovery for the resulting injuries to his person and property.</p>

<p>STREET RAILWAYS — NEGLIGENCE.</p> <p>1. Correlative Rights of Vehicles and Street Railways in Streets.</p> <p>Persons driving vehicles in a city street have a right- to use the tracks of a street railway company laid therein as well as other parts of the street, exercising ordinary care to avoid collision with the cars of the company, and the company will be required to operate its cars at a reasonable rate of speed and under full control, so that the safety of such persons may be properly preserved.</p> <p>2. Facts Not Constituting Contributory Negligence.</p> <p>A woman driving in a crowded city street, who suddenly finds herself in a perilous position between a rapidly moving street car and other vehicles standing in the street, is not guilty of contributory negligence for the reason that, . in the _ excitement incident to her situation, she causes or permits her horse to deviate from a safe course parallel to the street car tracks, causing a collision between the car and her wagon in which she is injured.</p>

<p>BOARDS OF EQUALIZATION.</p> <p>Powers of City Boards of Equalization Repealed.</p> <p>Section 2805 Rev. Stat. was repealed by the act of May 10, 1902, 95 O. L. 481. Lienee, all the powers of city boards of equalization appointed under such section prior to May 10, 1902, were thereby repealed and their right to perform any of the duties of the office has been terminated.</p>

<p>STREETS — BRIDGES.</p> <p>Land Under City Bridge not a Street, When.</p> <p>Land under a city bridge, owned by the city, and used by it as a support for the abutments of such bridge, which the city has never invited the public to use as a highway and which, from its situation, is not adapted to that purpose, is in no sense a public street, and the city may lease it for any purpose not inconsistent with its use as a support for the bridge.</p>

<p>FIRE INSURANCE — AGENCY—ESTOPPEL—WAIVER.</p> <p>Parker, Haynes and Hull, JJ.</p> <p>1. Conflicting Testimony of Witness Should be Submitted to Jury, When.</p> <p>Where the testimony of a witness is conflicting, especially where the witness is hostile, if some part of his testimony tends to support plaintiff’s claim, it raises a question that should be submitted to a jury.</p> <p>2. Denial of Liability by Insurance Company Waiver of Written Notice.</p> <p>A denial by an insurance company of any liability upon a policy is a waiver of the requirement of written notice of and proof of loss, if made within the time when such notice and proof are required by the policy to be made.</p> <p>3. Foreign Insurance Company Estopped to Deny Agent’s Authority, When.</p> <p>Where a foreign insurance company puts in the hands of an agent policies of insurance, signed and countersigned and ready for execution and delivery except filling in the name of the party and the description of-the property, and gives no notice that there is any other agent in this country, and the loss occurs before the policy is delivered and the insured has not seen the policy and knows of no other agent, the company is estopped to deny his authority to represent it in all matters necessary to the making of a contract of insurance and pertaining to the settlement of a loss, and such local agent may waive notice and proof of loss by notice to the insured that the company denies all liability upon the policy.</p>

Liability of county commissioners in their quasi corporate capacity to individuals. Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, 110, 116. County commissioners, as a tribunal of limited jurisdiction, when acting under a special power, must act strictly on conditions under which it is given.

The question relating to the signing of the bill of exceptions by the trial judge before the fifty-two days from the overruling of the motion for a new trial had elapsed, is not a jurisdictional question. The statute of April 18, 1902, 95 O. L. 209 et seq., is not retroactive in the constitutional sense. A retroactive statute is one that disturbs and invades vested rights.

Erpor to the court of common pleas of Wood county. The furnishing of proof of loss in accordance with the terms and requirements of the policy is a condition precedent to the right to sue, whether the loss be partial or total. Home Ins. Co. v. Lindsey, 26 Ohio St. 348; Farmers’ Ins. Co. v. Frick, 29 Ohio St. 466; Moody v. Insurance Co. 62 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313]; Eureka F. & M. Ins.

The taking of the whole of the property by one' of the tenants in common is not larceny. 2 Bishop, New Cr. Law Secs. 7Q2, 793; 2 Wharton, Cr. Law Sec. 1809; Alíele v. Wright, 17 Ohio St. 238, 239; Davis v. Brown, 27 Ohio St. 326, 328. In cropping contracts, the title to the whole is in the tenant until division and delivery. Desty, Am. Cr. Law Sec. 145e; Sargent v. Courrier, 66 Ill. 245; Robinson v. Kruse, 29 Ark. 575.

<p>NEGLIGENCE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Rule of Remote Negligence Does not Extend to Concurrent Negligence. 1</p> <p>The rule of the law of negligence, that the plaintiff may recover notwithstanding he negligently exposed himself to the danger that caused his injury, if the defendant failed to use ordinary cai'e to avoid injuring him after he became aware, - or by the use of ordinary care would have become aware, of the danger threatening the plaintiff, and he was injured thereby, does not extend to a case where the negligence of the plaintiff was concurrent with that of defendant.</p> <p>2. Concurrent Negligence Precludes Recovery.</p> <p>Where, upon the facts, as a matter of law, the plaintiff has been guilty of concurrent negligence, contributing directly to the injury of which he complains, he cannot recover, and a verdict in his favor will be set aside, notwithstanding there are special findings by the jury that servants of the defendant company could have discovered the perilous position in which he had placed himself, and that he had exercised ordinary care.</p> <p>3. Facts Constituting Contributory Negligence as Matter of Law.</p> <p>An employe of a railroad company, engaged in the work of repairing its tracks in its yards, who, in the course of his employment, is directed to perform a duty, and in performing it unnecessarily walks between the rails, down one of the tracks of the defendant company about seventy-five feet, upon which and behind him he has seen, when he started, a locomotive with its rear end toward him some two or three hundred feet away, and upon which the bell is ringing, and makes no effort to ascertain whether the locomotive is approaching, and is injured thereby, is guilty of concurrent negligence, as a matter of law, which will not be excused because he relied upon and failed to receive the customary warning from his foreman; and this is true although he testified l.e thought the engine was standing still.</p>

Robbery is simply an aggravated form of larceny, that is, larceny with an added element of taking from the person by force or violence or putting in fear. 1 McClain, Cr. Law Sec. 471; 2 Bishop, Cr. Proced. Sec. 1002; Bishop, Directions & Forms Sec. 932.

Section 6134 Rev. Stat., conferring the right of action for wrongful death is a new principle unknown to the common law. Davis v. Justice, 31 Ohio St. 359,- 363; Kirchner v. Myers, 35 Ohio St. 85. • Section 6135 Rev. Stat., confers upon the personal representative a qualified power to settle, which can only be exercised by the consent of the court which appointed the personal representative, who is a merely nominal party in such proceedings.

<p>CANALS — INJUNCTION.</p> <p>Jelke and Swing, JJ.</p> <p>1. Grant of Canal Lands Subject to Paramount Use for Canal Purposes.</p> <p>The board of public works cannot abridge any of the natural, original or de- ' veloped uses of the state canals by a grant to a railroad company of a right of way across the canal property, and in case of conflicting rights, the use for canal purposes is paramount, and the railroad must yield thereto. Hence, a use, under such a grant, which is an interference with or limitation upon any of these uses of the state canals, transcends the rights of the state, and is in the nature of a trespass.</p> <p>2. Injunction Against Unconstitutional Taking of Property Denied, When.</p> <p>' Even if it is not absolutely true that there is no taking of private property within the meaning of Sec. 19, Art. 1 of the constitution, when, in the use of state canal property for a lawful canal purpose, the tracks of a railway company, which had been granted a right of way across such canal property by the board of public works, are crossed and cut, nevertheless, as equitable remedies are not matters of absolute right, an injunction to restrain such an interference, with, or taking of, private property will be refused where such taking would be the merest figment, without substance, and the damage done clearly reparable.</p>

On the second Monday in April, 1899, the defendant was the owner of $40,000 in municipal bonds, and in April, 1900, of $60,000, and in April, 1901, of $80,000 in municipal bonds.

<p>MASTER AND SERVANT — CHARGE TO JURY.</p> <p>Sibley, Cherrington and Russell, JJ., of the Fourth Circuit, sitting in place of the judges of the First Circuit.</p> <p>1. Master Liable to Servant Injured by Continuing in Dangerous Employment Under Coercion.</p> <p>Where a servant in the discharge of his duty finds himself in a perilous position in view of some defect discovered or peculiar danger suddenly apparent to him, and the master, after notice thereof given him by the servant, commands him to go on under such circumstances that the servant reasonably may and does understand that he will be discharged unless he- proceeds, the servant is under coercion, and in such case the master assumes the responsibility for the injuries resulting from a faithful discharge of the duty.</p> <p>2. Petition in Action for Injuries to Servant Resulting From Continuing in Dangerous Employment Under Master's Coercion Should Allege, What.</p> <p>A petition in an action by a servant against the master for damages resulting in the course of the employment by reason of obeying the commands of the-master to go on with the work, after notice to the latter of its apparent danger and remonstrances of the servant, which fails to allege that the servant believed from the nature of the command and the circumstances under which it was given that a refusal to go on would result in his discharge, is subject ■ to demurrer.</p> <p>3. Servant Assumes Risk of Dangerous Employment.</p> <p>Where a servant is aware of the danger of the situation, and advances with the work without a promise on the part of the master to supply what is demanded for his security, he assumes the risks of the employment, and any degree of care on his part in its performance will not excuse him.</p> <p>4; Not Negligence to Follow General Custom, When.</p> <p>It is not negligence for a master to command the servant to go on with his duty in a manner which is the general custom in such work, and of which the servant had notice and had done in the same manner before without injury, unless a peculiar danger arises which is communicated by-the servant to the master and a demand made for the proper precautions to be made for safety.</p> <p>5. Master not Liable for Errors of Judgment, When.</p> <p>Where the master has furnished a competent foreman, who is conducting thé business in the fair exercise of a capable judgment, and a question arises of opinion merely, the master is not responsible for a simple error of judgment.</p> <p>6. Proceeding in Unusual Manner, Question of Negligence for Jury.</p> <p>Where a servant, in the performance of his duty, proceeds in a manner and with instruments which are known to him to be unusual in such cases, it is a question for the jury to determine whether the manner of doing the work and using the instruments was the cause of the injury.</p> <p>7. Custom not Conclusive When Question of Negligence Arises, but May be Considered.</p> <p>That the master followed the usual and ordinary practice of others engaged in the same work, in the performance of which a servant is injured, is not conclusive that it was the proper way to do it, but such custom or practice is proper to be considered by the jury.</p> <p>8. Charge of Court Should be With Reference to Testimony.</p> <p>Where the vital parts of a case are not merely in what is put in issue by the record, but on questions that arise upon the testimony in connection with the law which applies, it is with reference to the latter that the court should instruct the jury.</p> <p>9. Special Instructions Covered in General Charge May be Refused.</p> <p>Where the jury has been instructed in a pertinent and adequate form on the law applicable to the case special instructions which have substantially been covered by the general charge, or which are irrelevant, may be refused.</p>

<p>CONTRACTS.</p> <p>Jelke and Swing, JJ.</p> <p>1. Inadequacy of Consideration of Contract Considered in Action at Law.</p> <p>The consideration is one of the essential elements of a contract upon which the minds of the parties must meet, and while the question of its adequacy will not he entered into at law, yet its inadequacy is a fact or .circumstance which a court may consider in determining whether the thing claimed to be the consideration was the consideration in contemplation of the parties and by their mutual intent, or is only a mere incident to the contract.</p> <p>2. Promise as a Consideration, Must be Mutual.</p> <p>A promise is a good consideration for a promise only where there is a perfect mutuality of engagements so that each party may enforce the contract against the other; hence, an agreement by one to furnish castings and an agreement to take them by another, without stipulating the amount, is not binding for want of mutuality.</p> <p>3. Construction of Renewal Clause in Contracts Determined From Contract.</p> <p>Where a contract contains a clause for renewal from year to year, and before •the end of the first year one of the parties expressly claims the right to renew, and the other explicitly repudiates such right, the rights of the parties must be determined by the court from the subsisting contract, if any, between them.</p> <p>4.. Court Cannot Adopt Arbitrary Construction of Contract.</p> <p>Although it is the duty of the court to make every effort to sustain rather than to defeat contracts, yet where a contract is indefinite ahd uncertain as to the length of its duration, it is beyond the power of the court to adopt such a construction as would arbitrarily fix a time limit, and which could not have reasonably existed in the minds of the parties.</p>

<p>PARTIES — RESCISSION—CONVERSION.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Right to Rescind Contract Survives to Personal Representative.</p> <p>Upon a contract for the sale of growing timber, a right of action for damages by reason of fraud, or for rescission, being a personal right which the grantor may waive and elect to insist upon the performance of the contract, survives to his personal representative, and not to his devisees. Hence, where it is alleged that a devisor, through fraud, was induced to contract, at a grossly inadequate price, for the sale of growing timber upon land devised, a part only of which had been removed from the land, his devisees,_ upon tendering back the purchase money, will not be entitled to a rescission of the contract. In such a case there was no contractual relation, and, therefore, there can be no contractual obligation, between the purchaser of the timber and the devisees.</p> <p>2. Realty, Converted into Personalty, Goes to Personal Estate upon Rescission.</p> <p>Where recission is sought of a contract for the sale of growing timber, upon the ground of fraud, the timber being considered as already converted into personal property under the doctrine of equitable conversion, the right to the timber, upon rescission, devolves upon the personal representative for the benefit of the personal estate, and devisees cannot maintain such an action thereon.</p>

<p>STREETS — MUNICIPAL CORPORATIONS.</p> <p>Sibley, Russell and Cherrington, JJ.</p> <p>1. Streets and Their Uses Defined.</p> <p>A street, in contemplation of law, does not consist simply of that part of the surface used for travel, but includes as much of the space above and that which underlies as is requisite and necessary for all proper street and municipal uses that are known to the period in which the street is occupied and used, within whatever height or depth that is necessary for the purposes of proper construction.</p> <p>2. General Power of Municipality to Regulate Streets.</p> <p>It is within the power of a municipal corporation to regulate the use of its streets and prescribe the mode and manner of such use, with a view to such regulations as are necessary for the safety and proper consideration of the general interests and rights that belong to citizenship in a community.</p> <p>3. Abutting Owner’s Right to use Space Above and Below Surface of Streets.</p> <p>An abutting owner may use the street and the space above and below the surface in any manner permissible by the city ordinances, so far as the mode of use is concerned, where such use contravenes no right of the city to its actual occupation and use for street and municipal purposes.</p> <p>i. Section 3471a Rev. Stat., Regulating Electric Wires in Streets, Prospective.</p> <p>Sec. 3471a Rev. Stat., prohibiting the placing, constructing and maintaining of wires through a street for conducting electricity for lighting purposes, without the consent of the municipality, has a prospective operation on acts accomplished before its passage.</p> <p>5. Section 3471a Rev. Stat. Prohibits Stringing of Electric Wires Through Street, but not “Across” Street.</p> <p>The stringing of electric wires - “across” a street at the height of eighty feet above the surface, is not a violation of Sec. 3471a Rev. Stat., prohibiting the placing and constructing of such wires “through” a street without the consent .of the city.</p> <p>6. Municipality Enjoined from Removing Electric Wires Above Streej Surface, .When.</p> <p>A municipal corporation has no authority, by virtue of its general control ovi r streets, to remove wires stretched across a street, at a height of eighty feet above the surface, from a private electric plant on abutting property to the property of another abutting owner, for the purpose of conveying electricity for lighting purposes, such wires not interfering with any street or municipal purpose, where the arrangement for the use of the electricity and its conveyance for the use of others áre in conformity with the requirements of the city ordinance, although the consent of the city has not been granted; and their removal by the city will be enjoined.</p>

<p>ERROR — JUSTICE OF THE PEACE.</p> <p>Swing and Jelke, JJ.</p> <p>Failure of Common Pleas to Comply With Sec. 6733 Rev. Stat. Error.</p> <p>Under the provisions of Sec. 6733 Rev. Stat. a judgment of the common pleas court reversing a judgment of a justice of the peace on error which does not retain the case for trial is erroneous, and the circuit court will reverse the judgment to that extent and remand the case for trial and final judgment.</p>

The judgment, or decree, from which an appeal may be taken, is that which finally determines the rights of the parties. It has not been the policy of this state to allow appeals from orders of the court of common pleas in proceedings, after judgment, such as confirmations of, or setting aside sales of real estate and the like. Thé action of the court of common pleas in such cases, is reviewable only by proceedings in error.

<p>Appeal from common pleas.</p>

<p>PAYMENTS — CRIMINAL LAW.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>1. Money Deposited in Lieu of Bail in Unlawful Arrest, not a Voluntary . Payment.</p> <p>Money, voluntarily deposited by a person lawfully arrested, in lieu of bail for appearance and forfeited for nonappearance, cannot, be recovered, but this rule does not apply when the arrest is unlawful. Hence, where persons are arrested for the violation of a city ordinance without a warrant, and it does not appear that they were discovered by the officer in the commission of the crime charged or that the circumstances were such as to authorize an arrest without a warrant, a deposit of money by such persons in lieu of bail is not a voluntary payment of money and may be recovered from the city, or a charitable institution to which it ijas been paid by the. city.</p> <p>2. Forfeited Moneys Paid by City to Charitable Association Held in Trust.</p> <p>A charitable association to which all fines and forfeitures arising from certain offenses are paid over by a city’s courts under a statute, as for instance Sec. 781-30 Rev. Stat., receives such moneys as gratuities and acquires no better title thereto than the city which holds the funds in trust for the parties paying in the money, and is bound upon demand of the person entitled thereto to deliver them up.</p>

’EreoRTo the court of common pleas of Summit county. It is well settled in this state that a contract of insurance must be liberally construed in favor of the 'insured. The contract should receive a reasonable construction so as not to defeat the intention of the parties; an exception in a policy should be strictly construed, and where there are two - constructions equally fair, that which, gives the greater indemnity should prevail.

<p>CONTRACTS — EQUITY.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>1. Contracts in Restraint of Trade — When Injunction will be Granted.</p> <p>Where one partner in the jewelry, optician and watchmaking business sells to his copartner his interest in the partnership business, and in the contract of sale covenants that he will not engage in the same business in the same county, and the contract sets forth that, for a violation of such covenant the covenantor will pay the covenantee the sum of $500 as liquidated damages: Held, that a court of equity has jurisdiction to enforce the covenant by injunction, notwithstanding the stipulation-as to liquidated damages.</p> <p>2. Same — When Covenant not to Engage in Business Will be Enforced.</p> <p>In such case when the parties are engaged in business in a village, and it is shown that the partner who sold his interest had been engaged in such business for a number of years and had a reputation throughout the county as an expert jeweler, optician and watchmaker: Held, that a covenant to not again engage in such business in the county so long as the purchaser remains in business in the village where the partnership was located, is not invalid and will be enforced in a court of equity.</p>

<p>PARTITION — WILLS—MORTGAGES.</p> <p>1. Provision in Will Forbidding Sale of Real Estate Does not Preclude Widow From Mortgaging Life Estate.</p> <p>Where a will gives a life estate in certain real property to testator’s widow with remainder to his children and provides that the property shall not be sold during the life of the widow, such proviso does not affect the right of the widow to dispose of her life estate or to release a part of it by joining in a mortgage with one of the children.</p> <p>2. Provision Against Sale Repugnant to Devise of Remainder.</p> <p>A clause in a will providing that property devised to testator’s widow for life with remainder to his heirs shall not be sold during the life of the widow is repugnant to the devise made to the heirs and is void.</p> <p>3. Mortgagee May Maintain Partition Against Life Tenant and Remainder-man.</p> <p>Where property devised by a testator to his widow for life with remainder to his children is mortgaged by one of the remaindermen, the widow joining in the mortgage, the mortgagee, after foreclosure and decree for the sale of the mortgagor’s interest therein, has a title in fee as to such interest, with the right of immediate possession and may maintain an action for partition to have that portion set off to him.</p> <p>4. Life Tenant Estopped to Deny Right of Mortgagee of Remainderman to Fee of Mortgaged Property.</p> <p>Where a life tenant joins with a remainderman in a mortgage of the latter’s undivided interest in the property therein and, upon foreclosure of such mortgage, is made a party but fails to appear he is estopped, in a subsequent action for partition by the mortgagee, to deny the title of such mortgagee to the fee of the property covered by the mortgage.</p>

<p>BANKRUPTCY.'</p> <p>Hale, Marvin and Winch, JJ.</p> <p>Section 17 of the Bankruptcy Act of 1898 Does not Require Actual Service of Notice of Such Proceedings.</p> <p>That clause of the bankruptcy act of 1898, Sec. 17, which provides, that a discharge will not release a bankrupt from debts which “have not been duly scheduled in time for proof and allowance with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy,” does not require the service upon the creditor of the written notice provided by another section of the act, but actual notice is sufficient, and facts occurring before or after the commencement of the proceedings are competent to establish such notice.</p>

<p>EMINENT DOMAIN — ERROR-BONDS.</p> <p>Haynes, Parker' and Hull, JJ.</p> <p>1. Order of Probate Court Confirming Verdict in Appropriation Proceeding, a Final 'Order Review able on Error.</p> <p>An order of'the probate court confirming the verdict of a jury in*an appropriation proceeding commenced by a railroad company under Sec. 6414 Rev. Stat. et seq. (notwithstanding the company is not required by such order to absolutely 'pay the mon.ey into court as prescribed by Sec. 6434 Rev. Stat., but has the option to pay or abandon the proceeding), is a final order under Sec. 6708 Rev. Stat., which may be reviewed on error.</p> <p>2. Amount of Verdict Need not be Paid or Deposited During Pendency of Error Proceeding.</p> <p>Where a railroad company has duly filed a petition in error to review an order of the probate court confirming the verdict of a jury in an appropriation proceeding under Sec. 6414 Rev. Stat. et seq., and has given an undertaking under Sec. 6718 and Sec. 6725 Rev. Stat., but has not taken possession of the property appropriated, mandamus will not lie to compel the probate court during the , pendency of the error proceeding, on motion of defendant made at the proper time under Sec. 6434 Rev. Stat., to order the company to pay the amount of the verdict into court.</p> <p>3. No Abandonment Under Sec. 6434 Rev. Stat. During Pendency of Proceedings in Error.</p> <p>Section 6,434 Rev. Stat., which provides that upon failure of a corporation in an . appropriation proceeding to make payment to or deposit with the probate court the amount of the verdict within thirty days after its confirmation, the court, on motion of the party entitled thereto made within ten days thereafter, may enter an order directing the payment or deposit, and a failure of the corporation to comply with such order within thirty days from its date shall be held and considered as an abandonment by it of the property, rights and interests appropriated, has no application during the pendency of a proceeding in error therein commenced by the corporation to review the verdict and order of confirmation in the probate court, since the landowner would be entitled to demand and receive the money if deposited with the court, thus compelling the railway company to take'its chances to recover back the whole or part of such deposit, if the judgment were reversed.</p> <p>4. Undertaking in Error to Include Costs and Attorney Fees — Damages From Owner's Inability to Sell, etc.</p> <p>An undertaking given by a railroad company under Sec. 6718 Rev. Stat., in a proceeding in error to review the verdict and Order of confirmation of theprobate court in an appropriation proceeding, is not sufficient to stay execution, but an undertaking must also be given under Sec. 6725 Rev. Stat. to secure the costs and the attorney fees accruing in the probate court in case of an abandonment by the company of the property appropriated, hut it need not include the damage that may result from the owner’s inability to sell or encumber the property.</p>

Section 2804 Rev. Stat., by the requirement of “notice to all persons directly interested,” constitutes “notice,” a preliminar)'- which is essential to the board’s jurisdiction, and without which the action of the board is altogether void. “The board of review can make no addition to the taxable value of real estate until the owner has been served with the copy of a notice of their intention to do so.

<p>NUISANCE — DAMAGES.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Measure of Damages for Injuries From Abatable Nuisance.</p> <p>Where a nuisance is permanent in its nature, the measure of damages for injuries to adjoining property caused thereby is the difference in value of the property before and after the acts complained of; but where the nuisance is continuing or abatable, this rule does not apply, and the rule of damages is the amount the owner of the property is injured in the use of it during the continuance of the nuisance.</p> <p>2. Nuisance Created by Livery Stable Abatable and not Permanent.</p> <p>Where a building on a lot adjoining residence property is used as a stable, from which foul smells and flies and noises from the stamping of horses emanate to the annoyance and disturbance of an adjoining resident owner, its character is that of a continuing or abatable and not a permanent nuisance.</p>

Error from court of common pleas. It is the duty of a city to exercise an active vigilance to keep the sidewalk in a reasonably safe condition, and such has been the doctrine of the numerous cases which have followed the case of Todd v.. Troy (City), 61 N. Y. 506. Where one was injured by falling on a portion of a city sidewalk made of glass and iron and worn smooth and slippery in consequence of its smoothness it was held he could maintain an action against the city.

<p>WORDS AND PHRASES — INTEREST.</p> <p>1. Levying and Collection of Taxes a "Transaction'-’ Within Meaning of Sec. 3181 Rev. Stat.</p> <p>The levying of taxes and the collection of the same by judgment is a “transaction” within the meaning of Sec. 3181 Rev. Stat., which provides for interest upon written instruments,.judgments, etc., “or other transaction.”</p> <p>2. Judgment in Action to Enforce Tax Lien on Realty Draws Interest.</p> <p>A judgment in an action brought to enforce a lien for taxes on real property, will draw interest from the time it was taken until its payment.</p>

A county road may be established by order of the county commissioners in pursuance of the statutes, by prescription', by dedication or upon the principle'of estoppel in pais. Reed v. Harlan, 2 Re. 553 (3 W. L. M. 632) ; Reed v. Northfield, 30 Mass. (13 Pick.) 94; Steadman v. Southbridge, 34 Mass. (17 Pick.) 162; Hicks v. Fish, 12 Fed.

<p>EVIDENCE — EXECUTORS AND ADMINISTRATORS.</p> <p>Swing and Jelke, JJ.</p> <p>1. Evidence Perpetuated by Administrator not Conclusive as to Distribution.</p> <p>The.evidence perpetuated by an administrator'under Sec. 6190 Rev. Stat. is not binding or conclusive as to distribution unless made according to law. Hence, the delivery of a receipt by a distributee to an administrator and by him filed with his final account in the probate court, although conclusive upon the parties in so far as the giving of the receipt is concerned, is not conclusive as to payment to such distributee.</p> <p>2. Final Account Cannot be Reopened by Probate Court to Impeach Receipt of Distributee.</p> <p>Where the final account of an administrator has been duly published and confirmed by the probate court, it cannot, after a lapse of eighteen months, reopen the account under Sec. 6190 Rev. Stat. and determine a question as to whether or not a distributee whose receipt is on file has, in fact, received her share. Such a question must be determined in an independent action.</p> <p>3. Liability of Surety Determined on Equitable Principles, When.</p> <p>Where a distributee has given her receipt to an administrator for her distributive share, which she has not actually received, and the final account has been duly confirmed and the administrator discharged, thé liability of his sureties will be determined on equitable principles in a proper action,</p>

<p>LICENSES.</p> <p>Giffen, Swing and Jelke, JJ.</p> <p>4. Ordinance Discriminating Between Dealers Unreasonable Exercise of Power.</p> <p>An ordinance of a municipal corporation requiring “transient dealers” to first obtain a license from the mayor thereof before selling or soliciting orders for goods, etc., which discriminates in favor of persons who form a purpose after coming temporarily or otherwise into the municipality and against those who come temporarily with the purpose of representing some business located elsewhere, is an unreasonable exercise of the power .granted to municipal corporations.</p> <p>2. Ordinance in Restraint of Trade Invalid.</p> <p>A municipal ordinance making it unlawful for any person while on the street • or traveling from place to place about the village, to sell or solicit orders for goods and merchandise, without first procuring a license, is an intolerable interference with and in restraint of trade, and invalid.</p>

<p>EASEMENTS — ALLEYS.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Easement by Grant to Alleyway Barred by Claimant's Act.</p> <p>When the right to use 'a strip of land of an adjoining owner as an alleyway is founded upon reservations in deeds providing for an alleyway across both properties, through which both parties trace their title, the fact that the claimant has built upon the strip so reserved through his own property is a bar to any claim to such easement by grant in 'the property of the adjoining owner.</p> <p>2. Easement by Prescription Does not Require Daily Use.</p> <p>An easement by prescription to a right of way in the lands of an adjoining owner is not defeated by the fact that the claimant’s use thereof was not daily, but only occasional, where it sufficiently appears that such use was continuous.</p>

<p>Appeal from the court of common pleas of Muskingum county.</p>

A suit in the court of insolvency was filed by the defendant in error to enjoin the collection of an assessment for a street improvement, levied under the provisions of Sec. 2264b Rev. Stat. The city demurred to the petition, and the demurrer was overruled.

Until the decision of Norwood v. Baker, 12 O. F. D. 228 [172 U. S. 269; 19 Sup. Ct. Rep. 187], front foot assessments in Ohio were uniformly held to be'constitutional.

<p>MUNICIPAL CORPORATIONS — HAMLETS—STREETS.</p> <p>Giffen and Sullivan, JJ.</p> <p>1. Hamlets Became Villages Under New Municipal Code.</p> <p>While the classification of certain villages as hamlets was abolished by the ‘ municipal code of 1902, 96 O. L. 20, the legal existence of these corporations continues undisturbed, but subject to reorganization, and it requires no act of the-corporation to effect a transfer from hamlet to village.</p> <p>2. Creation of Additional Hamlets Prohibited — Existing Ones not Destroyed.</p> <p>The repeal of Secs. 1550 and 1552 Rev. Stat. prevents the creation of additional , hamlets, but does not destroy those already in existence.</p> <p>3. Statutes Creating Hamlets not Special Legislation.</p> <p>Under the statutes in force prior to the municipal code of 1902, many municipal corporations were organized as hamlets, and as these statutes evince no • purpose of preventing others from entering that class, they are not within the constitutional inhibition against special legislation.</p> <p>4. Hamlet Trustees Have Control Over Entire Street.</p> <p>The ownership by a railway company of the land abutting on both sides of a street does not divest the trustees of a hamlet of control over the entire street.</p>

<p>Walker v. Devlin, 2 Ohio St. 593, 594; Moore v. Given, 39 Ohio St. 661: Robbins v. Clemmens, 41 Ohio St. 285; Neff v. Sullivan, 9 Re. 765 (17 Bull. 168) ; Freeman, Judgments Sec. 325; Evans v. lies, 7 Ohio St. 233, 235; Huntington v. Finch, 3 Ohio St. 445, 447; Frazier v. Williams, 24 Ohio St. 625 et seq.; Braden v. Hoffman, 46 Ohio St. 639, 642 [22 N. E. Rep. 930].</p>

<p>EASEMENTS — PLEADINGS.</p> <p>Marvin, Winch and Laubie, JJ.</p> <p>1. Individual Rights of Abutter Upon Public Grounds Barred by Laches.</p> <p>The individual rights of an abutter upon a street or public grounds in a municipal corporation, to have the same kept open and free from obstruction to his light, and ingress and egress to his property, may be barred by the lapse of time.</p> <p>2. Allegations of Petition Determine Whether Suit is Brought on Behalf of Public.</p> <p>Whether an abutter brings suit for his own benefit alone, or in behalf of the public, will be determined from the allegations of his petition.</p>

<p>ERROR to common pleas.</p>

An action was brought in the common pleas court of Hamilton county, by Neal v. Cincinnati Union Stock Yards Co. for $23,500 damages.

<p>MECHANICS’ LIENS — CONSTITUTIONAL LAW.</p> <p>Hale, Marnu and Winch, JJ.</p> <p>1. Words Insufficient to Constitute Order Create no Liability, When.</p> <p>A telegram from the head contractor to a creditor in terms as follows: “Will be home Saturday or Monday. Meantime McGregor” (the president of the . owner, a corporation) “can pay your last estimate if desired,” is not an order for the payment of money, and never having been accepted as such by the owner, no rights ill favor of the creditor arise under it.</p> <p>2. Lien of Subcontractor Under Sec. 3195 Rev. Stat. Superior to Attachment by Another Subcontractor, When.</p> <p>The lien of a subcontractor upon property of the owner, for money due him from the head contractor under 95 O. L. 211 (Sec. 3195 Rev. Stat.), which gives subcontractors a lien upon the property of the owner to the extent of any balance remaining unpaid upon his contract with the head contractor, and provides that the lien, when perfected, shall relate ,back to the- date of the furnishing of the first item of the labor, material, etc., under the contract, is superior to an attachment placed upon the property by another subcontractor after the former had entered into a contract to furnish material and commenced work under it, although the lien was not perfected until after the attachment process was served.</p> <p>3. Repeal of Sec. 3203 Rev. Stat. Does not Affect Rule' of Law Contained Therein.</p> <p>The repeal of Sec. 3203 Rev. Stat., which provided that all proceedings in attachment against the head contractor to subject his interest in the .contract should save and he subject to the claims of subcontractors, does not affect the rule laid down therein, which is the law without any statutory provision on the subject.</p> <p>4. Notice Filed by Subcontractor With 'Owner After April 18, 1903, Governed by Provisions of 95 O. L. 211.</p> <p>The cause of action of subcontractors against the owner to enforce liens for money due them from the head contractor, accrues, within the meaning of Sec. 79 Rev. Stat., when they file their notices with him as required by the mechanics’ lien law. Hence, notices filed- by subcontractors with the owner after the act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), went into effect, are governed by that act, which allows ninety days after the work is completed for the filing of such notices, and not by the former law. repealed, by said act, which required such notices to be given within sixty days.</p> <p>5. Act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), Constitutional.</p> <p>The act of April 18, 1902 (95 O. L. 211; Sec. 3195 Rev. Stat.), is constitutional, since it cures the invalidity of the unconstitutional law of April 13, 1894 (91 O. L. 135), which gave subcontractors a lien on the property of the owner irrespective of whether there was anything due from the owner to the head contractor or not, by limiting the -lien of the subcontractors on the property of the owner to the amount due from him to the head contractor.</p>

<p>CONTRACTS — EVIDENCE.</p> <p>Voorhees, McCarty and Winch, JJ.</p> <p>1. Allegations in Cross-petition as to Special Damages from Breach of Written Contract Competent, When.</p> <p>Allegations in a cross-petition in an action to recover a balance due upon a written contract for the sale of machinery, which, after setting up the failure of the -machinery to comply with the guaranties in the contract, aver that defendant was engaged in building a factory and was expending a large amount of capital in grounds, buildings and in t’lle employment of expert operators; that said machinery failed to comply with the guaranties of certain strength, size and weight required for the successful operation of such factory, which plaintiff agreed, by written contract, to supply; that plaintiff, professing to comply with its contract, delivered to defendant certain machinery, and defendant expended large sums of money in attempting to use same, and that, by reason of the foregoing, defendant could not fully operate its 'plant and lost in large part the use and services thereof to its damage * * *, amount to a claim that the guaranties expressed in the contract were made with express reference to the particular situation of the ‘parties and were such as alone made the machinery suitable for the defendant’s business, and such allegations are proper as giving an oppo'rtunity for the introduction of testimony as to special damages sustained by the defendant consequential -upon a breach of the expressed guaranties in the written contract, and not arising from a breach of any implied guaranty.</p> <p>2. Rule That Parol Evidence is Inadmissible toVary Contract Does not'Apply, When.</p> <p>The rule that parol testimony is not admissible to vary the «tennis of a written ■contract does not forbid an inquiry into the object of the parties in executing it.</p>

Appeai, from common pleas. Where maker of a note secured by a mortgage was joint owner of the property covered by the mortgage, and transferred the land to the reversioners subject to mortgage, the reversioners thereby became principal debtors, and- the maker thereby was placed in the situation of a surety, and subrogated to the rights of the mortgagee upon payment.

<p>GAS AND OIL — LEASES.</p> <p>Haynes, Hull and Mooney, JJ.</p> <p>1. Gas and Oil Lease Silent as to Teem — Rendered Certain by Subsequent Events. ¡</p> <p>Where a gas and oil lease, silent as to the length of its duration, is attacked oil the ground of uncertainty, Jf the term may be fixed or established by subsequent 'events agreed upon in the lease, it is sufficient to create the certainty that the law requires. Hence, where a lease provides, that lessee must complete a well within ninety days or thereafter pay a certain sum until completed, and if oil or gas be found the lessee shall deliver to lessor a certain royalty share of all the oil produced, or pay annual rental for each gas well while used, the lease will endure for such length of time as may be reasonably necessary to produce the oil and gas lying in and forming part of the leased premises.</p> <p>2. Assignment of Gas and Oil Lease Need not be Filed or Recorded, When— Sec. 4112a Rev. Stat.</p> <p>Where a valid gas and oil lease has been duly recorded by the original parties, an assignment thereof by the lessee to a third person, is valid between the parties thereto without filing or record under Sec. 4112a Rev. Stat.</p> <p>3. Abandonment of Gas and Oil Lease — Lessee Must Proceed With Diligence, etc.</p> <p>Where the term of an oil and gas lease is not specifically stated, and the benefit to be derived therefrom depends upon a reasonable carrying out of its terms, the lessee must proceed thereunder within a reasonable time and with proper diligence; and the removal by lessee of the drilling apparatus from the leased premises and failure to drill wells for a period of five or six years because of an apprehended loss in their operation, coupled with an expression of intention to wait until an advance in the price of oil, and the fact that other lands in the vicinity were actively worked during such period by lessee under another lease, is an unreasonable delay constituting an abandonment, and terminates the lease.</p>

<p>EXECUTORS AND ADMINISTRATORS — SETOFF.</p> <p>Vborhees, McCarty and Winch, JJ.</p> <p>(Judge Winch of the Eighth Circuit sitting in place of Judge Donahue.)</p> <p>1. Payments on Insurance Policy not Subject of Setoff, When.</p> <p>In a proceeding brought by an executor under the statute (Sec. 6100 Rev. Stat.) in the probate court to have a claim1 on a .promissory note allowed and ordered paid, payments made by an insured decedent on a policy of insurance assigned by him to the payee of the note, but which', by virtue of the statutes of descent and distribution (Sec. 4176 Rev. Stat.), inured to the benefit of the insured’s estate, cannot be set off against the note.-</p> <p>2. Claim for Payments Made on’Insurance Policy Disposed of by Will.</p> <p>A provision in a will, giving to the children of decedent’s wife all interest that he had, as distributee of her estate by virtue of Sec. 4176 Rev. Stat. in a policy of life insurance which he had assigned’ to her in her lifetime, without abatement on account of premiums paid by him thereon after her death, effectually disposes of any claim he may have had on account of such payments.</p>

<p>Error to the court of common pleas.</p>

Appeal by plaintiff. Restrictions imposed by deed upon the use of real property are personal unless imposed for the benefit of all purchasers pursuaqt to a general plan or scheme of improvement of the allotment. Dana v. Went-worth, 111 Mass. 291; Peck v. Conway, 119 Mass. 546; Shinner v. Shepard, 130 Mass. 180; Tobey v. Moore, 130 Mass. 448; 40 Mo. App. 54; DeGray v. Club House Co. 50 N. J. Eq. 329 [24 Atl. Rep. 388]; Jones, Real Property & Conveyancing Sec. 771.

<p>Error to court of common pleas of Summit county.</p>

<p>PLEADINGS — ERROR.</p> <p>Swing, Giffen and Jelke, JJ.</p> <p>Error in not Arresting Case From Jury Cured by Evidence Offered by Defendant.</p> <p>Where the petition, in an action on a promissory note, is in the usual fqrm under the code, an answer admitting the signing thereof and denying the other allegations, puts in issue the questions of delivery and the title and possession of plaintiff, and upon failure to offer the note in evidence the case should be arrested from the jury on defendant’s motion. But where, after the motion has been overruled, the defendant offers the note in evidence and the questions put in issue are covered by evidence sufficient to sustain a verdict for plaintiff, and the error in overruling the motion does not appear to be prejudicial, the judgment will be affirmed.</p>

Where a contract is made for the sale of sheep at a stipulated price to be delivered at a certain time and place, fifty dollars to be paid in hand and the residue upon the deliveiy of the property, and the vendee after paying the fifty dollars without excuse refuses further compliance with the stipulations of the contract and the vendor, not being in default previously sells the sheep to other persons, after the time fixed for their delivery, such resale does not give the…

<p>Erroe to court of common pleas.</p>

<p>Eeror to the court of common pleas.</p> <p>Impossibility of performance is good excuse for failure to perform.' 7 Am. & Eng. Enc. Law (2 ed.) 147; The Eliza, 2 Ware 318 [8 Fed. Cas. 459], See Butterfield v. Byron, 153 Mass. 517 [27 N. E. Rep. 667; 12 L. R. A. 571] ; Taylor v. Coldwell, 3 Best & Sm. 826; Lord v. Wheeler, 67 Mass. (1 Gray) 282; Gilbert & Barker Mfg. Co. v. Butler, 146 Mass. 82 [15 N. E. Rep. 76] ; Eliot Nat. Bank v. Beal, 141 Mass. 566 [6 N. E. Rep. .742] ; Parsons, Contracts (8 ed.) 672; Chitty, Contracts (11 Am. ed ) 1076; Walker v. Tucker, 70 Ill. 527; Board of Education v. Townsend, 8 Circ. Dec. 732 (15 R. 674) ; Bailey v. Brown, 6 Circ. Dec. 440 (9 R. 455); Clark v. Busse, 82 Ill. 515; Garretty v. Brazill, 34 Iowa 100; Cook v. McCabe, 53 Wis. 250 [10 N. W. Rep. 507].</p> <p>Costs of repairs made by tenant not a proper counterclaim in an action for rent, when no obligation upon landlord to repair. Section 5069 Rev. Stat.; Edgerton. v. Page, 20 N. Y. 281; Pomeroy's Code Remedies Secs. 750, 606; Gay v. Davey, 47 Ohio St. 396 [25 N. E. Rep. 425], and the recent case of Shinkle Co. v. Birney, 68 Ohio St. 328.</p>

<p>Error to the court of common pleas.</p> <p>Bill of exceptions must contain all the evidence. Wadsworth v. Cleveland Elec. Ry. Co. unreported; affirmed, Electric Ry. Co. v. Wads-worth, 66 Ohio St. 651, unreported [65 N. E. Rep. 1128]; Coil v. Willis, 18 Ohio 28, 30.</p> <p>Contributory negligence. Siek v. Street Ry. Co. 9 Circ. Dec. 51 (16 R. 393); Cleveland, P. & E. Ry. Co. v. Nixon, 12 Circ. Dec. 79 (21 R. 736); affirmed, Nixon v. Railway Co. 68 Ohio St.. 651.</p>

Surface improvements and sidewalk improvements on the same street made at different times by different ordinances and under the authority of different statutes, and not made for the mere purpose of avoiding the twenty-five per cent, statute, are different improvements. Cole v. Hunter, 5 Dec. 14-2 (5 N. P.13); State v. Fugman, 5 Dec. 530 (5 N. P. 14) ; Hunt v. Hunter, 5 Circ. Dec. 90 (11 R. 69) ; Brooks v. Norwood (Vil.), 4 Circ. Dec. 271 (12 R. 257).

Plaintiff was not a passenger. Creamer v. Street Ry. Co. 156 Mass. 320 [31 N. E. Rep. 391; 16 L. R. A. 4-90] ; Platt v. Railway Co. 2 Hun (N. Y.) 124.' Plaintiff was guilty of contributory negligence in failing to take precautions for safety before crossing track. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Cleveland, C. C. & I. Ry.

<p>NUISANCE — SEWERS—DAMAGES—EQUITY—ESTOPPEL.</p> <p>Hale, Marvin and Winch, J.J,</p> <p>1. Equity May Restrain Nuisance or Award Damages.</p> <p>In an action to restrain the commission of a nuisance and to recover damages therefor, equity has jurisdiction and 'damages may be awarded, even if the court for some reason considers that it will not grant an injunction.</p> <p>2. Action Does not Abate upon Transfer of Plaintiff's Title, When.</p> <p>Such action does not abate upon transfer after suit brought of plaintiff’s title to the property damaged by continuance of the nuisance, if plaintiff’s grantee participates in the trial and ratifies its prosecution.</p> <p>3. Knowledge of Plans and Silence Alone not Such Laches as to Estop.</p> <p>Mere knowledge that a city is constructing a system of sewers at large expense which may cast filth upon one’s land, and failure to protest, when it does not appear that the plaintiff in any way encouraged the adoption of the system, or induced the city to so direct its sewers, do not work an estoppel or constitute such laches as to bar a recovery in an action against the city for maintaining a nuisance.</p> <p>4. Public Nuisance by Plaintiff no Answer to Private Nuisance by Defendant.</p> <p>In an action against a city by the proprietor of land within it through which runs a stream, to restrain the city from polluting the stream to his special damage, it is no defense that the proprietor also pollutes the stream, contributing to a public nuisance, no special damage to the city as a lower riparian proprietor being shown.</p> <p>5. Prescription as Defense in Nuisance Case.</p> <p>Prescriptive right to flow sewage into a stream can be maintained as a defejise only for the quantity of sewage originating the right, and not for any increase ’ thereof.</p> <p>6. No Joint Liability for Several 'Nuisances, When.</p> <p>Where a city and individuals are casting filth into a stream to the damage of a lower riparian proprietor, the city can be held liable only for the quantum of pollution caused by itself, and not for that caused by individuals though they are situated within the limits of the city.</p> <p>7. Damages Computed to, in Equitable Action.</p> <p>In an equitable action to enjoin a nuisance and for damages, the damages, if allowed, should be computed to the first day of the trial term.</p>

Section 6451 Rev. Stat. imposes no penalty or burden upon one suitor or class of suitors from which others similarly situated are exempt. Mc-Gill v. State, 34 Ohio St. 228, 237; Snell v. Railway Co. 60 Ohio St. 256 [54 N. E. Rep. 270],

<p>Error to court of common pleas of Mahoning county.</p>

<p>ERROR to the court of common pleas of Lucas county.</p>

<p>NEGLIGENCE — CHARGE TO JURY.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>Charge Improper Ignoring Assumed Risk Where no Special or Peremptory Orders Given by Master.</p> <p>A charge to the jury in an action by a servant against the master to recover for damages resulting from the negligence of the latter, is improper, which permits the jury'to conclude that the servant would not be guilty of negligence by reason of obeying general orders of the master unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it, and which wholly ignores the question of assumed risk, it appearing from the evidence that plaintiff was engaged at the time in the performance of his usual and ordinary duties which he had been engaged in for several years for the master, and it also further appearing that no special or peremptory orders or instructions were given to the servant on the particular occasion. In such case, the court should define the kind of orders or instructions which would relieve the servant from the thought, care and scrutiny which he otherwise would be bound to exercise in the discharge of an ordinary duty which had in it certain elements of danger which''he assumed while so engaged.</p>

<p>MUNICIPAL CORPORATIONS — CONTRACTS.</p> <p>Jelke, Giffen and Swing, JJ.</p> <p>Contracts Between Municipal Corporations for Surplus Water not Authorized by Sec 2425 Rev. Stat.</p> <p>The provisions of the second clause o>f Sec. 2425 Rev. Stat. that, * * * “any city or village which has waterworks is hereby authorized and empowered to dispose of any surplus water for manufacturing or other purposes,” is to be understood as referring to consumption for private enterprise alone, and the phrase, “or other purpose,” as qualified by the preceding word, “manufacturing.” Moreover, as it is provided by the first clause of the section that for one municipal corporation to supply another with water there must be a contract under terms “mutually agreed upon,” and, consequently, 'mutually enforceable, and such a contract for mere surplus water not being mutually enforceable, it is not authorized by this section.</p>

That recourse can be had to the opinion of the court (in a former action) to determine whether the decision was upon the merits where the record and decree leave the matter in doubt is well settled. Campbell v. Rankin, 99 U. S. 261; Davis v.. Brown, 94 U. S. 423; Russell v, Place, 94 U. S. 606; Baker v. Cummings, 181 U. S. 117 [21 Sup. Ct. Rep. 578] ; Covington & C. Bridge v. Sargent, 27 Ohio St. 233, 237.

<p>Error to the court of common pleas.</p>

<p>SCHOOLS — INJUNCTION-MANDAMUS.</p> <p>Giffen, Swing and Jelke, JJ.</p> <p>1. No Imperative Duty on Township Board of Education to Purchase Site-Necessity may be Reconsidered.</p> <p>No imperative duty rests upon the township board of education, under the act of April 16, 1900 (94 O. L. 317; Sec. 3927-1 Rev. Stat. et seq.), to purchase a site and erect a school building until after a determination by the board of a necessity therefor, and such finding may be reconsidered by the 'board or its successor, subject only to existing contract rights.</p> <p>2. Centralization of Township Schools an Imperative Duty.</p> <p>The centralization of the township schools is a duty imperatively imposed upon the township board of education under act of April 16, 1900 (Sec. 3927-1 Rev. Stat. et seq.).</p> <p>3. Remedy for Impairment of Contracts by Change in Centralization.</p> <p>The remedy of a contractor having a valid contract with the township board of education for an impairment of his contract rights by reason of a change made in good faith in the centralization of the township schools, is an action at law.</p> <p>4. Injunction not Proper Remedy — Joint P^bdtstrtptr not Abolished by Vote for Centralization.</p> <p>Injunction is not an appropriate remedy to restrain a township hoard of education from maintaining separate schools in one joint sübdistiict, although there has been a vote in favor of centralization. Such vote does not, under Sec. 3927-1 Rev. Stat., ipso facto abolish joint subdistricts, but subdistricts only. The proper remedy, if any exists, is by mandamus to compel the board to include joint subdistricts in the centralization.</p>

<p>ERROR to common pleas court of Lucas county.</p> <p>Neff v. Horner, 63 Pa. St. 327 [3 Am. Rep. 555] ; Fulmer v. Seitz, 68 Pa. St. 237 [8 Am. Rep. 172] ; Moore v. Hinsliaw, 23 Ind. App. 267 [55 N. F. Rep. 236] ; Holmes v. Trumper, 22 Mich. 427 [7 Am. Rep. 66l] ; Sheley v. Sampson, 5 Kan. App. 465 [46 Pac. Rep. 497] ; Harsh v. Klepper, 28 Ohio St. 200 ; Thomson v. Massie, 41 Ohio St. 307, 319 ; Woodworth v. Bank, 19 Johns. 391 [10 Am. Dec. 239] ; Russell v. Failor, 1 Ohio St. 327 ; Davis v. Bauer, 41 Ohio St. 257 Chitty, Bills 84 ; Miller v. Master, 4 Term 325 ; Martendale v. Follet, 1 N. H. 95 ; Wheelock v. Freeman, 13 Pick. 165 [23 Am. Dec. 674] ; VanAuken v. Hornbeck, 14 N. J. Law (2 Green) 178 [25 Am. Dec. 509]; Martin v. Bond Hill, 4 Circ. Dec. 591 (7 R. 27l).</p> <p>Rousculp v. Railway Co. 10 Circ. Dec. 621, 624 (19R. 436); Merrick v, Boury, 4 Ohio St. 60, 61; Weller Co. v. Gordon, 24 O. C. C. 407, 414 ; Tobey v. Barber, 5 Johns. (N.Y.) 68 ; Clark v. Young, 5 U. S. (l Cranch) 181 [2 b. Ed. 74]; Henderson-Achert Litho. Co. v. Belford, 10 Dec. 640 (8N.P. 640); Sutliffv. Atwood, 15 0hioSt. 186;'22 Am.&Eng. Enc. Law (2 ed.) 553, 555 ; Peterv. Beverly, 35 U. S. (10 Pet.) 532 [9 L- Ed. 522]; Tompkins v. Tompkins, 158 N. Y. 679 [52 N. E. Rep. 1126] ; Phoenix Ins. Co. v. Allen, 11 Mich. 501 [83 Am. Dec. 756] ; 4 Am. &Eng. Enc. Law (2 ed.) 287 ; Johnston Harvester Co. v. McLean, 57 Wis. 258 [15 N.W. Rep. 177; 46 Am. Rep. 39]; 9Neb., 4 [lN.W. Rep. 980,981; 31 Am. Rep. 394]; Wiison v. Hayes, 40 Minn. 531 [4L- R. A. 196,198 ; 42 N.W. Rep. 467; 12 Am. St. Rep.754]; Winters v. Mowrer, lRa. Super. Ct. Rep. 47 ; Ottov. Halff, 89 Tex. 384, 392 [34S. W. Rep. 910] ; 6 Wait, Act. & Def. 485 ; Story, Prom. Notes (7 ed.) 131 ; Maxwell, Code Plead. 118, n. 2 ; 5 Lawson, Rights & Rem. 4109, n. 6 ; 2. Am. & Eng. Enc. Law (2 ed.) 200, 214, 216, 217, 261, 262;-. Vogle v. Ripper, 34 Ill. 100 [85 Am. Dec. 298]; Booth v. Powers, 56 N. Y. 22; Millerv. Stark, 148 Pa. St. 164 [23 Atl. Rep. 1058] ; Fellerton v. Sturges, 4 Ohio St. 529, 530; Tarbill v. Mill Works, 1 Circ. Dec. 643, 646 (2 R. 564) ; Morrison v. Welty, 18 Md. 169; Hunt v. Gray,' 35 N. J. Law 227 [10 Am. Rep. 232] ; Singleton v. McQuerry, 85 Ky. 41 S. W. Rep. 652]; Aetna Nat. Bank v. Winchester, 43 Conn.-391 ; Brooks v. Allen, 62 Ind. 401 ; Ni.ckerson v. Swett, 135 Mass. 514: Rees v. Overbaugh, 6 Cow. (N. Y.) 746; 3 Am. & Eng. Enc. Raw (2 ed.) 817 ; Levi v. Bank, 5 Dill. 104 [ 15 Fed. Cas. 415j; National Gold Bank v. McDonald, 51 Cal. 64 [21 Am. Rep. 697]; Manufacturers Nat. Bank v. Bank, 148 Mass. 553 [20 N. E. Rep. 193 ; 2 b. R. A. 699 ; 12 Am. St. Rep. 598] ; Boulware v. Bank, 12 Mo. 542 ; Rogers v. Shaw, 59 Cal. 260 ; Nevins v. DeGrand,.l5 Mass. 436; Eaton & Gilbert, Com. Paper 558 ; White Sewing Machine Co. v. Dakin, 86 Mich. 581 [49 N. W. Rep. 583 ; 13 L. R. A. 313]. „ ' '</p>

The instrument in controversy is an agreement to give a mortgage or it is a defectively executed mortgage. If it be an .agreement to give a mortgage then the following authorities are in point: Hutzler v. Phillips, 4 Am. St. Rep. 700; Cottrell v. Long, 20 Ohio 464; Pomeroy, Equity Secs. 1235 and 1237; 64 Am. St. Rep. 818 note; Love v. Water & Mining Co. 32 Cal. 639 [91 Am. Dec. 602].

<p>INTOXICATING LIQUORS — ■AFFIDAVIT—TRIAL.</p> <p>Laubie, Cook and'Burrows, JJ.</p> <p>Necessary Elements in Affidavit for Selling Intoxicating Liquors Contrary to Law.</p> <p>An affidavit filed before a mayor for the sale of intoxicating liquor, contraty to lay; under the Beal local option law (Sec. 4364-20b Rev. Stat.), should set forth the name of the party to whom the intoxicating liquor was sold, or that the name was unknown; but an objection to the affidavit on that ground must be pleaded before final trial in the mayor’s court or the same is waived.</p>

The universal rule in Ohio is that courts proceed with great caution in matters of forfeiture. If a contract is fairly subject to the interpretation, that upon the happening of a default it should be enforced and not forfeited, it receives that interpretation. Watterson v. Ury, 3 Circ. Dec. 171 (5 R. 347, 355) ; Hornback v. Railway Co. 20 Ohio St. 81, 88; Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719] ; Chicago City Ry.

<p>ErroR to the court of common pleas.</p>

<p>ERROR to the court of common pleas.</p>

<p>JUDGMENTS — LIENS.</p> <p>Haynes, Parker and Hull, JJ.</p> <p>Priority of Judgment Lien not Lost by Becoming Dormant During Pendency of Action to Which Creditor is Party.</p> <p>Where one owning a living judgment, which is a lien on lands, is made a party defendant and enters his appearance in an action to foreclose a mortgage which is an inferior lien upon said lands, the petition in which case contains the averment that such defendant claims some interest in or lien upon said lands, and contains a prayer that he may be required to answer and set up whatever interest or lien he may have or he forever debarred from asserting the same; and also, for a ' marshalling of liens; a foreclosure of plaintiff’s mortgage; a’sale thereunder, etc., the priority of the lien of such judgment is preserved in the proceeds of a sale made in said action, if an answer and cross petition setting the same up and asking appropriate relief touching the same is filed in the case within rule, though it may not be filed until more than five years from the date of such judgment, and no execution has been issued thereon during such period.</p>

Eeror to the court of common pleas. Carrier liable for full'amount when liability limited below real value. United States Express Co. v. Backman, 28Ohio St.'144; Union Express Co. v. Graham, 26 Ohio St. 595; Pittsburg, C. C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68 [46 N. E. Rep. 61]; Pennsylvania Co. v. Yoder, 25 O. C. C. 32, 33; Stevenson v. Weils, Fargo & Co. 1 O. S. C. D. 312 (33 Bull. 247).

<p>ATTACHMENT — EXEMPTIONS.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Ten Per Cent, of Debtor's Personal Earnings not Exempt.</p> <p>Ten per cent, of a debtor’s personal earnings are not exempt from execution and attachment where the claim, debt or demand for the payment of which it is sought to subject them is for necessaries furnished to the debtor, his wife or family, since April 26, 1898. Section 5430 Rev. Stat.</p> <p>2. What Affidavit Should Contain in Action for Necessaries.</p> <p>In an action for necessaries the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, that the property sought to be attached is not exempt from execution, and, if personal earnings are to be attached, that the claim on'which judgment is sought is for necessaries,_ without mentioning any of the nine specifications in Sec. 6489 Rev. Stat., the existence of one or more of which must be stated when the action is not for necessaries.</p> <p>3. Failure to Make Demand no Ground for Discharging Attachment.</p> <p>An attachment issued in an action for necessaries should not be discharged because the plaintiff has failed to make a demand in writing for the excess over and above ninety per cent, of the personal earnings of the debtor. Section 6501 Rev. Stat.</p> <p>4. Personal Service of Demand.</p> <p>The demand in writing for the excess over and above ninety per cent, of the personal earnings of the debtor, provided for in Sec. 6501 Rev. Stat., must be served upon the debtor personally.</p> <p>b. No Presumption Against Partnership of Noncompliance with Provision Requiring Certificate Filed.</p> <p>Failure to comply with Sec. 3170-1 Rev. Stat., et seq., requiring partnerships to file certificates of the names and residences of its members as prerequisite to the bringing of actions, being established by evidence, is a defense to an action brought by a partnership, but no presumption of noncompliance with such statute will arise against such partnership, the statute being penal in its nature, and as such, requiring strict construction.</p>

<p>MUNICIPAL CORPORATIONS — STREET RAILWAYS.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>Ordinance Making it Unlawful to Stop Street Cars, Valid.</p> <p>A municipal ordinance making it unlawful for any person in charge of an electric car running upon any street or avenue within the limits of the municipality to fail or refuse to stop such car at any regular stopping place when signaled so to do by persons desiring to board, or alight from, such car, is valid. The power to enact such an ordinance is granted by Sec. 7, Par. 9 of the new municipal code (96 O. L. 23; Sec. 1536-100 Rev. Stat.). .</p>

<p>COURTS — CONSTITUTIONAL LAW — CRIMINAL LAW.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Jurisdiction of Mayor of Village.</p> <p>Under Sec. 1824 Rev. Stat., mayors of villages have final jurisdiction in misdemeanor cases in which, under the constitution, there is no right to trial by jury, and such jurisdiction extends throughout the county.</p> <p>2. Section 1824 Rev. Stat., Constitutional. •</p> <p>Section 1824 Rev. Stat., is not in conflict with Sec. 10, Art. 4 of the constitution.</p> <p>3. Second Offense Must be Charged as-Such.</p> <p>In order that a person charged in one affidavit with selling liquor contrary to the statute on more than one occasion may be entitled to a jury, or punished as for a second offense, the affidavit must show a former conviction and that a particular sale is charged as a second or repeated offense. '</p> <p>4. Aggregate Penalties may Exceed Limit of One.</p> <p>Several charges of distinct sales of liquor contrary to the statute may be made in one affidavit and a fine assessed for each offense, even though the aggregate of such fines exceeds the limit of punishment for one offense.</p> <p>5. Information not Required.</p> <p>Misdemeanor cases may be instituted and tried before justices of the peace and mayors, upon the filing of an affidavit, and it is not necessary that an information be lodged with the magistrate.</p>

<p>Error to court of common pleas.</p>

A municipal council in exercising its power and discretion to improve, repair, change and order sidewalks, must follow the statute, and the subject matter of its ordinances and resolutions must be reasonable and lawful.

<p>CORPORATIONS — RECEIVERS.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Equity Receiver of Insolvent Company may Recover Assets Fraudulently Transferred.</p> <p>A receiver of an insolvent corporation appointed -by a court under its general equity, power, with authority “to bring all suits necessary in any court having jurisdiction thereof for the collection of debts and the prosecution of any suits or the defense of the same as may be necessary in the discharge of his duties,” is the representative of the creditors, and may njaintain an action, the same as the receiver of a dissolved corporation appointed under special statutory authority, to recover assets fraudulently transferred in disregard of the rights of creditors, notwithstanding such an action could not have been maintained by the corporation.</p> <p>2. Transfer of Securities for Worthless Obligations by Insolvent Bank Fraud .Upon Creditors, When.</p> <p>The transfer of securities as collateral for a note for $17,925 by a banking company to a loan company in the settlement of suits growing out of certain alleged claims is a fraud upon the rights of the -bank’s creditors, and may be set aside and recovered at the suit of a receiver in their behalf, where it was known to the secretary of the bank, at the time he made the transfer, that the bank was insolvent, and it appears that the only consideration - for the note were two checks for $11,000 each and the settlement of an apparent indebtedness of the banking company to the loan company for deposits aggregating $50,834.35, it being known to the secretary of the banking company, at the time he certified the checks to be good, and by the -secretary and general manager of the loan company, at the time he accepted them, that the checks were forgeries, and which, in fact, were given upon no valid, consideration or actual indebtedness., but in furtherance of a scheme between the secretaries of the two companies to make it appear that the loan company possessed assets which, in fact, it did not have, the only consideration for them being stocks and other obligations known 'by both parties to'be valueless ; and the apparent indebtedness for deposits representing no money actually deposited, but only notes, given, without consideration, by the secretary and general manager of the loan company, who was insolvent, in his own name and in the name of his company.</p>

<p>Appeal from court of common pleas.</p>

<p>MASTER AND SERVANT — NEGLIGENCE—TRIAL.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Master's Duty to Provide Safe AVorjong Place and Establish Rules to Protect Servant from Danger.</p> <p>The master is bound to use ordinary care to provide a reasonably safe place for his servants to work and to establish reasqnable rules or regulations whereby the servant may be guarded and protected against danger and injury incident to the performance of his duties. Hence, where a servant is ordered, either by general or special direction, by the foreman of his department to repair a car in which work it is necessary to raise the same and place it on supports for the purpose of removing the trucks, and while engaged in such repair it is necessary for the servant, along with others, to work underneath the car as thus raised and sit upon the ground at one end thereof with his eyes directed to the floor of the car above him in order to see what he is doing, and while he is so at work, other servants are also engaged in the same work at the other end of the car, and in the course of making the repairs it becomes necessary to have such other end of the car raised and the supports thereunder taken out, and while engaged in his work in such position the servant could not see and did not know what was going on at such end, the master is charged with knowledge of the dangerous situation and -the known and apparent danger to the servant by the raising and falling of the car, and it is a question for the jury whether or not it is the master’s duty, while such work is going on, to have some one out from under the car, or provide some other method, to give timely notice or warning to the workmen under the car that the same was about to be raised. In such case the master may be liable fpr the injuries sustained by the servant by reason of the car falling upon him, notwithstanding the combined negligence of fellow servants in raising the car.</p> <p>2. Not Negligence per se to Engage in Dangerous Work — What are Proper Questions for Jury.</p> <p>It was not negligence as a matter of law for a servant, who was experienced in such car repairing, to remain at his work under the car, unless he had notice that the car was about to be raised; but where there was a conflict in the evidence as to such notice the question whether or not the servant was negligent and the question as to the duty of the master under the circumstances, to make rules or other provisions for giving notice or warning of what was about -to be done by the workmen at the other end of the car should have been submitted to the jury; and it was improper for the court to take the case from the jury and direct a verdict for the defendant.</p>

<p>Error to the court of common pleas of Logan county.</p>

Where the concurrent or successive negligence of two persons combined together result in an injury to a third person, he may recover of either or both for the damages resulting therefrom, and neither cán interpose the defense that the prior or concurrent negligence of the other contributed to the injury. 6 Am. & Eng. Enc. Law (2 ed.) 433, 434; Herr v. Lebanon (City), 149 Pa. St. 222 [24 Atl. Rep. 207; 16 L. R. A. 106; 34 Am. St. Rep. 603] ; 21 Am. & Eng. Enc.

<p>ERROR to the court of common pleas of Lucas count)'.</p>

<p>MANDAMUS — BILLS OF EXCEPTIONS — AFFIDAVITS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Affidavits Cannot be Made Part of Bill of Exceptions, When — Judicial Discretion not Controlled by Mandamus.</p> <p>Affidavits in support oí a motion for new trial filed by the plaintiff in an action with the clerk of courts, but not presented to the court upon the hearing of the motion, and of which the court has no knowledge, cannot be embodied into or made a part of a bill of exceptions, and if attached thereto or embodied therein the bill of exceptions is not a true bill and may properly be rejected by the court when presented to him for signing and allowance.</p> <p>2. Court may Dismiss Petition in Mandamus on Pleadings, When.</p> <p>A petition in mandamus to compel a court to sign and allow a bill of exceptions may be dismissed on the pleading's when respondent answers that the bill referred to is not a true bill, that an amended bill of exceptions was filed with the clerk by the defendant, and that respondent judicially determined the latter to be the true bill and signed and allowed the same, where such answer is not denied by reply of the relator.</p>

Where the offense is.a misdemeanor and the penalty is a money fine only (no part of the penalty being imprisonment), the accused is not entitled to a trial by jury.' Ward v. State, 5 Dee. 230 (5 N. P. 81); Bradner (Vil.) v. Grundetisch, 8 Circ. Dec. 122 (15 R. 32, 35) ; Fletcher v. State, 7 Circ.

<p>Error to Lucas common pleas court.</p>

<p>LIFE INSURANCE — CONTRACTS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Noncontestable Provision in Live Insurance Policy Limited to Occur-bences of Policy. ,</p> <p>A provision in a life insurance policy that “this policy shall he incontestable after two years, except for fraud or misstatement of age,” relates to the occurrences at the time of issuing the policy which otherwise would avoid it, and cannot be construed to mean that the policy after being in force two years, will be paid if insured, at the .time of his death, is in default for premiums beyond the period specified in the ' policy.</p> <p>2. PROVISIONS 01? INSURANCE POLICY CONSTRUED TOGETHER- -POLICY FORFEITED, When.</p> <p>Provisions in a policy of life insurance that “if any premium shall not be paid when due, this policy shall become void;” that such forfeiture • should in no respect be considered waived “by any act of grace by the company in acceptance of overdue premiums;” that “should this policy-become void in consequence of nonpayment of premiums, it may' be revived, if not more than fifty-two premiums are due, upon the payment of all arrears, and the presentation of evidence satisfactory to the company of the sound health of the insured;” and that “should the death of insured occur While any premiums are in arrears not exceeding four weeks, the company will, nevertheless, pay the policy subject to its conditions” (the latter being known as the “grace Xieriod”), should all be construed together. Hence, where assured’s wife, after the policy had, by its terms, become void for the nonpayment of premiums for a period of forty-six days, tendered four weeks’ premiums to the company, which if accepted would have brought the policy within the terms of the “grace” period, which tender, however, was refused because assured was then in very bad health, in such case the company may rightfully refuse to accept the overdue premiums so tendered and insist upon the forfeiture of the policy for the nonpayment of premiums; and the receipt by the local agent of overdue premiums on previous occasions within and after the “grace” period, but at all times inquiring as to assured’s condition of health, cannot be construed as a waiver of the clause in the policy requiring such satisfactory evidence of sound health where one is in default.</p>

<p>Error to the court of common pleas of Huron county.</p>

<p>ERROR to the court of common pleas of Hamilton county.</p>

The lien of the state or purchaser at delinquent tax sale for taxes cannot be defeated by a pending foreclosure suit. The doctrine of lis pendens does not apply. Ketcham v. Fitch, 13 Ohio St. 201; Roberts v. Doren, 10 Re. 349 (20 Bull. 397) ; Bigelow, Fraud 297; State v. God-frey, 10 Circ.

INJUNCTION. A strict compliance with Sec. 2304 Rev. Stat. as to notice in writing for twenty days before the passage of the improvement ordinance is essential to give the council jurisdiction to make the assessment. Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001], Every doubt should be resolved in favor of the owner, and his testimony, other things being equal, ’should be given the highest credence by this court on that question.

The principles of law which we think applicable to a discussion of the evidence in this case, which call for its reversal, are the following: Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604] ; Cleveland T. & V. Ky. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Eep. 821] ; American Express Co. v. Smith, 33 Ohio St. 511; Erie Ry.

<p>Errok to court of common pleas.</p>

There is no statute requiring any special construction at the crossing of telephone and power wires. This crossing was constructed of good material, and it nowhere appears in the evidence that the crossing was faulty.

<p>MOTIONS — AFFIDAVITS—BILLS OF EXCEPTIONS,</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Motion ron New Trial Unnecessary to Authorize Review of Judgment on Motion to Dissolve Attachment.</p> <p>No motion for a new trial is necessary-to authorize a reviewing court to review the judgment of a trial court on a motion to dissolve an attachment or discharge a defendant from an order of arrest before judgment. Stone v. Bank, 4 Circ. Dec. 354 (8 R. 636), approved and followed.</p> <p>2. Filing Motion for New Trial Will not Affect Time When Bill of Exceptions Must be Filed.</p> <p>If a motion for a new trial is filed in such case, the filing thereof will not affect the time when a bill of exceptions must be filed, but the forty days allowed by the statute (Sec. 5301 Rev. Stat.) for such-filing begins to run from the date of the judgment of the court on the motion to dissolve or discharge.</p>

<p>MANDAMUS — COURTS—TRIAL.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Mandamus Will not lie to Compel Court to Enter Order as of Subsequent Term.</p> <p>Mandamus will not lie after the term to compel a court to make an entry of an order overruling a motion for a new trial as of a date of the subsequent term, in order to allow a party to prepare and file a bill of exceptions, where no action was taken by such party until after the previous term and the time had gone by for preparing and filing the same, and it further appears that all the parties and the deputy clerk were present in open court at the time the motion was overruled and had full knowledge thereof that such party was not misled, and took no action to protect his rights.</p> <p>2. Motion Docket not Official.</p> <p>It is the duty 'of the clerk of courts to record the action of the court in the court journal on the date thereof and according to the truth of the matter, and a refusal by him to receive an entry overruling a motion for a new trial, when such action has been taken by the court, on the sole ground that no memorandum of such action appears on the “motion docket,” is without warrant. Such docket is unknown to the statutes, and a memorandum thereon made by the court is merely for its own information.</p> <p>3. Nunc Pro Tunc Order Will not Issue Where Party Present, Taking no Action to Protect Right. - .</p> <p>A nunc pro tunc order will not issue on motion of a party who was present at the time and had full knowledge of the action of the court, but took j;o action to defend his rights.</p>

<p>ERROR — INFANTS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Praecipe for Summons no Part of Record.</p> <p>A praecipe for summons is no part of the record within the meaning of Sec. 5334 Rev. Slat., and will not be recognized or considered by a court of error, although filed with the petition in error, and any recital of fact therein ■ intended to be relied upon must affirmatively appear from the record. Hence, a petition in error does not lie to review a judgment rendered against a ncjn-residen.t minor on the grounds that no guardian ad litem was appointed or the requisite answer filed, where the fact of infancy appears only in the praecipe for summons and not in the record.</p> <p>2. Erroneous Proceeding Against Infant Vacated Under Sec. 5354 Rev. Stat. Where Error not Apparent on Record.</p> <p>Notwithstanding no error is apparent upon the face of the record, an erroneous proceeding against an infant in the court of common pleas may be vacated or modified by such court after the term, under Par. 5, Sec. 5354 Rev. Stat.</p>

<p>ERROR to the court of common pleas of Lucas county.</p>

<p>HEALTH — CRIMINAL LAW.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Affidavit Charging Sale of Oleomargarine — Evidence of Sale by Employe NOT VARIANCE.</p> <p>Where an affidavit charges one with unlawfully selling oleomargarine and the evidence shows that the sale was made oy an employe, who was authorized to sell the article, this is not a variance. It was no,t necessary to allege that the sale was made by an agent or employe. In misdemeanor all are principals.</p> <p>2. Evidence of Instructions to Clerks as to Salé of Oleomargarine not Admissible in Action Against Proprietor.</p> <p>In a prosecution for selling oleomargarine, as butter,, in violation of Sec. 4200-17 Rev. Stat., where the oleomargarine was sold by a clerk in the store of the accused, who was engaged in the business of selling oleomargarine to the public, with other merchandise and who authorized its sale by his clerks, in the ordinary course of business, it is no defense that he had instructed such clerk and all.of his clerks in the store, not to sell oleomargarine, except under its true name and marked and labeled as required by said act; and testimony to prove such instructions was properly excluded.</p> <p>3. Duty of Proprietor to see Compliance With Law.</p> <p>One who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employes, is bound to sec that the law regulating its sale is complied with, and if it is violated by such employes or clerks, the employer is liable under the statute.</p>

<p>WILLS — EVIDENCE—TRIAL.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. DECLARATIONS 03'’ TESTATRIX COMPETENT TO Sl-IOw TESTAMENTARY CAPACITY, BUT not Contrary Intention.</p> <p>Oral declarations of a testratrix as to her testamentary intentions made during her last sickness and shortly after the execution of her will are not admissible to show an intention contrary to that expressed in the will nor to vary or contradict its terms, but are competent as tending to show the condition of her mind at the time the will was executed.</p> <p>2. Error in Charge not Reviewed Unless Entire Record Shows it Prejudicial.</p> <p>An alleged error in a charge to the jury will not be reviewed where no exception was taken thereto at the time, unless it appears from the whole record that injustice has been done to the complaining party by reason thereof.</p>

<p>Appeal from the court of common pleas.</p>

<p>WILLS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Proponents Must Show Will was in Existence and Unrevoked at Testator's Death.</p> <p>Where an alleged last will and testament cannot be found, the burden of proof is upon the proponents to satisfy the court that the will was in existence and unrevoked at the time of the alleged testator’s death and was lost, spoliated or destroyed subsequent thereto.</p> <p>2. Existence may be Shown by Presumption or Circumstantial Evidence.</p> <p>The existence, unrevoked, of an alleged last will and testament at the time of and subsequent to the alleged testator’s death may be established by circumstantial evidence or presumption, the same as any other -fact, as well as by direct evidence. The presumption of continued existence grows weaker the longer the lapse of time since the alleged will was last seen.</p> <p>3. What Evidence not of Probative Force on Issue of Existence of Will.</p> <p>Where the issue in a probate proceeding is the existence of an alleged will subsequent to the death of the alleged testator, irrespective of his intention, lack of evidence of a changed intention of the decedent, and of his physical disability, after the existence of a will, has some but very little probative force in establishing such issue.</p> <p>4. Will Lost or Spoliated Bekore Death Cannot be Probated Under Secs. 5944 and 5947 Rev. Stat.</p> <p>A will cannot be probated under Secs. 5944 and 5947 Rev. Stat. where it appears that it was “lost, spoliated or destroyed” prior to testator’s death and without his knowledge, or even against his will. Said statutes app'ly only , to the probate of such wills as were unrevoked at the testator’s death and are lost, spoliated or destroyed subsequent thereto, or after he has become incapable of making a will by reason of insanity.</p> <p>5. Word “Lost” When Applied to Wills Means Nonexistent.</p> <p>The word “lost," when used with reference to an alleged last will and testament in a probate proceeding, means when the alleged will becomes substantially or for practical purposes nonexistent, and must be given some of the signification of “spoliated” or “destroyed,” although, as a general rule, it means when a thing has been duly searched for and cannot be found.</p>

<p>MUNICIPAL CORPORATIONS — NEGLIGENCE.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>Municipality Liable foe Dangerous Condition in Street Caused by Ice, When.</p> <p>A municipal corporation is charged with knowledge of, is guilty of negligence in failing to remove, and is liable in damages for injuries resulting from, a dan- ' gerous condition or obstruction in one of its streets caused by water escaping for a period of ten days from a municipal water main onto the street and freezing in such manner as to form icc eighteen inches thick on the side of the street where the water escaped, and sloping down to a thickness of two or three inches on the other side, thereby rendering the street dangerous for vehicular travel.</p>

<p>RAILROADS — STREETS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>Haying Side Track: in Stkeet Wi-ieke Damages Reacote and General, not Enjoined.</p> <p>There is no taking of private property within the meaning of the constitution when there is no direct or special invasion of property rights, and the only-damages complained of are remote and not different in kind or hardly appreciably more in degree than what is suffered by the general public. Hence, injunction will not lie to restrain the laying of a railway side track in a public street where it appears that complainant’s property will not abut upon the track when completed, but will lie at a distance of fifty and one hundred and sixty feet respectively from the ends thereof, that the ingress and egress to and from all the property abutting on the entire street will not he affected thereby, that no damages different in kind or degree from that suffered by the general public will result to complainant, that the inlet and outlet to other streets will not he obstructed therefrom, and that the rails of the proposed track will be laid even with the surface so as to make no obstruction to vehicles making use of the street.</p>

<p>CONSTITUTIONAL LAW — TAXATION.</p> <p>Giffen, Jellce and Swing, JJ.</p> <p>Act Relatiug to Disposition or Foüfeited Land at Tax Sales Constitutional.</p> <p>Tlie act of April 10,1900 (94 0.'L.116; See. 2907a Rev. Stat. et seq.), providing ■ that where land offered at delinquent tax sale has not been sold for want of bidders and has been forfeited to the state for nonpayment of taxes, the county auditor shall, upon application of the owner of such land, readjust the taxes upon.the basis of the new decennial appraisement and make remittitur of a certain portion of the delinquent taxes in order to restore such lands to the live taxpaying duplicate, is constitutional.</p>

<p>Motion to dismiss appeal.</p>

<p>ERROR to court of common pleas of Lucas county.</p>

<p>JUDGMENTS — PLEADING.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>Judgment not Excursive Because no Supplementary Petition Piled.</p> <p>A judgment for the amount due at the date of its rendition, instead of at the date of filing the petition, is not excessive because no supplementary petition was filed, when the petition prays “that an account be taken” and judgment lie rendered for the “amounts found due,” and no new facts have arisen after the filing of the petition, and all the facts necessary to determine the amount becoming due thereafter are averred therein. A supplementary petition is unnecessary under such circumstances.</p>

<p>BOOKS OF ACCOUNT — ERROR.</p> <p>Caldwell, Hale and Marvin, JJ.</p> <p>Ledger Account Competent Evidence When Originad Account Destroyed.</p> <p>A ledger containing a correct transcript from account books of original entry is admissible in evidence after proof that the latter are destroyed, and that the transcript therefrom was correctly made, both as to the property and amount sold and the price thereof.</p>

An assignee who continues a business in leased premises thereby elects to hold under the lease, and /is liable for rent. Morrison v. Bruce, I Dec. 40 (1 N. P. .106) ; Cincinnati v. Goodhue, 10 Re. 345 (20 Bull. 370); Dorrance v. Jones, 27 Ala. 630, 633; Ohio Manual of Assignees (4 ed.) p. 75. When once the election is made, the assignee cannot recede from it; length of possession is immaterial.

<p>HOMICIDE — CONFESSIONS—EVIDENCE.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Offer of Police Judge to Help Prisoner wot Prejudicial if Confession is not Induced Thereby.</p> <p>An /offer of help made by a police judge to a prisoner under arrest for murder, together with a promise to do everything he could for him, is an inducement to make a confession, but is not prejudicial if the statement made is not produced thereby.</p> <p>2. Statement by Child Imputing Crime to Father, Made in his Presence, Admissible to Show his Acquiescence Therein.</p> <p>A statement made by a child four years of age in the presence of his father and a chief of police, tending to inculpate his father in the murder of his mother, is admissible for the purpose of showing that the prisoner acquiesced in the statement by remaining silent.</p> <p>3. Denial of Right to Confer Witi-i Counsel Will be Reviewed Only, When.</p> <p>A refusal to permit a prisoner to confer with counsel, at a time when police officers were endeavoring to secure a confession from him, is not a matter which a reviewing court will consider, unless it distinctly appears in the record that in consequence of ill treatment by the police he was dazed, confused or unconscious, and therefore unable to understand the questions put to him.</p> <p>4. Act 96 O. L. 3 Confers Powers of Administrative Character and is Constitutional.</p> <p>The act of September 30, 1902 (96 O. L. 3), providing for the appointment of jury commissioners, confers power of an administrative character, and is not judicial within the meaning of Sec. 1, Art. 4 of the constitution; nor is it unconstitutional because it provides that only judicious freehold electors shall be appointed commissioners.</p> <p>5. Irregularities in Selecting Grand Jurors Cannot be Pleaded tx Aisvtkment.</p> <p>Mere irregularities in the selection of grand jurors must be taken advantage of, if at all, by challenge for cause, and cannot be pleaded in abatement.</p> <p>6. “J. P. Clark” Instead “John P. Clark,” Foreman oe Grand Jury; not Fatal Variance.</p> <p>It is not fatal to an indictment that the foreman signed it J. P. ClarK, instead of John P. Clark, the name appearing on the venire, for the court appointing the foreman' is presumed to know his identity.</p>

<p>DOWER — JUDGMENTS—JUDICIAL SALES.</p> <p>Haynes, Hull and Parker, JJ.</p> <p>1. Widow Entitled to Oil Produced From Dower Lands.</p> <p>The widow is entitled to the oil produced from land generally assigned and confirmed to her as dower, although the wells are sunk and the oil produced after her husband’s death.</p> <p>2, Judgment on Collateral Matters not in Issue Coram Non Judice — Purchaser at Judicial Sale Takes Subject to What Rights.</p> <p>The entry of a judgment cutting off the widow’s rights to oil produced from land theretofore regularly assigned and confirmed to her as dower in a partition proceeding is coram non judice and void when the widow, under the terms of an oil lease entered into between the heirs and herself prior to the commencement of the partition proceeding, is entitled to the oil produced therefrom, and her rights under such lease were not involved or made an issue in such proceeding; and a purchaser at the partition sale takes subject to the right of the widow to the oil under such lease.</p>

<p>EMINENT domain — courts.</p> <p>Hale, Marvin and Winch, JJ.</p> <p>1. Jurisdiction of Probate Court to Appropriate Railroad Property for Street.</p> <p>Where, under Sees. 2642 and 2232 Rev.. Stat. et seq. which provide that a municipal corporation may commence proceedings in the probate or common pleas court for the appropriation of land held or owned by a railroad company, for the purpose of opening or extending a street across the company’s tracks, an action has been duly commenced for such purpose in the probate court, that court has exclusive original jurisdiction to determine whether such appropriation will unnecessarily interfere with the use of the company’s property so crossed.</p> <p>2. Act.ion in Probate Court to Appropriate Railroad Land not Enjoined, When.</p> <p>An action commenced in the probate court by a municipal corporation to appropriate land of a railroad company for the purpose of extending a street across the company’s tracks, will not be enjoined by the common pleas court in an action commenced there for such purpose on the ground that such appropria-lion will unnecessarily interfere with the use of the railroad property crossed by the improvement.</p> <p>3. Evidence Proper in Action to Enjoin Appropriation Proceedings, When.</p> <p>Where an action has been commenced by a railway company in the common pleas court to enjoin an appropriation proceeding commenced by a municipal corporation under Secs. ‘2(142 and 2232 Rev. Stat. et seq., an objection to the introduction of any evidence by the plaintiff should be overruled where a reply has been filed by plaintiff and the allegations of the city as to the regularity of its proceedings in the probate court are-contravened.</p>

<p>JUSTICES OF THE PEACE.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Defendant not Entitled to one Hour Within Which to Appear' Before Justice of the Peace, When.</p> <p>When a case pending before a justice of the peace has been regularly adjourned for trial under Sec. 6548 Rev. Stat. until the time fixed for the return of the jury demanded by plaintiff under Sec. 6547 Rev. Stat., the defendant is not entitled, under Sec. 6576 Rev. Stat., to one hour from the time so fixed for trial within which to appear. /</p> <p>2. Application to set Aside Judgment Must Contain, What.</p> <p>An application by defendant to set aside a judgment rendered against it by a justice of the peace, based upon the facts of nonappearance at the hearing and that it wás not allowed one hour from the time set for trial within which to appear, should set forth the reasons for nonappearance, or offer to confess some judgment or pay costs.</p>

<p>MORTGAGES — LIFE ESTATES — COURTS.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Mortgage on Life Estate Must be Paid From Income and not Principal.</p> <p>The value of a mortgage incumbrance upon the interest of a life tenant in real estate can be paid only from the income arising from, and not out of, the principal of the fund created by a sale of the premises in-a proceeding commenced by the life tenant to sell the same and have the proceeds invested under order of the court for the benefit of the parties interested therein.</p> <p>2. Costs, Taxes, Attorney and Guardian Ad Litem Fees, how Paid.</p> <p>A life tenant in real estate who, for his own benefit, commences a proceeding to sell the premises and invest the proceeds arising therefrom under order ' of the court, as provided by Sec. 5803 Rev. Stat. et seq., must pay the costs of the proceeding and his attorney fee; and, as a tenant for life must pay taxes or forfeit his estate, either he or his mortgagee must pay the taxes on the land; and no part of such costs, fee or taxes (unless the taxes have been paid after forfeiture of the life estate), can be paid from the principal of the fund realized from a sale of the premises; but the fee of the guardian ad litem of a minor defendant may be paid from the fund.</p> <p>3. Court May Appoint Trustee to Invest Trust Fund.</p> <p>It is within the power of the court, in a proceeding commenced liy a life tenant in real estate to sell the land and invest the proceeds for the benefit of the parties interested therein, to appoint a trustee of the fund so created with power to invest the same under order of the court.</p>

As to right of appeal. Section 2256 Eev. Stat. The guardian ad litem was a party to the proceeding in the common pleas court, as was also the minor whom he represented. As to the duty of the guardian ad litem. Long v. Mulford, 17 Ohio St. 484, 503; Dow v. Jewell, 21 N. H. (1 Foster) 470, 486; Sconce v. Whitney, 12 Ill. 150; Knickerbacker v. De Freest, 2 Paige 304; 1 Daniell, Ch. Pr. Title, Infants. As to the appointment of a guardian ad litem.

<p>STREETS — MUNICIPAL CORPORATIONS.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Municipalities Hold Streets in Trust for Street Purposes — Nature op Title.</p> <p>Municipalities own the land between street lines in trust for street pur-. poses, but their title thereto is not a fee simple, hut rather in the nature of a base, qualified, or determinable fee; and so long as the purpose for which it is vested with title is maintained, its estate therein is coextensive with the fee title of the owner of any other property. Hence, all property rights existent in land held by such a title, both above and under the surface, follows the fee and belongs to the municipality, subject to the abutting owners’ property rights of ingress and egress.</p> <p>2. Stringing Electric Wires Beneath Street not a Property Right of Abutter.</p> <p>The stringing and maintaining by an abutting owner of permanent electric wires under the street surface at a depth of nineteen feet for the purpose of supplying electricity to premises abutting on the opposite side of the street, is not within the abutting owner’s property right of ingress and egress, and cannot he done as a matter of right. (Giffen, J., dissents.)</p> <p>:j. iluxKU’AL Use and Control of Streets,Defined by Seo. 3471a Rev. Stat.</p> <p>The scope raid exLent oí a municipal corporation’s uso and control of land between street lines for street purposes can only be defined by the municipality itself or the state, and not by the abutting property owners. Hence, Sec. D471ct Rev. Stat., declaring, either for proprietary or police purposes, that the stringing of electric wires in the space between street lines, no matter how high above or far below the surface, shall be deemed within the municipality’s property and jurisdiction, and that the same shall not be done without its consent, defines the scope and extent of ‘the municipality’s use and control thereof, subject only to the limitation that such oc^imuiry shall rot trespass upon the property rights of abutting owners. (Giffen, J., dissents.!</p> <p>4. Removing Y'.Tr.r.s Rm'NG Beneath Street Without Municipal Consent not Enjoined.</p> <p>Injunction will not lie to restrain a municipality, its officers and agents, from removing electric wires strung below the surface of a street and there maintained for over two years by an abutting property owner without the consent of the municipality as provided under Sec. 3471a Rev. Stat. (Giffen, J., dissents.)</p>

<p>DESCENT AND DISTRIBUTION — WILLS—HUSBAND AND WIFE.</p> <p>Marvin, Winch and Laubie, JJ.</p> <p>1. Sections 417G and 59G3 Rev. Stat. Construed.</p> <p>When the wife dies leaving a will in which no provision is made for her surviving husband, her estate will be treated to him as if she had died intestate within the meaning of Secs. 4176 and 5963 Rev. Stat. In such event the husband will he entitled to a distributive portion of her personal estate as though the wife had died intestate, notwithstanding under a strict construction of the statutes such portion could not be claimed.</p> <p>2. Court Cannot Make Wnx — Must Ascertain Meaning and Intention Prom Testator’s Language.</p> <p>Courts are without power to make a will, or substitute something else for any of its provisions; hut it is their duty to ascertain the meaning and intention of testator from the language used, and then carry the same into effect if that can be done without violating the words of the will.</p> <p>3. Will Construed.</p> <p>Where testator who was a beneficiary of certain real estate under the will of her first husband (which interest is admitted by the parties, and held by the court to be personalty), bequeathed all her “interest in fee simple in all my realty wheresoever located” to two persons (naming them), and “all my personalty” to one of the persons named, but without mentioning or making any provision for her second husband who survived her, and it appears that testator was not the owner of any real estate and had no interest in any except as such beneficiary; in such case, the second husband is first entitled to a distributive portion of testator’s entire estate under Sec. 4176 Rev. Stat. as though she had died intestate; and carrying out her evident meaning and intention as ascertained from the will, the persons therein named will take the remaining estate in the portions therein respectively provided.</p>

, Samuel Williamson, executor of the estate of Thomas Bolton, deceased, began proceedings in the court of common pleas for the purpose of selling some entailed real estate belonging to said estate. The court found upon due hearing that it would be for the best interest of the estate and of all parties interested therein to sell said property, and appointed C. C. Bolton trustee to plat and sell the same and r.eport his proceedings to court for confirmation.

<p>Error to Cuyahoga common pleas court.</p>

<p>PASSENGER AND CARRIER.</p> <p>Day, Mooney and Norris, JJ.</p> <p>1. Contract or Carriage Construed as Other Contracts.</p> <p>A contract of carriage between a carrier of passengers and a passenger is subject to, and governed by, the same rules of construction as are applicable to contracts between individuals; and acts of corporations are followed by legal implication the same as the acts of individuals.</p> <p>2. Railroad Ticket a Contract fob Continuous Passage.</p> <p>As a general rule, a railroad ticket constitutes an agreement between the carrier and passenger for a continuous passage between the starting point and the place of destination. An express stipulation that the passenger shall make the journey by a continuous passage, js not unreasonable.</p> <p>3. Continuance of Broken Passage Under “Continuous Passage” Ticket.</p> <p>The rule, thct when the continuous passage called for in a railroad ticket necessitates a change of trains, the journey must be continued on the next available train, yields'to an agreement to the contrary. Such agreement" may be inferred from the acts and conduct of the company, or its agents.</p> <p>4. PASSENGER NOT ENTITLED TO STOP-OVER ON CONTINUOUS PASSAGE TICKET.</p> <p>A passenger traveling on a ticket which provides for a continuous passage from the starting point to place of destination is not entitled, as a matter of right, to a stop-over at an intermediate point; and if he voluntarily leaves the train and intentionally breaks the journey without the assent of the carrier, he cannot, after the intermission which he has thus created, again resume the journey under the same contract. But this rule is only applicable when the continuing of the journey is intentionally broken by the passenger, and without the assent or fault of the carrier.</p> <p>5. Plaintief May Resume “Continuous Passage” "When Journey Interrupted by Company.</p> <p>Plaintiff, with knowledge that the tráin which he intended to board did not go as far as his desired destination, before purchasing a ticket inquired of the ticket agent whether the ticket would be honored on such train, it being his purpose to use the ticket as far as the train went, and there wait for another train to carry him on to his destination; the agent, with knowledge of plaintiffs intention and purpose, unhesitatingly sold’ him a ticket to his ultimate destination, stamped “good for continuous passage to destination,” which was honored by the first conductor to the end of the run, and returned to plaintiff; neither the ticket agent who sold the ticket, nor the conductor who honored it gave plaintiff any instructions as to what train he should take after leaving the first train, which would be in compliance with the conditions of the ticket, nor did they give him any information as to what time 'a passenger train would depart for his place of destination; the train reached the end of its run at 8 p. m. the same day; plaintiff, believing that the first train on which •he could resume his journey would start at 7 a. m. the next morning, allowed the 11:55 p. m. train to go by; there was no intention on his part to break the continuity of the .journey; he boarded the 7 a. m. train the next day, the conductor of which refused to honor his ticket, and ejected him from the train: Held, it was the duty of the company to have instructed plaintiff as to how and when it intended to comply with its agreements to carry him on to his place 'of destination, and what was required of him in that behalf; that it was error for the trial court to arrest the case from the jury and enter a judgment for the company,</p>