Volume 15 — Ohio Nisi Prius Reports, New Series

<p>ABATEMENT OF FACTORY NOISES IN A RESIDENTIAL NEIGHBORHOOD.</p> <p>Injunction — Lies to Prevent Disturbing Noises which Affect Property Values — Abatement Decreed, Upon Petition of Nearby Residents, Against Noisy Operation of a Factory Malting Architectural and Ornamental Iron.</p> <p>Where a factory is located in a residence neighborhood, after notice of strong objection thereto and efforts to prevent such location, and it is so operated as to give rise by the pounding and riveting of iron to continuous noises which interfere with conversation or the use of the telephone in the neighborhood and to produce actual physical discomfort to persons of ordinary sensibilities, and the evidence shows that by the use of improved machinery and modern methods much of the noise could be obviated, injunction will lie upon petition of property owners thus annoyed or injured for an abatement of the noise, notwithstanding a nearby railroad upon which many trains are operated.contributes to the disquiet of the neighborhood.</p>

<p>MOTOR. VEHICLE LICENSE LAW INVALID.</p> <p>Constitutional Law — Act Providing for Registration of Motor Vehicles Invalid — Liscrimatory Provisions — Repair of Public Highways Otherwise Provided for by General Laic — Purpose of the Act One of Taxation.</p> <p>1. Tbe act providing for registration of motor vehicles (-103 O. L., 763) is discriminatory in its application, embodies double taxation, betrays an evident purpose to raise a fund for road and general state revenue purposes under the guise of regulation, and is invalid because not within the power of the Legislature, and because it expr.essly violates Article XIX, Section 2.</p> <p>2. One purpose of the law is a police regulation for the welfare and safety of the people. It is a registration law, not a license, being a mere regulation of an admitted right. The primary purpose of the law is overshadowed by a clear intent to impose a tax and to raise revenue.</p>

<p>CONTRIBUTORY NEGLIGENCE CONSTITUTING PROBABLE CAUSE.</p> <p>Negligence — By a Chauffeur at an Interurban Crossing — Binding by the Court .as to What a Reasonably Prudent Man Would Save Done Under the Circumstances.</p> <p>The court holds as a matter of law that a reasonably prudent person would not drive an automobile upon the track of an interurban road, after stopping at a point where he could not see whether or not there was a car approaching, when the circumstances were such he could have easily so placed himself as to have seen the approaching car or by stopping his engine he could have heard it; and having failed so to do the plaintiff was guilty of contributory negligence of such a character as to constitute proximate cause of his injury from being struck by the approaching car.</p>

<p>LIABILITY OF FLORISTS’ STOCK FOR. TAXATION.</p> <p>Taxation — Plants and, Floral Stock Constitute a “Growing Crop” — No Implied Exemption in Ohio of Personal Property from Taxation — Section 5560.</p> <p>1. Growing plants and growing floral stock comprising the stock of a florist and raised in earth and soil in greenhouses, either in benches or in pots or other receptacles therein, filled with earth and soil and cultivated and cared for in order to be brought to sale, constitute a “growing crop.”</p> <p>2. The provision of Section 5560, General Code, that in assessing real estate for taxation the valuation shall be made, “excluding the value of the crops growing thereon,” neither classifies such crops as either real or personal property, or exempts or excludes them from taxation.</p> <p>3. Growing crops are sometimes considered in law as personalty, and sometimes as partaking of the nature of realty.</p> <p>4. Growing plants and floral stock, cultivated for the purpose of sale, and which the owner treats as merchandise, to be sold to whomsoever may apply, are personal property and subject to be returned and taxed as such under the provisions of Sections 5325, 5328 and 5376, General Code.</p> <p>5. All personal property in Ohio is subject to taxation, except such as is expressly exempted, and no implied exemption or exclusion from taxation can be read into a statute.</p> <p>6. The Constitution of Ohio requires the Legislature to pass laws providing for the taxation of all property in the state, and the Legislature having acted in pursuance of such requirement, the courts will not presume that it has failed to include in such taxation any class' or species of property, either through oversight or by design.</p>

<p>RATES OF FARE TO TERRITORY ANNEXED TO A MUNICIPALITY.</p> <p>Interurban Railways — Provisions of Village Relating to Fares — In the Event of Village Being Annexed, to Adjacent Municipality— Authority of Village to Fix Rates of Fare Beyond Its Own Boundaries.</p> <p>Where an interburban railway accepts an ordinance passed by a village granting it the permission to lay tracks through the village, and where, by the terms of such grant, it is expressly provided as one of the conditions of the grant, “Should the village of Pleasant Ridge be annexed to the city of Cincinnati the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents,” said interurban railway, after annexation of the village, is bound by such a condition and can not charge more than five cents as a rate of fare.</p>

The allegations in the petition so far as the point raised by the demurrer, passed upon by the court, is concerned are as follows: “On September 26, 1912, shortly after the noon hour, this plaintiff in the course of his employment and under the direction of a foreman was seated on a stool operating tbe drill press above referred to.

<p>LIABILITY FOR INJURY FROM FALL IN CEMETERY.</p> <p>Cemeteries — Proprietors of, Liadle for Negligence of Agents and Servants — Right of Action for Injury from a Fall on an Icy WaVc.</p> <p>In an action for damages brought against a cemetery association, by one who was injured while attending a funeral at the cemetery by falling upon a walk over which she was compelled to pass and which was rendered dangerous and slippery by, an accumulation of ice and snow, the defense does not lie that the association is such an institution of public charity as to exempt it from liability for negligence of its agents and servants, notwithstanding it has ho capital stock and no profits can accrue to its members.</p>

<p>APPROPRIATION OF LAND FOR PLATFORM PURPOSES ABOUT A DEPOT.</p> <p>Eminent Domain — Railroad Company May Exercise for Depot Platform When — Probate Court May Determine What Questions on Preliminary Hearing — Executory Agreement of Settlement, How Enforceable.</p> <p>1. A railroad company duly incorporated and having complied with the law granting to it power to appropriate, may under favor of. Section 8759, General Code, appropriate land for platform purposes about a depot.</p> <p>2. Upon the preliminary hearing the probate court may determine the following issues: 1, the existence of the corporation; 2, the right to make the appropriation; 3, inability to agree; 4, necessity for the appropriation, and such collateral questions as may be necessary and incident to the determination of the foregoing issues.</p> <p>3. Unless an executory agreement of settlement between parties to a civil action is reduced to writing and signed by them, or acted upon, or duly entered as a judgment, it is null and void. Accord resting on mutual promises is not good without performance, and the rule is applicable in an appropriation case.</p> <p>4. The determination of the question of the necessity for the appropriation rests primarily with the corporation and unless there is a clear abuse of its power, the court, upon the preliminary hearing, will not interfere.</p>

<p>EMBEZZLEMENT BY A CORPORATION.</p> <p>Criminal Law — Conversion of Securities hy a Corporation Hel<I to he the Act of Its Controlling Officer.</p> <p>Where one acting as president and treasurer of a corporation engaged in the brokerage business and shown by the evidence to have been the controlling factor of said corporation, sells the stock of a customer and converts the proceeds to his individual use or the use of the corporation, he will be held to have acted as the agent of said customer, and the intent involved in the wrongful conversion will be regarded as his intent, and an indictment for embezzlement lies against him rather than against the corporation.</p>

<p>OWNERSHIP OF GROUND IN VACATED STREET.</p> <p>Municipal Corporations — Vacation of Streets — To Whom, Title Reverts, Where the Land Was All Dedicated by the Property Owners on One Side.</p> <p>Upon the vacation of a -public street by the city council, the whole of which street was dedicated out of the property of the grahtors of the abutting property holders on the west side, the abutting property holders on the east side, whose grantors contributed no property to the original dedication, are entitled to an easement only in the vacated street. The fee of such vacated street subject to such easement is in the abutting property holders who are the grantees of the original grantor who dedicated the street.</p>

<p>DISTRIBUTION AMONG OTHER. THAN LINEAL DESCENDANTS.</p> <p>Inheritance Passing to Nephews and Nieces and Children of Deceased Nephews and Nieces — How 'They Take under the Ohio Law.</p> <p>1. A testator who provides’ “all the remainder of my estate I desire shall descend and pass according to the laws of inheritance of the state of Ohio;” intends that the residue of his estate shall be distributed the same as the property of an intestate would be distributed.</p> <p>2. Where such testator left surviving him two nephews and one niece and children of two other nieces, the residue of his estate will be divided in five parts of which the two nephews and the niece will each get one-fifth, and each set of children of the deceased nieces one-fifth to be equally divided among them.</p>

<p>EMBODYING IN PETITION COPY OF INSTRUMENT SUED ON.</p> <p>Pleading — Setting Out in Haec Verba the Instrument Won Which Claim „ is Made — Sections 11333, 11334 and 11305.</p> <p>In an action for recovery of tbe amount due on a promissory note, a motion does not lie to strike from tbe petition tbe written guaranty by tbe defendant of payment of tbe note forming tbe basis of tbe claim.</p>

<p>WORK HOURS FOR. FEMALE EMPLOYES IN A CANDY FACTORY.</p> <p>Appearance — Criminal Law — WorJc and Lahor — Service on Corporations in Criminal Proceedings — iEmployment of Females in Candy Factories — Sections 1008 and 13607.</p> <p>1. The inhibition of General Code, 1008, against the employment of females over eighteen years of age more than ten hours a day or fifty-four hours a week, except in canneries or establishments engaged in the preparation for use of perishable goods, applies to candy factories.</p> <p>2. In candy factories there can be no work performed overtime except to prevent the goods from perishing. The fact that goods could not be prepared in summer so that the factory was compelled to work overtime in the fall to prepare goods for the holiday trade is no defense.</p> <p>3. In a criminal or quasi criminal proceeding the only way service can be obtained upon a corporation is by issuing and serving a summons on one of its officers as provided in eases of indictment. General Code, 13607.</p> <p>4. If the president of the corporation is arrested on a cpmplaint against a corporation for violation of a penal statute, and if the corporation thereafter files a motion to quash on grounds other than that of lack of jurisdiction of the person, this is a voluntary appearance of the corporation and the justice has jurisdition. A motion to quash because the justice has no jurisdiction of the person of the defendant and of. the subject-matter is an appearance, though the defendant states it appears solely for the purpose of the motion.</p>

<p>MEASURE OF A WIDOW’S LIFE ESTATE.</p> <p>Wills — Power of a Widow to Sell Limited to Her Needs — Distribution of the Vested Remainder, where Devises Are Made in Sueeession to Various Persons and Objects. %</p> <p>1. The estate devised by the testator to his widow in this case, while it might under some circumstances' amount to more than a life estate in value, is less than a life estate as that term is ordinarily understood, inasmuch as the broad power and discretion confided in her to sell and use, is subject to the limitation that the income if sufficient, and proceeds from sales if necessary, can be used only for her own comfort, convenience and benefit, and neither the income nor principal can be used -in building up a separate estate, the legatees having a vested remainder in so much of the estate as remains unconsumed at the death of the widow.</p> <p>2. Lines drawn through the clause of a will, by express direction of the testator, for the purpose of cancelling such clause, and done before the same is signed, render such clause ineffective, and it is no part of the will of the testator.</p> <p>3. A board of education is authorized to accept a bequest to be used in the erection and maintenance of a building to be used jointly for a public library and Young Men’s Christian Association.</p>

<p>PROVING CORPUS DELICTI BY CIRCUMSTANTIAL EVIDENCE.</p> <p>Bribery — Necessity of Relying on Acts Performed or Declarations Made a Sufficient Reason for Varying the Order of Evidence Offered by the State.</p> <p>In a trial for bribery the court may properly determine the order of proof. In a case where the corpus delicti or the body of the crime can not be directly established, except by gradual building up of the structure by proof of a general conspiracy which tends to establish it, the court may within its discretion permit the proof of the alleged general conspiracy in the order of its alleged steps tending to prove the body of the crime.</p>

<p>QUESTIONS PERTAINING TO THE WORKMEN’S COMPENSATION ACT.</p> <p>Negligence — Joinder of Defendants Charged with a Joint Duty Toward Employe — To Whom the Workmens' Compensation Act Extends— Wife Can Not Recover for Services in Nursing Injured Husband —But is Entitled to Damages for Loss of Consortium.</p> <p>1. Where a petition alleges that two or more defendants were charged with a joint duty toward an employe; that they were guilty of a negligent breach of such joint duty, and they by reason of their . negligence said employe was injured, they are properly joined as defendants although the negligence of one was nearer in point of time to the injury than the negligence of the other.</p> <p>2. The provisions of the Workmens’ Compensation Act (General Code of Ohio, Sections 1465-37, et seq.), do not extend to any one save the injured workman himself, or his personal representative in the event of his death.</p> <p>3. A wife can not recover, from one whose negligence caused her husband’s injury, for loss of wages due to the fact that she gave up her separate employment to nurse him.</p> <p>4. A wife may recover damages from one whose negligence caused the injury to her husband and thus deprived her of his consortium.</p>

<p>SUFFICIENCY OF THE LIQUOR. LICENSING ACT.</p> <p>Constitutional Law — Policy of the State With Reference to the Liquor Traffic — Not Changed by. Recent Constitutional Amendment— , Validity of the Liquor Licensing Law^-103 O. L., 216.</p> <p>1. The amendment of 1912 to the state Constitution, providing for licensing of the traffic in intoxicating liquors, does not change the policy of the state from that which obtained under the Constitution of 1861 by placing the said traffic upon the same basis as other lines of business; but on the contrary further burdens and restrictions are imposed upon the said traffic by this amendment and the number of persons who may be engaged therein is limited.</p> <p>2. The prohibition by a state in a. proper exercise of its police power of any business, calling or occupation which affects injuriously the health, good morals, peace or safety of society, is not in conflict with the Fourteenth Amendment tó the federal Constitution.</p> <p>3. The provisions of the liquor license law (103 O. L., 216), requiring that applicants for licenses shall be of good moral character, permitting the granting of licenses to corporations, limiting the number of saloons to one for each five hundred inhabitants, and giving preference to those engaged in the traffic prior to May, 1912, are not in contravention with the state Constitution; nor is there a grant of legislative power in the provision which invests licensing boards with authority to pass upon the moral character of applicants for licenses to traffic in intoxicating liquors.</p>

<p>COMPLETION OF A STATE ARMORY BY THE SURETY OF THE CONTRACTOR.</p> <p>Sovereignty of the State Waived in a Civil Proceeding, When— Mechanic’s Lien Void as Against Property of the State — Rights of a Surety Who Completes Work Abandoned by a Contractor — Sections 5257, et seq.</p> <p>1. Where a state goes into court to ask-protection as to claims which are being asserted against its property, the immunity of a sovereign is voluntarily waived.</p> <p>2. A mechanic’s lien filed on property belonging to the state is void, and it follows that a proceeding does not lie to subject funds in the hands of the state to payment of claims for work and material which went into a state building under a contract which was abandoned before completion.</p> <p>3. Where work on a state building is abandoned by the contractor and the contract is completed by his surety, the amount remaining due under the contract is payable to the surety, and can not be reached by creditors of the derelict contractors who hold claims incurred by him for work and material which went into the building.</p>

<p>COMPROMISE AGREEMENT AN ACCOUNT OF INJURIES.</p> <p>Tender — Necessary of Sum Received in Settlement of Claim for Personal Injuries — Before an Action for Such Injuries Can he Maintained.</p> <p>Wliere a compromise settlement has been made between an injured person and the party causing the injuries, the latter denying any liability but expressing a willingness to pay something to get rid of the matter, suit can not afterward be maintained by the injured person for damages on account of alleged negligence in causing the injuries, without first making a tender to the defendant of the amount theretofore received by way of settlement.</p>

<p>TECHNICAL BREACHES OF LEASE NOT WARRANTING A FORFEITURE.</p> <p>Landlord and Tenant — Belief Against Forfeiture of Lease — May be Granted by Court of Equity — Where Not Willful or the Result of Gross Negligence — Construction of Lease with Reference to Erection of a New Building — Failure to Record Assignment of Lease— Insurance Rendered Invalid Thereby.</p> <p>1. Under the lease in question, the obligation on the part of the lessees to erect a new building could arise only in case they should elect to exercise the privilege so to do, and the lessor as a condition precedent should give his written consent thereto; and the right to forfeit the lease for breach of such a condition does not exist, notwithstanding an attempt appears to have been made in a negative clause in a subsequent paragraph of the lease to convert this privilege into a positive duty.</p> <p>2. The breach complained of, in respect to the failure to record the assignment of the lease for a long period after it had been made, was ultimately cured by compliance with the condition of the lease so to do, and the lessor was thus saved from any prejudice resulting therefrom; and where it appears that the lessees and their assigns have paid rent for ten years to the amount of $60,000, together with taxes, assessments and all charges, and have also made improvements on the property to the extent of $10,000 or $12,000, and the lessor has suffered no prejudice from the technical breach of the lease through failure to record an assignment thereof within a reasonable time, the lessees and their assigns will be relieved therefrom.</p> <p>3. So also with reference to a breach of a condition of the lease that the premises shall be kept insured, where it appears that the insurance was rendered invalid for a considerable period through failure to secure the consent of the insurance companies to the assignment which had been made of the lease, relief will be granted to the lessees and their assigns, upon its being shown that the invalidating of the insurance was clearly due to inadvertence and that the premiums on the insurance policies had been regularly paid during the intervening period.</p>

<p>OWNERSHIP OP A CERTIFICATE OF STOCK.</p> <p>Corporations — Certificate Outstanding for Stoclc Shown by Stoclc Ledger to Have Been Canceled — Cancellation Ordered by the Court.</p> <p>1. A sale of shares of capital stock of a bank is valid and binding although the seller retains the certificate of stock and the shares are transferred on the books of the bank without surrender of the certificate and in violation of the by-laws of the bank.</p> <p>2. In an action by the administrator of such seller to recover the value of such shares from the bank, the production of the uncanceled certificate of stock raises a presumption of ownership of the shares by the deceased, but this presumption may be rebutted by proof that the deceased, after the issue to him of the certificate, sold the shares to a third person.</p> <p>3. In such an action, where the. court finds that the deceased sold his shares of stock but failed to deliver the certificate therefor to the purchaser or to surrender it to the bank, but that he never thereafter claimed the shares or demanded any dividends upon them, and that the shares were transferred to the buyer on the books of the bank without surrender of the certificate, and that . thereafter the dividends were collected by the buyer or those deriving title to such shares from him, the court, in accordance with the prayer of the defendant’s cross-petition to that effect, will order such certificate of stock to be delivered up and canceled.</p>

<p>INVALID PROVISIONS OF THE MOTOR. VEHICLE LAW.</p> <p>Constitutional Law — Regulations for the Use of Highways by Motor Vehicles — Fees for Police Surveillance — Excise Tax for Use of Roads.</p> <p>1. Sections 6294 and 3609 (6309) being part of an act to regulate the use of motor vehicles as a police measure are invalid for the reason that the amount of license fee exacted constitutes an attempt to impose a tax for revenue for general state purposes.</p> <p>2. Article II, Section 16, and Article XII, Section 5, of the Constitution, are vital and essential in their provisions as applied to a single legislative enactment which seeks to exercise both the power of police regulation as well as that of taxation for revenue, and when essential to mark off the boundaries of legislative power, should be regarded as mandatory, at least that applying to taxation measures.</p> <p>3. The regulation of motor vehicles by the act in question converts • what would otherwise be a common right into a privilege upon which the Legislature may impose an excise tax for the use of the highways by motor vehicles. Such tax is subject to the limitation that the amount thereof shall be the reasonable value of such use, privilege and enjoyment. A reasonable tax may, therefore, be imposed upon the use of highways by motor vehicles for the repair and maintenance of such highways. The imposition of a tax such as will create a large surplus beyond what is considered to be the reasonable value of the use, privilege and enjoyment of the highways and what should be reasonably contributed by the owners of such vehicles for the repair and maintenance of the highways, so as to raise a fund for the state general revenue and to make up deficiencies arising therein, violates the constitutional provision respecting the quality of protection and benefit to the people.</p>

<p>CONTRACT FOR. SALE OF PROPERTY ALLEGED TO BE HELD UNDER A DEFECTIVE TITLE.</p> <p>Specific Performance — Will Not be Enforced Where Title Has Been Acquired by Adverse Possession — Presumption as to Cancellation of Mortgages Covering Property Sold in Judicial Proceedings — Title Taken by a Trustee Not Necessarily Reduced to a Life Estate by Failure to Include Words of Perpetuity in the Granting arid Habendum Clauses.</p> <p>1. Where the records of a foreclosure suit have been destroyed by fire, riot, or civil commotion, and only the deed of the master commissioner remains, the court will assume that the mortgages involved were ordered canceled or released of record.</p> <p>2. Where the deed of such master commissioner purports to convey all the right, title and interest not only of the mortgagor, but also of all parties to the suit including the mortgagees, no claim or interest remains outstanding in such mortgagees even though their mortgages have not been canceled or released of record</p> <p>3. Where a master commissioner conveys property to the trustee of a building association, “his successors and assigns forever,” equity will decree that the trustee shall take an estate in fee simple if it is necessary for him to take such quantum of estate in order to fully perform the duties of his trust.</p> <p>4. Where the interest of the person whose property is sold at foreclosure sale, is an estate in fee simple, a conveyance by a master commissioner of all the title and interest of such owner and mortgagor would pass an estate in fee simple, even though words of inheritance were not used in the deed.</p> <p>5. A court of equity will not decree specific performance of a contract for the purchase of real estate where the only title that the vendor can convey has been acquired through his adverse possession under a statute of limitations.</p>

<p>AUTHORITY OF COUNCIL TO AUTHORIZE THE BUILDING OF A SPUR. RAILWAY TRACK.</p> <p>Railways — Validity of Ordinance Granting Right to Lay Proposed Tracks Within the Municipal Limits — Sections 8895 to 8902.</p> <p>1. A spur track thirty-two hundred feet long, from which numerous private sidings' will branch off to nearby factories, is not a new line of railway, and authority to authorize the laying of such a track is vested by Section 8902, G. C., in the municipal council.</p> <p>2. The authority of this statute is not limited to the construction of a track to a single “mill, factory or other manufacturing establishment,” but is broad enough to cover the plural of these words and to include streets as well as a single street.</p>

<p>RIGHT TO ADMINISTER. THE ESTATE OF A DECEASED ITALIAN.</p> <p>Estates of Decedents — Claim of Heir of a Deceased Italian to Appointment as Administrator as Against the Italian Consul — Provisions of the Italian and Swedish Treaties.</p> <p>1. Where the applicants for appointment as administrator of the estate of a deceased Italian are the Italian consul on the one hand, and on the other a stranger who is acceptable to ineligible heirs of the decedent who are residents of this country, the choice is entirely a matter of discretion on the part of the probate judge.</p> <p>2. But where an heir of the decedent is eligible to appointment, his claim thereto is superior to that of the Italian consul, and letters must of necessity be issued to him.</p>

<p>DISTRIBUTION OF SURPLUS OF SHEEP FUND.</p> <p>Constitutional Law — Validity of the Statutory Provision for Applying Surplus From, the Sheep Fund to Aid Societies for Prevention of Cruelty.</p> <p>The provision of Section 5653, General Code, for the distribution by the county commissioners of a portion of the surplus from the sheep fund by transferring it to the society for the prevention of cruelty to children and animals, is not an application of public funds for a private purpose, but is within the limitations of the state Constitution in that respect. .</p>

<p>STREET ASSESSMENTS AGAINST INTERURBAN RAILWAY.</p> <p>Interurban Railways — Location of Trades and Street Improvement Assessment on Portion of Highway Annexed to Municipality.</p> <p>The council of the city of Springfield granted an interurban railway company a franchise for the location, construction, maintenance and operation of a line of street railway along and upon certain designated streets of said city, one of which streets extended to the corporation line thereof, with the right to extend said line of railway beyond the corporation limits of said city, providing by the franchise that, whenever the city authorities should order the paving or other improvement of any of said designated streets within the city limits, the cost of such paving -between the rails of the railway track and for the space of eighteen inches immediately outside of such rails should be assessed against said company.</p> <p>Shortly after obtaining this franchise said company procured from the county commissioners of the county within which said city is located a franchise authorizing the company to locate, construct, maintain and operate for the period of thirty years a line of interurban railway in continuation and extension of said line of railway to be so located in said city and connecting therewith at said terminus of the line in said city at said corporation limits, such line o£ railway outside of the city for a specified distance to be located on and occupy a strip of the highway on one side thereof, the highway to be maca'demized and the space between the rails and for eighteen inches outside thereof to be macadamized, bouldered or graveled and kept in good repair by the company.</p> <p>After said railway line had- been constructed and put in operation on said streets in said city and on said portion of the highway outside of the said city, the corporate limits of said city were extended so as to include within the corporation said poi’tion of said highway on which the raiway line had been- constructed under the grant of the said commissioners and to be so improved as above stated, and subsequently the said city ordered the paving of said portion of said highway outside of said city limits and that the cost of such paving between the rails of the said company and the space of eighteen inches outside thereof should be assessed against said company, and was about to take up, remove and relocate the tracks of said company for the purpose of such paving.</p> <p>An injunction was sought by the company to prevent such assessment against it and also to prevent the said city from so taking up, removing and re-locating its tracks. Held:</p> <p>1. An injunction will be granted said company against said city to prevent the assessment of such cost of paving against the com- < pany.</p> <p>2. An injunction to prevent said city from taking up and re-locating the tracks of the company for the purpose of such paving will be refused.</p>

<p>PEDESTRIAN INJURED BY OBSTRUCTION ON SIDEWALK.</p> <p>Municipal Corporations — Not Liable for Obstruction on Sidewalls or Slippery Condition, When — Only Ordinary Care Required,</p> <p>1. A municipal corporation is not liable for an injury caused by a fall upon a sidewalk rendered slippery by a deposit of mud and rock which were washed down upon it from an adjacent hillside during a heavy rain, where it appears that there was no opportunity after the cessation of the rain to remove the deposit.</p> <p>2. The municipality is not required to go outside the line of the street and sidewalk, upon private property, and construct retaining walls or other devices for the purpose of preventing mud and rock from washing down upon the sidewalk. Its duty is to exercise reasonable care to keep the street and walk free from obstructions, which duty is performed when it is reasonably diligent in removing the obstruction after it comes into existence. And this is true even though a similar condition arises after each heavy rainfall.</p>

<p>VALIDITY OF A BOND SIGNED IN BLANK.</p> <p>Sureties — Administrator’s Bond Signed in Blank Enforcible — Tendency of Modern Authority with Reference to Technical Defenses by Sureties.</p> <p>1. One who signs in blank the printed form of an administrator’s bond consents by implication that the blank spaces shall be filled in, and in the absence of fraud he is liable on the instrument so executed.</p> <p>2. A claim of fraud, in securing the signature of the surety on an administrator’s bond, can not be based on the ground that the bond was signed on the representation and in the belief that G was to be appointed administrator, when it appears that the application book in the probate court showed at the time the bond was signed and for sometióle theretofore that it was the wife of G who was seeking appointment to administer the estate.</p>

<p>REINSTATEMENT OF MEMBER. OF A MUTUAL INSURANCE COMPANY.</p> <p>Life Insurance — Conditions for Restoration of Members in Mutual Insurance Companies — Effect of Request of All Parties for an Instructed Verdict.</p> <p>1. When in an action for money only all parties request an instructed verdict, such conduct is a submission of the entire cause, law and fact, to the court; and the court then may on request of all parties dismiss the jury and consider the cause on submission and its finding will take the place of the -verdict of the jury.</p> <p>2. In a mutual insurance company where the board of trustees has power to restore benefits to a member whose policy has been canceled by imposing conditions, and where the condition imposed is that, if such a member pass a successful medical examination— Now if such a member under orders from such a board both to him and the company’s regular medical examiner pass such an examination in the opinion of that physician, and the report of such examination is sent to the board — that member is at once reinstated, and it is not necessary for any further action by that board in the absence of any direct stipulation to the contrary.</p> <p>3. The general powers of an afficer of a mutual insurance company will not give him the power to perform any act hostile to one or more of its members requiring discretion; and when such a company reserves the right to adopt either of two methods to replenish its mortuary fund such power is in its board of trustees and can not be delegated.</p>

<p>LEAD POISONING A “ PERSONAL INJURY.”</p> <p>Negligence — Employee Suffers From Lead Poisoning — Adequate Warning Required From Employer as to the Danger of Uncleanness- — Personal Injuries Includes Occupational Diseases Under the Workmen’s Compensation Act.</p> <p>1. Where an employee is put to work with white lead or other material, under circumstances where his health may be endangered through failure to exercise the most unremitting care in removing from his clothing, hair and skin the minute particles of poisonous dust which are found in the atmosphere where such material is used, the law will not permit the employer to rest secure under the assumption that such employee will take such precautions but requires him to give such employee adequate warning of the danger.</p> <p>2. The expression “personal injuries,” as used in the workmen's compensation act of this state, includes occupational diseases contracted in the course of employment.</p>

<p>AWARD OF CONTRACT FOR A BRIDGE SUPERSTRUCTURE.</p> <p>Bridges — Procedure of County Commissioners in Awarding the Contract for a Bridge Superstructure — Construction of Statutory Provisions — Sections 2344, 2345 and 2350.</p> <p>1. A bidder for a bridge superstructure is not limited to a bridge of the exact length specified by the preliminary resolution of the county commissioners; and the principle of competitive bidding was not destroyed by the award of the contract, in the case under consideration, to a bidder whose plans provide for a bridge 4.8 feet shorter than the 751 foot structure called for in the preliminary resolution.</p> <p>2. The functions of the joint committee, composed of the three county commissioners, the county auditor and the county surveyor, are properly exercised when consideration is given to the plans of all the bidders, including those whose plans differ from the one proposed in the preliminary resolution.</p> <p>3. Failure to award a contract on the day the bids were opened does not deprive the commissioners of jurisdiction, but they may adjourn from day to day for further consideration of the plans submitted and for the hearing of engineers and experts thereon before making the award.</p> <p>4. The discretion of a hoard of county commissioners must be regarded as fairly exercised, when it appears that the several plans and bids for the work in hand were carefully considered at several different meetings of the board and that outside expert advice was sought in addition to that of a competent county engineer.</p>

<p>QUESTIONS GROWING OUT OF COLLISION OF STREET CAR. WITH VEHICLE.</p> <p>Negligence — Status Where Last Chance is Not Alleged But May Have Been Raised by the Evidence — Trial of a Cause in Absence of the Pleadings — Discretion in Permitting an Amended Reply to be Piled —Charge of Court — Verdict Treated as Excessive in View of Weight of the Evidence.</p> <p>1. Failure to read the pleadings to the jury or to send the originals or copies thereof to their room when they retired for deliberation, does not constitute error where the issues were correctly stated in the charge of the court.</p> <p>2. It is within the sound discretion of the court to permit an amended reply to be filed at any stage of the proceedings, and where such reply merely traversed averments of the answer setting up contributory negligence the claim can not be made that the defendant was taken by surprise.</p> <p>3. In an action against a traction company, for damages on account of the striking by one of the defendant’s cars of the vehicle which the defendant was driving, it is not error on cross-examination of the motorman to permit him to testify as to the equipment of his car and the kind of brake employed thereon.</p> <p>4. Notwithstanding the inference from a statement in the Brandon case, 87 Ohio State, 187, that the doctrine of last chance may be made applicable to a case by the evidence, it is nevertheless probably error to charge on the subject of last chance, where it is not made applicable by any allegation of the petition and there is nothing to indicate that he was in a place of danger except that he was crossing the track of a street railway.</p> <p>5. A verdict of $7,000 for permanent injuries to a driver fifty-one years of age is excessive, where the injuries do not unfit him for the work he has been accustomed to perform, and the testimony is of such a character as to present a close question as to the liability of the defendant.</p>

<p>THE AWARDING OF PUBLIC CONTRACTS.</p> <p>Official Discretion — Will Not be Interfered, with by the Courts, Unless — Split Contracts — Sax-Payer’s Suit to Enjoin an Award.</p> <p>1. To entitle a plaintiff to a temporary injunction it must appear that the facts stated in- the petition are such as to entitle him to a permanent injunction, provided the facts pleaded are established by the evidence to be subsequently submitted.</p> <p>2. Official discretion will be interfered with by the courts only where it is apparent that the official clothed with such discretionary power has so acted that his action amounts to a fraud upon the public whom he serves.'</p> <p>3. A tax-payer who is evidently only a figure-head for an unsuccessful bidder will not be heard to complain, where he rests his claim for relief upon the fact that the officer awarding the contract exceeded his authority in splitting it up among four persons against only one of whom is relief sought.</p>

<p>CHARGE OF COURT WITH REFERENCE TO NEGLIGENCE.</p> <p>Negligence — Burden Always Upon Plaintiff to Avoid or Rebut the Issue of His Own Negligence, Either Sole or Contributory — Charge of Court.</p> <p>1. When a plaintiff brings an action for damages because of the alleged fault — negligence—of the defendant he must always be ready to meet as his issue his own fault, either as the sole proximate cause, or as one of two proximate causes, concurrent and contemporaneous, i. e., controbutory negligence. The burden of avoiding such negligences is upon the plaintiff.</p> <p>2. When a defendant sets up contributory negligence, he admits his own negligence and seeks to avoid its consequences because the plaintiff too was at fault. The -burden of asserting this contributory negligence is upon the defendant.</p> <p>3. Thus in such actions it is always proper for a eourt to say to the jury, “If both were at fault, the plaintiff can not recover.”</p>

<p>RIGHTS OF A REJECTED APPLICANT FOR. A LIQUOR LICENSE.</p> <p>Intoxicating Liquors — Applicant for License Rejected Because Quota Full-rEntitled to a Hearing, When — Mandamus to Compel Granting of Hearing — Registration of Protest.</p> <p>1. Where there are more applications made for liquor licenses than there are licenses to be granted,’and the only reason for the rejection of a certain application is that the constitutional quota has already been filled, the endorsement of “full quota” on the application is a sufficient statement of the reason for rejection, within the meaning of Section 28 of the liquor license code.</p> <p>2. Where an applicant possesses all the qualifications required by law for obtaining a liquor license, and his application is rejected for the sole reason that the quota is full, such rejected applicant is entitled to a hearing by the county licensing board, the same as an applicant rejected for any other reason, as provided in Section 29 of said code.</p> <p>3. Where such rejected applicant has been denied a hearing by the county board, and thereupon makes application promptly to a court, prior to the fourth Monday in November, for a writ of mandamus, a peremptory writ will be granted, even after licenses have been issued, to compel the board to grant such rejected applicant a hearing as provided by law.</p> <p>4. An applicant is as much a citizen after his application is rejected as he was before, and as such has a right to register protests, not only against the granting of applications for licenses but also in favor of the revocation of licenses already' granted, and when a county board refuses him leave to register such protests mandamus will lie to compel it to do, so. ,</p>

<p>OCCUPATION OF STREET BY RAILWAY TRACKS.</p> <p>Ordinance — Validity of, Where Granting the Bight to Lay Five Bailway Tracts Across a Public . Street — Depends Upon the Beasonableness of Such Vse of the Street, Which is a Question of Fact — Bestoration of Street to Former Condition.</p> <p>1. In an action by a municipality to enjoin a railway company from laying additional tracks across a certain street, and to compel the railway company to restore the street to the condition which it was in before the existing tracks were laid, an answer by the railway company alleging that it has complied with the terms of a certain ordinance, which grants the right to lay the proposed tracks, raises an issue of fact as to such compliance which can only be determined upon a full hearing, and even a showing that the street has riot been restored to its former condition would not necessarily render the ordinance inoperative.</p> <p>2. A court can not declare that the laying of five railway tracks in the street constitutes an unreasonable and unwarranted disregard of the rights of the public in the street and therefore should be enjoined, but the question is one of fact which must be determined from all the circumstances in the case.</p>

<p>VALIDITY OF THE ACT LICENSING TRAFFIC IN INTOXICATING LIQUOR.S.</p> <p>Constitutional Law — Section 9 of Article XV of the State Constitution Not in Conflict with the Fourteenth Amendment of the Federal Constitution — Policy of Ohio Legislation with Reference to Traffic in Intoxicating Liquors.</p> <p>1. The effect of the state constitutional amendment of September 3, 1912, is not to relieve the business of trafficking in intoxicating licpiors from any of the burdens theretofore placed upon it, nor does it place this traffic upon the same footing as other callings and occupations, but on the contrary further restrictions and burdens were placed upon the business with a limitation on the number and class of persons who may be engaged therein.</p> <p>2. Neither is said amendment, nor the act of the Legislature passed in pursuance thereof, in derogation of the Fourteenth Amendment of the Federal Constitution.</p>

<p>INVALID SERVICE BY PINNING SUMMONS ON BACK DOOR. OF RESIDENCE.</p> <p>Service of Summons — What is Meant by Leaving Copy at Usual Place of Residence — Section 10237.</p> <p>Service of summons to be in conformity with the Ohio statute must be made under such circumstances and be of such a character that it may fairly be presumed the defendant received it. This requires, where the service is not personal, that a copy of the summons with all the endorsements thereon be either pushed under the front door of the defendant’s residence, or dropped into an aperture in the front door for the reception of mail, so that it may be said the summons was left within the dwelling; or if it be delivered to some member of the defendant’s family, the one receiving it must be of such age and discretion and must bear such relation to the defendant that it may fairly be presumed he received it, and delivery so made to a member of the family must be at a door of the defendant’s residence or on a porch thereof.</p>

<p>VALIDITY OF NON-COMPETITIVE EXAMINATION PARAGRAPHS , OF THE CIVIL SERVICE LAW.</p> <p>Constitutional Law — Non-competitive Examinations Under the Civil Service Law — Not a Provision for Exercise of the Appointing Power —Nor is there a Privileged Class Created — -Equal Protection and Uniform Operation of Laws — Section 486-10, General Code.</p> <p>1. The last paragraph of Section 10 of the civil service act of May 10th, 1913 (103 Ohio Laws, 898, 703) is not repugnant to the Constitution of the state as an exercise of the appointing power (Article II, Section 27); nor does it violate the constitutional requirement that all laws of a general nature shall have a uniform operation throughout the state. (Article II, Section 26.)</p> <p>2. The last paragraph of Section 10 of the civil service act of May 10th, 1913 (103 Ohio Laws, 698, 703), which continues in service incumbents who have not been appointed under previous civil service laws, conditioned upon their passing non-competitive examinations, is not in violation of Section 10, Article XV of the Constitution of Ohio, which provides for the establishment of civil service in this state, nor is it obnoxious to the constitutional principle which forbids the creation of a privileged class and the denial of the equal protection of the law.</p>

<p>CHANGE IN CONDITION OF TESTATOR’S PROPERTY SUBSE- „ QUENT TO EXECUTION OF WILL.</p> <p>Wills — Distribution of Proceeds from Real Estate — Devised and then Sold by Testator — Will Speaks as of Date of Death of the Testator.</p> <p>1. Upon the sale by a testator of devised real estate, the proceeds thereof will not he substituted for' such real estate, unless expressly directed by the terms of'the will.</p> <p>2. A will speaks as of the date of the death of the testator, and a bequest to one of “all my personal estate left after my just debts and funeral expenses are paid,” passes to such person all of the personal estate of the testator, notwithstanding a large portion thereof is money derived from the sale of real estate, by testator, subsequent to the execution of the will.</p>

<p>RIGHTS OF EMPLOYER. AND EMPLOYEES DURING A STRIKE OR. LOCKOUT.</p> <p>Strikes — Combinations of Workingmen and the Means They May Use in Enforcing Their Demands — Picketing, Persuasion, and the Maintaining of Patrols in Front of the Employer’s Premises — Injunction Against Interference by Strikers — Parties to such a Proceeding.</p> <p>1. The right of workmen to combine for their mutual benefit, and to quit work individually or in a body, provided such action is unattended by violence, destruction of property, or other interference with the rights of employers, is well-established;, but this right is reciprocal, so that the employer may iikewise discharge any or all of his employees, and, under ordinary circumstances, the court will not inquire into the reason for his action.</p> <p>2. The employer has a right to determine in what manner his work shall be done, and to determine what kind of work each employee shall be required to do; and the employee or the organization of which he may be a member is not permitted to stipulate to the employer what particular portion of work shall be done by any one employee.</p> <p>3. In the event of a strike by the employees, or of a lockout by the employer, such means may be employed to render the s'trike or lockout effective as are not in themselves unlawful or inconsistent with the rights of others. The former employees may meet new employees, so long as the latter are willing to be approached, and discuss with them the questions involved, and persuade them, if possible, to leave their new employment, provided that in so doing they violate no property rights and induce no breaches of contract; but the use of force, violence or intimidation is under no circumstances permissible, however lawful the strike may be.</p> <p>4. The stationing of “pickets” near the premises of the employer is permissible so long as it is done for the mere purpose of observing what is, going on, and obtaining such information as strikers are entitled to, or for the purpose of endeavoring to persuade, by orderly and peaceful methods, those who are willing to listen; but the keeping of patrols in front of, or about the premises of the employer, accompanied by disorder or violence, or any manner of coercion or intimidation, to prevent others from entering into or remaining in his service, or the approaching of those who do not desire to confer with them, is unlawful; and if the purpose is to procure workmen to break contracts of employment, it will not be lawful even though conducted in a peaceable manner.</p> <p>5. A court of equity has no criminal jurisdiction, nor will it ordinarily interpose by injunction to prevent the commission of a crime. But where there is interference with property rights and where the continuance of such interference will result in irreparable damage or a multiplicity of suits, a court of equity will intervene by injunctive process, and its jurisdiction is not destroyed by the fact that if the threatened offenses were committed they would amount to violations of 'the criminal law.</p> <p>6. An equitable action for.an injunction is a proceeding in personam, and the court will not ordinarily enjoin those who are not made parties to the suit. This is particularly true where the names of all those whom plaintiff desires to reach are in its possession, and where they may be made parties by either a supplemental petition or a proper entry.</p>

<p>MAKING A RESIDENCE DISTRICT “ DRY ” BY PETITION.</p> <p>Intoxicating Liquors — Local Option in Residence Districts in Municipal Corporations — Making Territory “Dry" by Petition — Technical Irregularities — Description and Map of the Territory Proposed— Sections Ulfi et seq.</p> <p>1. Where a petition to prohibit the sale of intoxicating liquors in a clearly residence district within a municipality, signed by a majority of the legal voters of such district, is declared insufficient because of errors or irregularities of a technical character, another petition covering the same and additional contiguous territory may be filed without waiting until two years have elapsed; and it is probable that a second petition could be filed at any time during the two year period in a case where th’e first- petition was declared insufficient for lack of the requisite number of legal signatures.</p> <p>2. If a petition appears on its face to contain the requisite number of legal signatures, the prima facie thus afforded of its sufficiency in that respect must be rebutted or overcome by the contestants or objection thereto on that ground will not lie.</p> <p>3. - The territory included in the petition must be accurately described by existing well known lines’ or by lines which can be easily ascertained, in order that criminal jurisdiction may be established in the event the petition is declared sufficient; but the map need not be mathematically accurate and is not open to objection if it shows substantially the territory covered and the saloons to be affected should the district be declared "dry.”</p> <p>4. The word “block” as used in Section 6069, General Code, means "the territory bounded by four well recognized adjacent streets in a residence district,” and where it is shown that one of the streets which it is claimed bounds a block has been abandoned, objection does not lie.</p>

<p>SALEfOF REAL ESTATE®BY A CORPORATION.</p> <p>Corporations — Binding Character of Agreement Sanctioned -Toy all the Stockholders for Sale of Realty — Finding as to Whether a Transaction Was a Loan or a Sale Outright — Estoppel.</p> <p>1. The validity of proceedings in connection with a sale of real estate by a corporation can not be thereafter questioned by the corporation on the ground of insufficient compliance with the statute, where all the stockholders sanctioned the making of the sale at the time it was made and at the price which was received, and the transaction was thereupon effected by the board of directors in accordance with the action of the stockholders.</p> <p>2. The court finds from the evidence and all the circumstances surrounding the transaction, that the agreement entered into between the parties to this case, involving the Harrison Building in Columbus at a valuation of $225,000, was a sale of the property, and was ' not a loan for that amount.</p>

<p>VALIDITY OF CIVIL SERVICE LAW IN ITS GENERAL FEATURES. •</p> <p>Constitutional Law — Civil Service Act Valid in Its General and Dominant Feature — Delegation of Power in Administrative Matters— Statp Commission May Investigate a Mayor with Reference to His Conduct in Civil Service Matters — Injunction the Proper Remedy Against Improper Exercise of Power by a Public Official.</p> <p>1. Injunction is the proper remedy against a public officer who assumes or threatens to exercise power not conferred upon him by law or conferred by an invalid statute, where such action will result in serious injury to a private citizen.</p> <p>2. Power is conferred upon the state civil service commission to investigate the mayor of a city with reference to the enforcement by him of the civil service law and the rules prescribed thereunder; and-the power of investigation is, in time, co-extensive with the taking effect of the act.</p> <p>3. The provision of the civil service act which empowers the commission to prescribe, amend and enforce rulés for carrying the act into effect, which rules have the force and effect of law, is not a delegation of the power to make laws, but of administrative powers and' duties for the making of this particular act effective.</p> <p>4. Authority to declare that in certain cases, where qualifications of a scientific or professional character are required, competitive examinations may he omitted and the position filled in the manner therein designated, does not invest the commission with arbitrary or uncontrolled discretion, but directs the method of procedure where the condition described is ascertained to exist, and is in no way a grant of the power, exclusive in the General Assembly, to suspend law.</p> <p>5. The authority granted by Sections 20, 21 and 28 to fix rules, duties, compensation of assistants, and penalty for violations, do not, if invalid, affect the constitutionality of the act in its general and dominant provisions, and in no way affect rights involved in an investigation by the commission.</p> <p>6. Tlie provisions of this act do not violate the Fourteenth Amendment of the Constitution of the. United States by denying the equal protection of the law.</p>

<p>ALIENATION OF HUSBAND’S AFFECTIONS.</p> <p>Husband and Wife — Abandonment of Wife Not Necessary to Entitle Her to'Maintain an Action for Alienation of Her Husband’s Affections. .</p> <p>An action may he maintained by a wife against another woman for the alienation of, her husband’s affections, without proof of actual separation, if it be shown that there has been a loss of the consortium.</p>

<p>DISCHARGE OF A DEFENDANT FOR. FAILURE TO PROSECUTE.</p> <p>Criminal Law — Right of a Defendant to a Speedy Trial — Attitude of the Ohio Courts With Reference Thereto — Constitutional and Statutory Provisions.</p> <p>1. After the lapse of three or more terms of court from the return of an indictment it is a matter of discretion on the part of the trial judge whether a motion to be discharged for failure to prosecute shall be granted.</p> <p>2. The only grounds under the statutes and the decision of the Supreme Court in Ex Parte McGehan, which justify a continuance of a case to the next term, is the absence of material evidence to procure which the state has exercised reasonable efforts, and a showing that there is just ground for believing that such evidence can 'be procured at the next term of court.</p>

<p>FUNCTION OF THE TRIAL JUDGE WHERE THE FACTS ARE CONCEDED.</p> <p>Determination of the Legal Sufficiency of the Facts Presented — Is a Function of the Judge and Not of the Jury — Judgment Granted, on the Petition and Opening Statement of Plaintiffs Counsel to the Jury.</p> <p>1. A motion by a defendant for judgment on the petition and the opening statement made to-the jury on behalf of the plaintiff, lies where it appears from the petition and the statement of counsel that the plaintiff left his seat in the car nearly a square distant from the point where he expected to alight, and took his stand on the run'ning-board and looking backwards instead of forward, was struck and injured by a wagon which was in full view and an obvious danger, and which the car passed while running at its usual rate of speed.</p> <p>2. An application for leave to amend a petition made during pendency of motion for non-suit, will be denied, where it appears that nothing could be stated by the plaintiff which would disclose a right of recovery.</p>

<p>DAMAGE TO PROPERTY FROM ESCAPE OF CONTENTS OF A VAULT.</p> <p>Nuisance — Damage to Property and Loss of Use Thereof from Escape of Contents of Vault — Right of Action Abates on Death of the Owner.</p> <p>1. An action by a property owner against the owner of adjoining property, for damages to real property and for loss of use of property, arising out of the overflow and seepage of filth from a vault or privy maintained upon the latter’s premises, is an action for damages for a nuisance and not an action for damages for trespass.</p> <p>2. Such an action falls within the provisions of Section 11397 of the General Code, and abates by the death of the owner upon whose premises the vault was maintained and during whose lifetime the damage complained of were suffered.</p> <p>3. A cause of action for a nuisance existing against the owner of real property, abates upon.his death, the same as if an action thereon was pending at the time of his death, and such cause of action can not be asserted in an action brought after his death against his estate.</p>

<p>PROSECUTING WITNESS INCORRECTLY NAMED.</p> <p>Criminal Law — Plea in Abatement Comes too Late, When — Misnomer of Prosecuting Witness — Idem Sonana.</p> <p>A plea of abatement must be made prior to the plea of not guilty, and where it is discovered during the taking of testimony that the prosecuting witness has been incorrectly named in the indictment it is too late to interpose a plea of abatement.</p>

<p>BOY STRUCK BY AUTOMOBILE.</p> <p>Negligence — Boy Drops off Rear of Wagon and is Struck by Automobile Following — Owner of Machine Not Liable.</p> <p>The owner of an automobile, operated at reasonable speed and attempting to pass around a slowly moving wagon, is not liable for striking a boy, who with other children was clinging to the wagon and who dropped off after the horn on the automobile had sounded and he had looked around and observed its approach.</p>

<p>CONSTRUCTION OF CIVIL SERVICE PROVISIONS.</p> <p>Civil Service — Went Into Effect, as to Incumbents of Certain Offices, When — Incumbents Whose Statutory Terms Expired December 31, 1913, Not Continued in Office.</p> <p>1. The civil service act of May 10th, 1913 (103 Ohio Laws, 698), in so far as it relates to incumbents of offices and places mentioned in the third paragraph of Section 10 thereof, went into effect January 1st, 1914.</p> <p>2. The terms of such public offices and positions as are fixed by statute, remain unchanged by the civil service act of May 10th, 1913, and an incumbent on January 1st, 1914, of such office or position, while protected from removal, suspension, reduction or transfer except for cause as therein provided, is not thereby given a new term of office, nor is his existing term thereby lengthened or extended.</p> <p>3. Incumbents of offices and positions whose statutory terms expired December 31st, 1913, are not continued in office or position thereafter by the civil service act aforesaid.</p>

<p>SURETIES RELEASED BY ACTION PREJUDICIAL TO THEIR. RIGHTS.</p> <p>Sureties on Injunction Bond — Released by Release of Levy — Depriving Them, of Their Remedy by Subrogation.</p> <p>Where further proceedings for recovery on a judgment are enjoined, and the original plaintiff thereafter, without the Knowledge of the sureties on the injunction bond releases the levy by which be had obtained a lien upon a fund, he at the same time releases the sureties from liability to him on the injunction bond by reason of the fact that he has thereby deprived them of their remedy by subrogation against said fund.</p>

<p>DAMAGES FOR. EROSION;OF BANKS OF COUNTY DITCH.</p> <p>Ditches — Dmnages to an Abutting Owner on Account of Erosion of BanTcs of a County Ditch — Basis Upon Such a Recovery May be Had —iIssue Must be Raised Ex Contractu, Not Ex Delicto — Pleading-Torts.</p> <p>1 Where a strip'of ground of specified width and extending through a farm is acquired by the county for ditch purposes, the 'fact that the grantor of the strip covenanted to hold the county “free and harmless from any and all claims to damages to his remaining property resulting from the use to be made of said strip,” does not estop a successor in title from maintaining an action for dam-, ages on account of erosion of the banks of the ditch much beyond the line of the strip of land acquired.</p> <p>2. When the authorities duly constructed a ditch on land acquired for that purpose, and land each side thereof is destroyed by erosion the public is liable if such land has become a part of the ditch— and used as such — but otherwise if such land has been destroyed and not thus used; in the former case it is a taking as under an implied contract; in the latter a destruction ex delicto.</p>

<p>CONDITIONAL ASSIGNMENT OF LIFE INSURANCE.</p> <p>Life Insurance — Unwarranted Steps to Compel Payment of Proceeds of Policy to One Holding a Conditional Assignment — Relief in Equity Denied.</p> <p>1. When a party comes into a court of equity seeking relief which can only be granted by a court of equity it must appear that he has acted equitably with refernece to the matter which he has brought into court; and if he has not, he will be relegated to such remedies as he may have at law.</p> <p>2. Where it appears that the assignee of an insurance policy has by misstatements and unwarranted attacks upon the insurer compelled it to pay the proceeds of the policy into court and to inter-plead several defendants, the assignee can not take advantage of his position and disregard a provision of the policy which would bar him from recovery in a suit against the company itself.</p>

<p>EASEMENT IN HALLWAYS AND TOILET FACILITIES UPHELD.</p> <p>Easements — Nature of and Mode of Creation — Extent to "Which They Will "be Protected — Easement Created "by Mortgage — Common Law Doctrine as to Mortgages Prevails in Ohio — Mortgage Conveys Not Only the Naked Title But Necessary Incidents Thereto — Application of the Rule Where Mortgaged Premises and the Servient Tenement Were Continuously the Property of the Mortgagor — Incorporeal Hereditaments Appurtenant.</p> <p>1. Although a mortgage upon real estate is primarily a security for the payment of a debt or the performance of some other obligation, yet it is, in addition thereto, a conveyance of the estate upon condition, giving to the mortgagee the benefit of the doctrines applicable to bona fide purchasers for value.</p> <p>2. Where an owner of a piece of property erects thereon two houses the first of which is accessible only through the second, the severance of the joint ownership by mortgage of the first will be as> effective to pass the easement to the mortgagee as an absolute conveyance by deed.</p> <p>3. Prior to 1885 H constructed two houses on a lot owned by him. The only means of ingress and egress to one house was through the hallways of the other, and the toilet facilities to be used by the tenants of both were located entirely on the latter premises. In 1885 he mortgaged the former to plaintiff, the premises'remaining in the same condition up to the present time. In 1910 H deeded the latter house to K and shortly thereafter plaintiff foreclosed its mortgage on the other and purchased it at foreclosure sale. K then proceeded to close up the passageways and toilets in her house which had been used by the tenants of plaintiff’s house.</p> <p>Held: That an easement in these privileges, which were continuous, apparent and reasonably necessary to the use and enjoyment of plaintiff’s house, passed to plaintiff by virtue of the mortgage of 1885, and could not be disturbed by defendants.</p>

<p>SOLICITATION OF POLITICAL CONTRIBUTIONS FROM CIVIL SERVICE EMPLOYEES.</p> <p>Criminal Law — Sufficiency of Indictment Charging Solicitation of Political Contributions — Scienter—Wilful Doing and Doing with Knowledge — Construction of the Words “During” and “Concerned.”</p> <p>1. Inasmuch, as the wilful doing of a thing involves doing it with knowledge, it is not necessary that an indictment charging the wilful solicitation of contributions from employees in the classified service of the state should allege the solicitation was done with knowledge that the persons so solicited were in the classified service.</p> <p>2. -An allegation that certain persons were in the employ of the state “during the month of January” will bfe construed to mean that they were so employed throughout the month of January.</p> <p>3. The allegation that the defendants were “concerned” in the solicitation of certain contributions from civil service employees for political purposes, can not be so limited in meaning as to constitute a mere statement that they were interested in or anxious about said contributions, but is a charge that they had a part in and were joint actors in such solicitation.</p>

<p>COMPENSATION TO SHERIFFS FOR. KEEPING AND FEEDING PRISONERS.</p> <p>Construction of the Salary Law — With Reference to Profits Made hy Sheriffs on Suhsistance of Prisoners — Fees, Allowances and Necessary Expenses — Consideration Should he Given to Construction Given these Terms hy Bureaus of the State Executive' Department— Sections 2977, 2997, et seg., 3179 and 2845-6.</p> <p>1. Under the present salary law the sheriff of a county is given by Section 2997, in addition to his salary, the allowance- made to him by the county commissioners for keeping and feeding state prisoners confined in the jail of the county, the expression “actual and necessary expenses” as to which the sheriff must file an itemized account being limited to the expenses particularly referred to in that section. The situation which- is thus presented calls for attention on the part of the Legislature rather than the courts.</p> <p>2. The same immunity from accounting for “fees, allowances and other prequisites” is enjoyed by the sheriff with reference to receipts for keeping and feeding federal and city ■ prisoners, where such prisoners are committed to his custody by federal and city authorities under contracts which prescribe a charge for such service which is not higher than that fixed for state prisoners by Section 2850, General Code.</p>

<p>DEMURRAGE CHARGES FOR. AN UNREASONABLE PERIOD.</p> <p>Railways — Refusal of Consignee to Accept Car Load of Coal — Demur-rage Charges thereon for 8i(oty-eight Days Disallowed.</p> <p>Where a consignee refuses to accept a car load of freight, the railway company must make disposition thereof within a reasonable time, and a demurrage charge on the car so detained can he made only for such reasonable time.</p>

<p>COMPENSATION TO DE JURE OFFICERS.</p> <p>Municipal Corporations — Policemen Wrongfully Dismissed from Force Sue for Recovery of Their Salaries — Payment to a De Facto Officer Bars a De Jury Officer from Recovery — Earnings by De Jure Officer from Other Sources — Estoppel—Res Judicata,</p> <p>1. A decision in a given case is not res judicata in another similar case and does not estop other persons who are similarly situated from presecuting their separate and distinct legal rights.</p> <p>2. Where a de jure officer has been paid the salary attaching to such office, the de jure officer can not enforce payment to him of the amount falling due while he was excluded from the office.</p> <p>3. The general current of authority is to the effect that a de facto officer can not maintain an action for recovery of salary, but where the salary has been paid to the de facto officer the de jure officer may maintain an action for its recovery from him.</p>

<p>WORKMEN’S COMPENSATION ACT WITHOUT EXTRATERRITORIAL EFFECT.</p> <p>Negligence — Liability of Employer Under Action in Tort for Personal Injuries — Arising Outside of the State But in the Course of Employment — Where the Employer Has Paid Into the State Insurance Fund —Application of the Rule of Lex Loci Delicti.</p> <p>Section 21-1 of the workmen’s compensation act of 1911 (102 O. L., 524), has no extra-territorial application; and the provisions thereof depriving an employer of five or more workmen, who has not insured, of the common law defenses can not he invoked hy a workman seeking to recover of his employer damages for injuries sus-tained in the course of the employment in West Virginia, although the contract of employment was made in Ohio where both parties were resident.</p>

<p>WOMEN ELIGIBLE FOR APPOINTMENT AS DEPUTY ASSESSORS.</p> <p>Office and Officer — Deputy Assessors do Not Exercise Independent Public Duties' — Are Controlled by a Superior — And are Not Public Officers —Trend of Public Opinion as to Performance of Publie Duties by Women.</p> <p>A deputy assessor of property for purposes of taxation, appointed under the Warnes law, is not an officer and the position which he holds is not an office within the meaning of the state Constitution; and a woman is therefore eligible to appointment to that position.</p>

<p>RIGHT OF A MORTGAGEE TO EJECT.</p> <p>No Merger of Legal Title in Action on Note or in Foreclosure — -Legal Title in a Mortgagee Distinguished from that in a Grantee — Rights Passing to the Successor in Title...</p> <p>1. All the original rights between mortgagor and mortgagee, in the absence of a stipulation to the contrary, pass to their successors in title, whether the transfer he by deed or not, among which rights is the right to eject on condition broken.</p> <p>2. The action or the right of action on a note secured by a mortgage is merged in the finding of the amount due ip the action to foreclose. But there is no merger of the legal title in the action on the note or in foreclosure.</p>

<p>VALIDITY OF THE OIL INSPECTION STATUTE.</p> <p>Constitutional Law — Changing Conditions Do Not Bender a Statute Invalid — Intent of the Legislature in Providing for Inspection Under the Police Power — Fees for Inspection in Excess of Cost Does Not Bender a Statute Unconstitutional, When — Sections 844, et seq.</p> <p>1. Where conditions so change as to render a law without reason or effect, it is the province of the Legislature to repeal it, rather than for the courts to attempt to strike it from the statute hooks.</p> <p>2. The fact that services under a legislative act-are not performed or are not necessary, hut the fees provided therefor are regularly collected, does not imply a legislative intent to provide a revenue • measure hy indirection, which would not stand the constitutional test were its real purpose disclosed.</p> <p>3. Surplus revenue, derived from inspection under the police power and paid into the state treasury to the credit of the general revenue fund, are not so excessive and disproportionate to the expense involved as to render the measure invalid on that ground alone where the surplus is not more than two or three times the expense incurred.</p>

<p>SERVICE OF SUMMONS AT USUAL PLACE OF RESIDENCE WHEN DEFENDANT IS ABSENT.</p> <p>Action on an Account Contracted by Another than the Defendant — Summons Served at Defendant’s Usual Place of Residence While He Was in Europe — Place of Abode Distinguished from Usual Place of Residence.</p> <p>1. In an action to enjoin levying of execution on a magistrate’s judgment and for the vacation of said judgment, fraud in procuring the judgment is not shown by evidence that plaintiff had denied liability on the account and defendant had charged it to profit and loss, where plaintiff is not able to show that notice had been received by the defendant not to sell any more goods on his account to the party who contracted the debt.</p> <p>2. The fact that the defendant was in Europe at the time the summons was left at his usual place of residence, and as a consequence he was not aware that suit had been brought until judgment had been rendered against him by default, does not constitute an unavoidable casualty or misfortune preventing his mating a defense, nor does it afford ground in equity for setting the judgment aside.</p>

<p>AUTOMOBILES IN COLLISION AT A STREET INTERSECTION.</p> <p>Preferential Rights at Street Crossings — Provisions of the Cleveland Ordinance Relating to Yeldóles at Street Crossings Construed — Common Law Rule Still in Force, When — Recklessness and Disregard of the Rights of Others on the Part of Automobile Drivers a Serious Menace.</p> <p>1. It is negligence per se to drive in a much frequented or built up portion of a city a vehicle that is so covered or constructed or loaded as to prevent the driver having an adequate view of the traffic in the street on both sides of and following his vehicle.</p> <p>2. Where a city ordinance gives to drivers on streets running east and west the right-of-way at street intersections over those on streets running north and south, or vice versa, the right so given is not exclusive but preferential only, and entitles the driver so preferred to cross first only in the event of his having first arrived at the crossing.</p> <p>3. A driver of an automobile so preferred must in all cases give warning of his approach to a street crossing, and must have his car under reasonable and proper control; and the driver of a car on the intersecting street has the right to assume, upon arriving first at the crossing, that the machine which he sees approaching will be so handled that he may cross ahead of it without danger of a collision.</p> <p>4. In the event of doubt as to which car arrived first, the common law doctrine applies, and each driver must use and exercise ordinary and due care to avoid injury to the other.</p> <p>5. Where two machines, running on intersecting streets, attempt to make the crossing at an unlawful rate of speed-and without regard to the rights of others, a claim for damages can not be maintained by either owner for injury to his machine in the resulting collision.</p>

<p>ALLEGATIONS UNDER THE WORKMEN’S COMPENSATION ACT.</p> <p>Pleading-Allegations Under the Workmen’s Compensation Act Which Are Good Against Motion to Strike Out — Section 1465-60.</p> <p>In an action to subject an .employer to the increased liability imposed by Section 1465-60, an allegation that the defendant employs five or more workmen in the same business and has failed to subscribe to the state insurance fund for injured employees,, sets out facts showing that the defendant is subject to the provisions of the workmen’s compensation act and will not be stricken out as irrelevant.</p>

<p>APPEAL UNDER THE WORKMEN’S COMPENSATION ACT.</p> <p>Injured Employee — Dissatisfied with the Allowance Made to Him by the Industrial Commission — May be Without Remedy — No Appeal to the Courts in Buoh Case.</p> <p>1. No right of appeal to the courts is given, under the workmen’s compensation act, to an injured employee who is dissatisfied with the allowance which has been made to him by the industrial commission of Ohio.</p> <p>2. Whether the industrial commission has authority to reopen a case which it has one determined — Qtiaere.</p>

<p>FAILURE OF SERVICE BECAUSE DEFENDANT WAS LIVING ,UNDER. AN ASSUMED NAME.</p> <p>Judgments — Modification Ashed in Divorce Proceeding where Service Was Had by Publication — Failure of Notice Held Due to Fault of the Defendant — Motion to Reopen the Decree Denied — Section 11632.</p> <p>A decree of divorce will not be reopened for the purpose of awarding alimony to the defendant wife, on the ground that there was no service except by publication and she had no knowledge of the pendency of the suit until after the decree had been entered, where it appears that her failure to receive notice and a copy of the petition through the mail was that she was living under an assumed name and was not known under her right name at her place of residence to which the petition and notice were correctly addressed.</p>

<p>ADMINISTRATION OF ESTATE OF A DECEASED SUBJECT OF ITALY.</p> <p>Estates of Decedents — Swedish Treaty Requires Notice to Italian Consul of Death of Italian Subject, When — Right of Consul to Appointment as Administrator Exists, When — Opinion of U. S. Supreme Court Construed.</p> <p>A consular agent of the Kingdom of Italy has neither an exclusive nor a naked right, under treaty stipulations or within the class designated in Section 10617, General 'Code, to appointment as administrator of the estate of an'Italian subject dying intestate in this state, where one of the next of kin is a resident of the state; nor is he entitled to notice of the death of a subject of the King of Italy, unless there are no known heirs in this country and he is himself a resident of the county in which the appointment is to be made or has a representative in such county who has been duly certified to the court.</p>

<p>WHETHER UNABLE TO EARN A LIVELIHOOD A QUESTION FOR. THE JURY.</p> <p>Benefits From a Railway Relief Department — 'Total Inability to Earn a Livelihood Not Restricted to Plaintiff’s Previous Occupation— ' Question of Inability One for the Jury. ^</p> <p>In an action by an injured railway employee for aid from the relief department, under a rule applying to those “totally unable to labor”, or “to earn a livelihood in any employment,” the fact that he had lost his right hand in the service and had been without employment during the period for which' benefits are asked, is sufficient for submission to the jury of the question whether he is able to earn a livelihood in any employment.</p>

<p>PROTECTION OF THE INTERESTS OF ALL IN FIXING FEES.</p> <p>Fees in Receiverships — Allowance of, to an Attorney Will he Determined Upon the Merits of His Glaim-^Notwithstanding Esprit de Corps Prevents Counsel From Objecting to an Allowance.</p> <p>Fees will not be allowed to plaintiff’s counsel out of a fund in the possession of the court unless plaintiff or his counsel have rendered services the effect of which is to conserve or add to such fund. Where plaintiff himself has participated in acts which have diminished that fund no fee will be allowed his counsel therefrom.</p>

<p>CONTINUANCE OF CAUSE AFTER. TRIAL HAS BEGUN.</p> <p>Trial — Custom of Withdrawing a Juror and Continuing Cause Obsolete-Discharge of Entire Jury Proper Method, if Statutory Necessity for Continuance Exists — Sections 11453 and 11454.</p> <p>1. If in a trial, after the jury is sworn, there he a legal reason to continue the case, the entire jury must be discharged, and it is not necessary to first use the fiction of withdrawing a juror.</p> <p>2. Such reason for a continuance can not be based upon the bare request of a party, and does not rest in any discretion of a court, but must be founded upon some statutory necessity or reason.</p>

<p>EVASION OF THE LICENSE STATUTE RELATING TO CHATTEL LOANS.</p> <p>Loans on Chattels or Wages — Application of the Statutory Requirement as to the Licensing of Lenders — Evasion 'of the Statute Held,, to be a Transgression Thereof — Section 6364-1.</p> <p>The loaning of money on chattel or personal property of any kind, without having first obtained a license therefor as provided by statute, is a punishable offense, notwithstanding the paper which was; signed by the borrower and which he was led to believe was a chattel mortgage, was not a mortgage or valid instrument which could be enforced against him.</p>

<p>AS TO APPEAL TO THE COURTS IN CASE OF DISCHARGE OF A CIVIL SERVICE EMPLOYEE.</p> <p>Civil Service — -When Mandamus Lies to Restore a Discharged Employee —Whether Good Faith Was Shown in Investigating the Case and Making the Discharge is the Only Question Which May he Inquired Into.</p> <p>An employee of tire city, in the classified civil service, was removed from his position by the director of public service, who furnished him with a copy of the order of discharge as required by the provisions of Section 17 of the civil service act, wherein was stated ' a legal and sufficient reason for discharge, but the discharged employee brought an action in mandamus wherein he prayed to be restored to bis former position, alleging tbat be bad been discharged for political reasons in violation of tbe provisions of tbe aforesaid section of said act. Held:</p> <p>1. Tbe court bas no power to reinstate tbe relator on tbe ground tbat tbe reason assigned for bis' discharge was untrue or that it bad no existence.</p> <p>2. If, however, it appear clearly from tbe evidence tbat tbe reason assigned for tbe discharge was untrue or bad no existence, and tbat tbe said director knew tbis but nevertheless employed it as a sham or cover for a discharge under tbe form of law, when as matter of fact tbe sole reason for the discharge was political as alleged, then, in tbe absence of any showing tbat tbe relator is otherwise ineligible, tbe court will issue a writ of mandamus to said director commanding bim to reinstate tbe relator in tbe position from which be was so unlawfully removed.</p> <p>3. If it appear tbat tbe director, in making tbe removal for tbe reason stated, acted in good faith, tbe court can not order tbe reinstatement of tbe relator, even tbougb it further appear tbat tbe said director was mistaken as to tbe truth or tbe existence of tbe reasons assigned for tbe removal. .</p> <p>4. For tbe purpose of determining whether or not tbe director acted in good faith, and for that purpose only, tbe court may bear such testimony as is ofiered bearing on tbe truth or falsity of tbe reasons assigned for tbe removal.</p> <p>5. The writ of mandamus can issue to a' public officer only where a clear, legal right in favor of tbe relator and a plain dereliction of dutv on tbe part of tbe officer have been established.</p>