Volume 17 — Ohio Circuit Court Decisions

<p>HOMICIDE — CRIMINAL LAW —TRIAL.</p> <p>1. Misconduct op Counsel for State, Wiiat Not.</p> <p>In a criminal case, where counsel for the state, in his statement of the case under Lan. R. L. 11054 (R. S. 7300), in good faith refers to evidence he expects to offer in support of the charge against the defendant, and it • turns out that such evidence is incompetent, and is not admitted, or offered, and, objection being made at the time, the court overrules the objection, it is not such an abuse of privilege on the part of counsel and discretion in the court as will constitute ground for reversal.</p> <p>2. Failure to Request Court to Charge, Effect of.</p> <p>It is not error for a trial court to omit to instruct the jury on a point of law arising in the case unless counsel request instructions to be given on such point.</p> <p>8. Homicide — Indictment—Two Mortal Wounds, as to Proof.</p> <p>Where in an indictment for murder in the first degree, it is charged that there were two shots fired and two mortal wounds inflicted from which death resulted, the state is not compelled to prove, beyond a reasonable doubt, that either the first or second shot alone produced the death, nor if the death result only from the combined effects or results of both shots, that each of said shots were fired unlawfully.</p> <p>4. Homicide — Self-Defense—Moets v. State, 26 Ohio St. 162, Followed.</p> <p>Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death, er great bodily harm, and that his only means of escape from such danger will be by taking tbe life of bis assailant, although in fact be is mistaken as to tbe existence or imminence of tbe danger. Morts y. State, 26 Ohio St. 162, followed.</p>

<p>Error to Hamilton common pleas court.</p> <p>Tbe storm was an unprecedented one, and beyond human foresight to guard against. The doctrine of vis major applies. Pollock, Torts (6 ed.) 405; Nichols v. Marsland, L. R., 10 Ex. 255.</p> <p>The work was not necessarily dangerous; it was done by an independent contractor, and the owner is not liable. The general rule applies. (Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269]; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. Rep. 618; 76 Am. St. Rep. 365n.]; Jacobs v. Fuller & Hutsinpiller Co. 67 Ohio St. 70 [65 N. E. Rep. 617], have no application:) Cincinnati v. Stone, 5 Ohio St. 38; Lawrence v. Shipman, 39 Conn. 586; Hoff v. Shockley, 122 Iowa 720 [98 N. W. Rep. 573]; Wiese v. Remme, 140 Mo. 289 [41 S. W. Rep. 797]; Mahon v. Burns, 9 Misc. (N. Y.) 223 [29 N. Y. Supp. 682]; affirmed, Mahon v. Burns, 13 Misc. (N. Y.) 19 [34 N. Y. Supp. 91]; O’Connor v. Schnepel, 12 Misc. (N. Y.) 356 [33 N. Y. Supp. 562]; Jefferson v. Jameson, 165 111. 138 [46 N. E. Rep. 272].</p> <p>Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269]; Wertheimer v. Saunders, 95 Wis. 573 [70 N. W. Rep. 824; 37 L. R. A. 146] ; Sultzbacher v. Dickie, 6 Daly (N. Y.) 469; Glickauf v., Maurer, 75 111. 289 [20 Am. Rep. 238].</p>

The general doctrine applicable to this case is founded on the two maxims, “ex dolo malo non oritur actio” and “ in pari delicto melior est conditio melior est conditio defendentis.” State v. Investment Co. 64 Ohio St. 283 [60 N. E. Rep. 220; 52 L. R. A. 530]; Boll v. Baguet, 4 Ohio 400 [22 Am. Dec. 759]; Spurgeon v.McElwain, 6 Ohio 442 [27 Am.

<p>CONTRACTS — -INFANTS.</p> <p>■ Infant Avoiding Contract of Personal Service Can Recover on Quantum Meruit.</p> <p>When a contract to work and labor for a given time has been avoided by the obligor on the ground of his infancy, after part-performance on his part, lie is not precluded thereby from recovering on the quantum meruit, notwithstanding the fact that he discontinued the employment without fault on the part of the obligee.</p>

<p>Error to Sandusky common pleas court.</p> <p>As to the construction, scope and interpretation of Lan. R. L. 875 (R. S. 550). Knaggs’v. Conant, 2 Ohio 26; Clérmont Co. (Comrs.) v. Lytle, 3 Ohio 289; Hunter’s Will, 6 Ohio 499; Bawson v. Boughton, 5 Ohio 328; State v. Winget, 37 Ohio St. 153; Gregory v. Bailway, 4 Ohio St. 675; State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753]; State v. Babbitts, 46 Ohio St. 178 [19 N. E. Rep. 437]; State v. Wolfe, 6 Circ. Dec. 118 (11 R. 591) ; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; Felix v. Griffiths, 56 Ohio St. 39 [45 N. E. Rep. 1092] ; Krause y. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; Fronce y. Nichols, 12 Circ. Dec. 472 (22 R. 539).</p> <p>As to contempt of court and proceedings under Lan. R. L. 9171 (R. S. 5639). State y. Myers, 10 Dee. Re. 238 (19 Bull. 302) ; Steube y. State, 2 Circ. Dec. 216 (3 R. 383); Post y. State, 7 Circ. Dec. 257 (14 R. Ill); Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; Hale v. State, 55 Ohio St. 210 [45 N. E. Rep. 199; 36 L. R. A. 254; 60 Am. St. Rep. 691];" Wallace y. Scoles, 6 Ohio 429.</p> <p>The common law is a part of our law so far as its principles are reasonable and consistent with the letter and spirit of our constitution and suitable to the condition and business of our people, and the .state of our society. 1 Bates’ Digest 407; Gladwell v. Holcomb, 7 Circ. Dec. 369 (14 R. 416) ; Hale y. State, 55 Ohio St. 210, 212 [45 N. E. Rep. 199; 36 L. R. A. 254; 60 Am. St. Rep. 691]. .</p> <p>The statute does not apply to contempt proceedings. 1 Curwen 4 and 5; Swift v. Luce, 27 Me. 285; Pitman y. Flint, 27 Mass. (10 Pick.) 504; cases cited in 1 Curwen 5, note 6; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; 1 Bouvier’s Law Die. (Rawle ed.) 416; Felix, v. Griffiths, 56 Ohio St. 39 [45 N. E. Rep. 1092]; Krause y. Morgan, 53 Ohio St. 26 [4 N. E. Rep. 886]; Fronce y. Nichols, 12 Circ.-Dec. 472 (22 R. 539); also see Hawes, Jurisd. of Courts 102.</p> <p>The rule of court requiring affidavits of bias and prejudice to state the facts is not unauthorized and void and contrary to the provisions of Lan. R. L. 876 (R. S. 550). Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; Hale v. State, 55 Ohio St. 210 [45 N. E. Rep. 199; 36 L. R. A. 254; 60 Am. St. Rep. 691]; Post v. State, 7 Circ. Dee. 257 (14 R. Ill) ; State v. Myers, 10 Dec. Re. 238 (19 Bull. 302); Herndon v. Insurance Go. Ill N. C. 384 [16 S. E. Rep. 465; 18 L. R. A. 547]; Cochran v. Coring, 17 Ohio 409; Kinkead, Practice 147, 148, 150, 179, 189; Barry v. Randolph, 3 Binn. (Pa.) 277; Thompson v. Hatch, 20 Mass. (3 Pick.) 512; 2 Bouvier’s Law Die. (Rawle ed.) 420, 938, 939; Ganz v. Thompson, 11 Ohio St. 579; Wallace v. Scoles, 6 Ohio 429; Ludwig v. Casady, 38 Bull. 250; State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303) ; Kinkead, Code PL Sec. 249; Emporia (City) v. Vdimer, 12 Kan. 622; Territory v. Clancey, 7 N. Mex. 580 [37 Pac. Rep. 1108]; Territory v. Kendall, 7 N. Mex. 580 [37 Pac. Rep. 1108]; Reynolds v. Parkes, 2 Dem. Surr. 399; Anglemyer v. Blackburn, 16 Ind. App. 352 [45 N. E. Rep. 483]; also see general discussion and citation of authorities, 8 Am. & Eng. Enc. Law (2 ed.) 28 to 31; 13 Cent. Dig. 2109 to 2127, inclusive; Wood v. Ward, 1 Dee. Re. 589 [10 W. L. J. 536]; Beveridge v. Hewitt, 8 111. App. 467; Risher v. Thomas, 2 Mo. 98; Matine v. Hunt, 29 Mo. App. 379; Dubbis v. Turner, 4 Yeates 361; Maberry v. Morse, 43 Me. 176; Gist v. Drakely, 2 Gill (Md.) 330 [41 Am. Dec. 426]; Haskins v. Young, 19 N. C. (2 Dev. & Bat.) 527 [31 Am. Dec. 426]; Vaü v. McKernan, 2 Ind. 421; Galloway v. State, 29 Ind. 442; Jeffersonville, M. & I. Ry. v. Avery, 31 Ind. 277; Redman v. State, 28 Ind. 205; Truitt v. Truitt, 38 Ind. 16; Thompson v. Persing, 86 Ind. 303; J ones v. Rittenhouse, 87 Ind. 348; Hoke v. Applegate, 92 Ind. 570; Pratt v. Pratt, 157 Mass. 503 [32 N. E. Rep. 707; 21 L. R. A. 97]; State v. Wolfe, 6 Circ. Dec. 118 (11 R. 591); Bachmann v. Milwaukee, 47 Wis. 435 [2 N. W. Rep. 543]; 22 Am. & Eng. Enc. Law (2 ed.) 690; State v. Shupe, 16 Iowa 36 [85 Am. Dee. 485] ; State v. Winstandley, 151 Ind. 316 [51 N. E. Rep. 92]; Schmidt v. Mitchell, 101 Ky. 570 [41 S. W. Rep. 929; 72 Am. St. Rep. 427].</p> <p>The requirements of this rule of court would not impose upon litigants an impossible thing, in so far as it relates to bias and prejudice, and it is not therefore invalid for this reason.</p> <p>If the statute or the rule or both, require such specific statement of facts constituting bias and prejudice and if they may be complied with, a failure to do so, amounts to a contempt. Penn v. Brewer, 12 Gill & Johns. (Md.) 113; 1 Bacon’s Abridgment (Bouvier ed. 1868) 509; State v. Goff, Wright 78; State v. Coulter, Wright 421; Spinning v. Insurance & Tr. Co. 13 Dec. Re. 206 (2 Disn. 336) ; Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; Steube v. State, 2 Circ. Dee. 216 (3 R. 383); Welch v. Barber, 52 Conn. 147 [52 Am. Rep. 567]; 7 Am. & Eng. Enc. Law (2 ed.) 33, 44, 56; Harrison v. State, 35 Ark. 458; Rapalje, Contempts 15, Sec. 13; Moore v. State, 47 Kan. 772, 777 [28 Pae. Rep. 1072; 17 L. R. A. 714]; 2 L. R. H. L. 361; Middlebrook v. State, 43 Conn. 257 [21 Am. Rep. 650]; Spinning v. Insurance & Tr. Co. 13 Dec. Re. 206 (2 Disn. 336) ; Spears v. New York {Mayor), 87 N. Y. 359; Thompson, Trials 131, 161; 8 Am. & Eng. Enc. Law (2 ed:) 29 and cases there cited.</p> <p>It is a contempt to violate a rule of court. Wallace v. Scoles, 6 Ohio 429; 1 Bacon’s Abridgment (Bouvier ed. 1869) 509.</p> <p>It is disrespectful to the court, under the circumstances of this particular case, to charge one with bias and prejudice. Jones, In re, 103 Cal. 397 [37 Pae. Rep. 385]; 10 Cent. Dig. 2383; 11 Alb. L. J. 408; also see, Pryor, In re 18 Kan. 72 [26 Am. Rep. 747].</p> <p>The presumptions are not all in favor of the persons charged. State v. Woodfin, 5 Ired. Law (N. C.) 199 [42 Am. Dec. 161] ; Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; Post v. State, 7 Circ. Dec. 257 (14 R. Ill) ; State v. Davis, 10 Circ. Dec. 203 (18 R. 479); Brimson v. State, 63 Ohio St. 347 [58 N. E. Rep. 803]; Cuddy, Petitioners, 131 U. S. 280 [9 Sup. Ct. Rep. 703; 33 L. Ed. 154]; Seventy-six Land & Water Co. v. Fresno Co. (Sup. Ct.) 93 Cal. 139 [28. Pac. Rep. 813]; Papke v. Papke, 30 Minn. 260 [15 N. .W. Rep.'117]; Commonwealth v. Newton, 1 Grant Cas. 453; Lewis v. Miller, 21 Miss. 110; People v. Bergen, 6 Hun. (N. Y.) 267; Park v. Park, 80 N. Y. 156; Thompson, Ohio Tr. Ev. Sec. 84, 85, 86, 94, 104; Little Miami By. v. Collett, 6 Ohio St. 182; Whelan v. Kinsley, 26 Ohio St. 131; Wilson v. State, 2 Ohio St. 319; State v. Hutchinson, 55 Ohio St. 573 [45 N. E. Rep. 1043]; State v. Galloway, 45 Tenn. (5 Coldw.) 326 [98 Am. Dee. 404]; Williamson’s Case, 26 Pa. St. 9 [67 Am. Dec. 374]; Rapalje, Contempt 153, 214; Brimson v. State, 63 Ohio St. 347 [58 N. E. Rep. 803] ; Whittem v. State, 36 Ind. 196; 4 Enc. PI & Pr. 814; State v. Tipton, 1 Blackf. (Ind.) 166; 10 Cent. Dig..2571, 2670; Gammon, In re, 69 Cal. 541 [11 Pac. Rep. 240]; Turner v. Commonwealth, 59 Ky. (2 Mete.) 619.</p> <p>Laning R. L. 876 (R. S. 550), does not apply to proceedings in contempt, and the judge cannot be disqualified in contempt proceedings the same as in any case or matter. Bawson v. Boughton, 5 Ohio 328; Hunter’s Will, 6 Ohio 499; Chinn v. Trustees, 32 Ohio St. 236; State v. Bowersock, 1 Circ. Dec. 75 (1 R. 127); Pitts. C. C. & St. L. By. v. Bemis, 64 Ohio St. 24 [59 N. E. Rep. 745]; Rapalje, Contempt Sec. 13.</p> <p>This is not such a proceeding as should have been brought under the provisions of Lan. R. L. 9172, 9173 (R. S; 5640 and 5641), and not under Lan. R. L. 9171 (R. S. 5639). 1 Bouvier’s Law Die. (Rawie eY)</p> <p>420, and cases there cited; Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; Male v. State, 55 Ohio St. 210 [45 N. E. Rep. 199; 36 L. R. A. 254; 60 Am. St. Rep. 691]; State v. Myers, 10 Dec. Re. 238 (19 Bull. 302); 7 Am. & Eng. Ene. Law (2 ed.) 27, 28, 29; Stuart v. People, 4 111. (3 Scam.) 395; People v. Wilson, 64 111. 195 [16 Am. Rep. 528]; Besuden v. Besuden Co. 4 Dee. 144 (3 N. P. 165) ; Post v. State, 7 Circ. Dec. 257 (14 R. Ill) ; Mannberger, In matter of, 10 Cir. Dec. 561 (19 R. 651).</p> <p>Parties cannot conclusively purge themselves of contempt even by filing answers denying acts alleged against them. United States v.' Sweeney, 95 Fed. Rep. 434; Myers v. State, 46 Ohio St. 473 [22 N. E. Rep. 43; 15 Am. St. Rep. 638]; State v. Myers, 10 Dec. Re. 238 (19 Bull. 302) ; Watson v. Bank, 5 S. C. 159; Wartman v. Wartman, Taney C. C. 362 [29 Fed. Cas. 303]; State v. Garland, 25 La. Ann. 532; People v. Freer, 1 Caines 485, 518; Woolley, In re, 2 Ky. (11 Bush) 95; Terry, In re, 36 Fed. Rep. 419; Rapalje, Contempts Secs. 49 and 121, and notes.</p>

The entry directing the payment of jury fees is a final order as defined by Lan. R. L. 10297 (R. S. 6707). A condemnation case under Chap. 8 of the probate code is a special proceeding. Dayton & W. By. v. Marshall, 11 Ohio St. 497. It is the substantial right- of a party to see that the costs of the case are properly taxed Abbey v. Fish, 23 Ohio St. 403, 413. A petition in error must be prosecuted by a part to the record.

Error-to Wood common pleas court. Proof of rape will not sustain a conviction for incest under Lan. R. L. 10731 (R. S. 7019). Laning R. L. 10414 and 10415 (R. S. 6816 and 6817); State v. Jarvis, 20 Ore. 437 [26 Pac. Rep. 302; 23 Am. St. Rep. 141]; Smith v. State, 12 Ohio St. 466 [80 Am. Dec. 355]; Noland v. State, 19 Ohio 131; Allen v. State, 10 Ohio St. 287; Burt v. State, 23 Ohio'St. 394; State v. Thomas, 53 Iowa 214 [4 N. W. Rep. 908]; State v. Ellis, 74 Mo. 385 [41 Am.

<p>STREET RAILWAYS — MUNICIPAL CORPORATIONS — CONSENTS.</p> <p>1. Consents op Abutting Property Owners to Construction op Street Railway.</p> <p>The statutes seem to make a marked distinction between original grants for the construction of new street railways and grants for the extension of the. tracks of old street railways; hence it follows that the abutter has a right to consent, or withhold his consent, either to the construction of a hew railway or to the extension of the tracks of an old railway. If the abutter consent to the construction of a railway, either generally, or specifying some particular individual or corporation who may have his consent to construct, his consent inures to the benefit of the individual or corporation offering to carry passengers at the lowest rate of fare; if he consent to the extension of the tracks of an existing street railway, such consent inures' only to the benefit of the railway specified in his consent. This conclusion is based not only upon said distinction in the statutes, but upon principle.</p> <p>2. Consents to Construction op Street Railway on Pending Application por Grant May Be Considered on Subsequent Application, When.</p> <p>Where consents to the construction of a street railway are given while application for a grant is pending and the municipal authorities are enjoined from making such grant, and thereafter, and within a year, a new application is made for the right to construct a street railway on the same street, which application is granted and an ordinance therefor - passed, such original consents are not functus officio, but may be considered by council as consents to the latter grant, if presented to council as such, it appearing that said abutters had knowledge of the new application and never withdrew their consents.</p> <p>3. Right op Vendee op Abutting Land Under Contract to Convey to Consent.</p> <p>Where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land, which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in said vendee.</p> <p>4. Purchaser op Land Subsequent to Consent by Former Owner Bound Thereby Unless Revoked.</p> <p>Where the owner of land abutting upon a street has consented to the construction of a street railway upon said street, and the title to the land subseguently devolves upon another who has knowledge of said consent, but never revokes it, the latter is bound by the consent.</p> <p>5. Knowledge op Guardian Does not Bind Guardian.</p> <p>The mere knowledge of a guardian that the person from whom his ward derives title has so consented and neglect of the guardian to revoke it, does not bind the ward.</p> <p>6. Consent por Owner by Another Binding ip Intended by Former as Such.</p> <p>A consent signed for the owner by another, whether the name signed be that of the owner or such other, is the consent of the owner, if intended by the owner as such. Such intention may be gathered from authorization previously given by the owner or ratification or adoption after signing</p> <p>7. Agency Must Be Proved if Sufficiency of Consents is Attacked.</p> <p>Where a person signs a consent as agent for another, no presumption in favor of the agency arises from the rule that council is presumed to have acted with sufficient consents before it; and, in an action in which the jurisdiction of council lo grant a street railway frachise is attacked on the ground that it did not have sufficient valid consents before it, such agency must he proved as in other cases.</p> <p>8. Consents Requisite to Give Council Jurisdiction to Grant Street Railway Franchise.</p> <p>The council of a municipal corporation has no jurisdiction to pass an ordinance granting a franchise to construct a street railway in a street of such corporation unless, before the passage of such ordinance, there are produced to council the written consents of the owners of more than one-half of the feet front of the lots and lands abutting upon said street.</p>

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

<p>Appeal.</p> <p>Laning E. L. 5107 (E. S. 3185); Standard Oil Go. v. Sowden, 55 Ohio St. 332 [45 N. E. Eep. 320]; Bulloch v. Horn, 44' Ohio St. 424 [7 N. E. Rep. 737]; Dakin v. Lecklider, 10 Circ. Dec. 308 (19' R. 254); 2 Warvelle, Vendors See. 867; Mutual Aid Bldg. & L. Co. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985]; Fox v. Oldwin, 1 Dayt. 137; Iron Co. v. Murray, 38 Ohio St. 323; Harper v. Bank, 54 Ohio St. 425 [44 N. E. Rep. 97]; Bohn Mfg. Co. v. Eountze, 30 Neb. 719 [46 N. W. Rep. 1123; 12 L. R. A. 33]; Henderson v. Connolly, 123 111.'98 [14 N. E. Rep. 1; 5 Am. St. Rep. 490]; Hill v. Gill, 40 Minn. 441 [42 N. W. Rep. 294]; Moore v. Jackson, 49 Cal. 109.</p> <p>Whether a material man may file a mechanic’s lien against the owner of property for material purchased by a contractor, etc. McCune v. Snider, 9 Circ. Dee. 572 (18 R. 24); Feike v. Railway, 7 Circ. Dec. 652 (14 R. 186); Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]; Mutual Aid Bldg. & L. Assn. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985]; Pinkerton v. LeBeau, 3 S. Dak. 440 [54 N. W. Rep. 97]; McGinnis v. Purrmgton, 43 Conn. 143.</p>

<p>INSURANCE — DEED—TRUST.</p> <p>Trust Deed Will Defeat Insurance Policy Stipulating Against Change of Title.</p> <p>The execution of a trust deed of realty for the purpose of paying off certain mortgage incumbrances, with the understanding that* the residue was to be returned, is a sufficient alienation to avoid a policy of insurance on such property which had, as one of its stipulations, a provision that “This ’ policy shall become void if any change * * * take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein or any part thereof, whether by legal process or judgment or voluntary act of the insured, and the company shall not be liable on the policy.”</p>

<p>APPEAL — AMENDATORY LEGISLATION.</p> <p>1. Appeal Is Continuance oe Original Action — Amendatory Statutes Regulating Appeal Controlled by Dan. R. L. 98 (R. S. 79).</p> <p>An appeal is a continuance of the original action, and, under favor of Lan. R. L. 98 (R. S. 79), statutes relating thereto, in force at the time an action, is commenced, is not affected by subsequent amendatory legislation, unless it is expressly so provided.</p> <p>2. Laning R. L. 8736 (R. S. 5227) Controlled in Operation by Lan. R. L. 98 (R. S. 79).</p> <p>The provision of the amendatory act of March 25, 1902 (95 O. L. 66; Lan. R. L. 8736; R. S. 5227), requiring a party who desires to appeal his cause to the circuit court to file a written notice of such intention within three days after the judgment or order is entered by the trial judge on his docket, does not apply to actions pending at the time of its enactment. The appeal of such actions is governed by the statutes in force at the time of their commencement, ahd not by subsequent amendatory acts passed before judgment is rendered, unless expressly so provided.</p>

“Second. The remaining two-thirds of my estate shall be equally apportioned amongst my children, but shall not be turned over to them, but shall be safely invested for their behoof; and the annual income arising to each child shall be subject to her control, whether married or unmarried, and in no instance shall the husband of any such child have' any power or control over the principal or interest of such share; nevertheless, each of my children shall have full power and…

Appeal. Estoppel of corporation to collect subscriptions on stock held out to be paid up, etc. 1 Cook,. Corporations Sees. 38, 42, 46. The power to make assessments on corporate stock is wholly statutory. Wells v. Green Bay & M. G. Go. 90 Wis. 442 [64 N. W. Rep. 69].

<p>Error to Hamilton common pleas court.</p> <p>Plaintiff was formerly the driver of an oil wagon for one J. W. Austin, an oil dealer, who sold out to the Standard ’ Oil Company along in 1894. He continued as driver on the old route after the sale, and, at the request of the company, placed his own name upon the wagon instead of that of the Standard Oil Company. .He alleged in his petition that in consideration therefor the company agreed to pay him $15 a week, and in addition thereto the reasonable worth of his services on account of his holding himself out as the owner of the route. He worked under this arrangement for seven years, rendering bills during that time in his own name, and leading the public in various ways to believe that he was the owner of the route. The company refused to pay him anything beyond $15 per week, and after its refusal to do so, he brought suit for $10,500 for the special services so rendered during the seven years.</p>

<p>TRUSTS — CONVERSION—ATTACHMENT.</p> <p>1. Liability of Trustee for Conversion Arises Ex Contractu as Well as in Tort.</p> <p>A cause of action ex contractu is stated in a petition which avers that plaintiff is the owner of a one-half interest in one hundred shares of stock held in trust, and that the trustee had converted the same to his own use; defendant’s liability in such case is founded on his implied promise to pay over the stock which he agreed to hold in trust, notwithstanding bis liability also sounds in tort.</p> <p>2. Attachment Lies When Action Based on Contract.</p> <p>An attachment may be issued in such ease, because the cause of action is based on contract.</p> <p>3. No Defect in Parties Plaintiff When Plaintiff Sole Owner of Fixed One-half Interest.</p> <p>There is no defect in parties plaintiff for failure of plaintiff to join any one else with her, when it appears that her interest in the subject-matter of the action is an absolute and fixed one-half interest.</p> <p>4. Filing of Answer is Entry of Appearance, Although Different Purpose Intended.</p> <p>The filing of an answer by defendant is an entry of appearance to the action as effectually as if he had been served with summons; and the statement that he did so only for the purpose of filing a demurrer, amounts to nothing.</p>

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

<p>RAILROADS — COUNTIES—HIGHWAYS—INJUNCTION.</p> <p>!.• Powers Conferred Upon County Commissioners by Act of April 27, 1903, Construed.</p> <p>Tbe act of Aril 27,1893, 90 O. L. 359 (Lan. R. L. 5312 et seq.; B. 3337-8 et seq.) applies only to existing crossings of highways, and does not confer authority upon county commissioners to exercise the powers therein specified as to crossings proposed to be made in the near future by a railway company in the construction of a new line of railroad.</p> <p>2. Commissioners Cannot Change Course Nor Vacate Highway not Intersected by Railway.</p> <p>Thé power therein conferred upon county commissioners to change or alter the course of a highway, and vacate a portion thereof, to get rid of a crossing at grade, is limited to the highway crossed; and such commissioners cannot, in so doing, also change the course, and vacate a portion of an adjacent highway intersected by the railway by a nearby underhead crossing.</p> <p>3. Injunction Will Lie to Prevent Such Change and Vacation if Complainants Suffer Damages Different Prom General Public.</p> <p>Where under the power thus conferred such commissioners are about to change the course, and vacate a portion of a highway, the owners of lands abutting on such portion may enjoin such change and vacation if they will thereby suffer injury in excess of, and different from, that of the general public, as there is no method provided for awarding compensation to them for such injury.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>1. Liability of Coadministratoks fob Debt Due Estate by One of Them.</p> <p>That where one of two administrators is indebted to the decedent’s estate at the times of their appointment and the giving of a joint bond with,, surety, the amount of such indebtedness will be treated as assets coming into their joint possession, for which both are liable as principals as between themselves and the surety. The giving of separate bonds thereafter will not, in any way, change the liability which accrued while the joint bond was in force.</p> <p>2. Debt Due by Heib, Who is Administrator, to Estate Should be Treated as Credit on Amount Due Him.</p> <p>An heir who is indebted to an estate of which he is also administrator, need not pay into court, on his settlement as administrator, money which would be immediately returnable to him as heir on distribution. The amount due as heir should be treated as a credit on the amount due as administrator.</p>

A guardian may sell the'personal estate of his ward without an order of court. Laning E. L. 9821 (E. S. 6280); Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Eep. 167; 49 Am. St. Eep. 730]. The bank acquired a good title, and is not required to see to the application of the purchase money. J elke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Eep. 167; 49 Am. St. Eep. 730]; Strong v. Strauss, 40 Ohio St. 87.

<p>Error to Hamilton common pleas court.</p> <p>As to tbe distinction between the extension and renewal of a lease. 18 Am. & Eng. Enc. Law (2 ed.) 692; Benond v. Daskam, 34 Conn. 512; Shamp v. White, 106 Cal. 220 [39 Pac. Rep. 537]; Thiebaud v. Bank, 42 Ind. 212; Darling v. Hoban, 53 Mich. 599 [19 N. W. Rep. 545]; Cooper v. Joy, 105 Mich. 374 [63 N. W. Rep. 414]; Falley v. Giles, 29 Ind. 114; Bradford v. Patten, 108 Mass. 153; Atlantic Nat. Bank v. Demmon, 139 Mass. 420 [1 N. E. Rep. 833]; Hemphill v. Flynn, 2 Pa. St. 144; Schuyler v. Smith, 51 N. Y. 309 [10 Am. Rep. 609]; Skaggs v. Flkus, 45 Cal. 154; Worthington v. Bolling. Mill, 6 Dec. Re. 1038 (9 Am. L. Rec. 693; 6 Bull. 235) ; M’Alpine v. Swift, 1 Ball & B. 285; Elevator Co. v. Brown, 36 Ohio St. 660; Maxwell v. Ward, 13 Price 674; Gladwell v. Holcomb, 60 Ohio St. 427 [54 N. E. Rep. 473 ; 71 Am. St. Rep. 724]; Griffin v. Griffin, 10 Sch. & Lef. 352; Bailway v. West, 57 Ohio St. 161 [49 N. E. Rep. 344]; London {City) v. Mitford, 14 Yes. Jr. 41.</p> <p>Notice to vacate may be served either before or after the expiration of the term of a lease. Leutzey v. Herchelrode, 20 Ohio St. 334; Hoveler v. Luhrmann, 4 Dee. 149 (3 N. P. 224).</p> <p>This court will not consider the weight of the evidence, but only its competency. Laning R. L. 10192 (R. S. 6610); State v. Wood, 22 Ohio St. 537.</p>

<p>RAILROADS — NUISANCE—INJUNCTION.</p> <p>1. Railroad Cannot Subject Property Owners to Legal Nuisances.</p> <p>A steam railroad company bas no right or authority, in the operation of its road, to subject adjacent property owners to any kind of a nuisance, cognizable by law, for its own convenience or advantage.</p> <p>2. Noise, etc., From Operation of Railroad not Legal Nuisance, When.</p> <p>On the state of facts in this casé noise, Smoke and offensive vapors which naturally arise from and are necessarily incident to the proper operation of a steam railroad at its terminals, do not constitute a nuisance cognizable by law, such as will warrant a court of equity in granting an injunction against its continuance on complaint of abutting residence owners, where there is no charge of negligence against the company, or that it acted in bad faith and failed to exercise due care in locating its terminals; the annoyances arising in such a case are damnum absque injuria.</p> <p>3. Injunction not Issued When Complainant’s Rights in Doubt.</p> <p>Where there is doubt as to whether or not certain acts constitute a nuisance cognizable by law, or an illegal trespass upon the rights of complainant, an injunction will not be granted until the rights of complainant are ascertained and defined in an action at law.</p>

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

<p>WILLS — TRUSTS.</p> <p>1. Intention of Testator Governs in Construction of Wills, etc.</p> <p>In the construction of wills, the intention of the testator governs; rules of interpretation are valuable only in so far as they aid in ascertaining that intention.</p> <p>2. Immediate Vested Interest in Land Given Under Will, Although Control Given to Trustee, When.</p> <p>An immediate vested interest in real estate, with the possession only delayed until a future time, is given by a will which devises the property to the devisees named, although the possession and control thereof is given in trust to the executor for a term of years, but during which time, however, the devisees are to have and enjoy all the benefits that could arise out of the bequest while the control is in the trustee.</p>

<p>PLEADING — TRIAL—AMENDMENTS.</p> <p>Amendment of Petition to Conform to Facts Proved Substantially Changing Plaintiff’s Claim Properly Refused.</p> <p>It is not error to refuse leave to file an amended petition conforming to the facts proved at the trial, where the amended petition offered for filing substantially changes the plaintiff’s' claim. Laning R. L. 8629 (R. S. 5114).</p>

<p>WAIVER — AFFIDAVITS OF BIAS AND PREJUDICE.</p> <p>Party Deemed to Have Waived Affidavit of Bias aiíd Prejudice by Attorney’s Waiver, etc.</p> <p>A party to an action will be deemed to have waived an affidavit of bias and prejudice filed by her against the trial judge, when she stands by, and without objection or protest allows her attorney to state in open court that the affidavit was waived, that the case would be tried to the- judge on the facts, and that he would not agree to appear in the case until his client consented to waive the affidavit.</p>

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

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

<p>INJUNCTION.</p> <p>Twjunction, When Properly Refused.</p> <p>An injunction will not be granted when it is unconscionable to grant the same, even though a legal right is about to be, violated; and where the legal right arises out of a decree of court, rendered by mistake, an injunction is properly refused.</p>

Where, by the terms of a contract, the estimates of an engineer are to be conclusive, a court of equity will correct his mistakes. Mansfield & S. By. v. Veeder, 17 Ohio 385; Balt. & O. By. v. Stankard, 59 Ohio St. 224 [46 N. E. Rep. 577; 49 L. R. A. 381; 60 Am. St. Rep. 745] ; Easton v. Canal Co. 13 Ohio 79; Mundy v. Bailway, 67 Fed. Rep. 633 [14 C. C. A. 583; 31 U. S. App. 606]; Kane v. Stone Co. 39 Ohio St. 1; North Lebanon By. v. Grann, 33 Pa. St. 530 [75 Am.

<p>COURTS —COSTS AND FEES — MORTGAGES — EXECUTORS AND ADMINISTRATORS.</p> <p>1. Appellate Court under Lan. R. L. 10318 (R. S. 6726) must Render Judgment Lower Court should have Rendered.</p> <p>An appellate court, in reversing an order of distribution made by the probate court in an action commenced therein by an administrator to pay debts, should, under Lan. R. L. 10318 (R. S. 6726), either make the order of distribution, or, in remanding the case to the probate court, specifically indicate the items to which the fund for distribution should be applied. A judgment reversing the order of distribution and remanding the case with directions to distribute the fund “according to law” and “in accordance with Lan. R. L. 9706 (R. S. 6165)” is. too general in its nature in that it does not specifically indicate what judgment the probate court should render, notwithstanding the statute referred to prescribes how distribution shall be made.</p> <p>2. Attorney Fees, Costs or Administration, etc., cannot be Paid under Lan. R. L. 9706, 9730 (R. S. 6165, 6188) out of Fund Realized from Sale of Land to Pay Debts, when.</p> <p>Neither the attorney fees of an administrator in an action commenced by him to sell real estate to pay debts, general costs of administration of the estate, nor premiums due a surety company upon the administrator’s bond, are included in the costs and expenses “of the sale” under Lan. R. L. 9706 (R. S. 6165), and cannot, therefore, be allowed prior to the claim of a first mortgagee by the probate court in making an order of distribution of the fund realized from the sale; nor can they be allowed as “extraordinary” expenses under Sec. 6188 Rev. Stat.</p> <p>3. Administrator must Preserve Priority of Liens in Fund Realized from Sale of Lands to Pay Debts, etc.</p> <p>The priority of the lien of a first mortgage must be preserved by the administrator in the fund realized from a sale of the real estate, when such lien is set up in the action commenced by the administrator to s?ll the real estate to pay debts; but, as the administrator is a trustee for unsecured creditor only, where such mortgagee fails to set up his claim, his lien is thereby cut off, and he thereupon becomes a general creditor: and the administrator owes such mortgagee no duty to see that his lien is preserved.</p> <p>4. Administrator Assumes Risk of Fund Realized from Sale being Sufficient to Pay Attorney Fees, etc.</p> <p>The administrator, in commencing an action to sell to pay debts, real estate which is encumbered by a mortgage, assumes the risk of the fund realized therefrom being insufficient to pay his own and his attorney’s fees and the court costs incident to general administration. Such fees and costs cannot be paid from the fund to the prejudice of the mortgagee.</p> <p>5. Administrator not Necessary Party in Foreclosure Proceedings, when.</p> <p>An administrator of a deceased mortgagor is not a necessary party to a mortgage foreclosure proceeding, although he may be a proper party in case the equity of redemption is of any value; and, as a purchaser at foreclosure sale is subrogated to all the rights of the mortgagee, where the value of the property proves less than the mortgage' debt his title cannot be impeached by general creditors mor by the administrator in the absence of fraud or collusion in the proceeding and sale.</p>

<p>Appeal by plaintiff.</p> <p>The provisions of Lan. R. L. 3106 (R. S. 1694) are mandatory and not directory. Bloom v. Xenia (City), 32 Ohio St. 461; Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606] ; Elyria Gas & W. Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335],</p> <p>As a condition precedent to the power of the council' of a municipal corporation, to authorize the extension of a street railway therein, there must be produced to the council the written consents of a majority of the property owners measured by the feet front abutting on the street, along which it is proposed to be constructed. Roberts v. Easton, 19 Ohio St. 78.'</p> <p>A street railway constructed and operated in'' a street without legal authority therefor, is a public nuisance. Booth, Street Railways Sec. 3.</p> <p>A municipality’s power to regulate and control the construction and operation of street railways therein is only obtained by statutes expressly conferring the power and then only under the limitations and .conditions attached thereto. Raynolds v. Cleveland, 24 O. C. C. 215.</p>

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

<p>STREET RAILROADS — ESTOPPEL—TIME—INJUNCTION.</p> <p>1. Estoppel as to Main Track not Necessarily Extended to Switches.</p> <p>An estoppel arising against an abutting property owner to object to the existence of the main track of an electric railway company, cannot be extended so as to prevent her from objecting against the subsequent laying and maintenance of a switch, in the absence of other facts and circumstances which operate as an estoppel with respect to such switch. The facts that the switch is necessary to the operation of the main line, and that power is conferred upon the company to lay switches by its charter and the franchise granted by the county commissioners, are, in such case, immaterial. ■ ,</p> <p>2. Electric Railway Company may Extend Tracks after Time Limit,'how AND WHEN.</p> <p>The fact that the time limit has expired within which an electric railway company, under its franchise from the county commissioners, ■ was to have its line completed and in operation, will no't prevent the company from thereafter extending its road to new property under condemnation proceedings, or other rights lawfully acquired.</p> <p>i. Switch in PubDic Highway an Additional Burden.</p> <p>An additional burden is imposed upon a public highway by the laying of a switch therein by an electric railway company; and this is so, irrespective of whether or not such company is a mere “paper” company, or one already in operation over such highway.</p> <p>4. Laying of Railway Switch in Highway Enjoined; Removal Compelled by Mandatory Injunction.</p> <p>The laying of an electric railway switch in a public highway without the consent of an abutting owner, and contrary to the provisions of Sec. 5, Art. 13 and Sec. 19, Art. 1 of the Ohio constitution, will he enjoined at the suit of such owner, in the absence of facts and circumstances which work an estoppel; and where such switch has already been laid, a mandatory injunction will issue to compel its removal.</p>

<p>WILL CONTEST — PARTIES—EVIDENCE—ERROR.</p> <p>1. Executor or Administrator not Necessary Party to Will Contest, etc. '</p> <p>Failure to make the executor or administrator a party to an action brought to set aside a will, does not necessarily constitute a defect of parties.</p> <p>2. Presumption that Testator Destroyed Will when Same cannot be Found after Death,' etc.</p> <p>Where a will once known to exist and to have been in the custody of the testator cannot be found after his death, the legal presumption is, that it was destroyed by him with the intention of revoking it; and to strengthen this presumption, it is competent to prove the declarations of the testator after making his will that he had destroyed, or intended to destroy it.</p> <p>3. Testator’s Declarations of Intention Incompetent in Will Contest.</p> <p>While the declarations of the testator may be used to weaken the presumption that he has destroyed his will with the Intention of revoking it, his declarations may also be used as evidence to strengthen and fortify the presumption that he has destroyed his will with such intention; and whether it be the making of a will, or the destroying of one, the competency of the testator’s declarations as evidence is alike in each case, and for the same reason admissible.</p> <p>4. Alleged Will Competent Evidence when Controlling Issue is Forgery, etc.</p> <p>Where the controlling issue in a will contest is whether or not the alleged will is a forgery or genuine, any competent evidence tending to prove either fact is admissible, and should receive proper consideration by the jury; and to this end it is competent to introduce the disputed will in evidence for comparison with other written documents in evidence, proved to be genuine.</p> <p>5. Other Forged Wills Admissible to Show Purpose of Guilty Parties, etc.</p> <p>On the trial of an issue in a will contest as to whether or not the will in dispute is a forgery, other forged wills and papers are competent evidence to show the evil purpose of the guilty parties.</p> <p>6. Where Evidence Shows Will to be Forgery, Judgment not Reversed for other Errors.</p> <p>Where the evidence in a will contest conclusively shows that the alleged will is a forgery, a verdict and judgment to that effect will not be set aside by a reviewing court for errors committed on the trial by the trial judge, or in charging the jury.</p>

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

<p>Error to Lucas common pleas court.</p> <p>Negligence. Lamb v. Boyd, 2 Circ. Dec. 672 (4 R. 499) ; Burdick y. Oteadle, 26 Ohio St. 393 [20 Am. Rep. 767]; Bailey v. Gas Co. 2 Circ. Dec. 656 (4 R. 471).</p>

QUO WARRANTO. This is a petition in qno warranto to oust from office the respondents who are acting as directors of a special school district organized by an act of the general assembly of the state of Ohio entitled “An act to establish a special school district in Waterford township, Washington county, Ohio (94 O. L. 630, 631), passed April 14, 1900, and known as “Coal Bun special school district,” claiming that said act was in violation of Sec. 26 of Art. 2 of the…

Error (Rehearing). A charge which implies that if plaintiff’s negligence remotely, and not proximately, contributed to his injury, he cannot recover, is erroneous. Matthews v. Toledo, 11 Circ. Dee. 375 (21 R. 69) ; Nitz v. Toledo, 12 Circ.

<p>STATUTES — WORDS AND PHRASES — HEIRS.</p> <p>How the Word “Heir” should be Construed.</p> <p>The word “heir,” in Lan. R. L. 9637 (R. S. 6098), may he construed to mean devisees and legatees, and as such have the right to file in the probate court a written requisition on the executor to disallow and reject any claim presented for allowance; and such devisees and legatees are proper parties in any action brought upon a claim rejected under such requisition, and have the right to defend against such claim.</p>

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

<p>MUNICIPAL CORPORATIONS — CONTRACTS—OFFICERS.</p> <p>1. Resolution of Council Creating Right not Effective until Approved by Mayor under Original Sec. 1545-91 (Repealed 96 O. L. 96; See Lan. R. L 3107; B. 1536-626).</p> <p>A resolution of a municipal council involving expenditure of money, or creating a right, cannot take effect, under original Sec. 1545-91 Rev. Stat. (repealed 96 O. L 96; see Lan. R. L. 3107; B. 1536-626), until it is presented, duly certified by the clerk, to the mayor for approval.</p> <p>2. Director of Law not Bound by Resolution not Approved under Original Sec. 1545-91 (Repealed 96 O. L. 96; See Lan. R. L. 3107; B. 1536-626).</p> <p>The director of law of a municipality is not hound by any direction to him contained in a resolution adopted by council, but which was not approved by the mayor as required by original Sec. 1545-91 (repealed 96 O. L. 96; see Lan. R. L. 3107; B. 1536-626), and where a motion for a judgment against the municipality is based upon such defective resolution, a duty devolves upon the director of law to notify the court of the invalidity of such acts upon which the request for judgment is predicated.</p> <p>3. Subsequent Legislation Applies to Prior Contracts, when.</p> <p>Where the contract out of which a claim against the municipality arose was entered into prior to the passage of the act requiring the mayor’s approval, and a dispute arises as to the amount due, the defendant asserting that nothing is due, and where as part consideration for the agreement of 'compromise, it was inserted therein “that as the case has already cost the city several thousand dollars in costs and attorneys’ fees, and if not settled is likely to cost many thousands of dollars more,” the plaintiff has no such vested right under his contract as forbids the application of the act, subsequently passed, requiring the mayor's approval.</p>

The contract, in question was void as against public policy, in that it required the employe, to conduct a lottery in connection with the introduction of the system or scheme, and as a part of said employe’s contractual duties under said contract. Section 6, Art. 15 Ohio Const.; Lan. R. L. 10571, 10572, 10573 (R. S. 6929, 6930, 6931) ; Jackson Steel Nail Go. y. Marks, 2 Circ.

The undisputed facts in this case establish that an agency existed for the receipt of express packages and the delivery to such agent discharged the carrier. Beattie v. Railway, 90 N. Y. 643; Tennessee River Transp. Co. v. Kavanaugh, 101 Ala. 1 [13 So. Bep. 283]; Barnett' v. Glwting, 3 Ind. App. 415 [29 N. E. Bep. 154]; Angle v. Railway, 9 Iowa 487. Validity of stipulation that claim should be presented within a certain tim.e. Southern Exp.

<p>DITCHES — ASSESSMENTS—CONSTITUTIONAL LAW-</p> <p>1. Extent on Ditch Improvement and Assessment Lent Largely to Judgment on Authorities in Charge.</p> <p>The extent of a ditch improvement and the consequent amount of the assessment to pay the cost thereof, must, to a great extent, he left to the judgment of the authorities who have the matter in charge; and a court of equity will, in such cases, he slow in restraining their action.</p> <p>2. Section 3 on Act 95 O. L. 155 (Lan. R. L. 7834; B. 4584-3), Unconstitutional.</p> <p>Section 3 of the act 95 O. L. 155 (Lan. R, L. 7834; B. 4584-3), providing for the cleaning out of ditches, is unconstitutional, because it is administrative, and not legislative, in character, in that the “necessity” for the improvement is determined by the 'legislature, no provision being made in said act for determining such question by any authorized officer or board. Said section is also unconstitutional because it unjustly discriminates between different applicants for such improvement with respect to costs.</p>

<p>■ Error to Franklin common pleas court.</p> <p>"Weight of the evidence, upon question of negligence. Lake Shore & M. S. By. v. Jokers, 5 Cire. Dec. 599 (12 B. 499); Abbott, Trial Ev. (2 ed.) 736; Cleveland Provision Co. v.- Limmermaier, 4 Circ. Dec. 240 (8 R. 701); Columbia & P. S. By. v. Hawthorne, 144 U. S. 202 [12 Sup. Ct. Rep. 591; 36 L. Ed. 405] ; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Erben v. Lorrillard, 19 N. Y. 299; Henkle v. McClure, 32 Ohio St. 202; Lake Shore & M. S. By. v. Gaffney, 6 Circ. Dee. 94 (9 R. 32).</p> <p>To preclude a right to recover, direct testimony of failure to look or listen was not necessary. The circumstances were conclusive of decedent’s negligence. Balt. & O. By. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816] ; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Pennsylvania Co. v. Bathgeb, 32 Ohio St. 66; Clev. C. C. & Ind.'By. v. Elliott, 28 Ohio St. 340; Belief ontaine By. v.Snyder, 24 Ohio St. 670; Norfolk & W. By. v. Tea Co. 26 O. C. C. 547; Lake Shore & M. S. By. v. Beynolds, 13-23 O. C. C. 199; P. C. & St. L. By. v. Peters, 1 Circ. Dec. 20 (1 R. 34); Barr v. Chapman, 11 Dec. Re. 862 (30 Bull. 264); Fenger v. Fenger, 8 Dec. Re. 407 (7 Bull. 304) ; Conkling v. Bailway, 63 N. J. Law 338 [43 Atl. Rep. 666]; Pennsylvania By. v. Bighter, 42 N. J. Law (13 Yroom) 180; Bunyon v. Bailway, 25 N. J. Law (1 Dutch.) 556; Gorton v. Bailway, 45 N. Y. 660; McCall v. Bailway, 54 N. Y. 642; 4 Am. & Eng. Enc. Law (1 ed.) 74; 3 Elliott, Railroads 1171; Brinker v. Bailway, 121 Mich. 283 [80 N. W. Rep. 28]; Belief ontaine By. v. Hunter, 33 Ind. 335 [5 Am. Rep. 201]; New York, C. & St. L. v. Swartout, 6 Circ. Dec. 768 (14 R. 582) ; Cadwallader v. Bailway, 128 Ind. 518 [27 N. E. Rep. 161] ; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; Schofield v. Bailway, 114 U. S. 615 [5 Sup. Ct. Rep. 1125; 29 L. Ed. 224] ; Bail-way v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321] ; 1 Thomas, Negligence 751; Tully v. Bailway, 134 Mass. 499; Machader v. Williams, 54 Ohio St. 344 [43 N. E. Rep. 324]; Lake Shore & M. S. By. v. Gaffney, 6 Circ. Dee. 94 (9 R. 32) ; 2 Thomas, Negligence 1095; Huff v. Austin, 46 Ohio St. 386 [21 k E. Rep. 864; 15 Am. St. Rep. 613] ; Cleveland City By. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604].</p> <p>Charges given for plaintiff before argument. P. C. & St. L. By. v. Peters, 1 Circ. Dec. 20 (1 R. 34) ; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; McCully v. Clarke, 40 Pa. St. 399 [80 Am. Dec. 584].</p> <p>Refusals to charge. Clev. C. C. & Ind. By. v. Elliott, 28 Ohio St. 340; New York, C. <& St. L. By. v. Swartout, 6 Circ. Dec. 768 (14 R. 582) ; Lake Shore & M. S. By. v. Beynolds, 13-23 O. C. C. 199; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130] ; Pennsylvania Co. v. Morel, 40 -Ohio St. 338; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; Ernst v. Bailway, 39 N. Y. 61 [100 Am. Dee. 405], which is approved in New York, C. & St. L. By. v. Swartout, 6 Circ. Dec. 768 (14 R. 585) ; Wheeling & L. E. By. v. Suhrwiar, 12 Circ. Dec. 809 (22 R. 560) ; Grand Trunk By. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep: 679; 36 L. Ed. 485]; Wolf v. Bailway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; Helman v. Bailivay, 58 Ohio St. 400 [50 N. E. Rep. 986; 41 L. R. A. 860]; Schweinfurth v. Bailivay, 60 Ohio St. 215 [54 N. E. Rep. 89]; Lake Shore & M. S. By. v. Beynolds, 11 Circ. Dec. 701 (21 R. 402) ; Monroeville (Vil.) v. Boot, 54 Ohio St. 523 [44 N. E. Rep. 237],</p> <p>Exceptions to general charge. Bussell v. Bussell, 3 Circ. Dec. 460 (6 R. 294) ; Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548] ; Mears v. Mears, 15 Ohio St. 90; Banning v. Banning, 12 Ohio St. 437; Behrens, v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820]; Kelch v. State, 55 Ohio St. 146 [45 N. E. Rep. 6; 39 L. R. A. 737; 60 Am. St. Rep. 680]; Effinger v. State, 6 Circ. Dec. 417 (9 R. 376); Jungnitsch v. Iron Co. 105 Mich. 270 [63 N. W. Rep. 296]; Clev. C. & C. By. ,v. Bartrom, 11 Ohio St. 457.</p> <p>Refusals to submit to jury, questions propounded by defendant. New York, C. & St. L. By. v. Kistler, 9 Circ. Dec. 277 (16 R. 316).</p> <p>Excessive verdict. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300].</p>

The amendment of November, 1903, to the constitution, does not terminate actions for stockholder’s liability which accrued previous to its adoption or proclamation. Brown v. Hitchcock, 36 Ohio St. 667; Kulp v. Fleming, 65 Ohio St. 321 [62 N. E. Rep. 334; 87 Am. St. Rep. 611]; Wick Nat. Bank v. Bank, 62 Ohio St. 446 [57 N. E. Rep. 320; 78 Am.

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

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

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

<p>MECHANICS’ LIENS.</p> <p>Mechanic’s Lien does not Attach in Favor oe Subcontractor or Material Men Dealing with Subcontractor.</p> <p>Under the provisions of Lan. R. L. 5100 and 5117 (R. S. 3184 and 8195), no lien attaches on real property in favor of subcontractors, laborers and those furnishing material to subcontractors, where no contractual relation exists between them and the owner of the property.</p>

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

<p>Error to Franklin common pleas court.</p> <p>Error in the admission of evidence. Deering, Negligence Sec. 9;', Hamilton v. Railway, 36 Iowa 32; Baker v. Irish, 172 Pa. St. 528 [33' Atl. Rep. 558]; Blanchette v. Railway, 175 Mass. 51 [55 N. E. Rep. 481]; Tillyer v. Glass Co. 7 Circ. Dec. 209 (13 R. 99).</p> <p>Refusal of the common pleas to nonsuit the plaintiff at the close of his evidence. Buswell, Pers. Inj. Sec. 134; Gilman v. Deerfield, 81 Mass. (15 Gray) 577; Bard v. Traction Co. 176 Pa. St. 97 (34 Atl. Rep. 953; 53 Am. St. Rep. 674) ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437]; Indianapolis & C. Ry. v. Rutherford, 29 Ind. 82 [92 Am. Dec. 336]; Jammison v. Railway, 92 Ya. 327 [23 S. E. Rep. 758; 53 Am. St. Rep. 813]; Nieboer v. , Railway, 128 Mich. 486 [87 N. W. Rep. 626]; Ashbrook v. Railway, 18 , Mo. App. 290; Cm. L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. Í01 [67 N. E. Rep. 161]; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Mann v. Traction Co. 175 Pa. St. 122 [34 Atl. Rep. 572]; Barlow v. Railway, 67 N. J. L. 364 [51 Atl. Rep. 463]; Chicago West Div. Ry. v. Klauber, 9 111. App. 613; Thane v. Traction Co. 191 Pa. St. 249 [43 Atl. Rep. 136; 71 Am. St. Rep. "767]; Fry v. Raikuay, 17 Phila. 61; Memphis & L. R. Ry. v. Salinger, 46 Ark. 528; Bethel v. Railway, 8 Circ. Dec. 310 (15 R. 381) ; Schwartz v. Railway, 4 Circ. Dec. 272 (8 R. 484) ; Pitts. F. W. & C. Ry. v. Krichbaum, 24 Ohio St. 119; Shadletsky v. Railway, 88 N. Y. Supp. 1014; Radley v. Railway, 44 Ore. 332 [75 Pac. Rep. 212]; Eller v. Traction Go. 15 Dee. 208.</p> <p>Negligence per se. Bethel v. Railway, 8 Circ. Dee. 310 (15 R. 381) ; Schausten v. Railway, 7 Circ. Dec. 389 (18 R. 691) ; Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C. 376; Wadsworth v. Railway, 70 Ohio St. 432 [72 N. E. Rep. 1166]; Beliefontaine Ry. v. Snyder, 24 Ohio St. 670; Erie Ry. v. Kane, 14 O. F. D. 193 [118 Fed. Rep. 223; 55 C. C. A. 129],</p> <p>Weight of evidence. Shadletsky v. Railway, 88 N. Y. Supp. 1014; Knight v. Railway, 21 App. D. C. 494; Alabama Midland Ry. v. Guilford, 119 Ga. 523 [46 S. E. Rep. 655]; Citizens’ Ry. v. Sinclair, 81 S. W. Rep. (Tex. Civ. App.) 329; Johnson v. Electric Co. 32 Wash. 382 [77 Pac. Rep. 677] ; Cheyne v. Railway, 97 App. Div. 56 [89 N. Y. Supp: 626] ; McKenzie v. Coal Co. 89 App. Div. 415 [85 N. Y. Supp. 819] ; Murray v. Railway, 55 Atl. Rep. (R. I.) 491; Wynn v. Railway, 133 N. Y. Rep. 575 [30 N. E. Rep. 721],</p> <p>Error in the charge of the court. Words and Phrases Judicially Defined, Yol. 2, page 1540; Watkinds v. Railway, 38 Fed. Rep. 711 [4 L. R. A. 239]; Kentucky Cent. Ry. v. Thomas, 79 Ky. 160 [42 Am. Rep. 211]; Balt. & O. Ry. v. Whittaker, 24 Ohio St. 642; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50; Lowe v. Lehman, 15 Ohio St. 179; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Moberly v. Railway, 98 Mo. 183 [11 S. W. Rep. 569]; Smith v. Smith, 19 Mass. (2 Pick.) 621 [13 Am. Dec. 464] ; Hibbard v. Thompson, 109 Mass. 286; Geiselman v. Scott, 25 Ohio St. 86; Pendleton St. Ry. v. Stallmann, 22 Ohio St. 1; Balt. & O. Ry. v. Whittaker, 24 Ohio St. 642; Clev. C. C. & I. Ry. v. Elliott, 28 Ohio St. 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Balt. & O. Ry. v. Whitacre, 35 Ohio St. 627; Railway v. Depew, 40 Ohio St. 121; Balt. & O. Ry. v. McPeek, 8 Circ. Dec. 742 (16 R. 87) ; Koester v. Railway, 11 Circ. Dee. 283 (20 R. 475) ; Creamer v. Railway, 156 Mass. 320 [31 N. E. Rep. 391; 16 L. R. A. 490; 32 Am. St. Rep. 456]; Schaefler v. Sandusky, 33 Ohio St. 246, 249 [31 Am. Rep. 533]; Dayton (City) v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480]; Lake Shore & M. S. Ry. v. Callahan, 25 O. C. C. 115. .</p> <p>Willful negligence. Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] ; Thompson, Negligence Secs. 206, 207, 1627 and 1715; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; Fonda v. Railway, 71 Minn. 438 [74 N. W. Rep. 166; 70 Am. St. Rep. 341] et seq.; Pilts. C. C. & St. L. Ry. v. Kelly, 5 Circ. Dec; 662'(12 R. 341) ; Lake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424) ; Shearman & Redfield, Negligence See. 18; Wilson v. Britt, 11 Mees. & Weis. 113, and Wiles in L. R. 1 C. P. 640; Clev. G. C. & I. Ry. v. Elliott, 28 Ohio St. 340; Lake Shore & M. S. Ry. v. Callahan, 25 O. O. C. 115; Supreme Court of the United States, in the ease of Gilbert v. Railway, 13 O. F. D. 475 [97 Fed. Rep. 747 ; 38 C. C. A. 408]; Lahe Shore & M. S. Ry. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]; Lahe Shore & M. S. Ry. v. Harris, 13-23 O. C. C. 400; Wynn v.' Railway, 133 N. Y. 575 [30 N. E. Rep. 721],</p> <p>Res ipsa loquitur rule. Knight v. Railway, 21 App. D. C. 494; Washington Mut. Ins. Co. v. Insurance Co. 5 Ohio St. .450; Brick Co. v. Pond, 38 Ohio St. 65; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Marietta & C. Ry. v. Pichsley, 24 Ohio St. 654; White v. Thomas, 12 Ohio St. 312 [80 Am. Dee. 347]; Pitts. F. W. & C. Ry. v. Slusser, 19 Ohio St. 157; Parmlee v. Adolph, 28 Ohio St. 10; McCafferty v. Hock Co. 5 Cire. Dec. 262 (11 R. 457); West Chicago St. Ry. v. Winters, 107 111. App. 221; Citizens’ Ry. v. Sinclair, 81 S. W. Rep. 329 (Tex. Civ. App.).</p> <p>Contributory negligence. Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89],</p> <p>Custom. Randall v. Telegraph Co. 54 Wis. 140, 142 [11 N. W. Rep. 419; 41 Am. Rep. 17] ; Illinois Cent. Ry. v. Davidson, 76 Fed. Rep. 517 [22 C. C. A. 306; 46 U. S. App. 300; 7 Am. & Eng. Neg. Gas. 449]; Montgomery & E. Ry. v. Stewart, 91 Ala. 421 [8 So. Rep. 708; 2 Am. & Eng. Neg. Cas. 62]; Fuller v. Railway, 21 Conn. 557 [2 Am. & Eng. Neg. Gas. 266]; Louisville & N. Ry. v. Long, 94 Ky. 410 [22 S. W. Rep. 747; 11 Am. & Eng. Neg. Cas. 579]; Dillingham, v. Pierce, 31 S. W. Rep. (Tex. Civ. App.) 203 [6 Am. & Eng. Neg. Cas. 708].</p> <p>Defective machinery. Mt. Adams & E. P. Inc. P. Ry. v. Isaacs, 10 Cire. Dec. 49 (18 R. 177) ; Fisher v.' Try on, 8 Cire. Dec. 556 (15 R. 541) ; Gable v. Toledo, 9 Cire. Dec. 63 (16 R. 515) ; Strong v. Hardware Co. 6 Cire. Dec. 212 (9'R. 249) ; Reuben v. Sivigart, 7 Cire. Dec. 638 (15 R. 565) Toledo Consol. St. Ry. v. Fuller, 9 Cire. Dec. 123 (17 R. 562); Iron Ry. v. Flowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Lahe Shore & M. S. Ry. v. Yokes, 5 Cire. Dec. 599 (12 R. 499).</p> <p>The charge. Willful negligence. Pitts. C. C. & St. L. Ry. v. Kelly, 5 Cire. Dec. 662 (12 R. 341), affirmed, Railway v. Kelly, 53 OhiSt. 667; Lahe Shore c& M. S. Ry. v. Schade, 8 Cire. Dee. 316 (15 R. 424), affirmed, Railway v. Schade, 57 Ohio St. 650; Newport News & M. V. Co. v. Howe, 52 Fed. Rep. 362 [3 C. C. A. 121;. 6 U. S. App. 172]; Louisvllle & N. Ry. v. Railway, 60 Fed. Rep. 993 [9 C. C. A. 314; 22 U. S. App. 102]; Grand Trunk Ry. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep.</p> <p>679; 36 L. Ed. 485]; Inland & 8. G. Co. v. Tolson, 139 U. S. 551 [11 Sup. Ct. Rep. 653; 35 L. Ed. 270]; Cincinnati St. By. v. Whitcomb, 9 O. F. D. 5 [66 Fed. Rep. 915; 14 C. C. A. 183; 31 U. S. App. 374]; Railway v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674]; Thompson, Trial Ev.; Kerwhacker v. Railway, 3 Ohio St. 172 [62 Am. Dee. 246]; Clev. C. & C. Ry. v. Elliott, 4 Ohio St. 474; Pendleton St. Ry. v. Stallmann, 22 Ohio St. 1; Timmons v. Railway, 6 Ohio St. 105; Clev. C. & C. Ry. y. Crawford, 24 Ohio St. 631 [15 .Am. Rep. 633]; Meek v. Pennsylvania Co. 38 Ohio St. 632; Baker v. Pendergast, .32 Ohio St. 494 [30 Am. Rep. 620]; Part v. Devereux, 41 Ohio St. 565; Pitts. F. W. & C. Ry. v. Krichbaum, 24 Ohio St. 119; Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89]; Ohio & M. Ry. v. Punt, 6 Dee. Re. 758 (7 Am. L. Ree. 739) ; Kuchenmeister v. O’Conner, 8 Dec. Re. 502 (8 Bull. 257) ; Kuchenmeister v. O’Conner, 9 Dec. Re. 159 (11 Bull, 120) ; Grieve v. Railway, 65 N. J. Law 409 [47 Atl. Rep. 427.]</p> <p>Negligence of the defendant company in permitting plaintiff below to ride upon the rear bumper. Kinkade v. Railway, 9 Misc. 273 [29 N. Y. Supp. 747]; Spooner v. Railway, 54 N. Y. 230 [13 Am. Rep. 570]; Werle v. Railway, 98 N. Y. 650; Bruno v. Railway, 147 N. Y. 711 [42 N. E. Rep. 722] ; Pollingsworth y. Railway, 12 Circ. Dec. 100 (21 R. 536) ; Vail v. Railway, 7 Circ. Dec. 28 .(13 R. 494) ; Mt. Adams & E. P. Inc. P. Ry. y. Isaacs, 10 Circ. Dec. 49 (18 R. 177) ; Schwartz v. Railway, 4 Circ. Dec. 272 (8 R. 484), affirmed, Cincinnati St. Ry. v. Schwartz, 33 Bull. 131.</p>

<p>JUSTICE OF THE PEACE — TRIAL.</p> <p>Justice of Peace may Hear Evidence and Arguments Outside of his Township by Consent.</p> <p>A justice of the peace who' has jurisdiction of the subject-matter of a civil action, may by consent of all the parties, hear the evidence and arguments of counsel outside of the township in which he resides and for which he was elected. Such procedure is not, in such case, obnoxious to Lan. R. L. 914 (R. S. 582) defining the jurisdiction of justices ■ in civil actions.</p>

<p>Error to Hamilton common pleas court.</p> <p>' Breach of covenants of title. Funk v. Cresswell, 5 Iowa 62; Loomis v. Bedel, 11 N. H. 74; Hárrison v. Boring, 44-Tex. 255; Long v. Moler, 5 Ohio St. 272; Burr v. Lamáster, 30 Neb. 688 [46 N. W. Rep. 1015; 9 L. R. A. 637; 27 Am. St. Rep. 428]; Stambaugh v. Smith, 23 Ohio St. 584; Craig v. Heis/ 30 Ohio St. 550; Rawle, Covenants 270, 281-296; Coburn v. Litchfield, 132 Mass. 449; Braman v. Bingham, 26 N. Y. 483; Foote v. Burnet, 10 Ohio 317 [36 Am. Dec. 90].</p> <p>Where there is merely a conveyance of the “right, title and interest” of grantor in and to premises described in a deed, there is no liability on the part of the grantor for outstanding liens or interests. 8 Am. & Eng. Enc. Law (2 ed.) 71; Devlin, Deeds Sees. 27 and 931; Tiedeman, Real Prop. See. 858; Rawle, Covenants Sees. 250, 298; Hoxie v. F-inney, 82 Mass. (16 Gray) 332; Allen v. Holton, 37 Mass. (20 Pick.) 458; Blanchard v. Brooks, 29 Mass. (12 Pick.) 47; Sweet V. Brown, 53 Mass.- (12 Mete.) 175 [45 Am. Dee. 243] ; Reynolds v. Shaver, 59 Ark. 299 [27 S. W. Rep. 78; 43 Am. St. Rep. 36]; Bumpass v. Anderson, 51 S. W. Rep. 1103 (Tex. Civ. App.); Young v. Clippinger, 14 Kan. 148-, Shumaker v. Johnson, 35 Ind. 33; Ballard v. Child, 46 Me. 152; Lamb v. Wakefield, 14 Fed. Cas. 1040 [1 Sawy. 251]; Bigelow, Estoppel (5 ed.) 402; Stockwell v. Couillard, 129 Mass. 231; Buckner v. Street, 15 Fed. Rep. 365; McNear v. McComber, 18 Iowa 12; Bates v. Foster, 59 Me. 157; see Hanrick v. Patrick, 119 U. S. 156 [7 Sup. Ct. Rep. 147; 30 L. Ed. 396], last syllabus and opinion by Judge Mathews.</p> <p>Even though the grantor had not limited the grant of “all her right, title and interest” in the property itself, the deed containing no covenants of title, seizin or right to convey, and merely covenanting against the acts of the grantor or those claiming by, through or under her, there can be no recovery for the breach of the covenants where the lien was not created by the grantor. Tiedeman, Real Prop. Sec. 858; Buckner v. Street, 15 Fed. Rep. 365; Lamb v. Kamm, 14 Fed. Gas. 1014 [1 Sawy. 238] ; 14 Am. Dig. (Cent, ed.) 86; Harrison v. Boring, 44 Tex. 255; Derrick v. Brown, 66 Ala. 162; Shuler v. Hardin, 25 Ind. 386; Headrick v. Wisehgrt, 41 Ind. 87; Steele v. Bank, 79 Iowa 339 [44 N. W. Rep. 564; 7 L. R. A. 524; 18 Am. St. Rep. 370]; Thorn v. Newsom, 64 Tex. 161 [53 Am. Rep. 747]; Villa v. Rodriguez, 79 II. S. (12 Wall.) 323 [20 L. Ed. 406]; Boone, Real Prop. Sec. 324; Mann v. Best, 62 Mo. 491.</p>

Whether on an appeal, under Lan. R. L. 10071 (R. S. 6494), from the decision of a justice of the peace overruling a motion filed to discharge an attachment, evidence may be heard on other grounds than those assigned in the original motion filed before such justice. Rogers v. PrushansJcy, 13-23.0. C. C. 271; Remington v. Harrington, 8 Ohio 507.

The court erred in overruling the motion for a judgment at the conclusion of the plaintiff’s testimony. Stewart v. Gordon, 60 Ohio St. 170 [53 N. E. Rep. 797]; Northwestern Ohio Nat. Gas Co. v. Tiffin {City), 59 Ohio St. 420 [54 N. E. Rep. 77]. A pa^ty seeking reformation of an instrument must show that he was without negligence in the matter. Miller v. Bailway, 162 Mo. 424 [63 S. W. Rep. 85] ; Persinger v. Chapman, 93 Va. 349 [25 S. E. Rep. 5]; 24 Am. & Eng. Ene.

<p>BILLS AND NOTES — PARTIES—PLEADINGS.</p> <p>1. Holder of Note by Indorsement Prima Facie Owner, and may Sue Thereon.</p> <p>The holder of a promissory note indorsed in blank by the payee, is prima facie the owner thereof, and entitled to sue thereon in his own name; and the introduction of the note in evidence by the holder thereof, in an action brought to enforce its collection, makes a prima facie case in his favor.</p> <p>2. Holder of Note for Collection only cannot Sue in Own Name.</p> <p>An action cannot be maintained upon a promissory note by a party to whom it has been transferred by indorsement or delivery for the purpose of collection only. Such holder is not the real party in interest, within the meaning of Lan. R. L. 8508 (R. S. 4993).</p> <p>3. Defendant Need not Show that Valid Defense Exists against Payee, when.</p> <p>Where the evidence shows that plaintiff is not owner of the note sued upon, the defendant is not required to go further and show that a valid defense exists in his favor against the payee, in order to defeat a recovery.</p> <p>4. Immaterial Amendment Required by Court not Prejudicial, etc.</p> <p>The action of the court in requiring the defendant to amend his answer in such a way as to add nothing to the defense clearly meant to be made by the original answer, is not prejudicial.</p> <p>5. Exclusion of Evidence Tending to Show Immaterial Fact not Prejudicial.</p> <p>The exclusion of evidence offered by defendant because the fact sought to be proved was one which defendant did not need to prove to defeat the action, is not prejudicial.</p> <p>6. Silence of Cashier not Evidence that bank does not Own Note, when.</p> <p>The fact that the payee of a note stated to the maker in the presence and hearing of the cashier of the plaintiff bank, that he, payee, was going to sue on the note, and that the cashier made no objection and made no claim that the bank was the owner of the note, is no evidence that the bank was not the real owner of the note.</p>

<p>Error to Guernsey common pleas court.</p> <p>Fees of mayor. Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356]; Work v. Massie, 6 Ohio 503; Buckingham v. Railway, 10 Ohio St. 25; Lorain Plank Road Co. v. Cotton, 12 Ohio St. 263; Gottschalk v. Witter, 25 Ohio St. 76; Van Hagan, Ex parte, 25 Ohio St. 426; Shelby Co. (Comrs.) v. Fregó, 26 Ohio St. 488; McVey v. Ohio-University, 11 Ohio 134; State v.'Perrysburg (Mayor), 14 Ohio St. 472; Knox Co. (Comrs.) v. McComb, 19 Ohio St. 320; State v. Franklin Co. (Comrs.) 20 Ohio St. 421; Shunk v. Bank, 22 Ohio St. 508 [10 Am. Rep. 762]; State v. Newton, 26 Ohio St. 200; Allen v. Russell, 39 Ohio-St. 336; Commissioners v. Board of Pub. Works, 39 O. S. 628.</p>

<p>LOCAL OPTION LAW — BEAL ACT CONSTITUTIONAL — KEEPING PLACE AND SELLING DISTINCT OFFENSES.</p> <p>1. Jurisdiction or Mayor to Hear and Determine Misdemeanors.</p> <p>The mayor of the city" of Youngstown has jurisdiction to hear and. finally determine misdemeanors notwithstanding the act of April 26, 1904 (97 O. L. 623) where no imprisonment is part of the penalty, and of such character is a charge under- Lan. R. L. 7273 (R. S. 4364-20a) for the first offense.</p> <p>2. Swankey an Intoxicating Liquor under the Statute.</p> <p>The trial court having determined that a malt liquor is intoxicating, the judgment of such court will not be reversed unless such judgment is manifestly against the weight of the evidence, and in the case of a malt liquor known as swankey it does not so manifestly appear, but on the contrary it clearly appears in this case that such malt liquor is an intoxicating liquor, under the statute.</p>

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

<p>INSURANCE — FIRE.</p> <p>Removal of Goods Insured Defeats Recovery Notwithstanding Agent Promised to See Proper Entries Made.</p> <p>Where goods insured “while located and contained as described herein, and not otherwise” under a standard form policy, are removed to another location without the written consent of the company to such removal indorsed upon the policy, there can be no recovery under the policy for loss by fire sustained after such removal, notwithstanding the insured notified the agent of the company of the proposed removal and the agent said he would attend to the matter and see that the proper entries were made so that the Insurance would be preserved. Ohio Farmers Ins. Go. v. Bur get, 9 Circ. Dec. 369 (17 R. 619) distinguished.</p>

<p>EVIDENCE — ADMISSIONS—JUDGMENTS.</p> <p>What not Sufficient Admission of Fkaud and Collusion.</p> <p>Admission by plaintiff, made in a proceeding commenced by one of two defendants, who had no knowledge of the pendency of the action, to set aside the judgment on the ground of fraud and collusion, that he took a default judgment, and that the other defendant purposely refrained from making any answer, or making any defense to the action, but denying all other allegations of the defendant 'seeking to set aside the judgment, is not, alone, equivalent to an admission of fraud and collusion between plaintiff and the codefendant. A fortiori, when the amount of the judgment did not exceed the amount due the plaintiff.</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Benjamin, Sales (1 ed.) Sec. 311, p. 281; Sec. 352, p. 290; Sec. 358, p. 301; See. 359, p. 302; Haynes v. Thompson, 80 Me. 125 [13 Atl. Rep. 276].</p> <p>The allegations in defendant’s first defense do not excuse it from paying over the money owing to the assignor to plaintiff. 2 Am. & Eng. Enc. Law (2 ed.) 1031; Gamble v. Carlisle, 6 Dec. 48 (3 N. P. 279).</p> <p>The allegations in defendant’s second defense do not constitute an excuse for their not paying plaintiff from the wages of assignor earned or to be earned under the existing employment. Gamble v. Carlisle, 6 Dec. 48 (3 N. P. 279).</p> <p>It is no defense that the assignor was removable at will, nor that he was hired for no specified time. 2 Am. & Eng. Law (2 ed.) 1031; Augur v. Belting & Packing Co. 39 Conn. 536; Harrop v. Landers, 45 Conn. 561.</p> <p>Validity of such assignments of wages. Kane v. Clough, 36 Mich. 436 [24 Am. Rep. 599]; Buple v. Bindley, 91 Pa. St. 296; East Lewis-burg Lumber, etc., Co. v. Marsh, 91 Pa. St. 96; Metcalf v. Kincaid, 87 Iowa 443 [54 N. "W. Rep. 867; 43 Am. St. Rep. 391]; Haynes v. Thompson, 80 Me. 125 [13 Atl. Rep. 276]; Garland v. Harrington, 51 N. H. 409; State v. Hastings, 15 Wis. 75; Brill v. Tuttle, 81 N. T. 454 [37 Am. Rep. 515],</p>

<p>Error to Hamilton common pleas court. '</p>

<p>Error to Hamilton common pleas court.</p> <p>As to lien of judgment. Laning R. L. 8901, 8903, 8904, 8905, 8943 , (R. S. 5375, 5377, 5378, 5379, 5415) ; Coal Co. v. Bank, 55 Ohio St. 233 [45 N. E. Rep. 630]; Cillett v. Miller, 5 Circ. Dec. 588 (12 R. 215).</p> <p>As to dower interest. Kilgore v. Miller, 10 Circ. Dec. 464 (19 R. 93); Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Giauque & McClure, Present Value Tables 164; Black v. Kuhlman, 30 Obio St. 196; Unger v. Leiter, 32 Ohio St. 210.</p> <p>As to priorities and distribution. Laning R. L. 8969 (R. S. 5440) ; Jackson v. Beid, 32 Ohio St. 443; Kelly v. Duffy, 31 Ohio St. 437; Cooper v. Cooper, 24 Ohio St. 488; McConville v. Lee, 31 Ohio St. 447; Boig v. Schults, 42 Ohio St. 165; Niehaus v. Faul, 43 Ohio St. 63 [1 N. E. Rep. 87]; Nixon v. Vandyke, 1 Circ. Dec. 364 (2 R. 63) ;• Knepfle, In re, 6 Dec. 417 (4 N. P. 213) ; Simmons v. Moore, 13-23 O. C. C. 11; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Loomis v. Building Assn. 37 Ohio St. 392; Van Thorniley v. Peters, 26 Ohio St. 471; Finley v. Bank, 1 O. S. C. D. 236 (32 Bull. 382).</p>

<p>FRAUDULENT CONVEYANCES — EVIDENCE.</p> <p>Presumption in Favor of Bona Fide Character of Conveyance.</p> <p>The burden of proof as to the fraudulent nature of a conveyance rests upon those seeking to have it set aside, and any doubt as to the Bomb’ fide character of the transaction must be resolved in favor of the defendants.</p>

<p>Error to Lucas common pleas court.</p> <p>Stare decisis. Yost v. Brewery Co,. 10 Circ. Dec. 693 (20 R. 26) ; Maumee Brewing Co. v. Yost, 63 Ohio St. 563 [60 N. E. Rep. 1132]; Pump v. Lucas Co. (Comrs.) -69 Ohio St. 448 [69 N. E. Rep. 666]; 26 Ene. Law (2 ed.) 179; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Price v. Toledo, 25 O. C. C. 617; State v. The Judges, 21 Ohio St. 1; State v. Lewis, 69 Ohio St. 202 [69 N. E. Rep. 132]; Willis v. Owen, 43 Tex. 41; Cleveland v. Wick, 18 Ohio St. 304; Cin. L. & N. By. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 529; 49 L. R. A. 566].</p>

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

<p>ERROR — PLEADING—CORPORATION—JUDGMENTS.</p> <p>1. Appeal to Circuit Court Brings up all Questions upon Pleadings (Lan. R. L. 8734).</p> <p>An appeal from the common pleas to the circuit court brings up all questions upon the pleadings, whether raised by demurrer or otherwise, in the same manner as they would be raised had the latter court had original jurisdiction of the case. Such practice is not opposed to Lan. R. L. 8734 (R. S. 5225).</p> <p>2. Additional Allegations may be Made in Supplemental Petition, when.</p> <p>Where the petition in an action to enforce the liability of stockholders was held insufficient merely because it did not allege that a judgment had been recovered against the corporation, which remained unsatisfied for want of property whereon to levy, a supplemental petition adding such allegation to the allegations of the original petition, but in no other way changing the original petition, will not be stricken from the files on account of such additional allegation.</p> <p>3. Judgment against Corporation Res Adjudicata against Stockholders, etc.</p> <p>A judgment against the corporation for an indebtedness, which still remains in full force and effect, and unreversed, is res adjudicata against the stockholders as to the amount of the indebtedness in an action against them to enforce their liability.</p> <p>4. Liability of Stockholder for Corporate Debts not Discharged by Transferring Stock (Lan. R. L. 5202).</p> <p>Prior to the amendment of Lan. R. L. 5202 (R. S. 3258) on April 29, 1902 (95 O. L. 312), the liability of stockholders to creditors for corporate debts attached at the time the debt was created, and was not discharged by the subsequent transfer of the stock.</p> <p>5. Stockholders Still Liable for Debts Contracted while Holders of Stock under Dan. R. L. 5202.</p> <p>A stockholder of an Ohio corporation is not relieved from liability to creditors for debts contracted while he was a stockholder by the act of April 29, 1902 (95 O. L. 312), amending Lan. R. L. 5202 (R. S. 3258), notwithstanding the debts did not become due and enforcible until after the passage of said act, and until after he had transferred his stock. A construction which would restrict the liability of stockholders to such debts as were due and collectible before they transferred their stock, would render said act obnoxious to Sec. 16, Art. 5 of the constitution.</p>

<p>ESTOPPEL — INJUNCTION—MUNICIPAL CORPORATIONS— PARTIES.</p> <p>1. Taxpayer Estopped prom Questioning Action oe Council, when.</p> <p>An objection that the action of the municipal council in allowing the board of public service to exercise its discretion in choosing the material to be used in making a public improvement, was an unwarrantable delegation of its legislative authority, cannot be successfully raised by a taxpayer who, together with all others whom he represents, had watched, without objection or protest, the improvement to its completion. A fortiori when the material actually used was authorized by the council. Laning R. L. 3611 (B. 1536-220), examined, and held to support this conclusion.</p> <p>2. Certificate of Auditor Filed before Contract Let, is in Time.</p> <p>The certificate of the municipal auditor that sufficient money is in the city treasury to pay for the proposed improvement, is in time if filed before the contract for the improvement is let. Braman v. Elyria, 26 O. C. C. 731, approved and followed.</p> <p>3. False Certificate of Auditor does not Invalidate Contract, when.</p> <p>The fact that the certificate filed by the municipal auditor, as required by Sec. 45 of the new municipal code (Lan. R. L. 3999; B. 1536-205), to the effect that sufficient money to pay for a proposed improvement is in the city treasury, was in fact false, is not sufficient to sustain the charge of fraud and thereby invalidate the contract made for the improvement, when it appears that the parties in good faith, and relying upon the advice of the city solicitor, honestly believed it to be true. A fortiori, when the section referred to is fairly open to the construction placed upon it by the parties.</p>

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

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

<p>COURT — GUARDIAN.</p> <p>Circuit Court has no Jurisdiction to Review Order of Common Pleas Removing or Refusing to Remove Guardian.</p> <p>An order removing or refusing to remove a guardian for cause is not an order affecting a substantial right, within the purview of Lan. R. L. 10297 (R. S. 6707), from which, in the absence of special statutory-provisions, either appeal or error can he prosecuted; and Lan. R. L. 9983 (R. S. 6407), as amended (95 O. L. 406), which provides for the appeal from the probate court to the common pleas court of, such orders confers no jurisdiction on the circuit court to review the order of the common pleas court.</p>

<p>Error to Allen common pleas court.</p> <p>As to the purchase-money mortgages. Culver v. Harper, 27 Ohio St. 464; Fox v. Pratt, 27 Ohio St. 512; Welch v. Buckins, 9 Ohio St. 331; Unger v. Leiter, 32 Ohio St. 210; Folsom v. Rhodes, 22 Ohio St. 435; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Kling v. Ballentine, 40 Ohio St. 391; Holbrook v. Finney, 4 Mass. 566 [3 Am. Dec. 243]; Carter y. Goodin, 3 Ohio St. 75; 2 Story, Eq. Jurisp. Sec. 1218; Washburn, Real Prop. 190.</p> <p>As to the mortgage assumed. Flliott v. Plattor, 43 Ohio St. Í98 [1 N. E. Rep. 222]; Ward v. Carey, 39 Ohio St. 361; King v. Stetson, 93 Mass. 407; Clark v. Munroe, 14 Mass. 351; Haselton v. Lesure, 91 Mass. 24; Seibert v. Todd, 31 S. C. 206 [9 S. E. Rep. 822; 4 L. R. A. 606] ; Boynton v. Sawyer, 35 Ala. 497; Thomas v. Hanson, 44 Iowa 651; Moore v. Rollins, 45 Me. 493; Glenn v. Clark, 53 Md. 580; Mc-Cauley v. Grimes, 2 Gill. & J. (Md.) 318; McGowan v. Smith, 44 Barb. 232; Jones v. Parker, 51 Wis. 218 [8 N. W. Rep. 124].</p> <p>As to the question of subrogation. Joyce v. Haunts, 55 Ohio St. 538 [45 N. E. Rep. 900]; TJnger v. Letter, 32 Ohio St. 210.</p> <p>As to the purchase-money mortgages. Carter v. Goodin, 3 Ohio St. 76; Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842]; Kling v. Ballentine, 40 Ohio St. 391; Black v. Kuhlman, 30 Ohio St. 196; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627].</p> <p>Wife’s inchoate right of dower is not derived from her husband, but it vests at the moment of the grant to her husband and she takes it constructively as purchaser from the grantor. Kursheedt v. Savings Inst. 118 N. Y. 358 [23 N. E. Rep. 473; 7 L. R. A. 229]; McArthur v. Franklin, 15 Ohio St. 485; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627] ; Folsom v. Rhodes, 22 Ohio St. 435; State Bank v. Hinton, 21 Ohio St. 509; Kling v. Ballentine, 40 Ohio St. 391; Society for Savings v. Drake, 6 Circ. Dee. 31 (10 R. 59).</p> <p>Subrogation. 3 Pomeroy, Eq. Jurisp. 1855; 3 Pomeroy, Eq. Jurisp. Secs. 1211, 1212; Joyce v. Daunts, 55 Ohio St. 538 [45 N. E. Rep. 900]; Amick v. Woodworth, 58 Ohio St. 86 [50 N. E. Rep. 437]; 24 Am. & Eng. Enc. Law (1 ed.) 228, 281; Jefferson v. Edrington, 53 Ark. 545 [14 S. W. Rep. 99] ; Smith v. Stephens, 164 Mo. 415 [64 S. W. Rep. 260].</p>

<p>Error to Paulding common pleas court</p>

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS.</p> <p>1. Assessment According to Benefits, Dependent upon Depth of Lots anp Relative Value after Improvement Made.</p> <p>An assessment for improvements levied on lots on a basis of frontage, without reference to the depth thereof or the relative value of each after the improvement was made, is not an assessment in proportion to the benefits, within the statutory meaning.</p> <p>2. Circuit Court will Enjoin Assessment Fraudulently Purporting to be According to Benefits but Actually on Basis of Frontage.</p> <p>The collection of an assessment actually made upon a basis of frontage, although the journal of the board of public service contains recitals that such assessment was levied according to benefits, will be enjoined.</p>

<p>Error to Hamilton common pleas court.</p> <p>Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. ■781; 83 Am. St. Rep. 725]; State v. Bridge Co. 54 U. S. (13 How). 518 [14 L. Ed. 249]; Canada Northern By. v. Bridge Co. 7 Fed. Rep. 653; Zanesville v. Telephone & Tel. Co. 63 Ohio St. 442, 443 [59 N. E. Rep. 109]; 26 Am. & Eng. Enc. Law (2 ed.) 611; 27 Am. & Eng. Enc. Law (2 ed.) 1002; Edison General Elec. Co. v. Cincinnati {City), Goebel 304; Cin. <& S. G. Ave. St. By. v. Cumminsville, 14 Ohio St. 523; State v. Bailway, 24 O. O. C. 609; Bailway v. Cincinnati, 66 Ohio St. 639 [65 N. E. Rep. 1132]; State v. Bailway, 37 Ohio St. 157; State v. Murphy, 170 U. S. 78 [18 Sup. Ct. Rep. 505; 42 L. Ed. 955]. See also, Cirdeville Light & Power Co. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 436]; Chamberlain v. Bailway, 15 Ohio St. 225; Baymond v. Bailway, 10 Dec. Re. 416 (21 Bull. 103) ; Lewis, Em. Dom. Secs. 254, 391; Miami Coal Co. v. Wigton, 19 Ohio St. 560; Currier v. Bailway, 11 Ohio St. 228; Platt v. Pennsylvania Co. 43 Ohio St. 228 [1 N. E. Rep. 420]; Atlantic (S; O. By. v. Sullivant, 5 Ohio St. 276; Atkinson v. Bailway, 15 Ohio St. 21; Powers v. Bailway, 33 Ohio St. 429; State v. Insurance Co. 49 Ohio St. 440 [31 N. E. Rep. 658; 34 Am. St. Rep. 573]; Marshall,, Corporations Sec. 511.</p> <p>Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 83 Am. St. Rep. 725]; Macklin v. Telephone Co. 24 O. C. C. 446; Circleville Light & Power Co. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 436]; Brush Elec. Light Co. v. Electric Co. 3 Giro. Dec. 168 (5 R. 340),. affirmed by Supreme Court, Brush Elec. Light Co. v. Electric Co. 29-Bull. 72; Cin. Inc. Plane By. v.'Telegraph Assn. 48 Ohio St. 390 [27 N. E. Rep. 890; 12 L. R. A. 534; 29 Am. St. Rep. 559]; State v. Insurance Co. 49 Ohio St. 440 [31 N. E. Rep. 658; 34 Am. St. Rep. 573]., That case was not modified by Messier v. Punch & Shear Works Co. 61 Ohio St. 621 [56 N. E. Rep. 469]; Powers v. Bailway, 33 Ohio St. 429; Zanesville v. Gas Light Co. 47 Ohio St. 1 [23 N. E. Rep. 55],</p> <p>Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 83 Am. St. Rep. 725]; Lan. R. L. 5602 (R. S. 3471-1).</p> <p>Ash v. Ash, 9 Ohio-St. 383; Tyler v. Winslow, 15 Ohio St. 364; Hamilton v. Steamboat, 16 Ohio St. 428; Stannard v. Case, 40 Ohio St. 211; Collins v. Millen, 57 Ohio St. 289 [48 N. E. Rep. 1097]; Conger v. Barker, 11 Ohio St. 1; Boley v. Insurance & Tr. Co. 12 Ohio St. 139; Dutoit v. Doyle, 16 Ohio St. 400; Brower v. Hunt, 18 Ohio St. 311; Commonwealth v. Warwick, 185 Pa. St. 623 [40 Atl. Rep. 93]; Brown v. Piper, 91 U. S. 37 [23 L. Ed. 200]; Phillips v. Detroit, 111 U. S. 604 [28 L. Ed. 532]; King v. Gallun, 109 U. S. 99 [27 L. Ed. 870]'; State v. Board of Pub. Works, 36 Ohio St. 409; State v. Railway, 37 Ohio St. 157; State v. Chase, 5 Ohio St. 528; Powers v. Railway, 33 Ohio St. 429; Atlantic & O. Ry. v. Sullivani, 5 Ohio St. 276; Atkinson v. Railway, 15 Ohio St. 21; Miami Coal Co. v. Wigton, 19 Ohio St. 560; Toledo & W. Ry. v. Daniels, 16 Ohio St. 390; Platt v. Pennsylvania Co. 43 Ohio St. 228 [1 N. E. Rep. 420] ; State v. Insurance Co. 49 Ohio St. 440 [31 N. E. Rep. 658; 34 Am. St. Rep, 573]; Kent v. Bierce, 6 Ohio 336; Collier v. Johnson, 7 Ohio (pt. 1) 235; State v. Blake, 2 Ohio St. 147; Moore v. Given, 39 Ohio St. 661; Railway v. Jump, 50 Ohio St. 651 [35 N. E. Rep. 1054].</p>

<p>MASTER AND SERVANT — NEGLIGENCE—RAILROADS.</p> <p>1. Bbakeman Injured by Failure of Conductor to Protect Him from Danger may Recover from Company,' when.</p> <p>Where a brakeman is ordered by the conductor to make the coupling of the last cut of three cuts of cars, hut demurs for fear of being caught between the cars, but finally takes his position between the cars for such purpose under the promise of the conductor to protect him, and, while in such position, is injured as a result of the negligent act of the conductor in having the engineer back the cars upon him, in such case he is entitled to recover from the company for the injuries sustained, no.twithstanding a rule of the company making it the duty of its employes to refuse to obey any order which would imperil their life or limb.</p> <p>2. Petition Sufficiently Charges Negligence, when.</p> <p>A petition in such case which alleges that the defendant company by and through its conductor, who was superior in authority to plaintiff, was negligent in ordering him between the cars, and then signaling the engineer to back the cars upon him, and that, in obeying the order, he acted and relied upon the' conductor’s promise of protection, sufficiently states a cause of action of negligence.</p>

There was a sufficient seizure and possession of enough of the defendant’s property to have given the magistrate jurisdiction to render judgment on the plaintiff’s claim. Reich v. Building Go. 11 Dec. 418 (8 N. P. 234); Davis v. Lewis, 8 Circ. Dee. 772 (16 R. 138); Leonard v. Lederer, 8 Dee. 711; Whitman v. Keith, 18 Ohio St. 134.

<p>Appeal from Lucas common pleas court.</p> <p>The petition was not necessary. Sections 2264 and 2267 Rev. Stat. as in force in 1899; Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1]; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Douglass v. Pike Co. 101 ü. S. 677 [25 L. Ed. 968]; See. 26, Art. 2 Ohio Const.</p> <p>As to the policy of the statute in the duty imposed upon municipalities to keep streets open and in repair. Original Sees. 2263, 2264, 2640-(repealed, 96 O. L. 96; see Lan. R. L. 3980, 3600, 3602, 3923; B. 1536-192, 1536-210, 1536-211, 1536-131); Lan. R. L. 3974 (R. S. 2680a; B. 1536-938).</p> <p>The petition was sufficient. Original Sec. 2267 (repealed 96 O. L.. 96; see Lan. R. L. 3612; B. 1536-221) ; Grinnell v. Adams, 34 Ohio St. 44; Columbus (City) v. Slyh, 44 Ohio St. 484 [8 N. E. Rep. 302]; Cincinnati (City) v. Davis, 58 Ohio St., 225 [50 N. E. Rep. 918].</p> <p>The board of council could reconsider its action and pass the resolution at its next regular meeting after the resolution had been once defeated. 1 Dillon, Munic. Corp. (4 ed.) Sec. 290, p. 366; Jersey City v. State, 30 N. J. Law (1 Vroom) 521; Bigelow v. Hillman, 37 Me. 52-Smith, Munic. Corp. Secs. 306, 307 and 311; Hough v.' Bridgeport (City), 57 Conn. 290 [18 Atl. Rep. 102]; Red v. Augusta (City Council), 25 Ga. 386; People v. Rochester (City), 5 Lans. (N. Y.) 11.</p> <p>As to what cost and expense may be assessed. Laning R. L. 3654 (R. S. 2284) ; McGlynn v. Todelo, 12 Circ. Dec. 15 (22 R. 34).</p>

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

Laning R. L. 8821 (R. S. 5305) provides for what causes a new trial may be granted. Laning R. L. 8643 (R. S. 5128) defines an issue of fact. On a motion to discharge an attachment, there is no issue of fact, within the meaning of the statutes; therefore, a motion for a new trial is not authorized by law. Stone v. Savings & Bank. Co. 4 Circ. Dee. 354 (8 R. 636) ; Thomas v. Mangus, 25 O. C. C. 649; Minnear v. Hollaway, 56 Ohio St. 148 [46 N. E. Rep. 636].

<p>Error to Lorain common pleas court.</p> <p>The affidavit is insufficient because it omits to charge the alleged offense or offenses therein attempted to be charged, as having been wilfully committed, as required by the ordinance. Drake v. State, 19 Ohio St. 211; Arata v. State, 12 Dec. 730.</p> <p>The affidavit fails to charge the alleged offense or offenses as having been committed to-the annoyance of the citizens “of this village or any portion thereof,” as defined by the ordinance. Hummel v. State, 10 Dec. 492 (8 N. P. 48) ; Jefferies v. Defiance, 11 Dec. Re. 144 (25 Bull. 68) ; Pope v. Cincinnati, 2 Circ. Dec. 285 (3 R. 497); Davis v. State, 19 Ohio St. 270; State v. Bitzman, 8 Dee. 685 (7 N. P. 613).</p> <p>The affidavit is also duplicitous. Mulkauser v. State, 25 O. C. C. 81.</p> <p>The affidavit in its material and constituent facts, describing the acts done by the defendant, charges an assault and battery only. Hummel v. State, 10 Dec. 492 ( 8 N. P. 48); Lamberton v. State, '11 Ohio 282; Bedmond v. State, 35 Ohio St. 81.</p> <p>The mayor has no jurisdiction to punish or hear except for purpose of binding over on assault and battery charge. Wellsville v. O’Connor, 24 O. C. C. 689; Lan. E. L. 10899, 10900 (E. S. 7146, 7147) ; Winn v. State, 10 Ohio 345.</p> <p>New trials. Stone v. State, 12 Dec. 154; Lan. E. L. 3359 (E. S. 1826; B. 1536-878).</p> <p>Disorderly conduct. Jefferies v. Defiance, 11 Dec. Ee. 144 (25 Bull. 68) ; Vanvalkenburg v. State, 11 Ohio 404.</p>

<p>Error to Huron common pleas court.</p> <p>Testamentary capacity. Page, Wills 114; 25 Am. & Eng. Ene. Law (1 ed.) 970; Redfield, Wills 129; Schouler, Wills (2 ed.) Sec. 68; 1 Schouler’s Jarman, Wills (6 Am. ed.) 63; Thompson, Trial Evidence-Par. 1121; Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43); Wears V. Wears, 15 Ohio St. 90; Haynes v. Haynes, 33 Ohio St. 598 [31 Am. Rep. 579]; Mitten v. Young, 8 Circ. Dec. 391 (18 R. 571); Beresford v. Stanley, 9 Dec. 134 (6 N. P. 38); Kettemann v. Metzger, 13-23 O. C. C. 61; Kime v. Addlesperger, 24 O. C. C. 397; Bewell v. Warden, 24 O. C. C. 344.</p> <p>Declarations of one legatee not admissible against rights of other-legatees. Roush v. Wensel, 8 Circ. Dec. 141 (15 R. 133) ; Behrens v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820]. Alleged errors in charge to jury. Kuhl v. Reichert, 25 O. C. C. 693.. Insanity, delusions, insane delusions. Thompson, Trial Evidence-Par. 1122; Edwards v. Davis, 11 Re. 876 (30 Bull. 283); Boardman v.. Woodman, 47 N. H. 120, 140; Fraser v. Jennison, 42 Mich. 206 [3 N. W. Rep. 882]; Dunham’s Appeal, 27 Conn. 192; Crum v. Thornley, 47 111. 192; Hall v. Hall, 38 Ala. 131; Cole, In re, 49 Wis. 179 [5 N. W. Rep. 346]; Potter v. Jones, 20 Ore. 239 [25 Pac. Rep. 769; 12 L. R. A. 161]; General Convention v. Crocker, 4 Circ. Dec. 619 (7 R. 327) ; Rappv. Becker, 26 O. C. C. 321; Clark v. State, 12 Ohio 483 [40 Am. Rep. 481],</p>

<p>Appeal from Hamilton common pleas court.</p> <p>On the question of partition. Rammelsberg v. Mitchell, 29 Ohio St. 22, 58; Perry v. Richardson, 27 Ohio St. 110; Eogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71]; Fryman v. Fryman, 6 Cire. Dec. 377 (9 R. 91); 4 Kent’s Commentaries *126, *129: Spaulding v. Woodward, 53 N. H. 573 [16 Am. Rep. 392]; Van Zile, Eq. PL & Pr. See. 412; Gage v. Reid, 104 111. 509; Eillens v. Brinsfield, 108 Ala. 6P5 [18 So. Rep. 604]; Freeman, Co-ten. & Par. Sec. 449; Scott v. Guernsey, 60 Barb. 163; Eosford v. Mervin, 5 Barb. 51; Rosier v. Griffith, 31 Mo. 171; Dameron v. Jameson, 71 Mo. 97; Barnard v. Pope, 14 Mass. (13 Tyng) 434, 436 [7 Am. Dec. 225]; King v. Longworth, 7 Ohio (pt. 2) 231; Olcott v. Bynum, 84 U. S. (17 Wall.) 44; Gordon y. Steinmetz, 71 Ohio St. 372; Anderson v. Gary, 36 Ohio St. 506 [38 Any Rep. 602; Washburn, Real Prop. (6 ed.) See. 143.</p>

<p>EMBLEMENTS — FIXTURES.</p> <p>Manure is a Fixture, but Hay and Straw are Generally Treated as Chattels.</p> <p>Manure made on a farm is, at the common law, classed as a fixture; but with, respect to bay and straw, they are not, as a general rule, classed as sucb, although it is common practice in leasing farms to expressly covenant that they shall he treated as if in the same category; hut in the absence of such express covenant, they retain their character as chattels, and may he removed by the tenant at the expiration of his term.</p>

<p>BANKS AND BANKING — DEPOSITS—RECEIVERS.</p> <p>Deposit with an Insolvent Bank — When Same can be Charged upon the Fund in the Hands oe Receiver.</p> <p>Where a general deposit is made in a bank which at the time is hopelessly insolvent which insolvency is known to the cashier who is the general manager of the bank and unknown to the depositor, the other officers taking no control over the business whatever, and immediately after such deposit the bank fails and goes into the hands of receivers, the fund coming into the hands of the receivers being much more than the amount of such deposit, and increased by the amount of the deposit: Held, that the depositor has a right by a suit in equity against the receivers to charge such deposit upon the fund in the hands of the receivers, and have the same paid in preference to the general creditors.</p>

No one can raise the question of the validity of a contract, except a party thereto or some one in privity with him, or the person for whose benefit the contract was made or some one in privity with him, and the plaintiff in error does not come within this rule. MaGuire v. Supreme Council, 59 App. Div. 143 [69 N. Y. Supp. 61]; Markey v. Supreme Council, 79 N. Y. Snpp. 1069; Taylor v. Hair, 112 Fed. Rep. 913; Tepper v. Supreme Council, 61 N. J. Eq. 638 [47 Atl.

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

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

<p>BILLS OF EXCEPTIONS — ERROR.</p> <p>Bill or Exceptions Shows on its Face that it does not Contain all the Evidence, when.</p> <p>A hill of exceptions shows on its face that it does not contain all of the evidence, thereby precluding a reviewing court from considering the weight of the evidence, where it appears therefrom that a part of the evidence in the lower court consisted of illustrations or demonstrations by models of machinery, and there is nothing in the bill to show where the witnesses and counsel stood with reference to the models, what they pointed out, and where they placed their hands except by such words as “here,” “there,” “like that,” and the word “indicating” in parenthesis inserted by the stenographer.</p>

<p>ENTAILED ESTATES — APPEALS.</p> <p>Confirmation of Investment of Proceeds of Sale of Entailed Estate, a Pinal Order, within Purview of the Statute.</p> <p>An order confirming the report of a trustee as to the investment or other disposition of the proceeds from the sale of an entailed estate, under favor ' of Lan. R. L. 9340 to 9351 (R. S. 5803 to 5813), is a final order in a civil action in which the right of trial by jury does not exist, and is therefore appealable.</p>

<p>VENDOR AND PURCHASER — SPECIFIC PERFORMANCE-PRINCIPAL AND AGENT — FRAUDS, STATUTE OF.</p> <p>1. Undisclosed Principal May Enforce Contract for Sale of Real Estate-Agency Proven by Parol.</p> <p>A written contract for the sale of real estate made and signed by an agent in his own name, and without disclosing his agency or the name of his principal, is binding on and may be enforced by the principal. The agency and assent of the principal may he established by parol evidence. Such contract satisfies the requirements of the statute of frauds.</p> <p>2. Signing by One Party Charged and Oral Acceptance by Other Sufficient Under Statute of Frauds.</p> <p>It is no defense to an action to compel the specific performance of a corn-tract required by the statute of frauds to be in writing, that it is not signed by both parties thereto; it is sufficient if it is signed by one of the parties to be charged, and is accepted by the other. Acceptance by tbe latter is shown-by bringing suit upon it.</p> <p>3. Marketable Title Only, and not One Unencumbered, Required by Deed Calling for "Good Warranty Deed,” etc.</p> <p>An obligation to convey real estate free from all incumbrances does not arise from an agreement calling for “a good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises.” The effect of such agreement is, that there shall be tendered a good marketable title, and a warranty for it.</p> <p>4. Building Restrictions Against Property Waived When Purchaser Makes Contract With Full Notice Thereof.</p> <p>A prospective purchaser of residence property subject to certain ordinary building restrictions which run with the land, and apply also' to the adjoining property and that of the neighborhood, waives any objection he might otherwise have made on account thereof by. entering into a contract for the purchase of the property with full knowledge and express notice of their existence; such knowledge and notice may be shown by parol evidence. And the presumption being that such restrictions are beneficial, instead of a detriment to the property, they cannot, in the absence of evidence to the contrary, he classed as incumbrances unless they affect the marketable quality of the title.</p> <p>5. Substantial Defect Necessary to Defeat Ré^l Estate Contract oe Sale.</p> <p>A substantial defect must appear to warrant a court in refusing to enforce contracts for the sale of real estate; a mere captious or technical objection, lacking substance, is not sufficient.</p> <p>6. Objections to Deed Waived by Silence of Grantee, When.</p> <p>Where a real estate contract allows the vendor forty days within which to obviate any objection which vendee may make to the title, the failure of vendee, with full knowledge of the facts, to make any objection to a matter that might have been corrected, will constitute a waiver.</p>

<p>Error to Lorain common pleas court.</p> <p>Beard v. Railway, 13-23 O. C. C. 169; Greeley Bros. v. Zeithaml, 25 O. O. C. 451.</p>

[Summit (8th) Circuit Court, Error to Summit common pleas court. In a beneficial association the certificate, constitution and by-laws constitute the contract between the members and the association. Bacon, Ben. Soc. Sec. 161; Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189 [10 N. E. Rep. 79; 11N. E. Rep. 449]; Worley v. Aid Assn. 10 Fed. Rep. 227; O’Brien v. Supreme Council, 81 App, Div. 1 [80 N. Y. Supp. 775].

<p>PLEADING — VARIANCE—SIDEWALKS.</p> <p>1. Variance not Material Unless Adverse Party Misled to His Prejudice.</p> <p>A variance between the petition and proof is not material unless the defendant has been misled to his prejudice in making- his defense upon the . merits.</p> <p>2. Description in Petition not Construed Like Description in Indictment.</p> <p>A description in the petition of the place where plaintiff sustained injuries, in an action to recover for damages sustained from falling on a defective sidewalk, will not be construed as strictly as,the description in an indictment.</p> <p>3. No Material Variance When Portions of Same Street Known by Different Name, etc.</p> <p>Where one portion of a street is known by a certain name, and the other portion thereof by another name, and the petition, in an action against a municipality to recover for damages sustained from falling on a defective sidewalk, alleges that the accident occurred on a certain street, the fact that the evidence shows that the accident occurred just a few feet from the dividing line of the two portions, and on the portion known by the other name, is not such a variance as will defeat a recovery, there being no claim, or attempt to show at the trial, that the municipality was misled thereby to its prejudice.</p>

<p>Error to common pleas court of Summit county.</p> <p>Prima facie ease made by plaintiff. Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Iron By. v. Mowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Boyd v. Electric Co. 40 Ore. 126 [66 Pac. Rep. 576; 57 L. R. A. 619]; Newark Elec. L. & P. Co. v. Buddy, 62 N. J. Law 505 [41 AtL Rep. 712; 57 L. R. A. 624].</p> <p>Duty to control dangerous substances. Gas Fuel Co. v. Andrews, 50 Ohio St. 695 [35 N. E. Rep. 1059; 29 L. R. A. 337]; Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560 [54 N. E. Rep. 528 ; 45 L. R. A. 658; 71 Am. St. Rep. 740] ; Cleveland Term. & Val. By. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; Tiffin v. McCormack, 34 Ohio St. 638 [32 Am. Rep. 408]; Wellington v. Oil Co. 104 Mass. 64.</p>

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

Quo Warranto. Petitions in quo warranto prosecuted on behalf of the state by the attorney-general to oust an incumbent of an office need not set forth the name of the person claiming to be entitled thereto. .State v. Heinmiller, 38 Ohio St. 101. Quo warranto may be maintained against a person who assumes the exercise of the office of member of the council from a ward which has no legal existence or under an election held without lawful authority.

The ordinance of 1899 terminated the rights of the company in that part of College street in question without renewing them. State v. Railway, 3 Circ. Dec. 471 (6 R. 318) ; People v. Railway, 126 N. Y. 29 [26 N. E. Rep. 961]; St. Glair Go. Tpk. Go. v. Illinois, 96 U. S. 63 [24 L. Ed. 651]; Goosaw Min. Go. v. South Carolina, 144 U. S. 550 [12 Sup. Ct. Rep. 689; 36 L. Ed. 537]; Hannibal & St. J. Ry. v. Packet Go. 125 U. S. 260 [8 Sup. Ct.

<p>ERROR — ATTORNEYS—COURTS.</p> <p>1. Errors not Deemed of Essence in Trial Court Cannot be Successfully Urged as Grounds for Reversal.</p> <p>The refusal of the trial court to give certain requested instructions to the jury, but which were not, however, deemed of' essence by the party making the request, nor seriously pressed to the attention of the court, cannot be urged in a reviewing court for the mere technical purpose of securing a reversal of a judgment which is found to be correct, and which, from the record, appears to have given substantial justice.</p> <p>2. Duty of Counsel to Preserve Trial Court from Error, etc.</p> <p>A duty devolves upon counsel for both parties to endeavor to preserve the trial court from error.</p> <p>3. Request for Instructions Before Argument not -Affirmatively Shown by Record, when.</p> <p>A statement in the record: “And thereupon before argument the counsel upon both sides requested special charges to be given to the jury, as follows’’, does not affirmatively show a request that the charges referred to be given before argument.</p>

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

<p>INSURANCE — WAIVER.</p> <p>1. Fire Insurance — Stipulation that Waiver op Condition of Policy, must be in Writing Strictly Construed — Filing of Proofs of Loss.</p> <p>A policy of fire insurance contained a stipulation that a written and sworn statement of the extent of the loss, etc., should he filed with the company insuring within sixty days after the loss occurred, and also that a change in, or a waiver of, any of the- terms of the policy could’ not be made Dy any officer, agent or other representative of the company unless such change or waiver be written on or attached to the policy itself. A loss under the policy occurred and the company sent its general agent, who had charge of all the local agents in the state, to examine the conditions of the loss with a view to adjustment. Acting on the words and conduct of this agent the insured delayed filing his proofs of loss- as required until more than sixty days had elapsed since the loss. In an action on the policy to recover for the loss in question it was held that the trial judge rightly directed the jury to return a verdict for the defendant at the close of the plaintiff’s testimony because it appeared that the proofs of loss had not been filed within the time stipulated and the stipulation of the policy for a written waiver was an essential part of the policy to which the insured assented by accepting the policy, and no agent could waive this condition of the policy as to filing proofs of loss, properly prepared, within the time specified, except in the manner stated in the policy. The doctrine of Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529, applies equally as well to cases of fire insurance as to cases of employers’ liability insurance. — ■ Parker, J., dissents.</p> <p>2. That Waiver of Conditions in Policy of Fire Insurance must be in Writing Applies to what Occurs after the Loss.</p> <p>A provision in a policy of fire insurance that a waiver of any condition or stipulation thereof must be in writing applies as well to what occurs after a loss has been sustained, within the risk assumed by the policy, as to what may occur before the loss. — Parker, J., dissents.</p>

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

<p>Error to Huron common oleas court.</p>

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

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

On June 23, 1902, Southern Railway car No. 8,022, loaded with lumber consigned to the defendant'in error, the H. L. Mooar Lumber Company, arrived in the yards of the plaintiff in error, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company at Columbus, notice of the arrival of the car being sent to the defendant in error by the plaintiff in error on the same day.

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

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

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

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

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

<p>SIDEWALKS — NEGLIGENCE.</p> <p>Coal Vaults under Sidewalks.</p> <p>Where a person, who owns and occupies a building, permits a perforated covering over a coal vault, constructed under a sidewalk in a municipality and maintained for his own benefit, to remain unfastened below, and the same can be easily displaced by lifting the same from the rim in which it is placed either by inadvertence or design and it is so displaced, and a footman lawfully walking upon the sidewalk after dark, steps upon the covering after it is displaced which tilts and throws him into the coal hole, thereby seriously injuring him: Held, that such owner is guilty of negligence although such covering would not be displaced by ordinary travel over it, and that such negligence is the proximate cause of the injury.</p>

<p>ERROR — EVIDENCE—PRACTICE.</p> <p>1. Verdict not Reversed unless Clearly against Weight of Evidence.</p> <p>To reverse a verdict on the ground that it is against the weight of the evidence, it must be found that it was so clearly so that unbiased, unprejudiced minds could not, from the evidence adduced, have reached the conclusion which was reached by the jury.</p> <p>2. Testimony that Witness was Juryman in Former Trial of Case, not Competent to Enhance his Testimony.</p> <p>In an action to rescind a contract of sale and recover the purchase price, on the ground of a breach of warranty, it will be incompetent to show, for the purpose of enhancing the value of his testimony that a witness called to testify as to the chattel in question was a juryman in the trial of the same case in a justice’s court.</p> <p>3. To Rescind Contract for Breach of Warranty, Parties must be Placed in Statu Quo.</p> <p>In such case, the refusal of a charge is not erroneous, which failed to instruct the jury on the material point that' in order to rescind a contract for a breach of warranty, the vendee must offer to place the vendor in statu quo by the return of the property in question, without injury to it, caused by his negligence.</p> <p>4. Charge to Jury upon Question of Warranty must Explain Law of Patent and Obvious Defect.</p> <p>An instruction to the jury upon the question of a warranty of soundness, etc., which fails to state that patent and obvious defects which can he discovered without the use of .any particular skill or knowledge are not to be considered as a breach thereof, is erroneous.</p> <p>5. Taking of Notes by Juror, before Admonishment, not Prejudicial Misconduct.</p> <p>The taking of notes by a juror during the course of a trial, which, however, was discontinued upon admonishment by the court, is not misconduct for which a new trial will be granted.</p> <p>6. Horse Dealer, not a Veterinarian, may Testify as to Pathological Condition of Horse.</p> <p>• A person who has been in the habit of buying and selling horses all his life and has in fact made that his business, and who testified that he had seen hundreds of sweenied horses, although not a veterinarian, will be permitted to give his opinion as to the soundness of a horse alleged to have been sweenied.</p> <p>7. Exclusion of Testimony as to Purpose of Examination of Chattel by Witness, not Error.</p> <p>!fhe exclusion of testimony by a witness called to testify as to the soundness of a horse, concerning his purpose in making the examination, is not erroneous, as it is the result of his examination and not the purpose of it, that is material to the issue.</p>

<p>MUNICIPAL BONDS — LIMITATION OF BONDING POWER.</p> <p>1. Limitation of Bonding Power.</p> <p>The bonding power of a municipal corporation under Lan. R. L. 4294, 4295, 4297 (R. S. 2835, 2835b, 2837), is fixed at the extreme limit of 8 per cent of all the taxable property listed for taxation, in such corporations. This, however, does not include bonds to be paid by special assessments upon abutting property.</p> <p>2. Determination of Limit of Bonded Indebtedness.</p> <p>In determining whether a municipal corporation has reached or exceeded the limit of its bonding capacity, the statute contemplates the aggregate bonded indebtedness whether issued before or since said enactments and if such aggregate equals or exceeds the extreme 8 per cent limit above noted, then no further bonds may be issued until said aggregate has been reduced below said limit.</p>

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

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

<p>Error to Hamilton common.pleas court..</p> <p>Negligence of the railroad. 2 Thompson, Negligence 1873; Lake Shore é M. S. By. v. Johnston, 25 O. C. C. 41.</p> <p>Contributory negligence. Thompson, Negligence 1888; Clev. C. <& C. By. v. Crawford, 24 Ohio St. 631 [15 Am. Dec. 633]; Marietta & C. By. v. Picksley, 24 Ohio St. 654, 667; Thompson, Negligence 1626-1645; Packard v. Traction Co. 12 C. D. 822 (22 R. 578) ; Balt. & O. By. v. Van Horn, 12 C. D. 106 (21 R. 337) ; Reed v. Railway, 74 Iowa 188 [37 N. W. Rep. 149]; Peck v. Railway, 25 Utah 21 [69 Pac. Rep. 153]; Grand Trunk Ry. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep. 679; 36 L. Ed. 485]; Winstanley v. Railway, 72 Wis. 375 [39 N. W. Rep. 856]; Chicago & N. W. Ry. v. Netolicky, 67 Fed. Rep. 665 [14 C. C. A. 615; 32 U. S. App. 168]; Strong v. Railway, 61 Cal. 326; Greany v. Railway, 101 N. Y. 419 [5 N. E. Rep. 425]; Goodenough v. Railway, 55 N. J. Law 326 [27 Atl. Rep. 931]; Wheeling & L. E. Ry. v. Suhrwiar, 12 C. D. 809(22 R. 560) ; Oleson v. Railway, 143 Ind. 405 [42 N. E. Rep. 736; 32 L. R. A. 149]; McCrory v. Railway, 31 Fed. Rep. 531; Massoth v. Canal Co. 64 N. Y. 524; Puff v. Railway, 71 Hun 577 [24 N. Y. Supp. 1068].</p>

<p>Error to Richland common pleas court.</p> <p>Recovery for mental suffering: Spade v. Railway, 168 Mass. 285 [47 N. E. Rep. 88; 38 L. R. A. 512; 60 Am. St. Rep. 393] ; Walsh v. Railway, 42 Wis. 23 [24 Am. Rep. 376]; Peay v. Telegraph Co. 64 Ark. 538 [43 S. W. Rep. 965; 39 L. R. A. 463]; Morgan v. Pacific Co. 95 Cal. 510 [30 Pac. Rep. 603; 17 L. R. A..71; 29 Am. 'St. Rep. 143]; Chapman v. Telegraph Co. 88 Ga. 763 [15 S. E. Rep. 901; 17 L. R. A. 430; 30 Am. St. Rep. 183]; West v. Telegraph Go. 39 Kan. 93 [17 Pae. Rep. 807; 7 Am. St. Rep. 530]; Western Union Tel. Co. v. Ferguson, 157 Inch 64 [60 N. E. Rep. 674, 1080; 54 L. R. A. 846]; Francis v. Telegraph Co. 58 Minn. 252 [59 N. W. Rep. 1078; 25 L. R. A. 406; 49 Am. St. Rep. 507]; Connelly v. Telegraph Co. 100 Ya. 51 [40 S. E. Rep. 618; 56 L. R. A. 663; 93 Am. St. Rep. 919]; Chase v. Telegraph Co. 44 Fed. Rep. 554 [10 L. R. A. 464]; Crawson v. Telegraph Co. 47 Fed. Rep. 544;<2h/Zer v. Telegraph Co. 54 Fed. Rep. 634; Kester v. Telegraph Co. 55 Fed. Rep. 603; Gahan v. Telegraph Co. 59 Fed. Rep. 433.</p> <p>The contract. Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. .223 [54 S. W. Rep. 624]; Pullman Palace Car Co. v. Booth, 28 S. W. Rep. 719 (Tex. Civ: App.) ; 3 Thompson, Negligence (2 ed.) Sec. 3612, p. 972; Pullman Palace Car Co. v. King, 99 Fed. Rep. 380 [39 C. C. A. 573],</p> <p>As to breach of contract. Mann Boudoir Car Co. v. Dupre, 54 Fed. Rep. 646 [4 C. C. A. 540; 13 U. S. App. 183; 21 L. R. A. 289]; Braun v. Webb, 65 N. Y. Supp. 668; Braun v. Webb, 62 N. Y. Supp. 1037; Aiken v. Railway, 118 Ga. 118 [44 S. E. Rep. 828; 90 Am. St. Rep. 107]; Quinby v. Vanderbilt, 17 N. Y. 306 [72 Am. Dec. 469]; '3 Thompson, Negligence Secs. 3610, 3611, p. 972; Duval v. Car Co. 62 Fed. Rep. 265 [10 C. C. A. 331; 23 U. S. App. 527; 33 L. R. A. 715]; Nevin v. Car Co. 106 111. 222 [46 Am. Rep. 688] and authorities'cited; 3 Thompson, Negligence Sec. 2568, p. 36; Sec. 2574; Pullman’s Palace Car Co. v. King, 99 Fed. Rep. 380 [39 C. C. A. 573] ; Murdock v. Railway, 137 Mass. 293 [50 Am. Rep. 307], Mental suffering. Smith v. Railway, 23 Ohio St. 10; 8 Am. & Eng. Enc. Law (2 ed.) 668.</p>

<p>Error to Hamilton common pleas court.</p> <p>Questions asked in taking a deposition, provided they are not foreign to the subject-matter of the suit, and,, provided that their answers are not privileged and would not be injurious to the witness, must be answered though the answers would not be admissible if offered to the jury in the trial of the ease. Shaw v. Installation Co. 9 Dec. Re. 809 (17 Bull. 274) ; State v. Cost, 10 Dec. Re. 619 (22 Bull. 250) ; DeCamp v. Archibald, 50 Ohio St. 618 [35 N. B. Rep. 1056; 40 Am. St. Rep. 692]; Jennings, Ex parte, 60 Ohio St. 319 [54 N. B. Rep. 262; 71 Am. St. Rep. 720]; Ranh, In re, 65 Ohio St. 128 [61 N. E. Rep. 701]; McKee, Ex parte, 18 Mo. 599; Munford, Ex parte, 57 Mo. 603; Livingston, Ex parte, 12 Mo. App. 80.</p> <p>Aside from the question of personal privilege, if incompetency is ever an excuse for refusing to answer questions, on the taking of a deposition, it is so only where the answers are incompetent because irrelevant and not where they are incompetent because hearsay. Bradley, In re, 71 N. H. 54 [51 Atl. Rep. 264],</p> <p>The petitioner in error should answer the question as to who was the division superintendent at the time of the accident. Shaw v. Installation Co. 9 Dec. Re. 809 (17 Bull. 274).</p> <p>The reports called for should be produced. Livingston, Ex parte, 12 Mo. App. 80.</p> <p>These reports are not privileged. Woolley v. Railway, L. R., 4 C. P. 602; Parr v. Railway, 24 L. T. (N. S.) 558; Southwark, etc. Water Co. v. Quick, 38 L. T. (N. S.) 28; Cassey v. Railway, L. R., 5 C. P. 146; Collins v. Omnibus Co. 68 L. T. (N. S.) 831; Skinner v. Railway, L. R., 9 Ex. 298; Cook v. Tramway Co. 54 J. P. 263; Bradley, In re, 71 N. H. 54 [51 Atl. Rep. 264]; 3 Taylor, Evidence 1186; Jenkins v. Putnam, 106 N. Y. 272 [12 N. E. Rep. 613].</p> <p>These reports are such papers as may become evidence on the trial of the ease. Thayer's Preliminary Treatise on Evidence 265, 266; 2 Wharton, Evidence Sec. 1176; Mechem, Agency Sec. 714; Northwestern Union Packet Co. v. Clough, 87 IT. S. 528 [22 L. Ed. 406]; Vicksburg <& Meridian Ry. v. O’Brien, 119 II. S. 99 [7 Sup. Ct. Rep. 118; 30 L. Ed. 299]; Knarston v. Insurance Go. 1-40 Cal. 57 [73 Pae. Rep. 740],</p> <p>’ The reports are admissible evidence against the company. Rogers v. New York & Brooklyn Bridge, 11 App. Div. 141 [42 N. Y. Sup. 1046]; Rogers v. New York & Brooklyn Bridge, 159 N. Y. 556 [54 N. E. Rep. 1094] ; Patterson v. United Artisans, 43 Or. 333 [72 Pac. Rep. 1095]; Meyer v. Insurance Go. 104 Cal. 381 [38 Pac. Rep. 82]; Knarston v. Insurance Co. 140 Cal. 57 [73 Pac. Rep. 740]; Vicksburg & Meridian By. v. Putman, 118 U. S. 545 [7 Sup. Ct. Rep. 1; 30 L. Ed. 257]; Hardy v. Boom Co. 52 Mich. 45 [17 N. W. Rep. 235]; The Soeway, L. R., 10 Prob. Div. 137.</p> <p>An admission made by an agent, whether part of the res gestae or not, is binding against his principal provided he had authority to make it. Balt. & O. By. v. Campbell, 36 Ohio St. 647 [38 Am. Rep. 617]; Morse v. Bailway, 72 Mass. (6 Gray) 450; Lane v. Bailway, 112 Mass. 455; Green v. Bailway, 128 Mass. 221 [35 Am. Rep. 370]; Kirk-stall Co. v. Bailway, L. R., 9 Q. B. 463.</p> <p>These reports in the event of the death of the persons making them, might become admissible as entries made in the regular course of business. Stephens Dig. Evid. (Ohio ed.) Art. 27, p. 132 and cases cited.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>Railroad not Excluded ebom Constructing Cattle Guards at Public Crossing within Yards unless Public Necessity Requires Crossing to be Kept open, etc. .</p> <p>A railroad company which fails to construct and maintain cattle guards at a street crossing within its switch and depot grounds must, in order to relieve itself from liability to the owner of horses which strayed upon the track over such crossing and were killed, show that the necessity of the public required that cattle guards should not be constructed at the crossing in question. It is not sufficient to show merely that the necessity of*the company and of its employes required that the street should be kept open and no cattle guards constructed.</p>

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

<p>EVIDENCE — DEEDS.</p> <p>1. Deed of Doubtful Import may be Explained by Parol Evidence.</p> <p>Where a recital in a deed is of doubtful import, it will open the door for the admission of parol evidence to explain it.</p> <p>2. Deed will be Reformed if not Expressing Intention of Parties as Disclosed by Reading in Connection with Option.</p> <p>A deed reciting that land is c'onveyed in trust for interurban railway purposes, pursuant to a written option and proposal, which, when read in connection with such option, furnishes strong proof that the parties did not intend to convey all the land described in the deed, will be reformed by a court of chancery.</p>

<p>CONTRACTS — DAMAGES—ERROR—PLEADING.</p> <p>1. Amendment to Petition to Correct Description of Dependant, Admissible under Lan. R. L. 8629 (R. S. 5114).</p> <p>An amendment to a petition, filed for the purpose of correcting the description of the defendant, does not state any new and distinct cause of action, and is permissible under Jjan. R. L. 8629 (R. S. 5114).</p> <p>2. Everything Necessary to Sustain Overruling of Motion to Quash Service of Summons, Presumed in Absence of Bill of Exceptions.</p> <p>In the absence of a bill of exceptions containing the evidence offered upon a motion to quash the service of summons, a reviewing court will presume that the court below found from the evidence every fact in issue necessary to sustain its action in overruling the motion.</p> <p>3. Construction of Special Charge that to Render Assignment of Contract Valid, there should be a New Agreement “Simultaneously.”</p> <p>A special charge to the jury to the effect, that in order to render an assignment of the contract valid there would have to he a new agreement between the parties “simultaneously,” will he interpreted to mean that the new agreement he or exist between the parties simultaneously, and not that it must be made between them simultaneously.</p> <p>4. Measure of Damages for Breach of Contract for Future Delivery of Commodities is Difference between Contract and Market Price.</p> <p>The measure of damages for breach of a contract for future deliveries of manufactured articles, where the time of performance of the contract has expired, is the difference between the contract price and the market price, or if there he no market price, the difference between the contract price and that for which the plaintiff, by the exercise of diligence and judgment, could obtain them at the times and in the quantities needed within the limits of the contract.</p>

The so-called “Turntable Doctrine” has never been adopted in Ohio. Reference to the Turntable cases in Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], is mere dictum. See the explanation of Harriman v. Railway in the following cases: Cin. H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205]; Balt. & O. S. W. Ry. v. Cox, 66 Ohio St. 276 [64 N. E. Rep. 1119; 90 Am.

<p>CONTRACTS — ERROR—EVIDENCE.</p> <p>1. Time only One of Elements in Fixing Value of Services.</p> <p>In fixing the value of services rendered, the time consumed in the performance of the service is only one of the elements to be considered.</p> <p>2. Plaintiff’s Opinion as to Value of Services Properly Admissible, but if Excluded Estops Defendant to Deny that Evidence Adduced thereon.</p> <p>The opinion of the party performing the services is competent, in a suit for recovery of their value, and where the defendant causes such opinion to be excluded, he can not afterward say that no evidence as to value has been submitted to the jury.</p> <p>3. Verdict may be Based on Character and Extent’ of Services, Independent of Opinion of Witnesses.</p> <p>Moreover, testimony as to the facts touching the character and extent of the services is evidence of their value, independent of the opinion of the witnesses.</p> <p>4. Question Calling for Mere Conclusion not Prejudicial if Jury in Possession of Facts on which Conclusion Based.</p> <p>A question which was incompetent for the reason that it called for a conclusion, is rendered harmless where the answer put the jury in possession of the facts upon which the witness based his opinion.</p> <p>5. No Error in Omission of Instruction not to Consider Petition as Evidence.</p> <p>The omission of a special instruction that the jury are not to consider the statement of plaint iff’s claim in his petition as evidence is not prejudicial error.</p>

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

<p>This assessment is wholly void under the decisions of Cincinnati v. Batsche, 52 Ohio St. 324 [40 N. E. Rep. 21; 27 L. R. A. 536]; State v. Gardner, 34 N. J. Law 34; State v. Newark, '25 N. J. Law. (1 Dutch.) 399; State v. Hudson, 29 N. J. Law (5 Dutch.) 115; Sec. 2314a Rev. Stat. (repealed, 96 O. L. 96), is wholly inconsistent with Sec. 1655a Rev. Stat. (repealed, 96 O. L. 96), of the new charter law, and is therefore expressly repealed by See. 5 of said act; State v. Brown, 4 Circ. Dee. 345 (8 R. 103).</p> <p>Petitioners for improvement estopped. Thornton v. Cincinnati, 26 O. C. C. 33; State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438]; Columbus v. Bold, 44 Ohio St. 479 [8 N. B. Rep. 299]; Benham v. Cincinnati. 26 O. C. C. 17; Price v. Toledo, 25 O. O. C. 617; Ottawa v. Railway, 25 111. 43; McBride v. Chicago, 22 111. 574.</p>

By retaining the case for consideration and in failing to render his decision and enter judgment until the fifth day after the close of the trial, the justice lost jurisdiction of the case, and his judgment against the plaintiff in error, is irregular and void.

<p>EXECUTORS AND ADMINISTRATORS — MOTIONS AND ORDERS.</p> <p>1. Consideration of Motion to Remove Executor not a Summary and Ex Parte Proceeding.</p> <p>The consideration of a motion for the removal of an executor is not a summary and ex parte proceeding, but one in which the executor should be allowed an opportunity to show that the charges against him are without merit.</p> <p>2. Motion under Favor of Lan. R. L. 9556 (R. S. 6017) for Removal of Executor, Charging Fraud, not Sustained, unless Fraud Proved.</p> <p>Under favor of Lan. R. L. 9556 (R. S. 6017), which provides for the removal of an executor if there are unsettled claims between him’ and the estate, which in the opinion of the court may be the subject of litigation, or if any other reasonable cause exist, a motion for such removal which charges that an executor not only “refused to take possession of” certain notes and other personal property of the estate, but that he connived “to defraud said estate of said property,” but which does not allege any conversion on his part, will be overruled, where it does not appear from the evidence that any fraud in fact existed.</p>

<p>BILLS OF EXCEPTIONS — NEGLIGENCE—MUNICIPAL CORPORATIONS.</p> <p>1. Bill of Exceptions Becomes Part of Record although not Signed at End, WHEN.</p> <p>A bill of exceptions will be considered as part of the record although not signed at the end thereof by the trial judge, when it appears that it is attached to a cover prepared and used for such purpose wherein is stated, among other things, the time of receiving the bill, and the bilí itself contains a statement to be made by the trial judge, which he signs, that he received and allowed the bill on certain dates, and thereafter turn* the same over to the clerk of courts and is by him filed.</p> <p>2. City Liable for Allowing Telephone Poles in Streets, when.</p> <p>A municipal corporation is responsible for injuries resulting to a traveler upon one of its streets from coming into contact with a ' pole placed in such a position by a telephone company as to become a public nuisance or dangerous; or if such pole should subsequently become dangerous or a public nuisance to the knowledge of the municipality, or in the exercise of ordinary and reasonable prudence, it should have obtained knowledge thereof, it would also be liable.</p> <p>3. Whether Telephone Pole in Street is Nuisance is Question for Jury, etc.</p> <p>Whether or not a telephone pole placed in,a public street by a telephone company is dangerous or a public nuisance, is a question to be submitted to the jury under proper instructions by the court; and, in deciding the question, they should consider the situation of the pole and how it was placed, and whether it was in fact situated in a position that was really dangerous or not.</p>

<p>ASSIGNMENTS — CONTRACTS—INJUNCTION.</p> <p>1. Assignee of Past of Contract Obtains no Independent Contractual Rights, if Assignor - Responsible for Entire Contract.</p> <p>The assignee of an item of a contract will not obtain independent contractual rights on which he may bring an action for specific performance, where the assignor is, by the terms of the original contract, responsible for its complete performance, including the part sublet.</p> <p>2. Injunction will not Lie to Enforce Contract.</p> <p>If independent contractual rights were acquired by the assignee of a portion of a contract for services and such assignee has a complete and adequate remedy at law for the breach thereof, a petition for an injunction to enforce such rights will be denied.</p> <p>3. Cincinnati Waterworks Commissioners can Contract only as Prescribed by Lan. R. L.,3713 (B. 1536-541).</p> <p>The board of waterworks commissioners for Cincinnati is authorized to establish independent contractual relations only in the manner particularly prescribed by the provisions of Lan. R. L. 3713 (B. 1536-541).</p>

<p>CHARGE TO JURY.</p> <p>Charge that Settlement is not Binding in Case of Fraud or Mistake, Erroneous in Absence of such Averment.</p> <p>In an action on an insurance policy wherein the answer alleged a settlement of the claim in question, to which the .plaintiff made a general denial, an instruction to the jury, that if a settlement were procured by fraud or mistake, it would not bind the plaintiff, is reversible error.</p>

<p>ACTIONS — PLEADING—PRINCIPAL AND SURETY.</p> <p>1. Failure to Set out Indorsements in Action on Note Corrected on Motion.</p> <p>In an action on a promissory note, tbe failure to set out the indorsements thereon in the pleadings, or to state that there are no indorsements, is a defect to he reached by motion and not by demurrer.</p> <p>2. Agreement to be Responsible eor Debts Contracted in Certain Business Creates Relation oe Principal and Surety; and Action oe Surety to Eneorce Payment by Principal Maintainable.</p> <p>A petition alleging that plaintiff was engaged for a specified salary to conduct a certain business for defendants, they to become responsible for liabilities incurred by him in the management thereof, shows a state of facts creating the relation of principal and surety, upon which an action may he maintained by plaintiff to compel the defendants to pay suefi debts after they become due.</p> <p>3. Petition in Action Alleging Breach oe Agreement to Pay Certain Debts Demurrable ie no Allegation that such Debts are Due.</p> <p>A petition in an action to compel a principal to pay debts to save his. surety is open to demurrer for a failure to allege that such debts have matured.</p> <p>4. Joinder oe Cause oe Action on Note with One to Eneorce Payment oe Debt by Principal Improper.</p> <p>The joinder of a cause of action on a promissory note, with one to compel the payment of a debt by a principal to save his surety, is improper and open to demurrer; a fortiori, when the principal’s creditors, who are strangers to the note and in no way connected therewith, are joined as parties- defendant to such action.</p>

<p>CORPORATIONS — CONTRACTS.</p> <p>Facts Constituting Valid Contract or Sale oe Corporate Stock.</p> <p>C agreed in writing to sell and transfer to W, at their face value, 150 shares, of $100 each, of the capital stock of a corporation of which he was a member, and owner of the shares, for the consideration of $15,000 to be paid with interest at 3 per cent per annum payable annually from March 1, 1895, from and out of the dividends and earnings of said stock, as the same were realized; W to have the right to make payments from other sources as he might see fit.</p> <p>Said stock to be issued in the name of W, he immediately, by indorsement, to transfer it to C, as security for the payment of said $15,000 and interest. W having the right and option to redeem said stock as fast as he would make payments upon the principal and interest to the amount of $500 or any multiple thereof, and have possession of a corresponding amount of said stock.</p> <p>Under the agreement, 150 shares of stock were issued in the name of W and delivered to him, and by him indorsed and-, delivered to C. C received the annual dividends and credited them as payments on said stock. W attended meetings of stockholders and directors and voted the 150 shares of stock with the knowledge and without objection from C. C four years after said agreement was made and performed as above shown, in writing notified W and the company, of his rescission of said agreement; W not consenting thereto, Held:</p> <p>First. Such contract is not void for want of consideration or lack of mutuality.</p> <p>Second. The facts and circumstances above stated show an executed contract, and could not be rescinded at the option of one of the parties without the other’s consent.</p> <p>Third. A sale of stock in a corporation as above found is a valid sale, and vests the purchaser with a good title to said stock.</p>

<p>ATTACHMENT AND GARNISHMENT — JUDGMENT.</p> <p>Judgment upon Claim fob Necessaries is a Debt oe Demand fob Necessaries within Pubview of Lan. R. L. 8958 (R. S. 5430).</p> <p>A judgment rendered upon a claim for necessaries is a debt or demand for necessaries within the purview of Lan. R. L. 8958 (R. S. 5430), for the satisfaction of which 10 per cent of the personal earnings of the debtor may be attached.</p>

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

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

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

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

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

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

<p>Error to Miami common pleas court.</p> <p>Sometime in 1889, Mr. N. H. Albaugh, of Tadmor, Ohio, president of the Albaugh Nursery Company, found a peach tree of an unknown variety, purchased it, named it the “Diamond Cling,” and had the name and an appropriate label recorded by the United States government as a trade-mark of said Nursery Company. Trees that we^e grown from the buds of the “Diamond Cling” were put upon the market in 1890, and large numbers of them sold to private customers and other nurserymen. The latter put them on the market. The plaintiff, being a dealer in trees, sold a large number of this variety to customers in other states. It is claimed by plaintiff that the defendant and the Albaugh Nursery Company, through their agents, informed the customers of plaintiff that the defendants, by virtue of the trademark aforesaid, had the exclusive right to sell the trees, and that if the said customers took the trees from plaintiff they would be sued by the defendants, and were purchasing a lawsuit. The customers declined to take the trees, and Rannells thereby lost the result of his sales. He brought suit against N. H. Albaugh and the Albaugh Nursery Company, and claimed that the product of a tree or anything else that reproduces itself is not protected by a trade-mark. The common pleas court held otherwise, and a verdict was returned for the defendants. Error was thereupon prosecuted to the circuit court.</p> <p>Sale of a nursery stock or other natural product which reproduces itself, in the absence of a special contract which prohibits it, carries with it the right to reproduce and sell the product under the original name. Higgins v. Keuffel, 140 U. S. 428 [11 Sup. Ct. Rep. 731; 35 L. Ed. 470]; Hoyt v. Lovett, 71 Fed. Rep. 173 [17 C. C. A. 652; 39 U. S. App. 1].</p>

<p>OFFICE AND OFFICERS.</p> <p>Member of Municipal Board op Health not Eligible to Office of District Physician.</p> <p>A member of a municipal board of health is an officer of the municipality, and as such ineligible to the office of district physician during his term and for one year thereafter, and he cannot therefore recover for services rendered in such capacity.</p>

<p>Error to Sandusky common pleas court.</p> <p>Death, of inexperienced boy caused by dangerous or defective or unsafe machinery or appliances. See Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; Shearman & Redfield, Negligence (5 ed.) Sec. 219, page 389, citing Hamilton v. Railway, 54 Tex. 556; Goff v. Railway, 36 Fed. Rep. 299; Taylor v. Railway, 41 W. Ya. 704 [24 S. E. Rep. 631]; Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187], citing, Atlas Eng. Works v. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Hill v. Gust, 55 Ind. 45; Hawkins .v. Johnson, 105 Ind. 29 [4 N. E. Rep. 172; 55 Am. Rep. 169] ; Mann v. Print Works, 11 R. I. 152; Lalor v. Railway, 52 111. 401 [4 Am. Rep. 616] ; Coombs v. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Chicago & N. W. Ry. v. Bayfield, 37 Mich. 205; Dowling v. Allen, '74 Mo. 13 [41 Am. Rep. 298] ; Wood, Mas. & Serv. Secs. 349, 352, 439; Beach, Contr. Neg. Sec. 132; Thompson, Negligence 975, 976, 977, 979, 1016; Pierce, Railroads 378; Thomas, Negligence 856, 857, 858; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739] ; Cole v. Railway, 71 Wis. 114 [37 N. W. Rep-84; 5 Am. St. Rep. 201].</p> <p>There is no presumption thát the decedent assumed the risk. Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187]; Ohio & M. Ry. v. Hammersley, 28 Ind. 371; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; O’Connor v. Adams, 120 Mass. 427; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449].</p> <p>Duty of defendant to provide for the safety of its employes. Lake Shore <& M. S. Ry. v. Lavalley, 36 Ohio St. 221; Railway v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Railway v. Henderson, 37 Ohio St. 549; Dick v. Railway, 38 Ohio St. 389; Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596] ; Shearman & Redfield, Negligence (5 ed.). Secs. 185, 186, 194, 194a, 218; Black, Law & Pr. Acc. Cas. Sec. 67.</p> <p>Special orders given by master. Illinois Steel Co. v. Schymanowski, 59 111. App. 32; Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187]; Crowley v.-Cutting, 165 Mass. 436 [43 N. E. Rep. 197]; Turner v. Railway, 40 W. Ya. 675 [22 S. E. Rep. 83]; Wood, Mas. & Serv. Par. 349, page 714; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 558 [21 L. Ed. 739]; Wood, Mas. & Serv. Sec. 366; Van Duzen Cas & Gas. Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]; Patterson v. Railway, 76 Pa. St. 389 [18 Am. Rep. 412]; Breckenridge Co. v. Reagan, 12 Circ. Dec. 50; May v. Smith, 92 Ga. 95 [18- S. E. Rep. 360; 44 Am. St. Rep. 84]; Hinckley v. Horazdowsky, 133 111. 359 [24 N. E.' 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Wharton, Negligence Sec. 216.</p> <p>Duty of employe of minors and inexperienced employes. Rolling Mill Co. y. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Cooley, Torts 652; Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Thompson, Negligence 978; O’Connor v. Adams, 120 Mass. 427; Shearman & Redfield, Negligence (5 ed.) Secs. 73, 203, 219, 291a, 333, 334; Hickey y. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Pitts. C. C. & St. L. Ry. y. Moreland, 12 Circ. Dec. 612; Railway v. Moreland, 60 Ohio St. 604 [54 N. E. Rep. 1107] ; Mather y. Rillston, 156 U. S. 391 [15 Sup. Ct. Rep. 464; 39 L. Ed. 464]; Missouri Pac. Ry.' y. CaTibreath, 66 Tex. 526 [1 S. W. Rep. 622] ; Atlas Eng. Works y. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Stillivan y. Manufacturing Co. 113 Mass. 396; Western Union Tel. Co. y. McMullen, 58 N. J. Law 155 [33 Atl. Rep. 384; 32 L. R. A. 351]; New York Biscuit Co. y. Rouss, 74 Fed. Rep. 608 [20 C. C. A. 555; 45 U. S. App. 45]'; Baxter v. Roberts, 44 Cal. 187 [13 Am. Rep. 160] ; Wheeler v. Manufacturing Co. .135 Mass. 294; Coombs y. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Stewart v. Bridge Co. 8 Circ. Dee. 454 (15 R. 601) ; 7 Am. & Eng. Enc. Law (1 ed.) 830, 834; Houston & Tex. Cent. Ry. v. Marcelles, 59 Tex. 334; Parkhurst v. Johnson, 50 Mich. 70 [15 N. W. Rep. 107; 45 Am. Rep. 28] ; Demars y. Manufacturing Co. 67 N. H. 404 [40 Atl. Rep. 902]; Mullin v. Horseshoe Co. 105 Cal. 77 [38 Pac. Rep. 535] ; Jones y. Mining Co. 66 Wis. 268; 28 N. W. Rep. 207 [57 Am. Rep. 269]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26].</p> <p>Contributory negligence. Railway y. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403] ; Pick v. Railway, 38 Ohio St. 389; Clev. C. & C. Ry. y. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633].</p> <p>Measure of damages. Cincinnati St. Ry. y. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Grotenkemper y. Harris, 25 Ohio St. 510; Illinois Cent. Ry. v. Slater, 129 111. 91 [21 N. E. Rep. 575; 6 L. R. A. 418; 16 Am. St. Rep. 242]; Birkett v. Ice Co. 110 N. Y. 504 [18 N. E. Rep. 108]; Gulf, C. & S. F. Ry. y. Compton, 75 Tex. 667 [13 S. W. Rep. 667]; Thompson v. Johnston Bros. Co. 86 Wis. 576 [57 N. W. Rep. 298]; Johnson v. Railway, 64 Wis. 425 [25 N. W. Rep. 223]; Ewen y. Railway, 38 Wis. 613; Potter y. Railway, 21 Wis. 372 [94 Am. Dec. 548]; Potter v. Railway, 22 Wis. 615; Black, Law & Pr. Acc. Cas. 333, 334, 335; Schrier v. Railway, 65 Wis. 457 [27 N. W. Rep. 167]; Missouri Pac. Ry. v. Henry, 75 Tex. 220 [12 S. W. Rep. 828]; Pineo v. Railway, 34 Hun (N. Y.) 80; Chicago, etc. Ry. v. Becker, 84 111. 483; Union Pac. Ry. v. Dunden, 37 Kan. 1 [14 Pac. Rep. 501]; Cooper v. Railway, 66 Mich. 261 [33 N. W. Rep. 306; 11 Am. St. Rep. 482];Hoppev.Railway, 61 Wis. 357 [21 N. W. Rep. 227]; Houghkirk v. Canal Co. 92 N. Y. 219 [44 Am. Rep. 370]; Turner v. Railway, 40 W. Va. 675 [22 Sr E. Rep. 83]; Hinckley v. Horazdowsky, 133 111. 359 [24 N. E. Rep. 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Ashtabula Rapid Trans. Co. v. Dagenbach, 11 Circ. Dee. 307; Morris v. Railway, 63 App. Div. 78 [71 N. Y. Supp. 321]; Morris v. Railway, 170 N. Y. 592 [63 N. E. Rep. 1119]; San Antonia St. Ry. v. Watzlavzick, 28 S. W. Rep. (Tex. Civ. App.) 115; Austin Rapid Trans. Ry. v. Cullen, 29 S. W. Rep. (Tex. Civ. App.) 256; Carnahan v. Ashworth, 31 S. E. Rep. 65, 66; Connaughion v. Printing & Pub. Assn. 73 App. Div. 316 [76 N. Y. Supp. 755] ; York v. Railway, 28 Mont. 574 [69 Pac. Rep. 1042]; Cicero & Pac. St. Ry. v. Boyd, 95 111. App. 510; McDonald v. Railway, 36 Misc. 703 [74 N. Y. Supp. 367]; Atchison, T. & S. F. Ry. v. Van Belle, 26 Tex. Civ. App. 511 [64 S. W. Rep. 397]; Twist v. Rochester (City), 165 N. Y. 619 [59 N. E. Rep. 1131]; Eginoire v. Union Co. 112 Iowa 558 [84 N. W. Rep. 758]; Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654 [58 S. W. Rep. 651]; Taylor, B. & H. Ry. v. Warner, 60 S. W. Rep. (Tex. Civ. App.) 442; Lee v. Publishers, Knapp & Co. 155 Mo. 610 [56 S. W. Rep. 458]; Heinz v. Railway, 91 Hun 640 [36 N. Y. Supp. 675]; Omaha (City) v. Richards, 49 Neb. 244 [68 N. W. Rep.-,528]; Toledo Consol. St. Ry. v. Mammet, 6 Circ; Dec. 244 (13 R. 591).</p> <p>Sufficiency of petition. Johnson v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75]; Weidner v. Rankin, 26 Ohio St. 522; Steel v. Kurtz, 28 Ohio St. 191; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; 2 Kinkead, Code Pleading 839, 840.</p>

<p>NEGLIGENCE — DAMAGES—CHARGE TO JURY.</p> <p>1. Evidence of Contributory Negligence.</p> <p>Where plaintiff, in attempting to cross a railway track relied on his previous observation of the habits of the flagman stationed there and assumed from his absence that the way was clear, when in fact an accident occurred and plaintiff sustained injuries therefrom the question of contributory negligence is properly left to the jury.</p> <p>2. Expenses fob Funeral of Wife Proper Items of Damages in Action by the Husband.</p> <p>Funeral expenses incurred by plaintiff in consequence of the death of his wife in a railway accident are proper items of pecuniary loss in an action by the husband individually as they could not be recovered by the administrator in an action under Lan. R. L. 9673 (R. S. 6134).</p> <p>3. Ordinary Care — One is Never Absolved from Using his Faculties to Avoid Danger.</p> <p>A charge that “the public need not anticipate danger and look for it in the absence of the flagman” at a railway crossing is properly refused. One is never absolved from using his faculties to avoid danger, and the exercise of ordinary care is a question of fact for the jury to determine from the circumstances of the case.</p> <p>4. Misleading Charge to Jury on Contributory Negligence.</p> <p>A charge containing the statement that those who cross a railroad track in the known absence of the flagman regularly stationed there, “knowing they are absolutely sure to be injured, assume the risk,” is misleading, as the jury might believe that a less degree of danger, although known, would not make a case of contributory negligence.</p>

<p>Demurrer to petition.</p>

In the case of a passenger who has paid his fare, and the same is accepted by a railroad company, the law exacts the highest degree of care that the passenger be carried safely to his destination. 3 Thompson, Negligence Sec. 2819; Gin. St. By. v. Kelsey, 6 Cire. Dec. 209 (9 R. 170) ; Iron By. v. Mowrey, 36 Ohio St. 418 [38 Am. Rep. 597]; Serviss v. Stockstill, 30 Ohio St. 431; Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350 ; 4 Am.

It is well settled that a corporation is not chargeable with knowledge of facts merely because those facts were known to its incorporators or stockholders or clerk. But the corporation has notice of facts which come to the knowledge of its officers or agents while engaged in the business of the corporation, provided those facts pertain to that branch of the corporate business over which the particular officer or agent has some control.

<p>Appeal from Summit common pleas court.</p> <p>Lowest bidder. Boseker v. Wabash Go. (Comrs.) 88 Ind. 267; Hoole v. Einkead, 16 Nev. 217; Commonwealth v. Mitchell, 82 Pa. St. 343; State v. McGrath, 91 Mo. 386 [3 S. W. Rep. 846]; Dunklin Co. v. Dunklin Co. Dist. Ct. 23 Mo. 449; State v. Garesche, 65 Mo. 480; Hancock v. Ewing, 55 Mo. 101; Marquez v. Frisbie, 101 TJ. S. 475 [25 L. Ed. 800] ; Bice v. Austin, 19 Minn. 103 [18 Am. Rep. 330]; Findley v. Pittsburgh, 82 Pa. St. 351; Heffner v. Commonwealth, 28 Pa. St. 108; High, Injunctions Sec. 797; Gaines v. Thompson, 72 U. S. (7 Wall.) 347 [19 L. Ed. 62]; Warfel v. Cochran, 34 Pa. St. 381; 3 Wait, Act. Def. 749; High, Extra. Leg. Rem. Sec. 92; State v. Pond Du Lac {Bd. of Ed.), 24 Wis. 683-, People v. Canal Board, 13 Barb. 432; People v. Albany {Supvrs.), 12 Johns. 414; Kelly v. Chicago, 62 111. 279; 15 Am. & Eng. Enc. Law (1 ed.) 1090 et seq; Boss v. Board of Ed. 42 Ohio St. 374; Mooers v. Smedley, 6 Johns. Ch. 28; Beeside v. Walker, 52 U. S. (11 How.) 275 [13 L. Ed. 693]; High, Injunctions See. 979; Brooklyn {Mayor) v. Meserole, 26 Wend. 132; Hyatt v. Bates, 40 N. Y. 164; People v. Contracting Board, 27 N. Y. 378; People v. Croton Aqueduct Board, 49 Barb. 259; Free Press Assn. v. Nichols, 45 Yt. 7; People v. Contracting Board, 33 N. Y. 382; Am. & Eng. Enc. Law (2 Ed.) 839; People v. Kent, 160 111. 655 [45 N. E. Rep. 760]; State v. Bickards, 16 Mont. 145 [40 Pac. Rep. 210; 28 L. R. A. 298; 50 Am. St. Rep. 476; Peoplev.Dorsheimer, 55 How. Pr. 118 ¡Interstate Vitrified Brick & Pav. Co.v.Philadelphia, 164 Pa. St. 477 [30 Atl. Rep. 383] -,Beutingv.Titusville, 175 Pa. St. 512 [34 Atl. Rep. 916]; Kelly v. Chicago, 62 111. 279; Wiggins v. Philadelphia, 2 Brews. (Pa.) 444; Weed v. Beach, 56 How. Pr. 470; People v. Dental Examiners, 110 111. 180; Mayo v. County Comrs. 141 Mass. 74 [6 N. E. Rep. 757]; Mills Pub. Co. v. Larrabee, 78 Iowa 97 [42 N. W. Rep. 593]; East Biver Gas-Light Co. v. Donnelly, 93 N. Y. 557; State v. Scott, 17 Neb. 686; Times Pub. Co. v. Everett, 9 Wash. 518 [37 Pac. Rep. 695; 43 Am. St'. Rep. 865]; State v. Directors, 5 Ohio St. 234; Goss v. Capitol Commission, 11 Wash. 474 [39 Pac. Rep. 972]; State v. Shelby Co. {Comrs.) 36 Ohio St. 326; American Pavement Co. v. Wagner, 139 Pa. St. 623 [21 Atl. Rep. 160]; People v. Croton Aqueduct Board, 36 Barb. 240; State v. Abbot, 25 O. C. C. 538; Akron v. France, 24 O. C. C. 63.</p>

<p>Appeal for Franklin common pleas court.</p> <p>Estoppel. Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120].</p>

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

Upon the question as to whether or not a judge or court has a right, after the expiration of the term of court at which a sentence was pronounced against a prisoner, to order the same carried into execution. Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. 472]; Brown, Jurisdiction (2 ed.) Sec. 13a; Church, Habeas Corpus See. 378; Williams, Ex parte, 26 Fla. 310 [8 So. Rep. 425]; United States v. Wilson, 46 Fed. Rep. 748; Commonwealth v. Mayloy, 57 Pa.

<p>Error to Lucas common pleas court.</p> <p>May tbe illegal purpose of a contract be shown? 9 Cyc. 465 and cases cited; Kusworm v. Hess, 7 Dec. Re. 224 (1 Bull. 315); Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425; 4 Bull. 1067); Spurgeon v. Mc-Elwain, 6 Ohio 442 [27 Am. Dec. 266]; Whetstone v. Bank, 9 Ala. 875 ;■ Ralston v. Boady, 20 Ga. 449; Reynolds v. Nichols, 12 Iowa 398; 9 Cyc. 562; Brogden v. Mariott, 3 Bing. (N. C.) 88; Robertson v. Robinson, 65 Ala. 610 [39 Am. Rep. 17]; Buffandeau v. Brooks, 28 Cal. 641; Clark v. Pomeroy, 86 Mass. 534; Nellis v. Clark, 20 Wend. 24.</p> <p>When the promisor knows of the illegal purpose, promise void. Goodrich v. Tenney, 144 111. 422 [33 N. E.‘ Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Tatum v. Kelley, 25 Ark. 209 [94 Am. Dec. 717]; Buck v. Bank, 27 Mich. 293 [15 Am. Rep. 189]; Cannon v. Brice, 3 Barn. & Aid. 179; McKinnel v. Robinson, 7 L. J. Exch. 149; Viser v. Bertrand, 14 Ark. 267; Emerson v. Townsend, 73 Md. ■ 224 [20 Atl. Rep. 984]; White v. Buss, 57 Mass. (3 Cush.) 448; Raymond v. Leavitt, 46 Mich. 447 [9 N. W. 525; 41 Am. Rep. 170]; Hall v. Costello, 48 N. H. 176; Cutler v. Welsh, 43 N. H. 497; Staples v. Gould, 9 N. Y. 520; Critcher v. Holloway, 64 N. C. 526; Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dee. 266] ; Kusworm v. Hess, 7 Dec. Re. 224 (1 Bull. 315) ; Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425; , 4 Bull. 1067) ; Standard Furniture Co. v. Van Alstine, 22 Wash. 670 [62 Pac. Rep. 145; 51 L. R. A. 889; 79 Am. St. Rep. 960],</p> <p>Courts will not give recognition to a promise of agreement tainted with illegality. 9 Cyc. 481, 500; Weber v. Shay, 56 Ohio St. 116 [46 N. E. Rep. 377; 37 L. R. A. 230'; 60 Am. St. Rep. 743]; Plumer v. Smith, 5 N. H. 553 [22 Am. Dec. 478]; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Schofield v. Railway, 43 Ohio St. 571 [3 N. E. Rep. 907; 54 Am. Rep. 846]; Crawford v. Wick, 18 Ohio St. 190 [98 Am. Dee. 103].</p> <p>Parties in pari delicto. Goodrich v. Tenney, 144 111. 422 [33 N. E. Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Brown v. Bank, 137 Ind. 655 [37 N. E. Rep. 158; 24 L. R. A. 206]; Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Reed v. Johnson, 27 Wash. 42 [67 Pac. Rep. 381]; 57 L. R. A. 404.</p> <p>Promises, agreements and acts connected with illegal transactions are void. Nash v. Monheimer, 20 111. 215; Armstrong v. Toler, 24 U. S. (11 Wheat.) 258 [6 L. Ed. 468]; Barton v. Plankroad Co. 17 Barb. 397; Rose v. Truax, 21 Barb. 361; Woodworth v. Bennett, 43 N. Y. 273 [3 Am. Rep. 706]; Jones v. Surprise, 64 N. H. 243 [9 Atl. Rep. j 384]; Buckingham v. Fitch, 18 Mo. App. 91; Webster v. Sturges, 7 111. App. 560; Sturges v. Bush, 5 Day 452; Henderson v. Palmer, 71 111. 579 [22 Am. Rep. 117]; Comstock v. Draper, 1 Mich. 481 [53 Am. Dec. 78]; Beach, Mod. Contr. See. 1422; Wharton, Contracts 339; Luce v. Foster, 42 Neb. 818 [60 N. W. Rep. 1027]; Tracy v. Deatrick, 6 Circ. Dec. 427 (10 R. Ill) ; Tracy v. Dietrich, 56 Ohio St. 770 [49 N. E. Rep. 1118].</p> <p>A party in pari delicto may recover what he parted with under illegal contract, if he does not base his right on the illegal contract. Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666]; Ware v. Curry, 67 Ala. 274; Den v. Shotwell, 23 N. J. Law 465; Martin v. Hodge, 47 Ark. 378 [1 S. W. Rep. 694; 58 Am. Rep. 763]; Allebach v. Godshalk, 116 Pa. St. 329 [9 Atl. Rep. 444]; Olson v. Sawyer-Goodman Co. 110 Wis. 149 [85 N. W. Rep. 640; 53 L. R. A. 648] ; Hall ,v. Costello, 48 N. H. 176; Jones v. Building Soc. L. R. 1 Ch. 173.</p> <p>Promise made for benefit of third party. Beach, Mod. Contr. See. 201; Dunning v. Leavitt, 85 N. Y. 30 [39 Am. Rep. 617]; 9 Gyc. 386; 7 Am. & Eng. Enc. Law (2 ed.) 109; Beveridge v. Bailway, 112 N. Y. 1 [19 N. E. Rep. 489; 2 L. R. A. 648]; Wheat v. Bice, 97 N. Y. 296; Wright v. Terry, 23 Fla. 160 [2 So. Rep. 6]; Trimble v. Strother, 25 Ohio St. 378.</p> <p>Plaintiff relied principally on Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571].</p> <p>Upon the question of the legality of the contract in question. Provident Sav. Life Assur. Soc. v. Edmonds, 95 Tenn. 53 [31 S. W. Rep. 168]; Swope v. Insurance Co. 93 Pa. St. 251; Barrett v. Weber, 6 N. Y. Sup. 434; Butierly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513-15-19-24; Walbridge v. Arnold, 21 Conn. 423; Godwin v. Crowell, 56 Ga. 566; Hatch v. Collins, 34 Hun 314; School District No. 61 v. Alderson, 6 Dak. 145 [41 N. W. Rep. 466]; Kellogg v. Larkin, 3 Chand. (Wis.) 133; Armstrong v. Express Co. 63 Tenn. (4 Baxt.) 376; Cass Co. Bank v. Bricker, 34 Neb. 516 [52 N. W. Rep. 575; 33 Am. St. Rep. 649]; Gregory v. Wendell, 40 Mich. 432; Hoover v. Wood, 1 Kan. 509; Bothwell v. Brown, 54 111. 234.</p> <p>Courts will not lend their aid to effect contracts whose consideration is illegal, immoral or such as are against public policy; if the agreement be executory, the court will not aid in its enforcement, and if it be executed the court will not rescind it. Butterly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513JL5-24; Souhegan Bank v. Wallace, 61 N. H. 24; Thompson, Trial Ev. Sec. 615; Hooker v. DePalos, 28 Ohio St. 251; Jacobs v. Mitchell, 46 Ohio St. 601 [22 N. E. Rep. 768] ; McQuade v. Bosencrans, 36 Ohio St. 446; Boll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759]; Moore v. Adams, 8 Ohio 372 [32 Am. Dec. 723]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Cooper v. Rowley, 29 Ohio St. 547; Williams v. Englebrecht, 37 Ohio St. 383.</p> <p>Mutuality of agreement to compound felony. School District No, 61 v. Alderson, 6 Dak. 145 [41 N. E. Rep. 466]; Chitty, Contracts 664; Gregory v. Wendell, 40 Mich. 432; Bartlett v. Smith, 13 Fed. Rep. 263; Fosdick v. Van Arsdale, 74 Mich. 302 [41 N. W. Rep. 931]; Wright v. Crabbs, 78 Ind. 487; Kottwitz v. Alexander, 34 Tes. 689; Bond v. Perkins, 51 Tenn. 364; Puryear v. McGavock, 56 Tenn. 461; Oxford Iron Co. v. Spradley, 51 Ala. 171; Robertson v. March, 3 Seam. (111.) 198; Davis & Rankin Bldg. & Mfg. Co. v. Barber, 51 Fed. Rep. 148; Moss v. Wilson, 40 Cal. 159; Hoover v. Wood, 1 Kan. 509.</p> <p>Joint and several contracts. Clark, Contracts 605; Beach, Contracts Sec. 674; Connecticut & P. Ry. v. Bailey, 24 Vt. 465; Wood, Ry. Law Sec. 57; Whittlesey v. Frantz, 74 N. T. 456.</p> <p>An act not within the corporate powers of the corporation cannot be rendered operative by ratification. But if the act were one which the corporation might lawfully have done or authorized in the first instance, then unauthorized performance in its behalf may be ratified in the same manner and with like effect by an individual. Mechem, Agency Sec. 118.</p> <p>Notice to corporation. Mechem, Agency 730, 731; Loomis v. Bank, 12 Dec. Re. 625 (1 Disn. 285) ; Story, Agency Sec. 140; Railway v. McCoy, 42 Ohio St. 252; East Clev. Ry. v. Everett, 10 Cire. Dec. 493 (19 R. 205).</p> <p>Evidence. Armstrong v. Express Co. 63 Tenn. (4 Bast.) 376; Hatch v. Collins, 34 Hun 314; School Dist. No. 61 v. Alderson, 6 Dak. 145 [41 N. W. Rep. 466]; Loud v. Hamilton, 45 L. R. A. 400 (Tenn.); Wharton, Contracts Secs. 353, 540; Wynne v. Whisenant, 37 Ala. 47; Wells v. Thompson, 50 Ala. 84; Moog v. Strang, 69 Ala. 98.</p>

<p>EMINENT DOMAIN — RAILROADS.,</p> <p>1. Lanins R. L. 10025 (R. S. 6448) only Applicable where Railroad Occupies Land without Written Authority.</p> <p>A railroad company which is occupying land under claim of a written contract executed by the owner cannot be compelled, under Lan. R. L. 10025 (R. S. 6448), to resort to appropriation proceedings to appropriate the land, as such statute only applies where the occupation is without any agreement in writing with the owner.</p> <p>2. Usurping Rights Denied by Written Agreement does not Bring Case within Lan. R. L. 10025 (R. S. .6448).</p> <p>A railroad company cannot be said to be occupying the lands of another under an agreement which is not in writing within the meaning Of Lan. R. L. 10025 (R. S. 6448), by reason of the fact that it is usurping certain rights prohibited by the written agreement under which it originally entered.</p> <p>3. Right of Railroad under Contract not Greater th^ií that of its Assignor.</p> <p>Where the right was granted in writing to an individual to lay a spur track upon the lands of the owner for the purpose of connecting with the tracks of a railroad company, upon the condition and limitation that such track should not be used except for the business of the grantee’s company, the right of a railroad company, to whom the grant was assigned by the grantee, can rise no higher under the grant than the right of such grantee.</p> <p>4. Railroad Company may be Enjoined from Continuing Possession of Land.</p> <p>A railroad company which has taken possession of private property without the consent of the owner and without first making compensation therefor in appropriation proceedings, -may be enjoined from continuing its possession and use of such property.</p> <p>5. What no Defense in Action to Enjoin Railroad from Occupying Land.</p> <p>It is no defense to an action to enjoin a railroad eompany from* unlawfully continuing its possession and use of private property, that the owner might tender a deed to, and demand compensation from, the company for the land in question.</p>

<p>ASSIGNMENTS — WORK AND LABOR.</p> <p>No Action at Haw on Partial Assignment op Wages without Debtor’s Consent.</p> <p>An action at law will not lie on an assignment of wages already due and to become due, there being no proof that the debtor acquiesced in the assignment, and the amount due being in excess of the amount assignéd.</p>

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

<p>ASSESSMENTS — STREETS—EVIDENCE.</p> <p>1. Petitioning for Street Improvement Evidence that Abutting Property will be Specially Benefited.</p> <p>The act of abutting property owners in petitioning for a certain street improvement, is evidence tending to show that the improvement, if made, will specially benefit their property, and may properly be treated as an acquiescence on their part to the assessment to pay the cost thereof; but such act does not estop them from challenging an illegal assessment.</p> <p>2. Depression in Real Estate Market does not Destroy Special Benefit to Property from Street Improvement.</p> <p>Where there was a serious depression in the real estate market immediately after the making of a street improvement, the mere fact that the owners of the. abutting property could not get any more for their property after than before the improvement, is not sufficient to show that their property was not specially benefited by the improvement</p>

<p>ASSIGNMENTS.</p> <p>Assignment of Unearned Wages under Present Contract of Employment, Valid; Contra, when no such Contract Exists.</p> <p>A private individual may, for a valuable consideration, assign wages to be by him earned in the future under an existing contract of employment; but an assignment of wages to be earned from someone not then the assignor’s employer,, and there being no contract of future employment, is a mere possibility not coupled with an interest, and is unenforcible and void.</p>

<p>CHARGE TO JURY — NEGLIGENCE.</p> <p>1. Charge that Plaintiff in Personal Injury Suit can Recover for Epilepsy, if it be either the Actual Result or a Natural Consequence of Injuries Sustained is Erroneous.</p> <p>In an action for personal injuries, in which the petition alleged that the plaintiff had become subject to epilepsy as a consequence of the injuries sustained in the accident in controversy, a charge to the jury, which says, in substance, that the plaintiff may recover for such epileptic condition if it he either the actual result, or merely a natural and probable consequence of the injury, is erroneous; in such case, the court should have charged the jury to find whether epilepsy was a natural and probable result under the circumstances of the case, and if so, whether or not plaintiffs epilepsy, if any exist, did in fact result from the injuries alleged in the petition and actually suffered by him.</p> <p>2. In Personal Injury Suit, Enumeration of Injuries Excludes all Others from Consideration unless they Naturally and Probably Follow.</p> <p>In an action for damages for personal injuries, the enumeration in the petition of consequential injuries excludes from the consideration of the jury, all other injuries except such as are shown to be the natural and probable results of the ones expressly mentioned.</p>

<p>BOARDS OF HEALTH — CONTRACTS.</p> <p>Oral Contract for Necessaries eor Quarantined Family Made with Certain Municipality, Valid.</p> <p>Recovery may be had on an oral contract, made with the agent of a municipal corporation, for necessaries furnished a family under quarantine for a contagious disease, under favor of Lan. R. L 3505 (R. S. 2138; B. 1536-755), regulating boards of health and prescribing their duties, notwithstanding a provision of the charter of such city that all contracts thereof shall be in writing, and signed and approved by certain officers.</p>

<p>SCHOOLS — CONSTITUTIONAL LAW.</p> <p>Laning R. L. 6604 (R. S. 4022a), Providing for Attendance of Children in Certain Districts at Nearest School, Unconstitutional.</p> <p>Laning R. L. 6604 (R. S. 4022a), which, provides for the attendance of children in certain districts at the nearest school, confers .a privilege on certain children of school age and not upon others similarly situated, and is therefore in contravention of Sec. 26, Art. 2 of the Ohio constitution.</p>

<p>ASSESSMENTS — CONSTITUTIONAL LAW — ESTOPPEL.</p> <p>Petitionee foe Improvements bt Foot Frontage, Estopped to Attack Constitutionality of Statute, oe Assessment because in Excess of Benefits.</p> <p>A petitioner for certain improvements to be made under favor of a statute providing for the assessment of the cost on a basis of frontage will be estopped to complain of the illegality of the assessment, on the ground that it was in excess of the special benefits conferred, or that it was made under an unconstitutional statute.</p>

Cross-examination of witnesses under Rev. Stat 5243 (Lan. 8752) does not give counsel tbe right to question Ms own witness, as if he were the witness of the other party. Simons v. Mooney, 12 Circ. Dec. 73. (22 R. 271) ; Roush v. Wensel, 8 Circ., Dec. 141 (15 R. 133). The court having given special charges, as requested under Rev, Stat. 5190 (Lan. 8699), must not repeat special charge in genera; charge, and then proceed to qualify, modify or in any manner to explain the same.

The relator here is relying on irregularity of another’s bid, and it is well settled that no writ of mandamus will issue when the relator bases his claim on such grounds. Spelling, Extra. Rel. Sec. 1553; State v. Board of Education, 42 Ohio St. 374; State v. Commissioners of Printing, 18 Ohio St. 386. The relator must show a positive, clear right in himself to have the contract awarded to him. If he does not show this the writ must be refused. Spelling, Extra. Rel.

<p>APPEAL — BONDS.</p> <p>Sureties not Liable on Appeal Bono, where no Judgment Ordering Principal to Pay Anything.</p> <p>Sureties are not liable on an appeal bond conditioned that the principal shall abide the order, judgment or decree of the appellate court, and pay all moneys, costs and damages which are required of him by such court, where the judgment of the appellate court, while adverse to such appellant, did not order him to pay anything in the way of costs, penalties, damages or interest.</p>

<p>INSURANCE — ASSOCIATIONS.</p> <p>1. Mutual Protection Association mat Collect Assessments before Actual Loss Sustained.</p> <p>A mutual protection association is authorized by the provisions of Rev. Stat. 3686 (Lan. 5895), regulating the collection of assessments, to collect sums of money from its members in'advance of any loss being sustained and assessment made therefor, whether done directly or through a trustee.</p> <p>2. No Ouster for Immaterial Variance between Annual Report and True Condition of Insurance Association.</p> <p>A judgment of ouster against a mutual protection association will not be granted for immaterial variations between the report required to be filed by Rev. Stat. 3690 (Lan. 5899) with the superintendent of insurance and the true condition of such association.</p>

<p>ADMINISTRATORS AND EXECUTORS.</p> <p>Want of Notice of Motion for Fixing of Fees of Executor for Special Services Deprives Court of Jurisdiction.</p> <p>A court is without jurisdiction to hear and determine a motion to fix the compensation due an executor and trustee for extraordinary services in such capacity, where no notice of the pendency of such motion was given to the beneficiaries under the will.</p>

<p>TRUSTS AND TRUSTEES.</p> <p>1. Trustee Released from Liability for Misapplication of Trust Funds bt Acquiescence of Beneficiary.</p> <p>Acquiescence on the part of a cestui que trust in a wrongful conversion of trust funds by a trustee will operate to release the trustee as such, and his bondsmen, from liability to such beneficiary.</p> <p>2. Executor’s Account not Opened for Conversion of Trust Funds when Same was Acquiesced in by Cestui Que Trust.</p> <p>A petition for citation against an executor alleging that certain bonds which came into his possession as executor were never delivered to the beneficiary according to the terms of the distribution, does not. state facts sufficient to open’ the account of the executor for fraud or manifest error under the provisions of Rev. Stat. 6190 (Lan. 9732), where it appears that the beneficiary acquiesced in the misapplication of such bonds by the trustee.</p>