Volume 17 — Ohio Nisi Prius Reports, New Series

<p>ACTION FOR. REINSTATEMENT OF LIFE INSURANCE POLICY.</p> <p>Life Insurance — Loan Made on Joint Póticy — Note Not Paid and Policy Surrendered — Company Could Not Be Required to Retain Policy in Force Until Reserve Vahie VJas Exhausted — Cancellation of Policy Terminated all Rights of the Insured Therein — Company Not Bound to Report Reserve Value to the Insured.</p> <p>A paid-up, non-participating joint life policy of insurance for $15,000 was pledged to the issuing company by the insured as security for the payment of a loan made to them by -the company. The' loan agreement provided that in the event of default in the payment of the loan at the time when it became due, the company might, without notice or demand for payment, cancel the policy, and apply to the payment of said loan the sum of $8,469, “the customary cash surrender consideration allowed by the company as the surrender value of policies issued upon like terms and conditions.” The loan was not paid at maturity, but the insured consented to the surrender of the policy in the manner provided for by the contract. Held:</p> <p>1. That since under the terms of the policy of insurance the insured were not entitled to the full reserve value of the policy they could not require the company to retain the policy in force until the amount of the loan with interest had exhausted the reserve value.</p> <p>¿. That if the “customary cash surrender consideration” represented the substantial value of the policy, the loan agreement was valid, and the surrender and cancellation of the policy effectually termi.nated the rights of the insured therein.</p> <p>3. Under the facts of the case, the company was under no obligation to calculate and report to the insured the full reserve value of the policy so that the insured might determine whether it would be a profitable speculation for them to keep, the policy in force.</p>

<p>DENIAL OF JUDGMENT FOR. THE FRUITS OF AN ILLEGAL CONTRACT.</p> <p>Anti-Trust Law — ■Violation of — By Fixing the Price at which Goods May he Resold — Recovery from the Vendee Denied — Articles Covered hy Patent Covered hy the Same Rule When Bold Under an Illegal Contract.</p> <p>1. The contract involved in this action undertakes to fix the price at which the goods sold may be resold by the purchaser, with a provision that for a breach of any of the terms or conditions of the contract the other party shall have the right to exercise the option to be relieved from its obligations and to recover the sum therein provided as liquidated damages. , Such a contract is clearly within the inhibition of the Ohio anti-trust statute, and is therefore void; and a court will not lend its aid to a party relying on such a contract and seeking to recover its fruits, notwithstanding the purchaser may, as a consequence, be relieved from paying for goods he has received.</p> <p>2. This rule with reference to contracts in violation of the anti-trust "law applies with the same force in cases where the goods so sold are covered by a patent.</p>

<p>GIST OF AN ACTION FOR. RECOVERY OF SECRET PROFITS FROM A PROMOTER.</p> <p>Corporations — Action Against a Promoter for Recovery of Secret Profits — Not Based on Fraud, hut Breach of Duty, and is Barred hy the Statute of Limitations.</p> <p>1. Where a promoter of a bank, in the purchase and sale of furniture and fixtures to the corporation promoted, fails to reveal the secret profits made by him in such transaction, the cause of the action accrues on the date o£ the consummation of the sale to the corporation, and is barred in four years under the provisions of Section 11224, General Code.</p> <p>2. Where, in such case, an action is brought by the corporation against the promoter to recover said secret profits, the ground or gist of the action is not fraud, although fraud be averred in the petition, nor “relief on the ground of fraud” within*the meaning of Section 11224, pt. 3, General Code, but the ground or gist of the action in such a case is breach of duty; nor is the statute tolled by the failure to discover the wrong within the said four year period.</p> <p>3. In such case, the plaintiff corporation wiil not be permitted to plead the fraudulent issuing of stock to the promoter and the fraudulent taking of credit in the plaintiff bank by such promoter, for the bank is bound to know, through its officers’ and directors, what stock is issued and what credit given, and therefore the plaintiff bank in such ease is estopped to plead ignorance of such issue of stock and such taking of credit in order to toll the statute and preserve its cause of action.</p>

<p>ILLEGAL AGREEMENT BY RAILWAY AGENTS TO CARE FOR. LIVE STOCK IN TRANSIT.</p> <p>Railways — Shipment Under Uniform Live Stock Contract — Agreement to Render Additional Services Void — Action to Recover for Hogs Suffocated in Transit Through Lack of Care.</p> <p>Plaintiff shipped a car load of hogs via defendants’ lines between two points within this state under a uniform live stock contract which provided tnat plaintiff was to care for, feed and water the stock, and unload it at destination, “whether delayed in transit or otherwise.” Before arrival at destination the car was delayed, and defendants’ employees agreed to care for and water the stock and deliver them for plaintiff. Because of defendants’ failure to water and sprinkle them,- forty of the hogs were suffocated, and plaintiff sued for their value. Held, on demurrer to the petition that as the effect of defendants’ agreement was to give to plaintiff a service greater and other than that specified in the contract, it was illegal and void under Sections 510 and 568 of the General Code, and plaintiff could not recover.</p>

<p>NEGLIGENCE IN DRAWING A DRAFT.</p> <p>Banks ancl Banking — “Raised” Check Cashed in Good Faith — Negligence Charged in the Manner in Which it was Drawn — Rule of Morality.</p> <p>Where two rules of law fit a given state of facts evidenced by the findings of a jury, the rule which smacks of morality obtains, unless clearly forbidden by constitutional or statute law.</p>

<p>STEP-BROTHER. HELD TO HAVE BEEN INCLUDED IN A DEVISE TO “ BROTHERS AND SISTERS.”</p> <p>Wills — Term “Brothers and Sisters” May Include a Step-brother — Devise to Two Sets of Heirs and to Children of Deceased Heirs Construed to Intend Distribution Per Capita and Not Per Stirpes.</p> <p>1. A devise to my legal heifs, followed by the statement that by legal heirs the testatrix meant her brothers and sisters, will be deemed to include a half-sister and a step-brother, where it appears that she had but one full sister and no brother but her half-sister and her step-brother had always been called “sister” and “brother” by •her.</p> <p>2. A devise of the proceeds of a certain fund to the legal heirs of the testatrix and of her husband, the child or children of such as are deceased to take the parent’s, share, without designating as in other items of the will the shares each set of heirs should take, will he construed to mean that the distribution should be per capita and not per stirpes.</p>

<p>ADDITION TO TAX RETURN HELD TO HAVE BEEN A CLERICAL ERROR..</p> <p>Taxation of National Banks — Addition to Return Enjoined — Evidence Warranting the Conclusion that the Addition Was Due to a Clerical Error.</p> <p>An increase by the district board of assessors, according to the direction of the state tax commission, of the amount of the return of a national bank, may be enjoined Where that increase was evidently the result of a clerical error.</p>

<p>PROPER. METHOD OF COMPUTING THE FRANCHISE TAX.</p> <p>Foreign Corporations — Determination of Amount of Franchise Tax - to be Paid by — Where the Company Oions Property and Transacts Business Outside of Ohio.</p> <p>The franchise tax chargeable against a corporation for the privilege of exercising its franchise in this state is to be determined by ascertaining the relation which, the property of the company located in this state and the amount of business done here bears to the authorized capital stock as compared to the value of the property owned and the amount of business done outside of the state.</p>

<p>EVIDENCE TAKEN BY GRAND JURY AFTER. RETURN OF INDICTMENT.</p> <p>Discretion of (Sand Jury — Only Limited Control Over that Body Tested in the Court — Searing of Further Testimony After Return of Indictment Not Irregular — Motion to Compel Disclosure of Evidence so Taken Does Not Lie.</p> <p>The taking of further testimony by a grand jury with reference to an offense which has been made the subject of an indictment, but under which no issue has yet been made, is a matter which is wholly within the discretion of that body, and, though unusual, such action is not irregular, and a motion does not lie to require that the defendant be furnished with a copy of the evidence so taken.</p>

<p>INJURY TO ABUTTING PROPERTY FROM MAKING A FILL ON A RAILWAY RIGHT-OF-WAY ACROSS A STREET.</p> <p>Actions in Equity and at Law — Concurrent Jurisdiction — Election Between. Remedies — Pleading—Adoption by Reference Permissible Only When Appropriate.</p> <p>1. Concurrent jurisdiction, as applied to courts of law and courts of equity with respect to the affording of relief against a wrong in the form of a nuisance, means that under ordinary circumstances when the injury may be adequately compensated in damages the remedy is at law, but when the injury is irreparable in the equitable sense the remedy 'is in equity.</p> <p>2. That injury may be irreparable, and warranting intervention by injunction, it must be so great as to be incapable of compensation in damages. If the injury be doubtful, eventual or contingent, equity will not enjoin. Mere diminution in the value of property without irreparable mischief will not furnish foundation for equitable relief.</p> <p>3. Where a plaintiff alleges facts which constitute, a nuisance causing injury to his property in a specified amount, and in a second cause of action alleged that the injury will be continuing and irreparable damage will result to his property unless an injunction is granted, the matter contained in the said second cause of action must be regarded as a 'conclusion of law which the court will disregard and eliminate sua sponte, leaving the plaintiff in the position of electing to sue at law for damages for the alleged iniury and nuisance.</p>

<p>SCOPE OF EMPLOYMENT OF CHAUFFEURS.</p> <p>Woman Struck by Automobile While Alighting from Street Car — Gross Negligence to Drive Between a Car Discharging Passengers and the Curb — Regardless of the Validity of a Prohibitory Ordinance— Unauthorized Detour of a Mile Does Not Take a Chauffeur Out of the Scope of His Employment, When — Intention of Chauffeur and Extent of the Detour Determining Factors — Tendency to Broaden the Liability of Employers Placing in the Hands of Employees Appliances Capable of Great Injury if Negligently Handled — A Chauffeur Not an Agent But Often in the Class of Domestic Servants.</p> <p>1. The traffic regulation which in many cities has taken the form of an ordinance, that a vehicle following a, street car must stop when the car stops to take on or discharge passengers, has become an established custom which passengers have a right to assume will be observed and which relieves them under ordinary circumstances from the charge of contributory negligence in failing to look back.</p> <p>2. A chauffeur who drives his machine at the rate of twenty-five miles an hour between the curb and a car which has stopped to discharge passengers, is guilty of negligence so gross and palpable as to be clearly willful.</p> <p>3. In such a case the question whether the chauffeur bore the relation of servant and was acting within the scope of his employment, is one for the jury to determine from the evidence and surrounding circumstances.</p> <p>4. A chauffeur who picks up some acquaintances while driving on an errand for his employer, and turns back one mile to take them to their destination, and during this detour strikes and injures a pedestrian, must be held to have been acting within the scope of his employment at the time of the accident.</p>

<p>SCINTILLA RULE NOT APPLICABLE TO WILL CONTESTS.</p> <p>Wills — Contest of — Trial by Jury in such Actions Not a Constitutional Right But a Statutory Sanction — Presumption of Validity and What is Required to Warrant Submission to the Jury — Procedural Rights Under the Original Code, as Distinguished from Statutory Remedies.</p> <p>1. The civil action created by the code, embracing as it does only the common law and equity actions, does not include the statutory remedy of contest of wills, in so far as the latter may be invested with the procedural incidents of the former.</p> <p>2. The procedural rights which are attached to the original code of civil action such as right of appeal, constitutional trial by jury, and power of non-suit, do not apply to statutory remedies and other -civil actions triable by the jury created by the Legislature pursuant to its power to extend such right.</p> <p>3. The proceeding to contest a will is a statutory remedy or action, in which the right of trial by jury exists not by constitutional right but by statutory sanction. Hence it follows that the power of non-suit and the scintilla rule do not have specific application to such proceeding marking off the powers of court and jury as it does in the original civil action. The scintilla rule can have no application to such remedy because of the presumption of the validity of the will arising from the order of probate. To warrant submission of such a case to the jury the evidence must be such as not only to counterbalance such presumption, but to also tend to show lack of appreciation by the testatrix of her surroundings, of her relatives and their deserts and of her property. If it does not so tend to such appreciable extent as to counterbalance the presumption of the validity of the will, and to prove the essentials of want of capacity to make a will, the function and duty of the court is to apply the law, and enter up judgment in favor of those sustaining the will.</p>

<p>ILLEGAL ATTEMPT TO WIDEN A ROAD.</p> <p>Appropriation by a Municipality for Widening a Public Way — Injunction Against, Lies Where. No Necessity Exists — And No Necessity Exists Where the Way Has been Narrowed, from the Desired Width by Encroachments — Injustice of the Present Method of Fixing Compensation in Municipal Appropriation Proceedings — Binding Character of a Consent Decree.</p> <p>1. A claim of lack of jurisdiction on the part of county commissioners to establish a new way can not be based on the failure of the record to state that the required notice was given, where the record does contain the statement that no objection was made to the proceedings, and the road as thereafter laid out has been in continuous use for ninety years.</p> <p>2. The court finds that the road here in question (now a city street) originally laid out at a width of sixty feet, that its lines as so established were recognized by early village records and confirmed by decree of court, and that its present width of only fifty feet is due to encroachments by the property owners on one side.</p> <p>3. Such being the case no “necessity” exists for widening the way to sixty feet by appropriating a strip ten feet in width on the side opposite the encroachments, and no necessity existing the proposed appropriation can not be legally made, and injunction lies against such proceedings.</p>

<p>GROWTH OF THE LAW TO FIT NEW CONDITIONS.</p> <p>Constitutional Law — Validity of the New Law of Libel — Modifying the Rule as to Liability VJithout Regard to Moral Turpitude — Everything Filed in a Competent Court of Justice is Public Property and May be Examined, Discussed and Published — Sections 11342-3.</p> <p>The present Ohio statutes relating to libel do not contravene any provision of either the state or federal Constitution, but are a proper exercise of legislative power; and a fair and impartial report of the filing and of the contents of ah affidavit in a criminal action, pending at the time in a court of competent jurisdiction, is privileged and against such publication there is no remedy.</p>

<p>PERFORMANCE TO THE "SATISFACTION” OF A PARTICULAR PERSON.</p> <p>Contract of Employment — To Continue as Long as Work is Satisfactory — Discharge Must be Based on Reasonable Grounds — Ohio Rule Apparently Not in Harmony With That in Other States.</p> <p>In view of the uncertainty in Ohio as to the test which shall be applied where agreements are to be performed to the satisfaction of a particular individual and he seeks to terminate the contract on the ground of dissatisfaction, a nisi prius court will follow the latest expression of the circuit courts, which requires that the dissatisfaction be reasonable and not arbitrary.</p>

<p>CLAIM OF ADVERSE POSSESSION BY THE GRANTOR. OF THE PROPERTY CONVEYED.</p> <p>Title to a Way Gl aimed Through Adverse Possession — Based Upon an Undisclosed Intention on the Part of the 'Grantor — To Hold the Way as Against the Grantee and Her Successors in Tifie — Injunction Against Assertion of Title t>y Prescription.</p> <p>1. While a person may acquire title by prescription as against his grantee, his intention to hold adversely to the grantee must be evidenced by some overt act which is sufficient to inform the grantee of such purpose.</p> <p>2. The claim in the instant case that the term of the adverse possession began on the day of the delivery of the deed, is characterized by the court as repugnant to all sense of right, equity and justice; and the testimony affording but slight support for such a contention, the court refuses to find that the grantor had an undisclosed purpose in mind at the time he made the grant to at once and immediately begin to hold the property adverse to the grantee, and the assertion of a title so acquired is enjoined.</p>

<p>ASSIGNMENT OF WAGES STATUTE INVALID.</p> <p>Constitutional Law — Statute Requiring Payment of 'Wages Twice Monthly — Invalid in Its Provision Relating to the Assignment of Wages.</p> <p>Tlie act providing for payment of wages at least twice in each calendar month (Section 12946-1-2) abridges the privileges of those to whom it is intended to apply by denying to them, in the provision against assignment of wages, the right to possess and enjoy their property, and is as to that provision unconstitutional and void.</p>

<p>UNREASONABLE REQUIREMENT AS TO HOUSE DRAINAGE.</p> <p>Constitutional Law — Ordinance Relating to House Drains — Rendered Void by an Unreasonable Restriction as to the Use of Vitrified Pipe.</p> <p>1. A municipal ordinance which requires that all house drains shall be of vitrified pipe or iron pipe, and if of vitrified pipe then encased in two inches of cement or grout, is unreasonable and void for the reason that vitrified pipe is less porous than cement and the cement sleeve would serve no useful purpose but would so increase the cost as to render the use of vitrified pipe prohibitive and create a monopoly in the use of iron pipe which the evidence shows to be less desirable.</p> <p>2. Mandatory injunction is the proper procedure where a permit to lay a house drain of vitrified pipe has been refused.</p>

<p>DELAY IN OBJECTING TO THE METHOD OF SELECTING JURY.</p> <p>Libel ancl Slander — Prosecution for — Review of the Proceedings — Trial Before a Jury Not Drawn from the Wheel Not Prejudicial to the Defendant, When — Exception to the Array Must be Taken Before the Jury is Impanneled — Privileged Matter — Failure to File Bill of Exceptions — Two Affidavits Pending at the Same Time — Section 11466.</p> <p>1. The method of selecting jurors, in the absence of a challenge to the array, is not a part of the trial of the cause, and when no such timely challenge is made can not be complained of by the defendant, who is concerned only in having the jury made up .of citizens from the vicinage.</p> <p>2. Matter does not become privileged by reason of the fact that it is published before a court in an ex parte way or privately to the court, but not in a judicial proceeding.</p> <p>3. The failure of the trial judge to file the bill of exceptions is not' a matter of which advantage can be taken to the prejudice of the defendant in a criminal case; nor does the fact that the trial judge has appended his signature to the bill, and thereby certified that it is a true bill, require a reviewing court to close its eyes to the evident fact that it is "a partial or mutilated document and proceed to make findings on questions arising on such bill.</p> <p>4. It is not error to overrule a motion to dismiss a prosecution for libel on the ground that another affidavit is pending in the same court betv/een the same parties upon the same complaint, nor is it error to require the state to elect between the affidavits.</p>

<p>LATERAL SUPPORT TAKEN BY A STREET IMPROVEMENT.</p> <p>Lateral Support — Interference With Right of, by Excavation for a Street Improvement — Abutting Owner Entitled to Compensation — ■ But Improvement Can Not be Enjoined Until Compensation is Made — Section 3829.</p> <p>1. Where a proposed street improvement will require such a cut or excavation along the property of an abutting owner as to interfere with the right to lateral support, there would a taking of property within the meaning of the Constitution, for which the owner would be entitled to compensation.</p> <p>2. A municipality, however, is not required to first make eompensasation to the owner in such a case before proceeding with the street improvement, but may proceed with the improvement and make compensation thereafter; an injunction, therefore, will not lie to prevent a municipality from proceeding with such improvement.</p> <p>3. Where such abutting property owner has been served with notice of the proposed improvement, and has filed his claim for damages within the prescribed time, it becomes the duty of the municipality, when it decides to proceed with the improvement, to determine whether or not such claim shall be inquired into before or after the improvement is made, and a failure to act in this respect should be considered a determination by the municipality to have the claim inquired into after the improvement is completed in accordance with the provisions of Section 3829 of the General Code.</p> <p>4. A property-owner who has duly filed his claim for such damages is entitled to have his claim judicially inquired into and is not obliged to file a separate or independent suit against the city to recover such damages.</p>

<p>PRICE RECEIVED AT AUCTION AS EVIDENCE OF THE MARKET VALUE OF REAL PROPERTY.</p> <p>Evidence — Breach of Contract to Purchase — Value of the Property Involved — As Evidenced ~by Price Received at Re-Sale — -Value of Vendee's Right to Purchase, Distinguished from Market Value of Property.</p> <p>In an action between vendor and vendee for damages for refusal to perform a contract to purchase real estate, the price obtained by. the vendor on re-sale of the property at auction,'after notice to vendee, will be received as some evidence tending to show market value, provided the, conditions surrounding such re-sale and the terms thereof are such as to appear to be fair and reasonable, although the terms of such re-sale are not identical with the terms of the original contract ol sale nor as favorable to the purchaser.</p>

<p>ADJUDICATION IN BANKRUPTCY OF ONE WHOSE PROPERTY IS IN THE HANDS OF A RECEIVER. APPOINTED BY A STATE COURT.</p> <p>Transfer of an Insolvent Estate from the State to the Federal Court— Jurisdiction of the State Court to Confirm the Account of Its Receiver and Order Payment of Costs, Fees and Expenses.</p> <p>1. When the defendant to an action in the state court in which a receiver has been appointed is adjudged a bankrupt, but such adjudication is made after part or all of the property has been sold and converted into cash, the bankruptcy court has no right to require the trustee appointed by it to take charge of the proceeds of the property in the hands of the state receiver before he has accounted to the state court and his account is settled and approved.</p> <p>2. The rule which has been adopted in the decisions of the courts is that where no fund is in the hands of the state receiver, at the date of the adjudication in bankruptcy, out of which compensation of the receiver and counsel and other expenses may be paid, such persons claiming the right to be paid out of the property must be remitted to the bankruptcy court for the adjudication and establishment of their respective claims.</p>

<p>PROTECTION TO INFANT REVERSIONERS.</p> <p>Partition — Order for, Questioned by Infant Reversioner After Ooming of Full Age — Respective Rights of Life Tenant and Remaindermen Who Are Minors — Section 11603.</p> <p>1. An infant may, within twelve months after coming of full age, question the validity of an order for the partition of lands in which she is a reversioner, where during infancy she had answered through a guardian ad litem denying the plaintiff’s right of action.</p> <p>2. Where land sought to be partitioned is held in part by the plaintiff in fee and in part as a life estate with infants as remaindermen, and a single improvement covers both parcels, a case of equitable partition is presented.</p> <p>3. In such a case the' ordering' of a partition and consequent sale of the property is within the discretion of the court; and where the plaintiff is in possession of the entire property and is receiving the rents and profits therefrom, and its sale by the sheriff would be to her advantage and to the disadvantage of the children, a demurrer to the petition of one of. the minors who has become of age, asking for an order vacating the previous order for a partition, will be overruled.</p>

<p>ISSUE RAISED IN A WILL CONTEST AS TO PLAINTIFF’S INTEREST.</p> <p>'Wills — Contest of — Denial of Plaintiffs Alleged Interest Makes a Primary Issue Triable to the Court — Amendment Asserting a Different Interest Not Permissible After Expiration of the Statutory Limitation — Laches Affecting Right- to Amend.</p> <p>1. An amendment which is a departure from the original petition will not be allowed after the bar of the statutory, limitation has intervened.</p> <p>2. A motion for leave to file a certain amended pleading will be overruled when the pleading cendered is clearly faulty in form oi demurrable.</p> <p>3. A motion for leave to amend for the purpose of alleging a different interest to support the plaintiffs’ right to contest a will, filed after a trial and -finding against the plaintiff’s original claim of interest, will be overruled as too late; and with added reason when it appears that the plaintiffs are chargeable with laches, and that, at an earlier stage of the case, they were expressly advised by the court of the need of amendment if such different interest was to be asserted by them.</p>

<p>FAILURE TO SUPPORT A CLAIM OF MALPRACTICE BY EVIDENCE.</p> <p>Malpractice — To Support Claim of, Reliance Must be Had on the Testimony of Experts — No Guaranty Given of the Siiecess of an Operation — Judgment of the Operator Must Control — Use of the “Lane Plate” in the Case of Fracture — Part of the Plate Removed by the Operator and the Remainder Ohisled out — Some Months Later by Another Surgeon — Claim for Damages Can Not be Based on Failure of the Operation to Prove Completely Successful.</p> <p>1. In eases where malpractice is charged the jury must be largely guided by the testimony of expert witnesses, and they can not disregard the testimony of such witnesses to the same extent as in the case of experts in other classes of cases.</p> <p>2. A physician or surgeon does not insure the recovery of his patient, and all the law requires of him is ordinary professional skill and knowledge in the treatment of the cases which he undertakes; and where the plaintiff has suffered a broken arm and has sued the attending surgeon for malpractice; the mere fact that plaintiff has not recovered the full use of his arm and is somewhat crippled, does not warrant the conclusion that his condition in that respect is due to the negligence or want of skill of the surgeon.</p> <p>S. Where the defendant is a surgeon of high professional standing, and experts who are called testify that in that class of cases the method to be pursued must be left entirely to the judgment of the operator and the circumstances of the particular case, and whether the proper method was followed in the case in hand they could not say, and the only evidence supporting the plaintiff’s claim of unskillfulness or negligence is the fact that the recovery was less satisfactory than was hoped for, there is nothing to warrant the submission of the case to the jury.</p>

<p>SUMMONS IN DIVORCE CASES.</p> <p>Divorce and Alimony — Defendant Out of the State by Compulsion— Must be Served as a Resident of the State — Strict Construction of the Statute Recuired — Faulty Affidavit for Service by Publication — Residence and Abode.</p> <p>1. Extreme cruelty and gross neglect of duty are separate and distinct grounds for divorce, and where acts are complained of which might constitute extreme cruelty under some circumstances and gross neglect of duty under, other circumstances, good pleading requires that it-be stated on which ground a divorce is asked.</p> <p>2. Where an affidavit for publication goes beyond the requirement of the statute “that service of summons can not' be made within the state upon the defendant sought to be served,” and undertakes to give the reason why service can not be made within the state, and the reason given is that the defendant resides on a certain street of a city in another state, it does not necessarily follow that the affidavit conforms with the requirements of the statute, inasmuch as the reason given is not conclusive that service can not be had upon him in this state. '</p> <p>3. Place of residence is a matter of choice, and where an army officer ' has indicated his choice by purchasing property within the state and establishing his home therein which he continues to maintain, he can not be served by publication, notwithstanding his abode is by compulsion at some army post in another state or country where he has been stationed by the Government.</p>

<p>ASSESSMENTS FOR. PARTITION FENCES.</p> <p>Partition Fences — Validity of Assessment Against Owner of Right-of-way — For Constructing and Maintaining One-half of the Fence on Each Side.</p> <p>The owner of a right-of-way used as a farm outlet is required to construct and maintain one-half of the fence on each side of his right-of-way, irrespective of whether a complete enclosure is made at the end openings by gates or otherwise, and a valid assessment may be made for construction of such fence.</p>

<p>DELIVERY OF PROOFS OF LOSS TO GENERAL AGENT IS DELIVERY TO THE COMPANY.</p> <p>Fire Insurance — Interest of Insured Not Changed — By Transfer of Title to Trustee for Sole Benefit of Insured — Filing of Proofs of Loss — Time Limits for so Doing and for Malting Payment Under the Policy.</p> <p>1. Where a policy of fire insurance provides that the entire policy shall be void if the interest of the insured be other than unconditional and sole ownership, a transfer of the legal title in the property covered by the policy to a trustee for the sole benefit of the insured so that if the property was destroyed the entire loss would fall on the insured, does not change the interest of the insured so as to render the policy void.</p> <p>2. Where a policy of fire insurance requires proofs of loss to be rendered to the company, an agent who is authorized to solicit fire insurance, to issue and countersign policies, and to collect premiums, is a general agent representing the company for the purpose of receiving or being served with proofs of loss in case of fire, and the delivery of proofs of loss to such agent is as a matter of law a delivery to the company.</p> <p>3. A clause in a New York standard form policy of fire insurance, providing that proofs of loss shall be rendered to the company within sixty days after the fire, does not constitute a condition precedent, the failure to perform which would preclude a recovery under the policy, where' there is no provision in the policy declaring that such failure renders the policy void.</p> <p>4: Where such a policy provides that the loss shall not become payable imtil sixty days after proofs of loss have been filed, a failure to file proofs of loss within the sixty day period referred to in the preceding paragraph merely postpones,the time of payment of the loss.</p> <p>5. Where, in an action for recovery under a policy of fire insurance, the defendant company sets up separate defenses in each of which there is a general denial and a specific denial, the general denials will be considered as limited and restricted to such particulars as are pointed out in the specific denials and the only issues tendered will be those raised by the specific denials.</p>

<p>ACTION FOR. LOSS OF GOODS STORED FOR HIRE.</p> <p>Pleading- — Where the Claim- of a Bailor Rests Upon Contract — And the Defense ts Based on Loss by Fire — Not Admissible to Allege Custom, and Usage with Reference to Care Exercised by the Bailee —Burden of Proof Distinguished from, Weight of Evidence.</p> <p>Where a bailor sues the bailee in contract, on the bailment for loss of goods bailed, instead of in case for negligence, proof of failure of the bailee to deliver on demand, establishes a prima facie case of negligence, and places the burden on him to prove that he was ordinarily prudent.</p>

<p>APPLICATION OF THE STATUTE OF LIMITATIONS IN CASE OF A BREACH OF TRUST.</p> <p>Trusts — Breach of — Statute of Limitations Applicable, When — Statute Not Tolled, Unless — Nature of an Action Brought by the Representative of the Beneficiary.</p> <p>1. The statute of limitations constitutes a bar to all actions seeking to recover trust property excepting in those cases of direct and technical trusts cognizable alone in equity, and then only in case of fraud or concealment, or where there is no remedy by action at law to which time is expressly fixed, or where there has been no open denial or repudiation of the trust brought home at the time to the knowledge of the parties in interest.</p> <p>2. Where the trustee of an express trust, upon receipt of trust funds, uses those funds to pay off his own obligations, as well as the obligations of others, incurred in the general course of the business out of which the trusteeship arose, the statute of limitations will commence to run against the beneficiary o£ the trust immediately upon the conversion of the funds where there is no fraud or concealment apparent on the part of him to whom the trust fund is paid.</p> <p>3. Even if a person so receiving trust funds be deemed to be a trustee, he is not the trustee of such a continuing and subsisting trust as will toll the operation of the statute of limitations.</p> <p>4. An action brought by the representative of the beneficiary to recover the fund so.converted is not an action for relief on the ground of fraud, and therefore the statute of limitations commences to run from the time of the alleged wrongful conversion.</p>

<p>CLAIM FOR, BREACH OF CONTRACT DEFEATED BY ACQUIESCENCE.</p> <p>Breach of Contract — Estoppel Against Claim for Damages — Growing Out of Reduction of Salary Contrary to Terms of Agreement.</p> <p>Inasmuch as a plaintiff can not acquiesce in a breach of his contract and still rely upon it and claim damages for the breach, an action does not lie for breach of a contract of employment for a two year period at a stipulated salary, where the plaintiff left the employment during the second year because of a reduction in his salary but accepted payment at the reduced rate from the time the reduction was made until he gave up the employment.</p>

<p>RIGHT OF A COURT TO COMMIT FOR. CONTEMPT.</p> <p>Contempt of Cowl — Statutory Penalty a Fine Only — But the Court Has Inherent Power to Make the Punishment Effective dy Commitment.</p> <p>A court has power to commit one found guilty of contempt, where the fine imposed therefor remains unpaid.</p>

<p>AMENDMENT OF PETITION BY PLAINTIFF’S ADMINISTRATOR.</p> <p>Amendment — Only Limitation that Original Cause of Action Must Not he Changed — Both Parties Have an Interest in a Release — And its Production May he Required for Purposes of Inspection — Sections 11363 and 11552.</p> <p>1. A pleading may be amended by interlineation even after the death of the plaintiff and the substitution of his administrator, where the amendment does not substantially change the cause of action and where it merely makes the grounds of complaint more definite and certain.</p> <p>2. Where defendant pleads a release given by plaintiff’s intestate in his lifetime, plaintiff may by motion require the defendant to permit an inspection thereof. Such release can not be said to be a confidential communication nor to relate exclusively to defendant’s case. Hx parte Schoepf, 74 O. S., 1, distinguished.</p>

<p>CONSTRUCTION OF THE REQUIREMENT AS TO THE IMMEDIATE ENTERING OF JUDGMENT BY A JUSTICE.</p> <p>Judgment hy Justice of the Peace — Mandatory Requirement That It Shall Be Entered Immediately, When.</p> <p>The provision of Section 10378, General Code, that when trial is had before a justice of the peace, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached, is mandatory and requires that a judgment in such a case which was not entered immediately after the close of the trial must be reversed.</p>

<p>HOME RULE AS EMBODIED IN MUNICIPAL CHARTERS.</p> <p>Local Government Under the Amended Constitution — Municipal Charters — Provisions of, Prevail Over Legislative Aets — Extent of Poioers Which May be Granted — Delegation of Sovereignty — Franchises Distinguished from Contracts — Obtaining of Consents from Abutting Property Oioners to the Building of a Street Railway — Not Required Under the Cleveland Charter. — Evils Abated Thereby — Right to “Consent” Not a Property Right.</p> <p>1. A municipality which has adopted a charter under the Home Rule Amendment has the same power to legislate, through its council and within the provisions of its charter and the state Constitution, as has the General Assembly to exercise such power; and the provisions of its charter in effect operate as a repeal of statutes in conflict therewith.</p> <p>2. The test whether a municipality which has adopted a charter is acting beyond the scope of its authority must be determined by reference to the state Constitution, and not to acts of the Legislature.</p> <p>3. Under the provisions of the charter adopted by the city of Cleveland an agreement may be entered into between the municipality and a street railway company whereby the latter may build a street railway line, under the conditions imposed by said agreement, along a designated street or streets without first obtaining the consent of the abutting property owners.</p>

<p>PASSENGER. THROWN FROM CAR. STEP BY SUDDEN STARTING OF CAR..</p> <p>Negligence — Passenger Preparing to Step from Gar — Thrown by Sudden Starting of Gar — Misconduct in Argument to Jury — Proper Test as to, Considers the Manner of the Speaker as Well as the Words Spoken — Charge of Court.</p> <p>1. Statements by counsel in his argument to the jury, which when placed in cold type may be susceptible of a veiled or insidious meaning, will not be so regarded by the court and treated as misconduct, where at the time they were uttered there was nothing in the manner of the speaker to indicate that they were meant to be harsh or offensive, but the impression produced was rather that they were spoken in a facetious mood.</p> <p>2. Where a charge is not prejudicial and covers fairly all the points raised by the pleadings and evidence, a new trial will not be granted because in the opinion of counsel the verbiage might have been improved.</p> <p>3. A passenger on an interurban car, which is approaching a regular stop at which the passenger intends to alight, and the name of the station is called by the conductor, has a right to assume when the car has been brought almost to a standstill that it will be brought to a full stop and he can take his stand on the step with safety, and when in so doing he is thrown from the car and injured by it being suddenly started, the proximate cause of the accident is the negligence of the motorman in giving the car the sudden jerk forward, rather than of the passenger in taking his stand on the car step.</p>

<p>AS TO ADDITIONAL ALLOWANCE FOR. CLERK HIRE.</p> <p>Compensation for Deputies, Clerics and Assistants in County Offices— Authority of the County Commissioners with Reference Thereto— What Would Justify an Additional Allowance Toy a Judge of the Court of Common Pleas — Construction of the Salary Act.</p> <p>1. The salary act, providing compensation for county officials and their deputies, clerks and assistants, etc., confers upon the board of county commissioners of each county in the state of Ohio broad discretionary and administrative or governing duties and powers.</p> <p>2. The duties and powers so conferred authorize and require such . board of county commissioners acting under Sections 2980, 2980-1 and 2981 of the General Code, to allow or disallow, regulate and limit the employment of deputies, clerks and assistants, etc., and the expenditure of the public funds therefor to the actual require ments of the public service.</p> <p>3. The duties and powers so conferred upon the board of county commissioners are not arbitrary, and they must be used by such board ■ of county commissioners with legal and not arbitrary discretion.</p> <p>4. The power conferred upon a judge of the court of common pleas to make additional allowances, etc., by Section 2980-1 of the salary act, is essentially judicial and must be exercised in a judicial capacity.</p> <p>5. To justify the court or such judge in ordering an additional allowance under Section 2980-1, it should reasonably and clearly appear that a necessity for the good of the public service exists, and that the board of county commissioners are without authority to meet such exigency, or that such necessity exists and that the board of county commissioners have abused their authority in the premises.</p>

<p>UNREASONABLE DELAY IN PRESENTATION OF A CALL NOTE.</p> <p>Promissory Notes — Endorser Released from Liability — By Unreasonable Belay in Presentment — Burden on Solder to Show Reason for the Belay.</p> <p>A petition asking judgment on a note, payable on demand after date ■without interest, is open to demurrer on the part of an accommodation endorser, where it appears that more .than three years elapsed before presentment, demand and notice were made, and there is no averment.that the holder exercised due dilligence in the matter of presentment and demand and no averment of a reasonable cause for the delay.</p>

<p>CONSTRUCTION OF THE SALARY LOAN ACT.</p> <p>Usury Under the Haas Law — Promissory Note Drawing Eight Per Gent. Interest — Usurious ~When Payable in Installments Before the Principal Bum Becomes Due — Drastic Feature of the Haas Law— Usurious Note and Mrotgage Ordered Canceled.</p> <p>1. A promissory note is usurious although drawing only eight per | cent, interest, where the stipulation is for eight per cent, on the | “principal sum,” which however is made payable in monthly in- ' stallments during the year for which the note is made to run.</p> <p>2. Where there is incorporated into- the note a provision that, in casé an action is brought in any court for its collection, a reasonable attorney’s fee of not less than ten per cent, shall be included in any judgment entered by the court, the note is also rendered usurious by reason of that provision.</p> <p>3. By the terms of the Haas bill such a note is void, together with the mortgage securing it, and in an action to enforce its collection a decree will be entered cancelling both the note and mortgage.</p>

<p>NO ATTORNEY’S FEES FOR. SERVICES BEFORE THE INDUSTRIAL COMMISSION.</p> <p>Workmen's Oompansation Act — Makes no Provision for Fees to an Attorney Securing an Allowance to a Minor.</p> <p>There is no authority under the workmen’s compensation act of Ohio for an award of fees by the probate court to the attorney of the guardian of a minor for services in obtaining an allowance of compensation to the minor from the state industrial commission.</p>

<p>WRONGFUL PAYMENT OF A CHECK TO AN UNIDENTIFIED HOLDER.</p> <p>Banks and Banking — Liability of Bank Paying a Check to an Unidentified Holder.</p> <p>Unless the circumstances are such as to amount to a direction by the drawer of a check to the bank upon which it is drawn to pay the cheek without reference to the genuineness of the endorsement, or a prior course of dealing warranting such payment, the bank is liable if payment is made on an unauthorized endorsement.</p>

<p>MONEY NEGLIGENTLY PAID BY A JUDGMENT DEBTOR IN DISREGARD OF THE CLAIMS OF CROSS-PETITIONERS.</p> <p>Revivor — Different Methods of Effecting — Granting of an Order of, Within the Discretion of the Court, Notwithstanding More than One Year Has Elapsed — Weight of Evidence Between Witnesses of Equal Credibility■ — Issuance of Summons Not Necessary on a Gross-Petition, When.</p> <p>1. An order of revivor which was not made on motion of the successor in interest, or by supplemental petition with service upon him as the representative of the estate, or by consent of parties by an order nisi or conditional order, is subject to a motion to be set aside.</p> <p>2. But where it appears that an application was made within a month after the validity of the original order was challenged and after it had stood for two years unchallenged, it is within the discretion of the court to grant another order upon a supplemental pleading, notwithstanding more than one year has elapsed since the death of the defendant and it is being insisted that on account of the delay the granting of such an order will be to the prejudice of intervening rights.</p> <p>3. Where a cross-petitioner has obtained a lien on a fund due to the estate of a decedent, and the money is thereafter negligently paid over to the executor,' the lien-holder can not be required to follow the fund, but may hold the original debtor therefor.</p> <p>4. In the case of two men of equal credibility testifying as to the giving notice of such a lien — one that he personally gave the required notice, and the other denying that any such notice was given him — it will be assumed that the notice was given, for the reason that the receiving of such a notice might be easily forgotten while it is highly improbable that an honest man would testify as to a transaction which never' occurred.</p> <p>5. It is not necessary in Ohio that cross-petitioners, whose claims are confined strictly to the matter in issue in the petition, have summons issued on their cross-petitions, but the summons issued on the petition is sufficient to sustain a judgment on the cross-petitions.</p>

<p>ACTION TO RECOVER. A COMMISSION BY ONE WHOSE AGENCY HAD BEEN TERMINATED.</p> <p>Agency — Attempt of Agent to Represent Both Parties — Relieves' Both from Liability for His Services, When — Test as to Whether an Agent is a Mere Middleman — Revocation of Agency — Charge of Court.</p> <p>1. An agent who assumes to act for both parties in a transaction can not recover compensation from either party, even upon an express promise, unless it is • clearly shown that each principal had full knowledge of all the circumstances connected with his employment by the other and had assented to the double employment.</p> <p>2. In ord :r to determine whether or not an agent is a mere middleman, reference must be had to the contract of employment, and where the contract of employment authorizes the agent to sell the property and confers authority to negotiate, the agent is not then a mere middleman and therefore can not act for the other party to the transaction without the consent of his principal, and in the event that he does so he can not recovey the compensation fixed in his contract.</p> <p>3. Where it appears from the evidence that the plaintiff was employed as agent to sell, among other things^ a state license to traffic in intoxicating liquors, and the principal was informed before the consummation of the transaction that the board of liquor license commissioners would not consent to the transfer of any license that had been brought about by the negotiations of the agent, the principal had the right under those circumstances, while acting in good faith, to revoke the agent’s license, and an instruction to the jury that if they found under the circumstances that the agent’s authority to sell was in good faith revoked by his principal, the agent would not be entitled to a commission, notwithstanding that the sale was subsequently made to a party with whom the agent had been negotiating, is not erroneous.</p>

<p>COMPLICATIONS IN DISTRIBUTION OF AN ESTATE.</p> <p>Distribution — Course of Descent to Heirs of a Childless Couple — Apportionment of the Debts of Each of the Decedents Among Their Respective Heirs.</p> <p>Some years following the death of A, his wife (they were childless) died leaving personalty, some of which came to her through A, and also two pieces of real estate, both under mortgage, one of which she inherited from A and the other was bought by her after his death. Upon distribution, Held:</p> <p>That the personalty not derived from the estate of the husband should be applied toward the payment of the debts of the wife; that from the proceeds from the sale of each piece of realty the mortgage thereon should be paid, and to the balances remaining should then be added the proceeds from the husband’s personalty one-half to each; the remainder of the wife’s debts will then be paid, the amount so required being taken from the two estates respectively, the heirs contributing thereto in proportion that the value of the property coming to them bears .to the whole estate; the heirs of the wife will then take the remainder of the proceeds from the sale of her realty and one-half of the proceeds remaining from the sale of the husband’s realty tand one-half the proceeds from the husband’s personalty and his heirs will take'the remaining one-half of the husband’s realty and one-half the proceeds from the husband’s personalty.</p>

<p>PROCEEDINGS FOR. INCORPORATION OF A VILLAGE.</p> <p>Tillages — Dual Method Provided for Incorporation of — rFailure to Give Notice of Election for Full Statutory Time — Transcript Filed with, the Recorder — Limits of the Corporation and Whether Reasonable.</p> <p>1. The two methods provided under the laws of Ohio for the incorporation of villages are not exclusive each of the other, but are cumulative. Either method may be pursued as to allotted or platted lands, but as to unplatted lands Sections 3526-3531 alone apply.</p> <p>2. Failure to publish notice of an election as to a proposed incorporation for the full ten days required by statute will be treated as an irregularity only, where there is no showing that the result of the vote would have been in any way changed had publication been made for the full time.</p> <p>3. Proof that persons who signed the petition for incorporation are electors, and reside within the limits of the proposed incorporation, and a majority of them are freeholders, need not be set out in the transcript filed with the recorder.</p> <p>4. A proposed incorporation or three thousand acres is not unreasonably large, where there is a population of six hundred, and the allotments cover six hundred acres, and the character of the property is rapidly changing; nor is ground afforded for refusing a prayer for incorporation because some of those owning farm lands will be inconvenienced by reason of the fact that they do their shopping in a neighboring village and their social relations are mantained there.</p>

<p>LIABILITY FOR. SERVICES OF ATTORNEYS IN DEFENDING A PUBLIC BOARD.</p> <p>Office and Officer — Employment of Outside Counsel to Defend a Public Board — Good Faith — Officers Not Liable Under a Contract for Such Services, When.</p> <p>When the legally constituted counsel of a public board refuse to resist an action in which the board is vitailv interested and special counsel are employed to make the necessary defense, the board, rather than its members in their individual capacity, will be held liable for the fees of such counsel,' particularly where no bad faith is shown and the members of the board serve without compensation.</p>

<p>UNENFORCIBLE AGREEMENT RELATING TO THE DESCENT OF PROPERTY TO ADOPTED CHILDREN.</p> <p>Adopting Parent Enters Into a Parol Agreement — MaJcing Adopted Children His Heirs — Difficulty in Establishing the Contract — But if Proven it would Fall Within the Statute of Frauds.</p> <p>A parol agreement entered into between a childless couple and the father of two children, whereby the childless couple undertook to adopt the children and make them their heirs and give them their property at death, is unenforcible, even if established by satisfactory evidence, where the estate which the children claim many years later under the agreement consists in part of realty and the agreement is not taken out of the statute of frauds by part performance or a showing of fraud.</p>

<p>ATTEMPT TO SECURE A DIVORCE IN FRAUD OF LAW.</p> <p>Divorce — Attempt to Secure by Obtaining Residence in Another State— Does Not Give Jurisdiction to Grant a Decree, When — Injunction Against Proceedings in the Courts of Another State.</p> <p>Where one of the parties to a marriage contract becomes a resident of another state for the sole purpose of obtaining a divorce while so resident, and a few days after the requisite time as provided by statute files a suit for divorce in a court of said state, his residence so obtained is not bona fide and gives the courts of said state no jurisdiction, and an action so filed will be disregarded by the courts of this state.</p>

<p>REFUSAL BY CONSTABLE TO LEVY EXECUTION UNLESS INDEMNIFIED.</p> <p>Constable — Rot Bound at His Peril — To Levy Execution Upon Property Covered by Chattel Mortgage and in Possession of the Mortgagee.</p> <p>A constable is not bound at his peril to levy execution upon goods and' chattels covered by a chattel mortgage which are in the possession of the mortgagee who claims to be the sole owner thereof, and his refusal so to levy, unless the execution creditor first indemnifies him, does not make such constable and his bondsmen liable in damages in an action by the state for the use of the execution creditor.</p>

<p>ENFORCEMENT OF JUDGMENT NOTWITHSTANDING BOND TO STAY PROCEEDINGS.</p> <p>Judgment — Enforcement of, Where Bond Has Been Given — Will Not he Permitted, Unless — Section 12269.</p> <p>An application for leave to give a restitution bond and enforce tlie judgment, notwithstanding a bond has been given to stay proceedings, will not be granted, unless it appear upon the face of the record or is otherwise brought to the attention of the court that the only purpose of the defendant below in taking the case to a higher court is to harass the plaintiff and without cause deprive him of the fruits of his victory by exhausting his resources and withholding from him that to which he may be justly, entitled. Such an application should be'made to the judge who tried the case rather than to one who is a stranger to the merits of the controversy and the demands of justice as presented thereby.</p>

<p>CONSTRUCTION OF THE WORD “ BORROWER.” IN THE LICENSED LOAN OFFICE ACT.</p> <p>Licensed, Loan Offices — May Malée Loans Other than on Chattels or Assignment of Wages — Without Filling Out the Card Provided in the Licensed Loan ,Office Act — Construction of the Word “Borrower”— Section 6346-3.</p> <p>A loan office, doing business under the act to regulate and license the loaning of money upon chatties or personal property or salaries, or wage earnings, is required 'to give the borrower a card containing detailed information with reference to the loan as provided in Section 6346-3, only in case the borrower is one who is obtaining a loan upon chattel property or by assignment of salary or wage earnings. Where the loan is upon real estate mortgage, or on a promissory note, or in any other form than on chattel-property or by the assignment of wage earnings or salary, the said section has no application.</p>

<p>AS TO SEPARATION OF BIDS FOR. LABOR. AND MATERIAL IN BIDS FOR. MUNICIPAL WORK.</p> <p>Municipal Contracts — Separation of Bids for Lador and Material— Estoppel — Section 4329, General Code.</p> <p>The provisions of Section 4329, General Code, that in submitting a bid for a municipal contract which embraces both labor and material, they shall be separately stated with the price thereof, is not a restrictive provision of the nature and kind against which no estoppel will lie, but is largely a provision for the guidance of the' officer upon whom the duty devolves of awarding the contract; and where it appears that the rights of the municipality suffered no prejudice by the acceptance of a bid and the awarding of a contract thereunder, and the work was done in accordance with the specifications and was accepted, estoppel lies against denial by the city of liability therefor.</p>

<p>DISCHARGE OF MEN IN THE CLASSIFIED SERVICE.</p> <p>Civil Service — No Prohibition Against Discharge Dxce.pt for Political or Religious Reasons — Courts Can Not Inquire into the Truth or Falsity of Reasons Assigned, When.</p> <p>1. The civil service statute of this state (General Code, Section 486-17; 103 O. L., 707), forbids discharge from the classified service "for religious or political reasons” but contains no other prohibition in this respect, and where the reason assigned for a discharge is not “religious or political” and the requirements of the statute as to notice, furnishing reasons and affording time for explana- " tion have been complied with, the court can not compel the reinstatement of the person thus discharged.</p> <p>2. Where the matters- of fact assigned as reasons would, if true, afford ground for discharge and it is not claimed that the discharge was made for “religidus or political reasons,” the court can not inquire into the truth or falsity of the assigned reasons.</p>

<p>COMPENSATION FOR. THE SETTLEMENT OF THE ESTATE OF A DECEDENT.</p> <p>Estates — Letters of Administration Relate Bach to Death of Decedent, When — For What Purpose — Extra Compensation.</p> <p>1. Where one of the next of kin and an heir at law by agreement or with the knowledge and consent of the other next of kin and heirs at law undertakes to settle and adjust the affairé of the estate of a decedent and by reason of such arrangement collects assets and pays valid debts of such estate and is later duly appointed to administer thereon, the letters of administration so issued relate back to the death of the decedent and thereby legitimate all transactions made under and by virtue of such arrangement; and such subsequent appointee may claim and be allowed the statutory per centum upon all assets so collected and disbursed and for such purpose letters of administration likewise relate back to the death of the decedent.</p> <p>2. Executors or administrators de son tort are no longer recognized in Ohio.</p> <p>3. Where an administratrix brings suit to sell the real estate of the decedent and such action is contested by one of the heirs at law, such administratrix is entitled to extra compensation for her time and expenses in attendance upon such suit, because such services are not in the common course of duty. She is likewise entitled to railroad fare and hqtel bills under Section 10837, General Code, while traveling about in the discharge of the ordinary duties relating to the estate, and also to telephone tolls and postage. She is not entitled to per cliem and allowance for expenses when traveling about the community where the estate is situated, in the discharge of her ordinary duties and where no expense is incurred. Such services are in the common course of her duty and for which the statutory per centum is intended to compensate.</p>

<p>STOCKHOLDER CAN NOT BE DEPRIVED OF HIS PROPORTIONATE SHARE OF A NEW ISSUE OF STOCK WITHOUT HIS ASSENT.</p> <p>Corporations — Increase of Stock — Holders of Original Stock Have Preference to Subscribe for New Stock — In such Proportion as the Number of Shares Owned Bears to the Whole Number of Shares Before the Increase — Majority •Stockholders Have no Power to Give to One of Their Number a Certain Number of Shares of the Increased Stock Without the Assent of the Minority Stockholders — Non-Assenting Stockholder Can Compel Restitution, Unless.</p> <p>1. Where the stock of a corporation is increased, the holders of the original stock have a preference to subscribe for the new stock, each original stockholder being entitled to such proportion of the new stock as the number of shares owned by him bears to the whole number of shares before the increase, and it is beyond the powers of the majority stockholders to give to one of their number a certain number of shares of the increased stock without the assent of the minority stockholders.</p> <p>2. Where new stock, is issued as against the surplus assets of a corporation a stockholder can not be deprived of his proportionate share of the stock so issued without, his assent.</p> <p>3. Where the majority stockholders of a corporation attempt to make a donation of a portion of shares of stock which are issued against the surplus assets of the corporation, a non-assenting stockholder can compel the restitution to him of his proportionate share- of the stock attempted to be donated, unless he has estopped himself to deny the validity of the attempted donation of the stock. •</p> <p>4. In considering the question of laches on the part of a non-assenting stockholder in setting up his rights a court of equity will not regard a delay in instituting proceedings so strictly where the parties are members of the same family as where they are strangers to each other. ■ • ' ■</p> <p>5. All the non-assenting stockholders may join in an action to compel restitution to them of their proportionate share of the increase if the stock has actually been issued, or to enjoin its issuance if it has not" been issued.</p> <p>6. A court of equity is not bound to confine itself to grant or refuse to grant the relief prayed for, but may grant such relief as the facts may show complainant entitled to, notwithstanding it is not precisely the' relief that is asked for, and where a donation of stock is made against the assent of certain minority stockholders the court may compel restitution to them of their proportionate shares of the stock so donated without decreeing a restitution of the proportionate shares of the donated stock to the stockholders who assented to the donation, although the prayer is for the restitution of the entire amount so donated.</p>

<p>PRESCRIPTIVE RIGHT TO THE USE OF A WAY.</p> <p>Basement — Right-of-Way Claimed by Prescription — Upon What an Basement Based upon Prescription Rests — Trespass May Ripen into Title by Prescription — Presumption as to Knowledge by the Owner of Use — Prescriptive Right Distinguished from a Right Resting upon Uninterrupted Use — Injunction.</p> <p>1. An easement by right of prescription rests upon a use and enjoyment, inconsistent with, and in derogation of an exercise of absolute dominion and contrci.1 by the owner of the fee. To assert a right by prescription is to make a claim of defensive right rather than one of ownership.</p> <p>2. A trespass if persisted in by an open, notorious, uninterrupted, adverse use, under a claim of right for the statutory period will) ripen into title by prescription.</p> <p>3. A presumption of law arises that an owner having either actual knowledge of a use, or who has constructive knowledge from open, visible use, and allows it to continue without let or hindrance for the statutory period of time, confers a right on the possessor or user to the extent of his use, which can not be overcome by proof of no grant.</p> <p>4. There is a distinction between a prescriptive right arising from adverse use of an easement, and a use springing from uninterrupted, continuous use of land. A right-of-way by prescription rests upon uninterrupted use for twenty-one years by analogy to the statute of limitations, and not upon the fiction of a grant.</p> <p>5. Where a right-of-way over a servient estate is open and visible to the owner thereof, so that under all the facts and circumstances its continuous use may become known to the owner, constructive notice and knowledge is then chargeable to him.</p> <p>6. So where an existing right-of-way over the lands of a grantor is yielded in consideration of an oral grant by the grantee of another rignt-of-way over the land of the latter, and such substituted right-of-way is used openly continuously without let or hindrance by all owners in succession for twenty-one years, a prescriptive right of title arises. Use of such right-of-way in such manner and in such -nay as to constructively disclose to the owner that it was used as a matter of right, for a period of twenty-one years beyond the time it was used and enjoyed under the privilege of the original grantee, charges the servient owner with knowledge of the adverse use and gives rise to a prescriptive right and title.</p>

<p>PROPERTY IN PROCESSES REQUIRING EXPERIENCE, SKILL AND KNOWLEDGE.</p> <p>Trade Secrets — Involved in the Art of Making Worm Gear Drives — Processes of Manufacture May be Clothed with Property Rights— Knowledge Obtained in Practice — Distinguished from that Derived from the Books or Possessed by Technical Experts — Employees Under Obligation to Treat Such Knowledge as Held in Trust — Bound by an Implied Contract Hot to Use Such Knowledge to the Injury of their Employers. , ></p> <p>A shop foreman, who while so employed has obtained an intimate knowledge of a superior manufacturing process, upon leaving such employment may be enjoined from promoting a competing company or using his knowledge so obtained, or drawings pertaining to such process which came into his possession, in connection with a competing business; hut he can not be enjoined from obtaining a patent on a mechanism used in such process, application for which he already has on file.</p>

<p>DISCHARGE IN THE MUNICIPAL COURT FOR. AN OFFENSE HIGHER THAN ITS JURISDICTION.</p> <p>Criminal Law — Discharge in Mxinieipal Court Under a Felony Charge— Not a Bar to Subsequent Prosecution.</p> <p>A person arrested upon a warrant charging him with embezzling $77, a felony for which he was discharged in the municipal court, can not set up this discharge as a ploa in bar to an indictment in the common pleas court charging him with embezzlement of the same $77, for the reason that the municipal court did not have jurisdiction of the felony charge, its powers being limited to that of an examining magistrate.</p>

<p>DEFENSES OF ACCOMMODATION MAKER. UNDER. THE NEGOTIABLE INSTRUMENTS ACT.</p> <p>Promissory Notes — Defense of the Privileges of a Surety Closed to an Accommodation Maker — Failure of the Bank (Holder) to Sue After Written Notice so to do — Verbal Release by Bank Officer Ultra Vires and of no Avail — Primary Liability of One Who Signs on the Face of a Note.</p> <p>1. One who signs a note as an apparent maker and principal debtor, can not subsequently assert the contrary and thus affect his liability on the instrument, and a defense based on the privileges of suretyship, as they existed prior to the negotiable instruments act, is Open to demurrer. . ■</p> <p>2. A release in writing for a valuable consideration in and of itself constitutes a valid defense under the negotiable instruments act; but where the evidence supporting the allegation as to a release consists only of a verbal statement to the accommodation maker, by the cashier of the bank holding the note, that he was released — a statement a cashier would have no authority by'virtue of his office to make, and which would be ultra vires in the mouth of any bank officer where no consideration had passed — no estoppel in pais is created, notwithstanding the accommodation maker acted upon it to his prejudice.</p>

<p>VALIDITY OF ISSUE OF BONDS NOT OFFERED TO BOARD OF EDUCATION.</p> <p>Municipal Corporations — Failure to Offer Municipal -Electric Light Bonds for School Board, in the Absence of a Board of Commissioners of the Sinking Fund — -Does Not Render Such Bonds Invalid, When —Resolution Declaring an Issue of Electric Light Bonds Necessary, and Fixing Date for Submitting the Question to the Electors Need Not be Published — Sections 3943, 3949 and 7614.</p> <p>1. Bonds issued in conformity to Section 3949, General Code, for the erection of a municipal light plant, are not, in the event of failure of the common pleas court to appoint a “board of commissioners of the sinking fund” of such district as provided by Section 7614, required to be offered to the board of education, but it is sufficient if such bonds are offered to the municipal sinking fund trustees, who are charged in such event with the dual management of both city and school sinking funds; and in the absence from a petition to enjoin the'execution and delivery of such bonds of an allegation that they were not offered to the municipal sinking fund trustees in their dual capacity, it will be presumed that the officials properly discharged their duty, and a demurrer thereto will be; sustained.</p> <p>2. A resolution declaring it necessary to issue and sell bonds for the erection of a municipal electric light plant and stating the amount of the proposed issue and date for submission of the question to the electors of the corporation for their approval, is not within the meaning of Section 3943 as amended, requiring the publication of ordinances of a general nature or those providing for public improvements.</p>

<p>FAILURE OF CITY OFFICIALS TO MAKE FINAL ESTIMATE FQR. COMPLETED WORK. .</p> <p>Municipal Contracts — Contractor Entitled to Interest Where there is Delay in the Final Estimate — Not Limited, to Mandamus to Compel Payment — Compliance with the Requirement that All Bids Embracing Both Labor and. Material be Separately Stated with the Price Therefor — Bond as a Condition Precedent to City Accepting the Worh</p> <p>1. Failure of city officials to make a final estimate on completed work or to. take the necessary steps leading up to settlement of the claim of the contractor within a reasonable time creates liability on the part of the city for interest on the fund so withheld.</p> <p>2. A contractor who is unable to obtain a final settlement from a municipality is not limited to an action in mandamus to compel the officials to perform their duty, but if he so elects, he may have recourse to an action in tort for damages.</p> <p>3. A bid of a public contractor for a street improvement, containing twenty items, one of which and a fair sample of the other items being “Curbs, 5 inch granite, per lin. ft., one dollar and thirty cents, $1.30 cts,” sufficiently complied with Section 4329, General Code (143 Municipal Code, old section), requiring all bids embracing both labor and material to be separately stated with • the price therefor.</p> <p>4. A clause in a bond required by the city to be executed by the contractor as a condition precedent to the city accepting the work and executed for the purpose of protecting the city from all damages resulting from accepting the work, which clause provided “it being . understood that the execution of the bond shall in no wise prejudice the rights, if any, which the contractors may have to interest on the contract price for said work from the time of its completion,” was a sufficient reservation of the question of interest, and therefore the contractor was not estopped to claim interest after accepting payment of the principal sum.</p>

<p>FAILURE OF CLERK TO ISSUE SUMMONS IN ERROR.</p> <p>Action on Bond of Cleric of Supreme Court — For Failure to Issue Summons in Error — Liability of the Clerh and His Surety — Manner in Which the Breach Should be Alleged — Averment of Legal Conclusion Rather than of Necessary Facts.</p> <p>1. Tire petition in an action for breach of ah official bond should set forth the essential terms of the bond in ordinary and concise language, without the attaching of a copy of the bond as on exhibit.</p> <p>2. When a precipe has been filed in proper form by counsel in a case wbicb has'been taken to the Supreme Court, it is the duty of tbé clerk to at once issue a summons in error and transmit it by mail or otherwise to the sheriff of the proper county; and failure of the clerk to issue summons at all, or to issue it in proper time, renders him liable with his surety for any damage which may accrue to the plaintiff in error in consequence thereof.</p> <p>3. In an action on the bond of the clerk, an allegation that he failed to issue or cause summons to issue is not objectionable on the ground that it is an alternative allegation; but the averment that “no summons was issued on said petition in error from the office of said defendant clerk within the time required by law,” fails to disclose the facts upon which the suit is based, hut is in the form of a legal conclusion and is subject to demurrer.</p>

<p>NECESSARY ALLEGATIONS IN AN ACTION AGAINST A CLERK FOR. FAILURE TO ISSUE SUMMONS.</p> <p>Damage Distinguished from Injury — Procedure for Determining the Damage Resulting from a Default which Halted a Proceeding in Error.</p> <p>In an action against the clerk of a reviewing court for failure to issue a summons in error, by reason whereof the plaintiff was deprived of his right to prosecute error, it is essential that facts be averred which will constitute a basis for damages by disclosing material or prejudicial error which would have entitled the plaintiff to a reversal of the judgment which he has been compelled to satisfy by reason of the negligence of the said clerk.</p>

<p>ATTEMPT TO THWART A DECREE FOR. ALIMONY.</p> <p>Alimony — Nature of a Judgment for — Attempt of Defendant to Defeat the Order of Court with Reference thereto hy Transfer of Sis Business Interests to a Corporation — Facts Connected therewith Set forth in a Supplemental Petition — Saif Interest in the Property Awarded to Plaintiff, and Said Interest Restored to Ser.</p> <p>An attempt to frustrate an order of court and defeat its judgment for alimony through the organization by the defendant of a corporation and transfer to it of the business enterprises being carried on by him, after the court had intimated to counsel that a decree for alimony would be allowed to plaintiff and an equal division of the property ordered, but before a decree carrying into effect the intention of the court had been entered, constitutes fraud and deceit. The acts of the corporation in such a case will be treated as the acts of the defendant, and the plaintiff may proceed by supplemental petition to secure an order for the assignment and transfer to her of all the right, title and interest in said property awarded to her by said decree.</p>

<p>CONTRACT FOR. SALE OF LAND.</p> <p>Vendor's Interest — Where He Holds Title, But Has Made a Contract of Sale — Equitable Lien Distinguished from Vendor’s Lien — Action to Recover Under Contract of Purchase.</p> <p>Under a'contract for the sale of land, the vendor has an equitable lien on the land for unpaid purchase money, and he may resort to equity in the first instance to enforce his lien, without first bringing an action at law to recover the amount due.</p>