Volume 18 — Ohio Circuit Court Decisions

<p>.ERROR, to Huron common pleas court.</p>

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

<p>CROSSINGS — NEGLIGENCE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Erroneous Charge as to Looking and Listening at Crossing.</p> <p>A traveler is never wholly absolved from using his faculties to avoid danger, and in an action growing out of an accident at a grade crossing, a charge to the jury is erroneous which makes the railroad com-' pany liable on account of the negligence of the watchman in failing to signal danger, independent of the fact that the deceased and her husband, who was riding with her, depended on the watchman more than on their own faculties to discover whether a train tfas coming.</p> <p>2. Question of Negligence of Decedent in Regard to Looking and Listening is for Jury.</p> <p>In such a case the extent to which the decedent and her husband used their senses to discover whether a train was approaching, or the degree of negligence, if any, of which they were guilty, are questions for the jury.</p> <p>3. Burden of Proof on Plaintiff where His Testimony Raises Presumption of Contributory Negligence.</p> <p>While it is true the burden of proving contributory negligence is on the defendant, an exception arises to the rule where the plaintiff’s own testimony raises a presumption of contributory negligence.</p> <p>[Syllabus by the court.]</p>

<p>DIVORCE — COURTS—PARENT AND CHILD.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Reviewing Court will not Disturb Order as to Custody of Children Except for Grave Mistake or Abuse of Discretion.</p> <p>In divorce proceedings the care and custody of children is a question addressing itself to the sound discretion of the trial court, and when this discretion has been exercised, a reviewing court will not interfere with or disturb an order with reference thereto, unless there has been a serious error or an abuse of discretion.</p> <p>2. Continuing Jurisdiction of Court as to Children of Divorced Parents cannot be Used Merely to Reopen Former Adjudication.</p> <p>A trial court has a continuing jurisdiction as to the care and custody of ■the children of divorced parents, but it is not authorized to reopen questions relative thereto previously submitted and adjudicated, unless a substantial change has taken place in the condition- of the parties, which requires a modification of the former order. (a(v..* • ).</p> <p>3. Wealth of Relatives must not Conteol Decision of Coubt as to Custodt .of Children.</p> <p>Jn determining questions relative to tile custody of children of divorced parent's, the wealth and prosperity of relatives should 'not be given an undue and exaggerated consideration and will not control as against the interests and rights of. the mother, especially when it appears that such relatives owe no duty to the children.</p> <p>’{Syllabus approved by the court.]</p>

<p>APPEAL — STATUTES.</p> <p>lelke, Swing and GifCen, JJ.</p> <p>1. Act Enlarging Right of Joinder may Apply to Pending Actions.</p> <p>An act giving increased powers to a county treasurer as to joinder in actions for the sale of realty for taxes may be made applicable to all actions pending, wherein judgment has not been rendered.</p> <p>2. Act Changing Remedy Applies to Pending Case Subsequently Appealed.</p> <p>An appeal operates to vacate the judgment of the lower court, and a cause will stand in the appellate court as a pending action without judgment; hence Rev. Stat. 1104 (Lan. 2451), which relates to the matter of joinder in suits for the sale of real estate for delinquent taxes, will apply to action» pending at the time of the enactment of such law and later appealed.</p>

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

<p>MUNICIPAL CORPORATIONS — RAILROADS—STREETS.</p> <p>Marvin, Winch and Laubie, JJ.</p> <p>t. Agreement to Pay fob Maintenance of Flagman by Railway if Latteb Required so to do, not Enfokcible if Done under Mutually Advantageous Agreement with Municipality.</p> <p>Under a contract by which a traction company agreed to pay all the costs and expenses incurred by a railway company in maintaining a flagman “lawfully required” by the public authorities at the intersection Of their tracks, such traction company will not be liable where the railway company placed a flagman at the crossing under a contract with a village, by which the municipality agreed to repeal a certain ordinance restricting the speed of trains.</p> <p>2. Agreement by Traction Company to Maintain Flagman at Railway Crossing, Void for Want of Consideration, if Nothing Granted but Right to Cross.</p> <p>A traction company has the right to lay and maintain its tracks at the grade of a street and across the track of a railroad by virtue of its franchise, without liability to the railroad company; an agreement, therefore, by such traction company to pay the costs and expenses of maintaining a flagman at their crossing without further compensation therefor than the right to cross the railway’s tracks is void for want of consideration.</p> <p>3. Construction, etc., of Traction Company’s Tracks not a New Servitude.</p> <p>The construction and maintenance of tracks by a traction company along municipal streets under authority legally granted by the municipality will not impose a new or additional burden upon the abutting property for which the owner of the fee can obtain compensation when the tracks are laid along the center and at the grade of the street.</p> <p>4. If Municipality Annexes County Road, Title Vests Therein in Trust.</p> <p>When a municipal corporation annexes territory embracing a county road, the title in fee to that part of the road vests ip. the municipality in trust for the public.</p> <p>[Syllabus approved by the court.]</p>

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

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

Plaintiff had the right to waive the tort and sue on an implied contract, and in fact did, by his petition and amended petition, elect so to do. Hence the bar of limitation for such a suit is sis years, under Rev. Stat. 4981 (Lan; 8496). Whilden v. Bank, 64 Ala. 1 [38 Am. Rep. 1]; Kohn, v. Carrollton, 10 La. Ann. 719; Segelken v. Meyer, 94 N. Y. 473 r. Whereatt v. Bilis, 58 Wis. 625 [17 N. W. Rep. 301]; Union Pao. By. v. Shook, 3 Kans. App. 710 [44 Pac.

<p>DAMAGES — NEGLIGENCE—TORTS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Joint Tort Feasor Ordinarily cannot have Contribution.</p> <p>When two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of the tort feasors in a joint action, or he may pursue any one of them and recover from him, and in such case the latter is not ordinarily entitled to indemnity or contribution from those who with him caused the injury.</p> <p>2. Joint Tort Feasor can have Contribution when not in Pari Delicto, but Merely Chargeable with Other’s Wrongful Act.</p> <p>Although, in an action for damages, the law holds all parties liable as wrongdoers to the injured party, yet if a judgment has.been obtained against a joint tort feasor, but it appears that as a matter of fact' he was not in vari delicto with the others but was merely chargeable with their wrong by virtue of some relation existing between them, he will in turn be entitled to contribution from those causing the injury.</p> <p>3. Mill Race Owner Responding in Damages for , Overflow may Recover of Party Actually Causing Same, if without Fault Himself.</p> <p>A defendant who has been compelled to respond in damages in a suit for negligently permitting the water in a mill race to overflow another’s property, will have an action to recover the amount of such judgment from a railway company which has condemned certain land on the side of such mill race for its right of way and in building a bridge across the same, has so obstructed it as to cause the overflow, all of which was done, as a matter of fact, without fault on the part of the owner of the mill race.</p> <p>4. Charge Enunciating Ordinary Rule of Contributory Negligence is Erroneous. if Evidence Shows Plaintiff Relieved by Special Promises of Defendant.</p> <p>In an action for damages against a railway company for negligently obstructing plaintiff’s mill race, thus causing it to overflow, a charge to the jury in substance that even if the defendant was guilty of negligence, the plaintiff could not recover if he did not exercise reasonable care irt the management of the race, will be erroneous, where the evidence tends to show that the attention of defendant’s agent'was called to the fact that the waters in such race were rising to a dangerous height as a consequence of the railway’s building operations, and that he assured plaintiff that he would take care of the same, so as to prevent any injury therefrom.</p> <p>ISyllabus approved by the court.]</p>

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

<p>CONTRACTS — EVIDENCE—SALES.</p> <p>Yoorhees, Donahue and McCarty, JJ.</p> <p>1. Responsibility op Seller oe Perishable Goods, Car Load Lots, f. o. b. Shipping Point,</p> <p>A contract of sale for the delivery of perishable goods in car load lots, f. o. b. shipping point, where the car is loaded by the seller, and not by the common carrier, requires of the seller that he should properly load and deliver such car in good condition to the railroad company. There the responsibility of the seller ends, but if he should fail in any particular in properly loading said car and deliver it to the railroad company in right condition, and by reason of which failure the goods were injured and destroyed in transit, the buyer is not bound to receive the same, nor does the property in the goods pass to him until the obligation of the shipper is discharged with reasonable care and diligence.</p> <p>3. Question of Performance by Seller for Jury.</p> <p>The law of such contract requires that the seller shall do that thing which is right and reasonable for the protection of perishable property, to be delivered f. o. b. at shipping point, and the question as to what is right and reasonable is a question for the jury, and evidence of the general custom of the trade in handling such perishable property is competent for the purpose of showing what is reasonably necessary under such circumstances.</p> <p>3. Entry in Book by Person Having Knowledge of, not Party to, Transaction, Admissible.</p> <p>An entry or memorandum in a book or in any other form made in the usual course of business at the time of the transaction, by a person legitimately connected with such transaction, not a party to the suit, but who is shown to have means of knowledge of the fact recorded, and it appearing that he has no interest in misrepresenting or misstating the facts, is admissible in evidence.</p> <p>[Syllabus by the court.]</p>

<p>MaNdamus.</p> <p>Wolfe v. Marmet, 72 Ohio St. 578-.State v. Babbits, 46 Ohio St. 178 [19 N. E. Rep. 437]; State v. Wolfe, 6 Gire. Dec. 118 (11 R. 591); Barclay v. Salmon, 9 Gire. Dec. 520 (17 R. 152); North Bloomfield Gravel Mining Go. v. Keyser, 58 Cal. 315.</p>

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

<p>ASSESSMENTS — NOTICE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Service of Notice of Street Improvement upon Lessee with Option is Sufficient, when.</p> <p>Service of notice of a street improvement upon, and the signing of a petition by,- a lessee for ten years with privilege of purchase, is sufficient to bind all interests with reference thereto, when it appears from the testimony that the lessor considered the property sold, had it transferred on the tax duplicate to the lessee, and looked to him to pay all taxes and assessments.</p>

<p>EXECUTIONS — SUBROGATION.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Execution will Issue against 'Deceased and Surviving Judgment Debtors fob the Sake of Conformity.</p> <p>If one of two judgment-debtors dies before the issuance of the execution, the writ will be issued, for the sake of conformity, against both the survivor and the deceased defendant, although as a matter of law it is an execution against the survivor alone.</p> <p>2. Purchaser Agreeing to Pay Mortgage as Part of Consideration, not Sub-rogated to Mortgagee’s Rights.</p> <p>A purchaser who agrees to pay a mortgage on property as a part of the purchase price will be personally liable to the mortgage holder as the transaction is not a purchase of the equity of redemption subject to the mortgage, but of the land in fee; he is not, therefore, subrogated to the rights of the mortgagee so as to have a lien on the premises superior to that of a judgment accruing subsequent to the execution of such mortgage, but prior to his purchase.</p> <p>[Syllabus approved by the court.]</p>

<p>COURTS — EXECUTORS AND ADMINISTRATORS — PARENT AND CHILD.</p> <p>Jelke, Swing and G-iffen, JJ.</p> <p>1. Special Jurisdiction Conferred on Proeate Court by Rev. Stat. 6100 (Lan. 9639) et seq., Includes Necessarily Incidental Equitable Jurisdiction.</p> <p>The jurisdiction of the' probate court provided for by Rev. Stat.' 6100' (Lan. 9639) et seq., to allow or reject claims made by an executor or administrator against the estate he represents, carries with it such equitable jurisdiction as is necessary to a full and complete exercise of the powers specifically conferred.</p> <p>2. Court will make Allowance to Mother out of Deceased Child’s Estate for Past Support, under Extraordinary Circumstances.</p> <p>While it is the general rule that no allowance will ordinarily be made to either a father or mother out of the estate of their deceased minor children for their past maintenance and support, yet where it appears that a mother was furnishing such support, and has no estate, or an estate small and trifling in comparison to that of the minor, and that the maintenance given to the minor for his benefit was under circumstances practically coercive on the mother, and that in doing so she was compelled to assume a burden not naturally and legally her» alone, such allowance may be made.</p> <p>3. Defect in Application under Rev. Stat. 6100 (Lan. 9639) may be Cured by the Evidence.</p> <p>Even should an application under Rev. Gtat. 6100 (Lan. 9639), for an award to a mother out of the estate of her deceased minor child be insufficient to make out a case for the application of the special equitable jurisdiction of the court, the decree will not be disturbed on review if the evidence adduced was sufficient for that purpose.</p>

The ,city contends that it is not liable for an improbable or extraordinary accident. Village v. Kallagher, 52 Ohio St. 183 [39 N. E. Rep. 144]; Dillon, Mun. Corp. Sec. 1020, p. 1287.

<p>CHATTEL MORTGAGES — CONVERSION.</p> <p>Marvin, Winch an,d Henry, JJ.</p> <p>1. Revised Statutes 4155-1 (Law. 6852) as to Foreclosure of Mortgage on Household Goods Inures to Benefit of Single Man.</p> <p>Revised Statutes 4155-1 (Lan. 6852), which prescribes the formalities for the foreclosure of a chattel mortgage on necessary household goods, wearing apparel, etc., was passed for the protection of the mortgagor and should be liberally construed in order to promote its object, and its protective features will apply as well to the necessary household goods of a widower without any family as to those of a married man.</p> <p>2. Mortgagee cannot Take Household Goods Except as Provided by Statute, even though Mortgagor be without a Family and Goods be Stored.</p> <p>An action for damages will lie for the conversion of household goods, where the evidence shows that mortgagor, a widower, stored the same temporarily and left the city with the intent, however, of returning and keeping house in the near future, and that during his absence defendant mortgagee took possession of the same without following the statutory formalities for the foreclosure of a chattel mortgage on necessary household goods.</p> <p>•3. In Action for Conversion of Secondhand Chattels, Testimony of Plaintiff as to Value is Admissible.</p> <p>In an action for damages for the wrongful conversion of certain household goods, the market price thereof as shown by other evidence, will not be considered as the sole criterion of value, as they may have a peculiar worth to plaintiff, and it is not erroneous therefore to admit his testimony as to their value.</p> <p>[Syllabus approved by the court.]</p>

<p>COMPROMISE — RELEASE.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>COMPROMISE with ONE JOINT TORT FEASOR RELEASES OTHERS, IF ACTION FOR UN-LIQUIDATED Damages.</p> <p>A compromise with one joint tort feasor, containing an express reservation of the right to prosecute the other defendant for a balance in excess of the amount so received will operate to release the latter if the action be for unliquidated damages; where, however, the damages are measurable under fixed rules of law, and it is therefore easy to determine whether or not the amount paid is full compensation and satisfaction, for the injury complained of, whether such agreement will discharge the other tort feasor only pro tanto, quaere.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Wood common pleas court.</p> <p>As to the Ballou deed. 2 Beach, Equity Secs. 544-7, pp. 1261-8; Sec. 554, pp. 1261-2; Sec. 555, p. 1264; 2 Pomeroy, Equity Sees. 988-9; 1 Lewin, Trusts 210 et seq.</p> <p>As to the Shaffer deed. Bishop, Contracts Chap. 55, Secs. 1420, 1433, 1440; Gilbert v. Port, 28 Ohio St. 276; Campbell v. Gittings, 19 Ohio 347; McCoy y. Bixbee, 6 Ohio 310; Dustin v. Newcomer, 8 Ohio 49; Bauda-baugh v. Hart, 61 Ohio St. 73 [55 N. E. Rep. 214; 76 Am. St. Rep. 361]; Cutter y. Powell, Smith L. C. 17; Mowry v. Kirk, 19 Ohio St. 375.</p> <p>As to the argument of plaintiff in error. Buchanan y. Boy, 2 Ohio St. 251; Conover y. Porter, 14 Ohio St. 450; Quinlan v. Myers, 29 Obio St. 500; Brown v. Witter, 10 Ohio 142; Katz v. Bedford, 77 Cal. 319 [19 Pac. Rep. 523; 1 L. R. A. 826]; Lake Shore & M. 8. By. v. Bicharás, 152 Ill. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Showers y. Emery, 16 Ohio 294'.</p>

<p>ERROR to Lucas common pleas court.</p> <p>Mortgage of after acquired chattels. Swan’s Treatise (19 eel.) 677; Herman, Chat. Mort. Sec. 46; Stewart v. Loan Assn. 19 Mise. 49 [42 N. Y. Supp. 705]; Van Hoozer v. Corey, 34 Barb. 9; Gardner v. McEwen, 19 N. Y. 123; Farmers’ Loan & Tr. Co. v. Improvement Co. 27 Hun. 89; Kribbs v. Alford, 120 N. Y. 519 [24 N. E. Rep. 811]; Healey v. Dwight, 132 N. Y. 59 [30 N. E. Rep. 258; 18 L. R. A. 298]; Rochester Distilling Co. v. Rasey, 142 N. Y. 570 [37 N. E. Rep. 632; 40 Am. St. Rep. 635]; Carpenter v. Simmons, 28 How. Pr. 12; Beebe v. Light H. & P. Co. 13 Mise. 737 [35 N. Y. Supp.,1]; Anchor Brevjing Co. v. Burns, 52 N. Y. Supp. 1005 [32 App. Div. 272]; Andrew v. Newcomb, 32 N. Y. 417; Duffus v. Bangs, 122 N. Y. 423 [25 N. E. Rep. 980]; Fleetham v. Reddick, 82 Hun •390 [31 N. Y. Supp. 342].</p>

<p>GAS AND OIL.</p> <p>Hull, Haynes and Parker, JJ.</p> <p>1. On. Lease to Run as Long as Oil Pound in Paying Quantities will not be Vacated because Terbitoby is Light.</p> <p>An oil lease conditioned to run five years from the date thereof, or as long as oil or gas should he found in paying quantities, will not be vacated by a court of equity on the ground that the territory is so light as not to warrant the sinking of more wells.</p> <p>3. Lessee in such Case is Sole Judge of Question of Profitableness of Oil Lease.</p> <p>The fact that it is questionable whether oil wells on land held under a lease operative only so long as oil or gas should be found in paying quantities will ever yield a reasonable profit on the investment, is not sufficient . ground for vacating the lease; the lessee is the sole judge on this question, and as long as he can make a profit therefrom, he will be permitted to do so.</p> <p>:3. The Mere Pact that Oil Lessee has not Operated Wells for some Time is not Ground for Vacating Lease.</p> <p>The mere fact that a lessee, under an oil lease conditioned to run as long as it is a profitable investment, has failed to operate the wells for some time, will not be ground for vacating such lease, where such lessee shows good and sufficient reason why it has been impracticable for him so to do.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR to Hamilton common pleas court.</p> <p>Interested party. McArthur v. Scott, 5 O. F. D. 357 [113 U. S. 340; 5 Sup. Ct. Rep. 652; 28 L. Ed. 1015]; McArthur v. Franklin, 15 Ohio St. 485; Star, Eq. PI. Sec. 72-76; Denton v. Nanny, 8 Barb. 618; Mills v. Van Voorhies, 20 N. Y. 412; St. Marys Mach. Co. v. Supply Co. 68 Ohio St. 534 [67 N. E. Rep. 1055; 96 Am. St. 677];Trimble v. Booihby, 14 Ohio 109 [45 Am. Dec. 526]; Gibler v. Trimble, 14 Ohio 323; Irvin v. Smith, 17 Ohio 226; Osborn v. McClelland, 43 Ohio St. 284 [1 N. E. Rep. 644]; Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638; Stone v. Viele, 38 Ohio St. 314; Penn v. Hayward, 14 Ohio St. 302; Benson v. Stein, 34 Ohio St. 294.</p> <p>Amendments to pleadings. Irwin v. Bank, 6 Ohio St. 81; Milius v. Jilarsh, 12 Dec. Re. 765 (1 Disn. 512) ; Clark v. Clark, 20 Ohio St. 128; Broch v. Becker, 5 Dec. Re. 519 (6 Rec. 380; 2 Bull. 262); Lake Shore <& M. S. By. y. Hutchins, 37 Ohio St. 282, 291; Clarke v. Thomas, 34 Ohio St. 46; Newburg Petroleum Co. v. Weare, 44 Ohio St. 604 [9 N. E. Rep. 845]; Boot v. Bailway, 45 Ohio St. 222 [12 N. E. Rep. 812]; Cincinnati v. Cameron, 33 Ohio St. 336; Babcock v. Camp, 12 Ohio St. 11; Grant v. Ludlotv, 8 Ohio St. 1; Morgan v.. Spangler, 20 Ohio St. 38; Barr v. Chapman, 3 Cire. Dec. 36 (5 R. 69).</p> <p>Jurisdiction of two courts. Bateman v. Morris, 7 Dec. 287 (4 N. P. 397).</p>

The uneontradicted proof show's that Emma B. Sargent was “a suit-» able person” to be appointed as administratrix wdthin the meaning of Rev. Stat. 6005 (Lan. 9544). Todhunter v. Stewart, 39 Obio St. 181 j. Schumacher v. McCallip, 69 Ohio St. 500 [69 N. E. Rep. 986].

<p>EVIDENCE — NEGOTIABLE INSTRUMENTS — EXECUTORS AND ADMINISTRATORS.</p> <p>Jelke, .Swing and Giffen, JJ.</p> <p>1. Revised Statutes 5242 (Lan. 8751) Applies to all Facts Occurring Prior to Death.</p> <p>The inhibition of Rev. Stat. 5242 (Lan. 8751) as to the introduction of testimony in suits against executors, administrators, etc., applies not only to transactions with the decedent, but also to facts which occurred before his death; testimony, therefore, as to transactions with the agent of such decedent is as inadmissible as though with the decedent himself.</p> <p>2. Presumption that Holder of Note Took same for Value before Maturitt.</p> <p>Under the provision of Rev. Stat. 3172q (Lan. 4942) as well as under the law merchant, it will be prima facie presumed in favor of the holder of a promissory note that he took it for value in the usual course of trade' before maturity.</p> <p>[Syllabus approved by the court.]</p>

<p>EMINENT DOMAIN — TELEGRAPHS AND TELEPHONES.</p> <p>Norris, Hurin and Vollrath, J.J.</p> <p>1. Right of Eminent Domain must be Cleaelt Plead and Pboven if not Expressly CONFEEBED BY STATUTE.</p> <p>The right of eminent domain involves an attribute of sovereignty and' is a'n interference with private rights, and must, therefore, always be-strictly construed; a'nd every assumption of this right not conferred by statutory enactment within the judicial notice of the court must b® clearly plead and as clearly proven.</p> <p>2. Pobeign Telephone Company cannot Appeopbiate Pbopeety fob Local? Purposes in Absence of Statutory Permission.</p> <p>Interstate comity will not be extended to cases wherein foreign corporations doing business in this state seek to assume a'nd exercise the attributes nf sovereignty as against the private rights of the citizens of this state; and in the absence of statutory provisions expressly conferring the right of eminent domain o'n siich foreign corporations, there is no inherent power vested in a telephone company to condemn private property for purely local purposes, and not as a part of any interstate system.</p> <p>3. Petition by Foreign Telephone Company to Condemn Pbopeety heee must Allege Right of Eminent Domain in Home State.</p> <p>In a condemnation proceeding brought by a foreign telephone -company, its petition must allege, not only that the petitioner is a corporation of its home state, duly created for the purpose of erecting and maintaining lines of telephone within such state, but also that it is empowered by its charter to condemn and appropriate private property therein, and in tK. absence of such averments the petition will be bad on demurrer.</p> <p>[Syllabus approved by the court.]</p>

In a collateral attack upon a judgment rendered before a court of ■general jurisdiction, a presumption of jurisdiction is indulged to sustain tbe judgment, wherever the record is silent on the subjfect.

<p>WILLS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Will Held to Dispose of Estate in Fee.</p> <p>Under a will containing a devise to A generally, with no power of disposal expressed, but followed by a devise to B of what shall remain undisposed ■of at A’s death, A takes an estate in fee simple and the attempted limitation over is void.</p> <p>[Syllabus by the court.]</p>

Upon the question whether the order made by the justice in the proceeding in aid of execution is a final order. Duffey v. Bear don, 70 Ohio St. 328 [71 N. E. Rep. 712] ; Hammock v. Bank, 6 Circ. Dec. 105 (9 E. 139); Barbour v. Boyce, 9 Dec. 332 (6 N. P. 425) ; Secor v. Witter, 39 Ohio St. 218.

Courts are adverse to construing conditions to be precedent where they may defeat the vesting of an estate by a will. Stickney, In re, 85 Md. 79 [36 Atl. Rep. 654; 35 L. R. A. 693; 60 Am.. St. Rep. 308]; Martin v. Balloii, 13 Barb. 119; Lewis v. Henry, 69 Va. (28 Gratt.) 192. If a bequest is upon a condition subsequent the impossibility of the performance of the condition without fault on the part of the legatee discharges such condition and the bequest becomes absolute.

Upon the question whether a certain sum tendered and paid into the justices court by defendants, and, after judgment and) pending appeal proceedings, received and accepted by plaintiff' concludes him thereby from proceeding to recover the full amount he has always claimed to be due, less what he has received. McKercher v. Curtis, 35 Mich. 478; Murphy v. Cold Stock Tel.

<p>PROSECUTING ATTORNEYS — SALARIES.</p> <p>Hayhesj Parker and Wildman, JJ.</p> <p>1. Revised Statutes 1297 (Lan. 2689) Providing Salaries for Prosecuting Attorneys is in Contravention of Sec. 26, Art. 2 of the Constitution.</p> <p>Prosecuting attorneys are not local officers, but are a part of the permanent organization of the government of the state; hence Rev. Stat. 1297 (Lan. 2689) providing for their compensation, which specifies the maximum amount thereof in certain counties, and fixes the salary in other counties on a basis of population, is unconstitutional and void, as being a law of a general nature lacking uniform operation throughout the state.</p> <p>2. Whether Rev. Stat. 1297 (Lan. 2689) Void for Uncertainty, Quaere.</p> <p>Whether Rev. Stat. 1297 (Lan. 2689) providing for the compensation of prosecuting attorneys is not void for uncertainty in its operation, in establishing maximum salaries, but fixing no minimum amounts, and in failing to name the authority to determine the same in the several counties, quaere.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Wood common pleas.</p>

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

<p>DIVORCE AND ALIMONY — EVIDENCE.</p> <p>Hull, Haynes and Parker, JJ.</p> <p>1. In Action by Divorced Wipe for Support of Child, a Charge which Conveys the Impression of Joint Liability therefor is Erroneous.</p> <p>In an action by a divorced wife against her former husband for the support of their minor child, for whom the decree of alimony made no .provision, a charge to the jury which might create in their minds the impression that the husband and wife were jointly liable for such minor child’s support, is erroneous; it is well established in this state that the primary duty of maintaining a minor child devolves upon the father even after divorce.</p> <p>2. Divorced Wife can Recover from Former Husband for Necessary Time Spent in Taking Care of their Child.</p> <p>A divorced wife will be entitled to recover from her former husband for time actually and necessarily spent in .taking care of their minor child, but it will be presumed that only a part of her time was necessarily devoted to such duties.</p> <p>3. Jury should Consider Wealth, etc , «of Parents in Determining Divorced Husband’s Liability fob Maintenance of Child.</p> <p>In determining the amount of recovery in a suit against a divorced husband by his former wife for the'maintenance of their child, the jury should take into consideration the condition, habits, wealth and general mode of living of the parents.</p> <p>4. Questions and Answers Showing Party’s War Record is not Reversible Ebro* unless Prejudice Shown.</p> <p>The fact that there were a great many old soldiers on a jury and that questions were asked in regard to the prior occupation of one of the parties which elicited the fact that he had been in the army and severely wounded is not reversible error, in the absence of a showing that the adverse party was prejudiced thereby.</p> <p>5. Stenographer Should State, in Referring to Exhibit that it was Attached to Bill of Exceptions.</p> <p>For the proper identification of an exhibit introduced in evidence with the intention of attaching it j;o the bill of exceptions, the stenographer should in his reference to it, preferably add the words, “and the same is hereto annexed and made a part of the bill of exceptions-,” but there may be a sufficient identification of the same without such statement.</p> <p>[Syllabus approved by the court;]</p>

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

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

<p>BOND — MILITIA.</p> <p>Parker, Haynes and Wildman, JJ.</p> <p>Officer is not Released from Liability to Pay Premium on his Bond by Notification to Obligor that Bond is no Longer Required.</p> <p>An officer of the national guard is liable for the premium on a continuing bond executed by a bonding company under the requirements of Rev. Stat. 3104 (Lan. 4728) until such company is released from its liability for his default by his furnishing another bond or turning the property for which he is accountable over to the state or to his duly qualified successor; and a mere notification by such officer that he no longer requires such bond, will not operate as a cancellation, or release him .from the payment of the premiums thereon.</p> <p>[Syllabus approved, by the court.]</p>

<p>EXECUTORS AND ADMINISTRATORS — WILL»</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Whether Executor Allowed Expenses for Depending Will Depends upon Particular Circumstances.</p> <p>The question as to whether or not an executor may be allowed credit on his account for expenses incurred in the successful defense of a will contest depends upon the circumstances of each particular case.</p> <p>5. Executor Allowed Expenses in Defending Will when Done Disinterestedly.</p> <p>While an executor is not bound to assume the defense of a contest of a will, he may do so, and where this is done in a disinterested effort to maintain it and preserve the trust therein created and to effectuate the intention of the testator, a court of chancery may allow the executor credit in his account for his expenses incurred in the successful defense of such will.</p> <p>45. - Executor not Allowed Expenses in Defending Will, when Large Special Bequest is Made to him.</p> <p>The court wifi not allow an executor his expenses incurred in defending a will where it appears that he is a legatee thereunder, and that the special bequest to him is the one inviting the attack.</p> <p>tSyllabus approved by the court.]</p>

<p>TEACHERS’ PENSIONS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. The "Word “Teacher” in Act 94 O. L. 305 is not Restricted to Those who have Spent the Time Required in the Public Schools.</p> <p>In construing a statute a word should not be given a limited or specialized meaning unless such meaning is made by legislative enactment; hence, in the act of 1900 (94 O. L. 305) relative to the teacher’s pension fund, the word “teacher,” not being specifically restricted in its meaning, will comprehend within its purview, such instructors as shall have spent a part of the time required in teaching in schools not supported in whole or in part by public taxation.</p> <p>2. One whose Name is on Rolls for Twelve Years but who did not Actually Teach eor such Period, not Entitled to Benefits under 94 O. L. 305.</p> <p>One whose name was on the teacher’s roll of a city school district for twelve years, but who was not actually engaged in teaching therein during ail of such period, a substitute having taken his place at one time, will not be entitled to a pension under the act of 1900 (94 O. L. 305) providing for a teacher’s pension fund for those who have taught for twenty years, and for twelve years in such district.</p> <p>3. Teachers’ Pension Fund Law of 1900 being Unconstitutional, Equity will Endeavor to Put Parties in Statu Quo.</p> <p>Equity will endeavor to restore everybody who has acted under favor of the provisions of an unconstitutional act of the legislature to their rights and their former statu quo; hence the Teachers’ Pension Fund Law of 1900, having been declared unconstitutional, one who had paid assessments under its provisions can recover the same with interest, although he has no redress in the way of enforcing the provisions of such act.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>Appeal from Hamilton circuit court.</p>

<p>ASSESSMENTS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Court will not Examine Question of Benefits as a Matter of Course.</p> <p>A court will examine into the question of benefits only where such inequality exists between the benefit conferred and the assessments levied as to invite equitable intervention; and the fact that the court was divided on the question of whether or not certain property was specially benefited in the amount of the assessment leads to the presumption that the assessment as levied was equitable, and should he sustained.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR to Ashtabula common pleas court.</p> <p>Constitutionality of these statutes. ¡State v. Bridge Co. 59 U. S. (18 How.) 421 [15 L. Ed. 435] ; United States v. Copper Co. 196 U. S. 207 [25 Sup. Ct. Rep. 222; 49 L. Ed. 449]; Gilman v. Philadelphia, 70 U. S. (3 Wall.) 713 [18 L. Ed. 96]; United States v. Bridge Co. 45 Fed. Rep. 178; Miller v. New York, 109 U. S. 385 [3 Snp. Ct. Rep. 328; 29 L. Ed. .971]; United States v. Moline, 82 Fed. Rep. 592; Chatfield v. New Haven, 110 Fed. Rep. 788; Minnehaha Co. v. Thorne, 6 S. Dak. 449 [61 N. W. Rep. 688]; Senior v. Batterman, 44 Ohio St. 661 [11 N. E. Rep. 321] ; Stale -v. Turnpike Co. 37 Ohio St. 481; Chicago, B. & Q. Ry.'v. Cutts, 94 U. S. 163 [24 L. Ed. 94]; GentsQh v. State, 71 Ohio St. 151; State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619]; State v. Graham, 16 Neb. 74. [19 N. W. Rep. 470]; State v. Pugh, 43 Ohio St. 98 [1 N. E. Rep. 439] ; Herrmann v. Cincinnati, 6 Circ. Dec. 151 (9 R. 357) ; Merrill v. Toledo, 3 Cire. Dec. 524 (6 R. 430) ; Costello v. Wyoming, 49 Ohio St. 202 [30 N. E. Rep. 613]; Cooley, Const. Lim. 390; Groesch v. State, 42 Ind. 547; Cincinnati Street By. v. Horstman, 72 Ohio St. 93; Darling v. Berry, 13 Fed. Rep. 659; State v. Eendle, 52 390; Groesch v. State, 42 Ind. 547; Cincinnati Street By. v..Horstman,. 72 Obio St. 93; Darling v. Berry, 13 Fed. Rep. 559; State v. Kendle, 52'. Ohio St. 346 [39 N. E. Rep. 947]; Walker v. Cincinnati, 21 Ohio St¡ 14. [8 Am. Rep. 24]; Barbier v. Connolly, 113 U. S. 27' [5 Sup. Ct. Rep. 357; 28 L. Ed. 923]; Giozza v. Tiernan, 148 U. S. 657 [13 Sup. Ct. Rep. 721; 37 L. Ed. 599]; New York Elevated By. In re, 70 N. T. 327; State• v. Franklin Co. {Comrs.) 35 Ohio St. 458; St. Joseph Co. {Comrs.) v. Pidge, 5 Ind. 13; Hutton v. Webb, 59 L. R. A. 36, note; Pennsylvania v~ Bridge Co. 59 U. S. (18 How.) 421 [15 L. Ed. 435],</p>

<p>ATTACHMENT — ATTORNEY AND CLIENT.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Judgment of Justice in Attachment mat be Reviewed on Weight of Evidence.</p> <p>The judgment of a justice of the peace in an attachment suit may he reviewed on the weight of the evidence under favor of the provisions jf Rev. Stat. 6524 (Lan. 10101).</p> <p>2. Services of Attorney as to Claim of Wife against Divorced Husband not Chargeable against Him.</p> <p>Services rendered by an attorney at law in prosecuting a claim of a divorced wife against her former husband for the support and education of their minor children are not necessaries within the meaning of th* statute, and such a claim, therefore, must be collected like any ordinary debt from the creditor, and cannot be recovered from such divorced husband.</p> <p>.[Syllabus approved by the court.]</p>

<p>ESTOPPEL — COVENANTS.</p> <p>Jelke, Swing and GifCen, JJ.</p> <p>Legal Rule that Lessor is not Estopped as to Aeter-acquired Interest where Interest Passes by Lease, not Necessarily Binding on Chancellor.</p> <p>At law, where in a lease an interest passes, there is no estoppel on the lessor as to an after-acquired interest, but a court of equity will not invariably follow this rule; thus in a proper case, where the parties specially contracted with reference to an after-acquired interest, in addition to the ordinary lease covenants, such contract will be regarded as a covenant for a -further assurance, ,and the lessor will be estopped to assert such after-acquired interest.</p> <p>[Syllabus approved by the court.]</p>

<p>EVIDENCE — STATUTE OF FRAUDS — JUDGMENTS AND DECREES.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Scintilla Rule Still in Force in this State.</p> <p>Until the Supreme Court sees fit to modify or abolish the “scintilla rule,” it is the duty of a nisi prius judge to follow and apply it, notwithstanding his personal inclination, or his opinion as to the merits of the case.</p> <p>2. Fact Relating solely to Remedy, etc., is not Res Adjudicata.</p> <p>A fact pertaining to the remedy, procedure and measure of evidence and not to the essential merits of a controversy is not res adjudicata; hence a suit decided solely upon a question of the statute of frauds is not a bar to a subsequent action on the same contract, but not involving this question.</p> <p>[Syllabus by the court.]</p>

<p>ERROR — DAMAGES.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>ERROR PROCEEDINGS PREMATURE BEFORE JUDGMENT AS TO DAMAGES.</p> <p>While judgment as to damages claimed, dependent on the report of a referee, remains to he rendered, all the issues of a cause are not disposed of, and proceedings in error are premature.</p> <p>[Syllabus approved by the court.]</p>

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

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

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

<p>DAMAGES — MASTER AND SERVANT — VERDICT*</p> <p>Parker, Haynes and Wildman, JJ.</p> <p>Question of Superior or Fellow Servant is for the Jury.</p> <p>In an action against a railway company for personal injuries to the plain-tiff resulting from the negligence of defendant’s servant, the question of whether a tower man employed by such railway company who has charge of the trains as they come into the yard and of the giving of various signals by semaphore and by lights, etc., is a fellow servant of a locomotive engineer employed by such company, a superior servant, or a vice principal, is a mixed question of law and fact to go to the jury.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Lucas circuit court.</p>

<p>MASTER AND SERVANT — NEGLIGENCE — DEFECTIVE MACHINERY.</p> <p>Hull, Haynes and Parker, JJ.</p> <p>1. No Recovery for Injuries because Machinery Could not be Thrown out or Gear, where Injury Caused by Pall of Employe.</p> <p>The fact that certain parts of a machine were out of repair so as to prevent the operator from throwing the machine out, of gear for the purpose of oiling it, will not be sufficient, on which to predicate a claim of negligence on the part of the master, where it appears that the injuries complained of were caused by the operator slipping on the wet floor and falling against the machinery, and that the accident might have occurred at any- time during his work.</p> <p>2. If Injury Caused by Two Concurrent Causes, One the Negligence of a Master, Recovery may be Had.</p> <p>If it appear that personal injuries are the result of two concurrent and contemporaneous causes, one of which is the negligence of an employer, both will be regarded as proximate causes of the injury, and a servant thus injured may recover for the master’s negligence.</p> <p>3. Master Liable fob Negligent Exposure of Dangerous Machinery, Even if Injury Results from Accidental Pall of Employe.</p> <p>Where an injury to a servant was caused by his slipping and falling into the cogs of certain machinery which were exposed by the negligence of the master, the fact that such accidental fall contributed to the accident will not relieve the master from the consequences of his negligence.</p> <p>4. Servant not Held to Assume Risk from Appliance under Statutory Regulation Thereof, unless Guilty of Contributory Negligence.</p> <p>At the common law, a servant continuing to use dangerous machinery without objection on his part or promise of repair on the part of the master, was held to have assumed the risk thereof; under the statute, however, which requires certain machinery to be covered, and makes it negligence on the part of the master if it is not, a servant will not be held to have assumed the risk thereof so as to bar a recovery, unless he be guilty of contributory negligence.</p>

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

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

<p>JUSTICE OF THE PEACE.</p> <p>Voorhees, McCarty and Winch, JJ.</p> <p>Justice or the Peace — Teem op Oppice Limited to Three Years prom Date op Commission — Judgment Rendered During Interim op Terms Void.</p> <p>S D B was elected a justice of the peace in and for Gilead township, Morrow county, Ohio, on day of April 4, 1899; he was commissioned as such justice on day of April 12, 1899; he took the oath of office on day of April 18, 1899; and gave bond as such justice on day of April 24, 1899. He was re-elected justice of the peace on day of April 7, 1902, and was commissioned on day of April 25, 1902. He took oath as justice of the peace on day of April 28, 1902, and gave bond on day of April 30, 1902. The judgment sought to be enjoined in this action was rendered by him on day of April 15, 1902, on a hill of particulars filed prior to April 12, 1902. Held:</p> <p>(1) That the term of office of justice of the peace is limited to three years from date of commission;</p> <p>(2) That a judgment rendered during interim of terms is void and of no effect, and ought to be enjoined.</p> <p>[Syllabus by the court.]</p>

<p>LATERAL SUPPORT.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Right to Lateral Support is a Property Right which cannot be Tables' Awat bt Statute.</p> <p>The right of the owner of realty to lateral support is not a mere easement but is property right, and if the effect of a statutory provision is to - abrogate the common-law rule with reference to existing rights, such provision is unconstitutional and void, as being in contravention of Art. 1, Sec. 19, and Art. 2, Sec. 28 of the constitution. (</p> <p>2. ComMon-law Rule as to Lateral Support Enlarged by Rev. Stat. 2676 (Lan. 3966).</p> <p>The effect of Rev. Stat. 2676 (Lan. 3966), relative to injuries caused by excavations, is to amplify the common-law rule as to lateral support, so as to create a liability for removing the lateral support of buildings, where an excavation goes more than nine feet below the street grade. It does not modify the common-law rule as to the lateral support of tbe soil itself.</p> <p>[Syllabus approved by the court.]</p>

Whether the court below was correct in entering judgment on the general verdict found by the jury, and overruling the motion of plaintiff in error for judgment, non obstante in support of which the following authorities were cited and commented upon. Young v. State, 6 Ohio 435; Torbet v. Coffin, 6 Ohio 274; Hollister v. Judges, 8 Ohio St. 201 [70 Am. Dec. 100]; Balch v. Shaw, 61 Mass. (7 Cush.) 282; Sage v. Broivn, 34 Ind. 464; Valer v. Letvis, 36 Ind. 288 [10 Am.

<p>Error to Scioto common pleas court.</p> <p>On demurrer to amended petition, cited and commented on the following authorities: Revised Statutes 621a et, seq. (Lan. 987 et seq.)-, Hart v. Murray, 48 O. S. 605 [29 N. E. Rep. 576]; Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356] ; Piqua v. Cron, 14 Dee. 500; Cambridge v. Smallwood, 27 O. C. C. 302; Hatch v. Cincinnati, 17 Ohio St. 48; Beliefontaine v. Haviland, 15 Dec. 482; Rev. Stat. 1744 (Lan. 3256; B. 1536-773) et seq.</p> <p>To sustain demurrer, cited and commented on the foliowing authorities: Revised Statutes 1745, 1822, 1850 (Lan. 3257, 3355, 3383; B. 1536-774, 1536-783, 1536-863) ; Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688; Piqua v. Cron, 14 Dec. 500.</p>

<p>BENEFICIAL ASSOCIATIONS — CORPORATIONS.</p> <p>Haynes, Parker and Wild man, JJ.</p> <p>1. Association to Fbovide BintiAts fob its Members Permitted bt Statutes— Couets wei not Interfere with Them.</p> <p>Revised Statutes 3631a (Lan. 6795), as amended March 29,1904 (97 O. L. 61), permits the organization of an association for the exclusive purpose of providing for the funeral expenses of its members with the restrictions named therein, and such an association will not be disturbed by the courts on the ground that it is not likely to he beneficial to its members or to the public.</p> <p>2. Insurance Companies — Constitutionality of Statute Relieving Certain Associations from Burdens.</p> <p>It is not unconstitutional for the legislature to relieve from certain burdens imposed on insurance companies insuring for large and unlimited amounts, companies or associations organized on a mutual plan and agreeing to furnish a funeral at a cost not to exceed $100 or to pay funeral expenses not to exceed $100, on the death of one of its members.</p> <p>3. Association Managed by Trustees who are Officers and Directors of Corporation for Profit is not Thereby a Corporation for Profit.</p> <p>An association organized for the purpose of providing funerals for its members, whose affairs are conducted by a board of trustees composed largely of the officers and directors of an undertaking company, a corporation for profit, and which has entered into a contract with the company whereby the company agrees for a certain price to provide funerals for the members of the association, is not therefore necessarily a corporation for profit.</p> <p>4. Association, under Rev. Stat. 3631a (Lan. 5795) as Amended 97 O'. L. 61, MAY NOT HAVE FOR MEMBERS MINORS OR THOSE NOT CONTRIBUTING BY ASSESSMENT to the Common Fund.</p> <p>An association not for profit, organized under Rev. Stat. 3631 (Lan. 5795) as amended in 97 O. L. 61, for the purpose of providing for the funeral expenses of its members out of a fund raised by assessment on its members, may not have for its members persons below the age of majority, for such members are incapacitated to participate in the business. Nor may it, under this statute, have as members those who, as a given class, are entitled to have funeral expenses provided for them out of a fund hut who do not contribute by assessment to that fund, as provided by the statute.</p> <p>5. Corporations — Terms “Annual Meeting” and “Annual Election” Refer to the ¿Same Occasion.</p> <p>The expressions “annual meeting” and “annual election” used in the statute relating to corporations not for profit refer to the same thing; i. e., the annual meeting is the time when the annual election is to occur.</p> <p>6. Ouster will not Lie against Corporation Attempted to be Organized in Good Faith.</p> <p>Where an attempt is made in good faith to organize a corporation not for profit, a judgment of ouster will not be decreed upon mere irregularities ' and omissions of statutory requirements; but the corporation will be considered a de -facto organization and the directors a de facto board, and a decree will be granted requiring that a legal organization be effected.</p> <p>[Syllabus approved by the court.]</p>

<p>TAXATION — COLLECTION.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Collection of Unpaid Taxes — Provisions or 97 O. L. 261 (Lan. R. L. 2462).</p> <p>An action by a county treasurer for tbe collection of unpaid taxes, which was pending at the time of the amendment of Rev. Stat. 1104, on April 25, 1904 (97 O. L. 261; Lan. R. L. 2462), is subject to the provision thereof.</p> <p>2. Collection of Unpaid Taxes — Allegation that Taxes, etc., Stand on “Forfeited Duplicate” Surplusage — Defendant Entitled to Costs, etc., if Property Improperly Advertised and Offered for Sale.</p> <p>An allegation in a petition by a county treasurer, in an action to collect delinquent taxes, that taxes and assessments stand charged on the forfeited duplicate,” is mere surplusage so far as the right to maintain the action is concerned, but if it.appear that the property was improperly advertised and offered for sale on the delinquent list, the defendant is entitled to an allowance for costs and interest expended on that account.</p> <p>[Syllabus approved by the court.]</p>

Liability of master for negligence or failure of a foreman to give the proper signals for the protection of lives and persons of the employes under him is the negligence of the company, because he stands in the place of the company. Snyder v. Railway, 60 Ohio St. 487 [54 N. E. Rep. 475]; Lake Shore & M. S. Ry. v. Lavalley, 36 Ohio St. 221; Lake Shore & M. S. Ry. v. Murphy, 50 Ohio, St. 135 [33 N. E. Rep. 403]; Lake Shore & M. S. Ry. v. Schultz, 9 Circ.

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>1. ADMINISTRATOR CONTINUING BUSINESS OF ESTATE WITHOUT AUTHORITY — CLAIMS of Heirs foe Services and Monet Advanced Allowable Against Special Assets if Contributing to the Benefit of that Part of the Estate.</p> <p>Where an administrator continues the business of the decedent in good faith, at a profit, a subsequent administrator de bonis non will not be permitted to deny the validity of claims presented by sons and heirs of the decedent on account of services rendered and money advanced in connection with the business and which .resulted in increasing that part of the estate. Lucht v. Behrens, 28 Ohio St. 231, applied.</p> <p>2. Conduct of Business bt Administrator without Authority — Heirs Claiming for Monet Advanced and Services Rendered must Show Profit and Benefit to that Part of the Estate Involved in Business.</p> <p>Where the business of the decedent has been carried on without any authorization of lavv, heirs who joined therein, although acting in the best of faith, will be charged with knowledge of the want of capacity of the administrator, and cannot thereafter assert their claims for contributions of money or services either against the general assets of the estate, in preference to the claims of original creditors, or against the assets thus embarked in the business, in the absence of a showing that the business was conducted át a profit and that the services rendered and the money advanced inured to the benefit of that part of the estate so embarked in the business.</p> <p>[Syllabus approved by the court.]</p>

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

<p>CONTRACTS — CUSTOM AND USAGE.</p> <p>Jelke, Swing and Gifflen, JJ.</p> <p>'CONSTRUCTION OP CONTRACT-USAGE IN STEEL STRUCTURAL BUSINESS AS TO WEIGHT of Materials.</p> <p>Where an iron company contracts with a building company to erect a structural steel building at a price per ton, and it is admitted that the “ton” refers to the ton commonly employed in this business, and that the weight of materials is customarily computed from measurement of dimensions and by reference to tables, and not by actual weight, it is proper to show, in an action on the contract for the agreed price, that the weight of steel, by general custom in this business, referred to the gross weight as per measurement, and not to the net weight of steel actually employed in the structure after the necessary boring for "rivets and the necessary trimming and shaping for fitting the parts together had been completed.</p> <p>[Syllabus approved by the court.]</p>

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

<p>ERROR — QUIET TITLE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Proceedings in Error — "Pour Months,” in Statute Defining Time for Commencing Error Proceedings, Means Calendar Months.</p> <p>When an act is required by statute to be performed within a certain number of months after a certain date, the word “months” will be construed to-rnean calendar months, whether of - twenty-eight, twenty-nine, thirty or thirty-one days, and proceedings in error commenced on the corresponding day of the fourth month after the rendition of the judgment comply with the statute in this regard.</p> <p>2. Judgment Quieting Title Against Tax Deed not Binding on Owner not a Party to Suit.</p> <p>The judgment rendered in a suit to quiet title to land against a claimant under a void tax deed is not binding upon the real owner who is not a party to the suit.</p> <p>3. Deed Presumed to be Delivered on Date oe Execution.</p> <p>In the absence of evidence to the contrary, it will be presumed that a deed was delivered on the date of its execution.</p> <p>[Syllabus by the court.]</p>

<p>PAYMENTS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Payments by Debtoe Applied to Debt Shown to Exist.</p> <p>In the absence of equitable considerations, payments made by a debtor to a creditor without designating their application should be applied to the only debt shown to exist.</p> <p>2. Subsequent Payments Peesumed Made in Extinguishment op Same Debt as Eablieb Payments.</p> <p>Where the debt is in the form of a lien reserved in a deed, and specific application was made by the parties of the early payments to the ex-tinguishment of the lien, subsequent payments in the absence of circumstances indicating the contrary will be presumed to have been made for the same purpose.</p> <p>[Syllabus by the court.]</p>

<p>DEEDS — WILLS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Deed Executed in Place op Will — Good Delivery.</p> <p>Where a grantor executes deeds with a testamentary purpose, and delivers them to his wife with the direction to keep them until he is done with them and then “deliver them to the girls,’' his action taken together with all the other circumstances of the case must he held to constitute a good delivery.</p> <p>[Syllabus approved by the court.]</p>

<p>CONTEMPT OF COURT.</p> <p>Haynes, Parker and Wildman JJ.</p> <p>1. CHARGES AGAINST JUDGE, WHEN CONTEMPTUOUS.</p> <p>Charges against a judge, made not in due course of procedure, may be contemptuous, even if true. ,</p> <p>2. Chaeges Impugning Motives or Conduct op Judge not Contemptuous, when.</p> <p>Where a trial court had adjudged as guilty of contempt, attorneys for convicted and sentenced defendants, on the ground that motions filed by such attorneys to vacate the sentences and withdraw pleas of guilty, charge the judge of the court with irregular or improper conduct in Inducing and receiving pleas of. guilty and imposing excessive sentences, such 'judgment for contempt is erroneous, where such attorneys acted in gopd faith in filing said motions, and where the language of the motions and the manner of their presentation were not otherwise offensive.</p> <p>3. Bad Faith not'Presumed in the Absence oe Finding or Evidence.</p> <p>Where the sole ground alleged in a journal entry and bill of exceptions for a judgment and sentence of contempt, is that motions falsely charged the trial judge with improper or irregular conduct, and where the motions were not otherwise objectionable and were filed in due course of procedure, bad faith of the attorneys filing the same will not be presumed.</p> <p>4. Reviewing Court may Dismiss Contempt Proceedings and Disoharce Defendants, WHEN.</p> <p>Where a trial court, summarily and without written charges as a basis of its proceedings, adjudges guilty of contempt attorneys appearing before it, a court reviewing said proceedings and finding error therein and no ground for the judgment, may dismiss the proceedings and discharge the defendants from custody.</p> <p>[Syllabus by the court.]</p>

<p>EVIDENCE — PROOF OF ATTESTED INSTRUMENTS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Evidence — Wishing not Admitted unless Execution be Proved.</p> <p>A paper writing, executed some forty years previously, will not be admitted as evidence where the parties whose signatures purport to be appended thereto are dead, unless proof of the execution thereof be offered, or unless it be shown from whose custody the writing came and such other facts as establish a presumption of its authenticity</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>EASEMENTS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Alley Dedicated and Accepted is Public Thoroughfare.</p> <p>An alley, duly dedicated and accepted as such, becomes a public way, and abutting premises are invested with an appurtenant easement therein.</p> <p>2. Abutting Owneb may not Obstruct Public Alley.</p> <p>Where one of two owners, whose properties abut on an alley in the rear, obtains a vacation of the alley without the consent of the other owner, the petitioning owner cannot thereafter obstruct the alley at the only means of exit without furnishing some other means of egress therefrom, notwithstanding the nonconsenting owner has access to the front of his lot.</p> <p>[Syllabus approved by the court.]</p>

Practice of courts in ex parte proceedings to hear viva voce testimony. Church, Habeas Corpus (2 ed.) See. 178 et seq.; Hurd, Habeas Corpus (2 ed.) 301, 302. The action of the notary will not be upheld unless the court can see that the questions are relevant. Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]. Power of notary to punish for contempt depends upon the relevancy of the questions asked.

<p>Error to Muskingum common pleas court.</p> <p>Cited and commented upon the following authorities. Ammon v. .Johnson, 2 Circ. Dec. 149 (3 R. 263) ; 1 Kinkead, Code Pleadings 742; Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55]; Van Hagan, Ex parte, 25 Ohio £>t. 426; McGehan, Ex parte, 22 Ohio St. 442; McAdams, In re, 11 Circ. Dec. 780 (21 R. 450) ; Madden v. Smelts, 1 Circ. Dec. 424 (2 R. 168); Haines v. Baihvay, 40 Ohio St. 95; Herig v. Nougaret, 7 Ohio St. 480; Rev. Stat. 5738 (Lan. 9275) ; Bird v. Cincinnati, 9 Dec. Re. 301 (12 Bull. 101) ; Dillon v. State, 38 Ohio St. 586; Rev. Stat. •5741 (Lan. 9278); 95 O. L. 88 (Rev. Stat. 4364-20b; Lan. 7274); Larney v. Cleveland, 34 Ohio St. 599; InwoodF. State, 42 Ohio St. 186; Fletcher v. State, 7 Circ. Dec. 316 (18 R. 674) ; Beall, In re, 26 Ohio :St. 195; Rev. Stat. 2107e (1), 6801a, 6801b (Lan. 3443, 10395, 10396) ; Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. •472]; 2 Am. & Eng. Enc. Law (1 ed.) 11, note 1; Lee v. State, 32 Ohio St. 113; 20 Am. & Eng. Enc. Law (1 ed.) 495; Henderson v. James, ■52 Ohio St. 242 [39 N. E. Rep. 805; 27 L. R. A. 290]; Rev. Stat. 5729 (Lan. 9266) ; State v. Hamilton, 2 Circ. Dec. 6 (3 R. 10) ; Mosler, In re, 4 Circ. Dec. 82. (8 R. 324) ; Gibson, Ex parte, 31 Cal. 619 [91 Am. Dec. 546]; 9 Am. & Eng. Enc. of Law (1 ed.) 201; Spelling, Extra Leg. Rem. See. 1217.</p> <p>Cited and commented upon the following authorities. Rev. Stat. 5726, 5728, 5738 (Lan. 9262, 9265, 9275); Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. 472]; George, In re, 3 Gh-e. Dec. 104 (5 R. 207) ; Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dee. 55] Prescott y. State. 19 Ohio, St. 184 [2 Am. Rep. 388]; Kruse, In re, 13 Dec. Re. 775 (2 C. S. C. 71) ; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 204; Collier, In re, 6 Ohio St. 55; McKnight, Ex parte, 48 Ohio St. 588 [28 N. E. Rep. 1034; 14 L. R. A. 128]; Knapp y. Thomasf 39 Ohio St. 377; Spoors v. Coen, 44 Ohio St. 497 [9 N. E. Rep. 132] ; Smith v. Perry, S Circ. Dee. 778 (18 R. 826) ; Moore, In re, 7 Circ. Dec. 575 (14 R. 237) ; Lee v. State, 32 Ohio St. 113; Bates y. Slate, 63 Ohio-St. 11 [57 N. E. Rep. 957]; Hateas Corpus, In re, 5 Dec. 571 (7 N. P. 604) ; Libty y. Nicola, 21 Ohio St. 414; Ammon v. Johnson, 2 Circ. Dec. 149 (3 R. 263).</p>

<p>ERROR to Hamilton common pleas court.</p> <p>• As to abuse of discretion in allowing amendment. Daley v. Gates, 65 Vt. 591 [27 Atl. Rep. 193]; Maxwell v. Harrison, 8 Ga. 61 [52 Am. Dec. 385]; Stevenson v. Mudgett, 10 N. H. 338 [34 Am. Dec. 155]; Strong v. State, 75 Ind. 440; Ball v. Claflin, 22 Mass. (5 Pick.) 303 [16 Am. Dec. 407]; Smith v. Palmer, 60 Mass. (6 Cush.) 513; Kuhns y. Railway, 76 la. 67 [40 N. "W. Rep. 92]; Hunt v. Gaylor, 25 Obio St. 620; Chicago, St. L. & P. Ry. y. Bills, 118 Ind. 221 [20 N. E. Rep. 775]; Beers v. Iron Works, 30 Conn. 308.</p> <p>Liabilities assumed. Wood v. Currey, 57 Cal. 208; Lattin v. Gillette, 95 Cal. 317 [30 Pac. Rep. 545 ; 29 Am. St. Rep. 115]; McElfresh v. Kirhendall, 36 la. 224; Joslin v. Car Spring Co. 36 N. J. L. 141; Choate v. Quinichett, 68 Tenn. 427; Harris v. Hutcheson, 65 Miss. 9 [3 So. Rep. 34]; Gordon v. Gibbs, 11 Miss. (3 Smed. & M.) 473; 18 Am. & Eng. Ene. Law (2 ed.) 846; Pittsburgh Melting Co. v. Beese, 118 Pa. St. 355 [12 Atl. Rep. 362]. .</p> <p>Authorities as to liability of master. Brown Oil Can Co. v. Green, 12 Cire. Dee. 510 (22' R. 518); Van Huzen Gas & Gasoline Engine Co.v. Schelies, 61 Ohio St. 293 [55 N. E. Rep. 998]; Kracht v. Bailway, 25 O. C. C. 521; Connors v. Golding, 10 Dec. 614 (8 N. P. 600) ; affirmed, Golding v. Connors, 53 Ohio St. 647; Toomey v. Stamping Coll Gire. Dee 216 (20 R. 183); Lake Shore & M. S. By. v. Feller, 11 Cire. Dee. 799 (21 R. 605); Missouri, K. & T. By. v. Walden, 27 Tex. Civ. App. 567 [66 S. W. Rep. 584]; Gulf, C. & S. F. By. v. Hayden, 29 Tex. Civ. App. 280 [68 S. W. Rep. 530]; 4 Thompson, Negligence Secs. 3814, 4021, 4034, 4055, 463b, 4631, 4642, 4648, 4676; Orman v. Mannix, 17 Colo. 564 [30 Pae. Rep. 1037; 17 L. R. A. 602; 31 Am. St. Rep. 340]; Louisville,'N. A. & C. By. v. Graham, 124 Ind. 89 [24 N. E. Rep. 668]; Erickson v. Bailway, 83 Mich. 281 [47 N. W. Rep. 237]; Wilcox & G. Sewing Machine Co. v. Hines, 70 N. Y. St. Rep.. 368 [35 N. Y. Supp. 861]; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449]; Jones v. Cotton Mills, 82 Ya. 140 [3 Am. St. Rep. 92]; Dolese v. Schultz, 101 Ill. App. 569Muller v. McKesson, 73 N. Y. 196; Frank v. Bullion Beck & C. Min. Co. 19 Utah 35 [56 Pae. Rep. 419]; Hass v. Bailway, 97 Ill. App. 624; Wabash W. By. v. Morgan, 132 Ind. 430 [31 N. E. Rep. 661]; Stucke v. Bailway, 50 La. Ann. 172 [23 So. Rep. 342]; Smith v. Powell Co. 10 Dec. Re. 799 (23 Bull. 436); Lake Erie <& W. By. v. Mulcahy, 9 Cire. Dec. 82 (16 R. 204); Berea Stone Co. v. Kraft, 31 Ohio St. 287; Baltimore & O. By. v. Sutherland, 4 Cire. Dec. 115 (12 R. 309) ; Wainright v. Bailway, 11 Cire. Dee. 530 (21 R. 267) ; Bailey, Mas. & Serv. Ill, 112; Pullman Palace Car Co. v. Laack, 143 Ill. 242 [32 N. E. Rep. 285; 18 L. R. A. 215]; Galveston, H. & S. A. By. v. Garrett, 73 Tex. 262 [13 S. W. Rep. 62; 15 Am. St. Rep. 781]; Highland Ave. & B. By. v. Walters, 91 Ala. 435 [8 So. Rep. 357]; 1 Shearman & Redfield, ‘ Negligence Sec. 203; Ferren v. Bailway, 143 Mass. 197 [9 N. E. Rep. 608]; 'Motey v. Marble & Granite Co. 74 Fed. Rep. 155 [20 C. C. A. 366; 36 U. S. App. 682] ; Louisville <& N. By. v. Miller, 104 Fed. Rep. 124 [43 C. C. A. 436]; Wheeler v. Manufacturing Co. 135 Mass. 294.</p>

Eeror to Cuyahoga common pleas court. Statutes cited and construed. Revised Statutes 4269, 4270, 4271, 4272, 4276, 5006, 5058, 6352 (Lan. 7045, 7046, 7047. 7048, 7052. 8521, 8573, 9928). ■Whether plaintiff in one action may recover judgment against a partnership and for allowance against the assignee. Green & Kelley’s Ohio Practice 18, 27, 40, 62, 123 et seq., citing Neilson v. Fry, 16 Ohio St. 552 [91 Am.

<p>Error to Hamilton common pleas court.</p> <p>On motion to strike bill of exceptions from files. Revised Statutes 5190, 5301, 5302 (Lan. 8699, 8813, 8816); 97 O. L. 463; 96 O. L. 16; Mudge v. Ba/nk, 56 Kan. 353 [43 Pac. Rep. 255]; Keller v. Lewis, 56 Cal. 466; Adams v. Dohrmann, 63 Cal. 417; Sharon v. Sharon, 79 Cal. 633 [22 Pac. Rep. 26]; Girdner v. Beswick, 69 Cal. 112 [10 Pac. Rep. 278]Richardson v. Eureka, 96 Gal. 443 [31 Pac. Rep. 458]; Montana Lumber & Produce Go. v. Howard, 10 Mont. 296 [25 Pac. Rep. 1024]; Gard v. Stevens, 12 Mich. 9.</p> <p>Evidence of damages resulting from death of child. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Ashtabula Bapid Transit Go. v. Dagenbach, 11 C. D. 307; Bajnowski v. Bailway, 74 Mich. 20 [41 N. W. Rep. 847]; Hurst v. Bailway, 84 Mich. 539 [48 N. W. Rep. 44]; Nelson v. Bailway, 104 Mich. 582 [62 N. W. Rep. 993]; Pennsylvania Co. v. Lilly, 73 Ind. 252; Cooley, Torts See. 272 and note.</p> <p>Pleading damages in general terms. 2 Kinkead, Code Pleadings 837.</p> <p>Admissibility of prior consistent statement generally. 3 Enc. of Ev. 738; Johnson v. Patterson, 9 N. C. 183 [11 Am. Dee. 756]; State v. Parish, 79 N. C. 610; Jones v. Jones, 80 N. C. 246; Lockwood v. Betts, 8 Conn. 130.</p> <p>Impeaching credibility of witness. State v. Neverson, 1 Mackey (D. C.) 152; Cooke v. Curtis, 6 Harr. & J. (Md.) 93; Parker v. Gonza-lus, 1 Serg. & R. 147; Wright v. Daklyne, 1 Pet. C. C. 78; State v. Hendricks, 32 Kan. 559 [4 Pac. Rep. 1050]; Brookbank v. State, 55 Ind. 169; Coffin v. Anderson, 4 Blaekf. 395; Dailey v. State, 28 Ind. 285; People v. Vane, 12 Wend. 78; Jackson v. Etz, 5 Cow. 314; State v. George, 8 Ired. (N. C.) 324 -[49 Am. Dec. 392]; Dossett v. Miller, 35 Tenn. (3 Sneed) 72; Lyles v. Lyles, 1 Hill Ch. (S. C.) 76; State v. Dennin, 32 Vt. 158; Commonwealth v. Wilson, 67 Mass. (1 Gray) 337; Henderson v. Jones, 10 Serg. & R. 322 [13 Am. Dec. 676],</p> <p>Corroborating credibility of witness. State v. Dudoussat, 47 La, Ann. 977 [17 So. Rep. 685]; Bloomer v. State, 48 Md. 521; Hester v. Commonwealth, 85 Pa: St. 139; Wigmore, Evidence Sec. 1129 and notes; Thompson, Trials Sec. 576; 3 Enc. of Ev. 736; 1 Greenleaf, Evidence (16 ed.) Sec. 469b, par. 5; Starkie, Evidence (10 ed.) Sec. 253; Commonwealth v. Wilson, 67 Mass. (1 Gray) 337; affirmed, Commonwealth v. Jenkins, 76 Mass. (10 Gray) 485; Farrell v. Boston, 161 Mass. 106 [36 N. E: Rep. 751] ; Craig v. Craig, 5 Rawle 91; Zell v. Commonwealth, 94 Pa. St. 258, 273; Baltimore City Pass. By. v. Knee, 83 Md. 77 [34 Atl. Rep. 252],</p> <p>Special charges. Bolling Mill Co. v. Corrigan, 46 Ohio St. 283: ■[20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Breckin-ridge v. Beagan, 12 Circ. Dec. 50 (22 R. 71) ; Cincinnati St. By. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276],</p> <p>General charges. Cincinnati St. By. v. Snell, 54 Ohio St. 197 [43 N. E-. Rep. 207; 32 L. R. A. 276]; New York, L. E. & W. By. v. Harber, 12 Circ. Dec. 652; Pitts. C. C. & St. L. By. v. Moreland, 12 Circ. Dec. 610; Clev. C. C. & St. L. By. v. Ivins, 12 Circ. Dec. 570.</p> <p>Speed of cars. Cincinnati St. By. v. Lewis, 13-23 O. C. C. 127.</p> <p>Negligence of children. Cincinnati St. By. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Lake Erie & W. By. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R A. 757; 53 Am. St. Rep. 640]; Cincinnati Trac. Co. v. Blackson, 27 Ohio St. 191; Booth, Street Ry. See. 382, p. 523.</p> <p>Persons in dangerous positions. Erie By. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571].</p> <p>Damages. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Wolf v. Bailway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812] ; Cleveland, A. & C. By. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602].</p> <p>Damages after majority. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300].</p> <p>Further citations in reply brief. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Bajnowski v. Bailway, 74 Mich. 20 [41 N. W. Rep. 847].</p>

<p>MONOPOLIES — VALENTINE ANTITRUST LAW»</p> <p>Norris, Hurin and Donnelly, JJ.</p> <p>1. Combination in Restraint or Tbade — Valentine Antitrust Law.</p> <p>An organization of the maufacturers of a certain commodity which, hy assessment of its members, raises a fund with which it “leases down” certain rival factories; and which' allots the trade of such factories among its own members, controls the output of its member’s factories and the prices they may charge for the goods they manufacture, binding them not to sell to specified customers except by consent of its officers, is a combination in restraint of trade and is illegal both under Rev. Stat. 4427-2. (Lan. R. L. 7586), and by the cbmmon law.</p> <p>2. Antitbust Law — What Contracts Void.</p> <p>Revised Statutes 4427-8 (Lan. R. L. 7593), relating to contracts in violation! of the antitrust law being void, includes not merely agreements to form a trust but also contracts made with intent to ear'ry out the illegal ¡purposes defined by this statute.</p> <p>3. Contract/ for Purchase of Machinery of Competing Company, etc., Followed by Nonuser of Machinery, Purchased, . is Void as in Restraint of Trade.</p> <p>A contract whereby a combination, for a consideration of $66,000, purchases all the machinery of one of its constituent members, a corporation, and stipulates that such corporation shall not compete in business with any of its members, and provides employment for the president of that corporation; it appearing further that such machinery was purchased without any plan for its location and use and has remained unused by the purchaser for eight months after its purchase, is a contract in restraint of trade and is void.</p> <p>4. Void Contract of Sale — Possession not Complete if not Apparent to Third Parties.</p> <p>Although the full consideration named in a contract for the purchase of the machinery, tools and fixtures of a manufacturing plant has been paid, the contract does not thereby become an executed contract in the absence of possession of such machinery by the purchaser, complete not only as between the parties to the contract, but apparent to third persons likely to deal on the strength of such apparent possession, especially when the contract of purchase is illegal and void. .</p> <p>5. Illegal Contract by Illegal Combination in Restraint of Trade not En-forcible.</p> <p>Where an illegal combination in restraint of trade has, by"' an illegal contract, purchased the machinery of a corporation but has failed to establish possession as against the receivers of such corporation, the court will not assist the purchaser in obtaining the possession of machinery nor in enforcing the illegal contract as against the proceeds, after the sale of such machinery by the receivers. It will leave the parties where it finds them.</p> <p>¡[Syllabus approved by the court.]</p>

<p>EeROR to Lucas common pleas <?ourt.</p>

<p>ACTIONS — ERROR—ELECTION—NEGLIGENCE.</p> <p>Parker, Haynes and Wildman, JJ.</p> <p>1. Ebroe mat be Prosecuted on Order' Dismissing Action for Refusal by Plaintiff to Elect against which of two Defendants he will Elect to Prosecute his Action.</p> <p>Where an action is prosecuted jointly against a company and its agent for an injury to plaintiff alleged to have been sustained by the agent’s-negligence, and, at the conclusion of the plaintiff’s testimony, a motion is made and allowed, requiring plaintiff to elect against which of the two he-will prosecute his action, and, on plaintiff’s refusal to elect, the court dismisses his action without prejudice to the merits of the plaintiff’s case,, this is such an ordei determining the action and preventing judgment under Rev. Stat. 6707 (Lan. 1Q297) as may be reviewed by proceedings in error.</p> <p>2. Joinder of Defendants — Injury Caused by Negligence of Company’s Servant-does not G-ive Rise to Joint Action against Servant and Company.</p> <p>One who has sustained an injury by reason of the negligence of a company’» servant who had been directed by the company to superintend the work of building a bridge may not join the company and the servant, in a joint action to recover for the injuries he has sustained. Ciarle v. Fry, 8 Ohio» St. 358, followed.</p> <p>[Syllabus approved by the court.]</p>

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

<p>CARRIERS — NEGLIGENCE.</p> <p>Parker, Haynes and Wildman, JJ.</p> <p>1. CARRIER of Live Stock must Use Due Care although Stock Improperly Loaded.</p> <p>Where a railroad company receives a car of hogs from a shipper and undertakes to carry them in spite of the fact that they were overcrowded in loading, it is liable for the injuries sustained by the hogs, through its failure to use due care and reasonable means to protect them from overheating.</p> <p>2. Carrier cannot Limit its Liability for Negligence by its own Custom nor by Special Contract.</p> <p>It is proper to exclude testimony offered for the purpose of showing that a railroad company is not accustomed to sprinkle, or “drench,” hogs in transit during the night, or during the day unless ordered by the shipper, in an action by the shipper for injury sustained by these hogs through overheating. A carrier cannot limit its legal liability for negligence by its own customs nor by special contract.</p> <p>[Syllabus approved by the court.]</p>

<p>PARENT AND CHILD.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Allowance to Mother por Support op Her Step-Son.</p> <p>The rule which permits a widowed mother without means or income other than that resulting from her own labor, to charge the estate of her child' for support and education, is applicable to one who by her own exertions has supported a step-son until he was sixteen years of age.</p> <p>[Syllabus approved by the court.]</p>

<p>CARRIERS — CONTRACTS.</p> <p>Jelke and Giffen, JJ.</p> <p>Demurrage — Purchase* from Consignor bt Assignment of Bills of* Lading Assumes all Liabilities under Contract of Lading — Denial of Promise to Pat Mere Conclusion.</p> <p>In. an action by a carrier to recover demurrage, tbe averment in the answer that defendant purchased the freight after arrival by obtaining the bills of lading properly indorsed, the freight having been shipped to the order of the consignor, is no defense. The assignment of the bill of lading and the acceptance of the freight thereunder constituted an adoption by the defendant of the liabilities as well as the rights under the contract of shipment. A denial of a promise to pay under such circumstances is a denial of an express promise only. As a denial of an implied promise it is a mere conclusion.</p> <p>[Syllabus approved by the court.]</p>

<p>INJUNCTION — PARTY WALLS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Mandatory Injunction not Allowed to Compel Specific Structure.</p> <p>A mandatory injunction will not issue to compel tbe erection of a structure of a specific character.</p> <p>2. Plaintiff Consenting to Location and Erection of Wall may not Enjoin the Use of a Particular, Wall.</p> <p>In an action to enjoin the erection of a wall on plaintiff’s property, where the plaintiff has consented to the location and erection of the wall, the character of the structure and the manner of its erection are not proper subjects for an injunction. Equitable grounds failing, equity will not award damages.</p> <p>. [Syllabus approved by the court.]</p>

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

Duty of electric light company to see that its wires are properly placed and insulated. Brown v. Illuminating Co. 90 Md. 400 [45 Atl. Rep. 182; 46 L. R. A. 745 ; 78 Am. St. Rep. 442]; Bowe v. Telephone ■Co. 66 N. J. Law 19 [48 Atl. Rep. 523]; Moran v. Steam-Engine Co. 21 R. I. 386 [43 Atl. Rep. 874; 45 L. R. A. 267]; Anderson v. Electric Light Co. 64 N. J. Law 664 [46 Atl. Rep. 593]; Overall v. Electric Light ■Co. 20 Ky.

The trial court had no right to follow Rev. Stat. 7303 (Lan. 11057)-as the section applies to cases where a mistake has been made in charging-the proper offense in the indictment. In the case at bar the offense was. grand larceny and was so charged in both indictments. There is a dis-tinetion between charging the proper offense, an'd charging the offense properly. The trial court should have followed Rev. Stat. 7216 (Lan. 10970).

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

<p>CONTRACTS — BAILMENTS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>■CONTBACT BT WHICH Owner SELLS CATTLE TO FARMER AND AGREES TO REPURCHASE Same Cattle at Advanced Price Is Sale and not a Bailment Contract.</p> <p>A contract by the terms of which in the month of November A sells to B a certain number of cattle weighing an ascertained number of pounds, the price to be a stipulated price per pound, and by the terms of which also B sells back to A the same cattle at an increased price per pound, delivery back, to be made between May 15 and June 15 of the following year, when payment on the first sale shall be due, is a contract of sale and not one of bailment. Title passes on delivery to B in the first instance and does not revest in A until the ascertainment of the weight between the dates mentioned so as to determine the price. A loss by lightning before May 15 must fall on B and he is liable to A for the agreed purchase price after June 15.</p> <p>[Syllabus approved by the court.]</p>

<p>WILLS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Doubtful Intention or Testatoe Construed most Nearly According to In-TENTION AND PURPOSE OF LAW OF INTESTATE ESTATES.</p> <p>A testator in his will provided that his homestead farm should go to his wife until his son, William, should become of age and then should go to William for life. After making other bequests, he provided that the residuum of his estate should be divided share and share alike among his . children for life, and, on the death of any child leaving a child or children, such share of such child of the testator should go to his child or children in fee. No express disposition was made of the fee of the homestead farm: Held, that the shares going in fee to the grandchildren of the testator referred to the shares of the children under the residuary clause and an only child of William took not the whole of the homestead farm in fee but his father’s proportion only under the residuary clause, this disposition more .nearly approaching the disposition which the law would make in the absence of a will. .</p> <p>[Syllabus approved by the court.]</p>

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

<p>DRAINS AND DITCHES.</p> <p>Dustin, Wilson and Sullivan. JJ.</p> <p>1. Petition to Altee, etc., a Township Ditch must be Presented to Township Trustees and They Refuse to Act before County Commissioners may Act Thereon.</p> <p>Tlie petition filed with a county auditor by an owner of land abutting on or benefited by a ditch located, established and constructed by a board of township trustees, to straighten, widen, alter, deepen, etc., such ditch, may not be considered or acted upon by the board of county commissioner-! until a similar petition has been filed with the board of township trustees ■and they have refused to act thereon.</p> <p>2. Petition eor Construction op Laterals and Alteration op onlt Part op-Township Ditch must First be Presented to Township Trustees.</p> <p>The fact that a petition filed with a county auditor, praying that the hoard of county commissioners widen and deepen a township ditch, contemplates the construction of laterals and the alteration of only a part of the-township ditch, does not make a petition for a new ditch-or an improvement rendering unnecessary a prior submission to the board of township, trustees.</p> <p>[Syllabus approved by the court.]</p>

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

<p>INSURANCE — ESTOPPEL.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Application op Rev. Stat. 3623 (Lan. 5776) to Renewal op Policy op Lipe Insurance.</p> <p>The requirement of Rev. Stat. 3623 (Lan. 5776), that life insurance companies return a copy of the application for a policy of life insurance, contemplates more than one application in connection with one policy of life insurance, and the statute applies to the application for a renewal, and a copy of such application must he returned to the applicant if the company would avail itself of false statements in the application.</p> <p>2. Acceptance op Premiums as an Estoppel port Defects in Application por Renewal op Policy.</p> <p>Premiums having been accepted by a life insurance company for three years after the application for renewal and reissue of the policy without return of the application as containing false statements, the company is, under Rev. Stat. 3626 (Lan. 5779), providing that receipt of three annual premiums estops ail defenses by reason of errors or misstatements in the application, estopped from denying the validity of the policy because of such statements.</p> <p>[Syllabus approved by the court.]</p>

<p>CONTEMPT.</p> <p>Jelke, Swing and G-ifEen, JJ.</p> <p>1. Assistant Prosecutor not Amenable to Charge of Contempt for Refusing-to Enter Nolle Prosequi.</p> <p>An assistant prosecuting attorney is not amenable to a charge of contempt for refusing to obey an order of court to prepare and present a nolle - prosequi in a specified case. Such an order should be directed to the-prosecuting attorney.</p> <p>2. Jurisdiction of Circuit Court in Contempt Proceedings.</p> <p>The circuit court has jurisdiction in habeas corpus in the case of one committed for contempt by a common pleas judge who was without jurisdiction in the premises.</p> <p>3. Courts Should Conform to Statute Prescribing Manner of Exercise of Contempt Proceedings.</p> <p>While courts do not derive their power to punish for contempt from any statute, it is their duty to conform to a statute which does not abridge' this power but simply points out the manner in which it shall be exercised.</p> <p>4. Refusal to Enter Nolle Prosequi not Punishable Summarily.</p> <p>Resistance to a command of court to enter a nolle prosequi in a certain case is not punishable summarily but only under the procedure» provided in Rev. Stat. 5641 (Lan. 9173), and unless that procedure as to the filing: of written charges, etc., is conformed with, a court is without jurisdiction to punish for a contempt thus committed.</p> <p>[Syllabus by the court.]</p>

<p>MANDAMUS — OFFICERS.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>Mandamus will not Lie to Compel a Clebk of Courts to Comply with an Oedeb of Court where his Refusal is Based upon a Dispute as to the Interpretation of the Order.</p> <p>■Where a court has ordered a party to an action then pending, to deliver to the clerk of the court a good and sufficient warranty deed to certain property, and has directed the clerk to pay over to the said party the purchase price of the property in question, then in the hands of the clerk, such party may not, by suit in mandamus, compel the clerk to comply with the order on his tender of a deed, where a dispute arises as to the sufficiency of the deed under the order. His proper remedy is to have the dispute determined by a motion filed in the original case.</p> <p>[Syllabus approved by the court.]</p>

<p>CONSTITUTIONAL LAW — TAXATION.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Uncertain Tax Deed cannot be Supplemented bt Auditor’s Plat to which no Reference is Made Therein.</p> <p>Where the description in a tax' deed is so indefinite as to make it impossible to locate the land, the holder of the deed cannot bring to his aid a plat in the auditor’s office to which no reference is made in the deed or on the duplicate, and such deed is void for uncertainty.</p> <p>'2. Revised Statutes 4114 (Lan. 6789) Unconstitutional as being Confiscation of Property.</p> <p>Revised Statutes 4114 (Lan. 6789), which makes knowledge by a person acquiring title to property by deed of a prior tax sale and consequent claim of title and ownership conclusive proof of adverse possession against him, is unconstitutional as being in effect a confiscation of property. •</p> <p>[Syllabus approved by the court.]</p>

<p>CONFLICT OF JURISDICTION — ERROR—NEW TRIAL.</p> <p>Sullivan, Wilson and Dustin, JJ.</p> <p>1. Revised Statutes 6454 (Last. 10031) Giving Probate Court Jurisdiction Concurrent with Common Pleas in Certain Counties, Constitutional.</p> <p>Revised Statutes 6454 (Dan. 10031) giving jurisdiction to the probate court in certain counties concurrent witb that of the common pleas court, is not unconstitutional as special legislation, and a conviction and judgment under the Beal law in the probate court will be sustained.</p> <p>2. Appeal Lies to Common Pleas Court from Probate Court in Counties Affected by Rev. Stat. 6454 (Lan. 10031).</p> <p>Appeal lies to the common pleas court from the probate court on a conviction under the Beal law in counties where the probate court has concurrent jurisdiction in certain cases with the common pleas. The appeal need not be prosecuted directly to the circuit court.</p> <p>3. Absence op Stenographer in Probate Court in Criminal Trial not Reversible Error unless Form allí Objected to at the Time.</p> <p>In a criminal trial before a probate court where defendant simply protests at the absence of a stenographer but does not make demand for one, nor ask a continuance on account of said absence, nor take exception to being forced to trial under the circumstances, he is not prejudiced.</p> <p>•4. Motion for New Trial — Holiday Counts as One op the Three Days unless the Last.</p> <p>In the three days allowed for filing a motion for a new trial, a holiday counts unless it is the last day.</p> <p>5. No Indictment Necessary in Probate Court under Rev. Stat. 6454 (Lan. 10032) and Affidavit before Magistrate is Effective Throughout.</p> <p>An indictment is not necessary in the probate court under Rev. Stat. 6454 (Lan. 10032) and the information need not be sworn to as the affidavit before the magistrate on the preliminary hearing is effective throughout the proceedings.</p> <p><5. That tiie Place was “not a Drug Store” Sufficiently States the Exception under the Statute for Keeping Open on Sunday — Information Containing Two Charges, Sufficient nr One Properly Stated Although the Other is wot.</p> <p>An information charging two offenses in violation of Rev. Stat. 4364-20 (Lan. 7259), one keeping a place open on Sunday, the other selling intoxicating liquor on Sunday, is sufficient as to the former charge if it states that the place was “not a drug store,” and this will sustain a conviction under that charge of the information although the exception as to selling, viz., that the accused was “not a regular druggist,” is not properly stated. The latter charge becomes mere surplusage.</p> <p>7. Under Rev. Stat. 7327 (Lan. 11082) Probate Court may Commit until Fine and Costs are Paid.</p> <p>Revised Statutes 7327 (Lan. 11082) authorizes a commitment by the probate court until fine and costs are paid, but any possible objection thereto is waived by payment.</p> <p>[Syllabus approved by the court.]</p>

<p>CARRIERS — NEGLIGENCE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Passenger Alighting on Platform and Stepping into Visible Hole mat not Recover for Injuries.</p> <p>One who receives injuries from stepping from a street car into a hole in a platform provided by the company for passengers may not recover, where the defect is visible and nothing appears by which his attention was diverted. Conneaut (ViZJ v. 'Neff, 64 Ohio St. 629, followed.</p> <p>[Syllabus approved by the court.]</p>

The Water Works Company owed no legal duty to Claribel Bush to fence her out of its premises, or to make and maintain a fence around its reservoir child proof. The case is distinguishable from the so-called turntable cases. Gillespie v. McGowen, 100 Pa. St. 144 [45 Am. Rep. 365]; Lake Shore & M. S. By. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653]; Ann Arbor By. v. Kmc, 68 Ohio St. 210 [67 N. E. Rep. 479] j Gin. H. .

<p>Appeal from Licking common pleas court.</p> <p>Rights accruing to innocent purchasers of public securities by the recitations contained in the bonds. 1 Am. & Eng. Enc. of Law (2 ed.) 987, 988; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Welision v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127] ; Hubbard v. Fitzsimmons, 57 Ohio St. 436 [49 N. E. Rep. 477] ; White-side y. United States, 93 U. S. 247 [23 L. Ed. 882]; Delafield v. Illinois, 26 }Vend. 192.</p> <p>The attitude of the Supreme Court of the state, in relation to legislative restrictions upon public affairs. Art. 15, Sec. 2 Const.; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Lancaster v. Wliller, 58 Ohio St. 558 [51 N. B. Rep. 52] ; McCloud v. Columbus, 54 Ohio St. 489 [44 N. B. Rep. 95]; State v. Yeatman, 22 Ohio St. 546; Wellston v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127]; Gates v. Toledo, 57 Ohio St. 105 [48 N. B. Rep. 500]; Cincinnati v. Gucken-berger, 60 Ohio St. 353 [54 N. 'E. Rep. 376]; Guckenberger v. Dextor, 3 Circ. Dee. 667 (17 R. 115) ; Guckenberger v. Dexter, 8 Dec. 530 (5 JST. P. 429) ; Roberts v. Taft, 13 O. F. D. 162 [116 Fed. Rep. 228] ; Roberts v. Taft, 13 O. F. D. 675 [109 Fed. Rep. 825; 48 O. C. A. 681],</p> <p>The private sale of the bonds was unauthorized and illegal because they had not been “once advertised and offered for public sale” and the same or any part did not remain unsold after such offer, as contemplated by Sec. 97 of the municipal code, p. 52 (Ellis 282).</p> <p>Power and duty to open and determine the validity of the bids, ■which is the highest and best, whether the bids should all be rejected, to order further offer at public sale or to make private sale. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335],</p> <p>The discretion as to all those matters resides in the council alone and cannot be delegated. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; State v. Bell, 34 Ohio St. 194; Board of Education v. Mills, 38 Ohio St. 383; Hengst v. Cincinnati, 9 Dec. 730 (7 N. P. 1) ; 4 Dillon, Mún. Corp. See. 96; Tiedeman, Mun. Corp. See. 113.</p> <p>The motive which actuates a party in bringing a suit is not inquired into. When he has the legal right the court will not question his motive is asserting it. McClain v. McKisson, 8 Circ. Dee. 357 (15 R. 517); affirmed, McClain v. McKisson, 54 Ohio St. 673 [47 N. E. Rep. 1114]; Cincinnati Yolksblatt Co. v. Hoffmeister, 62 Ohio St. 189 [56 N. E. Rep. 1033; 78 Am. St. Rep. 707; 48 L. R. A. 732]; Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011; 60 L. R. A. 531]; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765 ;> 40 L. R. A. 177] ; Peppard v. Cincinnati, 9 Dec. 102 (6 N. P. 57); Raynolds v. Cleveland, 24 O. C. C. 215; Lewis v. White, 16 Ohio St. 444; Frazier v. Brown, 12 Ohio St. 294; State v. Columbus (Bd. of Ed.), 35 Ohio St. 368; Kinner v. Railway, 69 Ohio St. 339 [69 N. E. Rep. 614]; Elyria Gas <& Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335] ; 10 Cyc. 978-20.</p>

<p>FEES OF PROBATE JUDGES.</p> <p>Cook, Burrows and Laubie, JJ.</p> <p>1. Probate Judges Held Entitled to Six Cents per Hundred Words oe Orders Entered on Journal.</p> <p>Under Rev. Stat. 546 (Lan. 835) probate judges are entitled to receive six: cents for each one hundred words of orders entered upon the journal. Burrows, J., dissents.</p> <p>2. Probate Judges are not Entitled to Thirty-five Cents for Certificates to Copies of Findings and Certificate of Medical Witness.</p> <p>Under the same section they are not entitled to thirty-five cents for each; certificate under the seal of the court to the copies of the certificate of: the medical witness and of his findings in the case as required by Rev. Stat. 705 (Lan. 1176).</p> <p>[Syllabus by the court.]</p>

<p>EXECUTORS AND ADMINISTRATORS — HUSBAND AND WIFE.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>Widow Separated from her Husband Entitled to Year’s Support and Articles oe Property Mentioned in Rev. Stat. 6038 (Lan. 9578) nr not Divorced.</p> <p>A widoW who had separated from her husband and had continued to live apart from him for some years before his death but who was never divorced from him is, nevertheless, entitled to her year’s support and the articles of personal property mentioned in Rev. Stat. 6038 (Lan. 9578) set apart te her by the appraisers of her husband’s estate.</p> <p>[Syllabus approved by the court.]</p>

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

<p>APPEAL — GUARDIAN AND WARD.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Uncle of Ward may Appeal from Order Overruling Motion for Removal.</p> <p>An uncle of a minor child may make a motion for the removal of the guardian appointed for the child by the probate court, and may appeal from an order of this court overruling the motion.</p> <p>2. Guardian — Domicile of Parents.at Death Determines Jurisdiction of Court to Appoint Guardian of Child.</p> <p>Where the parents of a minor child have been living for some months with the child’s paternal grand parents and both die at this home, and the-child, with the grand parents’ consent, is taken by an aunt to another county, the jurisdiction to appoint a guardian is in the county where the parents resided at the time of their death, and not in the county to-which the child has been removed. (</p> <p>[Syllabus approved by the court.]</p>

<p>BRIBERY — SOLICITING BRIBE — WORDS AND PHRASES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Words “Other Officer” in Rev. Stat. 6900 (Lan. 10534) Include Councilmen.</p> <p>The words, “other officer,” as used in the statute covering bribery, Rev. Stat. 6900 (Lan. 10534), must be extended to include members of the council of a municipality.</p> <p>2. Evidence Constituting Prima Eacie Case Against Accused for Soliciting Bribe.</p> <p>Evidence tending to show that member of a city council told two attorneys for a corporation interested in a proposed improvement about to be submitted to the council that he wanted nothing for himself but that there were others whose interests would have to be takén care of, is sufficient to constitute a prima facie case of soliciting a bribe. .</p>

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

<p>AFFIDAVIT — BILL OF EXCEPTIONS — INTOXICATING LIQUORS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Scienter not Necessary in Prosecution eor Keeping Place where Liquor is Sold, Purchased or Given Away.</p> <p>An affidavit charging a person with a violation of the Beal law (95 O. L. 87; Rev. Stat. 4364-20 et seq.; Lan. 7259 et seq.) in that he kept a place where intoxicating liquors were, sold, purchased or given away, need not aver that such place was “knowingly” kept.</p> <p>2. Bill op Exceptions, Certified to Contain All the “Substantial” Points oe Evidence Presented at Trial not Review able.</p> <p>A bill of exceptions, transmitted to the reviewing court with a certificate that it contains all the evidence except that presented on one day of the trial, and all the “substantial” points presented on that day, may not be reviewed as to the weight of the evidence by the higher court as it does not contain all the evidence.</p> <p>[Syllabus approved by the court.]</p>

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

<p>SPECIFIC PERFORMANCE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>PURCHASER OF REAL ESTATE GOING INTO POSSESSION UNDER CONTRACT LIABLE EO* Interest on Purchase Money Withheld until Good Deed is Furnished.</p> <p>A purchaser of real estate, under a contract which calls for delivery of possession and- a good title on a certain day, who goes into possession on the day named, but does not receive a deed nor pay the purchase money, owing to a defect in the title,, until some months later, is liable to the vendor for interest on the purchase money from the date when he took possession until the time of payment.</p> <p>[Syllabus approved by the court.]</p>

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

<p>CONSTITUTIONAL LAW — TAXATION.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Revised Statutes 1365-25 (Lan. 2791), Providing that the Countv Commis-sionees in Certain Counties mat Extend Time for Payment oe Taxes, Is Constitutional.</p> <p>The last clause of Rev. Stat. 1365-25 (Lan. 2791), which provides that the county commissioners in counties containing a city of the second grade of the first class may, hy resolution, extend the time for the payment ef taxes, is not a law of a general nature, as the subject is not the general one of “Taxation,” hut, the subject being the regulation of the time and mode of paying taxes, it is a matter of regulative detail subject to reasonable local or special laws. This section is therefore constitutional.</p>

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

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

<p>DESCENT AND DISTRIBUTION — TRUSTS.</p> <p>Swing and Giffen, JJ.</p> <p>1. Husband Furnishing Funds bob Purchase of Property Held in Wife’s Name does,' not Create Wife Trustee for Husband and His Heirs.</p> <p>Where the title to real estate is in a wife, evidence that the funds for its purchase and improvement were furnished by the husband does not afford ground for declaring that she holds in trust for him and his heirs.</p> <p>2. Husband not Relative of Wife within Rev. Stat. 5971 (Lan. R. L. 9510).</p> <p>A husband is not a relative of a wife within the meaning of Rev. Stat. 5971 (Lan. R. <L. 9510), and property devised by her to him does not, in the event of his prior death, pass to his children by a former marriage, but goes to the relatives of the wife by blood.</p>

<p>INSURANCE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Concealment of Condition of Health by Applicant fob Insurance, as Disclosed by Consultation with Three Physicians, Fraudulent.</p> <p>The concealment by an applicant for life insurance, of the condition of his health, it appearing from the testimony that three physicians had informed him of the serious nature of his malady, one refusing to pass him for insurance, another telling him that he had an organic lesion of the heart, and the third discovering and disclosing to him an enlargement of the spleen, will sustain the defense of fraud in an action on his policy, even though the physician examining him on behalf of the company failed to discover anything .abnormal in the condition of his health.</p>

<p>TAXATION.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Taxation — Ownek of Destroyed Building may Compel Auditor to Remove same-from Duplicate.</p> <p>An owner of a building which he himself has torn down is entitled, under Rev. Stat. 1038a (Lan. 2379), to have the county auditor deduct from-the tax duplicate the value of such building at any time between the-second day of April and the first day of October as provided in the statute. This statute does not violate the provisions of Sec. 2, Art. 12 Const., as to uniformity of rates of taxation.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>BILLS AND NOTES.</p> <p>Wilson, Dustin and Sullivan, JJ.</p> <p>[The Act op April 17, 1902 (95 O. L. 162), Known as “The Negotiable Instruments Act,” does not Change State Rule op Decision.</p> <p>One who places his name on the hack of a promissory note before delivery is a maker or surety, and is not entitled to notice of presentment and nonpayment. The act of April 17, 1902 (95 O. L. 162f] known as “The Negotiable Instruments Act,” does not change the liability of such party as established by the Supreme Court of the state for many years.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bills, Notes and Checks,” §§’ 360-380; §§ 1037-1039. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>DAMAGES — MUNICIPAL CORPORATIONS..</p> <p>Marvin, Winch. and Henry, JJ.</p> <p>City may be Liable fob Injuries Resulting Solely from Icy Condition of Sidewalk.</p> <p>The liability of a municipal corporation for injuries resulting solely from the icy condition of a sidewalk, where such condition is peculiar to that particular place, is a question of fact for the jury, and the court will not say as a matter of law that, in a proper case, such liability does not exist.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§,■ 2208, 2781-2784, 2824, 2825. — Ed.]</p>

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

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

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

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

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

<p>CRIMINAL LAW — INDICTMENTS.</p> <p>Haynes and Parker, JJ.</p> <p>(Judge Hull not sitting.)</p> <p>INDICTMENT UNDEB RET. STAT. 6820 (I-iAN. 10420) NOT BAD FOB DUPLICITY WHEN Acts,Chabged in Conjunctive.</p> <p>An indictment will not be quashed for duplicity which charges that the defendant shot with intent “to wound, maim, and kill,” charging the crime in the conjunctive whereas the statute, Rev. Stat. 6820 (Lan. 10420), describes the crime in the disjunctive, “with intent to kill, wound, or maim.”</p> <p>[For other cases in point, see 5* Cyc. Dig., “Indictments and Informations,” §§ 406-428 — Ed.]</p>

To constitute adverse possession there must have been an intention on the part of the person in possession to claim title, and so maintained by his declarations or his acts. Lane v. Kennedy, 13 Ohio St. 42-46; Ashley v. Toledo, 5 C. D. 675 (13 R. 1).

<p>ERROR to Van Wert common pleas court.</p> <p>An agreed statement of facts' although filed in a ease, is not an “original” paper. Garner v. White, 23 Ohio St. 192; Young v. State, 23 Ohio St. 577; Montgomery v. State, 4 Circ. Dec. 199 (12 R. 679) ; Brock v. State, 12 Circ. Dec. 467 (22 R. 364); Clev. & IE. Elec. By. v. Hunter, 12 Circ. Dec. 769, 774; State v. Speigel, 25 O. C. C. 552.</p> <p>Nor -even when copied in the record by the clerk. Sleet v. Williams, 21 Ohio St. 82; Goldsmith v. State, 30 Ohio St. 208; Schultz v. State, 32 Ohio St. 276.</p> <p>A deposition on file, but not attached to tbe bill of exceptions, is not a part of the record. Hicks v. Person, 19 Ohio 426.</p> <p>An agreed statement of facts must be made a part of the record by bill of exceptions. Bank of Virginia V. Bank, 16 Ohio 170; Clark v. Lane Seminary (Tr.), 6 Dec. Re. 863 (8 Am. L. Rec. 488).</p>

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

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

The principal upon which relief is afforded to purchaser, when the legal title remains in the vendor, and the land is consequently at. law, ■subject to execution upon judgments against the vendor, seems to be, that the purchaser has as good an equity as the judgment creditor and prior to his in point of time, having honestly paid his money before the land became subject to the judgment lien.

Nonpayment of taxes without formal demand by the lessor therefor does not work a forfeiture of the lessee’s rights. Fichenlaub v. Neil, 6 Cire. Dec. 567 (10 R. 427-432). The assertion by Whetstone of his paramount title at the termination of Regan’s lease constituted an eviction of McHugh. 2 Am. & Eng. Enc. Law (2 ed.) 457; 8 Am. & Eng. Enc. Law (2 ed.) 108; 11 Am. & Eng. Law (2 ed.) 482; 16 Cyc. Law 820; Cowdrey v. Coit, 44 N. Y. 382 [4 Am.

<p>RECEIVERS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Hight to Receivership Funds on Discharge oe Receiver.</p> <p>In an action to sell real estate to pay the debts of a decedent, a receiver having been appointed on the application of certain creditors and subsequently the action dismissed, without prejudice, as to all parties applying for the receivership and the receiver discharged, the money and property in the hand of the receiver at the time of his discharge are held subject to the order of the court appointing him, and the successful party to such action is not entitled to any part of the receivership funds by virtue of the discharge of the receiver and dismissal of the action.</p>

The ordinance on its face, unjustly discriminates between men in the same business. State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep, 136;'41 L. R. A. 689; 65 Am. St. Rep. 785], In order that an ordinance may be sustained as an exercise of police power the exercise of this power must be reasonable and indiscriminat-ing. Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184] ; 22 Am. & Eng. Ene. Law (2 ed.) 938m; Lacy, Ex parte, 108 ^ Cal. 326 [41 Pac.

<p>CHANGE OF VENUE — DISCRETION OF TRIAL JUDGE — EVI= DENCE — FORGERY.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>1. Discretion of Trial Judge to Grant Change of Venue.</p> <p>A motion for a change of venue in a criminal prosecution supported by an affidavit, having been made, it is for the trial judge to determine from the affidavit whether or not a fair trial can be had in the county, and his discretion in so determining will only be reviewed when abused.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 217-218.]</p> <p>2. Abuse of Discretion by Trial Judge.</p> <p>The record showing that there was but one juror examined on his voir dire and that he was challenged peremptorily, and there being no exceptions to the jury or the selection of any particular juror it will be presumed that the court did not abuse its discretion in overruling a motion for a change of venue.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 217, 218; 7 Cyc. Dig., “Venue,” §§ 260-263.]</p> <p>3. Evidence of Similar Offenses to Prove Guilty Knowledge or Intent.</p> <p>In a prosecution for forgery of a receipt for the payment of money used in conjunction with other forged instruments with intent to defraud, the indictment not containing a count for uttering the forged instrument, evidence of other transactions by the same defendant similar to that of which the accused is charged may be received to prove guilty knowledge or intent.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 443-455; 4 Cyc. Dig., “Evidence,” §§ 1793-1808. — Ed.]</p>

<p>COVENANTS — ESTOPPEL — STATUTE OF LIMITATIONS — STREET ASSESSMENTS.</p> <p>Jelke, Swing and GifCen, JJ.</p> <p>1. Limitation on Street Assessment Installments.</p> <p>Prior to the act of April 25, 1904, Rey. Stat. 1104 (Lan. 2451), the statute of limitations did not begin to run in favor of a property owner and against the municipality on a street assessment until each of the several installments became due.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 228-229. — Ed.]</p> <p>2. Covenant in Deed as Estoppel aoainst Collection op Invalid Assessment.</p> <p>The exception in the covenant of warranty in a deed of .conveyance, “except maturing street assessments on Floral avenue which the grantee assumes and agrees to pay,” merely means that the grantor is relieved of liability on the warranty on account of the assessment, and not that a definite sum made to the grantee as part of the consideration and as such inures to the benefit of the city, and the assessment having been held illegal and void cannot be collected by the city from the grantee in the deed.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 174-177. — Fd.]</p>

<p>EVIDENCE — ACCOUNTS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Evidence — Contradiction of Writing Showing Settlement of Account — Writing MORE THAN A RECEIPT. '</p> <p>F owed G an account for goods sold, and G accepted a cash payment and five notes giving F a paper writing stating that such were received “in full settlement of claim * * • * in accordance with agreement of G.” In an action on the account brought after F had failed to pay the notes, it was held error to admit testimony tending to show that the settlement was on condition that the notes be paid when due, as such evidence tended to contradict the plain terms of the paper writing, such writing being more than a receipt and, in effect, evidence of an agreement upon a settlement.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2917-2939, 3007 — Ed.]</p>

<p>ERROR — EXECUTION—PARTNERSHIP—SALE—WAIVER.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. Validity of Sale of Partnership Property by One Partner as against Subsequent Levy.</p> <p>A hill of sale of all the property of a partnership, executed in the name of the partnership hy one of the partners, without the knowledge and con- ' sent of the other, conveys a valid title as against an officer holding under a subsequent levy of an execution against the partnership, though the property so sold was not kept for purposes of sale, hut for continued use in the prosecution of the business, and though the sale was not ratified hy the nonassenting partner until after the date of the levy.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Partnership,” §§ 138-140. — Ed.]</p> <p>2. Waiver of Want of Capacity to Sue by Failure to Plead.</p> <p>An objection that the plaintiff has not legal capacity to sue is waived hy a failure to plead it, either hy demurrer or answer, and cannot he raised for the first time on a motion for judgment notwithstanding the verdict.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Pleadings,” §§ 1772, 1773;</p> <p>€ Cyc. Dig., “Partnership,” §§ 530, 531. — Ed.]</p> <p>3. Failure to Keep Watchman in Charge of Property Levied on and Resumption of Possession by Owner do not.Avoid Levy.</p> <p>The failure hy an officer to keep a watchman in charge of property levied on and the resumption of possession and control of such property hy the owners do not in themselves render the levy void. Whether these acts, together with other circumstances, would avoid the levy, is a question of fact for the determination of the jury.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Execution,” §§ 187-190. — Ed.]</p> <p>4. Erroneous Instructions to Jury Prejudicial when there is Possibility THAT THEY AFFECTED THE VERDICT.</p> <p>Erroneous instructions to the jury which may have been the basis of the verdict will he held to be prejudicial although there is a possibility that the verdict was based upon a finding hy the jury, of some other state of facts which would render such erroneous instructions immaterial.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1738-1746; 2 Cyc. Dig., “Charge to Jury,” §§ 702-781 — Ed.]</p> <p>5. Trial Judge not Required to Certify Settlement of Bill of Exceptions, when Allowed as Presented.</p> <p>A hill of exceptions is not defective from the fact that the trial judge failed to certify that the same was settled, hut only that it was allowed, signed, sealed and made a part of tlie record, where no controversy-existed concerning it, and it was allowed as presented.</p> <p>[For other cases -in point, see 1 Cyc. Dig., "Bill of Exceptions,” §§ 455' 462. — Ed.]</p> <p>6. Request foe Interrogatories must Contain- Condition for theib Answer in Case of General Verdict.</p> <p>A refusal to submit interrogatories to the jury is not erroneous, where the request therefor contains no condition that the questions, when submitted, shall be answered in case of the rendition of a general yerdiet.</p>

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

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

<p>EASEMENTS — STREETS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Increased Light and Aie from Opening of Street cannot be Regarded as Benefit.</p> <p>Increased light and air resulting from the opening of a street cannot he considered as a benefit arising from a subsequent surface improvement of the same.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 227-234. — Ed.]</p>

The facts in this ease are as follows: Plaintiffs in error sold to defendants in error, at public auction in the city of Mansfield, Ohio, on March 3, 1902, a horse, sold as coming three, sound and broke double.

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

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

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

<p>DAMAGES — TRIAL.</p> <p>Jelke, Swing and G-iffen, JJ.</p> <p>1. Instructions as to Issues Necessary eor Special Verdict.</p> <p>A special verdict being requested, the court is bound to instruct the jury as to the issues in the case and the proper form of the verdict and the specific facts to be found.</p> <p>2. Instructions as to Measure oe Damages for Failure to Execute Contract-According to Specifications.</p> <p>The proper instructions as to the amount due on a contract to build a water tower and tank, the answer alleging failure of the contractor to-comply with the specifications, is the diminished value of the tank and tower by reason of the failure to conform to the specifications, but the instruction that the jury should find the amount of money it would tako-to make such tower and tank conform to the specifications is improper.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 983-986. — Ed.]</p>

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

<p>PLEADING.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>‘Omission of Material Allegations in Amended Petition.</p> <p>The original action on a policy of life insurance being for the amount ■ of the policy while the amended petition js for a reformation of the policy and judgment upon it, the omission in the amended petition to allege consideration is nqt supplied by such allegations in either the original petition or answer and such allegation being essential to the right of action a demurrer will be sustained to such amended petition.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1174-1180, 1186. —Ed.]</p>

<p>Aets.of performance of part promise. Schneider v. Curran, 10 Cira. Dec. 239 (19 R. 224) ; Armstrong v. Kattenhorn, 11 Ohio 265; Shahan v. Swan, 48 Ohio St. 25 [26 N. E. Rep. 222; 29 Am. St. Rep. 517]; Stoddert v. Tuck, 4 Md. Ch. 475; Bathbun v. Bathbun, 6 Barb. 98; Bowen v. Warner, 1 Pinn. (Wis.) 600; 1 Jones, Mortgages Sec. 328.</p> <p>Conditional sale or mortgage. Conway v. Alexander, 11 U. S. (7 Cranch.) 218, 237 [3 L. Ed. 321]; Slutz v. Desenberg, 28 Ohio St. 371; 1 Jones, Mortgages See. 677; 1 Pingrey, Mortgages See. 205; 4 Kent’s Commentaries 145; 3 Kerr, Real Prop. 282; 2 Washburn, Real Prop. *482; Howel v. Price, 1 P. Wms. 291; Henry v. Bell, 5 Vt. 393; Scott v. Fields, 7 Watts 360; Baum v. Tonkin, 110 Pa. St. 569 [1 Atl. Rep. 535]; Schweyer v. Walbert, 190 Pa. St. 334 [42 Atl. Rep. 694]; Coleman V. Van Bensselaer, 44 How. Pr. 369; Salisbury v. Philips, 10 Johns. 57; Coleman v. Miller, 8 Dec. Re. 179 (6 Bull. 200); Hardinger v. Ziegler, 8 Dec. Re. 214 (6 Bull. 326) ; Bobinson v. Cropsey, 2 Edw. Ch. 137; Goodman v. Grierson, 2 B. & B. 274.</p> <p>Right of appeal. Baird v. Kirtland, 8 Ohio 21 • Marshall v. Steivart, 17 Ohio 356; Miller v. Stokely, 5 Ohio St. 194; Slutz v. Desenberg, 28 Ohio St. 371; Wilson v. Giddings, 28 Ohio St. 554; Wright v. Bates, 13 Vt. 341; Shaw V. W(Abridge, 33 Ohio St. 1; Kemper v. Campbell, 44 Ohio St. 210; Hughes v. Davis, 40 Cal. 117; 1 Jones, Mortgages 214, Sec. 339; First Nat. Bank v. Chandelier Co. 9 Circ. Dec. 807 (17 R. 443) ; Foley v. Kirk, 33 N. J. Eq. 170; Stinchfield v. Milliken, 71 Me. 567; Hogel v. Lindall, 10 Mo. 483; Ketchum, A. <& P. By. v. St. Louis, 101 U. S. 306 [25 L. Ed. 999]; Bowland V. Entrekin,- 27 Ohio St. 47; Ells-worth v. Holcomb, 28 Ohio St. 66; Fleming v. Kerkendall, 31 Ohio St. 568; Emerick v. Armstrong, 1 Ohio 513; Teaff v. Hewitt, 1 Ohio St. 511; Bassett v. Daniels, 10 Ohio St. 617.</p>