Volume 18 — Ohio Nisi Prius Reports, New Series

<p>CONSENTING FRONTAGE FOR. A STREET RAILWAY ROUTE.</p> <p>Municipal Corporations — -Council Speaks Only Through its Records — Announcement of an Intention to Act — Not Equivalent to Action Carrying Out Such Intention — Invalidity of Street Railway Consents — (Granted for Park Property on a Proposed Street.</p> <p>1. Where by ordinance a franchise is granted by a municipality for the extension of a street railroad partly over an existing street and partly over the same street "relocated,” such relocation to he over private property which the municipality has taken no steps to acquire and. also over property held by the municipality for park purposes, the consent of the municipality, as a prospective abutting owner, to such street railroad extension can not be counted towards the requisite majority of consenting property owners upon such' street.</p> <p>2. The declaration, in an ordinance authorizing an extension of a street railroad over a certain street, that a portion of the street in question is to be “relocated” between certain points, and that the street railroad extension is to be constructed over said street so to be relocated, is not a substitute for, or the equivalent of ¿n ordinance to “open, straighten, alter, or divert” such street as required by Section 3715, General Code, for the relocation thereof.</p> <p>3. The consent of owners of a majority of.tho feet front abutting on a street along which a street railroad Is proposed to be constructed, required by General Code, Sections 3770 and 9105, as a prerequisite to a street railroad grant, is tbe consent of owners of property abutting upon an existing street, and the statute is mot satisfied by the promised consent of owners oí property which will abut upon a proposed street, which has never been established by ordinance and the right-of-way for' which has never been acquired by tHe municipality.</p>

<p>JURISDICTION TO SELL PROPERTY OF A DECEDENT TO PAY DEBTS.</p> <p>Jurisdiction to Sell Property to Pay Debts — Can 'Not be Entertained After the Filing and Confirmation of a Final Account by the Administrator Showing no Debts Against the Estate — Proper Method of Correcting Such an Account.</p> <p>1. The court of common pleas is without jurisdiction to grant an order upon petition of an administrator to sell real estate to pay debts, where it appears from the records of the probate court that the said administrator has filed a final account which disclosed no, debts and the estate has been closed.</p> <p>2. There is no authority in the probate court to set aside the final account of an administrator and reopen the estate, where no exception was filed by a party in interest within eight months of the settlement of said account, which is conclusive unless attacked for fraud or corrected by, the court upon the filing of a subsequent, and correct account; but where a mistake has been made in the former and final account as to the existence of debts against the estate and credits due the administrator, said former and final account may be opened up by the probate court upon the filing of a subsequent account showing the existence of such debts and credits.</p> <p>3. Property may be sold by an administrator to pay debts not yet due, especially where it appears that the creditor is willing to accept the money.</p>

<p>VALIDITY OF FINDING AS TO THE OWNERSHIP OF PROPERTY.</p> <p>Execution — Three-Fourths Jury Law — Rot Applicable Where the Issue Submitted is the Right of Property Levied, Upon, Under an Execution — Order of Justice May be Reviewed on Error.</p> <p>The finding of five disinterested electors to whom has been submitted the determination of the right of property levied upon under an execution is not governed by the three-fourths jury law, and mandamus will not lie to compel a justice of the peace to render judgment on a finding of the five electors so impanneled, but sucn an order may be reviewed on error in the common pleas court.</p>

<p>AS TO THE ENFORCEMENT OF GRADE CROSSING ELIMINATION AGREEMENTS.</p> <p>Crude Crossings — Invalidity of the Feature of the Act Which Attempts, to Confer Judicial Power — Answer of Railway Company Alleging Inability to Comply With its Agreement — Held to be Good Against Demurrer — Section 8866.</p> <p>1. The attempt, embodied in Section 8866 of the grade crossing act, to invest with the force and effect of a judicial decree an ordinance ■ embodying an agreement between a municipality and a railway company relative to the elimination of grade crossings, is without constitutional warrant; but acting under this statute a court, upon being satisfied as to the action of council with reference to elimination of grade crossings and concurrence therein of the defendant railway company, may cause to be spread upon its journal a decree which shall have the effect of a judicial determi- . nation as to the execution of the agreement and its terms and conditions.</p> <p>2. While a court is vested with wide power with reference to the enforcement of such agreements, an answer by the railway company, that owing to conditions developing subsequent to the agreement entered into between the company and the municipality it is unable to raise sufficient money to meet its share of the expense involved in such grade crossing eliminations, affords ground for the court to decline to take drastic action and is good against demurrer.</p>

<p>INTEREST OF WIFE IN POLICY OF INSURANCE ON LIFE OF HER HUSBAND MAY PASS BY WILL.</p> <p>Insurance on Life of Husband Made Payable to Wife — Vested Interest of Wife Therein — Language of a Devise Sufficient to Cover the Proceeds of Such a Policy.</p> <p>1. Where a policy of insurance is issued upon the life of a husband, the proceeds of which are payable unto his wife, her executors, administrators, or assigns, the said wife the moment the policy is issued obtains such a vested or devisable interest in the insurance fund prior to the death of her husband as she can pass by will.</p> <p>2. Where the company issuing the policy promises to pay the proceeds thereof unto the wife, her executors, administrators and assigns, it is not such a policy payable to a married woman or to any person in trust for her or for her benefit as is contemplated in Section 9398, General Code; nor is it a policy made payable to a married woman solely for her own use as is contemplated in Section 9399, General Code; but, by its terms being payable to the wife or her assigns the wife’s interest in it is assignable and therefore is capable of being devised.</p> <p>3. A devise of “all my property both real and personal of which I may die seized to my husband * * * to him and his heirs forever” is sufficient to carry with it the proceeds of such a policy of insurance.</p>

Demurrer. Plaintiff, instituting this action as administratrix of one Alta Biddinger, deceased, in behalf of herself as his widow and his two dependent children, complains in her petition that while her said husband was employed by the Champion Iron Company and engaged in certain work for said employer about the construction of the courthouse building at Kenton, he was injured and killed by certain negligent acts and omissions of defendant, for which she seeks to recover…

<p>COMPETITIVE BIDDING FOR MUNICIPAL SUPPLIES.</p> <p>Municipal Corporations — Principle of Competitive Bidding Must be Held Inviolate — And Has Been Carried Into the Cleveland Charter —Specifications Inadmissible Which Are so Draivn as to Admit of Goods Manufactured by Only One Concern — Injunction.</p> <p>1. The principle of competitive bidding in the purchase of supplies is of such importance to the well being of a municipality, and is so imbedded in the law of the state, that reason for departing therefrom in a particular instance is not afforded by the fact that some inconvenience or loss will be incurred by adherence thereto.</p> <p>2. This principle has been incorporated intd the new charter of the city of Cleveland, granting powers of local self-government; and, under said charter, the adoption of plans and specifications for a public improvement which restrains free competitive bidding by requiring the exclusive use of any article which is controlled by a single person, firm or corporation, is prohibited.</p> <p>3. Where it is shown by the testimony of the officers having the matter in hand that in their opinion the desired equipment can not be secured through competition, but must be purchased from a particular manufacturer, and it is frankly admitted that the specifications were so drawn as to make it impractical for any other manufacturer to submit a bid, injunction will lie against acceptance of the proposal of the one manufacturer whose product corresponds with the specifications upon which bids were asked.</p>

<p>REPRESENTATIONS AS TO WHETHER LAND WAS SUBJECT TO OVERFLOW IN TIME OF FLOOD.</p> <p>Fraudulent Representations — Where the Truth or Falsity of Representations Could Save Been Learned by the Exercise of Diligence, Equity Will Not Grant Relief — Representations Can Not be Treated as an Assurance of Future Events.</p> <p>A transfer of property will not be set aside on the ground of false representations- as to its not being subject to overflow in time of flood in the river upon which it abuts, where the fact of the land having been overflowed in the past was known to persons living in the vicinity who could have been easily consulted by the purchaser, and as to whether it would be overflowed by some extraordinary flood in the future (as it was) no one could foretell.</p>

<p>REGULATION OF THE JITNEY.</p> <p>Municipal Corporations — Authority of, to Regulate Jitney Busses in Their Use of the Streets — What Constitutes Reasonable Regulation.</p> <p>1. In the exercise of their general police power and under the authority of the statutes providing for control over the use of the streets, municipalities may regulate the operation of jutney busses. Such regulation should be reasonable, but ought to be sufficiently effective to provide for the safety of the public and protect property rights.</p> <p>2. It is not unreasonable to require that one who operates jitney busses shall execute a bond in the sum of $10,000 securing payment of damages to any person or for any property injured through his negligence; that he provide continuous service at regular intervals in bad weather as well as good; that he shall be held to the same degree of care as the law imposes on other common carriers, and that he employ no chauffeur who can not speak the English language.</p>

<p>EMPLOYER. WHO DISCHARGES A GUARDSMAN LIABLE IN DAMAGES.</p> <p>National Guard a Constitutional Force — -Joint Maneuvers Thereof Prescribed by Law — Employer Who Discharges a Member of the National Guard for Attending Maneuvers Liable in Damages.</p> <p>1. The National Guard, which is the modern designation of the organized, equipped and disciplined portion of the militia, is recognized by the federal and state constitutions and statutes as a necessary arm of the government, and is a constitutional force.</p> <p>2. For drill and discipline, camps of instruction of the Ohio National Guard are prescribed by state law, and for the purpose of obtaining proficiency and uniformity therewith, joint maneuvers with the regular army are prescribed by federal law; and when so ordered, the attendance of an enlisted man of the Ohio National Guard thereat is compulsory.</p> <p>3. A janitor of a public high school who discharged an assistant janitor who was a soldier of the National Guard of this state, for attending such maneuvers at Fort Benjamin Harrison, pursuant to orders from both the War Department and Adjudant-General of the state, which he was bound to obey, is answerable in damages.</p>

In May, 1914, the village of Edon, Williams county, passed a resolution declaring it necessary to pave certain streets, and in June, passed a paving ordinance in accordance with the resolution. The village then advertised for the sale of $5,200 of bonds of the village to pay for its part of the cost of the proposed paving without submitting the bond issue to a vote of the people. The bonds were advertised to be sold in July.

<p>BIDS FOR USE IN THE ALTERNATIVE OF VARIOUS MATERIALS AND METHODS OF CONSTRUCTION.</p> <p>Building Commissions — Award of Contract for a New Court House— Bidding in the Alternative — Individual Laches of a Tax-Payer Seeking to Enjoin Performance of a Public Contract — Not a Bar to His Suit in the Representative Capacity of a Tax-Payer — Sections 2333, 2338 and 2355.</p> <p>1. A court house building commission constituted under the provisions of Sections 2333, 2338, General Code, inclusive, is governed by the provisions of Section 2355, General Code, requiring contracts to “be awarded to and made with the person who offers to perform the labor and furnish the materials at the lowest price.” The decision in Mackenzie v. State, 76 O. S., is abrogated by the subsequent amendment of Section 2338, General Code.</p> <p>2. Where the controlling statute requires public contracts to be awarded to the lowest bidder, specifications are valid which call for bids upon the use in the alternative of various materials and methods of construction, and the final adoption of alternatives may be re-served until all bids have been opened and computed. State v. McKenzie, 9 C.C.(N.S.), 105, not followed.</p> <p>3. One who sues as a tax-payer to enjoin the performance of a public contract on the ground that the specifications therefor are invalid is not estopped by the fact that as an advocate of unsuccessful bidders he endeavored to procure for them the award of the contract; nor because of such fact will his suit be dismissed on the ground of a total want of good faith. As such tax-payer sues in a purely representative capacity his action is not barred by individual laches, notwithstanding the alleged invalidity of the specifications might have been known to him three months before the institution of suit, and in the interim large public expenditure has been incurred and important public interests have become involved upon the faith of such specifications.</p>

<p>LIABILITY FOR. FIRE WHICH SPREAD FROM GASOLINE EXPLOSION.</p> <p>Claim, for Damages for Loss from. Fire — Tank of High Pressure Gasoline Explodes in Garage — Resulting Fire Spread, to Adjoining Building, Which Was Destroyed — Owner of Adjoining Building, Suing for Damages, Must Aver and Prove Negligence.</p> <p>1. It was not negligence per se for the owners of a garage to have hauled into their building a fifty-gallon tank of “high pressure” gasoline for automobile use in the retail trade, from which an explosion occurred while the owners of the garage were transferring the gasoline from the tank to another vessel.</p> <p>2. Where, under such circumstances, the garage building is set on fire from the explosion, and the fire spreads and consumes the building on an adjoining lot, an action will not lie for damages resulting therefrom to the owner of said building, without his averring and proving negligence on the part of the owners of the garage in handling the gasoline. Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio State, 560, distinguished.</p>

<p>NEGLIGENCE IN THE MANAGEMENT OF PUBLIC PARKS.</p> <p>Municipal Corporations — Liability of, for Negligence — In the Care of Public Paries — Injury to a Pedestrian on Defective Wooden Steps— Governmental and Proprietary Fimctions of Municipalities.</p> <p>Where one is injured without negligence on his part by falling upon defective and dangerous steps in a public street in a public park owned by and within a municipal corporation, which had actual or constructive notice of the condition of said steps prior to and at the time of the accident, the person so injured may maintain an action against the corporation for damages on account of the injuries, notwithstanding said park had been devised to said corporation and accepted by it, the conditions of such devise as stated in , the will of the testator providing that such park and certain funds also devised for its maintenance should be under the exclusive control and supervision of trustees appointed by the sinking fund commission of the corporation, and as regards said funds with the assistance of an advisory committee appointed by the common pleas court of the county, and notwithstanding said park and funds had up to the time of said accident always been so managed, controlled and supervised.</p>

<p>SUFFICIENCY OF SIGNATURES TO A REFERENDUM PETITION.</p> <p>Elections — Referendum Petitions Signed with an Indelible Pencil are Valid — Name of Signer Must be Written by Himself — Definiteness as to Residence of Signers.</p> <p>1. The constitutional provision that the names of all signers of referendum petitions shall be written in ink, is substantially complied with by the use of an indelible pencil, and an objection to the sufficiency of such signatures on the ground that they are written with an indelible pencil does not lie.</p> <p>2. The requirement that the name of a signer of a referendum petition be written by himself is absolute; the date of signing and the residence of the signer are material, but may be filled in by another.</p> <p>3. If the date of signing and residence of the person purporting to sign a petition do not appear on the petition, or if the residence can not be definitely ascertained from the petition, objection lies thereto.</p>

<p>ILLEGAL APPOINTMENTS UNDER THE CIVIL SERVICE LAW.</p> <p>Civil Service — Vacancies Created by Abolishing Positions — Rights of Incumbents of the Offices Abolished — Names Once Placed on the Eligible List Can Not be Removed — Council Can Not Fix Qualifications of Applicants by Ordinance — Necessary Parties to a Determination as to Whether Appointments Have Been Illegally Made.</p> <p>1. A vacancy can not be created in a position in the municipal service by an ordinance which abolishes the position and then re-establishes exactly the same position under a different name.</p> <p>2. The sole purpose Qf the rule and the statute requiring the head of a department to notify the commission when any position is abolished and to furnish the names of incumbents thus losing their places, is to compel the commission to put back on the eligible list the names of such incumbents.</p> <p>3. The civil service commission may refuse to admit to examination an applicant who lacks the established requirements, and after examination may refuse to certify one who has passed the examination but has thereafter been found lacking; but the commission has no authority to remove from the eligible list names which have been certified for appointment in answer to the requisition of an appointing officer.</p> <p>4. Por an appointing officer to refuse to appoint persons who have been certified to him as eligible and to have such names removed from the list is in violation of law, even though he believes such persons are incompetent or inefficient or even immoral or vicious.</p> <p>5. A municipal council has no authority to fix by ordinance the qualifications which shall be required of applicants for any office or position in the competitive service in the respect specified by the statute, and determination of the amount of experience which shall be required of such applicants is specifically conferred on the civil service commission.</p>

<p>LIABILITY FOR INJURIES AS BETWEEN GAS COMPANY AND CITY.</p> <p>Negligence — Bar of a Previous Action — Effect of a Contract of Indemnity —Tort Feasors Who a,re Not Joint — Pleading.</p> <p>An indemnity contract, executed by a gas company and saving the municipality from damages in certain cases, does not make a judgment in favor of the city in such a case a bar to a similar action against the gas company for the same injuries, particularly where the second action is based on independent negligence on the part of the gas company.</p>

<p>OBTAINING MONEY ON A CHECK THAT HAD BEEN RAISED.</p> <p>Criminal Law — Forgery, Uttering Forged Check and Obtaining Money by False Pretenses — Reopening of Case for Hearing of a Witness■ — ■ Verdict Hot Inconsistent — Evidence of Impeaching Witness.</p> <p>1. It is not inconsistent for a jury to find a defendant not guilty of forgery or the uttering of a forged check, but guilty of false pretenses in obtaining money upon a check which had been' raised.</p> <p>2. It is within the discretion of the court to reopen a case for the purpose of calling a witness to testify as to a point involved in a special charge which has been asked.</p> <p>3. A motion lies to strike out the answer of an impeaching witness, whose reply to a question as to whether the reputation of the person named was good or bad, was “Well, with me it has been bad.”</p>

<p>EXCEPTIONS TO THE REPORT OF A RECEIVER.</p> <p>Priority — Not Afforded by an Unrecorded Bill of Sale — Or by an Assignment by a Contractor of Unpaid Estimates, "When — Receiver Charged loith Amount of note thus Secured and Paid by Him — Exceptions to Expenses of Receiver.</p> <p>1. A bill of sale given to secure a loan is in effect a chattel mortgage only, and where not filed for record creates no lien on the property covered and has no validity as against creditors of the party by whom it is executed.</p> <p>2. An assignment by a contractor of unpaid estimates on work in progress is of no validity as against the claims of laborers employed on the work or of sub-contractors and material-men.</p> <p>3. The payee of a note executed by an employee of the contractor, the proceeds of which were used in prosecuting the work, is a creditor of the maker of the note and not of the contractor to whom the money went, and the maker of the note is only a common creditor of the contractor.</p> <p>4. A receiver will not be permitted to charge auto hire in going to and from the work he is completing, where no emergency was shown to exist; but he is entitled to pay out of the proceeds of the estate the premium on the bond which he was required to furnish.</p>

<p>CHARACTER OF ALLOWANCE TO DIVORCED WIFE.</p> <p>Divorce Granted on Aggression of Wife — Allowance Made to Her Becomes a Charge Against Husband’s Estate After His Death.</p> <p>Where a decree of divorce is granted on the aggression of the wife, the fact that the allowance which is made to her is referred to in the decree as alimony does not change its character from an allowance made to her out of his estate, and so much thereof as remains unpaid at his death becomes a charge against his estate. , <•</p>

<p>AN INVALID SECTION IN THE WORKMEN’S COMPENSATION ACT.</p> <p>Constitutional Law — Bight of Trial by Jury Denied by Workmen’s Compensation Act — Void Provision for Sttbmission of a Judicial Question to an Administrative Board — Careful Employer Entitled to Benefit of His Exercise of Greater Care — Action Against Employer for Failing to Comply with Order of Industrial Commission Hot Maintainable.</p> <p>Section 27 of tke workmen’s compensation act (1465-74, General Code) is in contravention of the constitutional guaranty of right to trial by jury, and is therefore void and of no effect.</p>

<p>PROCEEDINGS CONTESTING AN ELECTION.</p> <p>Elections — Contest Proceedings — Claim that an Irregularity Exists Shoxild he Stated with Definiteness — Order that the Ballots he Opened Will Not he Made, Unless — Recount. Will Only he Made, When.</p> <p>1. In proceedings under the statutes to contest the election of prosecuting attorney, though the grounds thereof need not be stated with the accuracy and definiteness oí a pleading in a civil action, still it should be made to appear that an actual claim of irregularity exists, a mere general statement of claims without disclosing a special particular ground of irregularity being insufficient.</p> <p>2. The court is not warranted in ordering the ballots in to be opened, where it is apparent that the contestant desires the same to be opened and to have a full recount made to discover errors that are not alleged and claimed.</p> <p>3. The court has no power to open the ballots for an absolute recount before any testimony has been offered as required by statute which may tend to show errors in particular precincts.</p>

<p>CHARACTER. OF THE POSITION OF COUNTY SUPERINTENDENT OF SCHOOLS.</p> <p>Schools — County Superintendent Under the New Law is a Public Officer —Injunction—Quo Warranto — Office and Officers.</p> <p>A county superintendent of schools, appointed by the county board of education under the act of the General Assembly passed February 5, 1914, is a public officer and as such his eligibility or title to the office can not be brought in question in a suit by a tax-payer to enjoin the payment of his official salary.</p>

<p>ATTEMPTED POCKET PICKING.</p> <p>Criminal Law — Attempt to Pick a Pocket Not Ground for Criminal Prosecution — Where the Attempt Failed.</p> <p>Where a defendant stealthily removes a watch from another’s pocket, which watch is attached to the end of a chain, the chain being ■ fastened to- the owner’s coat, and the defendant is arrested before he has gotten possession of the watch, he is not guilty of pocket picking. He can not be convicted for attempting to pick pockets because there is no such statutory crime in Ohio.</p>

<p>CONSTRUCTION OF WILL CONTAINING EXECUTORY DEVISES PLACING LIMITATIONS ON FUTURE INTERESTS.</p> <p>Wills — Devising Clause Construed in the Light of the Trust Created by Other Clauses — Quit-Claim Deeds and Written Transfers by Devi-sees — Ineffectual to Convey the Estates Covered Thereby — Effect of Such Conveyances when Treated in the Light of Equitable Contracts — Relief Rot Barred by Estoppel or Laches.</p> <p>Where by the will of a testator he devises to his wife for her use during life his residence, and to his two daughters he bequeaths the rents on another of his three parcels of real estate, of which he died seized; his son David was appointed executor, and he was required by said will to take charge and care of all the property of the testator, including a store consisting of a stock of queens-ware and other related goods; to pay the taxes and assessments thereon, and collect the> rents on the one parcel; to continue the store business as long as it was profitable and until the death of his widow; to pay the rents on the one parcel to the two daughters, thirty dollars a week to his widow, and a salary to himself of $2,000 a year; to invest and re-invest moneys belonging to the estate, including the profits from the store business, in notes secured by real estate mortgages, improved real estate or in United States bonds; to take an invoice of the stock in the store during the first year, keep careful books of account of the store business and put the invoiee and accounting in writing and preserve the same; to use all his time, best skill and endeavor to make the store business profitable and prosperous; at the death of his widow to settle up the estate and make the distribution as thereinafter provided, and to that end he was authorized and empowered to sell any or all the real estate either at public or private sale at such price as he deemed sufficient, adequate and proper, to convert all personal goods and chattel? into money, and to make, ex» ecute and deliver all deeds or other instruments of writing necessary to properly convey any part thereof; explaining and defining the “distribution” • which the executor-trustee was to make; by the eighth item of the will the testator gave, devised and bequeathed, after the death of his wife, all his estate, real and personal and mixed, to his six children, their heirs or assigns, in equal shares and portions; and in the event of the death of any of said children before receiving his or her share, leaving no issue of his or her body living, the share of the one so dying should go to the brothers and sisters surviving, their heirs or assigns, in equal shares and portions per stirpes and not per capita; in the distribution each of the children are to be charged with the advancements made to them by the testator, without interest; before the death of the widow the executor-trustee for himself and other children, made an alleged purchase of the right, title and interest of one of the sons (Robert) who died before thei said widow died, leaving children who are defendants to the action taking from him and his wife a quit-claim deed and unacknowledged written transfers of all his right, title and interest in the estate of his father, the consideration therefor being an advancement of $5,350 made to him by his father in his lifetime, and $19,955 in money paid out of the estate’s assets; and said executor-trustee also, before the death of the said widow, fot himself and other children, made an alleged purchase of the right, title and interest of another son, (James) who is still living, taking from him a quit-claim deed and an unacknowledged written transfer, the alleged consideration for said deed and transfer being an advancement of $25,299.70 made to him by his father in his lifetime, and a quit-claim deed from said executor-trustee and the other children, for whom he was acting, releasing to said James their right, title and interest in another parcel of real estate of which the testator died seized, but into possession of which he had placed the said James during his lifetime; before the death of th’e said widow the said executor-trustee departed this life intestate, and leaving no issue of his body. — Held:</p> <p>(a). The devising clause in the will though in the apparant form of general grant seemingly showing intent to pass remainder in fee, does not because a clear and unequivocal trust is created in other clauses which discloses a paramount purpose, the interest devised to the children being by way of distribution in the final proceeds from the accumulations and the proceeds of real estate to be sold on death of widow, the distributive interest passing to the children being contingent upon survivorship, the number and names of the beneficiaries being uncertain at the death of the testator, and contingent upon death, survivorship and issue.</p> <p>(6). The interests which thus pass by the will to the children, their heirs and survivors, being thus contingent upon death, survivor-ship, and birth of issue, and governed by per stirpes method of distribution, it follows that the interests are wholly contingent and'do not become fixed and vested until the deaih of the widow.</p> <p>(c) . The will did not fix the names of all the beneficiaries, and the time and condition upon which the devise is made is'annexed to the substance of the gift, and the vesting thereof being contingent upon future events and conditions, the devise falls within the class of executory devises, as distinguished from executory interests.</p> <p>(d) . Executory devises being instituted to support and effectuate the intention of a testator concerning limitations in future interests or estates, which may not take effect as a remainder or other kind of testamentary interest, consistently with law, it follows that such devise must be indestructible by any act of the owner of preceding contingent interest as by alienation, for that would be to defeat the purpose of the will.</p> <p>(e) . Hence it follows an executory devise can not by contract, deed, or will be transferred by the contingent devisee, so as to defeat the intent and purpose of the will, by depriving those who survive the death of the widow and the issue of any beneficiary who deceases before the happening of the contingent event of their distributive interest.</p> <p>if). That the said quit-claim deeds and written transfers of Robert and •James Westwater did not convey and transfer their interest or estates in their father’s estate to the grantees therein named;</p> <p>iff). That the said purchases made by the said executor-trustee for himself and others from James and Rqbert, having been made by a trustee with power to sell, can not be enforced in equity against his cestui que trustent James and the children of Robert, deceased; and it is immaterial whether the said James and Robert did or did not receive full value for their interests in their father’s estate;</p> <p>(7i). That the children of the said Robert, deceased, are entitled to their father’s share of his father’s estate minus the advancement made to the said Robert by his said father in his lifetime, and to their father’s share of the son David’s share of his father’s estate;</p> <p>ii). That the said son James is entitled to have his share of his father’s estate and also his share of the estate of David in his father’s estate, the former to be subject to a deduction of advancements made to him by his father;</p> <p>ii). That neither the children of Robert nor James are barred of the relief to which they are^entitled by either estoppel or laches;</p> <p>t7c), That the title to the estate of the testator vested in the executor-trustee.</p>

<p>PASSENGER AFTER ALIGHTING STRUCK BY CAR ON PARALLEL TRACK.</p> <p>Negligence — Degree of Care Required by Traction Company — As to , Safety of One Who Has Alighted and is Attempting to Cross Parallel Track — Charge to Jury Must be Considered as a Whole— Instructions as to Contributory Negligence.</p> <p>1. A street car company is required to exercise only ordinary care toward persons who have left the car and are proceeding to cross a parallel track. The relationship of carrier and passenger ceases after the passenger has alighted in safety.</p> <p>2. A charge defining contributory negligence and directing the jury to-apply the definition in the event of finding a given state of facts is not withdrawing the question from the consideration of the jury.</p>

<p>AWARD MADE BY INDUSTRIAL COMMISSION INCREASED BY THE COURT.</p> <p>Injuries Treated as Trival by the Industrial Commission — Are Found on Appeal to the Court to Have Been Serious — Judgment Given Accordingly.</p> <p>The plaintiff had five teeth knocked out and suffered various cuts on his face and body in the course of his employment. The clear weight of the testimony indicated that the spongy hone in which the roots of the teeth were embedded was splintered and the jaw hone cracked. Nervousness and headaches resulted and he was prevented from returning to work for six months. The Industrial Commission allowed him only about half of his dentist’s bill and the smaller of two doctor hills. Held:</p> <p>That the allowance should he made to include both doctor bills and the full amount of the. dentist’s bill including the cost of new teeth, together with two-thirds of the amount of his weekly wages during the entire time he was laid up and an allowance of $150 to his attorneys.</p>

<p>NO POWER. IN A TRIAL COURT TO SUSPEND SENTENCE.</p> <p>Clemency to Convicted Prisoners — Not Vested in the Ohio Courts — But is Conferred on Other Agencies — Judicial Power in a Criminal Case —Becomes Functus Officio After the Pronouncing of Sentence— Policy of the State Conclusively Shown by the Intermediate Law— No Common Lato Jurisdiction in Criminal Cases.</p> <p>1. The pronouncing of judgment in a criminal case may be delayed for a reasonable time to hear and determine a motion for a new trial, or to give the defendant time to perfect an appeal or writ of error, or for other proper causes; but in the absence of a permissive statute a trial court can not suspend indefinitely the pronouncing of sentence or the execution of judgment. Weber v. State, 58 Ohio State, 616, not followed.</p> <p>2. The court has no inherent power to" suspend sentence in a criminal case. That doctrine belongs to the common law which was never in force in Ohio on the subject of crimes and procedure. The power now given by statute to suspend sentences in certain cases is to be construed as a limitation of power as well as the conferring of power.</p>

<p>APPEAL FROM AN ORDER. TERMINATING A GUARDIANSHIP.</p> <p>Guardian and Ward — Bond Required on Appeal from, an Order Terminating Guardianship — Section 11209.</p> <p>An appeal by a guardian from a judgment terminating the guardianship is not in the interest of the trust and requires that the appeal be perfected by the filing of a bond within twenty days.</p>

<p>RIGHTS AS BETWEEN STEAM AND ELECTRIC RAILWAYS IN OVERHEAD CROSSINGS.</p> <p>Tracks and Crossings — Proceedings for Removal of an Electric Overhead Crossing — Where in the Way of Elimination of a Steam Railroad Grade Crossing — Rights at a Crossing of the Successor of the Company Building the Line — Power of Railway Companies to Agree as to Crossings Subservient to the Public Interest.</p> <p>A petition by a steam railway company praying for an injunction compelling an interurban company to remove an overhead crossing, which interferes with the grade crossing elimination work of the steam road, or that acting under the provisions of Section 8834, General Code, the court should fix by its decree the mode of such crossing and equitably apportion both the initial expense and the cost of maintenance, is good against demurrer.</p>

<p>A WORD AS TO THE WEAKNESS OF THE PRESENT JURY SYSTEM.</p> <p>Misconduct — On the Part of a Jury Deliberating on a Case — Not Shown by Discussion of Defendant’s Ability to Pay — Some of the Trials of a Trial Judge.</p> <p>It is not misconduct justifying a new trial for a jury, while deliberating upon a ease, to discuss the defendant’s ability to pay the amount of its verdict. And when, upon a second trial of a case, a second verdict for the plaintiff has been returned, it will not be set aside merely because the court is of a contrary opinion, when there is testimony to support it and it is not inconsistent with the charge of the court.</p>

<p>INVALID GUARANTY OF BONDS BY AN INTERURBAN RAILWAY COMPANY.</p> <p>Interurban Railways — Without Authority to Guarantee the Bonds of Another Company of the Same Class — Consent of Stockholders Does Not Validate Such a Guaranty, When — Refusal to Permit Suit Against a Receiver Upon Such a Guaranty.</p> <p>1. The statute permitting steam and commercial railroads to give assistance to other like companies, in the form of a guaranty or otherwise, has no application to interurban railways, and it follows that where such a road is in the hands of a receiver the court can not permit a claim based on a guaranty which is ultra vires to be asserted against it.</p> <p>2. A contract of absolute guaranty made by an interurban corporation to pay an issue of bonds of another interurban corporation for the purpose of constructing a line of railway which is not expressly authorized by its charter is ultra vires. Such corporation can not undertake to make such guaranty under the guise of an incidental power to sell power, can not undertake to carry out a distinct and independent purpose contrary to its granted power.</p> <p>3. A showing that such a contract of guaranty was assented to by the stockholders can be of no avail, where it appears that both companies were dominated by one man through ownership of stock and that the bonds upon which the guaranty was given were sold by this man in order to reimburse himself for money used in construction.</p>

<p>CONSTRUCTION OF THE WORKMEN’S COMPENSATION ACT.</p> <p>Workmen’s Compensation — Right of Injured Employee to Sue a Party Other than His Employer — Meaning of the Phrase- “Course of Employment” — Assumption of Risk — Pleading—Lawful Requirements hy the Industrial Commission — Penal Character of the Compensar tion Act — Negligence Thereunder — Employer Not an Insurer of the Safety of the Place of Employment — Negligence of Employer Through Acts of Omission or Commission.</p> <p>1. The workmen’s compensation acts in no way, or in any manner, or in any sense, take away the right to sue and recover damages from a person other than his employer, who may have negligently inflicted injury upon him while in the course of his employment.</p> <p>2. Under the compensation acts, “course of employment” is not so restricted as under the general doctrine relating to scope of employment. The general rule relating to course of employment under compensation acts may he thus defined: If the employee at the time of the injury was doing something he was authorized to do, or which may he fairly inferred or implied from the nature of his employment and the duties incident to it, he may he said to have been in the course of employment. Or it may be stated somewhat differently — was the servant at the time doing an act in furtherance of the master’s business?</p> <p>3. Whether the defense of the assumption of risk remains with the employer guilty of a wilful act or failure to comply with all lawful requirements for the protection of the lives and safety of employees is at least doubtful. Upon the assumption that statutes in derogation of common law rights must be strictly construed, it would seem that the right remains, as it is not expressly denied. Upon the theory that a wilful act or a failure to comply with any lawful requirement for the protection of employer, places the employer outside of the scope of the act and denies him the rights guaranteed by the act, it would appear he is to be treated under these circumstances as if the act never existed; and unless the defense of assumption of risk is denied by the Norris act or other related statutes, it remains.</p> <p>4. The statute makes the finding of the commission on the question of course of employment final, and it can not be disturbed.</p> <p>5. Whether the employer is a non-contributor or a contributor to the fund, or a direct compensator, ought to be stated in the petition, as a different rule applies to two of these classes. If a non-contributor, the defendant can not avail himself of the defense of the fellow-servant rule, assumption of risk, or contributory negligence. If the defendant is a contributor to the fund or a direct compensator, the action can only be maintained if the act causing the injury was wilful or if the injury arose from a failure to comply with some lawful requirement for the protection of the lives and safety of employees. If this is the ground upon which recovery is sought, the defenses of contributory negligence and the fellow-servant rule are available to the defendant.</p> <p>6. The act provides that the commission shall have power to prescribe hours of labor, provide for safety devices and safeguards, and make and promulgate orders and general orders for the protection of the lives and safety and general welfare of employees; and these orders may become “lawful requirements” under certain conditions, under the compensation act.</p> <p>7. The Ohio statute is penal in character, and it seems that acts criminal in nature ought to be clearly specified by legislative enactment.</p> <p>8. The violation of a penal statute does not, in itself, necessarily furnish ground for a civil action, unless the violation of the statute is the proximate cause of the injury complained of; that is, if the act which causes the injury is made unlawful by statute, then the violation of the statute is negligence for which recovery may be had in a civil action. And if the violation is that of an act which imposes an absolute and positive duty, and the injury results proximately from and because of the violation, it is negligence per se.</p> <p>9. The decision of the Lucas county court of appeals in American W. M. Co. v. Schorling, where the acts of negligence charged were those mentioned in Sections 15 and 16 of the act of March 18, 1918 (103 O. L., 95), to-wit: failure to furnish safe employment, safe place to work, to provide and use safety devices and safeguards and to use methods and processes reasonably adequate to render the employment and place safe, should be followed.</p> <p>10. What specific acts of omission or commission on the part of the employer constitute a failure to comply with lawful requirements so as to bring an employee within the exception or reservation under Section 29 of the compensation act, must be determined by the court under the facts in each case. Only ordinary care will be expected in respect to these requirements, and the doctrine of Bail-way Go. v. Frye, 80 O. S., 289, that the limit of the employer’s duty is to exercise reasonable and ordinary care having due regard to the hazards of the service, to provide an employee with a safe place in which to perform his work, must be applied.</p> <p>11. It can not be held, without absolute danger to all industry, that an employer is an insurer of the place of employment, the safety of the employment and safety devices and safeguards unless they are specifically named, or the methods or processes employed unless they are named by statute.</p> <p>12. Even under the act of June 15, 1911. a minor working at an age legally permitted under the laws of the state, is sui juris and having made application to the state liability board of awards for compensation, can not thereafter disaffirm his election on the ground of minority.</p>

<p>DOCTRINE OF RESPONDEAT SUPERIOR. CAN NOT BE BASED ON RELATIONSHIP.</p> <p>Negligence — Owner of an Automobile Operated by His Step-son — Not Liable for Wrongful Heath Caused by Careless Handling of the Machine, When — Application of the Hoctrine of Respondeat Superior.</p> <p>1. The mere relation of father and son, or of step-father and step-son, is not of itself sufficient to make the son the servant of the father within the meaning of the doctrine of respondeat superior; and this is true even though the step-son is a member of the stepfather’s household.</p> <p>2. Where an adult step-son, living in the household of his step-father, was negligently operating his step-father’s automobile, the latter will not be liable in damages for an injury unless it appears that at the time of the mishap the step-son was engaged in carrying out some purpose of the step-father and was thus acting as his servant or agent.</p>

<p>ACTION AGAINST A DRUGGIST FOR. WRONGFULLY CAUSING DEATH.</p> <p>Action for Wrongful Death — Third Person Permitted to Testify that He had Purchased the Same Drug Shortly Before — And that No Injurious Results Were Manifested from its Use — Instructions to Jury as to the Exercise of Ordinary Care — Charge of Court — As to Preponderance of Evidence.</p> <p>1. An action against a druggist for wrongfully causing the death of the plaintiff’s decedent by reason of selling to the son of the decedent a package of Rochelle salts containing cyanide of potassim where the defense is that the cyanide of potassium was not in the package containing the Rochelle salts at the time of its delivery, it is not error for the court to permit a third person to testify that he had purchased Rochelle salts shortly before and that no injurious results were manifested from the use of same.</p> <p>2. It is not error for the court to instruct the jury that the druggist is bound to use ordinary care in and about the conduct of his business so as not to cause injury to persons buying by failing to give the drug asked for and giving instead some other drug or drugs which would be likely to cause injury and to further im struct the jury that if the druggist failed to give the drug asked for, but instead gave the drug, asked for together with some other drug of dangerous properties, why then that would be failure to exercise ordinary care for which a recovery might be had in case of death resulting therefrom.</p> <p>3. Where the court in his general charge to the jury uses the expression, “satisfy you by a preponderance of the evidence,” and then explains in detail what he means by a preponderance of the evidence by submitting to the jury the familiar example of balancing the evidence as upon a pair of scales, and an examination of the entire record shows that the jury could not in any way have been misled by the use oí the expression, the expression so used will not constitute such prejudicial error as would justify a court in setting aside the verdict, where it otherwise appears that the case has been fairly and impartially tried and submitted to the jury. (C., H. & D. Ry. Co. v. Frye, 80 Ohio St., 289, distinguished.)</p>

<p>AS TO LIABILITY FOR. INJURIES TO INTRUDING CHILDREN.</p> <p>Negligence — Temporary Structure Erected Over Sidewalk — Child Climbs TJpon it and is Injured — Property Owner Not Liable.</p> <p>An abutting owner who, lawfully or otherwise, - erects a temporary structure over the sidewalk is not liable in damages for injury to a child three and one-half years of age, who was attracted to the structure and climbed upon it and, stepping upon a loose board, fell through to the sidewalk and received the injuries complained of.</p>

<p>AS TO THE TAXABILITY OF FUNDS HELD BY THE SHERIFF.</p> <p>Taxation — Funds Held by Sheriff Awaiting Determination of Legal Fights — Fot Subject to Taxation.</p> <p>Money in the hands of a sheriff derived from sale in partition, and which he is ordered by the court to invest and hold tq await the determination by the court of the rights of rival claimants thereto, should not be returned for taxation by the sheriff as “accounting officer” or otherwise.</p>

<p>CLAMS AGAINST THE OHIO DEPOSIT OF A FOREIGN SURETY COMPANY.</p> <p>Foreign Surety Becomes Insolvent — Conflicting Claims to its $50,000 Ohio Deposit — Creditors of a Contractor Bonded by the Company— Held to have a Lien Superior to that of the Superintendent of In< surance of the Company’s Home State.</p> <p>Under a bond by a foreign surety company, guaranteeing performance of a contract and payment of all claims for labor and material furnished the contractor, the deposit required as a condition precedent to doing business in Ohio inures, in case of insolvency of the surety company, is for the benefit of all who have claims against the contractor, and the lien of such claimants is superior to that of the superintendent of insurance in the surety company’s home state, who asserts title to the deposit for the equal benefit of all policyholders of the company.</p>

<p>POWER OF A COURT TO COMMIT FOR CONTEMPT.</p> <p>Contempt — Witness Committed on Suspicion that His Statements Were Untruthful — Right of Such Witness to Purge Himself — Must he lo quitted of the Imputed Contempt, When.</p> <p>1. Where a witness has been sent to jail for contempt for an act or acts tending to obstruct justice in contempt proceedings, the witness can purge himself of contempt by thereafter answering under oath that what he had done or said was in good faith and true, without any intent to commit contempt or offering any disrespect for the court.</p> <p>2. The plenary power bestowed in this state by the General Code of Ohio, Section 12136, to commit a witness to jail for contempt for misbehavior in the presence of the court tending to obstruct justice, does not extend to or include authority to send a witness to jail for contempt where he answers all questions put, but impresses the court with a belief of the untruth of his statements. A witness can not be sent to jail for contempt on mere suspicion of untruthful statements.</p>

<p>CLASSIFICATION OF RAILROAD COMPANIES AND INTERURBAN RAILROAD COMPANIES.</p> <p>Railways — Determination of Amount of Excise Tax Due from — Comtpanies May Save a Double Character and do Both a Railroad and an Interurban Railroad Business.</p> <p>1. Tbe distinction between a railroad company and an interurban, rail- ' road company is not found in its motive power, but ratber in tbe frequency of tbe service it is rendering and of tbe stops made by its trains and tbe character of its business.</p> <p>2. A single transportation operation may be divided into two parts, and the carrier may for tbe purpose of fixing its excise tax be regarded as a railroad company as to a part of its business and as an interurban railroad company as to tbe remainder.</p> <p>3. The allegation of tbe answer of tbe defendant company as to its passenger or motor car service is such as to- constitute it, as against demurrer, an interurban railroad company as to that part of its business.</p>

<p>COMMISSION FOR. SECURING SUBSCRIPTIONS TO AN ENDOWMENT FUND.</p> <p>Principal - and Agent — Subscription for Endowment Fund Made — After Term of Employment of Soliciting'Agent Had Expired — Institution Not Liable to Agent for Commission.</p> <p>An agent was employed for the term of one year to solicit subscriptions to the building and endowment fund of an educational institution and was to be paid a commission upon all written subscriptions obtained by him and which were paid to the institution. He solicited a subscription from a prospective donor but did not obtain it nor any promise to make any subscription. More than a year after the termination of the employment, the person solicited made a large gift of money to the aforesaid building and endowment fund. Held-. The agent is not entitled to a commission on the gift.</p>

<p>PRIORITY OF A SUBSEQUENT EXECUTION OVER AN ATTACHMENT.</p> <p>Judgment in an Attachment — Not Prior to a Subsequent Judgment Upon Which Execution Was Levied — Attachment in Another Suit Does Not Prevent Acquiring of a Lien by Execution — Dormancy of Attachment — Subsequent Bankruptcy.</p> <p>1. The provisions of General Code, Section 11708, that no judgment on which execution has not been issued and levied before the expiration of one year next after its rendition shall operate as a lien on the estate of the debtor to the prejudice of any other bona fide judgment creditor, apply to a judgment rendered in a suit in which an attachment was issued and levied.</p> <p>2. Under General Code, Section 11663, a judgment rendered in a suit becomes dormant within five years unless an execution on it is sued out, notwithstanding the fact that an attachment was issued and levied on the judgment debtor’s property. Shue v. Ferguson, 3 Ohio, 136.</p> <p>3. If the judgment debtor is adjudicated a bankrupt, the lien of a judgment on which an execution has been sued out and levied within a year of its rendition is not lost if no further execution is sued out within five years after the first execution. Pence, Assignee, v. Cochran, 6 Fed., 276; Scott v. Dunn, 26 Ohio St., 63; Ambrose, Admr., v. Byrne, Exr., 61 Ohio St., 147.</p> <p>4. A judgment rendered in 1896 in a suit in which an attachment was levied on all the judgment debtor’s property, but upon which no execution was sued out until February, 1902, becomes dormant and is subordinate to a junior judgment rendered in October, 1900, upon which execution was sued out and levied on November 7, 1900, although bankruptcy proceedings intervened on September 27, 1905, and no further execution was sued out by the junior judgment creditor. 3 Ohio, 136; 9 Ohio, 142; 2 Ohio St., 36; 12 C.C.(N. S.), 286.</p>

<p>LIABILITY FOR. INJURY TO A WAGON BOY IN A COLLISION WITH AN ELECTRIC CAR.</p> <p>Negligence — Question of Joint Enterprise as Between a Driver and His Wagon Boy — Whether They Were Fellow-Bervants Was a Proper Question for the Jury Under the Testimony and Proper Instructions by the Court — Excessive Verdict.</p> <p>In a collision between a wagon belonging to an express company and loaded with express packages and. an electric car, the wagon boy, aged fourteen, whose duty it was to stand on the tail gate of the wagon and watch the load and help the driver to unload when called upon so to do, was thrown under the car and lost a leg. Held:</p> <p>1. The driver of the wagon and the boy were not engaged in a joint enterprise of a character which would permit the negligence of the driver, or the combined negligence of the driver and the motorman of the car, to be imputed to the boy.</p> <p>2. Whether the driver and the boy were fellow-servants, or the position of the boy was subordinate to that of the driver, was a question for determination by the jury under proper instructions by the court.</p> <p>3. A verdict of $15,000 in favor of a boy for the loss of a leg is unusually large, and in view of the fact that the jury were probably induced to increase their award by testimony as to the likelihood of the boy being compelled to undergo a second amputation of the injured limb, the court grants a remittitur of $5,000.</p>

<p>UNAUTHORIZED APPOINTMENT OF PHYSICIAN TO ATTEND QUARANTINED SMALL-POX PATIENTS.</p> <p>Municipal Law — Employment of Physician hy City to Attend Upon Cases of Contagious Disease — Sections 4408, 4410 and 4436 of the General Code Construed.</p> <p>1. The board of health of a city is not authorized to contract for the general employment of a district or ward physician to attend upon cases of contagion, unless such employment is authorized or consented to by action of the city council.</p> <p>2. Where a physician is employed by the hoard of health, without consent of the city council, to attend upon all cases of small-pox existing or thereafter developing in the city, during the term of his employment, such contract is illegal and void, and mandamus will not lie to compel the council to provide payment for services rendered thereunder.</p>

<p>JUDGMENTS NISI IN ACTIONS IN ATTACHMENT.</p> <p>Procedure in Attachment and Garnishment — Jurisdiction Not Lost in an Action Against a Non-Resident Defendant — By the Filing of an Ansioer hy the Garnishee that It Has no Property in Its Possession Belonging to the Defendant — Sections 11851 and 11853.</p> <p>In an action in attachment against a non-resident a conditional order or judgment nisi may be entered for the full amount owing to the plaintiff, notwithstanding the garnishee had no notice of the hearing and has previously answered that it had no property or credits belonging to the defendant in its possession, or under its control.</p>

<p>DISPOSITION OF STOCK DIVIDENDS AS BETWEEN LIFE TENANT AND REMAINDERMEN.</p> <p>Trusts• — Purpose of a Corporation Paying a Stock Dividend — Determines Whether it shall be Treated as Income or an Addition to the Principal Where the Creator of the Trust Receiving such Dividend is Silent as to Whether it shall Co to the Life Tenant or the Remaindermen.</p> <p>1. In Ohio there is no hard and fast rule to determine what disposition should be made of stock dividends; that is to say, whether they are payable as income to the life tenant or become part of the corpus of the trust fund and belong to the remaindermen. (Wilberding, Admr., v. Miller, 90 O. S., 54, followed.)</p> <p>2. Where the creator of the trust is silent as to what disposition is to be made of stock dividends, the intention of the company when declaring same in absence of other evidence is the true guide; and where the directors of a company in declaring an extra dividend out of current earnings, payable in stock, expressly state that it is a dividend, it will be so considered by the court and ordered paid to the life tenant.</p> <p>3. Where the Procter & Gamble Company declared an extra dividend, expressly stating that it was a dividend payable in capital stock of the company, such dividend being declared out of the earnings of the current year, and as the declaration did not have the effect of impairing the integrity of the capital stock of the company, but, on</p> <p>the contrary, increased its market value, such dividend will he treated as income and directed to he paid to the life tenant.</p>

<p>MEASURE OF DAMAGES UNDER THE SALES ACT FOR BREACH OF AGREEMENT TO TAKE GOODS.</p> <p>Sales — Order for Goods Having a Market Valnue Countermanded — Stipulation as to Liquidated Damages in Case of Breach Held Unenforcible — Measure of Damages Under the Sales Act.</p> <p>Where a purchaser of goods agrees to pay as liquidated damages 20 per cent, of the purchase price of the goods in case the order which he has placed is countermanded, and the goods covered by the contract of sale have a market value, wholesale and retail, in the marts of trade and the price thereof may be determined with reasonable accuracy, the sum mentioned as liquidated damages will be regarded as a penalty, and the plaintiff remitted to an action for the actual damages sustained by reason of the countermanding of the order.</p>

<p>A SECONDARY BOYCOTT NOT PERMISSIBLE.</p> <p>Illegal Efforts by Labor Union to Coerce Employer — Conspiracy to Injure Business of Customers of Employer, Having no Relation to • the Union, May be Enjoined — No Protection in the Clayton Act for a Secondary Boycott.</p> <p>1. The recently enacted federal statute, known as the Clayton act, does not withdraw the protection of the law from tradesmen whose business it is sought to ruin by a secondary boycott.</p> <p>2. A boycott of customers of a wholesale concern, in order thereby to compel said concern to treat with representatives of the labor union in order to preserve its business, is an unlawful interference with the rights of persons with whom the union has no relation, and constitutes a secondary boycott, which is not permissible and may be enjoined.</p>

<p>PROSECUTION OF OWNER. OF AUTOMOBILE FOR. EXCEEDING "SPEED LIMIT.</p> <p>Criminal Law — Inadequate Proof of Exceeding Speed Limit with Automobile — Responsibility of Defendant Owner Not Shown — Failure of Defendant to Take the Stand Does Not Lessen the Proof Required Against Him.</p> <p>1. The owner of an automobile can not he legally prosecuted and compelled to pay a fine and costs for exceeding the speed limit with his automobile, where the only evidence against him is that his automobile was seen going along a public highway at a speed greater than that allowed by law.</p> <p>2. The amendment to the Constitution of 1912, relating to the failure of a defendant in a criminal prosecution to take the stand and testify, in no way lessens the proof required before a conviction can be had, nor does it change the well settled rule of procedure that before a defendant can be called upon to produce his defense the state must prove every essential element of the crime charged.</p>

<p>HEAVY DAMAGES FOR INJURIES RECEIVED IN A COLLISION OF AUTOMOBILES.</p> <p>Negligence — Automobile Emerging from Side Street — Struck by a Rapidly Moving Machine on the Main Boulevard — Owner of the Oar Which Was Struck Severely Injured, and Heavy Damages Awarded —Rule of “Stop, Look and Listen” Not Applicable — Where Gar Emerges from a Side Street Upon a Main Thoroughfare — Sanction of a Verdict on Third Trial — Competence of Evidence — Assumption by Counsel of Judicial Prerogative in Advising Witness.</p> <p>The law imposing upon one about to drive over a steam railroad crossing the duty to stop, look and listen, and the requirements as to care to be exercised by a traveler at a steam railroad crossing, as laid down in the case of Railway Company v. Elliott, 28 O. S., 340, do not apply, in the operation of automobiles upon our public highways, so as to require one driving an automobile upon a side street and intending to enter upon a main street to exercise such degree of care and circumspection, as a matter of law, with reference to automobiles which may be driven upon the main street.</p>

<p>JURISDICTION IN ERROR. PROCEEDINGS.</p> <p>Proceedings i^ Error■ — Jurisdiction Can Not he Conferred When the Proceeding is Not Brought Within the Time Fixed hy Statute.</p> <p>Jurisdiction can not be conferred in an error proceeding by waiver of service of summons and the voluntary entering of appearance by tbe defendant in error, when tbe petition in error and tbe bill of exceptions were not filed witbin tbe statutory period.</p>

<p>TENANT DAMAGED FROM BURSTING OF WATER. PIPE.</p> <p>Landlord and Tenant — Application of the Doctrine of Res Ipsa Loquitur —To the Bursting of a Water Pipe Causing Damage to Tenant's Stoclc of Goods.</p> <p>Where a water pipe hurst on premises controlled by the defendant and water ran down on the stock of goods of the plaintiff in the store below, and no evidence is introduced showing the cause of the bursting of the pipe, the doctrine of res ipsa loquitur applies and the issue of negligence on the part of the defendant should be submitted to the jury.</p>

<p>MORTGAGED PROPERTY ASSETS IN THE HANDS OF THE ASSIGNEE OF THE MORTGAGOR..</p> <p>Chattel Mortgages — Assignments—Right of Assignee to Administer Mortgaged Property — Description of Property in Mortgage — Construction — Sufficiency.</p> <p>1. Where a mortgagor of personal property makes an assignment for the benefit of his creditors and the mortgaged property passes into the possession of the assignee, such mortgaged property becomes assets in the hands of the assignee to be administered by him and the interest or claim of the mortgagee is transferred . and attaches to the fund arising from the sale of such property.</p> <p>2. The description of property in a chattel mortgage is to be liberally construed because of the diverse and varied character of property usually sought to be covered, and the attendant difficulty in obtaining a full or exact description.</p> <p>3 Parol evidence is admissible to explain or aid the description in a mortgage of chattels and to identify the property mentioned in such description.</p> <p>4. A description in a chattel mortgage which mentions “all stock in trade” and “stock mdse, on hand” located at a certain number, street and city, is good at the time of execution, but in a continuing business, is later void for uncertainty and because such stock of merchandise would be changing during the course of business and a' mortgage of chattels does not and can not create a lien on property, in no way mentioned in the description and not on after-acquired property without express provision to that effect.</p> <p>5. A description in a chattel mortgage may refer to and'be aided by a schedule of property sought to be covered by such mortgage, but to be effective as a part of the description must be attached to such mortgage and marked as an exhibit. If not so attached and marked, but reference is made, then such schedule of property is only a means of identification suggested by the description.</p> <p>6. A description in a chattel mortgage which states, “All the stock in trade, fixtures and property sold to the said Louis H. Rice hy Claud Taylor June 24th, 1912, and being situate in Room Number ,64 East Main street, Salem, Ohio, covering; show. eases, stock, mdse, on hand and every bakery tool and article used by me now in my bakery and confectionery business, whether mentioned or not. The two bay colts, the bay mare, three wagons, and one buggy and double set harness, two single sets harness— the horse are the same, in fact the property covered by this mortgage is all the property this day sold to Louis H. Rice by Claud Taylor and for a further description see Bill of Sale from Claud Taylor to said Louis H. Rice of even date herewith. It is understood that the soda fountain and accessories are covered by this mortgage and the horses are at Noling’s Livery and at Grantee’s barn,” does not .render such mortgage invalid for insufficiency of description except as to “all the stock in trade” and "stock mdse, on hand; ” the remainder of said description being sufficiently definite and said mortgage valid as to all of the residue of said property sought to be covered.</p>

<p>IRREGULAR. MARKING OF BALLOTS UNDER. THE AUSTRALIAN SYSTEM.</p> <p>Elections — Ballots Improperly Marked Should he Counted, When— Crosses Wrongly and Inconsistently Placed — Intention of Voter Controls When Ascertainable.</p> <p>The right of suffrage should not be denied to a voter because of his failure to follow the strict letter of the law" in the marking of his ballot, and while laxity in the marking of ballots by those who know how should not be encouraged, yet in the case of irregular markings and erasures by a voter who evidently°aeted with an honest purpose, his ballot should be counted if his intention can be ascertained with reasonable certainty.</p>

<p>ALLEGED LIBEL IN PUBLICATION OF ARREST ON CHARGE OF PERJURY.</p> <p>Libel — Publication of Arrest for Perjury as Result of Investigation— Ultimate Fact as to Privilege is for the. Jury — Presumption of Publication Without Malice — Constitutionality of the Statute Relieving Publisher of Criminal Prosecution for Libel — Inaccuracy of Report Constitutes Scintilla of Malice — How Express Malice May be Shown Against a Corporation — Issue as to Truth of Publication Raised, When — When a Case is Pending in the Police Court — Determination as to When Prosecution Was Begun — Publication as to Investigation of Alleged. Frauds in the Initiative and Referendum Privilege When Not Done with Malice.</p> <p>1. Where defense of privileged publication as being a fair and impartial report of the filing of an affidavit and issuance of a warrant in police court and of pendency of criminal case therein, as well as claim of fair and impartial report of proceedings before state officers, is entered against a cause for libel per se, and the facts are disputed touching the existence of express malice, or if the facts relating to the fairness or impartiality of the report be controverted, or if there is some evidence tending to show inaccuracy or partiality in the report, then the question of the ultimate fact of privilege is for the jury to determine.</p> <p>2. When the privileged occasion fact is shown, a presumption arises therefrom that the publication was without malice, which remains with defendant until rebutted by evidence of express malice. The use of the term “maliciously” in the statutes, Sections 11343-1 and 11343-2, relieving the publisher of report of proceedings in court, filing of affidavit, etc., unless it is proved to have been published “maliciously,” is held to mean and comprehend “express malice,” because the intent and purpose of the amended statutes was to abrogate the old rule which allowed action for simple malice in law. That the statute thus allows redress for actual malice notwithstanding privileged occasion is another reason for holding the statute constitutional.</p> <p>3. The question of express malice is for the jury, where there is some evidence tending to show it. Inaccuracy of report, or comment by publisher may constitute a scintilla of evidence of express malice, although a mere mistake innocently made through excusable inadvertence can not in any case be evidence of malice. While express malice may be shown by hatred or individual spite or malevolence as between individuals, still this can not be so as against a corporation, in which case it must be established by evidence of a wrongful act intentionally done, without.¡just. Cause or excuse, as where a publication clearly appears to have been made with reckless disregard of another.</p> <p>4. Though truth be not pled by defendant, still the issue is raised jf , plaintiff offers evidence as part of his case tending to show the . falsity of the charges. Presentation of such issue renders it necessary to submit the case to the jury, it being essential for this question to be first determined, prior to the issue of privilege and malice.</p> <p>5. The filing, of an affidavit and the issuance of a warrant causes the . . jurisdiction of the police court to at once attach, resulting in the pendency of a criminal .case therein, which is in no wise affected by the entry of the words “Affidavit withdrawn July 22, 1913, on a record not official.”</p> <p>In the absence of testimony to the contrary the date of the filing of the affidavit is controlling for all purposes, especially if a publisher claims privilege in reliance thereon in a cause for" libel. Where the file marks of the affidavit and the issuance of the warrant date as April 21, 1913, such date is controlling, although the clerk is unable to state what date is correct. The fact that no official record was made of the filing of the affidavit and the issuance of the warrant is immaterial because the record is but the record of the fact.</p> <p>6. The constitutional provision vesting the supreme executive power • of the state in the Governor (Article I, Section 5) clothes the Governor with important political power and police power, vesting such officer with the exclusive discretion and judgment in its exercise, for him to determine and for what purpose and how he shall use such power. Pursuant to such power such officer has the right to make investigation into frauds in the use of the initiative and referendum, and may call to his assistance the Attorney-General, and* other assistants, all such dots, information, facts, done and performed in this behalf constituting a “proceeding”.' within the meaning of Section 11343-1 rendering fair and impartial publication of reports of proceedings before state officers privileged, unless the same be ’ published maliciously.</p> <p>[Syllabus..by the court.]</p>

<p>FAILURE TO PROVIDE NOT ALONE GROUND FOR. DIVORCE.</p> <p>Divorce and Alimony — Gross Neglect of Duty Not Shown by Mere Failure to Provide — Nor by Mere Absence — Indignity, Aggravation or Insult to Wife Not a Gonseguence of Husband’s Refusal to Work.</p> <p>Mere failure to provide does not constitute ground for divorce in this state, where not accompanied by such circumstances of aggravation or indignity as would warrant it being termed gross neglect of duty.</p>

<p>ACCEPTANCE OF AN AWARD FROM THE STATE INSURANCE FUND DOES NOT BAR. AN ACTION AGAINST THE TORT FEASOR..</p> <p>Bunds Awarded by the Industrial Commission — In the Nature of an Occupation Tax upon Employers — Compensation under the Ohio Act and Damages under the Common Law Distinguished — Acceptance of an Award by the Industrial Commission and Recovery from the Negligent Tort-Feasor Not a Double Recovery for a Single Wrong.</p> <p>When a workman has been killed by the actionable negligence of a third person, the fact that his personal representative has already received payment from the state insurance fund under the workmen’s compensation act will not prevent such representative from maintaining an action against the tort-feasor for damages for causing the death. Nor will the fact that the tort-feasor himself also contributes to the state fund affect his liability.</p>

<p>NO CLAIM FOR. WRONGFUL EVICTION.</p> <p>Landlord and Tenant — No Liability in Tort for Damages — Where Premises Are Surrendered After Judgment of Eviction.</p> <p>A tenant who surrendered possession of premises after a judgment of eviction had heen rendered against him by a magistrate has no claim against the landlord in tort for damages because of an unjustifiable eviction.</p>

<p>VALIDITY OF CONTRACT FOR. FREE TRANSPORTATION IN EXCHANGE FOR. PROPERTY.</p> <p>Contracts — Land Conveyed to Railway Company in Consideration of Free Transportation — Transportation Withdrawn by the Company in View of the Provisions of the Hepburn Act — Right of the Land Owner to Maintain an Action in Ejectment Upheld.</p> <p>S in 1887 conveyed to the railway company certain parcels of land for the nominal consideration of one dollar and there was a recital in the deed as follows:</p> <p>“Provided nevertheless, and this conveyance is upon this express condition, that for and during their natural lives, the said Charles W. Short, his wife and children, all and each shall have free transportation for themselves on any of the trains of said Cincinnati, Indianapolis, St. Louis & Chicago Railway, and all its branches, and that for said Short and his wife and each of them all the passenger .trains of said company shall and will when so requested stop at the station at Fern Bank or at,any other point on said road or any of its branches where said Short and wife or either of them may at any time be residing or sojourning.- The privileges named in this condition constitute the real consideration for this deed, and the acceptance of the deed by said C., I., St. L. & C. Railway Company shall he taken as an agreement by said company to all the terms set forth in said condition; and if at any time said company shall refuse or fail to comply with the terms of said condition, the title to said property, hereby conveyed, shall immediately revert to said Charles W. Short and his heirs, who may re-enter upon and take possession thereof as fully and completely as if this conveyance had not been made, anything herein to the contrary notwithstanding.” Held:</p> <p>1. That upon the failure of the railway company to grant the transportation provided for in the condition of the deed, an action in ejectment may be maintained.</p> <p>2. The defense that the railway company, being unable to comply with the performance of the condition for the giving of free transportation by reason of the fact that under the provisions of the Hepburn act of June 29, 1906 (34 Stat. at L„ 587, Chap. 3591, Comp. Stat., 1913, Section 8569), Section 2, the said giving of free transportation is prohibited, the estate becomes absolute in the railway company, will not be available to defeat said action in ejectment.</p> <p>3. The fact that the statutes of Indiana and the statutes of Ohio pro- ■' hibit the giving of transportation in the same manner and to the same extent in regard to intrastate journeys as the Hepburn act does in regard to interstate journeys, will not justify the railway company in refusing to grant the transportation provided for in the condition of the deed, in so far as'purely intrastate journeys are concerned.</p> <p>4. Persons making contracts in regard to free transportation that is purely intrastate', in so far as any prohibition subsequently sought to be made by the state or states against such contracts is concerned, have the protection afforded by Article I, Section 10, of the Federal Constitution, providing that no state may pass any law impairing the obligations of contractors, and of- Section 1 of the Fourteenth Amendment of the Federal Constitution, providing that no state shall make or enforce any law which shall deprive any person of life, liberty or property without due process of law.</p> <p>5. There is nothing in the language of the aforesaid condition that compels the court to construe its provisions as entire, and therefore the court will apply the well known principle that where one for a valid consideration agrees to do one or more things, one of which may be illegal, he may, nevertheless, be compelled to do the other or others.</p> <p>6. If it shall appear that under the court’s order of ejectment in such a case the rights of the public are being interfered with, the court will stay proceedings until steps have been taken to preserve the rights of the public.</p>

<p>RIGHTS IN A PARTY WALL.</p> <p>Buildings — Signs Painted on a Party Wall — Can Not be Obliterated or Interfered With by the Oumer or Lessee of the Adjoining Building of Which the Wall Forms a Part.</p> <p>A party to an agreement, under which a party wall was erected by the parties, which wall stands half upon the land of each, may use the side of the wall resting upon his own land for any purpose which does not impair its strength or interfere with its use as a party wall, and, therefore, will not be enjoined from painting a business sign on his side of such wall.</p>

<p>MUNICIPALITY A MERE VOLUNTEER. IN REPAIRING BRIDGE.</p> <p>Bridge — Located on a Free Turnpike — Interurban Railtoay Company Liable for Repairs Under Contraed with County Commissioners— Locality of Bridge Annexed to City, Which Made Repairs — But in so Doing Was a Mere Volunteer and Can Not Recover Cost of Repairs from Interurban Company.</p> <p>1. The duty of repairing bridges over streams on free turnpikes and county roads is, under the provisions of Section 2421 and Section 7557, General Code, vested entirely in the county commissioners, and the county commissioners being chargeable with this duty can not be relieved by the annexation of the territory in which such bridge exists by a municipal corporation, and when, by contract with the county commissioners, an interurban railway company using that bridge agrees to perform, at the instance and direction of the county commissioners, this duty of repair, the county commissioners alone can determine when the necessity for such repair exists and alone can enforce the contract, notwithstanding the annexation of the territory.</p> <p>2. Section 3714, General Code, prescribing the statutory duty of a municipality with reference to bridges, streets, highways, etc., within the municipality, is not in conflict with Section 2421 of the General Code and its kindred section, 7557, General Code.</p> <p>3. Where a municipal corporation, after annexation of the territory containing such a bridge as is provided for in Section 2421 and Section 7557, General Code, undertakes to repair the bridge after notice to an interurban railway company using said bridges, which, by the terms of its franchise granted by the county commissioners, is compelled to keep in repair when notified of the necessity thereof by the said county commissioners, the said municipal corporation will be regarded as a mere volunteer and will not be permitted to recover the cost of repairing said bridge.</p>

<p>FUNDS FOR. REBUILDING COUNTY ROADS WITHIN MUNICIPAL LIMITS.</p> <p>Limitations on Authority of County Commissioners — May Repair but Not Reconstruct — And Repairs May be Carried Only to Point Where the Street Sas Been Curbed and Guttered — Emergency Funds May Not be Used for Rebuilding a Worn Out Road — Sections SUJh Vf19 and Ufi®.</p> <p>1. Emergency funds, raised under Section 7419, can not be used by county commissioners for rebuilding a worn out road, nor can a contribution be made from such funds toward the rebuilding of that part of such a road which lies within municipal limits.</p> <p>2. The jurisdiction of county commissioners over a road lying within the limits of a municipality is limited to the repair of such a road up to the point where the sidewalks have been curbed and guttered, and no further.</p> <p>3. The funds available for repair of a road within municipal limits are those raised under Section 7422 rather than Section 7419, G. C.</p>

<p>MAINTENANCE OF A COUNTY HOSPITAL FOR. THE INSANE.</p> <p>Insane. Asylums — Though Public Are Not Necessarily State Institutions — May be Built by County Taxation — Bonds May be Issued by County Commissioners — For New Buildings or Repair of those in Existence — Power of County Commissioners Under Section 2333.</p> <p>Longview Hospital, formerly known as Longview Asylum, was founded by Hamilton county from the funds raised by local taxation on the property in that county, and all the property belonging to that institution is owned by the county, and the commissioners of Hamilton county, the necessary statutory steps having been taken under Section 2333 of the General Code, have authority to issue bonds for the purpose of repairing buildings belonging to that institution or erecting buildings necessary for the proper administration of that institution, and they have like- authority under Section 2434 of the General Code.</p>

<p>STATUS OF PREFERRED STOCK ISSUED IN THE PURCHASE OF THE ASSETS OF ANOTHER. CORPORATION.</p> <p>Corporations — Dividends on Preferred Stock Limited to Those Prescribed in the Certificate — Not Invested With Profit Participating Quality of Common Stock — By Reason of Failure of Charter to Authorize an Issue of Preferred Stock — Acquiescence in the Provisions of a Contract — Meaning of the Word “Share.”</p> <p>1. Where the entire assets of a corporation are sold to another company, and payment is made by issuing to the stockholders of the selling company shares in the purchasing company which are cumulative and preferred both as to dividends and assets, redeemable at any time at par with accrued dividends at the option of the purchasing company, the holders of said preferred stock have no right to demand a rate of dividend higher than that named in the certificate or to share in the dividends which are being paid on the common stock.</p> <p>2. Absence from a certificate of incorporation of any provision for issuing preferred stock does not change the temporary character of preferred stock which may have been issued in payment for the assets of another company, or invest it with profit sharing qualities in addition to its interest bearing and preferential character.</p> <p>3. Stockholders of a failing corporation, almost unanimously voting to sell its property to another corporation, accepting in payment thereof from the purchasing company preferred stock, having representation on the board of directors receiving notice and voting to issue stock dividends to the holders of common stock, and taking the stipulated dividends for several years, the preferred stock directors being present at all meetings of the board - of directors and never objecting to such issues of stock dividends, thereby indicate that they construe the contract to be an acceptance of preferred stock with fixed though not participating dividends, and the purchaser of shares of such preferred stock from an original holder has no better or different rights to change the temporary character of such stock to profit participating common stock.</p> <p>4. The term, “share,” as applied to corporate stock contains no magic to destroy the right of contract, or to make preferred stock with specific dividend limitations profit sharing when common stock is • voted as stock dividends.</p> <p>5. A certificate of preferred stock, expressing on its face a limitation of interest rate and providing for a fixed preferential cumulative dividend, is a contract for a dividend that can not he changed or passed by the corporation issuing it and which the holder ' must receive if profits are realized.</p>

<p>AUTHORITY TO SUSPEND SENTENCE.</p> <p>Sentence — Authority to Suspend — Conditional Suspensions — Court 'Without Jurisdiction After Term, — Waiver hy Defendant of Right to Apply for Suspension.</p> <p>1. A court is without jurisdiction to suspend a sentence after the term has passed at which the sentence was imposed.</p> <p>2. An application for suspension of sentence in order to enable the defendant to prosecute error is a waiver of any right to apply at a later date for an indefinite suspension or a suspension during good behaviour, subject to the terms of probation provided by law.</p>

<p>PROOF OF A TRANSFER. OF CORPORATE STOCK.</p> <p>Corporations — Admissibility of Entries in Stoclc Ledger — For Purpose of Showing Transfer of Stoclc — Possession of Certificate, Unendorsed, Not Conclusive Evidence of Ownership — Waiver of Provision for Endorsement and Surrender May be Inferred, When.</p> <p>1. Entries, in the stock ledger of a bank of the purchase and sale of bank stock by a one-time stockholder, shown to have been made in pursuance of duty by a deceased clerk, are admissible upon the issue of title to the stock. The admissibility of such entries rests upon the probability of truth in a contemporaneous and regular record, and is not destroyed by the circumstance that the entries are or may become self-serving in character.</p> <p>2. The possession of a certificate of stock, transferable only by endorsement and surrender, is evidence of ownership of the stock described, but such evidence is not conclusive of ownership. The stipulation for endorsement and surrender of the certificate, before transfer of the stock, may be mutually waived by the corporation and the stockholder, and such waiver will be inferred from a regular entry of such transfer in the stock ledger of the corporation, taken in connection with circumstances which make any other inference highly improbable.</p> <p>3. R in 1865 became the owner of 30 shares of stock of defendant bank, evidenced by stock certificate; for two years he received dividends on the stock, but from 1867 till his death in 1895 he collected no dividends, though dividends were declared semi-annually, and he failed to vote at stockholders’ meetings. He suffered a financial decline and died leaving no visible estate. Seventeen years after his death, and forty-five after he was last known as a stockholder of defendant bank, the original certificate, unendorsed, was found among his papers. The certificate provided on its face that the stock was transferable only on the books of the bank upon surrender of the certificate properly endorsed.</p> <p>The bank records for the period in question are lost or destroyed, save for an old “stock'ledger” wherein, in 1865, R is credited with the purchase of 30 shares of stock, and in 1867 is charged with -tjie sale thereof to one “C.” ' ,</p> <p>It appearing that the stock ledger was in the handwriting of a clerk or cashier, now deceased, and that it was the duty of the clerk to keep such record</p> <p>Held, the ledger entries are admissible on the issue of ownership.</p>

<p>SALOON LICENSE NOT SUBJECT TO EXECUTION.</p> <p>Execution — Saloon License Not Property But a Mere Privilege — Not Subject to Levy and Execution.</p> <p>A saloon license is not personal property, in this state, in the sense that it is subject to levy and execution.</p>

<p>ILLEGAL ERECTION AND MAINTENANCE OF SCALES IN A PUBLIC STREET.</p> <p>Municipal Corporations — Without Power to Authorize the Placing of Wagon Scales in a Public Street for Private Benefit — Scales Placed in the Street Create a Nuisance, When.</p> <p>1. A municipal council is without authority to grant the right to place wagon scales in a public street for the benefit of an abutting owner or any private interest.</p> <p>2. Where scales so placed in the street obstruct the gutter and cause surface water to collect and become stagnant, foul and to give rise to offensive odors, and interfere with ingress and egress of abutting property owners, teams drawing loads to be weighed and using the untrav.eled part of the street increases the amount of mud in wet weather and dust in dry weather, of litter and refuse which accumulates in the street, a nuisance is created against which injunction lies.</p>

<p>FAILURE TO RECOVER. FOR. STREET LIGHTING.</p> <p>Municipal Corporations — Action for Gas Furnished to a Tillage Prior to Annexation — Claim, Fails Because of Failure to Shoio an Agreement to Pay for the Service.</p> <p>The contract for lighting the streets of the village of Hartwell having expired prior to the rendition of the service for which judgment is asked, and the claim resting on quantum meruit only, no recovery can be had for the service rendered.</p>