Volume 19 — Ohio Circuit Court Decisions

Where a railroad company uses the tracks of its road across generally traveled public streets in a populous town or city, it should maintain a flagman or gates and gatemen at such crossing. Clev. C. C. t& I. By. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; Pennsylvania By. v. Matthews, 36 N. J. Law 531; New York, C. & Si. L. By. v. Swartout, 6 Circ. Dec. 768 (14 R. 582). It is not contributory negligence' to approach a railway crossing in a city with a horse trotting.

A city council cannot by passing a single ordinance authorize the issue of bonds to raise funds to pay the city’s part of thirty-two different improvements. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; Campbell-v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606]; Rev. Stat. 2706,' 2708 (Lan. 4010, 4012). The ordinance authorizing the issue of the bonds in question was . prematurely passed.

<p>TRUSTS AND TRUSTEES.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Duty op Trustee to Distinctly Designate an Investment of the Trust Fund as Such Fund.</p> <p>A change in the investment of a trust fund being made by the trustee without any specific designation of the new investment at the time of the change as that of the trust fund, but leaving it open so as to make it possible for him to claim it as his own should it be profitable or treat it as the trust should it prove disastrous, the cestuis que trustent can elect whether they will consider the investment as made of the trust fund or require the trustee to account for the trust and a reasonable income from it. ,</p> <p>[For other cases in point, see 7 Cyc. Dig., “Trusts and Trustees,” §§ 356-361. — Ed.]</p> <p>2. Remainder-man op Income of Trust Funds not Bound by Election of Life Cestui Que Trust.</p> <p>The income of a trust fund being bequeathed to a legatee and at her demise her share to go to her surviving children, such children after the demise of their mother are not bound by any election or ratification of the changes in the investment of the trust fund which proves injurious to such children.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Remainders,” §§ 15, 16.' — Ed.]</p> <p>[Syllabus approved by the eou.t.]</p>

<p>OFFICE AND OFFICERS — PRINCIPAL AND SURETIES.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Sureties op Public Official not Liable for Malfeasance of Duties not Legally His.</p> <p>The sureties on the bond of a clerk of a board of education are not liable for his appropriation of moneys that have come to him while such clerk but the collection of which legally devolved upon the treasurer of the board.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Bonds,” §§ 503-520; 7 Cyc. Dig., “Schools and School Districts,” §§ 197-205. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

“Is the scienter necessary to be averred in the indictment when the statute does not in express terms make the knowledge of the age of the female persons a constituent part of the crime?” Anderson v. State, 7 Ohio (pt. 2) 250; Birney v. State, 8 Ohio 230; Miller v. State, 3 Ohio St. 475; Ault father v. State, 4 Ohio St. 467; Crabtree v. State, 30 Ohio St. 382; Farrell v. State, 32 Ohio St. 456 [30 Am. Rep. 614] ; State v. Morton, 8 Wis. 167; 21 Am. & Eng. Ene.

The plaintiff while employed in the wagon factory of the defendant was directed by the defendant, in person, to assist in taking the “taps” or burrs from the axles of a wagon and raise it to the second floor on the elevator. The taps were removed1, and the wagon was then run onto the elevator which was raised- by a rope running over pulleys. When five or six feet high one of the wheels, having no tap or burr .to hold it on, came off and fell to the> floor.

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

<p>JURY — NEGLIGENCE—CHARGE TO JURY.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. CHARGE THAT TO JUMP FROM MOVING TRAIN AFTER BEING WARNED IS NEGLIGENCE PER SE, WITHOUT CONSIDERING OTHER CIRCUMSTANCES, NOT PREJUDICIAL Error ip no Excuse for Jumping Actually Appears from the Evidence.</p> <p>A charge to the jury, in an action for damages for personal injury, brought by a woman who had. been hurt in falling from a moving train which had been prematurely started, that if plaintiff jumped from the train at a time when it was moving and after being warned by the conductor that the train was moving and that she should not jump, she was guilty of contributory negligence and could not recover although defendant may have been negligent in starting the train, is not error prejudicial to plaintiff where there is nothing in the evidence as to surrounding circumstances wherefrom any excuse for plaintiff’s conduct,may be found.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Carriers,” §§ 537 et se<].; 6 Cyc. Dig., “Negligence,” ,§§ 339-348, 762-781. — Ed.]</p> <p>2. Overruling Challenge for Cause not Prejudicial Error where Peremptory Challenges not All Used.</p> <p>Where a juror states that he is a railroad man employed on a railroad which he says he understands has some connection with the defendant railroad company and is therefore challenged by plaintiff for cause, It is not reversible error for the court to overrule such challenge where the plaintiff still has peremptory challenges left and does not use .them all, even after exercising one in the case of this juror.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Jury,” §§ 372-374. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>CONSTITUTIONAL LAW — SCHOOLS—STATUTES.</p> <p>Wilson, Dustin and Sullivan, JJ.'</p> <p>The Provision of Rev. Stat. 3968 (Lan. 6440) for Bonds by some Approved Surety Company is . Directory, and therefore not Unconstitutional.</p> <p>Tbe primary purpose of Rev. Stat. 3968 (Lan. 6440) providing for tbe deposit upon competitive bidding of moneys coming into tbe bands of a board of education was to derive a revenue from tbe surplus school funds, and the provision that tbe designated depository should give a bond “of some approved surety company” was enacted for tbe purpose of requiring a good lawful bond and was merely incidental to th# ■ primary object; it is, therefore, merely directory in its nature, and will not operate to nullify tbe other provisions of tbe act.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Constitutional Law,” § 1766; 7 Cyc. Dig., “Statutes,” §§. 250-256. — Ed.]</p>

<p>ASSESSMENTS — SEWERS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Where New Sewep. not in Use Assessment not Enforcible.</p> <p>Where property is supplied with sufficient local drainage, an assessment for a new and better sewer system which is not yet fully available for use and has not been tapped by the complaining property owners will not be ' enforcible until such time as the new sewer is tapped.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 600-631, 707-714 — Ed.]</p>

<p>HIGHWAYS — MUNICIPAL CORPORATIONS — SEWERS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1 Public Highway Outside City may be Used for Storm Water Sewer to Drain Streets of City Adjacent Thereto, not Additional Burden.</p> <p>The construction of a sewer along a street in a city and out on a public highway beyond the municipal corporate limits, designed as a storm and surface water sewer to drain the streets and public ways of the city in the sewer district adjacent thereto and to empty into a creek on land just outside the corporate limits, is such a use of the public highway as was in law contemplated by the original proprietors of the adjacent land when they dedicated the land in the highway to the public use. Such construction will not be enjoined at the instance of an adjacent proprietor as being burden in addition to the regular public easement in the highway.</p> <p>[Por other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1176-1182, 2033-2043. — Ed.]</p> <p>2. Storm and Surface Water Sewer -along Highway and Emptying into Creek may not be Used also for Sewerage Purposes without Appropriating Right from Adjacent Owners.</p> <p>While a sewer designed to drain the streets and public ways of a city in the adjacent sewer district and extending along a public highway beyond the city limits may lawfully be constructed in such highway, it may not lawfully be used for sewerage purposes to the injury of private property adjacent to its outlet until the city constructing such sewer has acquired the necessary right by appropriation proceedings. Such use for sewerage purposes will be enjoined at the instance of a private owner injured thereby until such right has been lawfully acquired.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 256-268. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>LANDLORD AND TENANT — PARTITION—VENDOR AND ?UR= CHASER.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Right to Possession oe Premises Sold on Partition between Sale and Confirmation of Sale.</p> <p>The lessee of land sold on partition is liable for rent for the occupation of the premises for the period from the sale to the confirmation and execution of the deed, and the purchaser not being entitled to possession for that period is not bound to pay rent for such period.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Vendor and Purchaser,” §§ 192-195. — Ed.]</p>

<p>INJUNCTION — TRESPASS.</p> <p>Jeike, Swing and G-iffen, JJ.</p> <p>Right to Injunctioh to Permit Trespass by Persons Claimixg Titee to Premises.</p> <p>A person in possession and claiming title to an estate which the defendant also claims and is threatening acts which will amount to a destruction of the estate may enjoin such defendant from doing such acts until the disputed title to the premises can he determined.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 430-436; 7 Cyc. Dig., “Trespass,” §§ 54-60. — Ed.]</p>

<p>ASSESSM ENTS — DAM AGES — ESTOPPEL.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Damages for Appropriating Property and Costs Cannot be Included in Assessment for Improvement.</p> <p>An assessment for a street improvement insofar as it includes damages awarded to the property owners, the costs of the suit to assess compen- ■ sation therefor, or the cost of grading or lowering the street to the new grade is illegal and may he enjoined.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Eminent Domain,” §§ 436-438; 6 Cyc. Dig., “Municipal Corporations,” §§ 1639-1645. — Ed.]</p> <p>2. Incidental Benefits Blended with Incidental Injuries Considered bt Jury.</p> <p>In an action to assess damages to abutting property on account of a proposed street improvement, the jury, while disregarding the general benefits which may result to the property, may consider an incidental benefit which is blended with an incidental injury, for the purpose of arriving at the extent of the injury sustained by the property.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” § 1449 et seq. — Ed.]</p> <p>3. Signer of Original Petition not Estopped from Contesting Assessment for Improvement on Subsequent Petition not Signed by Him.</p> <p>The signing by an abutting owner, of a petition for improvement of a street to a certain grade, does not estop him from. contesting the legality of the assessment, where the original petition was referred back to the property owners with the direction to file a new petition for an improvement at a different grade, and the second petition was not signed by the contesting owner.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 45-60; 6 Cyc. Dig., “Municipal Corporations,” §§ 1213-1216, 1279. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

When a contract is clear and unambiguous there is no reason for a construction. 2 Parsons,' Contracts 500; Beach, Contracts 854; Laivler v. Burt, 7 Ohio St. 350. There can be no recognized standard of satisfaction for personal services. Beach, Contracts 130. The employer is to be the sole judge. Sax v. Railway, 125 Mich. 252 [84 N. W. Rep. 314; 84 Am. St. Rep. 572]; Barrett v. Goal & G. Go. 51 W. Va.. 416 [41 S. E. Rep. 220; 90 Am. St. Rep. 802]; Adams Radiator & B. Whs.

The burden of proof is upon the plaintiff not only to establish that he was the owner of the land upon which these tracks were placed at the time they were taken up, but that they were placed there as permanent additions to the real estate. Tewff v. Hewitt, 1 Ohio St. 511 [59 Am. Dec. 634], Plaintiff had no title to the ground on which the tracks were located. Day v. Railway, 41 Ohio St. 392; Goodin v. Canal Co. 18 Ohio St. 169 [98 Am.

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

<p>CARRIERS — DAMAGES—STREET RAILWAYS.</p> <p>Donahue an.d Taggart, JJ.</p> <p>(Judge McCarty not sitting.)</p> <p>Street Railway Company Liable for Conductor's Wilfully and Maliciously EJECTING PASSENGER' — PUNITIVE DAMAGES MAY BE ASSESSED.</p> <p>It is the duty of the conductor of a traction car to control and manage said car, and, if necessary to preserve peace and order, to eject a passenger from said car, but 'if the conductor, while in the line of his duty and while engaged in said employment, acts in a wilful and malicious manner toward a passenger, his employer, the traction company, is liable in damages. Such damages may be punitiye, as a corporation may be liable in punitive damages for an act of its employe under circumstances which would render a natural person liable in the same way if the same acts were committed by him acting for himself.</p> <p>[Syllabus approved by the court.]</p>

<p>ADVERSE POSSESSION — EASEMENTS—EVIDENCE.</p> <p>Donahue and Taggart, JJ:</p> <p>1. Building or Permanent Structure on Another’s Land Is Notice of Claim of Ownership — Owner Permitting such Erection without Asserting his Rights Left to i-iis Remedy at Law.</p> <p>The building of a permanent structure on another man’s land is notice of a claim of ownership and the occupancy of this- real estate with such an improvement is hostile and adverse possession, unless it be by virtue of a contract duly executed. Nor need this occupancy continue for the full twenty-one years, for if the landowner permit such building without protest or warning and without promptly asserting his right" he will be left to his remedy at law.</p> <p>2. Doubt as to Location oip Old Fence Resolved against the One Who has DESTROYED It WITHOUT CONSULTING ADJACENT OWNER.</p> <p>In an action brought to dispossess one who has built a new line fence over on plaintiff’s land from the strip thus acquired, the question whether the new fence has heen placed on the line of the old one will be resolved in favor of the plaintiff on evidence that defendant told plaintiff and one witness, on his attention being called to the location of the new fence -off from the old line, that the new fence was on the proper line as established by a recent survey, and made no claim that it was placed on the old line, as then was the proper time for him to assert the claim on which he later relied. Having destroyed the old fence without consulting the adjacent proprietor and- having removed the evidence of the location thereof, defendant will have all doubt resolved against him in such a dispute.</p> <p>8. Right to Maintain Projecting Eave Becomes Absolute after Twenty-one Years.</p> <p>The right to maintain an eave projecting over and above an adjacent owner’s land becomes absolute after twenty-one years’ enjoyment the same as the right to maintain a foundation or the rest of the superstructure.</p> <p>[Syllabus approved by the court.]</p>

The contract is valid, considered as one in partial restraint of trade for it complies with all the requirements of an enforcible contract in restraint of trade. Lange v. Werk, 2 Ohio St. 519; Grasselli v. Lowden, 11 Ohio St. 349. Contracts to sell exclusively certain products are not against public policy. 24 Am. & Eng. Enc. Law (2 ed.) 855; Anheuser-Busch 'Breiu. Assn. v. Houck, 27 S. W. Rep. 692 (Tex. App.); L. R. 4 Chan. 654.

<p>BANKS AND BANKING — FORGERY.</p> <p>Marvin and Winch, JJ.</p> <p>Savings Bank Negligent not to have Detected the Dipeeeence between Forged Signature oe Depositor and the Real One in Their Possession— Depositor mat Recover though Bank not Notified of Loss of Pass Book.</p> <p>A savings hank which has paid out all of a deposit on a forged order purporting to have been written by the depositor, accompanied by the pass book which had been lost by or stolen from the depositor, is liable to the depositor for the amount thus paid out if the forged signature was written “Anderson,” and the depositor’s signature, written on a card at the time of opening his account, was “Anderssor..” It is negligence in the.bank not to have detected and been warned by the discrepancy and the rule to which the depositor has subscribed, that he must notify the bank if his pass book be lost or stolen, will not defeat his recovery though he has failed to observe it.</p>

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

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

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

EbROE to Huron common pleas court. A village is not liable for an injury to the driver of a team resulting from an obstruction in the margin of a street in the outskirts of the village, the street being unobstructed for such a width as public necessity or convenience reasonably required. Rankin (Vil.) v-. Smith, 63 Ill. App. 522; Jones, Negligence of Mun. Corp. 146; Williams, Mun. Torts 134, 142; 2 Dillon, Mun. Corp. Sec. 1008, p. 1024.

<p>ERROR.</p> <p>'Marvin, Winch and Henry, JJ.</p> <p>1, Necessity of Transcript of Final Record in Error Proceedings.</p> <p>If the functions conferred upon the mayor and judge by the Jones law (98 O. L. 68; Rev. Stat. 4364-30a et seq.; Lan. 7283a et seq.), are' of a judicial nature, then the proceedings in error provided for in Sec. 12 of said law come-within the requirements óf Rev. Stat. 6716 (Lan. 10308), and a transcript of the final record, or of the docket or journal entries, must be filed with the petition in error. If said functions are of. a ministerial nature, then said Sec. 12 of the Jones law is unconstitutional, being an attempt to confer original jurisdiction upon the circuit court in excess of that limited by Art. 12, Sec. 6 of the constitution.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1209-1221. — Ed.]</p> <p>2. Jurisdiction of Circuit Court on Error Proceedings.</p> <p>Where a motion for leave to file a petition in error and a petition in error are both filed with the clerk of the circuit court within the fifteen days 1 limited by Sec. 12 of the Jones law, but during vacation: Quaere, can1 the circuit court, when thereafter duly convened in session, grant said! motion and entertain consideration of said petition in error?</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 65-72» — Ed.]</p> <p>[Syllabus by the coui>t]</p>

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

<p>CONTRACTS — PARTIES—WORDS AND PHRASES.</p> <p>Cook, Burrows and Laubie, JJ.</p> <p>1. Pbofer Parties Plaintiff in Action to Recover Royalty.</p> <p>An action to recover for the royalty due upon á sale of coal in place, is-a personal action, and must be brought in the name of the personal representative and not in the name of the heirs at law, although the estate is otherwise fully settled up.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Executors and Administrators," §§ 178-181 — Ed.]</p> <p>2. When Phrase Used in Contract may be Explained by Parol Evidence.</p> <p>Where a contract for the sale of coal in place provides that royalty shall . be paid upon all merchantable cóal mined, parol evidence is admissible to show that in the locality where the coal was situate and the contract made, the phrase “merchantable coal" had a special signification and was so used and understood by the parties to the contract</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence," §§ 3061-3067. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Marvin, Henry and Wildman, JJ.</p> <p>(Judge Wildman of the sixth circuit, sitting in place of Judge Winch.)</p> <p>Validity of Building Regulation.</p> <p>A city may, in the exercise of its police power, enact and enforce a building regulation requiring that “all walls built adjoining interior property lines shall be ‘dead’ or solid fire walls,” such a regulation not being unreasonable, and an owner having secured a building permit on a plan showing such a wall cannot enjoin the revocation of such permit when he changes the plan and inserts windows in such wall.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1759-1760. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

Right of commissioners to maintain action in their own name. Hamilton Co. {Comrs.) v. Noyes, 36 Ohio St. 201; Jones v Commissioners, 5 Circ. Dee. 152 (11 R. 136); Jones v. Lucas Co. {Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], If the officer draws an illegal fee how can it be recovered back?

<p>ACCORD AND SATISFACTION — MARRIAGE.</p> <p>Sullivan, Wilson and Dustin, JJ</p> <p>Compromise of Breach of Promise of Marriage not Enforcible Where Party (Jives up no Rights by Reason Thereof.</p> <p>An agreement by the terms of which one party agrees to pay the other a sum of money and each agrees to release the other from all obligations on a breach of contract of marriage, is not enforcible as an accord and satisfaction against the party promising to pay, when the plaintiff shows no right nor advantage yielded up by reason of the agreement.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Accord and Satisfaction,” §§ 7-10. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>CORPORATIONS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Proper Party Plaintiff to Recover Converted Corporate Funds,</p> <p>When officers of a corporation have converted corporate funds to their own uste, the corporation or a person who is a stockholder at the time suit is brought, suing in the name of the corporation, is a proper party plaintiff to recover such funds; but if a dividend previously declared has been converted, then any person holding stock at the time of the conversion can maintain such action in his own name.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Corporations,” §§ 764-766.— Ed.]</p> <p>[Proofs of this decision and syllabus were submitted to Judge Winch and corrected.]</p>

<p>Error to Ross common pleas court.</p> <p>Cited and commented on the following'1 authorities. Bacon, Ben. Soc. (Joyce) Secs, la, 2 and 3. Bacon, Ben. Soc. Secs. 51-78, 162, 243, 291a, 304, 307, 312; Joyce, Insurance Secs. 735, 741, 817, 818; Masonic Ben. Assn. v. Btinch, 109 Mo. 560 [19 S. W. Rep'. 25]; Tyler v. Belief Assn. 145 Mass. 134 [13 N. E. Rep. 360] ; Screuimen’s Ben. Assn. v. Wliitridge, 95 Texas 539 [68 S. W. Rep. 501] ; Halle v. Grand Lodge, 24 O. C. C. 717; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408]; Arthur v. Beneficial Assn. 29 Ohio St. 557; Holland v. Taylor, 111 Ind. 121 [12 N. E. Rep. 116] ; De Silva v. Supreme Council, 109 Cal. 373 [42 Pac. Rep. 32]; American Legion v. Smith, 45 N. Y. Eq. 466'[17 Atl. Rep. 770] ; Schonfield v. Turner, 75 Tex. 324 [12 S. W. Rep. 626; 7 L. R. A. 189] ; Nieblack, Ben. Soe. & Aec. Ins. See. 164; Elsey v. Belief Assn. 142 Mass. 224 [7 N. E. Rep. 844] ; Eastman v. Belief Assn. 62 N. IT. 555; Rellenberg v. Independent Order of B. B. 94 N. Y-. 580; Order of Mut. Companions v. Griest, 76 Cal. 494 [18 Pac. Rep. 652] ; Supreme Council A. L. of II. v. Gehrenbeck, 124 Cal. 43 [56 Pac. Rep. 640] ; Warner v. Woodmen of America, 67 Neb. 233 [93 N. W. Rep. 233; 61 L. R. A. 603] ; Worley v. Masonic Aid Assn. 10 Fed. Rep. 227; Overhiser v. Overhiser, 63 Ohio St. 77 [57 N. E. Rep. 965; 50 L. R. A. 552; 81 Am. St. Rep. 612]; Knights of Golden Bule v. Ever ding, 11 Circ. Dec. 419 (20 R. 689) ; Connecticut Mut. Life Ins. Co. v. Schaefer, 4 O. F. D. 408 [94 U. S. 457; 24 L. Ed. 251] ; 97 O. L. 421 (Lan. 5809 et seq.); Brown v. Grand Lodge A. O. V. W. ,208 Pa. St. 101 [57 Atl. Rep. 176] ; Chartrand v. Brace, 16 Colo. 19 [26 Pac. Rep. 152; 12 L. R. A. 209; 25 Am. St. Rep. 235].</p> <p>Cited and commented on the following authorities: Constitution of Brotherhood of Railrqad Trainmen, Secs. 60, 62, 63, 65, 66; Revised Statutes 630 (Lan. 1043) ; Rev. Stat. 3631-11 to 3631-23 (repealed 97 O. L. 421; see Lan.- 5809 et seq.) ; State v. Bailway, 68 Ohio St. 9 [67 N. E. Rep. 93; 96 Am. St. Rep. 635]; State v. Vorys, 69 Ohio St. 56 [68 N. E. Rep. 580] ; Thesing v. Supreme Lodge, 11 Dec. Re. 88 (24 Bull. 401) ; Earley v. Earley, 13-23 O. C., C. 618; State v. Protection Assn. 26 Ohio St. 19; Tafel v. Supreme Commandery K. of G. B. 9 Dec. Re. 279 (12 Bull. 35) ; Connecticut Mut. Life Ins. Co. v. Schaefer, 4 O. F. D. 408 [94 U. S. 457; 24 L. Ed. 251]; Overhiser v. Overhiser, 63 Ohio St. 77 [5-7 N. E. Rep. 965; 50 L. R. A. 552; 81 Am. St. Rep. 612] ; Brown v. Grand Lodge A. O. U. TP. 208 Pa. St. 101 [57 Atl. Rep. 176] ; Haskins v. Kendal, 158 Mass. 224 [33 N. E. Rep. 495; 35 Am. St. Rep, 490]; Thomas v. Grand Lodge A. O. TJ. W. 12 Wash. 500 [41 Pac. Rep. 882]; Heyman v. Meyerhoff, 16 W. N. C. 212;.Bacon, Ben. Soc. Sec. 253; Joyce, Insurance Sec. 818; Tyler v. Belief Assn. 145 Mass. 134 [13 N. E. Rep. 360] ; Sanger v. Bothschild, 123 N. Y. 577 [26 N. E. Rep. 3] ; Leaf v. Leaf, 92 Ky. 166 [‡7 S. W. Rep. 354]; Elsey v. Belief Assn. 142 Mass. 224 [7 N. E. Rep. 844] ; Schonfield v. Turner, 75 Tex. 324 [12 S. W. Rep. 626; 7 L. R. A. 189]; American Legion v. Smith, 45 N. J. Eq. 466 [17 Atl. Rep. 770]; Overhiser v. Overhiser, 14 Colo. App. 1 [59 Pac. Rep. 75]; Knights of Golden Bule v. Everding, 11 Circ. Dec. 419 (20 R. 689).</p>

<p>DISMISSAL AND NONSUIT.</p> <p>Marvin, Henry and Wildman, JJ.</p> <p>(Judge Wildman of the sixth circuit, sitting in'place of Judge Winch.)</p> <p>1. Right to Dismissal without Pbejudice after Submission, Denied.</p> <p>A motion by defendant to direct a verdict in his favor, subihitted after plaintiff has rested, is in the nature of a demurrer to the evidence, and calls for a decision vital to the controversy; and, the court having sustained the motion, the case is finally submitted within the meaning of Rev. Stat. 5314 (Lan. 8830), and plaintiff cannot then ask for a dismissal without prejudice.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Dismissal and Nonsuit,” §§ 1-11.— Ed.]</p> <p>2. Bill of Exceptions not Puepoeting to Contain all the Evidence does not Authorize Review as to Whether Issue of Fact was Made.</p> <p>A bill of exceptions not purporting to contain all of the evidence offered by the plaintiff before resting, a reviewing court cannot determine, even under the scintilla rule, that there was an issue of fact proper to be submitted to the jury.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 19-47.— Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>DEFAULT — EXECUTION.</p> <p>Donabue, McCarty and Taggart, JJ.</p> <p>INJUNCTION WILL NOT LlE TO RESTRAIN EXECUTION OR DEFAULT JUDGMENT ON Cognovit Note.</p> <p>Execution on a judgment, rendered on a cognovit note, will not be restrained by injunction on tbe ground that defendant did not bave an opportunity to appear and make, defense, as sucb judgment implies appearance of tbe defendant.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” §§ 379-386. — Ed.]</p> <p>[Syllabus approved by tbe court.]</p>

<p>DAMAGES — SALES—WARRANTY.</p> <p>Haynes, Parker and Wildman, JJ,</p> <p>Implied Warranty of Goods does not Survive Acceptance by the Buyer.</p> <p>Under an implied warranty of fitness, it is the duty of the buyer of goods to notify the seller of any defective condition immediately upon discovery. Hence, where the buyer of a car-load of cabbages accepts the same, pays the price, and later, on discovering the cabbages to be frozen, stops payment of his check but sells a large part of the cabbages, he cannot afterwards set up an implied warranty that the cabbages should be marketable, as a basis for an action for the return of the purchase price, as by his retaining and selling part he waived his rights under the warranty.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Sales,” §§ 286-326. — Ed.]</p> <p>[Syllabus approved by the .court.]</p>

<p>BIGAMY.</p> <p>Norris, Hurin and Donnelly, JJ.</p> <p>Common-law Makriage, So-called, Invalid in Ohio as a Basis fob the Charge . oi' Bigamy.</p> <p>Cohabitation and acknowledgment of the marriage relation by a man and woman, but without statutory marriage, do not, in Ohio, constitute a valid marriage, on which an indictment for bigamy can be founded.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bigamy,” §§ 1-3. — Ed.]</p> <p>LSyllabus by the court.]</p>

<p>ASSESSMENTS — INTEREST.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Interest on Municipal Assessments Levied Before Passage op Rev. Stat. 1536-292 (Lan. 4017) should be Reduced by Amount of Premium on Sale op Bonds.</p> <p>Before the passage of Rev. Stat. 1536-292 (Lan. 4017), the premium obtained by the sale of bonds for municipal improvements should go to reduce the interest charged against property holders on their deferred assessment installments, and should not be applied to reduce the amount of such installments.</p> <p>[Por other cases in point, see 1 Cye. Dig., “Assessments,” § 299. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>Error to Wood common pleas court.</p> <p>. Estopped by silence.' 'Fisher v. Mossman, 11 Ohio St. 42; Pennsylvania Gor v. Platt, 47 Ohio St. 366 [25 N. E. Rep. 1028].</p> <p>' Judicial sales. 'Morgan v. Mason, 20 Ohio 401 [55 Am. Dec. 464] ; 17 Am. & Eng. Enc. Law (2 ed.) 960.</p>

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

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

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

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

<p>EVIDENCE — WILLS—REVOCATION.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. To Revoke a Will these must be a Positive Act with Intention.</p> <p>Whether or not there has been a revocation of a will is a question of the intention of the testator. To effect such revocation under Rev. Stat. 5953 (Lan. 9491), the're must be some positive act, either a total or partial destruction or obliteration, concurrent with the intent; and whether or not such intention exists is a question for the jury.</p> <p>2. Obliterating a Portion only does not Revoke a Will.</p> <p>Tearing a page from a will several years after execution thereof, with intention to revoke or cancel only the detached part, does not revoke the entire will; and where the part torn out has been preserved and reattached although by persons other than the testator, and remains legible, the whole will should be probated.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 143-148. — Ed.]</p> <p>3. Evidence Admissible to Snow Intent oe Testator in Destroying Parts oe Will.</p> <p>Testimony of an attorney as to statements made by the testator, concerning changes the latter wished to make in his will, is admissible, in a will case, as bearing on the intention of the testator in attempted destruction of certain pages of the will whether such statements were made before or after such act of attempted destruction.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2303-2310; 7 Cyc. Dig., “Wills,” §§ 354-380. — Ed.]</p> <p>[Syllabus approved by the’court.]</p>

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

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

<p>INJUNCTION.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Abutter Petitioning for Improvement may not Enjoin Collection op Assessments to Pay por Same, when Made as Requested, on Ground op Improper Construction.</p> <p>One who petitions a city for street improvement abutting on his property, te be made in a certain manner, may not enjoin the collection of assessments to pay for the improvement on the ground that it was improperly and negligently constructed, if the improvement is made in the manner asked for.</p> <p>[Syllabus approved by the court.]</p>

<p>MORTGAGES — TRUSTS—WILLS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. An Unrecorded Deed does not Effect a Purchaser at Judicial Sale.</p> <p>A deed of lands executed by a mortgagor thereof in 1843, not filed for record within six months of its execution, nor until after decree and sale* of' such lands in a suit to foreclose the mortgage, wherein the mortgagor was a defendant, to a bona fide purchaser without knowledge of such deed, is ineffective against the title so acquired at such judicial sale.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Bona Fide Purchaser,” §§ 256-267; 5 Cyc. Dig., “Judicial Sales,” §§ 144-172. — Ed.]</p> <p>2. Release of Title by Prior Mortgagee.</p> <p>The same results would follow if the purchaser at such judicial sale' had knowledge of such prior deed, but, before the judicial sale to him was consummated by deed, the grantee in such prior deed, for a valuable consideration, agreed to not stand, upon the title thereby acquired, and to aflow the title under the judicial sale to prevail.</p> <p>3. Long Past Transactions Lightly Disturbed.</p> <p>The repose of titles founded on long past transactions, the full «and exact evidence whereof may have* disappeared, should not be lightly disturbed, especially where there has. been long undisturbed possession thereunder, and valuable improvements have been made on the faith thereof.</p> <p>4. Deed Takes Effect from Time of Delivery.</p> <p>A deed executed by trustees and delivered in escrow, in the exercise of power to convey, to be delivered by the depositary to the grantee upon the* performance by him of certain conditions, and accordingly delivered. to the grantee though after, the cessation of the power of the 'trustees, takes effect by relation and conveys the title as of the date of the first delivery.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Deeds,” §§ 401-405. — Ed.]</p> <p>5. Provisions of Will Devising with Limitation over Passes a Defeasible Fee.</p> <p>A devise by terms describing a fee simple, or from -which a purpose to devise a fee simple is inferable, followed by a limitation over in the event that the devisee shall die “without issue,” or “without children,” or “without descendants,” or “without heir of his body,” or “without legitimate heirs,” or the like, -such limitation over is on a definite failure of issue surviving the aforesaid devisee at the time of his death; and in such, case no* estate is limited to such “issue” or “heir of the body,” or the like, ‘but the provision simply declares the condition or contingency upon which the limitation .over shall .take effect. It qualifies the fee first devised, making it, instead of an unconditional fee pimple, as it would otherwise he, a conditional or defeasible fee.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 723-856. — Ed.]</p> <p>6. Intention of Testatob to Govern the Construction of Will.</p> <p>In construing a will all arbitrary rules of construction must .give way to the primary rule that the manifest intention of the testator must be given effect.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 444469. — Ed.]</p> <p>[Syllabus by the court]</p>

<p>CONTRACTS.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>1, Action may be Brought for Breach op the Several Parts op a Divisible Contract.</p> <p>A contract for the sale and delivery of three car loads of hogs, each car to weigh not more and not less than a certain number of pounds, and to be paid for on delivery, is severable and divisible where the first car is accepted and paid for as provided for by the contract terms. And a recovery for damages for the failure to accept the second car does not bar the right to an action for damages for failure to accept the third.</p> <p>[For other cases in point, see 2 Cyc. Dig., "Contracts,” §§ 1150-1189. — Ed.]</p> <p>2. Interpretation op Contracts by the Parties Followed by the Courts.</p> <p>Courts will always look to the construction and interpretation given to contracts by the parties themselves in determining the meaning thereof, and the intention of the parties.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Contracts,” §5 1088-1054. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>ADVERSE POSSESSION — LIMITATIONS OF ACTIONS.</p> <p>Haynes, Parker and Winch, JJ.</p> <p>(Judge Winch of the eight circuit, sitting in place of Judge Wildman.)</p> <p>1. Limitation on Actions iron Damages Caused by Flooding Land.</p> <p>For injuries caused by flooding of land with water from sewers and washing away bridges and soil, damages can be recovered for a period of four years only preceding the bringing of the action.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 357-361, 388-390. — Ed.]</p> <p>2. Pbesckiptive Right to Flood Lands.</p> <p>Recovery from a city cannot'be had by a landowner for such damage causa 1 by flooding plaintiff’s land with water from sewers constructed by the city, when such right has been enjoyed by the city for the prescriptive period, and such damages are the natural consequences of the exercise of such right by the city.</p> <p>[Syllabus approved by the court.]</p>

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

A constituent company remains in existence with the right to transfer stock from one owner to another, until floating indebtedness is paid off, although the consolidated company is organized and in operation as a' railroad company. Compton v. Bailway, 45 Ohio St. 592 [16 N. E. Rep. 110] ; Baüway v. Garrett, 50 Ohio St. 405 [34 N. E. Rep. 493]; Cincinnati, N. 0. & T. P. By.

<p>TAXATION.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Rules Governing Boabds oe Review.</p> <p>The rules governing the present boards of review are those formerly governing decennial boards of equalization, as found in Rev. Stat. 2814 (Lan. 4226).</p> <p>2. Values at Time oe Decennial Appraisement Contbol Revaluations.</p> <p>In equalizing values and correcting errors made by the decennial appraisers, a board of review must at all time be guided and controlled by values as they existed at the time of making the decennial appraisement, and not by values as at present existing.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 726-730. — Ed.]</p> <p>3. Complaint PREREQUISITE to Revaluation to be Made by Taxpayer or Party ■ in Interest.</p> <p>The complaint mentioned in the statute as a prerequisite to a revaluation by a board of review must be a substantial complaint made by a taxpayer or party in interest, and coming to the board of review, and not • instituted by it or by its direction.</p> <p>[Syllabus by the court.]</p>

<p>BOUNDARIES.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>Thread or Mats' Channel ano not Thread op Stream Governs where Non-NAVIGABLE RlVER IS BOUNDARY.</p> <p>Where the boundary between two counties is a nonnavigable river, the boundary line is determined as being the thread of the main channel of the river and not the thread of the river regardless of its channels and the islands between its banks.</p> <p>[For other cases in point, see “Boundaries,” §§ 163-166. — Ed.]</p> <p>[Syllabus approved by the court.)</p>

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS — STREETS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. When Council to Apportion Stkeet ' Assessments.</p> <p>It is not necessary that the council should determine in advance of the „ assessing ordinance the proportion of the cost and expense of making a street improvement that is to be assessed upon the property abutting thereon.</p> <p>2. Effect of Apportioning Assessment in Preliminary Proceedings.</p> <p>The fact that the council may have, in the resolution and ordinances adopted and passed preparatory to the making of the improvement, indicated the proportion it intended to assess upon the abutting property, does not bar it from designating a different proportion in the assessing ordinance, provided it is within the limitations fixed by statute.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 169-195, 300-308; 6 Cyc. Dig., “Municipal Corporations,” §§ 1225 et seq. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>DESCENT AND DISTRIBUTION — WRONGFUL DEATH.</p> <p>Winch. Henry and Marvin, JJ.</p> <p>Recovery for Wrongful Death foe Exclusive Benefit of Husband or Wife.</p> <p>Where a resident of this state meets death hy wrongful act in the state of New York and his widow being appointed in Ohio -administrator of his estate settles the claim for the wrongful death without suit, the proceeds of such settlement are to be distributed under Rev. Stat. 6134, 6135 (Lan. 9673, 9675), which provide that actions by an administrator to recover for the wrongful death of intestate shall be for the exclusive benefit of the wife or husband, and children. Hence, the father of the deceased is not entitled to share as a distributee of such funds.</p> <p>[Por other cases in point, see 3 Cyc. Dig., “Executors and Administrators,” §§ 408-425. — Ed.]</p> <p>[Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]</p>

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>Burrows, Laubie and Cook, JJ..</p> <p>What Constitutes Negligence oe a Motobman op Steeet Railway Cab Ar-PKOAcniNG Frightened Horse.</p> <p>The failure of a motorman, when running a car at the ordinary speed, to stop or lessen its speed upon observing that a horse approaching from the opposite direction is frightened is not negligence, unless the circumstances indicate that the horse has, or will become unmanageable upon the approach of the car, and that the driver or persons with him are or will be put in imminent peril.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Street Railways,” §§ 486-489.— Ed.]</p> <p>[Syllabus by the court.]</p>

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

<p>Error to Huron common pleas court. •</p>

Averments of amended petition not denied by answer and therefore deemed to be true. Abbot, Trial Ev. (2 ed.) 550; Da/ois v. Bartlett, 12 Ohio St. 534 [80 Am. Dec. 375]; Allen v. Johnson, 11 Cire. Dec. 42 (20 R. 81. If on the admitted facts and the proof the verdict is clearly wrong, a new trial should be granted. If the court only doubts its correctness, it should be left as it is.

A board of education may require the vaccination of children as a condition precedent to their enjoyment of school privileges. Revised Statute 3986 (Lan. 6464). Courts will take judicial notice of the facts that the common belief of the people is, that vaccination is a preventative of smallpox. ’ Viemeister v. White, 179 N. Y. 235 [72 N. E. Rep. 97; 70 L. R. A. 796; 103 Am. St. Rep. 859].

<p>APPEALS — CHARITABLE TRUSTS.</p> <p>Donahue, McCarty, and Taggart, JJ.</p> <p>1. Right of Trustee to Appeal in Interest of Cestui que Trust.</p> <p>In an action brought by a trustee of a charitable trust under Rev. Stat. 6202 (Lan. 9743), to construe the trust, where the common pleas court, on hearing the same, holds that there is no trust, it is the right of the trustee to appeal to the circuit court in the interest of the cestui que trust.</p> <p>[For other cases in point, see 7 Cyc. Dig.,- “Trusts and Trustees,” §§ 439-443. —Ed.]</p> <p>2. Certainty of Beneficiaries of Charitable Trusts.</p> <p>The individual beneficiaries of a' charitable trust must necessarily be vague and uncertain, and it is sufficient if a class is designated from whom the trustee can select. j</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charities,” §§ 18-26, 61-66. — Ed.]</p> <p>3. Power of Trustee to Select Beneficiaries of Charity Fund.</p> <p>A trustee clothed with the power of administering a trust fund for such public charity has, without special delegation thereof, incidental authority to select from the classes named the individual beneficiaries thereof.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charities,” §§ 61-83. — Ed.]</p> <p>4. Sufficiency of Bequest Creating Charitable Trust.</p> <p>Testator providing in his will a fund “to be applied by my trustee to the education of colored children, by which I mean in whole or in part of negro blood, and in case an opportunity or opportunities should hereafter occur to Unite the fund hereby bequeathed for similar purposes, it is my will that my trustee for the time being have power to unite the fund hereby bequeathed with such other fund or funds upon such terms and conditions as may to him seem best fitted to carry out the objects and purpose of this devise; and, should the fund hereby devised by the addition of other funds or otherwise ever become sufficiently large for that purpose, it is my preference that a manual labor school, upon a similar footing to the Charity School of Kendall as at present conducted, should be established and supported by said fund for the benefit of colored children, but this preference is not designed to be binding or controlling upon my trustee,” such bequest creates a good and valid charitable trust and is not void for uncertainty in object or beneficiaries and a court of equity will not permit the same to fail for want of a trustee.</p> <p>[Syllabus by the court.]</p>

<p>PLEADINGS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Verification or Pleadings by Corporation.</p> <p>The provisions of Rev. Stat. 5109 (Lan. 8624) regarding verification of pleadings by agents and attorneys apply to the pleadings of corporations as well as those of natural persons.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Corporations,” §§ 1876, 1877; 6 Cyc. Dig., “Pleadings,” 55 1230-1285. — Ed.]</p> <p>[Syllabus by Judge Winch.]</p>

<p>TESTAMENTARY CAPACITY — WILLS!</p> <p>Donahue, McCarty and. Taggart, JJ.</p> <p>INSTRUCTIONS TO JURY SHOULD BE CONSTRUED AS A WHOLE.</p> <p>Where one paragraph of the charge given to the jury may, when standing alone, be misleading, but taken in connection with what immediately follows a correct and clear statement is made, there is no objectionable error. Nor does the court instruct that testamentary capacity must equal that of capacity to make a contract by charging, “It is necessary that a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life,” when what follows, in a later paragraph, expressly states, "He need not have sufficient capacity to make a contract, but must understand substantially what he is doing and the nature of the act in which he or she is engaged.”</p> <p>[For other casesi in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 508-527.— iOd.J</p> <p>[Syllabus approved by the court.]</p>

<p>CRIMINAL LAW AND PRACTICE.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>Right to File a Motion for a New Trial.</p> <p>A trial court has not jurisdiction to hear a motion for a new trial in a criminal prosecution at a term of court subsequent to that at which the verdict was rendered.</p> <p>' [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” § 974 — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from Crawford common pleas court.</p> <p>Cited and commented upon the following authorities. Sheldon v. Newton, 3 Ohio St. 494; Coopers v. Raihvay, 2 Dec. Re. 199 (2 W. L. M. 63); Hollingsworth v. Flint, 101 U. S. 591 [25 L. Ed. 1028]; Dean v. Railway, 119 N. T. 540 [23 N. E. Rep. 1054]; McRoberts v. Look-wood, 49 Ohio St. 374 [34 N. E. Rep. 734] : Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 338) ; Smith v. Montag, 1 Dec. 224 (32 Bull. 153); Fry-man v. Fryman, 6 Circ. Dec. 377 (9 R. 91) ; Schneider v. Cordesman, 10 Dee. 571 T8 N. P. 99) ; Lafferty v. Shinn, 38 Ohio St. 46; Fouis v. State, 8 Ohio St. 98; State v. Pugh, 43 Ohio St. 98 [1 N. E. Rep. 439]; Milwaukee Mich. Ins. Co. v. Russell, 65 Ohio St. 230 [62 N. E. Rep. 338; 56 L. R. A. 159].</p>

<p>Errc® to Sandusky common pleas court.</p>

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

The plaintiff below sued for damages on account of injuries sustained while employed by the railway company as a motorman.

<p>Eeror to Columbiana common pleas court.</p>

Plaintiff in error contends: 1. That the beneficiaries named in the several policies of insurance are necessary parties plaintiff.

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

<p>JUDGMENT — JUSTICE OF PEACE.</p> <p>Cook, Burrows and Laubie, JJ.</p> <p>■ 1. Parol Evidence Inadmissible to Contradict Justice Docket.</p> <p>Where the docket of a justice of the peace shows that judgment was rendered ten days after the return of the verdict by the jury, parol evidence is not admissible to show thá't the judgment in fact was rendered immediately upon the return of the verdict.</p> <p>2. Judgment Rendered by Justice of Peace After Ten Days from Verdict is Void.</p> <p>Where a justice of the peace fails to render judgment until ten days after the return of a verdict by a jury, such failure works a discontinuance of the action; the judgment so rendered by the justice is absolutely void, and a court of equity will enjoin any further proceedings upon such judgment.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Justice of Peace,” §§ 299-312. —Ed.]</p> <p>[Syllabus by the court.]</p>

QUO WARRANTO. Injunction. Shank filed in the circuit court a proceeding in quo warranto, setting forth that at the organization of the… Held: of which meeting said Fred Shearer had full knowledge, and at which meeting the said city council by resolution found and determined that at the time of the election of Fred Shearer as such member of council and continuously thereafter to that time he was said public officer and held such public employment, and that by reason thereof…

<p>AFFIDAVITS — ATTACHMENT.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Essentials of Affidavit in Attachment.</p> <p>Affidavit in attachment should contain a statement of the nature of the claim, to show that the action is one in which an attachment may issue, and a statement of the ground or grounds upon which the attachment is sought.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Attachment,” §§ 260-264. — Ed.]</p> <p>2. Sufficiency of Statement in Affidavit foe Attachment as to Nature of Claim.</p> <p>An affidavit for attachment contains a sufficient statement of the nature of the plaintiffs claim if in appropriate terms it refers to the petition and on examination the petition discloses such a cause, arising on contract, as would justify the issue of an attachment.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Attachment and Garnishment,” §§ 271-308. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>BUILDING RESTRICTIONS — COVENANTS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>Equitable Rule as to Building Restrictions in Deeds.</p> <p>Building restrictions in a deed, as to property retained by the grantor, will not be enforced against such property where, after the lapse of several years, the drift of the population has so changed the character and surroundings of the property as to make it inequitable so to enforce the covenant as to prevent its improvement in conformity to the new conditions.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Covenants,” §§ 190-195; 3 Cyc. Dig., “Deeds,” §§ 973-992 Eu.]</p> <p>[Syllabus approved by the court.]</p>

Equity will not rescind a contract, or reform an instrument, merely because the parties may have been mistaken as to its legal interpretation and effect. 20 Am. & Eng. Ene. Law (2 ed.) 810, and eases cited in note 2. If an administrator pays a debt barred by the statute of limitations v a court of equity will not relieve him because of his ignorance of the Statute or of its application to the case. Adams, v. Guerard, 29 Ga. 651 [76 Am.

<p>Error to Guernsey common pleas court.</p> <p>1 Widow as heir. Lavery v. Egan, 143 Mass. 389 [9 N. E. Rep. 747]; Page, Wills 600; Rawson v. Rawson, 52 Ill. 62; Weston v. Weston, 38 Ohio St. 473; 2 Jarman, Wills 1; Richards v. Miller, 62 Ill. 417; Story, Conflict of Laws Sec. 479e; Bunnell v. Evans, 26 Ohio St. 409; Mooney v. Purpus, 70 O. S. 57 [70 N. E. Rep. 894] ; Jamieson v. Rnights Templar, 9 Dec. Re. 388 (12 Bull. 272) ; Stewart v. Powers, 6 Circ. Dec. 101 (9 R. 143); Durfee v. Mac Neil, 58 Ohio St. 238 [50 N. E. Rep. 721] ; St. Maries Lodge v. Darrow, 16 Dee. 120; 2 Blackstone’s Commentaries 201, Page, Wills 550, 882; Chamberlain v. Taylor, 105 N. Y. 185 [11 N. E, Rep. 625] ; Proctor v. Clark, 154 Mass. 45 [27 N. E. Rep. 673; 12 L. R. A. 721]; Granger v. Granger, 147 Ind. 95 [44 N. E. Rep. 189; 46 N. E. Rep. 80; 36 L. R. A. 186]; Page, Wills Sec. 512; Cushman v. Horton, 59 N. Y. 149; Barber v. Railway, 166 U. S. 83 [17 Sup. Ct. Rep. 488; 41 L. Ed. 925] ; Forrest v. Porch, 100 Tenn. 391 [45 S. W. Rep. 676] ; Todd v. Todd, 27 O. C. C. 224.</p>

<p>LICENSES — PAWNBROKERS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Duration op Pawnbroker’s License.</p> <p>The year for which a pawnbroker’s license runs begins when the application for the license is made and the fee paid, and runs until the corresponding day of the following year.</p> <p>2. Debt for Pawnbroker’s License Incurred without Applying for License, when.</p> <p>A debt to the municipality is incurred for a license fee required by ordinance to be paid by carrying on the business for which such license fee is imposed; and this is so though the ordinance may prescribe penalties for the carrying on of such business without a. license, and though no license has been-applied for nor issued.</p> <p>[For other cases in point, see 5 Cye. Dig., “Licenses,” §§ 1-6. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>BANKS AND BANKING — BILLS, NOTES AND CHECKS.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Payee Procuring Certification of Check cannot Stop its Payment to his Indorsee.</p> <p>A check certified by the drawee bank at the request of the payee thereof is the obligation of the bank, which when indorsed according to the terms of the certificate and delivered is payable to bearer or indorsee on demand free from any claim of the drawer and he has no authority to stop its payment; although if certification had been procured by the drawer before -delivery to the payee the drawer might stop payment thereof to the payee.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bills, Notes and Checks,” §§ 542, 543. — Ed.]</p> <p>2. Relation of Bank and Depositor of Certified Check is that of Debtor and Creditor only.</p> <p>Receiving a certified check of another bank and crediting it to the account of a depositor upon his indorsement thereof does not make the receiving bank a purchaser for value. The relation between the depositor and bank being that of debtor and creditor, and the bank gets only such title therein as its depositor had.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Banks and Banking,” §§ 133-140. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>Jellce, Swing and Gifíen, JJ.</p> <p>ERROR to Hamilton common pleas court.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>Winch, Henry and Marvin, JJ. ,</p> <p>1. Forfeiture of Membership for Nonpayment of Dues.</p> <p>Membership in a mutual benefit society cannot be forfeited, against the will of the member by delinquency, ipso facto; but he must first be given an opportunity to justify himself, and this must be followed by some action by the society looking to a severance of relations between the society and the member.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Beneficial Associations,” §§ 77-108. — Ed.]</p> <p>2. Charge to Jury as to False Application for Membership.</p> <p>A charge of court, which assumes that because a husband acted for his wife in applying for membership for both himself and his wife in a mutual benefit society, any false representations which he may have made with reference to his own age, etc., affected equally the membership of his wife, is erroneous.</p> <p>[Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]</p>

The American National Bank sued the Carrara Paint Agency Company, as acceptor, the Twentieth Century Cash Register Company, as drawer, and O. E. Robinson, as indorser of a bill of exchange for $2,500. At the trial below an instructed verdict was returned for the bank for the full amount of its claim. The citations of the paint company in support of its petition in eiTor were: Chicago Electric L. By. v. Hutchinson, 25 Ill. App. 476; Gray r. Tunstall, 1 TIempst. 558 [10 Fed.

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

<p>•Appeal from Cuyahoga common pleas court.</p> <p>Acknowledgment in writing sufficient to arrest the statute of limitations. Harrell v. Davis, 108 Ga. 789 [33 S. E. Rep. 852]; Martin v. Somervell Co. 21 Tex. Civ. 308 [52 S. W. Rep. 556]; Belknap v. Gleason, 11 Conn. 160 [27 Am. Dec. 721]; Baily v. Smith, 14 Ohio St. 396 [84 Am. Dec. 385]; Fisher v. Mossman, 11 Ohio St. 42; Taylor v. Hunt, 118 N. C. 168 [24 S. E. Rep. 359]; Gary v. May, 16 Ohio 66.</p> <p>No new promise being made by decedent’s widow, or partial payment, or acknowledgment in writing, it would not bind decedent’s estate. Lawton v. Adams, 7 Circ. Dee. 129 (13 R/233) ; Torbit v. Heath, 11 Col. App. 492 [53 Pac. Rep. 615]; First Nat. Bank v. Woodman, 93 1'owa 668 [62 N. W. Rep. 28; 57 Am. St. Rep. 287]; McLane v. Allison, 60 Kan. 441 [56 Pac. Rep. 747],</p>

The annexation of Winton Place to Cincinnati or Cincinnati township did not extend the jurisdiction of respondent over Cincinnati township, or authorize him to act as justice of the peace for Cincinnati township. State v. Heffner, 59 Ohio St. 368 [52 N. E. Rep. 785] ; State v. Maxfield, 6 Circ. Dec. 11 (9 R., 26) ; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570] ; Sutherland, Stat. Constr. 457; State v. Blend, 121 Ind. 514 [23 N. E. Rep. 511; 16 Am.

<p>FRAUDS, STATUTE OF — LANDLORD AND TENANT.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Remedy of Lessor for Breach of Verbal Lease.</p> <p>Part performance under a verbal lease sufficient to take the same out of the statute of frauds, obtains in equity only, and will not avail to render the contract capable of being sued on in a court of,law.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Frauds, Statute of,” §§ 89-103. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>ADOPTION — RES ADJUDICATA.</p> <p>Cook, Burrows and Laubie, JJ.</p> <p>1. Adoption of Child Invalidated only on Clear Proof of Irregularity in Proceedings.</p> <p>Where the record or deed of adoption of a child states that it was duly and legally done, in order to invalidate the adoption, it must be affirmatively shown by clear proof that the adoption was Irregular id ■''some essential particular.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Adoption,” §§ 22, 23. — Ed.]</p> <p>2. Child Adopted in Foreign State may Inherit Lands in this State.</p> <p>A child adopted in a foreign state has inheritable capacity to lands situated in this state.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Adoption,” §§ 7-13; 3 Cyc. Dig., “Descent and Distribution,” §§ 169-175. — Ed.]</p> <p>8. Proceeding Adjudicated by Probate Court Is Res Adjudicata.</p> <p>In a proceeding in the probate court to sell three parcels of land to pay debts, all questions that were legally determined in such proceeding as to all the land are res adjudicata in a subsequent proceeding in partition of one parcel not sold in the probate court proceeding.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” §§ 859-S63; 7 Cyc. Dig., “Res Adjudicata,” §§ 92-100. — Ed.]</p> <p>[Syllabus by the court.]</p>

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

<p>Appeal from Erie common pleas court.</p> <p>Cited and commented on the following authorities. Andres v. Morgan, 62, Ohio St. 236 [56 N. E. Rep. 875; 78 Am. St. Rep. 712] ; Gates v. Stone Go. 57 Ohio St. 60 [48 N. E. Rep. 285; 63 Am., St. Rep. 705]; Morawetz, Corporations Secs. 1, 227; Chicago & G. T. By. v. Miller, 91 Mich. 166 [51 N. W. Rep. 981] ; Des Moines Gas Co. v. West, 50 Iowa 16; Booth v. Bunce, 33 N. Y. 139 [88 Am. Dec. 372]; State v. Standard Oil Co. 49 Ohio St. 137 [30 N. E. Rep. 279; 15 L. R. A. 145; 34 Am. St. Rep. 541] ; Bennett v. Minott, 28 Ore. 339 [39 Pac. Rep. 997] ; First Nat. Bank v. Trebein Co. 59 Ohio St. 316 [52 N. E. Rep. 834] ; Hathorn v. Calef, 69 U. S. (2 Wall.) 10 [17 L. Ed.' 776]; Ochiltree v. Railway, 88 U. S. (21 Wall.) 249 [22 L. Ed.' 546] ; Norris v. Wrenschall, 34 Md. 492; Brown v. Hitchcock, 36 Ohio St. 667; Sutliff v. Atwood, 15 Ohio St. 186; Johnson v. Underhill, 52 N. Y. 203; Hodgkinson v. Kelly, L. R. 6 Eq. Cas. 496; Cape’s Executor’s Case, 2 De G. M. ”& G. 562; Mexican <& S. A. Co. In re, 4 De G. & J. 544; Kinsey v. Cable Co. 27 O. C. C. 633.</p> <p>If a person accepts stock issued to him as a gratuity and the corporation becomes insolvent tlie law will create a promise to pay for it. Handley v. Stutz, 139 U. S. 417 [11 Sup. Ct. Rep. 530; 35 L, Ed. 227] ; Upton v. Tribilcock, 91 U. S. 45 [23 L. Ed. 203] ; Sanger v. Upton, 91 ü. S. 56 [23 L. Ed. 220] ; Chubb v. Upton, 95 U. S. 665 [24 L. Ed. 523]; Pullman v. Upton, 96 TJ. S. 328 [24 L. Ed. 818] ; Morgan County v. Allen, 103 U. S. 498 126 L. Ed. 498] ; Hawkins v. Glenn, 131 U. S.319 [9 Sup. Ct. Rep. 739; 33 L. Ed. 184]; Graham v. Railway, 102 U. S. 148 [26 L. Ed. 106] ; Richardson v. Green. 133 U. S. 30 [10 Sup. Ct. Rep. 280; 33 L. Ed. 516] ; Union Mut. Life Ins. Co. v. Manufacturing Co. 97 Ill. 537 [37 'Am. Rep. 129] ; Fogg v. Blair, 139 U. S. 118 [11 Sup. Ct. Rep. 476; 35 L. Ed. 104]; Clark v. Bever, 139 U. S. 96 [11 Sup. Ct. Rep. 468; 35 L. Ed. 88] ; Kinsey v. Cable Co. 27 O. C. C. 633; Camden v. Stuart, 144 U. S. 104 [12 Sup. Ct. Rep. 585; 36 L. Ed. 363]; Rick-erson Roller-Mill Co. v. Foundry & Mach. Co. 75 Fed. Rep. 554 [23 C. C. A. 302; 43 U. S. App. 452],</p> <p>True-value rule. 10 Cyc. 472, 473, 474; Gates v. Stone Co. 6 Circ. Dee. 23 (9 R. 99) ; Ford v. Lamson, 9 Circ. Dec. 374 (17 R. 539) ; Kulp v. Fleming, 65 Ohio St. 321 '[62 N. E. Rep. 334; 87 Am. St. Rep. 611] ; Wick Nat. Bank v. Bank, 62 Ohio St. 446 [57 N. E. Rep. 320; 78 Am. St. Rep. 734]; Scofield v. Oil Co. 27 O. C. C. 347.</p> <p>Payment for shares. 5 Cyc. 378; 10 Cyc. 460, 461, 463, 464, 797, 799; Price, In re, 92 Fed. Rep. 987; Scovill v. Thayer, 105 U. S. 143 [26 L. Ed. 968].</p> <p>F. P. Zollinger is personally liable for the stock standing in his name as trustee. 10 Cyc. 697; Schwill v. Beckel, 13 Dec. 699; Cook, Stockholders Sec. 503e; Holcomb v. Gibson, 1 O. S. C. D. 783 (39 Bull. 380) ; National Tube-Works Co-, v. Gilfillan, 124 N. Y. 302 [26 N. E. Rep. 538] ; Ailing v. Wenzel, 133 Ill. 264 [24 N. E. Rep. 551] ; Coleman v. Howe, 154 Ill. 458 [39 N. E. Rep. 725; 45 Am. St. Rep. 133]; Yan Cleve v. Berkey, 143 Mo. 109 [44 S. W. Rep. 743; 42 L. R. A. 593] ; Boulton Carbon Co. v. Mills, 78.Iowa 460 [43 N. W. Rep. 290; 5 L. R. Á. 649] ; Hastings Malt. Co v. Brewing Co. 65 Minn. 28 [67 N. W. Rep. 652] ; Wallace v. Manufacturing Co. 70 Minn. 321 [73 N. W. Rep. 189; 68 Am. St. Rep. 530] ; Lloyd v. Preston, 7 O. F. D/379 [146 U. S. 680; 13 Sup. Ct. Rep. 131; 36 L. Ed. 1111]; Home Life Ins. Co. v. Fisher, 188 U. Si 726 [23 Sup. Ct. Rep. 380; 47 L. Ed. 667] ; Parmelee v. Price, 208 Ill. 544 [70 N. E. Rep. 725] ; Commercial Bank v. Warthen, 119 Ga. 990 [47 S. E. Rep. 536]. Cited in General Digest (1905) p. 459, Par. 43b.</p> <p>It is only subsequent creditors that can complain on this transaction because they are the ones who have trusted the company upon the faith of the increased stock. Rickerson Roller-Mill Co. v. Foundry & Mach. Co. 75 Fed. Rep. 554 [23 C. C. A. 302; 43 U. S. App. 452]; First Nat. Bank v. Mining Go. 42 Minn. 327 [44 N. W. Rep. 198; 6 L. R. A. 676;'18 Am. St. Rep. 510] ; 2 Morawetz, Corporations pars. 832, 833; Coit v. Amalgamating Co. 119 U. S. 343 [7 Sup. Ct. Rep. 231; 30 L. Ed. 420],</p> <p>521</p> <p>Beilstein and Zollinger are chargeable with knowledge of any facts which they could have ascertained with reasonable care. Wiskard v. Hansen, 99 Iowa 307 [68 N. W. Rep. 691; 61 Am. St. Rep. 238].</p> <p>As to the claim of Zollinger and Beilstein that their stock was paid for in services. Peninsular Sav. Bank v. Stove Polish Co. 105 Mich. 535 [63 N. W. Rep. 514] ; Hurst v. Fisher, 64 Ohio St. 530 [60 N. E. Rep. 626] ; Second Nat. Bank v. Fence Post Co. 13-23 O. C. C. 274.</p> <p>Intentional overvaluation of the property is actual fraud. Lloyd v. Preston, 7 O. F. D. 379 [146 U. S. 630; 13 Sup. Ct. Rep. 131; 36 L. Ed. 1111] ; affirming, Preston v. Railway, 6 O. F. D. 127 [36 Fed. Rep. 54] ; Coit v. Amalgamating Co. 119 U. S. 343 [7 Sup. Ct. Rep. 231; 30 L. Ed. 420]; Northwestern Mut. L. Ins. Co. v. Beal Estate Co. 46 Fed. Rep. 22; Boynton v. Hatch, 47 N. Y. 225; Boynton v. Andretvs, 63 N. Y. 93; National Tube-Works Co. v. Gilfillan, 124 N. Y. 302 [26 N. E. Rep. 538] ; Craivford v. Bohrer, 59 Md. 599; Wetherbee v. Baker. 35 N. J. Eq. 501; Coleman v. Howe, 154 Ill. 458 [39 N. E. Rep. 725; 45 Am. St. Rep. 133] ; Peninsular Sav. Bank v. Stove Polish Co. 105 Mich. 535 [63 N. W. Rep. 514] ; Shickle v. Watts, 94 Mo. 410 [7 S. W. Rep. 274]; Garrett v. Mining Co. 113 Mo. 330 [20 S. W. Rep. 965; 35 Am. St. Rep. 713] ; Gilkie v. Town <& Gas Co. 46 Neb. 333 [64 N. W. Rep. 978]; Osgood v. King, 42 Iowa 478; Wishard v. Hansen, 99 Iowa 307 [68 N. ~W. Rep. 691; 61 Am. St. Rep. 238]; Salt Lake Hardware Co. v. Milling Co. 13 Utah 423 [45 Pac. Rep. 200] ; Elyton Land Co. v. Warehouse & Elevator Co. 92 Ala. 407 [9 So. Rep. 129; 12 L. R. A. 307; 25 Am. St. Rep. 65] ; Boulton Carbon' Co. v. Mills, 78 Iowa 460 [43 N. ~W. Rep. 290: 5 L. R. A. 649]; First Nat. Bank v. Mining Co. 42 Minn. 327 [44 N. W. Rep. 198; 6 L. R. A. 676; 18 Am. St. Rep. 510].</p> <p>Nature of remedy. Thompson, Corporations Secs. 3429, 3432, 3493; Cook, Corporations Secs. 204, 206; First Nat. Bank v. Peavey, 69 Fed. Rep. 455; 20 Enc. PI. & Pr. 703, 704, 710, 724; Wellington v. Construction & Imp. Co. 52 Hun 408 [5 N. Y. Supp. 587] ; Byan v. Jacques, 103 Cal. 280 [37 Pac. Rep. 280].</p> <p>Liability of one holding stock as trustee. Holcomb v. Gibson, 1 O. S. C. D. 783 (39 Bull. 380) ; Schwill v. Beckel, 13 Dec. 699; Biggio v. Sandheger, 10 Dee. 316 (8 N. P. 13) ; Marriott v. Bailway, 16 Dec. 135, 150, 151; Biggio v. Sandheger, 16 Dec. 286; Beach, Corporations Sec. 136, Subd. H. See also 2 Morawetz, Corporations (2 ed.) Sec. 852; Thompson, Corporations Secs. 3193, 3194; Cook, Corporations (4 ed.) Secs. 245, 246; Wadsworth v. Laurie, 164 Ill. 42 [45 N. E. Rep. 435]; Grew v. Breed, 51 Mass. (10 Met.) 569; Pullman v. Upton, 96 U. S.'328, 330 [24 L. Ed. 818],</p> <p>In re liability of defendants for unpaid stock subscriptions. 10 Cyc. 473, 474; Gales v. Stone Co. 57 Ohio St. 60 |48 N. E. Rep. 285; 63 Am. St. Rep. 705] ; State Tr. Co. v. Turner, 111 Iowa 664 [82 N. W. Rep. 1029; 53 L. R. A. 136] ; Dean v. Baldwin, 99 Ill. App. 582; Clev-enger v. Moore, 58 Atl. Rep. 88.(N. J.) ; Bumsey Mfg. Co. v. Kaime, 173 Mo. 551 [73 S.. W. Rep. 470] ; Eastings Malt. Co. v. Brewing Co. 65 Miran. 28 [67 N. W.-Rep. 652] ; Van Cleve v. Berkey, 143 Mo. 109 [44 S. W. Rep. 743; 42 L. R. A. 593] ; Coleman v. Howe, 154 Ill. 458, 471, 472 [39 N. E. Rep. 725; 45 Am. St. Rep. 133] ; Boynton v. Andrews, 63 N. Y. 93; Ailing v. Wenzel, 133 Ill. 264, 265 [24 N. E. Rep. 551] ; National Tube Works v. Gilfillan, 46 Hun 248 [11 N. Y. Supp. 533], affirmed, National Tube-Works Co. v. Gilfillan, 124 N. Y. 302 [26 N. E. Rep. 538] ; Choteau v. Dean, 7 Mo. App. 210; Garden City Sand Co. v. Crematory Co. 205 Ill. 42 [68 N. E. Rep. 724]; Donald v. Smelting & Refin. Co. 62 N. J. Eq. 732 [48 Atl. Rep. 771] ; Holcomb v. Gibson, 1 O. S. C. D. 783 (39 Bull. 380) ; Schwill v. Beclcel, 13 Dee. 699, 701; Thompson, Corporations Sec. 3194; Cook, Corporations Secs. 245, 246; Hospes v. Manufacturing & Car Co. 48 Minn. 174 [50 N. E. Rep. 1117; 15 L. R. A. 470; 31 Am. St. Rep. 637] ; Wallace v. Heating Mfg. Co. 70 Minn. 321 [73 N. W. Rep. 189; 68 Am. St. Rep. 530] ; Jackson v. Traer, 64 Iowa 469 [20 N. W. Rep. 764; 52 Am. Rep. 449]; See v. Heppen-heimer, 61 Atl. Rep. 844 (N. J.) ; Wetherbee v. Baker, 35 N. J. Eq. 501, 502.</p>

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Sufficiency of Vote of Council on Street Improvements.</p> <p>When the record discloses the fact that, during proceedings and meetings of the city council for street improvements and assessment therefor, certain members of the council were present just before the votes were taken, and does not disclose that any of said members left the room before voting, and it is definitely stated that the particular resolutions and ordinances were passed by a certain number of votes being “yeas,” being the same number previously recorded as present, there is a substantial record of compliance with the statutory provision requiring the vote of the council for street improvements to be by “yeas and nays,” although the form of such record is not approved.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1280-1305. — Ed.]</p> <p>2. Benefit to Abutting Property from Street Improvement Determined by the Council.</p> <p>Whether or not abutting property has been benefited by street improvements is not to be determined alone by the market value of the property after the improvement has been made, as compared with its value before the improvement. The real question is whether there would be any potential benefits derived from the improvements, and the determination thereof is within the discretion of the council rather than for the courts.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 223-447. — Ed.]</p> <p>3. Frontage of Property on Street as Basis for Assessment for Improvement.</p> <p>Where three separate lots, held in different ownerships, form a flatiron or wedge-shaped plat, bounded on three sides by public streets, the assessments for the improvement of adjoining streets should be assessed on each lot separately, although all three lots form a single plat of ground and are at the time used for a common purpose; and such assessment should be based on the shorter street frontage of each lot.</p> <p>For other 'cases in point, see 1 Cyc. Dig., “Assessments,” §§ 316-371. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

Two Hearings- — First Hearing. This action was originally brought in the common pleas court of Summit county, Ohio, by the district committee for the fourth district, to recover, on behalf of the National Founders’ Association, dues and assessments, quarterly and special, and. the equity in the reserve fund, amounting to a little over $1,000.

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

<p>COST OF IMPROVING JOINT COUNTY DITCH.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Jurisdiction oi’ Common Pleas Court of Suit for Apportionment of Cost of Joint County Ditch.</p> <p>Where, during proceedings by and before the hoards of commissioners of three counties, for the purpose of improving a joint county ditch, it was decided that the lower county should do certain work upon the ditch in that county, reserving all its rights as to compensation from the other counties, the court of common pleas has jurisdiction, by virtue of Rev. Stat. 4488a (Lan. 7672), of an action against the others for an apportionment of the cost of such ditch improvement. Laning 7703 (B. 4510-10) provides an alternative procedure in the court of common pleas by a county to compel contribution for expense of constructing or improving an outlet for waters from other counties whenever a majority of the boards of commissioners of such counties shall so agree; and voluntary submission to the jurisdiction of such court by tender of issues in pleadings without questioning jurisdiction therein and by assenting to journal entries of such court is equivalent to such agreement.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 521-537; 3 Cyc. Dig., “Drains and Ditches,” §§ 164-187. — Ed.]</p> <p>2. Right to Contribution for Improving Joint County Ditcii.</p> <p>By virtue of Rev. Stat. 4510-1 (Lan. 7694) where the county commissioners of a county clean and enlarge that part of a joint county ditch lying within its boundaries so that better drainage is provided for an upper county, contribution may be had from such upper county to meet the cost of the improvement.</p> <p>3. Effect on County Rights of Ditch’s Becoming Public Watercourse.</p> <p>Where a county ditch has once been established by law and has been used for a period of over seven years it does not, by operation of Rev. Stat. 4510 (Lan. 7681), become a public watercourse in such sense as to take away the right to improve it as an established county ditch.</p> <p>4. Time within which Viewers are to Report.</p> <p>By the proper construction of Lan. 7703 (B. 4510-10) viewers are given thirty days from the time of their appointment to act and report. They are not limited to a period of thirty days from the filing of the petition.</p> <p>5. Parties to Action for Contribution, Who may Be.</p> <p>Provision is made, by statute, only for proceedings between the boards of county commissioners of the different counties interested in a suit for contribution for ditch improvements, and the owners of the lands affected by the improvements cannot join in the action and become parties thereto.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — PLEADING.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Poweb of Court to Dismiss an Action.</p> <p>When an amended petition, after having several passages struck out by the court, as redundant or improper pleading, still states a cause of action against the defendant, the court has no power to' dismiss the action without prejudice, in the absence of any pleading traversing the aver-ments left in the petition.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Dismissal and Nonsuit,” §§ 31-52; 7 Cyc. Dig., “Trial,” §§ 509-521. — Ed.]</p> <p>2. ERBOK TO &TRIKB MATERIAL AND PROPER AVERMENTS FROM PLEADING.</p> <p>It is prejudicial error for a court in an action for negligence of a street car company in permitting the proximity of two of its tracks in the city upon which the cars were permitted to pass so closely as to endanger the lives of passengers standing upon the running board, to strike from a pleading language that is material and a proper averment of the cause of action.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1431-1442. — Ed.]</p> <p>3. Power of Court to Strike Redundant Matter frosí Pleading.</p> <p>It is not prejudicial error for a court to strike from a petition matter that sufficiently appears in another part of the petition.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1592-1599; 6 Cyc. Dig., “Pleading,” §§ 1441, 1442. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>FORNICATION — PLEADING—SCHOOLS—SEDUCTION.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Averment that Teacher and Pupil Were not Husband and Wife not Necessary.</p> <p>In the indictment charging a teacher with having sexual intercourse with a female pupil, under Rev. Stat. 7024 (Lan. 10738), it is not necessary to aver that such teacher and pupil were not husband and wife.’</p> <p>2. Definite Term of Employment not Necessary to Convict Teacher of Sexual Intercourse with Pupil.</p> <p>A judgment of conviction of a teacher of music, of the crime provided for in Rev. Stat. 7024 (Lan. 10738), having sexual intercourse with a female pupil, will not be reversed because the evidence fails to disclose that the term of employment was for a definite length of time, where the fact is that the teacher was employed to give a certain number of lessons at a stated price per lesson, nothing being provided as to the time within which the lessons should be given. The word “term,” as used in this statute, was not intended to mean a definite period, but the time during which the teacher continues to fill his engagement and, by virtu# of his employment, has unusual opportunities for such unlawful practice.</p> <p>8. Other Acts of Sexual Intercourse at Other Times than Charged, Admissible.</p> <p>Frequent acts of sexual intercourse between a teacher and his female pupil at times other than that charged in the indictment for such an offense, even acts at a time when the term of employment as such Ite'acher has ceased, and acts outside the county in which the indictment is returned, if such acts are continuous and consecutive with the act charged, may be given in evidence on the trial under such an indictment as reflecting light on the relations between the parties.</p> <p>4. Positive Testimony of Witness as to Commission of Act at Different Time than Stated by Complaining. Witness, Sufficient.</p> <p>The positive testimony of a witness of an act of sexual intercourse between a teacher and a female pupil that such act occurred at a certain place on Wednesday is sufficient to sustain a verdict of guilty .even though the complaining witness has testified that no such act occurred at that place except on Sunday. Such testimony will not be excluded as not'corroborative of the complaining witness.</p> <p>[Syllabus approved by the court.]</p>

<p>APPEALS.</p> <p>Norris and Vollrath, JJ.</p> <p>(Judge Hurin, not sitting.)</p> <p>Pbayee itoe Personal Judgment Peecludes Appeal.</p> <p>Pleadings determine tbe nature of an action as to being legal or equitable. Hence, a petition to foreclose a mechanic’s lien, determine priorities and for personal judgment, sets forth both an equitable and a legal cause of action; and, notwithstanding the parties amicably agree as to the facts determinable by the jury and submit the equitable issues to the court, hut without change of pleadings or withdrawal of the legal issue, appeal will not lie.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Appeals,” §§ 110-169; 6 Cyc. Dig., “Pleadings,” §§ 3, 4. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR to Huron common pleas court.</p> <p>Acquittal on one charge as a bar to another charge based on same facts. People v. Parrow, 80 Mich. 567 [45 N. W. Rep. 514]; State v. Warner, 14 Ind. 572; State v. Martin, 76 Mo: 337; Commonwealth v. Vaughn, 101 Ky. 603 [42 S. W. Rep. 117; 45 L. R. A. 858]; Bishop, Crim. Law (7 ed.) Sec. 1051; Arrington v. Commontvealth, 87 Ya. 96 [12 S.'E. Rep. 224; 10 L. R. A. 242] ; Morey v. Commonwealth, 108 Mass. 433; Burress v. Commonwealth, 68 Ya. (27 Gratt.) 934; Irvin v. State, 7 Tex. App. 78; State v. Littlefield, 70 Me. 452 [35 Am. Rep. 335]; Roberts v. State, 14 Ga. 8 [58 Am. Dec. 528]; State v. Faulkner, 39 La. Ann. 811 [2 So. Rep. 539]; Harrison v. State, 36 Ala. 248; Price v. State,-19 Ohio 423; Bainbridge v. State, 30 Ohio St. 264; 1 Archbold, Crim. PI. & Pr. (6 ed.) 112, n. 2; 1 Bishop, Crim. Law Sec. 680a, 896; Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680 [91 Am. Dee. 496] ; Durham v. People, 5 Ill. (4 Scam.) 172 [39 Am. Dec. 407]; State v. Reiff, 14 Wash. 664 [45 Pac. Rep. 318]; 1 Bishop, Crim. Law (4 ed.) Sec. 884 et seq.</p>

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

<p>MUNICIPAL CORPORATIONS — STREET RAILWAYS.</p> <p>Wilson, Donahue and Wildman, JJ.</p> <p>(Sitting in place of the judges of the eighth circuit.)</p> <p>1- Constitutionality of Act Requiring Consents for Construction of Street Railways.</p> <p>The necessity of obtaining the consent of a majority of abutting property owners as a prerequisite to the construction and operation of a street railway in a public street, as is provided for by Rev. Stat. 2505 (Lan. 3770; B. 1536-188) and Lan. Rev. Stat. 3765 (B. 1536-189), is not a special privilege or property right, conferred on such property owners, inconsistent with the rule that abutting owners have no rights in a street superior to those of the general public; and such section is not uncon-v stitutional as class legislation.</p> <p>2. Necessity of Consent of Abutting Owner to Street Railway.</p> <p>A franchise granting the right to operate a street railway upon a certain street having expired, a new company seeking to construct and operate upon the same street must first obtain the consent of a majority of the abutting property owners thereon. The former use of the street for street railway purposes does not relieve the second company from the necessity of securing the consents.</p> <p>[For other cases in point, see 7 Cyc. Dig, “Street Railways,” §§ 194-224.— Ed.]</p> <p>3. Who may Construct Line under a Franchise Grant.</p> <p>A company, having the grant of right and consent of abutters to construct and operate a street railway in a public street, may transfer and assign its franchise and interests in such street; but a stranger to the franchise cannot, by reason of a grant from the council to operate over this same street, construct its line under the consents granted to the first company 'On the ground that the same does not place additional burdens on the abutting property.</p> <p>4. When a Company may Construct Line under Another Franchise.</p> <p>Whether a street railway company having the right, by reason of its franchise and consents of abutting property owners, to construct its line in a certain street can consent to another company’s laying tracks in such street, under a new franchise, to the exclusion of its own tracks without the consent of two-thirds of its stockholders, quaere?</p> <p>5. Motive for Bringing an Action not a Defense.</p> <p>The motive that actuates one to bring an action to which he has a legal right is of no importance, and cannot be set up as a defense thereto.</p> <p>6. Effect on Public as Affecting the Determination of a Private Right.</p> <p>The fact that the enjoining the construction of a street railway, at the suit of an individual owner of property abutting on the street affected, .will work a hardship upon the public, will not suffice to defeat such owner of a legal right.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>ASSESSMENTS — SEWERS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Necessity oir Notice of Sewer Improvement and Assessment.</p> <p>The notice required to be given, to owners of property benefited, of resolutions and proceedings for the construction of a sewer system is not applicable to a case where the council is proceeding to construct a sewer that is a part of a general system that has already been planned, and provided for by proper proceedings.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 196-222; 6 Cyc. Dig., “Municipal Corporation,” §§ 1237-1268. — Ed.]</p> <p>2. Method of Assessing Property for Public Improvement.</p> <p>Where unplatted property abuts on a sewer or other improvement within a municipal corporation, a part of which is not benefited by such im- ' provement, it is within the power of the council to limit the assessment on such property to the extent of the* benefits received, by assessing same proportionately to the depth of an ordinary platted lot.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 300-371. — Ed.]</p> <p>3. Nature of Ordinance Providing for Assessments.</p> <p>An ordinance providing for the assessment of property benefited by sewer improvements is of a special nature, and not within the meaning of Rev. Stat. 1695 (Lan. 1308) which requires the publication of ordinances of á general nature.</p> <p>[For other cases in point, see 1 Cyc. Dig., ‘-¡Assessments,” §§ 169-195; 6 Cyc. Dig., “Municipal Corporations,” §§ 1280-1303. — Ed.]</p> <p>4. Effect of a Bond Issue' for Cost of Improvement.</p> <p>Where a bond issue is provided for the payment of the whole cost of sewer construction no certificate from the auditor, that funds are on hand to pay for the sewer, is required.</p> <p>5. Slight Change in Sewer Plans not Objectionable.</p> <p>Slight changes in an adopted sewer plan will not invalidate the legislation or assessments where the sewer is not rendered less serviceable, or valuable, or more expensive, nor affected in any material manner.</p> <p>[Syllabus approved by the court.]</p>

<p>COUNTIES — HIGHWAYS—NEGLIGENCE.</p> <p>County Cowmissioneks not Liable eoe Injuries from Deeective Highway.</p> <p>Revised Statute 845 (Lan. 2104) does not impose upon county commissioners the duty of keeping unimproved county highways in repair. Therefore, such commissioners are not officially liable for injuries sustained by a person, by reason of the conveyance in which she was riding sliding into a deep rut or hole. And on such a showing a directed verdict for defendants is not error.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 565-680. — Ed.]</p>

<p>MASTER AND SERVANT — RAILROADS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Rights of Employe Using Tracks as a Convenient Pathway.</p> <p>Where an employe of a railroad, while off duty, is directed to report at a certain place as soon as possible, and in complying with said direction walks along the tracks of the company as a matter of convenience and time saving, he is not within the course of his employment while on the said tracks, and the engineer of an approaching train is not bound to keep a lookout for him.</p> <p>[For other cases in point,'see 6 Cyc. Dig., “Master and Servant,” §§ 292-411; 7 Cyc. Dig., “Railroads,” §§ 1058-1061. — Ed.]</p> <p>2. Duty of Person on Railroad Tracks to Observe and Avoid Danger.</p> <p>If such employe, while using the tracks of the company as 'a convenient pathway to his place of destination, by the proper use of his faculties of hearing and vision would have had warning of an approaching train, the presumption arises, when he does not discover such a train and is injured by being struck by it, that he did not exercise due care; and the burden is on him to remove that presumption. And where no reasonable inference can be drawn from the evidence relieving him from that presumption and no claim is asserted that the engineer or others controlling the movement of the train had actual knowledge of his. danger, it becomes the duty of the court to direct a verdict for the defendant.</p> <p>[For 'other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 293-335; 7 Cyc. Dig., “Railroads,” §§ 1080-1082. — Ed.]</p> <p>3. Duty of Railroad as to Persons on its Tracks.</p> <p>A railroad company owes no duty to an employe, or* other person, who is using its tracks merely as a convenient path of travel, to give notice by bell or whistle of an approaching train or to run at any particular rate of speed.</p> <p>[Syllabus approved by the court.]</p>

<p>CONSTITUTIONAL LAW — COUNTIES—PARTIES.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Enjoining Execution op Public Contract — Rights op ' Party in Interest.</p> <p>For the reason that one having an interest in a contract is a necessary party to an action to enjoin execution of the contract, a general demurrer will not lie to a petition averring that a contract to which plaintiff is a party has been enjoined in an action to which he was not a party, and praying for a vacation of the decree of injunction and for specific performance. .</p> <p>[For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 420-429. — Ed.]</p> <p>2. Validity op Act Authorizing Purchase of Toll Roads by Counties.</p> <p>The act of April 25, 1904 (97 O. L. 414; Lan. 8321 et seq.; B. 4875-6 et seq.), authorizing county commissioners to purchase toll roads upon and along ’which'suburban and interurban railroads are constructed and to maintain the same as free turnpikes, is not unconstitutional for lack of uniformity of operation.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 975-1251. — Ed.]</p> <p>3. What Toll Roads ake Included in Above Act.</p> <p>The authority granted by this act is not limited to the purchase of toll roads having both termini within the county; it does not, by authorizing the purchase of roads upon which traction companies have secured-rights of way, make possible such a joint ownership as is forbidden- by the constitution; but it does authorize the purchase of appurtenances of the road such as toll houses.</p> <p>[Syllabus approved by the court.]</p>

<p>ASSESSMENTS — ESTOPPEL.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Council not Estopped bt Preliminary Assessment Proceedings.</p> <p>Council is not estopped from fixing a different proportion in an assessing ordinance, and thus laying a heavier burden on a property owner by reason of the fact that they have declared the proportion they intended to assess upon the abutting property in the original resolution and ordinance declaring the necessity to improve the street, when the property owner has done nothing in reliance upon the declarations in such ordinance and resolution,</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,’' §§ 169-195, 300-308; 6 Cyc. Dig., “Municipal Corporations,” §§ 1225-1347. — Ed.]</p> <p>2. Requisites oe Estoppel -in Pais.</p> <p>To constitute an estoppel in pais the party claiming such estoppel should have proceeded upon the admission, or declaration, or'statement, or whatever it may be to his prejudice.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 264-322-, — Ed.]</p> <p>3. Evidence of Mistake must Be Conclusive.</p> <p>To establish a mistake in the proceedings of a city council preliminary to the making of an improvement, the proof must be clear and satisfactory.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3740-3764. — Ed.]</p> <p>4. Incidental Expense Items Chargeable in Paving Assessments.</p> <p>A charge upon an abutting owner in a paving assessment for removing the water boxes on the street, which were put in by the city, and not by a private person or corporation, is a legitimate item of expense.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 285-298. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>EVIDENCE — GIFTS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Promissory Note Presumes a Loan.</p> <p>Where a son executed a note in favor of his mother and paid interest thereon, there is a presumption raised that the money evidenced by the note was received by him as a loan.</p> <p>2. Declarations of Payee of Note Admissible to Establish a Gift.</p> <p>But the presumption thus raised may be overcome by evidence as to the intention of the parties at the time of the transaction and thereafter; and in an action by the administrator of the estate of the mother for recovery on such a note, evidence as to declarations made by the mother to third parties, to the effect that she did not intend the money should be treated as a loan, but as an advancement, are admissions against her interest and are admissible; and if the evidence establishes that it was her intention it should be treated as an irrevocable gift, and the son 'accepted it with that understanding, it must be so regarded, notwithstanding the execution of the note and the payment of interest thereon.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2212-2370; “Gifts,” §§ 68-71, 87, 105. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>ASSESSMENTS — ESTOPPEL—MUNICIPAL CORPORATIONS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1. Estoppel or Waiver to Contest Validitv oe Assessment.</p> <p>A property owner is estopped from enjoining the collection of the excess installments of an assessment to pay for a public improvement, which is levied in excess of the amount .authorized by law, where he has voluntarily paid the first installments thereof and watched in silence the letting of the contract and the completion of the improvement, and has accepted all the benefits thereof.</p> <p>[For other cases in point, see 1 Cyc. Dig'., “Assessments,” §§ 544-599; 4 Cyc. Dig., “Estoppel,” §§ 405-415, 521-530, 581-583, 600-613. — Ed.]</p> <p>2. Statute in Force at Commencement of Proceedings Controls Rate of Assessment.</p> <p>The rate of assessment by a municipality for a street improvement, upon abutting lands, is governed by the statute in force at the time the improvement proceedings were begun and cannot lawfully be departed from.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 56-68. — Ed.]</p>

<p>LIMITATION OF ACTIONS — SPECIFIC PERFORMANCE.</p> <p>Jelke, Swing and Giften, JJ.</p> <p>LIMITATION OF RIGHT TO SPECIFIC PERFORMANCE OF CONTRACT.</p> <p>Under the rule that specific performance cannot be granted unless the right thereto rests on clear and certain proof, the privilege of purchase forming the basis of the action in the present case, cannot be enforced after the expiration of the fifteen year period.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 174-182. — Ed.]</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Hull, Haynes and Parker, JJ.</p> <p>1. Cans Boss Serving with Acquiescence of, but not under Authority of Master, who is Paid out of Wages of Gang, a Fellow Servant.</p> <p>A gang boss who receives as compensation for his services, a pro rala amount deducted from the wages of the men of his gang' and who acts as a sort of manager for them at their request, and with the acquiescence *>f the employer, hut who is not put in authority by the master, is a fellow servant, and not a superior with power to bind such employer for . his negligence.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,’’ §§ 325-361. — Ed.]</p> <p>2. Employes Shoveling Ore Assume Risk of Injuries Incident to such Employment.</p> <p>In the absence of evidence showing negligence on the part of an employer, in the selection of the place and appliances for the work, employes engaged in shoveling ore into wheelbarrows from a pile under an ore trestle will be held to have assumed the risk of injuries, resulting from the falling of such ore.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 436-450 — Ed.]</p>

<p>TRUSTS AND TRUSTEES — WILLS.</p> <p>Swing, Giffen and Smithy JJ.</p> <p>1. Right op Beneficiary and Legatee to Agree on Construction op a Will.</p> <p>An-archbishop who is named as trustee of a devise has power to enter into an agreement with the other beneficiaries under the will with respect to the construction to be placed upon its provisions, and he exercises no more than a reasonable discretion in so doing, when confronted by the emergency of an impending contest of the will, and delay on his part in acting or a refusal to act might result in irreparable loss, to the cestui que trustcnt.</p> <p>[For otter cases in point, see 7 Cyc. Dig., “Wills,” §§ 436-587. — Ed.]</p> <p>2. Validity op Agreement by Parties Interested Disposing op an Estate.</p> <p>Such an agreement when entered into in good faith by all the parties interested in the disposition of the estate will be upheld by the court, notwithstanding the construction which was adopted was not the construction which the court would have placed on the will.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS — RAILROADS—STREETS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Jurisdiction of Probate Court in Railroad Crossing .Condemnation Cases.</p> <p>The jurisdiction of the probate court in the matter of condemnation proceedings brought by a railroad company for the purpose of acquiring the right to cross a street or highway with its tracks is confined to the question of the necessity of making the crossing and assessment of compensation therefor.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Courts,” §§ 1271-1289; 4 Cyc. Dig., “Eminent Domain,” §§ 526-535; 867-869; 7 Cyc. Dig., “Railroads,” § 204. — Ed.] '</p> <p>2. Jurisdiction of Question of Crossing at Grade, Above Grade or Below Grade Exclusive with Common Pleas.</p> <p>Whether the crossing shall be at grade, above grade, or below grade' is a matter entirely within the jurisdiction of the common pleas; and where the railroad company has acquired the right to cross by proper pro-' ceedings in the probate court, the privilege so granted is without any reference to the character of the crossing with reference to grade.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Railroads,” §§ 204, 319-326; Cyc. Dig. Supp., “Courts,” § 97. — Ed.]</p> <p>3. Evidence that Crossing is within Exception in 97 O. L.• 546 Erroneously Excluded.</p> <p>In an action brought in the common pleas to enjoin the laying of a crossing at grade under a grant from the probate court, it is error to- exclude testimony offered by the railroad company for the purpose of showing that the crossing in question falls within the exception provided in 97 O. L. 546 (Lan. 5332 et seg.; B. 3337-17j et seq.).</p> <p>[For other cases in point, see Cyc. Dig. Supp., “Railroads,” §§ 48-50. — Ed.']</p> <p>4. Permission of Municipality t.o Lay Spur Track Across Street not Necessary, when.</p> <p>Where the proposed crossing is by a spur track leading to manufacturing establishments, commercial houses and certain docks, it falls within the exception as to tracks for increasing “yard facilities at terminal or other points,” and the company has the right under the statute (Lan. 5332; B. 3337-170) to cross at grade.</p> <p>[For other cases in point, see Cyc. Dig. Supp., “Railroads,” §§ 48-5Ó. — Ed.]</p>

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

<p>Error to Wood common pleas court.</p> <p>Cited and commented upon the following authorities: Berry v. Collins, 6 Circ. Dec. 597 (9 R. 656) ; Rev. Stat. 5061, 5062, 5063 (Dan. 8576, 8577, 8578) ; Cannon v. Cheney, 4, Circ. Dee. 335 (8 R. 143) ; EleMron Mfg. Co. v. Electric Co-. 4 Circ. Dec. 555 (8 R. 311) ; Howard v. Levering, 4 Circ. Dec. 236 (8 R. 614); Wangerien v. Aspell, 47 Ohio St. 250 [24 N. E. Rep. 405]; First Nat. Bank v. Green, 40 Ohio St. 431; Cloon v. Insurance Co. 12 Dec. Re. 12 (1 Handy 32) ; Beecher v. Booth, (9 R. 469) ; Reformed Presb. Church v. Nelson, 35 Ohio St. 638; Rfev. Stat. 4996, 4997 (Lan. 8511, 8512) ; Beinheimer v. Carter, 31 Ohio St. 579; 1 Chitty, Pleading (16 Am. ed.) 35; Gallaher v. Thompson, Wri. 466; Bartges v. O’Neil, 13 Ohio St. 72; Rev. Stat. 3108, 5005, 5012, 5013 (Lan. 4808, 8520, 8527, 8528); Gilbert v. Sutliff, 3 Ohio St. 129; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Rep. 335] ; Farmers’ Mut. F. & L. Ins. Co. v. Ward, 24 O. C. G. 156; Sclnueinfurth v. Bailway, 60 Ohio St. 215 [54 N. E. Rep. 89] ; Cleveland & E. Elec. By. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; Travelers’ Ins. Co. v. Bosch, 13-23 O. C. C. 491; Lake Shore & M. S. By. v. Whidden, 13-23 O. C. C. 85.</p>

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

This action was brought in the common pleas by Theodore Harding, trustee under the will of Theodore Marsh, to construe the will. The question at issue was as to whether Flora C. Knight, a granddaughter of-one of the sisters of the testator, had any interest in the estate, her grandmother being a sister of the testator, and dying subsequent to his death, but prior to the death of his widow to whom a life estate was given.

<p>PRINCIPAL AND AGENT — SPECIFIC PERFORMANCE.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>1. Authority of Agent, Delivering Contract to Convey, to Accept -Payment of Price.</p> <p>Where an owner of real estate gives to his agent a written agreement to sell, to he delivered by him to a proposed purchaser, the law will imply that the agent was empowered to accept the purchase money from the purchaser.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Principal and Agent,” §§ 204-211. — Ed.]</p> <p>2. Enforcibility of Contract for Sale of Realty.</p> <p>A decree for specific performance will not be denied to a purchaser because the seller is possessed of sufficient property to respond in the event that a judgment for damages should he recovered against him.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 7-15. — Ed.]</p>

<p>BrroR to Williams common pleas court.</p>

<p>ANIMALS — NEGLIGENCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Keeping Basking Dogs as Negligence.</p> <p>While a harking dog may he a nuisance, it is not negligence to keep such a dog.</p> <p>2. Liability fob Injuries Caused bt Dog’s Frightening Child.</p> <p>Where there is no testimony in support of allegations that the defendant harbored a large St. Bernard dog, which he permitted to run without restraint and without a muzzle, or the taking of any means to protect the public from injury which might result from, the vicious disposition of said dog, a verdict awarding damages on account of injuries to a child, who ran in fright from the dbg and fell from a second story porch, must be set aside where it appears that the dog was on the premises of the defendant owner, and did not bite the child, or touch him, or do anything except bark.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Animals,” §§ 112-135. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>DAMAGES—EVIDENCE—MASTER AND SERVANT.</p> <p>Parker, Hull and Haynes, JJ.</p> <p>1. Liability or Mastee fob Sebvant's Tobt.</p> <p>Where a policeman, while preventing a railway company from laying its tracks upon a Mty street, is injured by being struck by ties thrown upon him by employes of the company, whose foreman told the men under him to throw the ties upon said policeman if he did not get out of their way, the railroad company is liable for the injuries thereof.</p> <p>2. Injuries Inflicted by Employes while within Scope of Employment.</p> <p>Workmen employed by such railroad company, are acting within the scope of their employment, when, while unloading ties, they throw the same upon a policeman who is officially protesting against the laying of the tracks across a public street, and the railroad is liable for injuries thereby inflicted upon the policeman.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 833-855. — Ed.]</p> <p>3. Evidence Admissible as Res Gestae.</p> <p>Evidence of acts of such employes of the railroad company immediately after the throwing of the ties upon the policeman, including the pushing of a car over the end of the rails and into the street for the apparent purpose of blocking the street, is properly admissible as a part of the res gestae.</p> <p>[For other cases in point, see 4 Cyc. Dig., "Evidence,” §§ 1681-1743. — Ed.]</p> <p>4. Exemplabt Damages Recoverable, when.</p> <p>Exemplary damages are recoverable from such railroad company for injuries inflicted maliciously and wantonly upon such a policeman while trying to prevent the wrongful laying of a railroad track across a city street.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 649-707. — Ed.]</p>

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

<p>EVIDENCE—INTERROGATORIES—TRIAL.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>Judgment on Special Finding Notwithstanding Verdict.</p> <p>Where an answer to a special interrogatory shows the plaintiff in an action to recover for injuries sustained at a railway crossing, was guilty of contributory negligence in not looking for an approaching train, a verdict for such plaintiff should be set aside and judgment rendered1 for the defendant.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Trial,” §§ 825-835. — Ed.]</p>

Nine annual installments of a lien for a street assessment remained unpaid at the time of the appropriation by the city for park purposes of the property so assessed. In making its order of distribution of the amount assessed by the jury as compensation to the land owners, the court [Below retained a sufficient sum to satisfy the claim of the city for the unpaid assessments. From this order an appeal was taken.

<p>ERROR.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Ruling on Demurreb Sustained by Subsequent Verdict.</p> <p>It is immaterial on review whether or not the court helow erred In oveV' ruling the demurrer to the second cause of action, where a special find, ing hy the jury, supported by the evidence, sustains the verdict returned ‘ for the plaintiff on the first cause of action.</p>

<p>EVIDENCE — PARTNERSHIP.</p> <p>Jelke, Saving and Giffen, JJ.</p> <p>Evidence Establishing Existence of Partnership.</p> <p>Where a plaintiff, who denies the existence of a partnership with the defendant, is met by several witnesses who testify as to admissions by him of a partnership, and his name does not appear on the weekly pay roll except in one instance, and he is unable to show any contract with the defendant whereby he was to furnish the material and money which he did furnish for the prosecution of the work, a verdict in his favor is clearly against the Aveight of the evidence, and should be reversed on that ground.</p> <p>[For other eases in point, see G Cyc. Dig., “Partnership,” §§ 553-579. — Ed.]</p>

<p>CONTRACTS—OFFICE AND OFFICERS—SCHOOLS AND SCHOOL DISTRICTS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Statute Regulating the Hiking of Teachers must be Strictly Followed.</p> <p>Where the original minutes of the meeting of a hoard of education do not show that the resolution appointing and engaging a teacher was_ lawfully adopted, because there was no entry of “the names of those voting ‘aye/ and the names of those voting ‘no/ ” as required by the 'provisions of Rev. Stat. 3982 (Lan. 6460), a contract entered into thereunder is illegal.</p> <p>[For other cases in point, see 2 Cye. Dig. “Contracts,” §§ 3009-3017; 7 Cyc. Dig., “Schools and School Districts,” §§ 358-362, 374, 376. — Ed.]</p> <p>2. Ex-officer cannot Correct Official Entries in Records after Expiration of Term.</p> <p>An ex-clerk of a school board cannot, after the expiration of his term, by his own act correct his official entries in public records, so that they will conform literally to the provisions of the statute.</p>

In this case a large amount of property was appropriated for railway purposes in a single action. As to many parcels agreements were reached, between tbe time of the filing of the petition and return of the verdict, whereby the amount to be paid to the owners was fixed. The value of the property of the present- plaintiff was determined by the jury, and tbe plaintiff being dissatisfied with tbe award prosecuted error.

Plaintiff is concluded by the declarations made by Nathaniel Den-man second, his predecessor in title ■ when in possession, and when selling the roadway to Peter Ziipmerer, father of the defendant. Den-man pointed out a certain line as the half section line; said line marking his east boundary, and Instructed the purchaser to • begin at the line so designated and measure westwardly twenty feet, and gave the purchaser general warranty deed for the strip.

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

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

<p>ASSESSMENTS—EXECUTORS AND ADMINISTRATORS.</p> <p>Jelke, Swing and Giffin, JJ.</p> <p>1. EXECUTORS OWNERS ON WHOM ASSESSMENT NOTICE TO BE SERVED.</p> <p>Executors under a will which directs them to hold and manage real estate for a term of fifteen years, pay the taxes, etc., and at the end of said term sell and convey the same and distribute the proceeds of sale, are the “owners of the land” upon whom service of notice should he made, under the statute providing for street improvements.</p> <p>2. Actual Notice by Executor or Improvement Assessment is Sufficient.</p> <p>An executor of a will, residing in the county and entitled to a written notice of the adoption of a resolution, providing for a street improvement, is hound by a notice addressed to the heirs of the testator, where it appears that the notice was left at his residence, and was actually received and examined by him and was submitted by him to his' attorney.</p> <p>[For other cases in point, see 1 Cyc.- Dig., “Assessments,” §§ 196-222; 4 Cye. Dig., “Executors and Administrators,” §§ 338-343. — Ed.]</p>