Volume 19 — Ohio Nisi Prius Reports, New Series

<p>AS TO THE NATURE OF A TENANCY UNDER AN EXPIRED LEASE.</p> <p>Landlord and Tenant — Tenant Under Written Lease Holds Over — May he Treated hy Landlord as Tenant for One Year or at Sufferance— Effect of Acceptance of Bent — Parol Agreement as to Such, Tenancy Within the Statute of Frauds,</p> <p>1. Where the tenant in possession of premises under a written lease holds over after the expiration of the period fixed by such lease, apparently under the same terms and conditions as those which are prescribed in the original lease, he may be treated by the landlord as a tenant for one year or as a tenant at sufferance, at the option of the landlord.</p> <p>2. When the landlord accepts rent at the original rate from such -tenant for a period of several months he will be presumed to intend to treat the tenant as a tenant for a year, and the tenant will be bound to pay rent for such period.</p> <p>3. An alleged parol agreement between the landlord and tenant while the latter is in possession to create a subsequent tenancy from month to month is within thp statute of frauds, and is therefore insufficient to alter the presumption which arises from the holding over, where there is no apparent change in the nature of the tenant’s possession.</p>

<p>COMMENT ON THE QUALIFICATIONS FOR. PUBLIC OFFICE.</p> <p>Libel and Slander — Published Estimate of a Candidate’s Qualifications for Public Office — Not Libelous Per Se, When — Fair Criticism Permissible.</p> <p>The publication by a “civic league,” purporting to voluntarily furnish the public with reliable information concerning candidates for public office, of the statement concerning a certain candidate for office, that—</p> <p>“His business and court record is such that in our opinion he is entirely disqualified for the Legislature. He should be defeated,”</p> <p>is not libelous per se, and in the absence of an averment of special damages following the publication, no ground for the recovery of damages exists.</p>

<p>LIABILITY OF VILLAGE.FOR. CONTAMINATION OF A WELL.</p> <p>Seioage Disposal Plants — Construction of, Undertaken by Municipalities in Their Governmental Capacity- — Mistake in Design Distinguished ■ ' from Negligence in Construction or Operation — Actions Based on Property Rights Distinguished from those for Personal Injuries— Right of Action Based on Nuisance Lies in Tenant as Well as the Landlord.</p> <p>A municipal corporation in the construction and maintenance Of a sewage disposal plant acts in a purely governmental and not in a private or proprietary capacity; and it follows that no cause of action is stated for a purely personal injury against a municipality by the allegation that the basin of a sewage disposal plant was so negligently constructed that the contents leaked therefrom and, percolating through the earth, contaminated the well from which plaintiff obtained her water, causing her to be stricken with typhoid fever.</p>

<p>REPORTS OF EXPENDITURES BY PARTY ORGANIZATIONS.</p> <p>Corrupt Practices Act — iExceptions "by Prosecuting Attorney to Statements of Election Expenses — Completeness of Statement Distinguished from Legality of Expenditure — Extent to "Which Statements Should be Itemized.</p> <p>Under the statutory provision that within ten days after an election every committee, association or organization, subject to the provisions of the corrupt practices act, shall file itemized statements showing in detail all moneys contributed or expended, with the names and addresses of those who expended money, the specific nature of each item and the date and purpose for which it was contributed or expended, it is held:</p> <p>That sufficient particularity as to residence is shown if the name of the city in which the preson resides is given.</p> <p>That the purpose of the contribution sufficiently appears if it is stated that it was to promote the success of the party with which those concerned with the statement are associated.</p> <p>That all contributions or expenditures should be dated.</p> <p>That in the statement of a committee chairman the items “miscellaneous expenses,” “election day expenses” and “sundry expenses” are sufficiently explicit.</p> <p>That objection to such items as expenditures for “cigars” and for “workers” does not go to the question of the completeness of the statement.</p> <p>That the names and addresses of those employed by committeemen to assist at the polls on election day should be given, but it is not necessary to particularize as to the nature of the work done.</p> <p>That money paid for postage and telephoning should be itemized, and payments for stenographic and clerical help, meetings, etc., should give the names of the persons to whom payments were made together with the dates of payment.</p> <p>That receipted bills need be filed only in cases of payments of ten dollars or more.</p>

<p>REMEDY OF A MORTGAGOR. WHO HAS BEEN DENIED THE RIGHT OF REDEMPTION.</p> <p>Deed Declared to he a Mortgage — Property Sold By the Mortgagee to an Innocent Purchaser — Redemption Judgment Granted to the Mortgagor.</p> <p>Where the circumstances surrounding the execution of a deed are such as to require that it be treated as a mortgage, and the mortgagee by conveying the property to an innocent party has put it out of his power to restore it to the mortgagor under his right of redemption, the mortgagor will be given a redemption judgment equal to the difference in the value of the land at the time of the trial and the indebtedness due under the mortgage with interest.</p>

<p>BUSINESS FOUNDED ON WIFE’S CAPITAL HELD LIABLE FOR. HUSBAND’S DEBTS.</p> <p>Husband and Wife — Business Started on Capital Furnished by Wife — ■ But Managed With Great Shill and Success by Her Husband — Held to be Liable for His Debts.</p> <p>A business conducted in a field open to all, founded on'money furnished by a wife without her interest therein being disclosed, and conducted by her husband as his own business though carried on in the name of the husband and sons, from the profits of which the husband supported a family of four after the manner of those in easy circumstances, the capital growing in seven years from $3,000 to $40,000 administered by a corporation, and from which original investment there accrued $70,000 during the seven years period, must be regarded as the result of the skill, genius, enterprise and good management of the husband, and may be subjected in equity to payment of his debts.</p>

<p>INJURIES RECEIVED IN THE COURSE OF EMPLOYMENT.</p> <p>'Workmen’s Compensation Act — Compensation Payable to Those Who Receive Injury in the Course of Their Employment — Not During the Period or Their Employment.</p> <p>Compensation is payable, under the workmen’s compensation act, to those who are injured in the course of their employment, and not to those injured while so employed.</p>

<p>EXEMPTION OF PROPERTY FROM ASSESSMENTS FOR. IMPROVEMENTS ALREADY PROVIDED.</p> <p>Assessment for Curb and Gutter — Injunction Against Enforcement of ■ — Where Abutting Owners Save Provided Their Property With the Same Improvement Under a Previous Ordinance.</p> <p>Properties, in front of which are cement curbs and gutters in good repair and theretofore constructed under the provisions of a city ordinance, can not be assessed for any portion of the cost of constructing similar cement curbs and gutters in front of other properties abutting on the same street, and which were constructed as a part of the general improvement of said street by paving and constructing curbs and gutters.</p>

<p>INTERFERENCE WITH REST AND COMFORT BY VIBRATION OF ENGINE.</p> <p>Injunction — Lies Against Operation of a Factory Engine at Night— When it Interferes With the Rest and Comfort of a Neighboring Householder.</p> <p>1. Where it is shown by the evidence that the operation of the engine of the defendant causes a vibration in the premises of the plaintiff, so as to seriously interfere with the úse of said premises for the purpose of sleeping in the night -season, an injunction will be granted as to the operation of the said engine in the night season.</p> <p>2. Where the premises of the plaintiff are situated in a neighborhood that is largely surrounded by manufacturing establishments of various hinds, a vibration in her premises caused by the engine of the defendant will not be sufficient to cause the court to enjoin the operation of said engine, where the evidence shows that in so far as said vibration in the day time is concerned it is no greater than the ordinary vibration attendant upon a manufacturing neighborhood.</p>

<p>IRREGULARITY IN OBTAINING JUDGMENT UNDER. AN AMENDED PETITION.</p> <p>Vacation of Judgment After Term — -Answer to the Original Petition— Benders Unnecessary an Answer to an Amended Petition,-When — ■ Irregularity in Obtaining Judgment by Default — Application of the Statute of Limitations — Action by a Divorced Woman for Maintenance of Her Children.</p> <p>1. A defendant having once answered a petition is not compelled to answer an amended petition, unless the amended petition changes the cause of action from that stated in the original petition; and, therefore, an order of court finding defendant in default for answer to a petition, where in fact he had answered the petition hut an amended petition had been filed which did not. change the cause of action against him, is erroneous and a judgment thus obtained by default will be va'cated after term, for irregularity in obtaining it, under the provisions of paragraph 3 of Section 11631, General Code.</p> <p>2. The plea of the statute of limitations contained in said answer will constitute a valid defense if supported by proper and sufficient proof.</p> <p>3. An action by a divorced wife against her husband, to recover for board, clothing and care of the children, is an action upon an implied contract to pay the reasonable value therefor, and is therefore barred within six years, even though a judgment for divorce had been obtained by the wife against the husband and the care and custody of the children had been awarded to her, but no sum had been adjudged to be paid to her for the care and custody of the children.</p>

<p>DETERMINATION AS TO THE CHARACTER. OF THE ESTATE DEVISED.</p> <p>Wills — Trust Not Created Where the Object or Person Intended is Not Ascertainable — Presumptions Can Not be Based Upon Presumptions • — Commands or Recommendations to a Donee — Construction of the Words “My Family” — Estate in Fee Not Reduced to an Estate in Tail by Language of Doubtful Meaning.</p> <p>1. A devise of a farm, where made by a batchelor to his nephew who was also a batchelor, with the limitation that it was to be preserved “for himself and his heirs for as many lives as the laws of Ohio will permit, in the name of my family, * * * it being my anxious desire that the said farm where I have resided for twenty-seven years and expended so much money shall continue in my family as long as the law will permit," does not create a trust in the estate devised to said nephew, because of uncertainty as to the person or object for whose benefit the trust was intended.</p> <p>2. Where a devise of land in fee simple has been created in clear and unmistakable terms, it can not be reduced to one in tail by subsequent language which goes no further than to create a doubt as to the estate intended.</p>

<p>TRANSFER OF TERRITORY FROM ONE SCHOOL DISTRICT TO ANOTHER.</p> <p>Schools — Mandamus to Compel Transfer of Territory — Construction of Section 4696 as Amended, tvith Reference to Duty of School Board Upon Filing of a Petition.</p> <p>Where fifty per cent, of the electors of a country school district petition for transfer to another school district, the county board of education may order that the transfer be made; but if the petition contain the names of seventy-five per cent, or more of the said electors, the making of such an order and the passing of the petition on for further proceedings, as provided by statute, is mandatory.</p>

<p>PROCEDURE IN THE MUNICIPAL COURT.</p> <p>Construction of the Act Relating to Procedure in the Municipal Court of Cincinnati — Determined by Jurisdiction Previous to Establishment of that Court.</p> <p>Under the act creating the municipal court of Cincinnati, Sections 9 and 98, providing the procedure which shall govern that court should be so construed as to give effect to both. In all actions in which justices of the peace had exclusive jurisdiction, the procedure governing justices courts applies; in cases in which the justices of the peace and the court of common pleas had concurring jurisdiction, the procedure applicable to either applies; and in cases formerly exclusively within the jurisdiction of the common pleas court, the procedure in that court applies.</p>

<p>AUTHORITY TO FIX SALARIES IN COUNTY OFFICES.</p> <p>County Salary Act — County Commissioners Fix the Aggregate Compensation to he Paid in the Several County Offices — But the Heads of Said Offices Fix Individual Salaries.</p> <p>County commissioners are without power to fix the compensation of deputies and assistant clerks of county auditor, treasurer, prohate judge and recorder. The authority to fix such compensation is vested in these several officers, with the limitation that the aggregate compensation to he paid in each office shall not exceed the amount allowed hy the county commissioners for such offices.</p>

<p>EXCLUSION OF STOCKHOLDERS FROM PART OF THEIR. INTEREST IN STOCK.</p> <p>Corporations — Right to Vote Stock in an Ohio Corporation a Property Right — Exclusion of Stockholders from. Right to Vote Deprives Them of a Property Right — And Affords Ground for Constructive Service — Section 11292.</p> <p>1. The stock of an Ohio corporation is property within this state. The right to vote that stock is a property right. And where a petition recites that the non-resident' defendants, having contracted away this right, are now seeking to derogate from their own grant hy refusing to abide by the contract, the cause of action stated in the petition is one relating to property within this state, and where it is sought by the action to exclude the non-resident defendants from voting the stock, the action is one to exclude the defendants partly 'from an interest in property in this state, and service by publication may be had- upon the non-resident defendants under the provisions of paragraph 9 of Section 11292, General Code.</p> <p>2. Service of summons can not be had upon the president of a corporation which is not a resident of Ohio nor doing business in this state.</p>

<p>INJUNCTION AGAINST EMISSION OF OFFENSIVE ODORS BY A REDUCTION PLANT.</p> <p>Nuisance — Reduction Company Enjoined from Emitting Offensive Odors —But Execution of Its Contracts Can Not he Interfered 'With.</p> <p>A reduction company which is engaged in collecting and disposing of garbage under a contract entered into with a city under authority of law (General Code, Sections 3809, 3649) and which creates a nuisance by the manner in which it operates its plant, can not he enjoined from continuing to carry out the contract, but will he enjoined from continuing the nuisance.</p>

<p>LIEN OF A NON-RESIDENT VENDEE OF MACHINERY.</p> <p>Liens — Rights of a Foreign Creditor Who Has Sold and Installed Machinery — Retention of Title in Himself Not a Bar to Enforcement of Mechanic’s Lien — Failure of Non-Resident Creditor to Enter Appearance in Receivership Proceedings Not Prejudicial to His Rights.</p> <p>1. A non-resident creditor for machinery and materials and the labor required in their installation, who has complied with the requirements of Section 8308, General Code, for the perfection of his lien, is not estopped from enforcing said lien by a specific provision in the contract of sale that the title should remain in the seller and should retain its personal character until fully paid for.</p> <p>2. Failure on the part of a non-resident creditor to enter his appearance in a receivership proceeding, or to take any action with reference to orders entered in such proceeding, does not deprive him of his lien or other rights arising thereunder.</p>

<p>SUMMONS NECESSARY ON CROSS-PETITION IN DIVORCE PROCEEDING.</p> <p>Divorce ancl Alimony — Plaintiff in Action for Alimony — Entitled to Service of Summons on Cross-Petition Ashing for a Divorce — Statutes Relating to Divorce Distinguished from those Relating to Civil Procedure.</p> <p>Where a plaintiff has filed a petition for alimony, and the defendant has filed an answer and cross-petition seeking divorce from the plaintiff, the case can not be heard upon such cross-petition for divorce until summons has been had thereon and the statutory period of six weeks has elapsed. Young v. Young, 9 Bull., 24, not followed.</p>

<p>SERVICE BY MUNICIPAL COURT ON NON-RESIDENT OF TOWNSHIP.</p> <p>Service of Summons' — Validity of Personal Service Issued by the Municipal Court of Cincinnati Against a Non-Resident of Cincinnati Township.</p> <p>Under the provisions of the act creating the municipal court of the city of Cincinnati (103 Ohio Laws, 279), the said municipal court lias jurisdiction to entertain an action brought against a nonresident of the city of Cincinnati when service is made1 upon him personally in said city and it is error for said court under such circumstances to grant a motion to quash the service so made.</p>

<p>TOOLS AND IMPLEMENTS FURNISHED ON THE ORDER OF A SUB-CONTRACTOR.</p> <p>Liens — Steam, Shovel Furnished to a Railway Sub-Contractor — Engaged in “Stripping” a Gravel Pit — Burden on Head Contractor to Show Payment in Full Prior to Notice.</p> <p>1. A sub-contractor engaged in stripping the surface soil of a tract of land for the purpose of preparing tbe ground to be used as a gravel pit, from which gravel is to be taken to be used as ballast in the construction and repair of railway tracks, is engaged in furnishing labor and material for and in the construction of a railroad, and a person who rents a steam shovel to such sub-contractor to be used in said work is a person who furnishes tools and implements on the order of a sub-contractor for his use, and is entitled t,o a lien under the provisions of Section 8351, General Code.</p> <p>2. In a contest between the head contractor and the person furnishing the steam shovel, the burden is upon the head contractor to show that prior to the notice of lien he had paid to the sub-contractor all moneys due said sub-contractor under the contract.</p> <p>3. “Vvhether said payment in full by the head contractor to the subcontractor would defeat the lien of the person .furnishing the steam shovel, quaere.</p>

<p>INSURANCE.</p> <p>Fire Insurance — Validity of Clauses against Alienation of Title — Policy Invalidated by Conveyance by Husband to Wife of an Undivided Interest in the Property Insured.</p> <p>A policy of fire insurance, containing a clause against alienation of title or interest without the consent of the company, is invalidated by the conveyance by a husband to his wife of an undivided one-half interest in the property insured without securing the consent of the company thereto, where the marriage of the couple occurred subsequent to the issuance of the said policy; and in an action for recovery under such policy the insurance company is entitled to judgment on the pleadings.</p>

<p>HOIST CAPABLE OF CARRYING BUT A SINGLE PASSENGER. NOT A PASSENGER. ELEVATOR.</p> <p>Accident Insurance- -Double Indemnity Not Recoverable — Where Injury Occurs While Riding on a Hand Hoist — Such a Device Not a Passenger Elevator.</p> <p>1. A hand hoist or lift erected for the sole purpose of transporting the officers and employees of a corporation from floor to floor, where the platform of said hand hoist or lift is thirty inches or less square, making it impossible for anyone save the operator thereof to stand thereon, and where the person who desires to use said lift is required to operate it by means of a hand rope, and where it is impossible for the operator to carry anyone upon said lift as a passenger with him, is not a passenger elevator within the terms • of a policy of accident insurance providing for double indemnity if the assured be injured while a passenger in or upon a public conveyance provided by a common carrier for passenger service or while in a passenger elevator.</p> <p>2. In an action to recover double indemnity by the administrator of one who was injured while riding upqn such a lift the right to so recover double indemnity will not be allowed.</p>

<p>CONDEMNATION OF PROPERTY FOR. THE PURPOSE OF EXTENDING A STREET.</p> <p>Municipal Corporations — Appropriation of Property for a Street Extension is a Public Improvement — Resolution Declaring Intention to Appropriate — Referendum on Street Extension — Referendum Act Constitutional — Referendum on the Appropriation Ordinance Void, When.</p> <p>1. When council seeks to appropriate property for the purpose of extending a street, it is necessary under Section 3679, G. C., to pass a resolution declaring its intent to appropriate property for the extension of such street; and the appropriation of property for the extension of a street is a public improvement within the meaning of the term as used in Section 4227-3, G. C. (103 O. L. 212).</p> <p>2. Under the provisions of Section 4227-3, G. C., such a resolution is a measure required to be passed to complete the legislation necessary, and under the provisions of Sections 4227-1 and 4227-2 a referendum can be held, and under Section 4227-3 must be held, and if such a referendum is not held upon such a resolution no referendum can be held upon any subsequent ordinance or any other measure relating thereto.</p> <p>3. Where a referendum was held on the resolution to appropriate property for the extension of Crown avenue and the electors of the city of Norwood voted in favor of such resolution, a referendum upon the appropriation ordinance adopted after the result of the election was properly certified is null and void, and a suit by the city under the appropriation ordinance will not be enjoined until the determination of such second referendum election.</p>

<p>LIABILITY OF MASTER. FOR. NEGLIGENCE OF SERVANT WHILE LOANED TO ANOTHER.</p> <p>Negligence — Driver and Team Sent to Deliver Christmas Packages— 'Under Direetion of a Santa Claus Committee — Tail-Gate of Wagon Falls and Injures a Passer-by.</p> <p>The general servant of one master becomes the special servant of another to such extent as to relieve the former from liability for the servant’s negligence when the servant is placed under control of the special master and is engaged in carrying out the latter’s orders when the negligence occurs, and, in such case,, the fact that the wages of the negligent servant were being paid by the general employer is immaterial.</p>

<p>BURDEN OF PROOF WHERE CARRIER. CLAIMS IMMUNITY FOR LOSS.</p> <p>Animals Injured in Transit — Burden of Proof Where the Carrier is Charged With Negligence — But Claims Immunity Through a Release Incorporated in the Bill of Lading</p> <p>1. Under a stipulation in a bill of lading of an interstate shipment whereby the shipper releases and discharges the carrier from all liability for delay, injuries to or loss of animals shipped, from any cause whatever, unless such delay, injury or loss shall be caused by the negligence of the agents or employees of the carrier, the burden of proving that a loss or damage to the animals carried was caused by the negligence of the agents or employees of the carrier is upon the plaintiff under the provisions of the Interstate Commerce Act.</p> <p>2. All questions concerning liability on interstate shipments must be determined by a uniform rule of the federal law and not by the varying rules of the several states.</p>

<p>PROPERTY HELD IN TRUST FOR. CHILDREN BY FIRST MARRIAGE.</p> <p>Wills — Property Devised to Children — With Life Interest in Widow to he Reduced to Dower in Event of Remarriage — Purchase of Title hy Mother Without Consideration Does Not Defeat Rights of Children.</p> <p>Where a testator devises bis real estate to bis children, subject to a life estate in his widow, to be reduced to dower interest in case of her remarriage, the course of title is not changed by a sale of the property to her without consideration upon her remarriage, but the property will be treated as held in trust for the children of the first marriage, against whom the statute of limitations does not run.</p>

<p>RIGHTS IN THE STREETS OF AN UNREGISTERED AUTOMOBILE.</p> <p>Motor Vehicles — Failure to Register Machine — Does Not MaJce it a Trespasser in the Streets — Injury Through Negligence to Such a Machine or its Driver Actionable — Effect of a Declaration of Emergency in the Enactment of a Statute.</p> <p>In an action by the operator of an automobile to recover damages for personal injuries caused by the automobile colliding at a grade crossing with an interurban passenger car of an electric railway company negligently operated by the motorman in charge thereof, it is no defense that such automobile is not registered as required by law.</p>

<p>EXEMPTION OF RAILWAY COMPANIES FROM NEGLIGENCE.</p> <p>Contracts of ,Exemption from Liability for Negligence — Application of Section 5 of the Federal Employers’ Liability Act — Assumption of Risk as a Subject of Contract — Telegrapher Killed, While Using the Track of His Employing Company on His-Way to Work.</p> <p>A telegraph operator in the employ of a.railway company, engaged in interstate commerce, contracts expressly with said railway company that, if said railway company will let him use his speeder or velocipede on the tracks of said railway company in going to and' from his work, he will assume all risk of personal injury to himself or to his property while he is so using such speeder or velocipede. He further agreed to keep himself informed of the movements of trains upon the tracks of said railway company and to remove his speeder from the tracks in time to avoid collision, notwithstanding such trains, engines and cars might be run at high speed and without warning to him and he assumed all the risk of injury that he might receive through any cause while operating his said speeder upon the tracks of said railway company.</p> <p>Held: That such contract violates Section 5 of the federal employers’ act, and is against public policy and void.</p>

<p>ATTACHMENT OF DEBTOR’S WAGES.</p> <p>Attachment — Defective Affidavit in Suit on Claim for Necessaries— What the Affidavit Should State — diving of Ten Per dent. Notice Does Not Supply Omission as to What it is Sought to Attach.</p> <p>An affidavit for attachment on a claim for necessaries should plainly state that it is only the ten per cent, of the debtor’s wages which it is sought to attach, and where this is not done the statement in the affidavit that the plaintiff gave the ten per cent, notice does not cure the defect.</p>

<p>INDIVIDUAL BOND DOES NOT COVER FIRM INDEBTEDNESS.</p> <p>Sureties — .Equivocal Language in Bond Will he Construed Against the Principal, When — Surety on Bond Covering Individual Indebtedness — Not Bound to Mahe Good Indebtedness of a Partnership of Which His Co-Obligor is a Member.</p> <p>1. Where a principal furnishes his agent with a special, printed form of bond for the purpose of having the same executed by such agent and a surety, and said form of bond contains language which, under the circumstances, is uncertain and equivocal as to the nature of the liability assumed by the surety and the latter is misled thereby, the court, in an action against the surety on such bond, will construe the uncertain and equivocal language in the sense most favorable to the surety.</p> <p>2. A surety who executed a bond by which he became liable for the accounting of his co-o.bligor as agent of the obligee, and who, when he signed the instrument believed and had been so led to believe by the terms of the bond and the circumstances surrounding the transaction, that such co-obligor was individually the agent of the obligee, is not liable on such bond for the default, as agent of the obligee, of a co-partnership firm of which his co-obligor was a member nor for such share of the firm’s indebtedness to the obligee as was incurred by the conduct of his co-obligee while acting as a member of such firm.</p>

<p>AS TO ENFORCEMENT OF PAYMENT OF LEGACIES.</p> <p>Executor — Can he Compelled to Pay Legacy Before Expiration of Statutory Period Only by Giving Bond.</p> <p>A legatee under a will can not maintain an action in the court of common pleas against the executor for payment of the legacy within eighteen months of his appointment. Where the legatee desires payment of the legacy within the eighteen months period he must apply to the probate court and give bond as provided in Section 10762, General Code.</p>

<p>CONSTRUCTION OF THE WORDS “ REGULARLY EMPLOYED ” IN THE WORKMEN’S COMPENSATION ACT.</p> <p>Workmen’s Compensation — Five or More Men Regularly Employed— Means there Must he Five or More Employees in the Conduct of the Business.</p> <p>The provisions of Section 13 of the workmen’s compensation law, making the law applicable only in the cases of employers having in service “five or more workmen or operatives regularly in the same business,” requires that the business be one in which five or more employees be reguarly employed, but does not forbid changes in the personnel of the employees.</p>

<p>CONDITIONS VOIDING A LIFE INSURANCE POLICY.</p> <p>Burden of Proof — In an Action on a Policy of-Life Insurance — Defense that the Insured Was Not in Good Health at Time Policy Was Delivered — Burden of Showing Such Was the Fact Upon the Company.</p> <p>In an action upon an industrial insurance policy, which contains tbe preliminary provision, “this policy shall not take effect if the insured die before the date hereof, or if on such date the insured be not in sound health, but in either event the premiums paid hereon, if any, shall be returned,” said provision is not a condition precedent, and if pleaded in defense to an action brought upon the policy will be considered as a condition subsequent and the burden of proof is upon the company to sustain such defense.</p>

<p>PLEADINGS SO SHAPED AS TO COVER. ALL ISSUES.</p> <p>Pleading — Amendments Proper Which Will Malee a Determination of all the Issues Possible.</p> <p>An amendment will tie permitted to a petition, where it tends to so shape the pleadings as to permit of a determination of all the issues presented.</p>

<p>AUTHORITY OF A COURT ON MOTION FOR. A FINDING AND JUDGMENT ON PLAINTIFF’S EVIDENCE.</p> <p>Questions of Law and Fact — Motion for a Fnding and Judgment on Plaintiff’s Evidence — Should be Treated as a Motion to Direct a Verdict for Defendant — And Not as a Final Submission — Application of the Scintilla Rule.</p> <p>1. Where an action at law is tried to the court and at the conclusion of plaintiff’s testimony a motion is made for a finding and the judgment of the court thereon, the motion should he treated as though it were to direct a jury to return a verdict for the defendant.</p> <p>2. A motion for a finding and the judgment of the court on such finding, where interposed at the conclusion of the plaintiff’s evidence,’ should he overruled if the evidence is of such a character that, were the motion for a directed verdict for the defendant instead of for a finding and judgment, the scintilla rule would require that it- he overruled.</p>

<p>PRIOR. AGREEMENT MERGED INTO THE DEED TO THE PROPERTY INVOLVED.</p> <p>Contracts — Dwelling Built on Ground Owned by the Contractor— Purchaser to Assume Mortgage Upon Delivery of Deed — Action for Breach of Contract as to Compliance With JSuilding Specifications —Does Not Survive Acceptance of Deed.</p> <p>1. Where L entered into a contract with B, whereby L agreed to construct a house upon a lot owned by him in accordance with certain plans and specifications, for which B agreed to pay the sum of $4,500, $400 or $500 of which was to be paid upon the execution • of the contract, $500 upon the completion of the house, and to assume a mortgage of $3,500, which was to be an encumbrance on the premises at the time of the delivery of the deed, and subsequently thereto B accepted a deed for the property and entered into possession of the premises, assuming said mortgage and giving promissory notes for the balance due on the purchase price, no action for breach of the contract because of failure to comply with the specifications can survive the acceptance of the deed to and ■delivery of the possession of the premises, and a demurrer to a petition seeking damages for such breach will be sustained.</p> <p>2. When a deed is delivered as an execution of a prior agreement, which provides for the delivery of said deed, the prior agreement is merged into the deed and no cause of action upon the prior agreement can then be had, but the rights of the parties must be determined by the deed so given in execution of the prior agreement, unless the elements of fraud or mistake are involved, or the deed was accepted under protest and with a reservation of the right to insist upon strict adherence to the terms set forth in the prior agreement.</p>

<p>VALIDITY OF THE CHATTEL LOAN LICENSE LAW.</p> <p>Constitutional Law• — Prohibition of the Making of Loans on Chattels or Wage Earnings Without a License — Authority of Superintendent of Banks to Revoke License — Exemption of Pawn Brokers — Inclusion of Plain Notes Within the Terms of the Act — Classification— Validity of the License Act.</p> <p>Sections 6346-1 to 6346-7 inclusive, as amended and supplemented (106 Ohio Laws, 281), providing for the regulation and licensing of the loaning of money without security upon personal property, and the purchasing and making of loans upon salaries or wage earnings, are within the police power of the state and constitute a valid enactment.</p>

<p>CONVERSION OF A MORTGAGED CHATTEL.</p> <p>Vendee of a Chattel — Upon Which There is a Valid Mortgage — Liable for Conversion — Necessary Allegation in an Action by the Mortgagee Against Such Vendee.</p> <p>1. One who buys from a mortgagor a chattel upon which there is a properly executed and recorded mortgage, and resells'said chattel to a third person without the knowledge or consent of the mortgagor or repaying said mortgage, is liable to the mortgagee in an action for conversion.</p> <p>2. In an action by the mortgagee against the vendee for surrender of the chattel or payment of its value, it is not necessary to allege fraud or bad faith, or that the mortgagor is insolvent, or that there is not sufficient other property covered by the mortgage to satisfy the debt.</p>

<p>NO RIGHT OF SUBROGATION WHERE A COUNTY HAS PAID MONEY TO AN OFFICIAL UNDER. MISTAKE OF LAW.</p> <p>Mistake — Money Paid by County to Wrong' Official — Action to Recover Back — Application of the Statute of Limitations — When Such an Action Accrues — No Right of Subrogation in County — Sections 286-1, 286-2 and 286-3.</p> <p>1. In an action brought by the prosecuting attorney to recover back money paid out by the county under a mistake of law prior to the passage of an act entitled “An act to amend Sections 284, 285 and 286 of the General Code, and to supplement said Section 286 by the enactment of additional sections to be known as Sections ■ 286-1, 286-2, 286-3 and 286-4, relating to the bureau of inspection and supervision of' public offices” (103 Ohio Laws, 506, passed April 17, 1913), the six year statute of limitation commences to run from the time the cause of action accrued and not from the time of the filing of the report of the bureau of inspection and supervision of public offices provided for in said act.</p> <p>2. The provisions of General Code, Section 286-3 (103 Ohio Laws, 509), providing that “no cause of action on any matter set forth in any report made under authority and direction of Section 286, General Code, shall be deemed to have accrued until such report is filed with, the officer or legal counsel whose duty it is to institute civil, actions for the enforcement thereof and all statutes of limitation otherwise applicable thereto shall not begin to run until the date of such filing,” have no application to a cause of action that had accrued prior to the passage of said section; the provisions of Section 26 of the General Code being sufficient to continue it in effect, the statute of limitations governing the cause of action sued on at the time it accrued.</p> <p>3. Where the county has paid out money under a mistake of law to one official and subsequently by a judgment of the court is compelled to pay out a further sum to another official as compensation for the same services, no right of subrogation exists in behalf of the county as against the first official.</p>

<p>AS TO THE EVIDENCE REQUIRED FOR. PROBATE OF A WILL.</p> <p>Wills — Specific Number of Witnesses Not Necessary to Probate — Failure of Memory by a Subscribing Witness — Or Disposition to Testify Falsely — Not Fatal to. Validity of Will, When — One Subscribing Witness May Prove Execution.</p> <p>The testimony of one competent witness to a will, that all formalities necessary to its due execution were complied with by the testator and tbe witness, is sufficient proof, if believed, for admission of the will to probate, notwithstanding tbe other witness to the will fails to remember or denies compliance with one or more of the essential statutory requirements to its due attestation.</p>

<p>WHEN MECHANICS’ LIENS BEGIN TO RUN.</p> <p>Mechanics’ Liens — Time Within Which Statement Must he Furnished to Owner — Affidavit for Lien Must he Filed Within Sixty Days — • When the Sixty Days Begins to Bun.</p> <p>1. The sworn statement required by the provisions of Section 8312, General Code (103 Ohio Laws, 371), to be served on the owner in order to perfect a mechanic’s lien upon the owner’s premises, is not required to be served prior to the time of filing the affidavit for lien in the office of the county recorder, but may be served" at any time before the time to file the lien expires, the lien hot becoming effective until the statement is served.</p> <p>2. 'In order to perfect a mechanic’s lien under the provisions of the mechanics’ lien law (103 Ohio Laws, 371), the affidavit for lien must be filed in the office of the .county recorder within sixty days after the completion of the work for which the lien is attempted to be taken.</p> <p>3. Where a material-man furnishes material for the construction of a ■building during the summer of one year and in the next year an additional order is given for the same kind of material 'for the purpose of patching up certain damages to the building occasioned by the elements during the course of the .winter, the time for filing the lien can not be held to begin to run at the time the latter portion of material was furnished, but must be held to have- begun to run from the time the main portion of the material was • furnished, and hence an affidavit for lien filed within sixty days of the time-when the material for repairs was furnished will not be effective to create a lien upon the premises for the entire amount of material furnished.</p>

<p>LESSOR. RAILWAY COMPANIES EXEMPT FROM THE FRANCHISE TAX.</p> <p>Taxation — Construction of the Bollinger Law — With Reference to Exemption in Case of Railways Operated. Toy a Lessee — Section 1465-1, et seq.</p> <p>A railway company which has leased its line to an operating company is exempt from payment of the state franchise tax, where the operating company is required to and does report and pay the excise tax.</p>

<p>CONSTRUCTION OF RAILWAY TARIFF PROVISIONS.</p> <p>Rates on Interstate Freight — Shipper Can not Profit from Mistake of Carrier’s Agent — Class Tariffs and Commodity Tariffs — Ascertainment of Legal Rate to Points Not Named in the Schedule.</p> <p>1, The rates for the transportation of interstate freight when once lawfully established are unalterable, either by the shipper, the carrier, or both; and the Interstate Commerce Commission alone has power originally to entertain proceedings attacking the same as unreasonable.</p> <p>2. Tlie mistake of the carrier’s agent in naming a rate is no bar to an action against the shipper for an undercharge.</p> <p>3. A “class” tariff provides rates applicable to all classes of freight and to all points where the same has not been modified or specially provided for by special action 'known as the “commodities” tariff.</p> <p>4. The inhibition of Section 4 of the Interstate Commerce Act against the greater charge for a longer distance is modified by the latter provision which allows the .commission to authorize the carrier in special cases to charge less for a longer than a shorter distance, and to prescribe the extent to which the carrier may be relieved from the operation of the act.</p> <p>5. Every provision of the tariff must be given effect, if possible, and where a general provision is followed later by a special, the latter must be held a modification of the former. Accordingly, where the tariff provides a rule whereby the rate for the next more distant point is to apply to points not named in the schedule, an exception is made as to a given point by the use of a reference in the schedule to a contrary provision as to said point. If this occurs in the “commodities” tariff, resort must be had to the “class” tariff to determine the rate applicable.</p>

<p>WIFE NOT DISQUALIFIED BY DESERTION FROM RECEIVING WORKMEN’S COMPENSATION.</p> <p>'Workmen's Compensation — Wife Does Not Cease to he a “Dependent” ■ — By Reason of Having Been Deserted hy Her Husband.</p> <p>A Wife does not cease to be “dependent” upon her husband, within the meaning of the • workmen’s compensation law, by reason of his failure to support her, and an award will be made in the ease of a wife whose husband was killed in the course of his employment after deserting her, without her fault, and taking up with another woman.</p>

<p>ALLOWANCE TO A WIFE DIVORCED ON HER. AGGRESSION.</p> <p>Husband and Wife — Action by Both for Divorce — Where They Are by Temperament Clearly Unsuited to Each Other — Allowance to the Wife Although the Decree is Given to the Husband — Allowance Made a Lien on an Estate in Expectation.</p> <p>1. A wife who has borne her husband five children and has carried her share of their common burden is entitled to an allowance out of the property of her husband, notwithstanding that her petition for a divorce has been dismissed and a decree has been granted ' to the husband on his cross-petition.</p> <p>2. Where the estate of the husband is in the form of an inheritance in remainder, the present value of which is $6,000, the wife will be awarded one-third of said present value of the estate in expectation, and in addition an allowance for the maintenance of the child left in her custody, with judgment for money, with interest, loaned to him by her and not repaid; and the award so made will be declared a lien on the estate in expectation.</p> <p>3. Personal property may be divided in gross, and where in the form of household goods and farm implements of equal value, the former may be awarded to the wife and the latter to the husband.</p>

<p>VALIDITY OF THE LEASE TO PROPERTY HELD BY A MUNICIPALITY.</p> <p>Municipal Corporations — Appropriation of Money in Excess of Revenue —Not a Matter of Concern to a Creditor of the Municipality, When ■ — Application of the Burns Law of Rentals Accruing Against a City — May Lease Property Without Obtaining Approval of the Board of Control — Section 4403.</p> <p>1. That a municipality has appropriated money in excess of its revenues is a matter of no concern to a party dealing with it who receives his money in due course, and such a situation does not afford grounds for refusing relief to a city from the forfeiture of a lease held by it.</p> <p>2. Moreover, the Burns law has no application to a year’s rental appropriated out of the proceeds of a lawful issue of bonds, nor can said law be construed as applying to rental for subsequent years under the same lease.</p> <p>3. A lease entered into by the proper officers of a municipality for property needed for municipal purposes, is not rendered invalid by reason of the fact that it is a contract involving an expenditure of more than $500 and was not approved by the board of control.</p>

<p>DAMAGES UNDER. THE VALENTINE ANTI-TRUST LAW.</p> <p>Valentine Anti-Trust Law — Undertakers’ Protective Association Charged with Libeling an Outside Concern — Members of the Association Not Answerable Under the Anti-Trust Law, When.</p> <p>1. Under the provisions of the Valentine anti-trust law damages can be recovered for only such acts as are expressly forbidden by that act, and the provisions of that act should not be given a wider scope than its terms fairly import.</p> <p>2. But a combination of persons formed for the purpose of boycotting those who refuse to become members of their organiza-, tion and the further combining of such organization with a labor union in furtherance of said boycott, whereby an attempt is made to prevent the public from dealing with said non-members on account of their alleged unfairness toward union labor, is a combination to create or carry out restrictions in trade or commerce within the meaning of the Valentine anti-trust law.</p>

<p>CONCURRENCE OF ALL TWELVE JURORS NECESSARY IN AN APPROPRIATION CASE.</p> <p>Jury — Provision for Return of Verdict by Three-Fourths of Jury— Not Applicable in Appropriation Proceedings — Action to Appropriate Not a Civil Action — Section 11455.</p> <p>A proceeding for appropriation of property is a special proceeding, and not a civil action within the meaning of Section 11455, as amended, providing for return of a verdict upon concurrence of three-fourths of the jury therein.</p>

<p>ADMINISTRATOR BARRED FROM SALE OF LAND TO PAY CONCEALED INDEBTEDNESS TO AN HEIR.</p> <p>Estates of Decedents — Heir Conceals Indebtedness to Him- and Partici- ■ • pates in Partition of Land of the Decedent — Then Proves His Claim and Administrator Files Suit to Sell the Same Land, in Satisfaction Thereof.</p> <p>.In an action brought by an administrator to sell land for payment of an indebtedness to one of the heirs, the defense lies that the said land was sold to the present holders in an action in partition within one year of the death of the decedent and that the heir, now asserting a claim, concealed said indebtedness and became a party to the partition proceeding and shared in the proceeds from the sale, his disclosure of the claim and proof thereof before the administrator occurring subsequent thereto.</p>

<p>NOTICE OF JUDICIAL SALE OF LANDS.</p> <p>Judicial Sales — Construction of Section 11678, Relating to Notice of Sale — Location of Land With More Particularity than Required 5y the Statute Not an Irregularity.</p> <p>The purpose of Section 11678, providing that advertisements for the sale of lands shall contain the street number of the building, or if no such number exists the name of the street or road upon which the property is situated, etc., is to definitely inform the public of the location of said land, and it can not be considered an irregularity if tbe description used in tbe advertisement, instead of following tbe strict letter of tbe statute, locates tbe property with more particularity than the statute requires.</p>

<p>JUDGMENT REVERSED FOR. OFFENSIVE CONDUCT OF COUNSEL.</p> <p>Trial — Scenes of Disorder Among Counsel — Coupled With Offensive Conduct Afford Ground for Awarding a Neto Trial — Notwithstanding the Judgment is Supported by the Evidence.</p> <p>In an action at law tried by the judge without the intervention of a jury, if the record shows an apparent fair preponderance of evidence in favor of the party against whom the judgment is rendered, a reviewing court will reverse the trial court where the record discloses such offensive conduct and repeated and prolonged scenes of disorder by counsel and contention between counsel and court as to unsettle the mental balance of the court and counsel and seriously disturb the orderly conduct of the trial. Under such circumstances, in the interest of justice, a new trial should be granted and the cause tried de novo, even i£ the judgment is not manifestly against the weight of the evidence, and notwithstanding the opportunity the trial judge had of seeing the witnesses and hearing them testify.</p>

<p>WANT OF KNOWLEDGE OF PROVISIONS OF A PROMISSORY NOTE NOT A DEFENSE.</p> <p>Note Payable on a Named, Bate — Contains Provision for Taking Judgment at Any Time — Failure of Maker to Discover this Provision Not a Defense.</p> <p>In the absence of any showing of fraud or misrepresentation no defense is stated to a promissory note, having a specified time to run, by the allegation that the maker did not know the contract he was signing contained the provision that the payee might declare the debt due and take judgment thereon at any time he deemed himself insecure.</p>

<p>VALIDITY OF ORDINANCE AGAINST BETTING ON RACES.</p> <p>Gambling — Ordinance Prohibiting Having in Possession Racing Memoranda — Penalties Which Are Not Excessive — Power of Courts to Declare Ordinances Unreasonable.</p> <p>1. An ordinance making it unlawful for any person to knowingly have in his possession "any writing, slip, paper or document * * * recording a wager * * * upon the speed or power of endurance of any beast” is within the provision of Section 3658, G-. C., authorizing a municipality to enact ordinances "to prevent riot, gambling,” etc.</p> <p>2. A penalty of a fine of $100 for the first offense, and from $25 to $100 for e'ach subsequent offense, or imprisonment at hard labor for not more than sixty days, or both, is clearly within the limitation of Section 5628, G-. C.</p> <p>3. The power of a court to declare an ordinance unreasonable should be restricted to cases where the Legislature has enacted nothing on the subject-matter of the ordinance.</p>

<p>IS THE BUILDING OF A PUBLIC HALL FOR AUDITORIUM AND EXPOSITION PURPOSES WITHIN THE POWER OF A MUNICIPALITY.</p> <p>"Municipal Corporations — Authority to Acquire Land and Build a Public Hall for Auditorium and Exposition Purposes — After an Issue of Bonds Therefor Has Been Approved by Referendum Vote— Action by City Through its Director of Law to Enjoin the Issue— Application by a Tax-payer to Intervene — Function of Municipal Government — Limitations on the Power of Taxation — Judicial Constructions of the Words “Public Purpose” — Is a Convention Hall a Public Utility — Determination as to the Plan, Design, Location and Character of Such a Hall Not an Administrative Function— Has a Municipality Authority to Collect Rents for Use of a Hall —An Action by the Director of Law is an Action in Behalf of Every Tax-payer of the City..</p> <p>1. A resolution by a city council, declaring tbe necessity of issuing bonds in excess of tbe permissible amount for tbe erection of a public ball for auditorium and exposition purposes' and acquiring tbe land necessary therefor, is not an emergency resolution within tbe provisions of tbe state Constitution and the charter of tbe city of Cleveland.</p> <p>'2. Tbe city of Cleveland has authority to build a hall for auditorium purposes and to issue bonds therefor, and may use such auditorium for any lawful purpose and derive revenue from such use; but said city has no authority to issue bonds to be used primarily for a building for exposition purposes, or to use portions of its auditorium for lodge rooms, concert balls, show rooms, or theaters, as a purely private enterprise.</p> <p>3. An action brought in good faith by tbe director of law in tbe com- ' mon pleas court, having tbe same parties and interests identical with those of tbe present action and determined after a full hearing on tbe merits and tbe judgment thereafter affirmed by tbe court of appeals, the issues whereof were tbe same as in tbe present suit or could have been properly presented, renders tbe questions so determined res judiciata; but the question of the right of the mayor of the city to cause to be constructed in said auditorium rooms for shows, concerts, lodge purposes, etc., for the purpose of deriving revenue by leasing such rooms ,to pivate persons, was not put in issue in the former suit and the determination in that action is therefore not res judicata.</p> <p>4. In the absence of any action by the city council as to the plan or design of -the. proposed auditorium building, allegations of the peti- ' tion as to its contemplated use are anticipatory, -speculative and premature, and are not before the court for adjudication.</p> <p>5. In designing the proposed auditorium the city may lawfully provide rooms other than the auditorium for purely civic and municipal purposes; and when such rooms are not needed for such pur- • poses, the city may derive revenue therefrom by lease or otherwise.</p>

<p>STATUTORY LIABILITY OF STOCKHOLDERS.</p> <p>Receivers — Limited to Terms of the Judgment in the Original Suit— Where Appointed for Collection of Statutory Liability from Stockholders. .</p> <p>In a suit by a receiver appointed in an action brought by creditors to recover double statutory liability from stockholders, the receiver is limited by the terms of the judgment in the parent suit, and where the judgment is in part against executors in their representative capacity, a petition seeking to recover from them as individuals is open to demurrer.</p>

<p>PROPER. FORM FOR. SUBMITTING INTERROGATORIES.</p> <p>Interrogatories — Must be Submitted in Such Form .as to Give Jurors Opportunity -for Signing Their Names.</p> <p>Counsel submitting interrogatories to jury must prepare them in such a way that the jury in answering them will have opportunity of signing their names to such answers, and where counsel refuse to comply with the request of the court to do so, it is not error to refuse to submit such interrogatories.</p>

<p>COUNTIES MAY PAY PART OF SALARY OF COMMON PLEAS JUDGES.</p> <p>Constitutional Law — Validity of Section 2252, Q-. C., Providing for Payment of Additional Salary to Common Pleas Judges.</p> <p>The common pleas judges of Ohio are not state officers, but act in a dual capacity, partly for the state and partly for the county in which they are elected, and payment to a judge by the county in which he serves of the amount provided in Section 2252 is not in conflict with any constitutional provision.</p>

<p>PROCEEDINGS FOR. REVERSAL OF AN ORDER APPOINTING AN ADMINISTRATRIX DE BONIS NON.</p> <p>Estates of Decedents — Bights of Executrix of Deceased Administrator —Not Affected by Appointment of an Administrator de bonis non ■ — Exclusive Jurisdiction of Probate Court in Appointment of Administrator de bonis non.</p> <p>1. No substantial right of an executrix of a deceased administrator is affected by an order of the probate court appointing an administratrix de bonis non for the estate of which said decedent was administrator, and therefore such executrix is not entitled, under the statute, to prosecute proceedings in error to reverse said order of the probate court.</p> <p>2. The jurisdiction of the probate court in the matter of appointing an administratrix de bonis non is exclusive, and error will not lie to reverse an order of the probate court appointing such administratrix where the record does not show that the probate court, without sufficient cause, denied the right of appointment to some one who by statute is entitled to preference in appointment.</p>

<p>BUILDING CONTRACTOR. MUST FURNISH STATEMENT TO OWNER. UNDER. ALL CIRCUMSTANCES.</p> <p>Liens — Statement Must be Furnished to Owner by Principal Contractor ■ — Notwithstanding all Claims -for Labor or Material Have Been Paid.</p> <p>The fact that there are no laborers or sub-contractors who have not been paid in full, and no claims for material or fixtures remain outstanding, does not relieve the original contractor from the duty of furnishing to the owner the statement under oath required by Section 8312 as amended, 105 O. L'., p. 522.</p>

<p>CIRCUMSTANCES WHICH RENDER. VALID AN ANTE-NUPTIAL CONTRACT.</p> <p>Ante-Nuptial Contracts — Parties Thereto Do Not Deal at Arm’s Length, But Stand in a Relation of Confidence — Highest Degree of Fairness and Good Will Must he Exercised — Fraudulent Concealment Will he Presumed Against the Husband, When — Rights of the Wife After Becoming a Widow Not Barred Unless Contract Has Been Fairly Performed hy the Htishand.</p> <p>1. An ante-nuptial contract, fairly and freely entered into with, a full understanding of the effect it will have upon the future rights of the respective parties, will not be held invalid solely because the wife does not receive as much as she would under the law if there was no contract.</p> <p>2. It is the duty of the husband not only to inform her of the extent of his wealth before such contract is entered into, but to advise her as well of the nature, extent and value of the interest in his estate she was giving up, and if the provision made for her is apparently inequitable, unjust and unreasonably disproportionate to the means of the intended husband, a fraudulent concealment thereof will be presumed, and before she will be held thereto those contending for the validity of the contract have the burden of establishing full knowledge on her part of all facts materially affecting her rights.</p> <p>3. Such contract will not operate to bar the wife of her rights as widow under the law in his estate, unless the husband while he lived fairly performed the provisions thereof accruing in her favor during his lifetime.</p>

<p>ACTIVITIES OF STRIKERS LIMITED BY INJUNCTION.</p> <p>Strikes — Injunction Against Demonstrations by Hotel and Restaurant Employees of a Character Injurious to Their Late Employer— Picketing Permitted but in a Modified Worm — Principles Applicable in Gases of Labor Trouble — In Actions Growing Out of Such Trouble One or More May Sue or Defend for All, Where Unincorporated Associations Are Involved — Section 11&51.</p> <p>During a strike of employees of a hotel, the activities of the strikers in the immediate vicinity of the hotel may be limited by injunction to the maintenance of two pickets on each street upon which the building fronts, who must not approach nearer the building than the middle of the street, or conduct themselves in other than a peacable manner, and they may not circulate cards containing language derogatory of the hotel or its service, or announce that a strike is on in other than a moderate tone of voice. And crowds of strikers and their sympathizers may be enjoined from gathering within the limits mentioned, or from indulging in boisterous conduct, or jostling" or interfering with guests or employees entering or leaving the building.</p>

<p>LIABILITY FOR. RENT OF A TENANT WHO HAS HELD OVER..</p> <p>Landlord and Tenant — Charge of Court — As to Defenses hy a Tenant Who Has Held Over — Findings May Not he Ashed-of the Court, When.</p> <p>1. In an action for rent against a tenant who has held over and who claims an oral agreement that the new tenancy should he from month to month and that there had been a surrender, the jury should be instructed that the burden is on the defendant to substantiate both defenses in order to escape liability.'</p> <p>2. It is not within the province of a trial court to include findings - in an entry where there has been a verdict by a jury and no interrogatories were submitted.</p>

<p>ASCERTAINMENT OF THE AMOUNT DUE FROM THE SURETY UNDER A BOND FOR VILLAGE DEPOSITS.</p> <p>Burettes — Bonds Covering Deposits of a City or Tillage — Provide Security Only to an Amount Within Ten Per Cent, of the Face of the Bond — Notwithstanding the Deposits Greatly Exceeded That Bum.</p> <p>1. a bond securing deposits made by a city or village in a designated depositary, under the provisions of Section 4295, G. C., is a statutory bond into which the provisions of the statute must be read, and the surety must be held to have contracted with a view to the statutory provisions.</p> <p>2. A bond in the sum of $10,000 secures deposits to the amount of $9,091 only, and where deposits are made in excess of that sum, and the bond is not increased correspondingly, and the depositary becomes insolvent, the amount recoverable under the bond is ascertained by deducting from $9,091 all dividends received and assessing against the surety what remains unpaid of that sum with interest.</p>

<p>ACTION FOR RECOVERY OF DIVIDENDS PAID OUT OF CAPITAL STOCK.</p> <p>Dividends — Action by Trustee in Bankruptcy Against a Cestui que Trust — For Recovery of Moneys Received as'Pretended Dividends, But Really Paid Out of Capital.</p> <p>One wlio held shares of capital stock of a corporation in trust for another received payments of money as pretended dividends thereon but which he knew were really paid out of the capital of the company; held:</p> <p>1. In an action against the cestui que trust to recover such moneys, the latter can not defend on the ground that he personally acted in good faith and believed the pretended dividends were paid out of earnings.</p> <p>2. Neither is-it a defense to such action that, at .the time the payments were made, the corporation was not actually insolvent, nor that no then-existing creditors were injured, it appearing that the effect of such payments was to hinder, delay and defraud subsequent creditors. . 1</p>

<p>VALIDITY OF AN ELECTION TO TAKE UNDER A WILL.</p> <p>Widow Who Elects to Talce — Without Being Adequately Advised by the Probate Judge — Not Estopped from Denying an Election — Nor do Conduct or Declarations Bind Her — Where Not Based on Full Knowledge as to Her Rights.</p> <p>1. A widow is not estopped from denying that she in fact elected to take under the will of her deceased husband, or from asking that an alleged election by her be canceled and set aside, where the probate judge did not at the time of said election explain to her the provisions of the will and her rights, both thereunder and by law, in the event of her election or refusal to elect to take.</p> <p>2. Nor do her declarations, conduct or actions amount to an election to take, where it is not shown that she was acquainted with' the contents of the will, or that she knew the benefits flowing to her under the will were less liberal than the law would give her, or because for a time she recognized the will and accepted benefits thereunder, where it appears that she had very little knowledge as to the ¡value of her husband’s estate or as to the disproportionate share given her by the will.</p>

<p>PURCHASER. DECLARED A TRUSTEE UNDER THE BULK SALES ACT.</p> <p>Bulk Sales — Ohio Act Analagous in Principle to Both the Common Law and Precedent — Privilege of Applying for Order Declaring the Purchaser a Trustee — Open to Any Creditor — Purchaser Not Protected Who Relies on Oral Statement hy Seller that He Has No Creditors.</p> <p>1. The. hulk sales statute must he strictly construed in favor of the (unpaid seller of merchandise.</p> <p>2. The right to make application, within ninety days after the sale, for an order declaring the purchaser a trustee accountable to the creditors of the seller is not limited to creditors named in the list furnished to the purchaser by the seller, but is open to any creditor whether his name is included in said list or not.</p> <p>3. It is the duty of the purchaser to demand and of the seller to furnish a statement under oath showing the exact condition of his business with the names of all creditors, and a purchaser who permits himself to be put off with an oral statement to the effect that he has no creditors is without protection under the statute.</p>

<p>LIMITATION OF RECOVERY FOR. INJURIES GROWING OUT OF AN AUTOMOBILE ACCIDENT.</p> <p>Insurance Against Accident — Indemnity to an Insured' for Causing Bodily Injuries or Death — Does Not Cover Injuries of the Character Sustained by a Husband — By Reason of Bodily Injuries Sustained by His Wife When Struck by the Automobile of the Insured — Interest on Judgment Recovered — ¿Expenses Incurred by Insured Ineluding Cost of Trial.</p> <p>1. An insurance policy, indemnifying tbe assured against loss from tbe liability imposed by law upon tbe assured for damages on account of bodily injuries, including death therefrom, accidentally suffered by any person or persons by use of an automobile named in tbe schedule of tbe policy, containing tbe condition tbat, “Tbe corporation’s liability on account of an accident resulting in such injuries to one person, including death, is limited to five thousand dollars ($5,000), and subject to tbe same limit for each person, the corporation’s total liability on account of any one accident resulting in injuries to more than one person, including death, is limited to ten thousand dollars ($10,000),” limits the liability of the company to $5,000, where the wife has sustained bodily injuries and has recovered a verdict of $5,000, and the assured, who was called upon to pay a judgment of $4,000, recovered against him by the husband of the wife for medical services and loss of wife’s services, can not recover under the ten thousand dollar clause in such policy. The word “injuries” under the ten thousand dollar clause refers to “bodily injuries,” and the loss of services sustained by a husband, although “injuries,” in the general sense of the word, are not such injuries as are contemplated by the word as used in the policy sued upon.</p> <p>2. The liability of the company for judgment recovered against the assured is limited to $5,000, and by the weight of authority interest on such judgment pending- error proceedings can not be recovered by the assured.</p> <p>3. The company is liable for all expenses resulting from claims upon the assured on account of bodily injuries, and the costs of a second trial incurred by the assured must be borne by the company where the company did not in fact pay the full amount of its liability as ascertained by previous judgments.</p>

<p>CLAIM OF CO-HEIRS BARRED BY THE STATUTE.</p> <p>Limitation of Actions — Action to Enforce Agreement Among Heirs as to Payment of Debts of the Estate — Bar of the Statute Interposed.</p> <p>A, M, and J, the heirs of W, deceased, on March 23, 1899, entered into an agreement to divide the lands of W as follows: A to take the home farm east of the township road, assuming an indebtedness of $3,000, more or less, that existed against W’s estate; M to take the home farm west of the township road, except certain designated lots of land, and to assume $1,000 of the indebtedness of said estate; and J to have the balance of the estate free from any of the debts of the estate. Mutual conveyances to carry out this agreement were made by the parties. The said A paid only $1,600 on account of the debts of the estate. The said M, in order to protect the title to the real estate she received in the amicable partition, was compelled to pay debts amounting to $1,217.85 over and above the $1,000 assumed by her. On September 15, 190,3, A paid to M the sum of $255, on account of the $1,217.85 paid by the said M. In an action brought by M against the heirs of A, to recover from them the amount claimed to have been paid by said M on account of the indebtedness assumed by said A, less the said $255, and for a lien upon the real estate Conveyed under said agreement to said A, in favor of said M, to secure the said amount;' Held, That the action is barred by the statute of limitations, more than ten years having elapsed between September 15, 1903, the date of the alleged payment, and the date of the filing of the petition.</p>

<p>CUSTODY OF CHILDREN.</p> <p>Jurisdiction — 'Where Custody of Child is in Dispute — Residence of One Parent and Presence of Child Sufficient to Confer Authority ■ Upon a Court to Act — Best Interests of Child to he Guarded.</p> <p>In an action involving custody of a child, as to which there has been no judicial determination, the residence of the parent having the present custody is sufficient to confer' jurisdiction, and where the best interests of the child seem to require that such custody be continued it will not be disturbed, notwithstanding possession of the child was obtained by kidnapping it from the contesting parent in another state.</p>

<p>LIABILITY FOR. AN ACCIDENT ON A SCENIC RAILWAY.</p> <p>Negligence — Presumption of, Arises in the Operation of a Scenic Railway, When — Highest Degree of Care Required in the Operation of —Passenger Injured by Gar Leaving the Trade.</p> <p>1. A person controlling and operating an amusement device known as a scenic railway, is a carrier of passengers and is bound to exercise the highest degree of care for the safety of such passengers and to do all that human foresight and vigilance can do consistent with the mode of conveyance and the practical operation of its business to prevent accidents to them.</p> <p>2. If an injury to a passenger on such scenic railway is caused by apparatus wholly under the control of the owner and furnished and managed by him, and the accident is of such a character that it would not ordinarily occur if due care, was used, a presumption of negligence arises from the nature of the accident and the attending circumstances though not from the mere fact of the accident itself.</p>

<p>POWERS INHERING IN A TRUST EXTENDING THROUGH THREE GENERATIONS.</p> <p>Trust — Created hy a Testator — To Continue Until Title Finally Tests in His Great Grandchildren — Power Necessary to Carry Out Provisions of the Trust- — Held to Inhere in the Office — And Not to the Person Named as Trustee in the Will.</p> <p>The trust created hy the testator William Neil, running through .the lives of three classes of persons, is a trust connected with the office and not exclusively with the person named as trustee in the will, and the powers and duties conferred on the trustee, including the power to convey land by good and sufficient title, is a power running through the life of the trust, to he exercised successively hy the person or persons upon whom execution of the trust for the time being devolves.</p>

<p>PROSECUTION FOR. FAILURE TO PROVIDE FOR. MINOR. CHILDREN.</p> <p>Parenf and Child — Failure to Provide for Minor Children May he Charged in One Count — Voluntary Care of a Child hy Another Believes a Delinquent from the Charge of Failure to Support.</p> <p>Where an indictment charges failure on the part of the defendant to support his two boys under sixteen years of age, and it appears from • the evidence that by consent of all the parties in interest one of the boys is being supported and in a proper manner by his grandparents, but no such voluntary support has been given the other ' boy and there has been a failure on the part of the defendant to " provide him with a proper home, food and clothing, a judgment ■ ' may be entered acquitting the defendant with respect to one of the boys but finding him guilty with respect to the other, notwithstanding the charge as to both is contained in one count.</p>

<p>AS TO THE CENSORING OF MOVING PICTURE FILMS.</p> <p>License — Affirmative Character of the State Law — Creating a Board of Censors as a Part of the Industrial Commission — Mayors May he Enjoined from Interfering with the Exhibition of Licensed Films— “The Birth of A Nation" Under Judicial Review.</p> <p>An order issued by the state board of censors permitting the exhibition of a moving picture film can not be questioned, even in a home charter city having an ordinance covering the same subject, except by application to that board for a review of its action, or by bringing suit in the Supreme Court to have the order amended, vacated or set aside.</p>

<p>STATUTORY RESTRICTIONS ON THE LOCATION OF A CEMETERY.</p> <p>Cemeteries — Some of the Statutory Restrictions with Reference to,. Construed — Ground Lying in Front of and to he Used as an Entrance to a Proposed Cemetery Forms Part of the Cemetery — Corporation for Profit Not Permitted to Maintain a Cemetery — Injunction Available to a Landowner Within the Prohibited Zone of a Cemetery,</p> <p>1. The restrictions found in the Ohio statutes render it impossible that a private corporation should engage in the business of platting, conducting and maintaining a cemetery for profit.</p> <p>2. Land lying in front of and having the same ownership as a tract-intended to be used for the burial of the dead constitutes a part of the proposed cemetery where necessary as an entrance way, notwithstanding there are to be no burials therein, but the said front part is to be reserved for park purposes and driveways.</p> <p>3. Where the purpose to use the land for cemetery purposes is made clear by avowal or otherwise, a property owner residing within the prescribed limit may interfere by injunction, on the ground that the proposed use of the land would be in derogation of his legal rights.</p>

<p>EXHIBITION OF FIXED OPINION BY JURORS.</p> <p>New Trial — Questions Put to Witnesses by Jtirors* — Indicating They Had Formed an Opinion — Not Ground for Another Trial, When.</p> <p>The fact that questions put hy certain jurors to witnesses might be taken as indicating they had reached a conclusion on the merits of the case prior to the close of the evidence, does not require that a new trial be granted, where the verdict returned is in accordance with the* evidence.</p>

<p>DAMAGES FOR. BREACH OF CONTRACT TO PURCHASE FLOUR.</p> <p>Damages — Rule for Construing Contracts With Reference to Liquidated Damages and Penalties — Contracts Will be Upheld Where the Stipulation for Liquidated Damages Was Fair to Both Parties at the Time it Was Made.</p> <p>A stipulation in a contract for the sale and purchase of flour, that in case of breach by the vendee the damage suffered by the vendor should be ascertained by using as a basis the price of wheat at the time of the breach rather than the price of flour, must be treated as a bona fide agreement as to liquidated damages and not as providing a penalty in case of a breach, notwithstanding the damages resulting would be considerably larger if based on wheat rather than flour.</p>

<p>INTEREST ON LEGACY WHERE PAYMENT IS DEFERRED.</p> <p>Wills — Interest on Pecuniary Legacy Buns — Notwithstanding an Action is Pending to Set the Will Aside.</p> <p>While the contest of a will, pending its determination,. is an impediment to payment of a legacy' thereunder, it does not stop the running of interest on the legacy from the date it.would otherwise have become payable.</p>

<p>THE CRIME OF EMBEZZLEMENT.</p> <p>Criminal Law — What Constitutes the Crime of Embezzlement — Money Converted to Personal Use With an Honest Intention to Return It.</p> <p>One wlio purposely and knowingly takes the money of his employer is guilty of embezzlement, notwithstanding he may have fully intended to return it; hut where through an honest mistake, or an error in book-keeping, or a misunderstanding of his instructions, an error appears against him in his accounts, the element of embezzlement Is not present.</p>

<p>NATURE OF THE DEFENSE SET UP BY AN ANSWER.</p> <p>Verdict — When it Should he Set Aside hy the Trial Judge — Pleading— Statement of Agency and an Accounting Not an Affirmative Defense — Burden of Proof With Reference to Such Agency.</p> <p>1. As a general rule the trial court should not set aside a verdict of the jury where the evidence is conflicting and where different minds could come to different conclusions, but where the jury disregard the law as given them by the court and reach conclusions not supported by the undisputed facts of the case, a court should not hesitate to set aside a verdict.</p> <p>2. In an action for money had and received, an answer setting up the defense of agency and showing an accounting does not plead an affirmative defense. Such an answer merely sets out a statement of the case different from the one plaintiff claims to be the true transaction, and it is. error to charge that the burden of proof is upon the defendant to show such agency.</p>

<p>ELECTION EXPENSES OF PROBATE JUDGE UNDER. THE CORRUPT PRACTICES ACT.</p> <p>Elections — What Constitutes the Limit of Expenditure Which May he Made hy a Candidate for Prohate Judge — Forfeiture of Office for Violation of this Act Cam, he Decreed Only Upon Conviction of the Otense Charged.</p> <p>1. Under tke section of the corrupt practices act which limits the amount which may he expended hy candidates at an approaching election, the office of probate judge falls within the provision which fixes such expenditure at a sum not exceeding $500 with $5 additional for each one hundred votes in excess of 5,000 cast at the last preceding state election.</p> <p>2. The court of common pleas is without power to declare forfeiture of an office for violation of this act until the accused has been convicted in due form as provided by statute.</p>

<p>AS TO INJURY TO RESIDENCE PROPERTY FROM SMOKE AND VIBRATION FROM A STEEL PLANT.</p> <p>Injunction — Does Not Lie Against Operation of Heavy Machinery in a Steel Plant, When — Complaint by Owners of Residence Property —Railway Shown to Have Caused More Vibration Than the Steel Plant — Rights of Manufacturers Located, in a Factory District as Against Near-by Residents.</p> <p>Injunction does not lie against the operation of a factory on the ground of injury to residence property from smoke and vibration of the earth, where it appears that the factory is located in a factory district, and is separated from the property in question by a stream of water and a railway operating sixty-four trains a day, and the trains cause more smoke and vibration than does the operation of the factory, and that the parties complaining acquired their property with one exception, some time after the factory began to operate.</p>

<p>INJUNCTIVE RELIEF AGAINST VIBRATIONS.</p> <p>Injunction — Does Not Lie Against a Manufacturing Plant on Account of Vibration, When — Degree of Proof Required — Res Adjudicata.</p> <p>1. Injunction will not lie against the operation of a steel manufacturing plant on the ground of injury to residence property from vibration, where it appears that the plant is located in a manufacturing and railroad district and is separated from the residences in question by a stream of water and a railway system operating sixty or more trains per day, said trains causing as much and at times more vibration than said steel manufacturing plant operation.</p> <p>2. The doctrine of res adjudicata applies in cases where injunctive relief is sought against “vibrations” suffered by owners of property, unless the vibrations are greater than those complained of in former litigation involving the same issues and between the same parties.</p> <p>3. Injunctive relief will not be granted unless the proof is clear and convincing, tending to show irreparable damage for which no adequate relief can be had at law.</p>

<p>CONTRACT TO TURN OVER STOCK OF GOODS TO TRUSTEE TO PAY DEBTS CONSTRUED AS AN EQUITABLE MORTGAGE.</p> <p>Debtor and Creditor — Insolvent Merchant Turns Over Stock to Creditor as Trustee to Pay Debts — Money Advanced by Said Creditor for Compromise of Claims — Debtor Subsequently Coes Into Bankruptcy —Nature of the Trustee-Creditor’s Claim — Debtor Denied Right to Exemptions.</p> <p>1. A written agreement between a creditor and an insolvent merchant, who with his wife waived their homestead and other exemptions, by which .(1) the creditor advances a certain sum of money to compromise and settle the claims of other creditors, (2) a trustee is appointed to take over the store stock, book accounts and all assets belonging to the business, and (3) conduct the business, (4) convert the stock into money and pay the money advanced, the debt due such creditor, expenses of the trust estate and return the balance to the debtor, is in the nature of an equitable mortgage against the proceeds of which no claim for exemptions will be allowed, and enforcible between the parties in equity.</p> <p>2 The fact that the debt of creditor is evidenced by promissory notes affords no right under the contract to enforce payment by an action at law either before or after voluntary bankruptcy proceedings instituted by the debtor.</p> <p>3. The fact that a few minor claims of three creditors had not been settled and paid and in all probability would have been taken care of if debtor had not filed his petition in bankruptcy, can not be permitted to aid debtor in evading the terms of such contract.</p>

<p>AS TO THE VALIDITY OF IRREVOCABLE PROXIES.</p> <p>Corporations — Inspectors of Election Will Not he Appointed, When— Conditions Under Which Irrevocable Proxies Must he Regarded as Valid.</p> <p>1. A court will decline to appoint inspectors of a corporate election, under the provisions of Sections 8640 et seq., where there is reason to believe that by so doing contractual rights may be distributed ' without a proper legal adjudication.</p> <p>2. While general doctrine prohibits separation of the voting power from the beneficial interest in corporate stock, still the settled rule is that separation of such power is justified and legal, where there is a property interest of the corporation to be carried out, or some beneficial interest of stockholders to be subserved, or some lawful.purpose advantages to stockholders to be effectuated.</p> <p>3. Where a majority interest in the stock of a corporation unite in a plan for refinancing and a change of management in the belief that the best interest of the company will be promoted thereby, the giving'of irrevocable proxies to the new management who are bringing in new capital is accompanied by the creation of an equitable interest in the welfare of the corporation of such a character as to sanction a separation of the voting power from ownership of the stock.</p>

<p>DEFECTIVE SERVICE ON A GARNISHEE.</p> <p>Attachment and Garnishment — Service on a Garnishee Doing Business Under a Fictitious Name — Not Sufficient Where Summons is Left at Office.</p> <p>Under Section 10266, if the garnishee is a person, the copy of the order and notice shall be served upon him personally, or left at his usual place of residence. Service on a manager for a person doing business under a fictitious name, which is not a partnership, is not a good service under the above section.</p>

<p>ACTION AGAINST BOTH MASTER. AND SERVANT.</p> <p>Action for Injuries Negligently Caused — Both Master and Servant Made Defendants — Subsequent Election to Proceed Against the Servant —Does Not Give Bight to Docket Separate Cause Against the Master — Such an Action Distinguished From Those Separately Brought Against Joint Tort Feasors — Where Judgment Against One Could Not be Pleaded in Bar as to the Other.</p> <p>1. After a motion to elect as to which defendant plaintiff will proceed against has been granted' in an action where the plaintiff has sued both the master and servant, and the plaintiff elected to proceed against the servant, his request to have a separate cause of action docketed against' the master will not be granted for the reason that .there is no statutory provision permitting such procedure and for the further reason that in an action of this kind the most liberal construction of Section 11312, General Code, does not authorize this.</p> <p>2. ja. petition against master and servant, which, upon its face, is not demurrable, but which, after the close of the plaintiff’s case, is subject to a motion to elect, sets up but one cause of action, and it is not in the interest of justice, where a motion to elect has been granted and acted upon by the plaintiff, to permit the docketing of a separate cause of action against the party defendant who has been dismissed from the pending cause. The plaintiff could have originally sued the master and the servant separately, but a judgment in either suit could be pleaded in bar of the proceedings to the other suit. A suit of this kind is different from actions separately brought against joint tortfeasors where the judgment in the one suit can not be pleaded in bar and where both tortfeasors would be liable until a judgment against either has been satisfied.</p>

<p>DETERMINATION AS TO THE CHARACTER. OF A DEVISE.</p> <p>Remainder — Devise of Life Estate to Sons — With -Fee to Children- of Last Life Tenant — Creates a Contingent and Not a Vested Estate— Conveyance of Such an Estate hy Quit-claim Deed Ineffectual— Restoration of Purchase. Money for Said Interest Ordered in Proceeding for Partition.</p> <p>1. Where in a will a testator devised to his two sons the equal use and enjoyment of the rents and profits of certain real estate during their lives, or during the natural life of the surviving one of them; and then, at the decease of the surviving one of them devised said real estate to the children of his said sons, surviving the last life tenant,</p> <p>Held: That the remainder thus created was a contingent remainder, the right of enjoyment depending upon the uncertainty of survivor-ship among said children, and a child of .either one of said sons had no alienable interest in said land until the death of the last life tenant.</p> <p>2. Where, in such case, the only child of one of the sons, before the death of the last life tenant, executes and delivers a quit-claim deed, without any covenants of warranty, to a third party for a valuable consideration, said quit-claim deed creates no estoppel, and is ineffectual to convey any interest whatever in said premises; and such grantee is without title to effect a conveyance of said interest by deed of general warranty, though executed and delivered for a valuable consideration.</p> <p>3. In such case, equity requires the restoration of any money paid or advanced for the execution and delivery of said quit-claim d§ed on its caneellation by the order of the court.</p>

<p>DAMAGE TO A SHIPMENT DIVERTED FROM ITS DESIGNATED ROUTE.</p> <p>Carriers — Defense of Necessity for Diversion of a Shipment from, the Prescribed Route — Duty of Consignee with Reference to Damage to Goods After Arrival — Pleading.</p> <p>1. an action for recovery of damages to a shipment of goods diverted from the prescribed route, admissions in the pleadings that a physical necessity required that the car be sent over another than its designated route for a part of its journey but that its arrival was delayed only a few hours and the consignee ha.d notice of arrival, is sufficient to relieve the carrier from liability for damages suffered by said goods after arrival at the city to which they were shipped.</p> <p>2. It is the duty of a consignee to minimize as far as possible any damage likely to occur- to a shipment, and failure, so to- do is a proper subject of defense in an action against the carrier on account of loss which the carrier might have prevented in whole or in part.</p>

<p>FINANCIAL INTEREST OF MAYOR IN STREET RAILWAY.</p> <p>Municipal Corporations — Street Railway Gh-ant Rendered Invalid by Financial Interest of Mayor — Collatei'al Attach on Grant to Street Railway.</p> <p>1. Where the mayor of a city allows himself, from whatever motive, to become so identified with the building of a street railway that his pecuniary interests will be promoted by obtaining advantageous grants from the city for the company, such grants are corrupted and must be treated as void.</p> <p>2. While as a general proposition corporate existence can be questioned only by the state and in a direct proceeding for that purpose, and where the validity of a contract made by the city is questioned in the interest of the public the attack must be made by those legally representing the public, nevertheless where such a contract is relied upon to justify interference with private property of one not a party to the contract, its invalidity may be asserted by the company, not for the undoing of the contract, but for protection of its private rights.</p>

<p>PROMISSORY NOTE RECEIVED FOR PRE-EXISTING DEBT IS TAKEN IN DUE COURSE AND FOR VALUE.</p> <p>Bills, Notes and Checks — Note Received in Due Course and for Value*— Where Taken in Payment of a Debt — New Note Taken in Part Payment for One Which Had Become Due.</p> <p>1. Where a note is received in payment of a pre-existing debt due from the signer of the note, he parts with nothing and the note is taken in due course and for value.</p> <p>2. The holder of a note, which he surrenders for part payment in cash with the balance evidenced by a new note, is a holder for value.</p>

<p>SHORTACE IN LAND CONVEYED.</p> <p>Pleading — In an Action for Damages for Shortgage of Land Conveyed Under a Deed of General Warranty — Facts Must he Stated Showing the Breach.</p> <p>In an action for damages for shortage of land conveyed under a deed of general warranty by metes and bounds, the mere statement of the 'breach is not enough, but the fact or facts which show the .breach must also be alleged.</p>

<p>ORTHODOX JEW MAY KEEP BARBER. SHOP OPEN ON SUNDAY.</p> <p>Sunday Closing — Barber Shop May be Kept Open — Where the Proprietor Conscientiously Observes Saturday as a Holy Day.</p> <p>While Section 13047, General Code, which prohibits barbering on Sunday, contains no exception in favor of persons who conscientiously observe the seventh day^of the week as the Sabbath, it is in pari materia with the statutes against Sabbath desecration which contain such exception; it therefore follows that one who conscientiously observes as a holy day the period from sundown on Friday to sundown on Saturday, refraining from all work and keeping his shop closed during that time, may avail himself, in defense of prosecution under the statute against barbering on Sunday, of the exception prescribed for those observing the seventh day as sthe Sabbath.</p>